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American Forest Resource Council v. Ashe

United States District Court, District of Columbia

March 30, 2013

AMERICAN FOREST RESOURCE COUNCIL, CARPENTERS INDUSTRIAL COUNCIL, and DOUGLAS COUNTY, OREGON, Plaintiffs,
v.
DANIEL M. ASHE, Director, U.S. Fish and Wildlife Service, and KEN SALAZAR, Secretary of the Interior, Defendants, and AUDUBON SOCIETY OF PORTLAND, SEATTLE AUDUBON SOCIETY, CENTER FOR BIOLOGICAL DIVERSITY, OREGON WILD, CONSERVATION NORTHWEST, ENVIRONMENTAL PROTECTION INFORMATION CENTER, and SIERRA CLUB, Defendant-Intervenors

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[Copyrighted Material Omitted]

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For AMERICAN FOREST RESOURCE COUNCIL, CARPENTERS INDUSTRIAL COUNCIL, DOUGLAS COUNTY, OREGON, Plaintiffs: Mark C. Rutzick, LEAD ATTORNEY, MARK C. RUTZICK, INCORPORATED, Oak Hill, VA.

For DANIEL M. ASHE, Director, U.S. Fish and Wildlife Service, KENNETH LEE SALAZAR, Secretary of Interior, Defendants: Meredith L. Flax, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, DC.

For AUDOBON SOCIETY OF PORTLAND, SEATTLE AUDOBON SOCIETY, CENTER FOR BIOLOGICAL DIVERSITY, OREGON WILD, CONSERVATION NORTHWEST, ENVIRONMENTAL PROTECTION INFORMATION CENTER, SIERRA CLUB, Intervenor Defendants: Patti A. Goldman, LEAD ATTORNEY, EARTHJUSTICE, Seattle, WA; Amanda W. Goodin, PRO HAC VICE, EARTHJUSTICE, Seattle, WA; Kristen L. Boyles, PRO HAC VICE, EARTHJUSTICE LEGAL DEFENSE FUND, Seattle, WA.

OPINION

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MEMORANDUM OPINION

JOHN D. BATES, United States District Judge.

Plaintiffs American Forest Resource Council, Carpenters Industrial Council, and Douglas County, Oregon (collectively, " AFRC" ) bring this action for declaratory and injunctive relief against defendants Daniel M. Ashe, Director of the U.S. Fish and Wildlife Service, and Ken Salazar, Secretary of the Interior (collectively, " FWS" ). AFRC alleges that FWS violated the Endangered Species Act, 16 U.S.C. § § 1531 et seq., and the Administrative Procedure Act, 5 U.S.C. § § 551 et seq., in its listing and critical habitat decisions concerning the marbled murrelet, a small Pacific seabird. In three of its seven claims for relief, AFRC challenges FWS's determination that removing the Washington, Oregon, and California population of the murrelet from the Endangered Species Act list of threatened species was not warranted. AFRC has moved for summary judgment on these three claims. AFRC's other four claims challenge FWS's designation of critical habitat for the murrelet.

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As to these claims, AFRC and FWS ask the Court to enter a proposed consent decree, pursuant to which the murrelet critical habitat designation would be vacated and FWS would issue a revised critical habitat designation by September 2018. Intervenors, a group of conservation organizations, oppose both AFRC's summary judgment motion and the entry of the proposed consent decree. For the reasons stated below, AFRC's motion for summary judgment will be granted in part and denied in part, and the joint motion for entry of a consent decree will be denied.

BACKGROUND

I. Statutory and Regulatory Background

The Endangered Species Act (" ESA" or " Act" ) is " the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). It is intended " to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b).

The ESA directs the Secretary of the Interior (" the Secretary" ), who acts through FWS, to list species that he determines are endangered or threatened. See id. § 1533(a); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1064, 355 U.S.App. D.C. 303 (D.C. Cir. 2003); 50 C.F.R. § 402.01. An " endangered species" is one that is " in danger of extinction throughout all or a significant portion of its range" ; a " threatened species" is one that is " likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(6), (20).

The term " species" includes " any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16). The term " distinct population segment" (" DPS" ) is not defined in the ESA, but has been interpreted in a 1996 joint policy issued by FWS and the National Marine Fisheries Service (" NMFS" ). See Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (" DPS Policy" ), 61 Fed. Reg. 4722 (Feb. 7, 1996); see also Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1145 (9th Cir. 2007) (holding that " the DPS Policy is a reasonable construction of 'distinct population segment'" ). The DPS Policy identifies three elements to be considered in deciding whether a DPS exists: (1) the discreteness of the population segment in relation to the remainder of its species; (2) the significance of the population segment to its species; and (3) the population segment's conservation status in relation to the ESA's listing standards. See 61 Fed. Reg. at 4725.

An interested party may file a petition to list or delist a species. See 16 U.S.C. § 1533(b)(3). Within 90 days of receiving such a petition, FWS must, to the extent practicable, " make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted" and publish this finding in the Federal Register. Id. § 1533(b)(3)(A). FWS then has one year to conduct a status review to determine whether the petitioned action is warranted, not warranted, or warranted but precluded. Id. § 1533(b)(3)(B).

