The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Did the Secretary of the U.S. Department of the Interior appropriately exercise executive discretion when he failed to designate the area containing sub-population A of the Cape Sable seaside sparrow as critical habitat because the designation would most likely interfere with the Comprehensive Everglades Restoration Plan which will return more natural water flows to the Everglades? Balancing these competing interests is complex and difficult but the result is left to the Secretary, defendant Kenneth Salazar, and his designees. As long as his decision will not result in the extinction of the species, the Secretary has broad discretion. The Secretary insists that sub-population A will persist, albeit in far less area, and that the exclusion will not result in the extinction of the bird. Plaintiffs attack his reasoning and conclusions. In the end, it is a judgment call that the Secretary is empowered to make. As the Secretary has provided a rational basis for his determinations, summary judgment will be granted to the defendants.
A. The Endangered Species Act
The Endangered Species Act ("ESA") was enacted to conserve and protect endangered and threatened species and the ecosystems on which they depend. 16 U.S.C. § 1531(b) (2011). A species is endangered if it is "in danger of extinction throughout all or a significant portion of its range." Id. § 1532(6). The Secretary is responsible for non-marine species and administers the ESA through the U.S. Fish and Wildlife Service ("Service"), to which the Secretary has delegated authority to list animal species as either endangered or threatened. See id. §§ 1533(a), 1532(15). The determination of whether a species is endangered or threatened is to be made on the basis of the best available scientific and commercial data. Id. § 1533(b).
Concurrent with a final rule listing any species as endangered or threatened, the Service must, "to the maximum extent prudent and determinable," designate "critical habitat" for that species by final regulation. Id. § 1533(a)(3)(A). The Service designates critical habitat by rulemaking published in the Federal Register after opportunity for notice and comment. See 50 C.F.R. § 424.16 to .18 (2011). Following an initial designation, the Secretary "may, from time-to-time thereafter as appropriate, revise such designation." 16 U.S.C. § 1533(a)(3)(A)(ii). Critical habitat is defined in the ESA as:
(I) the specific areas within the geographical area occupied by the species, at the time it is listed [as endangered or threatened under the statute], on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the species at the time it is listed [as endangered or threatened under the statute], upon a determination by the Secretary that such areas are essential for the conservation of the species.
Id. § 1532(5)(A). The ESA defines conservation as "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary. Id. § 1532(3).
In determining what areas qualify as critical habitat, the "Secretary shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection." 50 C.F.R. § 424.12(b). These elements essential to the conservation of a species include but are not limited to: "(1) Space for individual and population growth, and for normal behavior; (2) Food, water, air, light, minerals, or other nutritional or physiological requirements; (3) Cover or shelter; and (4) Sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal." Id. In considering the designation of critical habitat, the Secretary is to "focus on the principal biological or physical constituent elements within the defined area that are essential to the conservation of the species." Id. Primary constituent elements shall be listed with the designation and may include, but are not limited to, the following: "roost sites, nesting grounds, . . . seasonal wetland or dryland, water quality or quantity, . . . geological formation, vegetation type, tide, and specific soil types." Id. Thus, not every area that qualifies as critical habitat will necessarily be designated as such.
Section 4 of the ESA guides the Secretary in the decision-making process of designating critical habitat for a species. In full, the provision reads:
The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) of this section on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.
The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such critical habitat will result in the extinction of the species concerned. 16 U.S.C. § 1533(b)(2). In other words, the ESA empowers the Secretary to exclude an area that would otherwise qualify as critical habitat if he finds the benefits of excluding the area are greater than the benefits of designating the area. Id. However, the Secretary's discretion to exclude critical habitat comes to an end when the failure to designate the area would result in the extinction of the species. Id.
The ESA provides an array of vital protections to listed species and their designated critical habitat. Relevant here, federally backed actions that "may affect" a listed species or its critical habitat invoke the consultation requirements of Section 7 of the ESA. See 50 C.F.R. § 402.14(a). When triggered, Section 7(a)(2) of the ESA requires that "[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2). Formal consultation culminates in a biological opinion from the Service, which determines whether the agency action would jeopardize the species or adversely modify its habitat. Id. § 1536(b). "If jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives" that the Secretary believes would avoid the jeopardy or adverse modification. Id. § 1536(b)(3)(A).
