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California Native Plant Society v. Norton

March 24, 2005

CALIFORNIA NATIVE PLANT SOCIETY, ET AL., PLAINTIFFS,
v.
GALE A. NORTON, SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM

Plaintiffs, five environmental groups, challenge the process by which the Fish and Wildlife Service (FWS) handles petitions for listing species under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq. Specifically, plaintiffs object to the treatment of the San Fernando Valley Spineflower ("Spineflower"), the listing of which has been deemed "warranted but precluded" for a number of years. For the reasons discussed below, summary judgment -- declaratory judgment -- will be granted to plaintiffs on their challenge to the sufficiency of FWS's warranted but precluded findings; plaintiffs' claims of inadequate monitoring of the spineflower will be dismissed for failure to state a claim; and plaintiffs' challenge to FWS's use of the Petition Management Guidance will be dismissed as moot.

Background

ESA Listing Processes

The ESA provides a number of protections for species that are listed as "endangered" or "threatened." FWS is responsible for deciding whether or not a terrestrial plant, such as the Spineflower,*fn1 is listed. The process for deciding which species get listed is established in 16 U.S.C. § 1533 (Section 4 of the ESA).

There are two ways for a species to be listed. The first is the "candidate" process. FWS, on its own,*fn2 identifies species that meet the criteria for listing and either proposes*fn3 each one for listing or puts it on a list of species for which listing is precluded due to higher priority work. FWS then ranks these "candidate" species from 1 (highest priority) to 12 (lowest priority) based on three criteria (magnitude of threat, immediacy of threat, and taxonomic distinctiveness).*fn4 A list of candidate species is published in the Federal Register in the Candidate Notice of Review (CNOR). Additional information is available in candidate forms, which are available on the FWS Web site. See FWS, Candidate Conservation Program Web Site, available at http://endangered.fws.gov/candidates/index.html. Candidate species receive some limited protections, see,e.g., 50 C.F.R. § 402.12(d) (FWS provides agencies with candidate species list during ESA consultation process for agency actions -- but candidate species explicitly not provided legal protection); 67 Fed. Reg. 40,658 (FWS encourages consideration of candidates in environmental planning), but they are not remotely comparable to the protections given to listed species. See, e.g., 16 U.S.C. § 1538 (severe restrictions on destruction, sale, import, and possession of endangered species).

The second way for a species to be listed is by public petition, which was intended by Congress to "interrupt[] [FWS's] priority system by requiring immediate review." H.R. Rep. No. 95-1625, at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 9453, 9455. Once FWS receives a petition for listing from an "interested person," it must determine within 90 days "to the maximum extent practicable" whether the petition presents "substantial scientific or commercial information" suggesting that the species should be listed. 16 U.S.C. § 1533(b)(3)(A). If it does make such a finding, FWS must then determine, within 12 months of the filing of the petition, whether a listing is 1) warranted;*fn5 2) not warranted; or 3) warranted but precluded. 16 U.S.C. § 1533(b)(3)(B).

In order to classify the listing of a species as warranted but precluded, FWS must find -- and publish its findings in the Federal Register -- that listing is "precluded by pending proposals to determine whether any species is an endangered species or a threatened species" and that "expeditious progress is being made to add qualified species" to the lists of endangered and/or threatened species and to remove species that are no longer qualified. 16 U.S.C. § 1533(b)(3)(B)(iii). Warranted but precluded decisions are subject to judicial review. 16 U.S.C. § 1533(b)(3)(C)(ii). Additionally, FWS "shall implement a system to monitor effectively the status of all species [that are warranted but precluded] and shall make prompt use of [emergency listing] authority to prevent a significant risk to the well being of any such species." 16 U.S.C. § 1533(b)(3)(C)(iii).*fn6 New findings as to warranted but precluded species must be made and published annually. 16 U.S.C. 1533(b)(3)(C)(I). FWS has combined its findings on petitions with the CNOR process, and it publishes one combined document for both processes.*fn7

Spineflower History

The San Fernando Valley Spineflower is a small, white flowered annual found only in southwestern California. For many years, the Spineflower was believed to be extinct, with the last recorded collection in 1929. Then, in 1999, it was rediscovered at the Ahmanson Ranch in Ventura County. It was later discovered in 2000 at the Newhall Ranch in Los Angeles County. Both sites -- the only two known locations of the Spineflower -- had plans for extensive development. In 1999, FWS placed the Spineflower on its candidate list as a priority 3 (imminent threats of high magnitude -- the highest priority it could have since it is a subspecies). FWS considered emergency listing, but chose not to pursue this route. In December 1999, the City of Calabasas, located near the Ahmanson Ranch, filed a petition for listing. Because the Spineflower was already on its candidate list, FWS, following its Petition Management Guidance, did not make 90-day or 12-month findings.

