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Am. Forest Resource Council v. Hall

February 5, 2008

AM. FOREST RESOURCE COUNCIL, PLAINTIFF,
v.
H. DALE HALL, DIRECTOR, U.S. FISH & WILDLIFE SERV., ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff American Forest Resource Council ("AFRC"), a forest products trade association located in Portland, Oregon, brings this action for declaratory and injunctive relief against defendants H. Dale Hall, Director of the United States Fish and Wildlife Service, David M. Verhey, Acting Assistant Secretary for Fish, Wildlife, and Parks, and Dirk Kempthorne, Secretary of the Interior. The case is brought pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq., the Unfunded Mandates Reform Act, 2 U.S.C. § 1501 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., to remedy defendants' alleged violations of those statutes in conducting a five-year status review for a small seabird in Washington, Oregon, and California, known as the marbled murrelet. Currently before the Court are the cross-motions for summary judgment filed by plaintiff, defendants, and intervenor-defendants.*fn1 Finding the jurisdictional arguments of defendants and intervenor-defendants persuasive, the Court will grant defendants' and intervenor-defendants' motions and will deny plaintiff's motion.

BACKGROUND

I. Statutory and Regulatory Background

The ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).In order to carry out the purpose of the ESA to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," 16 U.S.C. § 1531(b); Babbit v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 699, the Secretary of the Interior ("the Secretary"), acting through the U.S. Fish and Wildlife Service ("FWS"), lists those species that he has determined to be endangered or threatened, 16 U.S.C. § 1533(a); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1064 (D.C. Cir. 2003).

Under the ESA, the term species "includes 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." 16 U.S.C. § 1532(16).*fn2 According to the ESA, an endangered species is "in danger of extinction throughout all or a significant portion of its range," id. § 1532(6), while a threatened species "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range," id. § 1532(20). To determine whether a species is threatened or endangered, FWS must consider the following factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence.

Id. § 1533(a)(1). At any time, FWS may propose to list a species and must proceed by the APA notice and comment procedures applicable to rulemaking to do so. Id. § 1533(b)(4).

A listing decision may also be made pursuant to a citizen petition. See id. § 1533(b)(3). An interested party may file a petition to list or delist a species, which triggers a series of statutory deadlines. Within 90 days of receiving a citizen petition, FWS must, "to the maximum extent practicable," make a finding "as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted" and publish this finding in the Federal Register. Id. § 1533(b)(3)(A). FWS then has one year to conduct a status review to decide if the action actually is warranted, not warranted, or warranted but precluded. See id. § 1533(b)(3)(B). If the action is warranted, FWS must publish a proposed rule to implement the action in the Federal Register, id. § 1533(b)(3)(B), and FWS must act on the proposal within one year of its publication, id. § 1533(b)(6)(A).

Once a species has been placed on the list of endangered or threatened species it becomes unlawful under § 9 of the ESA for any person to "take" the species. See id. § 1538(a)(1); 50 C.F.R. § 17.31(a). The term "take" is defined under the ESA as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" any listed species, and includes an "attempt to engage in any such conduct." Id. § 1532(19). Landowners and other non-federal entities may, however, apply for and receive a permit to "take" listed species, so long as: (1) the take is incidental to any otherwise lawful activity; (2) the applicant submits an acceptable habitat conservation plan designed to minimize and mitigate the effects of the incidental take; and (3) the take will not appreciably reduce the species' likelihood of survival and recovery. Id. § 1539(a)(1)(B), (a)(2)(A)-(B). The ESA also provides for the granting of scientific or "recovery" permits. Section 10(a)(1)(A) of the ESA allows the Service to "permit, under such terms and conditions as [it] shall prescribe, . . . any act otherwise prohibited by [§ 9] for scientific purposes or to ...


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