B. The Cape Sable Seaside Sparrow
This matter represents the continued involvement of the Court in the Service's efforts to protect the Cape Sable seaside sparrow (Ammodramus maritimus mirabilis) ("Sparrow"), which began in December of 2000 when essentially the same parties brought suit to, inter alia, force the Service to revise the Sparrow's critical habitat designation. See generally Biodiversity Legal Found. v. Norton, 285 F. Supp. 2d 1 (D.D.C. 2003). The Sparrow is endangered and first received federal protection when it was determined to be "threatened with extinction" on March 11, 1967. Critical Habitat Designation for the Cape Sable Seaside Sparrow: Proposed Rule, 71 Fed. Reg. 63,980 (proposed Oct. 31, 2006) [AR Doc. 308] ("Proposed Rule") at 63,984.*fn1 The Sparrow is restricted to areas in and around the southern tip of the Everglades in Florida.
The Sparrow exists in six distinct sub-populations which live in six spatially distinct regions. See Proposed Rule at 63,982. The sub-populations are separated by areas of unsuitable habitat, and although the distances between them range from only two to twenty miles, the birds rarely move between these regions. The flocks are referred to as Sparrow sub-populations A through F. Id. Sub-population A ("Sub A") is located west of the Shark River Slough-a free-flowing channel of water serving as the southern Everglades' primary drainage point into the Florida Bay-while the other sub-populations are all farther east, on the other side of the Shark River Slough. The habitat of Sub A falls within and adjacent to the western portion of Everglades National Park and the southeastern corner of Big Cypress National Preserve.
Sub A is considered critically important to the species as a whole due to its location and separation from the other sub-populations. The detachment of Sub A "might provide the species with a measure of protection against extinction if some calamity were to wipe out the other five sub-populations." Miccosukee Tribe of Indians v. United States, 566 F.3d 1257, 1262 (11th Cir. 2009). Although Sub A was one of the largest flocks in 1992, its numbers then declined and have remained relatively low ever since. See Biological Opinion on Proposed Continuation of the Interim Operational Plan, U.S. Fish and Wildlife Service (Nov. 17, 2006) [AR Doc. 90] ("2006 BiOp") at 28--29 (estimating Sub A at 2,608 birds in 1992, to a low of 16 birds in 2004, 96 birds in 2005, and 112 birds in 2006). The cumulative Sparrow population in 2006 was estimated at 3,088 birds. Id.
The generally sedentary and non-migratory Sparrow has particular habitat requirements which limit its distribution, further complicated by the fact its preferred habitat has been diminished by natural and man-made occurrences. See, e.g., Biodiversity Legal Found., 285 F. Supp. 2d at 4--5 (noting how hurricanes in 1935 and 1960 and man-made changes to the hydrology of the Everglades have altered the Sparrow's habitat and occurrence); see also South Florida Multi-Species Recovery Plan, U.S. Fish & Wildlife Service (May 18, 1999) [AR Doc. 69] ("Recovery Plan") at 4-346 to -348. The Sparrow's "distribution is limited to the short-hydroperiod wetlands at the downstream end of the greater Everglades system on the southern tip of mainland Florida." Proposed Rule at 63,981. The birds predominately occur in freshwater wet prairies known as "marl prairies." Id. The prairies indulge the Sparrows with areas of clumped grasses with open space allowing the birds to move on the ground and build nests in the grasses, at approximately fourteen to eighteen centimeters off the ground. See Recovery Plan at 4-347, 4-350.
Under prior natural hydrologic conditions in the Everglades, before the implementation of manmade water controls, water from Lake Okeechobee flowed southward through the Everglades and spilled into Florida Bay, the flow volume depending on the seasonal rains. As the seasonal rains flowed southward, the Shark River Slough would overflow into the surrounding marl prairies leaving them flooded for three to seven months of the year.*fn2 The timing and extent of marl prairie flooding is now heavily regulated. See John L. Curnutt, et al., Population Dynamics of the Endangered Cape Sable seaside-sparrow, 1 Animal Conservation 11 (1998) [AR Doc. 65] at 12.
The Sparrow's breeding season correlates with the dry season when most areas of the marl prairie are either dry or only covered by shallow water. Proposed Rule at 63,981--82. As water levels begin to rise, commonly in the summer months, nesting becomes significantly more likely to fail as the nests become more detectable to predators or are flooded by the rising waters. Id. at 63,982. The end of breeding season overlaps the summer rains, as the birds are not prone to initiate nesting if water levels reach a depth greater than ten centimeters. Recovery Plan at 4-350. Due to its habitat requirements, the Sparrow avoids areas with permanent water cover or long-hydroperiod wetlands. Due to this, the hydrology of an area is a crucial component to the Sparrow's survival.
