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Spirit of the Sage Council v. Kempthorne

August 30, 2007


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


Native American and environmental organizations and their members have brought this action challenging the validity of two federal rules under the Endangered Species Act ("ESA"), the No Surprises Rule and Permit Revocation Rule ("PRR", collectively "the Rules"), which were promulgated by the Fish and Wildlife Service ("FWS") and National Marine Fisheries Service ("NMFS", collectively "the Services"). In 2003 and 2004, the Court ruled that the PRR had been promulgated without providing adequate opportunity for public comment, remanded the Rules to the agencies, ordered the Services to complete the proceedings upon remand within one year, and enjoined use of the Rules in the interim. The Services have now complied with the required procedures and repromulgated the PRR. Pending before the Court are the parties' cross-motions for summary judgment, which dispute both this Court's jurisdiction as well as the merits of plaintiffs' claims under the Administrative Procedures Act ("APA"). Upon consideration of the motions and supporting memoranda, the responses and replies thereto, the applicable law, the arguments made at the motions hearing on May 30, 2007, and the entire record, the Court determines that the it has jurisdiction and that the Rules are lawful under the APA. Therefore, for the reasons stated herein, plaintiffs' motion for summary judgment is DENIED, and defendants' motion for summary judgment is GRANTED.


A. Factual and Regulatory Background

The background of the parties and the statutory framework was discussed in detail in the Court's 2003 opinion, Spirit of the Sage Council v. Norton, 294 F. Supp. 2d 67, 73-80 (D.D.C. 2003) (hereinafter "Spirit I"), and need only be summarized here. Plaintiffs are a number of organizations who allege that their members regularly photograph, observe, study and otherwise enjoy endangered and threatened species and their habitats. Id. at 73-74. FWS and NMFS are agencies within the Department of the Interior and Department of Commerce respectively, which have been delegated the responsibilities under the ESA. Id. at 75. Two additional parties, the Western Urban Water Coalition and a group of California local governments, have been granted leave to intervene as defendants. Id.

Section 9 of the ESA, with certain statutory exceptions, makes it unlawful for any person to "take" a member of any species listed as endangered or threatened. Id. at 75-76. In 1982, Congress amended the ESA to authorize the Services to permit otherwise prohibited takings of endangered or threatened species, if they are "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Id. at 76 (quoting 16 U.S.C. § 1539(a)(1)(B)). Incidental take permits ("ITP") are available to landowners and developers who agree to mitigate impacts to listed species through a Habitat Conservation Plan ("HCP"), which must satisfy both ESA statutory criteria and further requirements in the Services' regulations. Id.

Under Section 10 of the ESA, an applicant seeking an ITP authorizing it to "take" endangered or threatened species in the course of its activities on private land must prepare a HCP specifying, inter alia, the impact of the taking, measures to minimize the impact, and any other measures required by the Services. 16 U.S.C. § 1539(a)(2)(A). In order to issue an ITP, the Services "must find that the taking will be incidental; the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; the applicant will ensure that adequate funding for the plan will be provided; [and] the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." 16 U.S.C. § 1539(a)(2)(B).

In 1994, the government announced the "No Surprises" policy, which required Services approving ITPs to provide landowners with "assurances" that once an ITP was approved, even if circumstances subsequently changed in such a way as to render the HCP inadequate to conserve listed species, the Services would not impose additional conservation and mitigation requirements that would increase costs or further restrict the use of natural resources beyond the original plan. Spirit I, 294 F. Supp. 2d at 77. Despite numerous objections, the Services promulgated a final No Surprises Rule, which essentially codified the No Surprises policy. Id. at 78. The new rule provides that "no additional land use restrictions or financial compensation will be required of the permit holder with respect to species covered by the permit, even if unforeseen circumstances arise after a permit is issued indicating that additional mitigation is needed for a given species covered by a permit." Id. (quoting No Surprises Rule, 63 Fed. Reg. 8859, 8863 (Feb. 23, 1998), codified at 50 C.F.R. §§ 17.22, 17.32). In the first decade following the enactment of Section 10 of the ESA, only 14 ITPs were issued, but between 1994 and 2002, 379 ITPs with No Surprises assurances have been issued, covering approximately 30 million acres and affecting more than 200 endangered or threatened species. Id. at 79.

