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Carpenters Industrial Council v. Salazar

September 1, 2010

CARPENTERS INDUSTRIAL COUNCIL, ET AL., PLAINTIFFS, AND SEATTLE AUDUBON SOCIETY, ET AL., PLAINTIFF-INTERVENORS,
v.
KEN SALAZAR, SECRETARY OF THE THE INTERIOR, AND U.S. FISH AND WILDLIFE SERVICE, DEFENDANTS.



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

MEMORANDUM OPINION

This case arises from a critical habitat designation and recovery plan that defendant U.S. Fish and Wildlife Service (the "FWS") promulgated with respect to the threatened northern spotted owl in 2008. Plaintiffs Carpenters Industrial Council, American Forest Resource Council, Swanson Group, Inc., Rough & Ready Lumber Co., Perpetua Forests Company, and Seneca Jones Timber Company (collectively, the "CIC plaintiffs") contend that the FWS's final rule on the Revised Designation of Critical Habitat for the Northern Spotted Owl, 73 Fed. Reg. 47326 (the "2008 Critical Habitat Designation"), was arbitrary and capricious and rendered in violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 553. Plaintiff-intervenors Seattle Audubon Society, National Center for Conservation Science and Policy, Oregon Wild, KlamathSiskiyou Wildlands Center, Wilderness Society, Sierra Club, Center for Biological Diversity, Environmental Protection Information Center, Conservation Northwest, Audubon Society of Portland, National Audubon Society, Cascadia Wildlands Project, Klamath Forest Alliance, Conservation Congress, American Bird Conservancy, Umpqua Watersheds, and Gifford-Pinchot Task Force (collectively, the "Seattle Audubon plaintiff-intervenors"), challenge the federal defendants' 2008 Critical Habitat Designation as well as the 2008 Recovery Plan for the Northern Spotted Owl (the "2008 Recovery Plan") pursuant to the ESA and the APA.

Pending before the Court is the federal defendants' motion for voluntary remand and vacatur. In their motion, the federal defendants confess legal error as to the 2008 Critical Habitat Designation and the 2008 Recovery Plan, and ask the Court to:

(i) remand and vacate the 2008 Critical Habitat Designation; (ii) remand the 2008 Recovery Plan; and (iii) order the FWS, after issuance of a revised recovery plan, to evaluate whether revision of the 1992 Critical Habitat Designation is appropriate, and if so, to complete rulemaking for a new critical habitat designation after issuance of a revised recovery plan. Fed.

Defs.' Mot. at 1-2. The Seattle Audubon plaintiff-intervenors consent to the requested relief and ask the Court to enter the proposed order submitted by the federal defendants, see generally Seattle Audubon Mot.,*fn1 while the CIC plaintiffs oppose the requested relief and urge the Court to enter a briefing schedule on cross-motions for summary judgment, see CIC Opp'n Br. at 32. Upon consideration of the motions, the response, the replies and sur-replies thereto, the applicable law, the parties' arguments at the January 20, 2010 hearing, and all post-argument briefs, the Court GRANTS IN PART AND DENIES IN PART the federal defendants' motion for remand and vacatur. As discussed below, the Court GRANTS the federal defendants' request to remand the 2008 Critical Habitat Designation and 2008 Recovery Plan, and DENIES the federal defendants' request to vacate the 2008 Critical Habitat Designation.

I. BACKGROUND

The northern spotted owl is a medium-sized nocturnal bird that inhabits old-growth forests of western North America, including parts of northern California, the Pacific Northwest, and British Columbia. CIC Am. Compl. ¶ 15; Seattle Audubon Compl. ¶ 28. Due to concerns regarding the widespread loss and modification of the owls' habitat, on June 26, 1990, the FWS published a final rule listing the northern spotted owl as a "threatened species" under the ESA. CIC Am. Compl. ¶ 16 (citing 55 Fed. Reg. 26114); Seattle Audubon Compl. ¶ 34.*fn2 The final listing rule indicated that the northern spotted owl is threatened throughout its range "'by the loss and adverse modification of suitable habitat as the result of timber harvesting and exacerbated by catastrophic events such as fire, volcanic eruptions, and wind storms.'" Seattle Audubon Compl. ¶ 31 (quoting 55 Fed. Reg. 26151). Consequently, on January 15, 1992, the FWS designated 6,887,000 acres in California, Oregon, and Washington as critical habitat for the northern spotted owl (the "1992 Critical Habitat Designation"). CIC Am. Compl. ¶ 20; Seattle Audubon Compl. ¶ 37.*fn3

