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Defenders of Wildlife, et al v. Kenneth Salazar

February 6, 2012

DEFENDERS OF WILDLIFE, ET AL., PLAINTIFFS,
v.
KENNETH SALAZAR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

On September 29, 2006, the Court issued a Memorandum Order, Defenders of Wildlife v. Kempthorne, No. 04-1230 (GK), 2006 WL 2844232 (D.D.C. Sept. 29, 2006) ("Lynx IV") [Dkt. No. 59], which, among other things, upheld a Final Rule issued December 8, 2003, adopting the Joint Counterpart Endangered Species Act Section 7 Consultation Regulations for National Fire Plan Projects ("Counterpart Regulations" or "the Regulations"). See 68 Fed. Reg. 68254 (Dec. 8, 2003).

Plaintiffs filed a timely Motion for Partial Reconsideration [Dkt. No. 61], Federal Defendants and Defendant Intervenor filed Oppositions [Dkt. Nos. 62 and 63], and Plaintiffs thereafter filed a Reply [Dkt. No. 64]. On June 27, 2007, Defendant-Intervenor filed a Notification of Supplemental Authority [Dkt. No. 66], to which Plaintiffs filed a Response [Dkt. No. 67]. In February of 2011, Plaintiffs filed a Notice of Recent Authority [Dkt. No. 98] supporting their Motion for Partial Reconsideration and, on November 1, 2011, they filed yet another Notice of Supplemental Authority [Dkt. No. 99] in support of their Motion for Partial Reconsideration. As to the latter filing, the Federal Defendants filed a Response [Dkt. No. 100], and, on December 2, 2011, Plaintiffs filed a Reply [Dkt. No. 101].

Upon consideration of the many briefs filed, the most recent relevant case law, and the entire record in this case, the Court concludes that Plaintiffs' Motion for Partial Reconsideration should be granted for the following reasons.*fn1

1. The Government argues that Plaintiffs have failed to satisfy the rigorous standard for deciding motions for reconsideration under Fed. R. Civ. P. 59(e). Defendants are correct that motions pursuant to Rule 59(e) are rarely granted and should not be "simply an opportunity to reargue facts and theories upon which a court has already ruled." State of New York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995). It is well established that the justifications for granting a motion for reconsideration are "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal citations and quotations omitted).

In this instance, Plaintiffs have satisfied the Rule 59(e) standard, rigorous as it is, because there is a "need to correct a clear error." In its decision of 2006, rejecting Plaintiffs' APA challenge to the Counterpart Regulations, the Court relied upon what it believed to be the Government's justification for their adoption. Defenders of Wildlife, 2006 WL 2844232, at *20. That justification, which was in fact contained in the original Proposed Rule, stated that the pre-existing Section 7 consultation process required extensive and time-consuming interagency consultation and that the proposed procedures would "reduce delays" on fire management projects and would, according to the Government, allow Action Agencies to "accelerate the rate at which these types of activities can be implemented so that the likelihood of catastrophic wildland fires is reduced" while also meeting their statutory duties under the Endangered Species Act. 68 Fed. Reg. 33806, 33807 (June 5, 2003). The Proposed Rule indicated that the "concurrence process for [NFP] projects has . . . caused delays. The proposed counterpart regulations will effectively reduce these delays. . . ." Id. at 33808. Based on this rationale provided in the Proposed Rule, the Court concluded that the Regulations were not arbitrary or capricious and therefore did not violate the APA. Defenders of Wildlife, 2006 WL 2844232, at *20.

The Court erred in this regard. Not only is the initial rationale contained in the Proposed Rule not supported by the evidence in the record, see infra, but the Government argues that this rationale was not the rationale actually relied upon by the Department of Interior in its final adoption of the Counterpart Regulations. As Federal Defendants stated in their Opposition to the Plaintiffs' Motion, "the final rule simply does not rely upon past delays as a justification for the counterpart regulation." Fed. Defs.' Opp'n to Pls.' Mot. for Recons. 5. Indeed, the Plaintiffs themselves concede that if this was the actual rationale and it was supported by evidence in the Administrative Record, it would properly survive an "arbitrary and capricious" challenge. Pls.' Mot. for Partial Recons. 10 ("Pls.' Mot. for Reconsideration").

Since the Court based its "arbitrary and capricious" ruling on the Defendants' initial position that past delays on NFP projects justified the Proposed Rule, when in fact Defendants' ultimate justification was "to proactively reduce . . . anticipated delays," 68 Fed. Reg. at 68257, the Court committed "clear error" and must now consider Plaintiffs' APA challenge to the reasonableness of the actual rationale upon which the Government based its adoption of the Regulations.

2. As already discussed, Defendants first relied in their proposed Rule on the rationale that the pre-existing Section 7 consultation process caused delays which interfered with the review of projects under the National Fire Plan and treatment of forest areas that were at risk of catching fire. 68 Fed. Reg. at 33807.

The rationale offered in the final adoption of the Regulations, and in all the Government's briefs, is that:

With the anticipated increase in fire plan projects, the concurrence process could cause delays. These counterpart regulations are being implemented to proactively reduce these anticipated delays and to increase the Services' capability to focus on Federal actions requiring formal consultation by eliminating the requirement to provide written concurrence for [NLAA Actions]. . . .

68 Fed. Reg. at 68257 (emphasis added); see Govt's Opp. to Pls.' Mot. for Recons.

As it turned out, however, and as the agency itself has realized (albeit recently), there is no evidence to support either of two the rationales proffered in the Regulations. There is simply no evidence in the record that the Section 7 consultation process actually resulted in any delay to any National Fire Plan project. The Government itself seemed to recognize that fact in its final Rule when it said that "the issue is not whether the regulatory process has delayed NFP projects, but rather whether it can be streamlined so as to expedite the projects." 68 Fed. Reg. at 68258.*fn2

Moreover, there is undisputed evidence in the record that the pre-existing consultation procedures had, in the very recent past, been streamlined so as to expedite the processing of NFP projects without sacrificing the safeguards contained in those procedures. FWS CR. A.R., Vol. 10, at 51.*fn3 Indeed, a number of Regional Directors at FWS believed that the Service had "successfully streamlined, and expedited fire-related consultation while allowing the Service to continue its assistance to agencies implementing these projects" and that the Service and Action Agencies had already adopted "formalized streamlined consultation procedures" that ...


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