The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
This lawsuit, brought under the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("ESA"), and the unreasonable delay provisions of the Administrative Procedure Act, 5 U.S.C. §§ 555(b), 706(1) ("APA"), puts the Secretary of the Interior, Gale Norton, between the proverbial rock and a hard place. Three individuals and two environmental groups, led by Biodiversity Legal Foundation (collectively, "Foundation"), complain that the United States Department of Interior ("DOI") and the United States Fish and Wildlife Service (collectively, "FWS" or "Service") have failed to revise the "critical habitat designation" of the Cape Sable seaside sparrow,*fn1 despite finding on October 23, 2001, that such a revision is warranted and despite twenty years of agency studies to the same effect. FWS agrees that revising the bird's critical habitat designation "would be a good thing." Defs. Reply at 4. The Service advises the Court that chronic underfunding by Congress and outstanding court orders and settlements from other lawsuits preclude immediate action, but promises that it will revise this critical habitat designation "as soon as feasible," given these constraints. Not satisfied with this response, the Foundation sues to force FWS to propose and carry out such a revision in accordance with a strict timetable to be imposed by the Court. Citing the Service's own studies, the Foundation fears that the seaside sparrow will become extinct before FWS devotes sufficient resources to this important task.
Pending before the Court are the parties' cross motions for summary judgment. The Foundation seeks judgment in its favor as to (1) FWS's violation of section 4 of the ESA based on the Service's publication of an allegedly-deficient finding under 16 U.S.C. § 1533(b)(3)(D)(ii) ("12-Month Finding"); (2) FWS's reliance on its Listing Priority Guidance ("LPG"); and (3) FWS's delay in revising the seaside sparrow's critical habitat designation. FWS counters that (1) the 12-Month Finding fully complies with the ESA section 4 requirement that the Service publish "how [it] intends to proceed with the requested revision[;]" (2) FWS did not actually rely on the LPG in making the 12-Month Finding; and (3) there has been no unreasonable delay in proposing a rule to revise the critical habitat designation.*fn2
The Court finds that the ESA grants FWS discretion as to revising a critical habitat designation, but that the APA requires reasonable timeliness once an obligation to undertake a revision attaches. The Court also concludes that the Foundation's LPG claim is moot. Under these circumstances, as described below, the Court recognizes the Service's continuing discretion within a very small window. Four years have passed since FWS undertook to revise the seaside sparrow's critical habitat designation and the bird is close to extinction. In the context of this reality, the Service will be given 60 days to notify the Court of a specific schedule to revise this critical habitat designation. Accordingly, the Foundation's renewed motion for summary judgment will be denied in part and FWS's cross motion will be granted in part. The Court will retain jurisdiction over this matter to ensure FWS is proceeding diligently. Given the disposition of these cross motions, FWS's motion for reconsideration will be denied as moot.
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 TVA v. Hill, 437 U.S. 153, 180 (1978)) (internal quotation marks omitted). Enacted by Congress in 1973, the statute aims "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species...." 16 U.S.C. § 1531(b).
Section 4 of the ESA directs FWS to determine by regulation whether any species is endangered or threatened.*fn3 16 U.S.C. § 1533(a)(1). An endangered species is one that "is in danger of extinction throughout all or a significant portion of its range." Id. §§ 1532(6). There is no dispute in this case that the Cape Sable seaside sparrow is endangered and was properly placed on the Endangered Species List in 1967.
Listing a species as endangered only begins the process of working for its survival and recovery. As amended, the ESA now requires that, if FWS determines that a species is endangered under ESA section 4(a)(1), it must concurrently "designate any habitat of such species which is then considered to be critical habitat." Id. § 1533(a)(3)(A).
The term "critical habitat" for a threatened or endangered species means –
(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, 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 in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.
The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.
Endangered species are entitled to significant protection under the ESA. Section 9 makes it unlawful for any person to "take" such a species. 16 U.S.C. § 1538(a)(1)(B). The term "take" is defined very broadly to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."*fn4 16 U.S.C. § 1532(19). In addition, endangered species are safeguarded by the section 7 requirement that all other federal agencies "shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency... is not likely to jeopardize the continued existence of any endangered species... or result in the destruction or adverse modification of habitat of such species[.]" 16 U.S.C. § 1536(a)(2).
Section 4 of the ESA provides two methods for revising a critical habitat designation. FWS "may, from time-to-time... as appropriate, revise [the critical habitat] designation" of an endangered species. Id. § 1533(a)(3)(B). Any "interested person" may also petition FWS to make such a revision. Id. § 1533(b)(3)(D); 50 C.F.R. § 424.14. Once a petition is submitted by an interested person, "[t]o the maximum extent practicable," the Service has 90 days to issue "a finding as to whether the petition presents substantial scientific information indicating that the revision may be warranted." 16 U.S.C. § 1533(b)(3)(D)(i). If FWS decides in the affirmative, then it "shall determine how [it] intends to proceed with the requested revision, and shall promptly publish notice of such intention in the Federal Register." Id. § 1533(b)(3)(D)(ii). This determination must be made within 12 months after receiving a petition, regardless of when FWS made its finding under section 4(b)(3)(D)(i) ("90-Day Finding"). Cf. Biodiversity Legal Found. v. Babbitt, 63 F. Supp. 2d 31, 34 (D.D.C. 1999).
