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February 25, 2003


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




This matter comes before the court on the parties' thoroughly and cogently argued cross-motions for summary judgment. The plaintiffs are the Fund for Animals, the Biodiversity Legal Foundation, the Utah Environmental Congress, the Humane Society of the United States, and two wildlife enthusiasts (collectively, "the plaintiffs"). They bring suit against the Fish and Wildlife Service ("the Service") and the Department of the Interior (collectively, "the defendants") for allegedly violating several environmental statutes by failing to act on the plaintiffs' petition to list the Trumpeter swan as an endangered or threatened species and by authorizing a Trumpeter swan quota during Tundra swan hunting season. For the following reasons, the court grants in part and denies in part the plaintiffs' motion for summary judgment, and grants in part and denies in part the defendants' motion for summary judgment.


A. Factual Background

With a wingspan of more than seven feet, the Trumpeter swan (Cygnus buccinator) is the largest native waterfowl in North America, and one of the rarest North American waterfowl species. Administrative R. ("A.R.") at 3863, 5044. At one time the Trumpeter swan inhabited almost every region of the country. Id. at 3695. By the end of the 19th century, however, overhunting*fn1 — driven by demand for hats, powder puffs, feather boas, and quills — had reduced their number to the point of near extinction. Id. at 3695, 4076, 5056. In addition, colonial expansion led to the destruction of the Trumpeter swan's breeding habitat. Id. at 4001, 4076. Other major threats to the species include lead poisoning, disease, and starvation during severe winter conditions. Id. at 3621, 5057, 5874-5939.

Eliminated from 99 percent of its historic range by mid-century, the only remaining indigenous wild breeding Trumpeter swan population in the contiguous United States today consists of a mostly non-migratory population in the Greater Yellowstone area of Idaho, Montana, and Wyoming (the "Tri-State" area). Id. at 5415, 5872, 5876. As of 2000, the Tri-State population consisted of an estimated 426-481 individual birds. Id. at 5607, 5701.

In part to protect Trumpeter swans from extinction, the Service began a winter feeding program for the Tri-State Trumpeter swan flock in the 1930s. Id. at 682, 810. Because the population does not migrate, and therefore is vulnerable to mass starvation during the severe Tri-State winters, concerns grew about the population's future existence. Id. at 4483, 5282, 5532. In 1992, after the severe winter of 1988-89 resulted in the starvation of more than 100 Trumpeter swans, the Service discontinued the feeding program. Id. at 810, 968, 5316-17. To promote migration of the Tri-State flock to more suitable winter habitats, the Service began to disperse the swans through hazing and translocation programs. Id. at 5316-17.

As the displaced Trumpeter swans migrated, however, they began moving into traditional Tundra swan hunting areas in Utah and other states, with sometimes fatal results. Id. at 801, 5596, 5897. Tundra swans (Cygnus columbianus) are a migratory swan species that is smaller than but closely resembles the Trumpeter swan. Id. at 377, 2649, 5258, 5596. The contrast between the status of the two species is marked. Tundra swans, divided for management purposes into western and eastern populations, enjoy a stable, increasing, and well-distributed population numbering in the tens of thousands. Id. at 811-12, 823. Trumpeter swans, grouped into the Rocky Mountain (RMP), Pacific, and Interior populations, have a less abundant and more variable status. Id. at 809. Of the three RMP flocks (Tri-State, Canada, and restoration), the Tri-State flock causes the greatest concern given its persistent disinclination to migrate from its overcrowded, depleted wintering areas. Id. at 809-11. Reflecting the difference in status between the Tundra and Trumpeter swans, the Service adopted management strategies tailored to each species, with the Tundra swan plan directed toward maintenance and the RMP Trumpeter swan plan focused on Tri-State redistribution and restoration. Id. at 810-11. In keeping with these objectives, the Service authorized frameworks for annual hunting of Tundra swans but barred the hunting of Trumpeter swans.*fn2