The ESA also directs the Secretary to designate certain geographical areas as " critical habitat." See 16 U.S.C. § 1533(c). Critical habitat is defined as:

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(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, 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 in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.

Id. § 1532(5)(A). Physical and biological features that are essential to the conservation of a species and that may require special management considerations or protection are known as " primary constituent elements" or " PCEs." See 50 C.F.R. § 424.12(b).

Critical habitat designations must be made " 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." Id. § 1533(b)(2). Under section 4(b)(2) of the Act, FWS " may exclude any area from critical habitat if [it] determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat," unless it determines that " the failure to designate such area as critical habitat will result in the extinction of the species concerned." Id.

Once a species is listed under the ESA, it gains the benefit of a host of protective measures. Prominent among these is what is known as the section 7 consultation requirement. Under section 7(a)(2) of the Act, every federal agency is required to ensure that any action it authorizes, funds, or carries out " is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species." 16 U.S.C. § 1536(a)(2). Also, the ESA prohibits the " take" of any listed species. Id. § 1538(a)(1); 50 C.F.R. § 17.31(a). The term " take" means " to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(9).

II. Factual and Procedural Background

The marbled murrelet is a small, diving seabird that inhabits the waters along the Pacific coast of North America and nests primarily in old-growth forests near the coast. AR 6747. The murrelet's range is from central California to the Aleutian Islands of Alaska. Id. at 6748. Marbled murrelets have been recognized as comprising three genetic units: (1) the western and central Aleutian Islands, (2) the eastern Aleutian Islands to northern California, and (3) central California. Id. at 7, 6789. Murrelets face threats from the logging of old-growth nesting habitat and other sources and are declining throughout their range. Id. at 6885, 8415.

FWS listed the Washington, Oregon, and California (" tri-state" ) population of the marbled murrelet as a threatened species in 1992. 57 Fed. Reg. 45,328 (Oct. 1, 1992). At that time, FWS deemed the tri-state population of the murrelet " to constitute a distinct population segment comprising a significant portion of the eastern Pacific subspecies of the marbled murrelet." Id. at 45,330. But in the final rule listing the murrelet FWS noted: " [S]ome question remains whether the population listed in this rule qualifies for protection under the Act's definition of 'species.'" Id. FWS did not designate critical habitat

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for the murrelet at that time, stating that it " lack[ed] sufficient information to perform required analyses of the impacts of a critical habitat designation." Id. at 45,336.

In 1994 FWS published a proposed rule for the designation of murrelet critical habitat. 59 Fed. Reg. 3811 (Jan. 27, 1994). After receiving public comments, FWS issued a final designation of critical habitat on May 24, 1996; it designated 3,887,800 acres of federal and non-federal lands in Washington, Oregon, and California as critical habitat for the murrelet. 61 Fed. Reg. 26,256 (May 24, 1996).

In March 2002, AFRC and three of its members filed suit in the District of Oregon, seeking to compel FWS to conduct a five-year status review of the murrelet DPS and challenging the 1996 critical habitat designation. See Am. Forest Res. Council v. Dep't of Interior (" AFRC I" ), No. 02-6087 (D. Or.). The parties subsequently entered into a settlement agreement, pursuant to which FWS agreed to do a five-year status review and initiate a rulemaking to consider potential revisions to the murrelet critical habitat designation.

FWS completed the five-year status review in 2004, and in it concluded that the tri-state population of the murrelet remained threatened. See AR 8388. However, FWS also concluded that the tri-state population did not qualify as a DPS under the DPS Policy because the tri-state population was " not discrete." Id. at 8382. Despite this conclusion, FWS said that there would be no change to the species' threatened status, at least not until after the completion of a " range-wide" status review. Id. at 8395. AFRC subsequently filed suit in this Court challenging FWS's five-year status review, including its decision not to change the murrelet's listing status. See Am. Forest Res. Council v. Hall (" AFRC II" ), 533 F.Supp.2d 84 (D.D.C. 2008). This Court held that FWS's five-year status review was not judicially reviewable final agency action. See id. at 93-94.

Following this Court's decision, plaintiffs in the present case, who represent the forest products industry, petitioned FWS to delist the tri-state population of the murrelet. See AR 2726-36. [1] Relying primarily on the 2004 status review's conclusion that the tri-state population of the murrelet was not discrete, they argued that the listed DPS could not lawfully remain listed under the ESA. See AR 2731, 2736. In light of the agency's 2004 conclusion and the fact that it had not been formally revisited since that time, FWS found that the delisting petition presented " substantial information" indicating that the tri-state population of the murrelet " may not be discrete, and therefore may not meet the criteria for a DPS" ; hence, it found that delisting " may be warranted." 73 Fed. Reg. 57,314, 57,316-17 (Oct. 2, 2008); see also 16 U.S.C. § 1533(b)(3)(A). FWS noted, moreover, that it " now believe[d] that the discreteness analysis in the [2004] 5-year review was flawed." Id. at 57,317. The agency said that it would conduct another five-year status review and, once that was completed, make a finding on whether delisting the tri-state population of the murrelet was warranted. Id. FWS also stated its intent to " review the rangewide status of the species, and if necessary, the configuration and status of any distinct population segments." Id. at 57,314.

