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Defenders of Wildlife v. Kempthorne

September 29, 2006

DEFENDERS OF WILDLIFE, ET AL., PLAINTIFFS,
v.
DIRK KEMPTHORNE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

("Lynx IV")

Plaintiffs are ten not-for-profit environmental organizations dedicated to the conservation of endangered species, including the Canada Lynx (Felis Lynx Canadensis), and one individual who has been involved with efforts to protect the Lynx since 1989.*fn1

Defendants, who are sued in their official capacities, are Dirk Kempthorne, Secretary of the U.S. Department of the Interior (the "Secretary"); Dale Hall, Director of the U.S. Fish and Wildlife Service ("FWS" or the "Service"); Carlos M. Gutierrez, Secretary of the U.S. Department of Commerce; William T. Hogarth, Assistant Administrator for Fisheries, National Oceanic and Atmospheric Association ("NOAA"); and Mike Johanns, Secretary of the U.S. Department of Agriculture ("USDA").*fn2 In addition, the American Forest and Paper Association ("AFPA") has intervened in support of the Defendants.

Plaintiffs bring two distinct claims against Defendants. First, in the latest chapter of an almost decade-long dispute, they allege that FWS violated a 2002 Order of this Court requiring them to explain their finding that "collectively, the Northeast, Great Lakes, and Southern Rockies do not constitute a significant portion" of the distinct population segment ("DPS") of the Lynx, and therefore that the Lynx should not be listed as "endangered" under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq..

Second, Plaintiffs challenge a set of regulations issued in 2003 by several federal agencies including Interior, Commerce, and FWS, known as the "Joint Counterpart Endangered Species Act Section 7 Consultation Regulations" ("Counterpart Regulations" or "the Regulations.") See 68 Fed. Reg. 68254 (Dec. 8, 2003). According to Plaintiffs, the Regulations are invalid under the ESA, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 1332 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq..

This matter is now before the Court on Plaintiffs' Motion for Summary Judgment [Dkt. #36] and Defendants' Cross Motion for Summary Judgment [Dkt. #39]. Upon consideration of the Motions, Oppositions, and Replies, and the entire record herein, and for the reasons stated below, Plaintiffs' Motion for Summary Judgment is granted in part and denied in part and Defendants' Cross Motion for Summary Judgment is granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND*fn3

A. Statutory Framework

1. The Endangered Species Act ("ESA")

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 Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978)). When Congress enacted the statute in 1973, it intended to bring about the "better safeguarding, for the benefit of all citizens, [of] the Nation's heritage in fish, wildlife, and plants." See 16 U.S.C. § 1531(a)(5). Having found that a number of species of fish, wildlife, and plants in the United States had become extinct "as a consequence of economic growth and development untempered by adequate concern and conservation," Congress enacted the ESA in order to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species." Id. § 1531.

The Act imposes certain responsibilities on the Secretary of the Interior who has in turn delegated day-to-day authority for its implementation to FWS, an entity within Interior. See 16 U.S.C. § 1531(b); 50 C.F.R. § 402.01(b). The ESA's protection of a species and its habitat is triggered only when FWS "lists" a species in danger of becoming extinct as either "endangered" or "threatened." See 16 U.S.C. § 1533. The Act defines a "species" as "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16). FWS has issued a "Vertebrate Population Policy" delineating the circumstances under which the Service will list a "distinct population segment" or "DPS" of a species. See 61 Fed. Reg. 4722.

A species is "endangered" when it is in "danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). When a species is "likely to become an endangered species within the foreseeable future," the statute defines it as "threatened." Id. § 1532(20).

Endangered species are entitled to greater legal protection under the ESA than threatened species. For any species listed as endangered, the ESA makes it unlawful for any person to "import any such species into, or export any such species from, the United States," or to "take any such species within the United States." Id. § 1538(a)(1)(A), (B). Under the statute, the term "take" includes "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). For species that are listed as threatened, rather than endangered, the Secretary of the Interior "may," but is not required to, extend these prohibitions on taking and export. Id. § 1533(d).

When FWS lists a species, it is also required to "concurrently" designate "critical habitat" for that species, unless it determines that such habitat "is not then determinable." Id. § 1533(a)(6)(C). Critical habitat includes those specific areas which are presently "occupied by the species . . . 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." Id. § 1532(5)(A)(i). Critical habitat may also include habitat that is unoccupied by the species at the time of the listing if FWS determines that such areas are "essential for the conservation of the species." Id.

Pursuant to Section 7(a)(2) of the ESA, once a species is listed as endangered or threatened, each federal agency that takes or authorizes an action that may affect that species must "insure," in "consultation" with either FWS or the National Marine Fisheries Service ("NMFS") (collectively the "Services"), that any such action "is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of [the species' designated critical] habitat." Id. § 1536(a)(2). As a practical matter, these consultation requirements apply primarily to "Action Agencies" such as the United States Forest Service ("USFS"), the Bureau of Land Management ("BLM"), the Army Corps of Engineers, and the Environmental Protection Agency.

