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DEFENDERS OF WILDLIFE v. NORTON

December 26, 2002

DEFENDERS OF WILDLIFE, ET AL. PLAINTIFFS,
V.
GALE NORTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler, United States District Judge

  MEMORANDUM OPINION

Plaintiffs, twelve conservation organizations committed to preserving animal and plant species in their natural habitats and one individual involved in Lynx conservation efforts,*fn1 challenge a final decision by the United States Fish and Wildlife Service ("FWS" or the "Service") declaring the Lynx in the contiguous United States to be a "threatened," rather than "endangered," species under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Plaintiffs allege that the designation of the Lynx as threatened is "arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law," in violation of § 706(2)(A) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). Plaintiffs also contend that the Service has violated the ESA by failing to designate "critical habitat" for the Lynx as required by that statute.

Defendants are Gale Norton, Secretary of the Interior, who has ultimate responsibility for implementing the ESA, and Steven Williams, Director of FWS, the agency that has been delegated the day-to-day responsibility for implementing the ESA.

The matter is now before the Court on cross-motions for summary judgment. Having considered the parties' motions, oppositions and replies thereto, as well as the Administrative Record in this case, and having heard the parties' oral arguments on November 13, 2002, for the reasons set forth below, the Court grants Plaintiffs' Motion for Summary Judgment and denies Defendants' Motion for Summary Judgment.

I. STATUTORY FRAMEWORK

A. Overview

The ESA is the "`most comprehensive legislation for the preservation of endangered species ever enacted by any nation.'" Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 698 (1995) (quoting Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978)). When Congress enacted the statute in 1973, it intended to bring about the "better safeguarding, for the benefit of all citizens, [of] the Nation's heritage in fish, wildlife, and plants." 16 U.S.C. § 1531(a)(5). Having found that a number of species of fish, wildlife, and plants in the United States had become extinct "as a consequence of economic growth and development untempered by adequate concern and conservation," Congress intended the ESA to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species." Id. § 1531(a)(1), (b). In particular, the legislative history of the statute reflects a "consistent policy decision by Congress that the United States should not wait until an entire species faces global extinction before affording a domestic population segment of a species protected status." Southwest Ctr. for Biological Diversity v. Babbitt, 926 F. Supp. 920, 924 (D.Ariz. 1996); see H.R. Rep. No. 412, 93d Cong., 1st Sess. 10 (1973), reprinted in 1978 U.S.C.C.A.N. 2989, 2998.

The Act imposes certain responsibilities on the Secretary of the Interior, and the Secretary of the Interior has in turn delegated day-to-day authority for implementation of the ESA to FWS, an entity within the Department of the Interior. 16 U.S.C. § 1531(b); 50 C.F.R. § 402.01(b). The ESA's protection of a species and its habitat is triggered only when FWS "lists" a species in danger of becoming extinct as either "endangered" or "threatened." 16 U.S.C. § 1533. The Act defines a "species" as "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16). FWS has issued a "Vertebrate Population Policy" delineating the circumstances under which the Service will list, as endangered or threatened, a "distinct population segment" or "DPS" of a species. 61 Fed. Reg. 4722.

A species is "endangered" when it is in "danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is defined as "threatened" when it is "likely to become an endangered species within the foreseeable future." Id. § 1532(20).

Endangered species are entitled to greater legal protection under the ESA than threatened species. For any species listed as endangered, the ESA makes it unlawful for any person to, among other activities, "import any such species into, or export any such species from the United States," or to "take any such species within the United States." Id. § 1538(a)(1)(A), (B). The term "take" includes "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). For species that are listed as threatened, rather than endangered, the Secretary of the Interior "may," but is not required to, extend these prohibitions on taking and export. Id. § 1533(d).

B. Critical Habitat

When FWS lists a species, it is also required to "concurrently" designate "critical habitat" for the species, unless it determines that such habitat "is not then determinable." Id. § 1533(a)(6)(C). In that event, FWS "must publish a final regulation" designating critical habitat "to the maximum extent prudent" within one year following the final listing decision. Id.

Critical habitat is defined to include those specific areas which are presently "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." Id. § 1532(5)(A)(I). Critical habitat may also include habitat that is unoccupied by the species at the time of the listing, if FWS determines that such areas are "essential for the conservation of the species." Id.

C. Section 7 Consultation

Under Section 7(a)(2) of the ESA, after a species is listed as endangered or threatened, each federal agency that takes or authorizes an action that may affect a listed species must "insure," in "consultation" with the Service, that such action "is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of [the species' designated critical] habitat." Id. § 1536(a)(2).

If the Service or federal agency determines that any contemplated agency action "may affect listed species or critical habitat," the agency and the Service must engage in "formal consultation." 50 C.F.R. § 402.14(a). Formal consultation is not required, however, if FWS issues a "written concurrence" that the proposed agency action "is not likely to adversely affect any listed species or critical habitat." Id. § (b); 16 U.S.C. § 1536.

