AMERICAN FOREST RESOURCE COUNCIL, CARPENTERS INDUSTRIAL COUNCIL, and DOUGLAS COUNTY, OREGON, Plaintiffs,
DANIEL M. ASHE, Director, U.S. Fish and Wildlife Service, and SALLY JEWELL, 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.
JOHN D. BATES United States District Judge
Plaintiffs American Forest Resource Council, Carpenters Industrial Council, and Douglas County, Oregon (collectively, "AFRC") brought this action against defendants Daniel M. Ashe, Director of the U.S. Fish and Wildlife Service, and Sally Jewell, Secretary of the Interior (collectively, "FWS"). Currently before the Court are the parties' cross-motions for summary judgment on AFRC's Third Claim for relief and FWS's motion for voluntary remand without vacatur of its critical habitat designation for the marbled murrelet. For the reasons stated below, the Court will grant summary judgment in favor of FWS and intervenors on AFRC's Third Claim and grant FWS's motion for voluntary remand.
The background of this case is fully set forth in the Court's March 30, 2013 memorandum opinion. See Am. Forest Res. Council v. Ashe, No. 12-111, 2013 WL 1289724 (D.D.C. Mar. 30, 2013). In that decision, the Court granted summary judgment in favor of FWS and intervenors on two of AFRC's three claims regarding FWS's decision not to delist the Washington, Oregon, and California ("tri-state") population of the marbled murrelet. On the third of these claims, which challenges FWS's determination that the tri-state population was "significant, " the Court deferred its decision on summary judgment and remanded to FWS the question whether central California marbled murrelets "interbreed when mature" with other marbled murrelets in the tri-state population. Id. at *11.
FWS had determined in January 2010 that delisting the murrelet was "not warranted" because the tri-state population was a "distinct population segment" or "DPS" under the Endangered Species Act ("ESA"). See 75 Fed. Reg. 3424 (Jan. 21, 2010). The ESA defines the term "species" to include "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16). The term "distinct population segment" is not defined by statute, but has been interpreted in a 1996 joint policy issued by FWS and the National Marine Fisheries Service. See 61 Fed. Reg. 4722 (Feb. 7, 1996). The 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 id. at 4725. In finding the tri-state DPS significant, FWS had recognized and relied on the genetic distinctiveness of central California murrelets, but it had not stated explicitly that those murrelets can or do interbreed with other murrelets in the DPS. See 75 Fed. Reg. at 3430. AFRC then asserted in this litigation that two populations of a species cannot be genetically distinct yet interbreed when mature. See Am. Forest Res. Council, 2013 WL 1289724, at *11. Concerned that, if AFRC were correct, FWS's significance determination was based on an overly inclusive DPS, and having no basis in the record to confirm or reject AFRC's assertion, the Court remanded the significance determination to FWS to gain the agency's view on the "interbreeds when mature" question. See id.
FWS has now completed the remand, and has determined that central California murrelets not only are capable of interbreeding with, but actually interbreed with, other murrelets in the tri-state DPS. See Defs.' Notice of Completion of Remand [ECF 58], Ex. 1 ("Remand Mem.") 2-3. The parties have each submitted responses to FWS's determination on remand. AFRC contends that the remand memorandum "is unlawful and should be set aside, " and consequently that its motion for summary judgment on its Third Claim (regarding FWS's significance determination) should be granted. See Pls.' Post-Remand Br. in Supp. of MSJ [ECF 61] ("AFRC Post-Remand Resp.") 2, 20. FWS and intervenors maintain that FWS's significance determination was rational and supported by the record and assert that FWS's determination on the "interbreeds when mature" issue simply confirms this conclusion. See Intervenors' Resp. to Remand Mem. [ECF 60] ("Intervenors' Post-Remand Resp.") 3; Defs.' Reply in Supp. of Remand Mem. [ECF 62] ("FWS Post-Remand Reply") 1-2.
In its March 30, 2013 decision, the Court also denied the joint motion of AFRC and FWS for entry of a proposed consent decree, under which the critical habitat designation for the murrelet would have been vacated and remanded to FWS for a new rulemaking. Am. Forest Res. Council, 2013 WL 1289724, at *27. The joint motion was opposed by intervenors, who argued (1) that the Court did not have jurisdiction to enter the proposed consent decree because AFRC's critical habitat challenges were time-barred, (2) that the Court did not have authority to enter the proposed consent decree because it would have vacated a rule without notice and comment, and (3) that the proposed consent decree did not meet the standard of being fair, adequate, reasonable, and appropriate under the particular facts, as well as in the public interest. Id. at *16; see also Id . at *6 (discussing standard set forth in Citizens for a Better Env't v. Gorsuch, 718 F.2d 1117, 1126 (D.C. Cir. 1983)). The Court rejected intervenors' first two arguments, concluding that it had both jurisdiction and the authority to enter the proposed consent decree, but was unable to conclude that the proposed consent decree met the applicable standard. Id. at *21-22, *26. The Court found it particularly problematic that FWS had not confessed error or explained how the critical habitat designation might be deficient and that the proposed remand period was to last until September 2018. Id. at *25-26. It left open the possibility, however, that it might accept a modified proposed consent decree that included a more robust explanation from FWS on the rule's deficiencies and contemplated a shorter remand period. Id. at *27.
