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Sierra Club v. United States Fish & Wildlife Serv.

United States District Court, District of Columbia

March 19, 2013

SIERRA CLUB, Plaintiff,
v.
UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants

For SIERRA CLUB, Plaintiff: Craig Holt Segall, LEAD ATTORNEY, SIERRA CLUB, Washington, DC.

For UNITED STATES FISH AND WILDLIFE SERVICE, UNITED STATES DEPARTMENT OF INTERIOR, KENNETH LEE SALAZAR, Secretary, in his official capacity, DAN ASHE, Director, in his official capacity, Defendants: John B. Grosko, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT AND NATURAL RESOURCE, Washignton, DC.

OPINION

Page 199

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

MEMORANDUM OPINION

Plaintiff Sierra Club filed suit under the Administrative Procedures Act, 5 U.S.C. § § 701 et seq., against Defendants the United States Fish and Wildlife Service, Director Dan Ashe in his official capacity, the Department of Interior, and Secretary Kenneth Salazar, also in his official capacity (collectively, " Defendants" or " Fish and Wildlife Service" ). Sierra Club alleges the Defendants' response to Sierra Club's petition to revise the critical habitat for the leatherback sea turtle ( Dermochelys coriacea ) was arbitrary and capricious, and that the Defendants have unlawfully delayed in designating the Northeastern Ecological Corridor of Puerto Rico as critical habitat for leatherback turtles. The parties' cross-motions for summary judgment are fully briefed and ripe for determination. Upon consideration of the pleadings, [1] the Administrative Record, and the relevant legal authorities, the Court finds the Service's 12-month determination as to how to proceed in response to a petition to revise critical habitat is committed to agency discretion by law and thus unreviewable under the Administrative Procedures Act. Accordingly, the Plaintiff's Motion for Summary Judgment is DENIED and the Defendants' Cross-Motion for Summary Judgment is GRANTED.

I. BACKGROUND

A. Endangered Species Act

Congress enacted the Endangered Species Act (" the Act" ) in 1973 in order to " provide a means whereby the ecosystems upon which endangered species and

Page 200

threatened species depend may be conserved." 16 U.S.C. § 1531(b). To that end, the Secretaries of Commerce and the Interior are empowered to designate species as threatened or endangered. See generally id. at § 1533. A species is " endangered" if it " is in danger of extinction throughout all or a significant portion of its range." Id. at § 1532(6). A species is " threatened" if it " is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. at § 1532(20).

Prior to 1978, the Secretary was not required to designate critical habitat for listed species. That year, Congress amended the Act to require the Secretary " to the maximum extent prudent, specify any habitat of such species which is then considered to be critical habitat." 16 U.S.C. § 1533(a)(3)(A). The Act defines " critical habitat" for both endangered and threatened species as " the specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical biological features" that are " essential to the conservation of the species," and " may require special management considerations or protection." Id. at § 1532(5)(A)(i); see also 50 C.F.R. § 424.12(b) (listing criteria to be considered in determining what physical and biological features are essential to the conservation of a particular species). The Secretary may also designate areas outside the geographical area occupied by the species " upon a determination by the Secretary that such areas are essential for the conservation of the species." 16 U.S.C. § 1532(5)(A)(ii);

The Secretary " may, from time-to-time thereafter as appropriate," revise the designation of critical habitat for a listed species. 16 U.S.C. § 1533(a)(3)(A). Additionally, any interested person may petition the Secretary to revise a critical habitat designation pursuant to the Administrative Procedures Act, 5 U.S.C. § 553(e). The Endangered Species Act provides that

To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 553(e) of Title 5, to revise a critical habitat designation, the Secretary shall make a finding as to whether the petition presents substantial scientific information indicating that the revision may be warranted. The Secretary shall promptly publish such finding in the Federal Register.

16 U.S.C. § 1533(b)(3)(D)(i); accord 50 C.F.R. § 424.14(c)(1). The " substantial scientific information" standard is satisfied if the petition presents the " amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted." 50 C.F.R. § 424.14(b)(1). In making this determination, the Secretary considers whether the petition contains

(i) Information indicating that areas petitioned to be added to critical habitat contain physical and biological features essential to, and that may require special management to provide for, the conservation of the species involved; or
(ii) Information indicating that areas designated as critical habitat do not contain resources essential to, or do not require special management to provide for, the conservation of the species involved.