See Proposed Rule at 63,983.*fn3
C. Critical Habitat Designation & Prior Litigation
The Service initially designated critical habitat for the Sparrow on August 11, 1977, which was corrected on September 22, 1977. Proposed Rule at 63,984. The Service released a first recovery plan for the Sparrow in April 1983. Id. In February 1999, the Service found that certain water projects implemented by the Army Corps of Engineers would jeopardize the Sparrow if continued and thus required the implementation of reasonable and prudent alternatives. See generally Biological Opinion on Modified Water Deliveries to Everglades National Park, Experimental Water Deliveries Program, and the Canal 111 Project, U.S. Fish and Wildlife Service (Feb. 19, 1999) [AR Doc. 68]. A revised Recovery Plan for the Sparrow was then issued in May 1999. Proposed Rule at 63,984; see generally Recovery Plan. The Service's goal is to reclassify the Sparrow from endangered to threatened:
This objective will be achieved: if the loss of functional Cape Sable seaside sparrow habitat, as a result of current and past water management practices, and the invasion of woody and exotic plant species, is eliminated; if Cape Sable seaside sparrow habitat west of Shark River Slough and in Taylor Slough, which has been degraded by current and past water management practices, is restored . . .
Recovery Plan at 4-363. To accomplish this goal, the 1999 Recovery Plan concluded that, among other actions, the Service needed to "[r]review and revise the current critical habitat designation based on distribution surveys." Recovery Plan at 4-364 (emphasis omitted). The Service stated that "[c]ritical habitat should, at minimum, include habitat west of Shark River Slough that supports one of the two core subpopulations." Id. The Service recognized that protection of the area where Sub A occurs was necessary to the Sparrow's survival but also advocated for the restoration of natural water flows. "Existing short-hydroperiod marl prairie must be protected and enhanced for Cape Sable seaside sparrows if the population is to survive." Id. "Current water management practices must be changed to restore more natural timing, volume, and placement of water flows." Id.
Thereafter, Biodiversity Legal Foundation, predecessor to plaintiff Center for Biological Diversity, filed a citizen petition with the Service requesting that a revision of the Sparrow's critical habitat be performed. On July 20, 2000, the Service published a 90-day finding in which it determined that the petition presented substantial information indicating a revision may be warranted. Id. On December 20, 2000, Biodiversity Legal Foundation and other plaintiffs filed suit in the United States District Court for the District of Columbia to compel the Service to proceed with the revision to the Sparrow's critical habitat. See Proposed Rule at 63,984; see also Biodiversity Legal Found., 285 F. Supp. 2d at 2. As pertinent here, on September 30, 2003, this Court concluded that the Service had not violated the Administrative Procedure Act's prohibition against unreasonable delay in failing to revise the Sparrow's critical habitat, however the Court ordered the Service to submit a schedule by which it would begin work on a critical habitat revision and to provide an estimate of how long the process would take. Biodiversity Legal Found., 285 F. Supp. 2d at 16--17; see also Proposed Rule at 63,984.
The Service met its deadline and published the Proposed Rule in the
Federal Register on October 31, 2006. The Proposed Rule encompassed
seven critical habitat units, comprising approximately 156,350 acres
of land. See Proposed Rule at 63,990--93. Units 1 and 2,
amounting to approximately 71,290 acres, were the only proposed habitat west of
the Shark River Slough and the only units to support Sub A.*fn4
Id. at 63,990--91; see also id. at 64,000, 64,002 (map 1 and
2 of proposed units). After the period of public comment, the Service
published the Final Rule on November 6, 2007, formally revising the
Sparrow's designated critical habitat. See Critical Habitat Revised
Designation for the Cape Sable Seaside Sparrow: Final Rule, 72 Fed.
Reg. 62,736 (Nov. 6, 2007) [AR Doc. 627] ("Final Rule"). In the Final
Rule, the Secretary excluded Units 1 and 2 from the designation, thus
no area west of the Shark River Slough where Sub A occurs is
designated critical habitat. Id. at 62,750--51.
D. Comprehensive Everglades Restoration Plan
Within the last century the Everglades has endured an unrelenting encroachment as man pushed back its reach and subjugated its natural flow. The ...