In October 2001, FWS issued a new CNOR. To comply with the Ninth Circuit's decision in Ctr. for Biological Diversity v. Norton, 254 F.3d 833 (9th Cir. 2001) (CBD), FWS provided more information than in previous CNOR's. The 2001 CNOR described the Spineflower's status; noted that the Spineflower was only found in two locations, and was thus "vulnerable to naturally occurring, random events," 66 Fed. Reg. 54,821; continued to list the Spineflower as a priority 3 "[b]ecause of imminent threats of a high magnitude," id.; and made a blanket finding that the Spineflower -- together with all 36 of the other species designated warranted but precluded -- would remain warranted but precluded, 66 Fed. Reg. 54,815. FWS explained that work on listing these species had been, and would continue to be, precluded by a great number of court-ordered listing activities, court-approved settlement agreements, mandatory statutory deadlines, and higher priority listings. 66 Fed. Reg. 54,815-16. Many of these actions involved, not the listing of new species, but the designation of critical habitats for species that had been listed already. Id. As for making expeditious progress,*fn8 FWS noted a number of listings in fiscal years 1999 and 2000 and concluded that, "given the Service's limited budget for implementing section 4 [of the ESA], these achievements constitute expeditious progress." 66 Fed. Reg. 54,822.

The June 2002 CNOR painted a similar, if darker, picture. FWS described the Spineflower's situation, indicated that more information was available on the Internet, and again assigned the Spineflower a priority 3, noting this time that, "as currently planned, it is likely that construction of proposed development will extirpate the first population in Ventura County. It is unclear how the development in Los Angeles will affect that population." 67 Fed. Reg. 40,670. Despite this bleak outlook, FWS again indicated that little progress was being made on listing warranted but precluded species. Again, FWS recited that its past, ongoing, and anticipated listing activity precluded work on these species and demonstrating expeditious progress. Many of these activities were again mandated by court order or statute, and many again involved listing critical habitats of already listed species.*fn9 There was simply no money in the budget to list the Spineflower.

By the time the May 2004 CNOR was issued, the situation had somewhat improved. The State of California had acquired the Ahmanson Ranch property for conservation, so that "direct threats to the species from the former Ahmanson Ranch development plan have been eliminated." 69 Fed. Reg. 24,822. Also, the owner of Newhall Ranch had approached FWS about entering into a Candidate Conservation Agreement, although no agreement had been reached, and planned development still had "the potential to cause the loss of most, if not all, of the remaining plants at that site." Id. FWS lowered the Spineflower's priority ranking from 3 to 6, "reflecting threats that are high but nonimmenent [sic]." Id. Once again, very limited progress had been made on listing warranted but precluded species. Once again, past, ongoing,*fn10 and anticipated activities precluded the listing of most previously warranted but precluded petitioned species.*fn11 69 Fed. Reg. 24884. This time, FWS provided more detailed information on its budgeting process, concluding that "the bulk of the funds that would be otherwise available for adding qualified species to the list in FY 2003 and FY 2004 have been spent or will be spent on complying with court orders and court-approved settlement agreements to designate critical habitat and make petition findings." 69 Fed. Reg. 24,885.

Construction at the Newhall Ranch is currently scheduled to begin in 2006. Def. Intervenor Newhall's Opp'n Mot. Summ. J. at 5. The Spineflower has been listed as a endangered by the State of California since 2001. FWS, Candidate Assessment and Listing Priority Assignment Form, http://ecos.fws.gov/docs/candforms_pdf/r8/choparfer.pdf (Apr. 5, 2004). The state listing provides some security for the Spineflower, but FWS has questioned the adequacy of state protections. Id. In 2003,*fn12 Newhall Land and Farming Company conveyed a permanent conservation easement over 64 acres to protect the Spineflower and has taken a number of other steps to protect and monitor the Spineflower. Decl. of Mark Subbotin. Discussions are ongoing between Newhall and FWS regarding a possible Candidate Conservation Agreement to further protect the Spineflower. 2/18/05 Tr. at 32.

The Present Action

Plaintiffs, five environmental groups, filed this case in July of 2003. They presented four claims under the ESA and Administrative Procedure ...


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