Id. at § 424.14(c)(2). If the Secretary determines that a petition presents substantial information indicating that the requested revision may be warranted, " the Secretary shall determine how he intends to proceed with the requested revision, and shall promptly publish notice of such intention in the Federal Register." 16 U.S.C. § 1533(b)(3)(D)(ii); accord 50 C.F.R. § 424.14(c)(3).

Page 201

B. Leatherback Sea Turtles and Sierra Club's Petition

The leatherback sea turtle was initially listed as an endangered species in 1970 under the Endangered Species Conservation Act of 1969, the precursor to the Endangered Species Act. A.R. 4127 (90-Day Finding & 12-Month Determination on a Pet. To Revise Critical Habitat for the Leatherback Sea Turtle). In 1978, the Fish and Wildlife Service designated certain areas in the U.S. Virgin islands as critical habitat for the leatherback sea turtle. Id.; accord 50 C.F.R. § 17.95(c). The Fish and Wildlife Service subsequently designated additional areas within the U.S. Virgin Islands, California, Oregon, and Washington as critical habitats. A.R. 4127; 50 C.F.R. § 226.207.

On February 22, 2010, Sierra Club submitted a petition to the Fish and Wildlife Service, asking the Service and the National Marine Fisheries Service (" NMFS" ) to revise the critical habitat for the leatherback sea turtle " to include the beaches and nearby waters of the Northeast Ecological Corridor of Puerto Rico." A.R. 4019 (2/22/10 Pet. to Revise Critical Habitat for the Endangered Leatherback Sea Turtle). " The [Fish and Wildlife] Service has jurisdiction over sea turtles and their associated habitats when they are on land, while NMFS has jurisdiction over sea turtles and their associated habitats in the marine environment." A.R. 4128. Accordingly, the Fish and Wildlife Service and NMFS issued separate responses to the petition, addressing the portions of the petition that fall under their respective jurisdictions. Id. This case concerns only the Fish and Wildlife Service's response to the petition to revise the critical habitat for the leatherback sea turtle to include

the terrestrial portion of the area as identified in the petition as " [t]he coastline of the Northeast Ecological Corridor of Puerto Rico, running from Luquillo, Puerto Rico, to Fajardo, Puerto Rico, including the beaches known as San Miguel, Paulinas, and Convento, and extending at least .025 mile (132 feet) inland from the mean high tide line."

Id. (quoting A.R. 4022). For context, the Court refers to the response by NMFS to the petition as well as the Fish and Wildlife Service's response.

The Fish and Wildlife Service acknowledged receipt of the petition in a letter dated April 1, 2010. A.R. 0054. Three weeks later, Sierra Club submitted a letter from 36 non-profit organizations expressing their support for the petition. A.R. 0060-0106. Neither the Fish and Wildlife Service nor NMFS published the required 90-day findings in response to the petition, leading Sierra Club to submit a Notice of Intent to Sue to the agencies on June 2, 2010. A.R. 4069-4072. The NMFS published its 90-day finding in the Federal Register on July 16, 2010, finding that " the petition does not present substantial scientific information indicating that the petitioned action may be warranted for leatherback sea turtles and their habitat under our jurisdiction." A.R. 4073-4075; see also A.R. 4075 (" [T]he petitioner provided no information, nor is any available in the literature and other material readily available in our files, to prescribe some parameters of an open space feature off the Northeast Ecological Corridor that is essential to the leatherback sea turtle's conservation, thus there is not substantial scientific information indicating that habitat features may exist that meet the first two criteria of the definition of critical habitat." ).

In response to the 90-day finding by the NMFS, Sierra Club provided NMFS with a second, supplemental petition, providing additional data to support the requested revision of critical habitat. A.R. 4077-4099 (11/2/10 Suppl. Pet. to Revise Critical Habitat for the ...


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