While this Court was considering the original motions for summary jugdment in this case, the FWS promulgated the Permit Revocation Rule ("PRR"). Id. The PRR amends the regulations specifically applicable to ITPs, which now include the No Surprises Rule, and provides, in pertinent part, that an ITP "may not be revoked . . . unless continuation of the permitted activity would be inconsistent with the criterion set forth in 16 U.S.C. § 1539(a)(2)(B)(iv) and the inconsistency has not been remedied [by the Services] in a timely fashion." Id. (quoting Safe Harbor Agreements and Candidate Conservation Agreements With Assurances, 64 Fed. Reg. 32,706, 32,712-14 (Jun. 17, 1999), codified at 50 C.F.R. §§ 17.22(b), 17.32(b)). 16 U.S.C. § 1539(a)(2)(B)(iv) sets forth, as one of the conditions for issuance of an ITP, that "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." Id. at 79 n.2.*fn1 In effect, the PRR specifies that the Services will not revoke an ITP unless continuation of the permit puts a listed species in jeopardy of extinction. See id. at 86.

B. Procedural History

Before the Court in 2003 were plaintiffs' arguments that the No Surprises Rule and PRR violated the ESA and APA. Id. at 80. As an initial matter, the Court held that the plaintiffs had standing to bring their claims because the "plaintiffs' assertion of harm arising from the substantial and unprecedented increase in the number of ITPs sought and issued since the advent of the No Surprises Rule is sufficient to establish injury in fact." Id. at 82; see also id. at 82-83 (holding that plaintiffs met the causation and redressability prongs of the standing test based on that harm). The Court also concluded that plaintiffs' claims were ripe because they presented purely legal challenges to the Rules and there was no substantial reason to await further factual development of the issues. Id. at 83-85.

On the merits, the Court held that the PRR was promulgated in violation of the APA's procedural requirements. Id. at 85. Finding the PRR to be a substantive rule, the Court concluded that it was promulgated without the notice and comment required by the APA. Id. at 85-91. The Court thus did not need to reach plaintiffs' substantive challenges to the PRR, but vacated the PRR and remanded the rule for public notice and comment. Id. at 90-91. The Court further found that the No Surprises Rule was "sufficiently intertwined" with the PRR so that it also had to be remanded to the agency for reconsideration with the PRR without further inquiry into its substantive validity. Id. at 91. The Court later issued an order requiring the Services to complete the proceedings on remand within one year, and to refrain from approving new ITPs containing "No Surprises" assurances pending completion of those proceedings. Order (June 10, 2004).

The Services appealed the Court's final order, arguing that the interim suspension of the No Surprises Rule and the one-year deadline for repromulgation of the PRR exceeded the Court's authority under the APA. Spirit of the Sage Council v. Norton, 411 F.3d 225, 226-27 (D.C. Cir. 2005) (hereinafter "Spirit II"). After the D.C. Circuit denied the Services' motion for a stay pending appeal, the FWS solicited public comment on both the PRR and its relationship to the No Surprises Rule, as ordered by the Court. Id. at 228. In December 2004, the FWS repromulgated the PRR without substantial change. Id. (citing ESA ITP Revocation Regulations - Final Rule, 69 Fed. Reg. 71,723 (Dec. 10, 2004)).

The D.C. Circuit agreed with plaintiffs that the Services' appeal was moot because the Services fully complied with this Court's orders. Id. at 227. The Circuit thus did not address this Court's rulings that the plaintiffs had standing and that their claims were ripe for judicial review. Id. at 230. The court instead only dismissed the appeal as moot, vacated the orders that were appealed, and remanded the case for further proceedings before the Court. Id.

On remand, plaintiffs and defendants have both filed motions for summary judgment. Plaintiffs contend that the PRR and No Surprises Rule contravene the ESA and are arbitrary and capricious under the APA. In their motion, defendants initially contend that plaintiffs lack standing and that their claims are not ripe for review. On the merits, defendants argue that the PRR and No Surprises Rule are reasonable constructions of the ESA, and that the Services' explanations of the rules comply with the APA. The intervenor-defendants have also filed a brief in support of the Services' arguments.


Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp., 477 U.S. at 324.


I. ...

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