The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
This matter comes before the Court on the plaintiff's motion  for summary judgment and defendants' motion  to dismiss, or in the alternative, for summary judgment. Upon consideration of these motions, the oppositions thereto, the reply briefs, the applicable law, and the entire record herein, the Court concludes that plaintiff's motion will be denied and defendants' motion for summary judgment will be granted.
This lawsuit challenges the actions of defendant United States Department of Agriculture ("USDA") Animal and Plant Health Inspection Service ("APHIS") during Endangered Species Act ("ESA") consultations, 16 U.S.C. § 1536, with the United States Department of the Interior's Fish and Wildlife Service ("FWS").
Plaintiff Hawaii Orchid Growers Association*fn1 disputes the 2004 Final Rule promulgated by the APHIS. Acting pursuant to the Plant Protection Act ("PPA") of 2000, APHIS promulgates the "Quarantine 37" regulations, 7 C.F.R. § 319.37, to protect the nation's plant resources from foreign pests. On May 5, 2004, APHIS amended Quarantine 37 to add orchids of the genus Phalaenopsis from Taiwan to the list of plants that may be imported in an approved growing medium, subject to specified growing, inspection, and certification requirements. Final Rule, 69 Fed. Reg. 24,916 (May 5, 2004). The new rule added Taiwanese Phaleonopsis orchids to the list of plants covered by the plants-in-growing-media rule, 7 C.F.R. § 319.37-8(e), which allows imports with a number of restrictions.
The Taiwanese government requested a rule change in 1994 and 1995. AR 25. In response to this request, APHIS performed a risk assessment pursuant to the risk evaluation standards set forth by the plants-in-growing-media rule in effect at the time. See 7 C.F.R. § 319.37-8(g) (1998). APHIS prepared the Pest Risk Assessment ("PRA") to "examine plant pest risks associated with the importation of live Phalaenopsis plants in sphagnum growing medium from Taiwan into the United States." 1997 PRA at 1. In order to consider that request and determine whether to propose a rule change, the Quarantine 37 regulations required APHIS to, among other things: collect information about the plant and growing medium and about the method of preparing the plant for importation; evaluate the history of past plant pest interceptions or introductions into the United States associated with the plant; catalogue the potential plant pests associated with the type of plant in the country of origin and determine if any of the pests is a quarantine pest; conduct an individual pest risk assessment by estimating the probability that the pest (1) will be on or with the plant at the time of importation, (2) will survive in transit and enter the United States undetected, and (3) will colonize once entering the United States, and by estimating the actual and perceived economic, environmental, and social damage that would occur if the pest is introduced, colonizes, and spreads; and determine whether the overall compilation of risk is greater than the risk of importing the plant with bare roots.
7 C.F.R. § 319.37-8(g) (1998)
Pursuant to Section 7 of the ESA, APHIS initiated consultation to assess the potential effects of the proposed action on endangered or threatened species. AR 330. In September 2002, APHIS sent FWS a Biological Evaluation ("BE"). AR 347; AR 387. The FWS identified two areas of concern that remained after the review of the BE by the other FWS regions, but resolved them in April of 2003. AR 304-06. Ultimately, FWS concurred with APHIS's determination that the importation of Phalaenopsis species orchids from Taiwan in approved growing media will not adversely affect federally listed or proposed endangered or threatened species or their habitats. See Final Rule, 69 Fed. Reg. 24, 916 (May 5, 2004).
On March 31, 2005, plaintiff sent a letter to the Secretaries of Interior and Agriculture, and to FWS Acting Director Matt Hogan and APHIS Administrator W. Ron DeHaven, informing them of plaintiff's intent to file suit under the ESA. (Def.'s Mot. 22.)Plaintiff filed its complaint on June 13, 2005, and an amended complaint on June 24, 2005. (Dkt. 1, 3.) Defendants filed their answer on September 2, 2005, and filed the administrative record on December 21, 2005. (Dkt. 14, 24.) While plaintiff's amended complaint filed in this action raised four counts, only two counts (Counts I and III) remain before this Court, as the parties stipulated to dismissal of Counts II and IV soon after defendants moved to dismiss those counts. (Dkt. 19, 20) On February 10, 2006, plaintiff filed its motion for summary judgment. In response, defendants filed their opposition and motion to dismiss, or in the alternative, for summary judgment.
As defendants note, judicial review is governed by Section 706 of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702, 706. Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 685 (D.C. Cir. 1982); accord, Newton County Wildlife Ass'n v. Rogers, 141 F.3d 803, 808 (8th Cir. 1998) (confining judicial review to the administrative record in an ESA citizen suit case). Under the APA, a court may overturn agency action only if the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or in excess of its statutory jurisdiction or authority. 5 U.S.C. §§ 706(2)(A), (C). The court must consider whether the agency acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the agency purports to have relied have some basis in the record, and whether the agency considered the relevant factors. Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C. 1995). The Court must review the agency's action based on the administrative record before the court. See Camp v. Pitts, 411 U.S. 138, 142 (1973).
Under the arbitrary and capricious standard, the burden of proof is on the party challenging the decision. See Cleary, Gottlieb, Steen & Hamilton v. Dep't of Health & Human Servs., 844 F. Supp. 770, 783 (D.D.C. 1993) (citing Schweiker v. McClure, 456 U.S. 188 (1982)). A particularly deferential standard of review is especially appropriate where, as here, an agency is "making predictions, within its area of special expertise, at the frontiers of science." Baltimore Gas & Electric v. NRDC, 462 U.S. 87, 103 (1983). Accordingly, absent a showing of arbitrary action, a court must assume an agency has exercised its discretion appropriately. Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976).
Plaintiff contends that the promulgation of the rule violated the ESA in three respects. First, plaintiff contends that during the ESA consultation process with the FWS, APHIS failed to inform FWS that thrips are pests associated with Phalaenopsis plants from Taiwan, and that APHIS had purportedly incorrectly told FWS that past interceptions had not detected thrips on Phalaenopsis plants from Taiwan. (Pl.'s Mot. 28-30.) Second, plaintiff contends that APHIS violated the ESA's requirement to use the "best scientific and commercial data available" when it failed to "recognize" Hawaii's "unique ecology" in the consultation process with FWS. (Id. at 30.) Finally, plaintiff contends that FWS violated the ESA by concurring with APHIS's Biological Assessment and failing to consider another Biological Opinion. (Id. at 31.) In defendants' response and motion for summary judgment, they raise the jurisdictional defense of lack of standing. The defendants also ...