Because the western Tundra and the Tri-State Trumpeter flocks share the same flyway, however, the two management strategies came into conflict. As the Service tried to disperse the Tri-State Trumpeter swans through hazing and translocation, some of the displaced Trumpeter swans were brought into contact with Tundra swan hunting areas, where they were mistaken for Tundra swans and killed. Id. at 802, 5897. In 1995, to reconcile Tundra swan hunting interests with Trumpeter swan restoration efforts, the Service issued an environmental assessment ("1995 EA") authorizing a five-year experimental program that significantly restructured the annual swan hunting season in the key flyway states of Montana, Utah, and Nevada. Id. at 799. Specifically, the 1995 EA expanded the swan hunting season to include both Tundra and Trumpeter swans. Id. at 803-04. At the same time, it narrowed the swan hunting season in two respects. First, it curtailed the areas open to hunting in Montana and Utah. Id. at 805. Second it shortened the season by advancing the closing date to either a date in early winter or the date that a "limited, but biologically acceptable" quota of 20 Trumpeter swans (15 for Utah, 5 for Nevada) was harvested — whichever came first.*fn3 Id. at 801, 804-05. To monitor the number and species of swans harvested, the 1995 EA required hunters to submit harvested swans to measurement or examination within 72 hours. Id. at 808. Finally, the 1995 EA committed the Service to participate actively in cooperative efforts to improve Trumpeter distribution. Id. at 816.

In 2000, despite some criticism, the Service published a final EA ("2000 EA") that proposed continuing the 1995 restructuring on an operational basis in Montana and Nevada and on a three-year experimental basis in Utah. Id. at 2622-83; e.g., id. at 1043-44, 1064-65, 1108, 1169, 1185-1203. Based on the experience with the five-year program, however, the 2000 EA imposed additional restrictions on Utah, reducing the number of hunting permits from 2,750 to 2,000, lowering its Trumpeter swan quota from 15 to 10, and placing additional areas off-limits to hunting. Id. at 2639. In addition, because of questions about the effectiveness of translocation, the 2000 EA stated that the Service would translocate swans only on a limited, case-by-case basis. Id. at 2625, 2639. Accompanying the 2000 EA was a Finding of No Significant Impact ("2000 FONSI") concluding that the restructuring of the hunting season was not a major federal action that would significantly affect the quality of the human environment within the meaning of the National Environmental Policy Act ("NEPA"), and therefore did not require the preparation of an environmental impact statement ("EIS"). Id. at 2619.

As a result of these events, the plaintiffs took two separate but related actions. First, in October 2000, several of the plaintiffs filed suit challenging the Service's authorization of a Trumpeter swan quota. Pls.' Mot. for Summ. J. at 26; Defs.' Mot. for Summ. J. at 11. After negotiations, the plaintiffs agreed to dismiss their lawsuit and the Service agreed to prepare a new EA (accompanied by either a FONSI or EIS) to address unresolved biological and legal issues. Pls.' Mot. for Summ. J. at 26; Defs.' Mot. for Summ. J. at 11. Accordingly, in 2001, after a period for public comment, the Service issued a revised EA ("2001 EA"). Id. at 364-419; e.g., id. at 116-357, 550-61, 3513-16. As set forth in the 2001 EA, the restructured hunting season was identical to that proposed by the 2000 EA, but included yet another caveat directing Utah to enter into a five-part memorandum of understanding with the Service on swan harvest monitoring or else forfeit its swan hunting season.*fn4 Id. at 371. Accompanying the 2001 EA was a new Finding of No Significant Impact ("2001 FONSI") that again concluded that the proposal would not affect the environment within the meaning of NEPA and thus did not require an EIS. Id. at 358-63.

