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In re Endangered Species Act Section 4 Deadline Litigation

August 27, 2010

IN RE ENDANGERED SPECIES ACT SECTION 4 DEADLINE LITIGATION
THIS DOCUMENT RELATES TO: CENTER FOR BIOLOGICAL DIVERSITY
v.
SALAZAR, NO. 10-CV-00230 (EGS)



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

MDL Docket No. 2165

MEMORANDUM OPINION

Pending before the Court is a motion to intervene as of right or, in the alternative, for permissive intervention filed by Tejon Ranch Company, Tejon Ranchcorp, and Tejon Mountain Village, LLC (collectively "TRC"). TRC seeks to intervene in only one of the consolidated cases in this matter: Center for Biological Diversity v. Salazar, No. 10-230, which arises in part from a petition to list the Tehachapi slender salamander under the Endangered Species Act ("ESA"). TRC's motion is opposed by Plaintiff Center for Biological Diversity ("CBD") and by Plaintiff Wildearth Guardians ("Wildearth").*fn1 The federal defendants take no position on TRC's motion. Upon consideration of TRC's motion, the responses and reply thereto, the relevant law, and for the reasons stated herein, TRC's motion to intervene is DENIED.

I. BACKGROUND

A. Statutory Background

The ESA was enacted for the purpose of providing "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and]... a program for the conservation of such endangered species and threatened species[.]" 16 U.S.C. § 1531(b). The ESA requires the Secretary of the Interior to publish and maintain a list of all species that have been designated as threatened or endangered.*fn2 Id. § 1533(c). Species are added to and removed from this list through a notice and comment process, either on the initiative of the Secretary or as a result of a petition submitted by an "interested person." Id. §§ 1533(b)(1), (3), (5).

The ESA establishes specific procedural steps for making a listing determination. Within 90 days of receiving a listing petition, the United States Fish and Wildlife Service ("FWS") must "[t]o the maximum extent practicable" determine whether "the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted." 16 U.S.C. § 1533(b)(3)(A). If the FWS determines on this basis that listing may be warranted, it must promptly commence a review of the species' status. Id. Within 12 months of receiving the listing petition, the agency must have completed its review and must make a finding that listing is either: (1) not warranted; (2) warranted, but precluded by other listing priorities; or (3) warranted, in which case the FWS must publish a proposed rule to list the species in the Federal Register. Id. § 1533(b)(3)(B). The ESA permits no exceptions to this 12-month mandatory deadline.

B. Factual and Procedural Background

On February 28, 2006, the FWS received a citizen petition to list the Tehachapi slender salamander as an endangered or threatened species. See 90-Day Finding on a Petition to List the Tehachapi Slender Salamander (Batrachoseps stebbins) as Threatened or Endangered, 74 Fed. Reg. 18,336 (Apr. 22, 2009) ("90-Day Finding"). The Tehachapi slender salamander is a small, lungless amphibian believed to exist in only two populations in central California -- one in Caliente Canyon in the southern Sierras, and the other in the Tehachapi Mountains. TRC Memorandum in Support of Motion to Intervene at 4, Docket No. 9 ("TRC Mem."). A portion of the Tehachapi population is found on Tejon Ranch, which is owned by Movant-Intervenor TRC. TRC Mem. at 4. Tejon Ranch is a 270,000-acre working ranch located 60 miles north of Los Angeles and 30 miles south of Bakersfield, California. Declaration of Roberta Marshall in Support of Motion to Intervene ¶ 2, Docket No. 9-1 ("Marshall Decl."). It is the largest contiguous piece of private property in California and supports ranching and farming operations, oil production, mining, recreational activities, and real estate development. Marshall Decl. ¶ 2. In 2008, Tejon Ranchcorp entered into a conservation agreement that will result in permanent conservation of up to 90% of the entire property. Marshall Decl. ¶ 7. There are, however, future development plans for the property that include a mountain resort community called Tejon Mountain Village ("TMV"), which will consist of homes, a destination resort, hiking trails, open space, and other amenities. Marshall Decl. ¶ 2. The petition to list the Tehachapi slender salamander asserts, among other things, that "development on the Tejon Ranch property poses serious threats to the species." Marshall Decl. ¶ 9.

Over the past several years, TRC has been working with the FWS on a Multiple Species Habitat Conservation Plan ("MSHCP") for 27 threatened, endangered, and sensitive species that occupy habitat on Tejon Ranch, including the Tehachapi slender salamander. Marshall Decl. ¶¶ 4-6. Once this plan is approved, TRC will be able to pursue normal business activities, including future development, in exchange for adopting voluntary land use restrictions and management prescriptions. Marshall Decl. ¶ 3. As proposed, this MSHCP will permanently protect 3,507 of the 3,797 acres of suitable habitat for the salamander, along with other conservation measures. Marshall Decl. ¶ 6. The MSHCP was released for public comment in 2009 but has not yet been approved by the FWS. Marshall Decl. ¶ 4; TRC Mem. at 7.

On April 22, 2009, the FWS issued its 90-day finding on the Tehachapi slender salamander, concluding that "the petition presents substantial scientific or commercial information indicating that listing... may be warranted." 90-Day Finding, 74 Fed. Reg. at 18,341. The FWS specifically found that the petition presented "credible and substantial" evidence that the species may be threatened by road construction and maintenance, residential and commercial development, livestock grazing, and mining. Id. at 18,339. Subsequently, on February 17, 2010, Plaintiff CBD filed a complaint in the United States District Court for the Eastern District of California challenging the FWS's failure to act on the Tehachapi slender salamander and listing petitions for six additional species. Ctr. for Biological Diversity v. Salazar, No. 10-401 (E.D. Cal. filed Feb. 17, 2010). TRC filed a motion seeking leave to intervene in that case on April 2, 2010. TRC Mem. at 5.

Before TRC's motion could be resolved, CBD voluntarily dismissed the case and, on April 26, 2010, amended its complaint in a related action pending before this Court to add claims regarding the Tehachapi slender salamander. First Amended Complaint, Ctr. for Biological Diversity v. Salazar, No. 10-230, Docket No. 8 ("First Am. Compl."). Specifically, Plaintiff CBD claims that the FWS failed to meet a statutory 12-month deadline to determine whether or not listing of this species is warranted. First Am. Compl. ¶ 2. Plaintiff requests relief in the form of (1) an order declaring that the FWS failed to comply with its statutorily-mandated deadline and (2) an order requiring the Secretary to make the required finding by a date certain. First Am. Compl. ¶ 2.

Several related cases brought by Plaintiff CBD and Plaintiff Wildearth in other jurisdictions were subsequently transferred to this Court and consolidated for pre-trial proceedings by order of the United States Judicial Panel on Multidistrict Litigation. Conditional Transfer Order, In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-mc-377, Docket No. 1. TRC sought to ...


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