The opinion of the court was delivered by: John D. Bates, United States District Judge.
This case involves the recurrent theme of the tension between the interests of landowners and those of an endangered species – here a small butterfly found only in a few areas of southern California. In this thirtieth year of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., through which wildlife and their habitat were given the means to contest property and development interests, the Court is asked to curtail the use of certain survey methodologies prescribed by the federal government to determine the presence of the butterfly. The case is brought pursuant to the ESA, the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and the Federal Advisory Committee Act ("FACA"), 5 U.S.C.App. § 1 et seq. Presently before the Court are the cross-motions for summary judgment filed by plaintiffs National Association of Home Builders, California Building Industry Association, Building Industry Legal Defense Foundation, and Building Industry Association of San Diego County ("plaintiffs"), and by defendants Gale A. Norton, Secretary of the Interior, Marshall Jones, Jr., Acting Director of the U.S. Fish and Wildlife Service, the U.S. Fish and Wildlife Service, and the U.S. Department of the Interior ("defendants"). The motions raise threshold jurisdictional issues in addition to addressing the merits of plaintiffs' claims. Finding defendants' jurisdictional arguments persuasive, the Court will grant defendants' motion and deny plaintiffs' motion.
Statutory and Regulatory Background
The ESA is"the most comprehensive legislation for the preservation of endangered species ever enacted by any nation."*fn1 Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978). In order to carry out the purpose of the ESA to"provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved", 16 U.S.C. § 1531(b); Babbit v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 699, the Secretary of the Interior ("the Secretary"), acting through the U.S. Fish and Wildlife Service ("the Service"), lists those fish, wildlife, or plant species that he has determined to be endangered or threatened, 16 U.S.C. § 1533(a); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1064 (D.C. Cir. 2003). Once a species has been placed on the list of endangered or threatened species, see 16 U.S.C. § 1533, it becomes unlawful under § 9 of the ESA for any person to"take" the species. 16 U.S.C. § 1538(a)(1); 50 C.F.R. § 17.31(a). The term"take" is defined under the ESA as"to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" any listed species and includes the"attempt to engage in any such conduct." 16 U.S.C § 1532(19).
Landowners and other non-federal entities may, however, apply for and receive a permit to"take" listed species, so long as: (1) the take is incidental to any otherwise lawful activity; (2) the applicant submits an acceptable habitat conservation plan designed to minimize and mitigate the effects of the incidental take; and (3) the take will not appreciably reduce the species' likelihood of survival and recovery. 16 U.S.C. § 1539(a)(1)(B), (a)(2)(A)-(B). The ESA also provides for the granting of scientific or"recovery" permits. Section 10(a)(1)(A) of the ESA allows the Service to"permit, under such terms and conditions as [it] shall prescribe,... any act otherwise prohibited by [§ 9] for scientific purposes or to enhance the propagation or survival of the affected species." 16 U.S.C. § 1539(a)(1)(A); see also 50 C.F.R. 17.22(a). Both types of permits are subject to revocation if the Service finds that the permittee is not in compliance with the terms and conditions of the permit. 16 U.S.C. § 1539(a)(2)(C).
To enforce § 9's prohibition on un-permitted takings, the Secretary may assess civil penalties against alleged violators through administrative, trial-like proceedings. See 16 U.S.C. § 1540(a)(1)-(2). The taking prohibition may also be enforced directly in court through criminal penalties. 16 U.S.C. § 1540(b). Injunctive relief is available under the ESA; the Attorney General is empowered to bring a civil suit for injunctive relief. 16 U.S.C. § 1540(e)(6). The ESA also contains a citizen suit provision, which allows private parties to enforce the substantive provisions of the ESA against regulated parties. 16 U.S.C. § 1540(g)(1)(A); see Bennett v. Spear, 520 U.S. 154, 173 (1997).
The following facts are uncontroverted. The quino checkerspot butterfly (Euphydryas editha quino) ("quino") is a subspecies of butterfly found only in parts of two southern California counties. All known extant populations of quino in the United States occur in southwestern Riverside and north-central San Diego counties. Adult quino can be observed during their field (or"flight") season, which occurs from mid-February to mid-May depending on the weather. Quino was listed as an endangered species under the ESA on January 16, 1997. See 62 Fed. Reg. 2313.
On January 25, 1999, and again around January 26, 2000, the Service made available to the public protocols ("survey protocols" or"Protocols") for determining the presence or absence of quino in several Southern California counties. The 1999 protocol states that it is"based upon the 1998 interim guidelines, input from entomologists and biologists knowledgeable about this species, data collected during the 1998 field season, literature on Quino and other Euphydryas editha subspecies, and other information available to [the Service]." Pls. Mot. Summ. J., Ex. 1 at 1. The 2000 protocol states that
[i]n revising the year 2000 survey protocol and survey area map [the Service] consulted with [its] Quino Recovery Technical Team and other biologists knowledgeable about the species, reviewed field data and scientific literature on quino and other Euphydryas editha subspecies, and reviewed comments received during and after a November 1999 public workshop on the draft year 2000 survey protocol.
Id., Ex. 2 at 2. The Service held a Quino Checkerspot Butterfly Workshop on December 3, 1998, with species experts and other scientists present. The Service developed the 1999 protocol without soliciting public comment. In revising the survey protocol for the year 2000, the Service held several meetings with the Quino Recovery Technical Team ("Recovery Team") and held a public workshop in November 1999 at which landowners were present.
The Protocols provide information to landowners on how to determine whether quino exist on their property, including what areas of southern California might contain quino; when and how to assess land within those areas for the earmarks of suitable quino habitat; and when and how to survey that suitable habitat for the presence or absence of quino. According to defendants, knowing how to survey land as accurately as possible for quino assists landowners in assessing whether their land use activities may result in a"take," and also assists landowners in gathering information to use in preparing a habitat conservation plan should they decide to apply for incidental take permits pursuant to the ESA. Defs. Cross-Mot. Summ. J. at 1.
Whether or not the Protocols impose significant requirements and obligations on landowners is a matter of dispute between the parties and will be discussed in greater detail below. The general background of the disagreement between the parties is as follows. Defendants assert that the protocols do not impose any requirements on landowners; that a landowner's decision to follow the protocols is wholly voluntary; and that there are no federal sanctions or other penalties for deciding not to complete a survey. Plaintiffs, on the other hand, insist that the Protocols impose very real, time-consuming and expensive regulatory requirements on landowners within the quino survey areas; that the Service has treated the Protocols as substantive rules and regulations; and that authorities in local jurisdictions have set the Service's approval of the surveys as a condition to securing local land use approvals. See Pls. Mot. Summ. J. at 12.
Plaintiffs filed the current action against defendants challenging the Service's formulation, adoption, and implementation of the 1999 and 2000 Protocols. Plaintiffs allege that the Protocols unlawfully impose on landowners the obligation of determining the presence or absence of quino on their property in order for development projects to move forward. Plaintiffs complain that the Service: (1) failed to comply with required notice-and-comment procedures of the APA; (2) regulated in excess of its authority under the ESA by illegally shifting the burden of proof as to the presence of quino away from itself and onto landowners; (3) failed to rely on the best available data when enforcing the protocols; and (4) acted outside the scope of the recovery planning exemption in the course of its consultations with the Recovery Team. The parties engaged in discovery,*fn2 after which plaintiffs moved for summary judgment. Defendants simultaneously opposed ...