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AMERICAN LANDS ALLIANCE v. NORTON

January 30, 2003

AMERICAN LANDS ALLIANCE, ET AL., PLAINTIFFS,
V.
GALE A. NORTON, SECRETARY OF THE DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton, United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on plaintiffs' (American Lands Alliance, The Larch Company, and Sinapu) lawsuit against the Secretary of the Department of the Interior ("Secretary") and the Director of the United States Fish and Wildlife Service ("FWS"), in their official capacities, which seeks both declaratory and injunctive relief, and alleges violations of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq. (2000), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706 (2000). At the heart of the parties' dispute is the interaction of the two methods by which fish, wildlife, and plant species can be listed as an "endangered" or "threatened" species under the ESA.*fn1 These two methods are either an internal initiative that is instituted by the FWS itself (the "internal process") or an external initiative that is instituted by a petition submitted by the public (the "petition process"). 16 U.S.C. § 1533. On January 25, 2000, the plaintiffs, along with several other petitioners, submitted a petition to the Secretary to list the Gunnison sage grouse (Centrocercus minimus) as an endangered species under the ESA. Plaintiffs' Material Facts Not in Dispute ("Pls.' Mat. Facts"), Exhibit ("Ex.") E ("Status Review and Petition to List the Gunnison Sage Grouse"). The defendants responded to the plaintiffs' petition by informing them that "[o]n January 19, 2000, the Regional Director of the Mountain-Prairie Region of the FWS initiated the placement of the Gunnison sage grouse on the FWS's `candidate' list by signing a `Candidate and Listing Priority Assignment Form.'" Pls.' Mat. Facts at ¶ 3 (citing Pls.' Mat. Facts, Ex. B). Thus began the debate that has given rise to the instant cause of action. At issue is: (1) whether the FWS's treatment of a species in its own internal process satisfies the requirements that the FWS must adhere to when considering a petition submitted by the public requesting the listing of a species as "endangered" or "threatened" under the ESA; (2) whether the defendants violated the "notice and comment" provisions of either the ESA or the APA when promulgating their guideline that treats such public petitions as "redundant" once a species has been identified as a candidate within the FWS's internal listing process; and (3) whether this guideline substantively violates Congressional requirements mandated in the ESA. Because the Court concludes that the FWS cannot ignore the specific requirements of the ESA when a petition is submitted by the public, even when an internal process has already been initiated by the FWS, and that the guideline the FWS relies upon as the basis for ignoring the ESA is both procedurally and substantively flawed, the Court must award summary judgment to the plaintiffs.*fn2

I. Background

A brief description of the reasons for the enactment of the ESA, the two methods by which a species can be listed as "endangered" or "threatened" under the ESA, the FWS's Endangered Species Petition Management Guidance policy, the Gunnison sage grouse, and the underlying facts of this case is necessary prior to addressing the legal merits of the parties' positions.

(A) The Endangered Species Act and the Two Listing Methods

(1) The Two ESA Listing Methods

(i) The Internal Process

As briefly mentioned above, there are two methods by which a species can be listed as "endangered" or "threatened" under the ESA: the internal process and the petition process. First, the Secretary may initiate a review of whether a species is eligible for listing as "endangered" or "threatened". When determining whether to list a species, the Secretary must consider "any of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence." 16 U.S.C. § 1533(a)(1). If the Secretary determines that a species should be listed under the ESA "on the basis of the best scientific and commercial data available[,]" 16 U.S.C. § 1533(b)(1)(A), then she must publish a proposed rule in the Federal Register, 16 U.S.C. § 1533(b)(5); 50 C.F.R. § 424.11(c). Thereafter, an opportunity for public comment must be afforded, 16 U.S.C. § 1533(b)(5), and within one year the Secretary must either publish a final rule or withdraw the proposed rule, 16 U.S.C. § 1533(b)(6)(A); 50 C.F.R. § 424.17(a). The Secretary may extend this one-year period by "not more than six months for purposes of soliciting additional data" by publishing a notice in the Federal Register if she finds that "there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination or revision concerned . . ." 16 U.S.C. § 1533(b)(6)(B)(i); see 50 C.F.R. § 424.17(a)(iv).