FWS promulgated the default Section 7 consultation procedures and Congress later codified them in the 1978 ESA Amendments. See 50 C.F.R. §§ 402.10 et al.; see also 1978 U.S.C.C.A.N. at 9462. Under the 1978 Amendments, an Action Agency bears the responsibility for determining whether its actions "may affect listed species or critical habitat." 50 C.F.R. § 402.14(a). If the Agency makes the threshold determination that there is a possibility of such an effect, it must begin informal consultation with one of the Services. Id. The Action Agency may proceed only if, after evaluating the proposed action, the Agency determines that it "is not likely to adversely affect any listed species or critical habitat" and the relevant Service issues a written concurrence with that determination. Id. § (b)(1).

If, however, the Action Agency determines that there is a possibility of adverse impact, it must engage in formal consultation with the relevant Service. That process requires the Service to prepare a detailed Biological Opinion describing whether, and if so how, the proposed action "is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat." Id. § (g)(4). If the Service finds that the action under review will jeopardize the continued existence of the species or destroy or "adversely modify" its critical habitat, the Service must set forth "reasonable and prudent alternatives" to avoid those results. Id. § (h)(3).

2. The National Environmental Policy Act ("NEPA")

The NEPA requires officials engaged in "major Federal actions" to complete an environmental assessment ("EA") that evaluates the action's potential environmental impacts and determines whether the statute's mandate for preparation of a more comprehensive environmental impact statement ("EIS") has been triggered. See 42 U.S.C. § 4332(C). "If a finding of no significant impact is made after analyzing the EA, then preparation of an EIS is unnecessary." Sierra Club v. U.S. Dep't of Transp., 753 F.2d 120, 126 (D.C. Cir. 1985) (citing 40 C.F.R. § 1501.4(e)). If such a finding is made, however, the agency must offer an adequate explanation of its conclusion. See Humane Society of the United States v. Hodel, 840 F.2d 45, 61-62 (D.C. Cir. 1988).

Our circuit employs a four-part test to evaluate the adequacy of agency findings that an action will have no significant environmental impact. That test considers: (1) whether the agency took a "hard look" at the problem; (2) whether the agency identified the relevant areas of environmental concern; (3) as to the problems studied and identified, whether the agency made a convincing case that the impact was insignificant; and (4) if there was an impact of true significance, whether the agency convincingly established that changes in the project sufficiently reduced that impact to a minimum. See id. at 62. As our Court of Appeals explained in Public Citizen v. Nat'l Highway Traffic Safety Admin., 848 F.2d 256, 267 (D.C. Cir. 1988), a court's role in reviewing "no significant impact" determinations is "to ensure, primarily, that no arguably significant consequences have been ignored . . .".

B. Plaintiffs' Canada Lynx Claim

Efforts to secure "endangered" status for the Canada Lynx-and the attendant legal protections for its habitat-have been ongoing for more than twenty years. The history of Lynx-related litigation in this and other federal courts is documented in this Court's last opinion on the matter. See Defenders of Wildlife et al. v. Norton et al., 239 F. Supp. 2d 9 (D.D.C. 2002) ("Lynx III"). As a result, the Court will limit its discussion here to the immediately- relevant facts.

1. The Canada Lynx

The Lynx is a medium-sized cat comparable in size to a bobcat. It is distinguished from other cats of similar size by its long legs and large paws, which make it particularly well-adapted for hunting in deep snow. See 65 Fed. Reg. 16052 ("Lynx Final Rule"). In contrast to the bobcat, coyote, and other predators, which consume a variety of animals, the Lynx is a "specialized carnivore" that depends heavily on one particular prey-the snowshoe hare. See id.

The North American range of the Lynx currently extends from Alaska, through Canada, and into the northern part of the contiguous United States. See id. In Canada and Alaska, Lynx inhabit the boreal forest ecosystem; in the contiguous United States, the distribution of the Lynx is associated with the southern boreal forest, including subalpine coniferous forest in the West and mixed coniferous/deciduous forest in the East. See id.

In the lower forty-eight states, Lynx range extends over four different regions: (1) the Northeast, (2) the Great Lakes, (3) the Southern Rocky Mountains, and (4) the Northern Rocky Mountains/Cascades. See id. at 16054. There is evidence that the Lynx may currently have been eradicated, or in ESA parlance "extirpated," from New Hampshire, Vermont and New York in the Northeast region, and from Colorado and southeastern Wyoming in the Southern Rockies region. The largest presence of Lynx population in the contiguous United States is in the Northern Rocky Mountains/Cascades region. Id. at 16055-59.

