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County of San Miguel, Colorado v. MacDonald

August 21, 2007

COUNTY OF SAN MIGUEL, COLORADO, ET AL., PLAINTIFFS,
v.
MACDONALD, ET AL., DEFENDANTS,
AND COLORADO CATTLEMEN'S ASSOCIATION, PARTNERSHIP FOR THE WEST, AND WESTERN CONSERVATION COALITION INTERVENOR-APPLICANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Court

MEMORANDUM OPINION

On November 14, 2006, the plaintiffs, the County of San Miguel, Colorado and nine conservation, birding, and governmental-accountability organizations, mostly non-profit, filed a complaint pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. § 1540(g)(1)(C) (2000) and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702, 706 (2000), challenging the defendants' (Julie MacDonald,*fn1 Dick Kempthorne,*fn2 and H. Dale Hall*fn3 ) determination that listing the Gunnison sage-grouse as "endangered" or "threatened" under the ESA is "not warranted."*fn4

("Compl.") ¶ 1; see generally Final Listing Determination for the Gunnison Sage-Grouse as Endangered or Threatened, 71 Fed. Reg. 19954-01 (Apr. 18, 2006) (to be codified at 50 C.F.R. pt. 17) ("Final Determination"). The plaintiffs seek declaratory relief that sets aside the United States Fish and Wildlife Service's ("FWS") "not warranted" finding and requires the issuance of an emergency rule listing the Gunnison sage-grouse as "endangered" under the ESA until normal listing procedures are completed pursuant to the citizen suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(C), and the judicial review provisions of the APA, 5 U.S.C. §§ 702, 706.*fn5 Compl. ¶¶ 2-3 and C, E at 23.

Currently before this Court is a motion to intervene as defendants filed by intervenor-applicants Colorado Cattlemen's Association ("Cattlemen"), Partnership for the West ("Partnership"), and Western Conservation Coalition ("Western") pursuant to Federal Rule of Civil Procedure 24(a).*fn6 Intervenor-Applicants Colorado Cattlemen's Association, Partnership for the West, and Western Conservation Coalition's Motion for Leave to Intervene as Defendants ("Intervenor-Applicants' Mot.").*fn7 The motion is unopposed by the current defendants, Intervenor-Applicants' Mem. at 18, but is opposed by the plaintiffs, see Pls.' Opp'n.

For the reasons set forth below, the intervenor-applicants' motion is granted.

I. Factual Background

A. The Endangered Species Act

The ESA, 16 U.S.C. §§ 1531 et seq. (2000),is intended, inter alia, "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). The Supreme Court has stated that "[t]he plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 (1978).

The ESA protects species listed under the Act as "endangered" or "threatened" in several ways. The Act: (1) requires the FWS to develop and implement a recovery plan for listed species, 16 U.S.C. § 1533(f); (2) requires all federal agencies to carry out their programs for the conservation of the listed species and not jeopardize the continued existence of listed species, 16 U.S.C. § 1536(a)(1), (a)(2); and (3) forbids anyone from "taking" listed species by any means, except where authorized, 16 U.S.C. §§ 1538, 1539, 1532(19); 50 C.F.R. §17.31.

The ESA charges the Secretary of the United States Department of the Interior ("Secretary") with determining whether a species is "endangered" or "threatened," and when such a determination is made, to designate its "critical habitat." 16 U.S.C. § 1533. The Secretary has delegated the responsibility of these determinations to the FWS. 50 C.F.R. § 402.01(b).

Protection of a species does not commence under the ESA until the species is listed as either endangered or threatened. See 16 U.S.C. § 1533(f) (requiring the development of a recovery plan for listed species). Under the ESA, a species is endangered if it "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is threatened if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). Once one of these designations is made, the ESA requires all federal agencies to verify that any action they authorize, fund, or perform "is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical." 16 U.S.C. § 1536(a)(2).

A species may be classified as endangered or threatened by the Secretary's own initiative or by a petition to list a species submitted by the public to the Secretary. 16 U.S.C. § 1533(a) & (b). When the FWS receives a petition to list a species submitted by the public, within 90 days of receiving the petition, "to the maximum extent practicable," the FWS must determine "whether the petition presents substantial scientific or commercial information indicating that . . . [a listing] may be warranted." 16 U.S.C. § 1533(b)(3)(A). If the FWS determines that listing based upon a petition "may be warranted," the FWS must start a review of the status of the species, id., which must include (1) publication of the "may be warranted" determination in the Federal Register, id. § 1533(b)(3)(B)(ii), and (2) an opportunity for public review and comments on new or revised recovery plans*fn8 , id. § 1533(f)(4). At the conclusion of the review period, the FWS must determine whether the petition for the listing of a species is (1) "not warranted," id. § 1533(b)(3)(B)(I), (2) "warranted," id. § 1533(b)(3)(B)(ii), or (3) "warranted . . . but . . . precluded" because of, inter alia, other "pending proposals to determine whether any species is an endangered or a threatened species . . . ." id. § 1533(b)(3)(B)(iii). If the listing is warranted, the FWS must (1) promptly publish a proposed regulation in the Federal Register, 16 U.S.C. § 1533(b)(3)(B)(ii), and (2) within one year publish a final regulation or withdraw the proposed regulation, id. § 1533(b)(6)(A)(I). The designation of the critical habitat of an endangered or threatened species must be made at the same time.*fn9 Id. § 1533(b)(6)(A)(ii). If the FWS determines that the listing is "not warranted," it must also publish that determination in the Federal Register Id. § 1533(b)(3)(B)(I). The FWS's "not warranted" determination is subject to judicial review. Id. §1533(b)(3)(C)(ii).

B. The Gunnison Sage-Grouse

"The sage-grouse is a brownish-gray bird known for its unique mating ritual and the colorful . . . features on the male birds," Compl. ¶ 25, which is a "distinct species" from a bird with a smaller wing span known as the Gunnison sage-grouse, id. ¶ 26. This distinct sub-species of the Gunnison sage-grouse is currently found primarily in the Gunnison Basin in southwestern Colorado. Id. ¶¶ 26, 31. The Gunnison sage-grouse relies upon sagebrush habitats "throughout the year" for "food, shelter, and cover." Id. ¶¶ 28-29.

According to the FWS, "[t]he current range of [the]Gunnison sage-grouse is about 8.5 percent of its historic range."*fn10 Id. ¶ 30, see id. ¶ 68. In 2004, the Colorado Division of Wildlife "estimated that the rangewide Gunnison sage-grouse population declined between 42 and 90 percent over the last 50 years." Id. ¶ 31. The plaintiffs represent that factors contributing to the decline of the species include "habitat loss, fragmentation, and degradation from numerous human activities" such as domestic livestock grazing. Id. ¶ ...


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