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County of San Miguel, Colorado v. Kempthorne

November 10, 2008

COUNTY OF SAN MIGUEL, COLORADO, ET AL., PLAINTIFFS,
v.
DIRK A. KEMPTHORNE, ET AL., DEFENDANTS,



MEMORANDUM OPINION

This matter comes before the Court on the plaintiffs' combined motion seeking:

(1) to supplement the administrative record ("the Record"); (2) to compel the defendants -- the U.S. Fish and Wildlife Service ("Service"), an agency of the United States Department of the Interior ("DOI" or "Interior") -- to properly designate and certify the Record; (3) to have the Court conduct an in camera review of several documents excluded from the Record by the defendants on the grounds that they were improperly designated as being protected from disclosure by the attorney-client privileged; and (4) to have the Court take judicial notice of a government report which concerns allegations of improper influence in the Service's designation process. The defendants and defendant-intervenors*fn1 oppose the motion. For the reasons explained herein, the plaintiffs' motion is granted in part and denied in part.

I. BACKGROUND

The Gunnison sage-grouse is a brownish-gray bird that lives in the sagebrush and wet meadows of the central western and southwestern United States, including the State of Colorado. First Amended Complaint for Declaratory and Injunctive Relief ("Am. Compl.") ¶ 25-26. Its distinctive features include its mating ritual and the colorful yellow, white, and black features on male birds. Id. The Colorado Division of Wildlife estimates that over the last 50 years, the species has declined in population between 42 and 90 percent, caused by, among other factors, "habitat loss, fragmentation, and degradation from numerous human activities." Id. ¶¶ 31-32. The bird now populates only about 8.5 percent of its historic range, according to the Service's estimates. Id. ¶¶ 26-27 & 30. Based upon this decline in population and occupational range, several Colorado county and non-profit conservation, birding, and government accountability organizations, the plaintiffs in this case, want the Service to list the Gunnison sage-grouse as an endangered species under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-44 (2000).*fn2 Am. Compl. ¶¶ 1, 21 & 46.

The ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Congress designed the ESA to "save from extinction species that the Secretary of the Interior designates as endangered or threatened." Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 690 (1995). With an exception for insects, the ESA defines an "endangered" species as "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6) (2000). The ESA defines a "threatened" species as "any specifies 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) (2000).

In order to identify endangered or threatened fish, wildlife, or plant species, upon a public petition for designation or upon its own initiative, 16 U.S.C. § 1533(b)(3) (2000), the ESA directs the Secretary of Interior*fn3 to determine whether a candidate species should be designated as endangered or threatened upon the existence of any of 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.

16 U.S.C. § 1533(a)(1) (2000). The ESA directs the Secretary to make this designation solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas.

16 U.S.C. § 1533(b)(1)(A). Concurrently with the Secretary's designation of a species as endangered or threatened, the Secretary must also "designate any habitat of such species which is then considered to be critical habitat." 16 U.S.C. § 1533(a)(3)(A).

On January 25, 2000, the plaintiffs submitted a petition to the Secretary which described significant declines in the Gunnison safe-grouse's population and range, and requested that the Secretary list the species as an endangered under the ESA. Am. Lands Alliance I, 242 F. Supp. 2d at 3. The Secretary assigned the petition to the Service's Mountain-Prairie Regional office in Colorado. Id. Shortly thereafter, the Larch Company, one of the plaintiffs in this case, and others, brought suit when the Service did not publish a 90-day finding in the Federal Register pursuant to 16 U.S.C. § 1533(b)(5)(A), or otherwise respond to the plaintiffs' petition because the Service had already listed the species as a candidate for endangered classification pursuant to its internal nomination process under its PMG policy. Id. at 4.

On December 28, 2000, the Service published a "Notice of Candidate Designation" in the Federal Register stating that listing the Gunnison sage-grouse as endangered was warranted under the ESA. See Notice of Designation of the Gunnison Sage Grouse as a Candidate Species, 65 Fed. Reg. 82310, 82311 (Dec. 28, 2000). In that notice, the Service stated that it "request[ed] additional status information that may be available for the Gunnison sage grouse," which it would accept "at any time." Id. On June 13, 2002, May 4, 2004, and May 11, 2005, the Service published Notice of Reviews listing several candidate species, including the Gunnison sage-grouse. See 67 Fed. Reg. 40657, 40666-67 (June 13, 2002); 69 Fed. Reg. 24876, 24881 (May 4, 2004); 70 Fed. Reg. 24870, 24893 (May 11, 2003). In each of those publications, the Service reiterated that it was seeking "additional status information that may be available for the 286 candidate species," and that it would "consider this information in preparing listing documents and future revisions to the notice of review, as it [would] help [the Service] in monitoring changes in the status of candidate species and in management for conserving them." 67 Fed. Reg. at 40657; 69 Fed. Reg. at 24876; 70 Fed. Reg. at 24870.

