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BIODIVERSITY LEGAL FOUNDATION v. NORTON

May 30, 2001

BIODIVERSITY LEGAL FOUNDATION ET AL., PLAINTIFFS,
V.
GALE NORTON, SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Urbina, District Judge.

MEMORANDUM OPINION Granting the Plaintiffs' Motion to Compel Production of the Administrative Record

I. INTRODUCTION

The plaintiffs in this action are two non-profit organizations dedicated to biodiversity and conservation in Florida, and three private citizens of Florida. They have sued the U.S. Department of Interior and the Fish and Wildlife Service for allegedly failing to satisfy certain duties under the Endangered Species Act. Specifically, the plaintiffs contend that by failing to issue a "12-month determination" on revision of the sparrow's "critical habitat designation," the defendants have violated the Endangered Species Act ("ESA"), 16 U.S.C. § 1531-1544, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 555(b) and 706(1).

This matter comes before the court on the plaintiffs' motion to compel production of the administrative record. In support of their motion, the plaintiffs argue that the court must have the full administrative record before it to resolve the plaintiffs' claims. The defendants oppose the plaintiffs' motion on the ground that there is no administrative record in this case, and that they "cannot produce that which does not exist." They also claim that their failure to issue a "12-month determination" does not constitute "agency action or inaction" for the purposes of the APA because they have not made an "affirmative decision" not to act. For the reasons stated herein, the court rejects the defendants' claims and grants the plaintiffs' motion to compel production of the administrative record.

II. BACKGROUND

A. The Endangered Species Act

An "endangered species" is one that is "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). Under the ESA, the federal government must take affirmative steps toward conservation and recovery of an endangered species. These steps include designating the species' "critical habitat," id. at § 1553(a)(3), and ensuring that federal actions are not likely to jeopardize any listed species or harm its critical habitat, id. at § 1536. The ESA defines "critical habitat" as "(i) the specific areas within the geographical area occupied by the species . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed . . ., upon a determination by the Secretary that such areas are essential for the conservation of the species." Id. § 1532(5)(A).

The U.S. Fish and Wildlife Service ("the Service" or "FWS") designated the sparrow's critical habitat in 1977, "before the full distribution of the subspecies was known." See Compl. ¶ 22. In 1983, the Service acknowledged that damage to the sparrow's critical habitat had forced the sparrow to abandon certain areas and occupy new ones, thereby necessitating review of the sparrow's critical habitat. See id. One of the areas not included in the 1977 designation, but which the Service concluded had become part of the sparrow's "essential habitat," was the area occupied by the western population of the sparrow. See id.

The critical habitat, as designated, does not adequately account for the distribution of the present-day core subpopulations, or the areas necessary for continued survival and recovery. An important area west of Shark River Slough, which until 1993 supported one of two core subpopulations (nearly half the entire population), is not included within the designation, and has been undergoing detrimental changes in habitat structure as a result of water management practices.

Id. ¶ 25 (citing MSRP at 4-348). The Service, in its MSRP, also underscored the need to redefine the sparrow's critical habitat, stating that the critical habitat required "significant review and redesignation." Id.

B. The Plaintiffs' Petition to the Service for Critical-Habitat Revision

Under section 553(e) of the ESA, any "interested person" may petition the Service for revision of a critical habitat designation. See 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14. Once a petition is submitted to the Service, "to the maximum extent practicable, within 90 days after receiving the petition . . ., the Secretary shall make a finding as to whether the petition presents substantial scientific information indicating that the revision may be warranted." 16 U.S.C. § 1553(a)(3)(D)(i). If the Service determines in its "90-day finding" that revision "may be warranted," the Service must determine within 12 months "how [it] intends to proceed with the requested revision." Id. at § 1553(a)(3)(D)(ii). The "12-month determination" must be made "[w]ithin 12 months after receiving a petition," regardless of when the Service ...


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