FWS now explains that it "can no longer defend its 1996 designation of critical habitat for the murrelet, " because in making the designation it did not "provide a detailed explanation of how the areas designated meet the statutory definition of 'critical habitat, '" as required by cases decided since the 1996 designation. See Defs.' Mot. for Voluntary Remand Without Vacatur [ECF 54] ("FWS VR Mot.") 8, 10-11. Accordingly, FWS asks that the critical habitat designation be remanded, and it seeks a remand period two years shorter than that in the proposed consent decree. The agency represents that it can commit to issuing a proposed revised designation by September 30, 2015, and a final revised designation by September 30, 2016. See id. at 15-16. But rather than seek remand and vacatur jointly with AFRC in a motion for entry of a modified proposed consent decree, FWS has filed a motion for voluntary remand without vacatur. AFRC, which seeks vacatur of the murrelet critical habitat designation in this action, opposes FWS's motion. See Pls.' Opp'n to FWS VR Mot. [ECF 56] ("AFRC VR Opp'n") 1-2. Intervenors do not oppose remand without vacatur. See Intervenors' Resp. to FWS VR Mot. [ECF 55] ("Intervenors' VR Resp.") 1.
I. The Parties' Cross-Motions for Summary Judgment on AFRC's Third Claim
Now that FWS has completed the remand, AFRC contends that it is entitled to summary judgment on its claim that FWS's significance determination was arbitrary and capricious under the Administrative Procedure Act. See 5 U.S.C. § 706(2).
A. FWS's Determination on Remand
On remand, FWS evaluated whether there is evidence of interbreeding between murrelets in central California and murrelets in northern California. Remand Mem. 1. Examining the birds' long-distance movements, it found that "murrelets anywhere within the DPS are capable of intermingling and interbreeding with murrelets in other parts of the DPS, specifically between central California and northern California." Id. at 2 (citing evidence of murrelet movements of several hundred kilometers). FWS also found "evidence of actual interbreeding." Id. It explained that, although central California murrelets diverged genetically from northern populations during the twentieth century, "they are not completely isolated genetically because very low gene flow continues to occur among murrelets across the range, and specifically between northern and central California." Id. at 3 (citation omitted). This gene flow, along with evidence of northern California murrelets "immigrating" into central California, led FWS to conclude that "the murrelets in central California are interbreeding, albeit at low levels, with murrelets from elsewhere within the DPS." Id.
In light of this conclusion, FWS reaffirmed its determination that the tri-state population of the murrelet is sufficiently significant to warrant listing as a DPS. See id. at 3-4. The agency again stated, as it had in its January 2010 "not warranted" decision, that loss of the tri-state DPS would result in a significant gap in the range of the murrelet. See id.; accord 75 Fed. Reg. at 3430. According to FWS, such a gap would be significant because the tri-state area accounts for about 18 percent of the murrelet's coastal distribution, spans 17 degrees of latitude, is located at the southern periphery of the murrelet's range, and contains an ecologically distinct forest system, the coastal redwoods. See 75 Fed. Reg. at 3430. FWS also found the tri-state DPS significant because its loss would result in the loss of "unique genetic characteristics that are significant to the taxon." See id. The "unique genetic characteristics" referred to are those of central California murrelets, which, as FWS explained on remand, are "moderately [genetically] differentiated, " but not "completely isolated." See id.; Remand Mem. 3.
In a footnote in its determination on remand, FWS also said the following:
While the Service is performing this analysis in accordance with the Court's remand order, the Service believes that it is not necessary to make an explicit finding of interbreeding among various groups of organisms that comprise a DPS, but rather relies on the "biological species" concept employed during taxonomic identification of species and subspecies.
The ESA defines "species" as "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." The Service interprets the phrase "interbreeds when mature" to mean that a DPS must consist of members of the same species or subspecies. The "biological species" concept, which defines species according to a group of organisms' actual or potential ability to interbreed, and their relative reproductive isolation from other organisms, is perhaps the most widely accepted approach to defining species. Individuals of a species or subspecies are biologically capable of interbreeding if given the opportunity, but all members need not actually interbreed with each other to represent members of the same species or subspecies. As an example, bald eagles (Haliaeetus leucocephalus) in the State of Alaska are unlikely to interbreed with bald eagles in the State of Florida, due to geographic distance; however, these individuals would be biologically capable of interbreeding if given the opportunity, and are considered to be members of the same species. The Act's use of the phrase "interbreeds when mature" requires only that one or more groups of individuals that comprise a DPS are members of the same species or subspecies, as defined by the biological species concept.
Remand Mem. 1 n.1.
B. "Interbreeds When Mature"