2. The Lynx's Listing History

On July 8, 1998, after this Court had found procedural deficiencies in the Service's earlier consideration of the Lynx's status, FWS published a proposed rule to list as "threatened" the "contiguous U.S. distinct population segment of the Canada [L]ynx." 63 Fed. Reg. 36994 (July 8, 1998). It determined that this population is in jeopardy from "human alteration of forests, low numbers as a result of past overexploitation, expansion of the range of competitors . . . and elevated levels of human access into [L]ynx habitat." Id.

In finding that the U.S. population should be listed, the Service found that

[b]ased on historic observations, trapping records and other evidence available to the Service at this time, the Service finds that, historically, Canada Lynx were resident in 16 of the contiguous United States. The overall numbers and range of Canada Lynx in the contiguous United States are substantially reduced from historic levels. Currently, resident populations of Lynx likely exist in Maine, Montana, Washington, and possibly Minnesota. States with recent records of individual Lynx sightings, but possibly no longer sustaining self-supporting populations, include Wisconsin, Michigan, Oregon, Idaho, Wyoming, Utah, and Colorado. Lynx may be extirpated from New Hampshire, Vermont, New York, Pennsylvania, and Massachusetts.

Id. at 37007.

On March 24, 2000, FWS published the Lynx Final Rule, listing as "threatened" the contiguous United States DPS of the Lynx. See 65 Fed. Reg. 16052 (Mar. 24, 2000). In so doing, the Service declared that "[c]ollectively, the Northeast, Great Lakes, and Southern Rockies do not constitute a significant portion of the range of the DPS," and "do[] not contribute substantially to the persistence of the contiguous United States DPS." Id. at 16066-67.

Plaintiffs brought suit again in this Court on December 14, 2000, challenging the Rule as arbitrary and capricious and therefore invalid under the APA. Specifically, Plaintiffs attacked FWS's finding that three of the four regions comprising the Lynx's historic range were not a "significant portion" of that range. See Defenders of Wildlife, 239 F. Supp. 2d at 18.

Because the ESA does not define the term "significant," the Court utilized a dictionary definition that it found to be consistent with the statute's purpose: "a noticeably or measurably large amount." Id. at 19. Finding that "[i]t is difficult to discern the logic in the Service's conclusion that three large geographical areas, which comprise three-quarters of the Lynx's historical [habitat in the contiguous United States], are not a 'noticeably or measurably large amount of the species' range," the Court held that FWS had indeed violated the APA. See id. at 21 (internal citation omitted). This conclusion comported with a persuasive case from the Ninth Circuit in which the court interpreted the ESA to mean that a "species could be 'extinct throughout a significant portion of its range if there are major geographical areas in which it is no longer viable but once was.'" Id. at 20 (quoting Defenders of Wildlife v. Norton, 258 F.3d 1136, 1145 (9th Cir. 2001).

The Court set aside the Lynx Final Rule, remanded the case "for reconsideration and explanation," and ordered the Service, at a minimum, to "explain its conclusion that the area in which the Lynx can no longer live is 'not a significant portion of its range.'" Id. (internal citation omitted).

3. The Instant Litigation

Following the Court's remand, FWS published a Notice in the Federal Register on March 17, 2003 indicating that it was "opening a comment period on the contiguous United States [DPS] of the Canada Lynx" pursuant to the Court's Order. 68 Fed. Reg. 12611 (Mar. 17, 2003). The Service indicated that it was "re-evaluating the determination that 'collectively the Northeast, Great Lakes, and Southern Rockies do not constitute a significant portion of the range of the [L]ynx DPS." Id. It invited public comments on the quality of [L]ynx habitat," the "quantity of [L]ynx habitat," and "other elements concerning the significant portion of the range of the [L]ynx." Id. at 12612. The Service further stated that it would examine "information that had become available since" the Lynx Final Rule was published in 2000, including new research on the historical occurrence of the species, as well as its current status, in the Northeast, Great Lakes, and Southern Rockies. Id.

The comment period lasted through April 2003, during which time FWS received 118 comments from a variety of sources and covering a "broad spectrum of Lynx-related issues." 68 Fed. Reg. 40080 (July 3, 2003). FWS published a "Notice of Remanded Determination of Status for the Contiguous United States Distinct Population Segment of the Canada Lynx" (the "Remanded Determination") on July 3, 2003. See id. at 40076. The twenty-five page Notice concluded with numerous findings including, most notably for purposes of this case, that

the contiguous United States DPS of [L]ynx is not in danger of extinction throughout a significant portion of its range within the Northeast, Great Lakes, or Southern Rockies and therefore does not warrant reclassification to 'endangered' status ...


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