The Secretary also has the option of designating the species as a "candidate species[,]" which means that the species is "being considered by the Secretary for listing as an endangered or threatened species, but [is] not yet the subject of a proposed rule." 50 C.F.R. § 424.02(b). Although, as recognized by the Ninth Circuit in Center for Biological Diversity v. Norton, 254 F.3d 833, 835 (9th Cir. 2001), this "candidate" status is not expressly provided for in the ESA, the Secretary's regulations recognize that a species will be categorized as a "candidate" if "listing may be warranted, but that the available evidence is not sufficiently definitive to justify proposing the action at that time." 50 C.F.R. § 424.15(a). This regulation further provides that the Secretary "from time to time" may update the review status of the species that are candidates for listing. 50 C.F.R. § 424.15(b). However, the regulation is clear that "none of the substantive or procedural provisions of the Act apply to a species that is designated as a candidate for listing." Id. Therefore, once a species is listed as a "candidate" through the internal process, there is "no specific time frame during which the Secretary must act on the substantive or procedural provisions of the Act . . ." Id.

(ii) Petition Process

The second method by which a species may be listed under the ESA as "endangered" or "threatened" is through the submission of a petition by the public. Upon receiving such a petition, the Secretary,

[t]o the maximum extent practicable, within 90 days . . . shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If such a petition is found to present such information, the Secretary shall promptly commence a review of the status of the species concerned. The Secretary shall promptly publish each finding made under this subparagraph in the Federal Register.

16 U.S.C. § 1533(b)(3)(A). Within 12 months after receiving this petition, the Secretary must determine either that

(1) the petitioned action is warranted, in which case she must publish a proposed rule designating the species for protection; (2) the petitioned action is not warranted; or (3) the petitioned action is warranted but immediate promulgation of a rule is precluded by other pending proposals. If the Secretary finds that action is `warranted but precluded,' she must promptly publish that finding along with `a description and evaluation of the reasons and data on which the finding is based.'

Ctr. for Biological Diversity, 254 F.3d at 835 (quoting 16 U.S.C. § 1533(b)(3)(B)). If the Secretary publishes a "warranted but precluded" finding, the FWS must effectively review this finding each year until final action is taken. See 16 U.S.C. § 1533(b)(3)(C)(i) (once the Secretary publishes a "warranted but precluded" finding, the petition "shall be treated as a petition that is resubmitted to the Secretary under subparagraph (A) on the date of such finding and that presents substantial scientific or commercial information that the petitioned action may be warranted."). Finally, it is important to note that findings that a petition is not warranted or "warranted but precluded" are subject to judicial review.

16 U.S.C. § 1533(b)(3)(C)(ii).

B) The Petition Management Guidance Policy

Central to this case is the Petition Management Guidance ("PMG") policy adopted by the FWS in 1996. The PMG instituted a new policy regarding how the FWS would treat public petitions, which states that

[a] petition for an action on a species or critical habitat `identical' or `equivalent' to a petition still pending (or active) requires only a prompt (i.e., within 30 days) response informing the submitter of the prior petition and its status; Federal Register publication of this response is not required. The second petition is treated as a comment on the previous petition. The Fish and Wildlife Service now defines `candidate species' as one for which sufficient information is available to indicate that a listing proposal is appropriate. A petition for a candidate species for which the Fish and Wildlife Service has lead, inasmuch as the Service has already made a decision regarding the species status and assigned it a listing priority, the Service considers such candidate species as under petition and covered by a `warranted but precluded' finding under Section 4(b)(3)(B)(iii) of the Act. Therefore, a petition to list a candidate species is redundant and will be treated as a second petition.

Defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Defendants' Cross-Motion for Summary Judgment ("Defs.' Mot."), Ex. 1, Ex. 1 at 5 ("Endangered Species Petition Management Guidance") (emphasis in the original). As this Court will address more substantively below, this policy allows the FWS to ignore public petitions by treating them as "redundant" if the petitioned species has already been identified internally as a candidate and assigned a listing priority because under this policy the FWS considers such species "as under petition and covered by a `warranted but precluded' finding[.]" Id.

(C) The Gunnison sage grouse

While studying the sage grouse in 1977, it was discovered that "wings collected in the Gunnison Basin of southwestern Colorado were smaller than sage grouse wings collected in northern Colorado." 65 Fed. Reg. 82,310, 82,311 (Dec. 28, 2000) ("Notice of Designation of the Gunnison Sage Grouse as a Candidate Species"). After two decades of studying the differences between the sage grouse population, the American Ornithologists' Union determined that the sage grouse found in southwestern Colorado are a distinct species from those found in northern Colorado, and the sage grouse are now distinctly grouped into two separate species: Gunnison sage grouse (Centrocercus minimus) and Northern sage grouse (Centrocercus urophasianus). 65 Fed. Reg. at 82,311; Pls.' Mat. Facts, Ex. E at 2-3. While previously occupying parts of southwestern Colorado, southwestern Kansas, northwestern Oklahoma, northern New Mexico, northeastern Arizona, and southeastern Utah, today, it is currently believed that the Gunnison sage grouse occupy only seven population areas in Colorado and one population area in Utah 65 Fed. Reg. at 82,311; Pls.' Mat. Facts, Ex. E at 2. The Gunnison Basin in Colorado contains the largest breeding population of the Gunnison sage grouse with up to 3,000 birds, while the total breeding population for the Gunnison sage grouse is approximately 4,000. 65 Fed. Reg. at 82,311. Although the population of the bird has increased in the past several years in the Gunnison Basin, long-term trends since the 1970s have shown "steady declines in the number of males/lek."*fn3 Id.