Although throughout the period when the above referenced notices were published, the plaintiffs allege that the Service experts prepared several internal drafts of a proposed rule listing the Gunnison sage-grouse as endangered, as well as concurrently mapping a proposed "critical habitat" for the species, the Service reversed course sometime before issuing its final determination and produced several revised drafts of a "not warranted" determination. Am. Compl. ¶¶ 47-64. On April 18, 2006, the Service issued its final determination concluding that listing the Gunnison sage-grouse under the ESA was "not warranted." 71 Fed. Reg. 19954 (Apr. 18, 2006). The non-listing decision referenced "information obtained since [the Service's] 2004 review (e.g., [the] Garton [Report] 2005)," which supported the conclusion that "threats to the Gunnison sage-grouse are neither imminent or of such magnitude that they threaten or endanger the existence of the species." Id. at 19982. The plaintiffs challenge the conclusions of the Garton report as "weak or supported by unsound data" and allege that "important flaws" in its analysis cast doubts upon its findings and the Service's reliance upon the report as the "best currently available information." Am. Compl. ¶ 70 (internal quotations omitted).

In their current motion, the plaintiffs seek to supplement the Record filed in this case by the Service on April 16, 2007, on the grounds that it is incomplete and omissions from the record based on the Service's claims of attorney-client privilege are unwarranted. Plaintiffs' Combined Motion for Supplementation of the Administrative Record, Adequate Certification of the Record, Challenging Defendants' Claims of Attorney-Client Privilege and For In Camera Review of Defendants' Privilege Claims, and For Judicial Notice of an Inspector General Report on Julie MacDonald ("Pls.' Mot.") at 1-2. The plaintiffs also challenge the defendants' certification of the Record as inadequate and request that the Court order the Service to file a new certification that specifies the manner and guidelines by which the Record was compiled, and which details which types of documents were included or omitted. Memorandum in Support of Plaintiffs' Combined Motion for Supplementation of the Administrative Record, Adequate Certification of the Record, Challenging Defendants' Claims of Attorney-Client Privilege and For In Camera Review of Defendants' Privilege Claims, and For Judicial Notice of an Inspector General Report on Julie MacDonald ("Pls.' Mem.") at 2. Finally, the plaintiffs request that the Court take judicial notice of a March 29, 2007 investigative report issued by Interior's Inspector General which concerns allegations of improper influence in the designation process against Julie MacDonald, former Deputy Assistant Secretary for the Service, who, the plaintiffs allege, was involved in the designation process of the Gunnison sage-grouse. Id. at 2 & 17 n.8. The defendants oppose the motion on the grounds that the law presumes that the Service properly compiled, designated, and certified the Record, and the plaintiffs have failed to defeat that presumption. Defendants' Opposition to Plaintiffs' Combined Motion ("Defs.' Opp'n") at 2-3. As to the adequacy of their attorney-client designations, the defendants acknowledge that their privilege log is "deficient," but they assert that a revised privilege log will show that the Service properly designated and excluded certain records as non-disclosable under the attorney-client privilege.*fn4 Id. at 3. Finally, the defendants assert that the Inspector General's report is not a document about which the Court can take judicial notice. Id.

The defendant-intervenors also oppose the motion arguing that the plaintiffs have not shown that when the Service's designated the Gunnison sage-grouse as "not warranted," the documents which the plaintiff seek to become part of the Record were either relevant, before the Service decision-makers, or considered by them. Defendant-Intervenors Memorandum in Response to Plaintiffs' Combined Motion ("Def.-Intervenors' Opp'n Mem.") at 4-7. The defendant-intervenors also oppose the motion on the grounds that the Service properly designated and certified the Record, an accounting is unwarranted, and the documents designated attorney-client privilege were properly excluded from the Record.*fn5 Id. at ...


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