While no recovery plan was immediately developed for the owl, on April 13, 1994, the Secretary of Agriculture and the Secretary of Interior developed a land management plan for the owl referred to as the "Northwest Forest Plan." CIC Am. Compl. ¶ 22; Seattle Audubon Compl. ¶¶ 38-39. After determining that the Northwest Forest Plan provided a sound framework for the recovery of the owl, the FWS suspended the northern spotted owl recovery plan preparation process. See also Seattle Audubon Compl. ¶ 39 (explaining that the Northwest Forest Plan did not satisfy the ESA's criteria for a recovery plan).*fn4

In May 2006 - nearly sixteen years after the northern spotted owl was listed as a threatened species - the FWS assembled a recovery team (the "Recovery Team") which began to devise a recovery plan for the owl. Seattle Audubon Compl. ¶ 45.*fn5 In September 2006, the Recovery Team forwarded its draft recovery plan to FWS's Washington, D.C. headquarters for review by an oversight committee (the "Washington Oversight Committee"). Seattle Audubon Compl. ¶ 47. One member of the Washington Oversight Committee was Former Deputy Assistant Secretary Julie MacDonald ("Deputy Assistant Secretary MacDonald"). Seattle Audubon Compl. ¶ 47. The Washington Oversight Committee informed the Recovery Team that it was concerned that the draft recovery plan was based on the Northwest Forest Plan and purportedly advised the team to (i) "put less focus on habitat preservation and to de-link the recovery plan from the Northwest Forest Plan"; (ii) "include a second alternative that did not rely on fixed habitat reserves"; and (iii) "minimize the threat to northern spotted owls from the loss of habitat and emphasize the threat from barred owls." Seattle Audubon Compl. ¶ 48; see also Seattle Audubon Ex. A, Docket No. 45-2, Investigative Report: The Endangered Species Act and the Conflict between Science and Policy at 27-28.

Based on the guidance issued by the Washington Oversight Committee, significant revisions were made to the initial draft recovery plan. A revised draft recovery plan was published on April 26, 2007 (the "2007 Draft Recovery Plan"), Seattle Audubon Compl. ¶ 52, and the final recovery plan for the owls was issued on May 13, 2008 (the "2008 Recovery Plan"), Seattle Audubon Compl. ¶ 58.

Following issuance of the 2008 Recovery Plan, on August 13, 2008, the 1992 Critical Habitat Designation was replaced by the 2008 Critical Habitat Designation. Seattle Audubon Compl. ¶ 68. The 2008 Critical Habitat Designation, which was based on both the 2007 Draft Recovery Plan and the final 2008 Recovery Plan, see 73 Fed. Reg. 47,328,*fn6 reduced designated northern spotted owl habitat by approximately 1,574,000 acres, Seattle Audubon Compl. ¶ 68.

Displeased with the 2008 Critical Habitat Designation, on August 13, 2008, the CIC plaintiffs filed the instant action alleging that the 2008 Critical Habitat Designation violates NEPA, ESA, and the APA. The CIC plaintiffs seek declaratory and injunctive relief, and ask the Court for "a limited remand without vacatur [of the 2008 Critical Habitat Designation] to address the specific legal inadequacies presented in their complaint." CIC Opp'n Br. at 8.

On November 14, 2008, fourteen environmental conservation groups sought leave to intervene in the action, which this Court granted on February 18, 2009. Pursuant to the ESA and the APA, the Seattle Audubon plaintiff-intervenors challenge the FWS's issuance of the 2008 Critical Habitat Designation as well as the 2008 Recovery Plan. Plaintiff-intervenors seek declaratory and injunctive relief, and ask the Court to remand the 2008 Critical Habitat Designation and the 2008 Recovery Plan and reinstate the original 1992 Critical Habitat Designation.

On December 22, 2008, the federal defendants notified the Court that the Inspector General of the Department of Interior had issued an Investigative Report entitled "The Endangered Species Act and the Conflict Between Science and Policy" (hereinafter, the "IG's Report"), which examined the influence of Deputy Assistant Secretary MacDonald on twenty ESA decisions and actions, including the recovery plan for the northern spotted owl. See Notice, Docket No. 22. The IG's Report concludes that Deputy Assistant Secretary MacDonald, acting alone or in concert with other Department officials, took actions that "potentially jeopardized" the decisional process for the recovery plan of the owl. See generally Seattle Audubon Ex. A, Docket No. 45-2 (Letter from Inspector General Earl E. Devaney to former Secretary of the Interior Dirk A. Kempthorne, dated Dec. 15, 2008, and the attached IG's Report). In their notice, the federal defendants advised the Court that it needed to review the IG's Report and the administrative record for the 2008 Recovery Plan and the 2008 Critical Habitat Designation "to determine whether to continue this litigation, amend their litigation posture, or pursue further administrative action with ...


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