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Defenders of Wildlife v. Kempthorne

March 5, 2008

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



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

In this suit, plaintiffs, Defenders of Wildlife and others ("Defenders"), claim that the 2004 decision of defendant United States Fish & Wildlife Service ("Wildlife Service"), in which the Wildlife Service reexamined regulatory mechanisms in relation to a 1998 decision not to list the Florida black bear ("black bear") under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1521 et seq., violated the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq. and this court's December 13, 2001 memorandum opinion and order in Defenders of Wildlife v. Norton, No. 99-02072 ("2001 Opinion"). The Safari Club and others ("the Safari Club") have intervened as defendants. Presently before the court are the parties' cross motions for summary judgment. Upon consideration of the motions, the oppositions thereto, and the administrative record, the court concludes that Defenders' motion should be denied and that defendants' and defendantintervenors' motions must be granted.

I. BACKGROUND

A. Statutory Framework

The ESA was enacted in order "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 Act does not provide protection to a species unless the Secretary of Interior lists it as threatened or endangered. See 16 U.S.C. § 1533. The statute defines the term "threatened species" as "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). An "endangered species" is defined as "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). Once a species is listed as threatened or endangered, it receives substantial federal protection. For example, it is illegal for anyone to kill, take, hunt or capture an endangered or threatened species. See 16 U.S.C. § 1538(a)(1); 50 C.F.R. §§ 17.21, 17.31.

The ESA allows citizens to file petitions seeking to list a species as threatened or endangered. See 16 U.S.C. § 1533(b)(3)(A). Once a citizen petitions for listing of a species, the Wildlife Service must decide within ninety days if the petition presents enough information indicating that a listing may be warranted. See id. If the Wildlife Service determines that the petition provides sufficient information, it then conducts a study of the current state of the species, known as a status review, to determine whether to list the species. See 16 U.S.C. § 1533(b)(3)(B). If the Wildlife Service decides that a listing is warranted, it must publish a proposed rule listing the species. See 16 U.S.C. § 1533(b)(5). The Wildlife Service must issue a final rule either listing the species or explaining its decision not to list within twelve months of issuance of the proposed rule. See id.

In order to determine whether a species warrants listing pursuant to the ESA, the Wildlife Service must consider five specific 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.

16 U.S.C. § 1533(a)(1). The agency must list a species as long as any one factor demonstrates that it is threatened or endangered. See id. ("[t]he Secretary shall . . . determine whether any species is an endangered species or a threatened species because of any of the [five factors set forth in the ESA]"); Carlton v. Babbitt, 900 F. Supp. 526, 530 (D.D.C. 1995). The agency must base its decision whether or not to list "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b).

B. Procedural History

On December 8, 1998, the Wildlife Service issued a finding that the black bear did not warrant listing under the ESA. 63 Fed. Reg. 67613 (Dec. 8, 1998) ("1998 Decision"). In 1999, Defenders brought suit against the Wildlife Service in this court challenging this finding as arbitrary, capricious, and an abuse of discretion under the APA. The parties cross-moved for summary judgment, and in the 2001 Opinion, this court granted both parties' motions in part and remanded the 1998 Decision back to the Wildlife Service.

The 2001 Opinion found that the 1998 Decision did not satisfactorily explain why the black bear did not warrant protection due to the inadequacy of existing regulatory mechanisms.*fn1 2001 Opinion at 22. The 2001 Opinion noted that it was unclear whether the regulatory mechanisms cited in the 1998 Decision were in effect at the time of the decision, or whether they were instead future or speculative regulatory mechanisms -- that is, regulatory mechanisms that had not yet been enacted. The 2001 Opinion noted that it is impermissible for the Wildlife Service to rely on future or speculative regulatory mechanisms. The 2001 Opinion further stated that it was unclear whether the Wildlife Service would have found that the black bear was threatened had it not considered regulatory mechanisms that were not yet enacted. Accordingly, the court remanded the 1998 Decision to the Wildlife Service.

Upon remand, the Wildlife Service issued a decision in 2004. 69 Fed. Reg. 2100 (Jan. 14, 2004) ("2004 Decision"). In this decision, the Wildlife Service analyzed regulatory mechanisms that were in effect in 1998 and found that various federal and state regulatory mechanisms adequately protected the black bear from becoming threatened or endangered. Defenders then brought this action, asserting ...


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