FWS completed its second five-year status review in June 2009, concluding that the tri-state population of the murrelet was in fact " discrete," was " significant," and hence was a valid DPS under the 1996

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DPS Policy. See AR 8410. Accordingly, FWS determined that delisting the murrelet was " not warranted." See 75 Fed. Reg. 3424 (Jan. 21, 2010). It is this " not warranted" decision that AFRC challenges in its first three claims for relief in this case.

In September 2006, FWS published and sought comment on a proposed rule to revise the 1996 critical habitat designation " in response to [the 2003] settlement agreement." See 71 Fed. Reg. 53,838, 53,838 (Sept. 12, 2006). The agency proposed to designate 3,590,642 acres as critical habitat for the murrelet, but to exclude 3,368,950 of those acres under section 4(b)(2) of the ESA. Id. If adopted in its entirety, the proposed rule would have resulted in a designation of 221,692 acres in total. Id.

In March 2008, FWS published a notice stating that the critical habitat designation for the murrelet should not be revised " [d]ue to uncertainties regarding Bureau of Land Management (BLM) revisions to its District Resource Management Plans in western Oregon." 73 Fed. Reg. 12,067, 12,067 (Mar. 6, 2008). In July of that year, FWS published another proposed rule to revise critical habitat for the murrelet, this time by removing about 254,070 acres in California and Oregon. 73 Fed. Reg. 44,678 (July 31, 2008). In October 2011, FWS published a final rule removing about 189,671 acres in northern California and southern Oregon from the 1996 designation. 76 Fed. Reg. 61, 599 (Oct. 5, 2011).

AFRC filed suit in this Court in January 2012. See Compl. [ECF 1].

STANDARDS OF REVIEW

I. APA Review

Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate when the pleadings and the evidence demonstrate that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In a case involving review of final agency action under the Administrative Procedure Act (" APA" ), however, the standard set forth in Rule 56(a) does not apply because of the limited role of a court in reviewing the administrative record. See Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F.Supp.2d 42, 52 (D.D.C. 2010) (citing Sierra Club v. Mainella, 459 F.Supp.2d 76, 89 (D.D.C. 2006)), aff'd, 408 Fed.Appx. 383 (D.C. Cir. 2010); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083, 348 U.S.App. D.C. 77 (D.C. Cir. 2001) (" [W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The entire case on review is a question of law." (footnote and internal quotation marks omitted)). Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas " the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." See Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. See Richard v. INS, 554 F.2d 1173, 1177, 180 U.S.App. D.C. 314 & n.28 (D.C. Cir. 1977).

Plaintiffs challenge the decisions of FWS under the citizen suit provision of the ESA and under the APA. Because the ESA does not specify a standard of review for agency action, the APA standard of review applies. See AFRC II, 533 F.Supp.2d at 89 (citing Nat'l Ass'n of Home Builders v. Norton, 415 F.3d 8, 13, 367 U.S.App. D.C. 240 (D.C. Cir. 2005)). The APA requires that the Court " hold unlawful and set aside

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agency action, findings, and conclusions" that are " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The " scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of __ U.S. __ Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The Court must be satisfied that the agency has " 'examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'" Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6, 373 U.S.App. D.C. 65 (D.C. Cir. 2006). The agency's decisions are entitled to a " presumption of regularity," Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and although " inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one," id. at 416. Federal courts are particularly deferential towards the " 'scientific determinations'" of the agency, which are " presumed to be the product of agency expertise." Franks v. Salazar, 816 F.Supp.2d 49, 55 (D.D.C. 2011) (quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)) (alteration omitted). The Court's review is confined to the administrative record, subject to limited exceptions not at issue here. See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (" [T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." ).

II. Federal Consent Decrees

" Approving a consent decree 'is a judicial act,' and the Court undertakes it with care." United States v. Wells Fargo Bank, NA, 891 F.Supp.2d 143 (D.D.C. 2012) (quoting United States v. Microsoft Corp., 56 F.3d 1448, 1462, 312 U.S.App. D.C. 378 (D.C. Cir. 1995)). " [A] federal consent decree must spring from, and serve to resolve, a dispute within the court's subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based." Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004).

Before approving a consent decree, a court must determine that it is fair and consistent with the public interest. See Citizens for a Better Env't v. Gorsuch, 718 F.2d 1117, 1126, 231 U.S.App. D.C. 79 (D.C. Cir. 1983). The Court's duty is not to " inquire into the precise legal rights of the parties nor reach and resolve the merits of the claims or controversy," but only to " determine that the settlement is fair, adequate, reasonable and appropriate under the particular facts and that there has been valid consent by the concerned parties." Id. (internal quotation marks omitted). Generally it is not only the parties, but also the general public, that benefit from the time and monetary savings that result from voluntary settlements. Id.

DISCUSSION

I. Motions for Summary Judgment


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