"[T]he Service has issued a series of Listing Priority Guidance ("LPG") documents over the years, pursuant to its authority under ESA section 4(h)." Defs. Cross Mot. for Summ. J. and Opp. at 7 ("Defs. Motion"). That section requires FWS to "establish, and publish in the Federal Register, agency guidelines to insure that the purposes of this section are achieved efficiently and effectively." 16 U.S.C. § 1533(h). "The overriding goal of the LPGs was to set up a biologically-based system to prioritize the various listing activities to secure the most protection for the greatest number of imperiled species. In accordance with Section 4(h), the LPG[s] are adopted after a public notice and comment period." Defs. Motion at 7-8 (citation omitted).
B. Cape Sable Seaside Sparrow
The Cape Sable seaside sparrow is a medium-sized sparrow, about five inches long. Arthur Howell discovered the bird in 1918 on Cape Sable, which is located in southwest Florida. The Cape Sable Seaside Sparrow: An Endangered Bird in a Vulnerable Landscape, A.R. Vol. 8, Doc. II-10, at 5. As a result of hurricanes in 1935 and 1960, which helped change the vegetation in Cape Sable from freshwater to salt tolerant, reduced freshwater flows due to "upstream water management practices," and sea level rise, the Cape Sable seaside sparrow "no longer use[s] this area."*fn5 Multi-Species Recovery Plan for South Florida ("MSRP"), A.R. Vol. 2, Ex. 2, at 4-350. The seaside sparrow, which is non-migratory, has a "very restricted range" and lives today "in the Everglades region of Miami-Dade and Monroe counties in South Florida." Id.; see The 2000 Cape Sable Sparrow Annual Report (draft), A.R. Vol. 9, Doc. II-40, at 7 ("This federally listed sub-species currently exists within the protected lands of Everglades National Park... and adjacent Big Cypress National Preserve.").
As this Court has already recognized, "the Cape Sable seaside sparrow is at significant risk of imminent extinction."*fn6 Biodiversity Legal Found. v. Norton, 215 F. Supp. 2d 140, 141 (D.D.C. 2002).
The Cape Sable seaside sparrow has three population centers. One (Ingraham Highway) is healthy, but at risk due to fire and hurricane. The second (Western) is nearly lost, at only 10% of former levels. The third (Eastern) is at 50% of former levels, and not recovering.... If current trends continue, the Cape Sable seaside sparrow will likely be extinct within a few decades [of 1998].
Balancing on the Brink: The Everglades and the Cape Sable Seaside Sparrow, A.R. Vol. 5, Doc. 25, at 22.
Changes to the hydrology of the Everglades, caused in large part by the United States Army Corps of Engineers' Central and Southern Florida Project ("C&SF Project"), are a major reason for the seaside sparrow's decimation. Id. at 2. "The [C&SF Project], built primarily for flood control and water supply for the south Florida region, routes floodwaters directly over the Cape Sable seaside sparrow's western habitats and drains the eastern sparrow habitats.... This combination of flooding and overdraining destroys the sparrow's habitat." Id. at 2-5; s ee Biodiversity Legal Found. v. Norton, 180 F. Supp. 2d 7, 8 (D.D.C. 2001) ("These hydrology changes continue to represent the main threat to the overall survival of the species.").
FWS listed the Cape Sable seaside sparrow as endangered in 1967, 50 C.F.R. § 17.11, and designated its critical habitat in 1977, 50 C.F.R. § 17.95. Due to various changes in environment – i.e., "drainage, hardwood invasion, [and] substrate alteration" – the Service concluded in 1983 that "the extent of current Critical Habitat requires review." Cape Sable Seaside Sparrow Recovery Plan, A.R. Vol. 6, Doc. 31, at 23, 33 ("The area included in the presently designated Critical Habitat of the Cape Sable seaside sparrow does not reflect current occupancy or needs of the sparrow."). Nonetheless, FWS did not revise the seaside sparrow's critical habitat designation at that time.
On April 10, 1995, Congress reduced the budget for FWS's listing program by $1.5 million. Pub. L. No. 104-6, 109 Stat. 73. "Pub. L. 104-6 prohibited the expenditure of the remaining appropriated funds for final determinations to list species or to designate critical habitat which, in effect, placed a moratorium on those activities." 62 Fed. Reg. 55,268 (Oct. 23, 1997). This continued until April 26, 1996, when former President Bill Clinton approved the Omnibus Budget Reconciliation Act of 1996. By that time, however, "the Service faced an enormous backlog of species waiting for listing determinations." Defs. Motion at 13. FWS contends that funding by Congress in subsequent years has been insufficient "to totally eliminate the backlog." Id. at 14.
In 1998, FWS issued a draft revised Recovery Plan for the Cape Sable seaside sparrow as part of what would become the MSRP. This document again determined that "[t]he critical habitat, as designated, does not adequately account for the distribution of the present-day core subpopulations, or the areas necessary for the birds to maintain a stable population.... Thus, the extent of the critical habitat requires significant review and re-designation." Pls. Pet. for a Rule to Revise Crit. Hab., A.R. Vol. 1, Doc. 2, at 99 (quoting Draft MSRP). The next year, FWS issued the final version of the MSRP, which provided that the Service would
Review and revise the current critical habitat designation based on distribution surveys. Presently designated critical habitat does not adequately encompass the areas occupied by core populations and must be re-evaluated. Critical habitat should, at a minimum, include habitat west of Shark River Slough that supports one of the two core subpopulations, and should include an analysis of wintering habitat requirements.
MSRP, A.R. Vol. 2, Ex. 2, at 4-368 (emphasis in original). FWS, however, did not implement ...