Pursuant to the five listing factors contained in 16 U.S.C. § 1533(a)(1), ecologists have identified numerous factors that warrant listing the Gunnison sage grouse under the ESA. The following threats to the habitat or range of the Gunnison sage grouse have been identified: grazing of domestic livestock; degradation of soil quality; fences (both mesh and barbed); conversion of its habitat to agriculture, housing, mining, or by exotic alien plant species; treatment of its habitat to kill or control sagebrush and increase the amount of grass for forging livestock; invasive species; reservoirs and water developments; logging; predation; competition for habitat and food; noise and acoustic interference with mating displays and the ability to detect predators; fire; roads; off road vehicles; military operations; oil and gas operations and prospecting; utility corridors; weather; climate change and global warming; ozone layer depletion; natural factors and environmental variation; effects of chemical agents; acid precipitation; fragmentation of the sage grouse population; and habitat recovery time from threatening events. Pls.' Mat. Facts, Ex. E at 56-83. Regarding the "overutilization" of the species, ecologists have identified the following threats to the Gunnison sage grouse: hunting; falconry, as they are the preferred species for many types of falconry; bird watching and recreational use; agricultural operations; road kill; scientific studies; and educational purposes. Id. at 84-86. In addition, there is also a concern that disease has caused a reduction in the Gunnsion sage grouse population. Id. at 87. Finally, there does not appear to be any effective regulatory mechanisms to protect these birds, although a 1995 memorandum of agreement between the state of Colorado and the Secretary requires cooperation and collaboration to protect native species that are at risk in Colorado. Id. at 88-97.

(D) The Gunnison Sage Grouse as a Candidate for Listing and the Plaintiffs' Public Petition to List It Under the ESA

On January 10, 2000, the FWS sent a letter to the "Gunnison Sage Grouse Working Group Member[s]" informing them that it had decided to place the Gunnsion sage grouse on its own candidate list. Pls.' Mat. Facts, Ex. D at 1. On January 18, 2000, the Regional Director for the FWS in Region 6 (Mountain-Prairie Region) "initiated the candidate process by signing a Candidate and Listing Priority Assessment Form for the Gunnison sage grouse in which the Gunnison sage grouse was assigned a priority of 5 (on a scale of 1 to 12, with 12 having the lowest priority)."*fn4 Defendants' Statement of Material Facts Not in Dispute ("Defs.' Mat. Facts") at ¶ 1. Subsequently, on January 25, 2000, the plaintiffs submitted a petition to the FWS to list the Gunnison sage grouse as "endangered" under the ESA. Pls.' Mat. Facts at ¶ 6, Ex. E. On February 24, 2000, the Regional Director for the FWS in Region 6 responded to the plaintiffs' petition and informed them that "[i]f this species is included in the next publication of the Candidate Notice of Review prior to making a 12-month finding on your petition, the CNOR will constitute a warranted but precluded finding for the grouse . . . If sufficient funds and staffing become available for processing of administrative findings before the next CNOR is published, then we will initiate work on your petition at that time." Pls.' Mat. Facts at ¶ 7, Ex. B at 1-2. On July 20, 2000, in response to a notice by the plaintiffs of their intent to initiate a lawsuit grounded on violations of the ESA,*fn5 the FWS advised the plaintiffs that

On March 15 Director Clark signed the Candidate and Listing Priority Assignment Form for the Gunnison sage grouse . . . If the next annual Candidate Notice of Review is published in the Federal Register prior to our completion of a 12-month finding on your petition, the Candidate Notice of Review will constitute a warranted but precluded finding for the grouse, and the petitioners would be entitled to challenge that finding pursuant to Section 4(b)(3)(C)(ii).

Pls.' Mat. Facts at ¶ 9, Ex. G at 2. On September 29, 2000, the instant case was filed in this Court.

On December 28, 2000, the FWS published a "Notice of Designation of the Gunnison Sage Grouse as a Candidate Species" in the Federal Register. 65 Fed. Reg. 82,310 (Dec. 28, ...


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