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Biodiversity Legal Foundation v. Norton

August 7, 2002

BIODIVERSITY LEGAL FOUNDATION ET AL., PLAINTIFFS,
v.
GALE NORTON, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos. 16, 17

MEMORANDUM OPINION

DENYING THE DEFENDANTS' MOTION TO STAY THE BRIEFING SCHEDULE; DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Listed as an endangered species in 1967, the Cape Sable seaside sparrow is at significant risk of imminent extinction. The Biodiversity Legal Foundation, the Florida Biodiversity Project, and individuals Brian Scherf, Rosalyn Scherf, and Sidney B. Maddock (collectively, "the plaintiffs" or "Biodiversity") bring this suit against the U.S. Department of the Interior and the U.S. Fish and Wildlife Service (collectively, "the defendants" or "FWS") for allegedly failing to satisfy certain agency duties under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544. Specifically, Biodiversity contends that the FWS violated the ESA by failing to meet provisions required by the ESA's Section 4 and violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., by engaging in unreasonable delay. The plaintiffs also challenge the FWS's Listing Priority Guidance stating that it impedes appropriate actions needed to save the sparrow's habitat from destruction.

This matter comes before the court on the defendants' motion for stay of the briefing schedule, filed September 25, 2001. In support of their motion, the defendants argue that because of a lack of resources, they would not have been able to fulfill their statutory obligations until the requested stay expired on October 22, 2001. For the reasons that follow, the court denies as moot the defendants' motion for stay of the briefing schedule and denies without prejudice the plaintiffs' motion for summary judgment.

II. BACKGROUND

A. The Cape Sable Seaside Sparrow's Critical Habitat

The sparrow lives in southern Florida's "marl prairie," a habitat within the Everglades National Park and the Big Cypress National Preserve where the rainy season is conducive to the sparrow's breeding and foraging patterns. Compl. at 7. The sparrow's survival depends on the continuing existence of at least three healthy subpopulations of the species (i.e., the western population, the Ingraham highway population, and the eastern population). Id. at 8. "In the last two decades, flood control projects in South Florida have disrupted the natural hydrology of the Everglades, all but decimating the western Florida population of the sparrow. These hydrology changes continue to represent the main threat to the overall survival of the species." Biodiversity Legal Found. v. Norton, 180 F. Supp. 2d 7, 8 (D.D.C. 2001) (Urbina, J.); Compl. at 8-10.

While the FWS designated the sparrow's critical habitat in 1977, one of the areas not included ended up becoming the essential habitat for the western population of the sparrow. Biodiversity Legal Found., 180 F. Supp. 2d at 8; Compl. at 9. In 1999, the FWS reported again that the sparrow remained "at significant risk of imminent extinction" and the "[p]resently designated critical habitat does not adequately encompass the areas occupied by core populations and must be re-evaluated." Compl. at 7, 10 (emphasis added).

B. The ESA's Administrative Requirements

Under the ESA, any "interested person" may petition the FWS for revision of a critical-habitat designation. 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14; Biodiversity Legal Found., 180 F. Supp. 2d at 9. Within 90 days after receiving the petition, the FWS must determine whether that revision "may be warranted." 16 U.S.C. § 1553 (b)(3)(D)(i) ("90-day finding"). In addition, "[w]ithin 12 months after receiving the petition," regardless of when the FWS issues its 90-day finding, the FWS must determine "how [it] intends to proceed with the requested revision." 16 U.S.C. § 1553(b)(3)(D)(ii) ("12-month notice") ; see also Biodiversity Legal Found. v. Babbitt, 63 F. Supp. 2d 31, 34 (D.D.C. 1999).

In this case, the plaintiffs petitioned the FWS for revision of the sparrow's critical-habitat designation on August 26, 1999. Defs.' Mot. for Stay of Briefing Schedule ("Defs.' Mot. for Stay") at 2. Nearly 11 months later, on July 10, 2000, the FWS issued its 90-day finding concluding that protection of the habitat area "is essential to ensuring the continued existence of the species." Id.; Compl. at 12. On September 25, 2001, the FWS moved to stay the briefing schedule until October 22, 2001, when it planned to publish the 12- month notice. Defs.' Mot. for Stay at 1-2. The defendants argued that the FWS's publication of the notice would provide the plaintiffs with "the only relief to which [they] are ...


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