The formal consultation process requires FWS to issue a Biological Opinion "detailing how the agency action affects the species or its critical habitat." 16 U.S.C. § 1536(b)(3)(A). If the Service finds that the action under review will jeopardize the continued existence of the species or destroy or "adversely modify" the species' critical habitat, then the Service must set forth those "reasonable and prudent alternatives" which would avoid these results. Id.

II. FACTUAL AND PROCEDURAL BACKGROUND*fn2

A. The Canada Lynx

The North American range of the Lynx currently extends from Alaska, through Canada, and into the northern part of the contiguous United States. Id. In Canada and Alaska, Lynx inhabit the classic boreal forest ecosystem known as the taiga, whereas in the contiguous United States, the distribution of the Lynx is associated with the southern boreal forest, comprised of subalpine coniferous forest in the West and primarily mixed coniferous/deciduous forest in the East. Id.

In the lower forty-eight states, the Lynx range extends into four different regions that are separated from each other by ecological barriers consisting of unsuitable Lynx habitat. These regions are (1) the Northeast, (2) the Great Lakes, (3) the Southern Rocky Mountains, and (4) the Northern Rocky Mountains/Cascades. Id. at 16054. There is evidence that the Lynx may currently be extirpated from New Hampshire, Vermont and New York in the Northeast region, and from Colorado and southeastern Wyoming in the Southern Rockies region. The largest presence of Lynx population in the contiguous United States is in the Northern Rocky Mountains/Cascades region. Id. at 16055-59.

B. The Lynx's Listing History

The Lynx has been the subject of either administrative action or judicial proceedings for the last ten years. In 1982, FWS formally identified the Lynx as a potential "candidate" for ESA listing. During the next ten years, however, the Service "took no formal steps to make a decision on listing." Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 674-75 (D.D.C. 1997) ("Lynx"). In response, conservation groups, including some of the Plaintiffs in the instant case, filed formal petitions with FWS, requesting that the agency list the Lynx in the contiguous U.S. Id.

1. FWS's "Not Warranted" Finding

In 1994, Region 6 of FWS — which comprises a significant portion of the Lynx's historic range, including Colorado, Montana, North Dakota, Utah, and Wyoming — prepared a "90-day finding" regarding one of the petitions for listing.*fn3 It determined that all five of the criteria for listing a species as endangered under the ESA were applicable to the Lynx.*fn4 Id. at 674.

That finding triggered the Service's obligation to conduct a comprehensive "review of the status of the species concerned," which included the Service's solicitation of "comments and relevant data from the public as well as from independent Lynx experts as to whether the Lynx should be listed." Id. at 676; 16 U.S.C. § 1533(a)(3)(A).

FWS's biologists in Region 6 also conducted their own review of the available scientific and commercial information. They concluded that "`Lynx populations in the contiguous United States have suffered significant declines due to trapping and hunting and habitat loss,' and that at least four of the five statutory criteria for listing a species under the ESA apply to lynx." Lynx, 958 F. Supp. at 676 (quoting 1st A.R. Doc. 35 at 19-43). The biologists drafted a proposal to list one segment of the Lynx population, in the Northwest and Northern Rockies, as threatened, and a second population, in the Northeast, Great Lakes, and Southern Rockies, as endangered. This recommendation was accompanied by an extensive, 50-page analysis of the Lynx's history and current status. See id. at 676.

Biologists from both Region 5 and Region 3, which encompass the Northeast and Great Lakes areas, respectively, supported the proposed rule. Only the Director of Region 1, which encompasses the Pacific Northwest, opposed it. Id. Although not every comment from the public indicated complete agreement with the 50-page report, not a single biologist or Lynx expert employed by FWS disagreed with the recommendation of the Region 6 biologists that the Lynx be listed. Id.

On October 20, 1994, Region 6 submitted its listing proposal to the Acting Director of FWS in Washington, D.C. for approval. Id. Two weeks later, the Acting Director rejected Region 6's proposal in a five-page memorandum which summarily concluded that the "listing of the Lynx in the 48 contiguous States is not warranted." Id.

The Lynx I plaintiffs subsequently challenged that finding, and, on March 27, 1997, the Court granted their motion for summary judgment. In so doing, the Court rejected various rationales advanced by the Service for not listing the Lynx. First, the Court rejected FWS's position that the ESA requires, prior to listing, "conclusive evidence of the biological vulnerability or real threats to the species in the contiguous 48 states." Id. at 679 (quotation omitted). Second, the Court rejected the Service's argument that Lynx need not be protected in the contiguous U.S. because they "remain[] plentiful in Canada and Alaska." Id. at 684 (quotation ...


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