The second action taken by the plaintiffs occurred in August 2000, when two of the plaintiffs ("the ESA plaintiffs") petitioned the Service to list, on both an emergency and a non-emergency basis, the Tri-State Trumpeter swan population as "endangered" or "threatened" under the Endangered Species Act ("ESA"). Id. at 5865-5961. On September 22, 2000, the Service responded with a letter concluding that emergency listing was not warranted, and indicating that the Service "would endeavor to process a finding on [the non-emergency listing] petition as quickly as possible." Id. at 5962-63. On February 5, 2001, the ESA plaintiffs gave the defendants notice of their intent to sue based on the defendants' failure under ESA to issue, within 90 days of the listing petition, a finding as to whether the petition indicated that action may be warranted. Id. at 6043-45. On April 4, 2001, the Service replied, stating that under the ESA, the agency's finding was to be made within 90 days "to the maximum extent practicable" and concluding that it was "not practicable for [the Service] to address [the] petition at this time." Id. at 6046. On September 6, 2001, the ESA plaintiffs notified the Service that under the ESA, it also had failed to issue its determination on the listing of the Trumpeter swan within 12 months of the initial petition. Pls.' Mot. for Summ. J. at 25. Seventeen months later, on January 28, 2003, the Service published its 90-day finding in the Federal Register. Notice of Submission of Pet. Finding at 1.

In this action, the plaintiffs charge that by failing to issue the 90-day finding and 12-month determination regarding the Trumpeter swan listing petition and failing to adequately explain the denial of the emergency listing petition, by authorizing the Trumpeter swan quota after balancing statutory and non-statutory considerations, and by omitting to prepare an environmental impact statement for the Trumpeter swan quota,*fn5 the defendants have violated the procedural and substantive requirements of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.; the ESA, 16 U.S.C. § 1531 et seq.; the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703 et seq., and the NEPA, 42 U.S.C. § 4321 et seq. Compl. ¶¶ 143-52. In response, the defendants deny the plaintiffs' allegations and contend that they have met their procedural and substantive obligations under the various acts. Answer; Defs.' Mot. for Summ. J. at 1-2.

B. Procedural History

On October 3, 2001, the plaintiffs filed their initial complaint. In December 2001, the defendants filed their answer. Approximately five weeks later, the defendants submitted the administrative record.*fn6 On March 10, 2002, the plaintiffs filed an amended complaint, and the defendants filed an answer thereto a few weeks later. On April 15, 2002, the plaintiffs filed both a motion for summary judgment and a motion to compel the defendants to file a complete administrative record. On May 15, 2002 the defendants filed their own motion for summary judgment. On October 10, 2002, the plaintiffs filed an additional declaration. On November 6, 2002, the defendants moved to strike the plaintiffs' declaration, or, in the alternative, to permit the defendants to supplement the record with their own declaration.

On February 10, 2003, this court denied the plaintiffs' motion to compel the defendants to file a complete administrative record. Mem. Op. dated Feb. 10, 2003. The court now turns to the parties' motions for summary judgment*fn7 and the defendants' motion to strike the plaintiffs' declaration.


A. Legal Standard for Motions for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).

In this case, neither party has presented the court with disputed material facts. Because the pleadings "show that there is no genuine issue as to any material fact and that the [parties are] entitled to a judgment as a matter of law," summary judgment is appropriate.

B. Legal Standard for Judicial Review of Agency Actions Pursuant to ESA, MBTA, and NEPA

Judicial review of agency actions under the ESA, the MBTA, and NEPA is governed by the APA. Gerber v. Norton, 294 F.3d 173, 178 n. 4 (D.C. Cir. 2002); Hill v. Norton, 275 F.3d 98, 103 (D.C. Cir. 2001); Tulare County v. Bush, 306 F.3d 1138, 1143 (D.C. Cir. 2002). The APA entitles "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . to judicial review thereof." 5 U.S.C. § 702.

The APA requires a reviewing court to set aside an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706; Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 736 (D.C. Cir. 2001). In making this inquiry, the reviewing court "must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (internal quotations omitted). At a minimum, the agency must have considered relevant data and articulated an explanation establishing a "rational connection between ...

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