Opinion
No. CV F 01-5722 AWI SMS.
January 14, 2004
ORDER RE SCHEDULE ON REMAND
The court entered a Memorandum Opinion and Order on May 9, 2003, in which it vacated and remanded to the Service the Final Rule designating the critical habitat for the Alameda whipsnake ("the snake"). On July 21, 2003, the court held a hearing regarding the time by which the Service should be ordered to issue a new Final Rule designating the critical habitat, after which it asked the parties to submit additional briefs on the subject. After considering the arguments made by the parties at the hearing and in their briefs, the court issues the following opinion and order.
DISCUSSION
Federal Defendants contend that because this court found that the Service acted in violation of the APA and the ESA in the way that it designated the critical habitat for the snake, rather than finding that the Service had failed to designate the critical habitat all together, the court is not now required impose the mandatory deadlines set forth in the ESA for originally designating a critical habitat. Further, argue Federal Defendants, nothing in the ESA or APA sets forth a time table for an agency to perform its duties upon remand, and that nothing limits the discretion of the court to establish reasonable time frames to complete the Final Rule designation of the critical habitat for the snake. See Environmental Defense Ctr. v. Babbitt, 73 F.3d 867, 872 (9th Cir. 1995) (agreeing with the district court that the Secretary had violated his nondiscretionary duty to take final action to designate the species as endangered, and remanding to the district court to modify its order and judgment to provide that compliance with the requirement that the Secretary make a final determination as to the endangered status of the species was delayed until a reasonable time after appropriated funds were made available, the time to be specified by the district court).Federal Defendants argue that the court should adopt the following timetable for completion of the Final Rule:
Begin work on critical habitat designation: October 1, 2004
Complete draft rule on critical habitat designation: October 1, 2005
Complete final rule on critical habitat designation: October 1, 2006
Federal Defendants argue that the court should adopt this schedule because of the Service's budgetary constraints, as documented by the supporting declarations they provide. These include the declarations of Gary Frazer, Assistant Director for Endangered Species of the U.S. Fish and Wildlife Service, and Elizabeth Stevens, Deputy Assistant Director for Endangered Species of the U.S. Fish and Wildlife Service. Essentially, Federal Defendants make three arguments. First, they argue that the Service has no funds remaining in the Fiscal Year 2003 to work on the revision of critical habitat for the snake. Second, they argue that even if Congress fully funds the amount the Service has requested for Fiscal Year 2004, the funding would still be insufficient to conduct the Alameda whipsnake critical habitat designation in Fiscal Year 2004. Specifically, Defendants argue that "[t]he Service anticipates that compliance with existing court-orders [sic] and settlement agreements for FY 2004, as well as completion of any unfinished work that carries over from FY 2003, will exhaust all of the available funding." Third, Federal Defendants argue that even if the Service somehow obtained sufficient funding in Fiscal Year 2004 to work on the critical habitat designation for the snake, the agency also lacks the staff resources to complete it. They argue that the Sacramento Fish and Wildlife Office responsible for this designation has only one full-time biologist responsible for processing listing and critical habitat decisions, although it is in the process of recruiting additional staff. Federal Defendants stress that based on these three arguments, the Service has concluded that it will not be able to begin work on the critical habitat designation for the snake until October 1, 2004, which marks the beginning of Fiscal Year 2005.
In regard to the total length of time the Service will need to designate the critical habitat for the snake, Federal Defendants contend that although the original critical habitat designation will provide a starting point, the Service must still comply with all of the requirements of the ESA and the rulings of this court made in the Memorandum Opinion and Order vacating the original designation. They argue that the Service must essentially repeat the entire rulemaking process. They argue, therefore, that the Service estimates that completing the new critical habitat designation will take two years.
In conclusion, Federal Defendants contend that the timeframe they request is supported by evidence in the form of declarations from the officials responsible for administering the ESA in the Sacramento Office of the Fish and Wildlife Service, and that there has been no contrary evidence presented to the court which contradicts the facts as stated in those declarations. They argue that through these declarations, they have provided a reasonable basis for the court to adopt the Service's proposed timeframes for completing the remanded Final Rule designating the critical habitat for the snake. Federal Defendants opine that "the selection of an alternative schedule is likely to result in a schedule under which the Service lacks funds or time to engage in an adequate administrative process supported by meaningful scientific and economic information, and is likely to lead to additional litigation and judicial inefficiency."
At the hearing on this matter, Plaintiffs indicated that they supported the timetable proposed by Federal Defendants, based on the declarations they submitted.
In contrast, Defendant-Intervenor contends that Federal Defendants' requested timeframe is unreasonable. It begins its discussion with a review of the history of the handling of the snake by the governmental agencies which had the duty to protect it. Outstanding within this unimpressive history is the fact that although the final rule listing the snake as a threatened species was published in 1997, the Service did not designate critical habitat for the snake until 2000 and then did so only in response to a lawsuit. As Defendant-Intervenor notes, some six years have now passed since the recognition of the snake as a threatened species.
In response to Federal Defendants' claim that they must essentially redo the entire critical habitat analysis, Defendant-Intervenor argues that the Service has already completed a substantial amount of work on the critical habitat designation for the snake, and therefore does not have to start over now from the very beginning.
Defendant-Intervenor further argues that in the prior motion to remand, the Service represented that it could complete a revised rule in approximately 16 months. Defendant-Intervenor claims that such a schedule is already more generous than the deadlines ordered by many courts for original critical habitat designations where no prior work had been done.
Defendant-Intervenor responds to Federal Defendants' claims about the Service's budgetary problems with the assertion that such problems are largely of its own making, and that they are not new, but rather existed before the Service's prior representations to the court and prior to the decision in this case. Defendant-Intervenor argues that the Service has repeatedly used its budgetary problems to support requests for extensions of time to comply with the ESA, and that this argument has been rejected by other courts. In conclusion, Defendant-Intervenor argues that "only by holding the Service to deadlines consistent with the intent of the ESA will the agency have the proper incentive to comply with the law and seek the budget necessary to do so." Therefore, Defendant-Intervenor asks the court to order the Service to commence work on the revised critical habitat rule during Fiscal Year 2004 and promulgate a final revised rule no later than January 15, 2005, approximately 18 months after the issuance of the Memorandum Opinion and Order ruling on the merits of this case.
The court has reviewed the parties' arguments and the supporting case law at length. While the court is sympathetic to Defendant-Intervenor's concern with the need to provide the snake with the protections provided by the ESA, the court previously found in the Memorandum Opinion and Order on the merits of this case that "because the statutory protections afforded by designating the critical habitat parallel those afforded by listing the species as threatened, vacating the [original] Final Rule would not expose the snake to significantly greater threats of extinction." Further, in considering Defendant-Intervenor's argument that in its motion for voluntary remand, the Service originally stated that it could complete its analysis in approximately sixteen months, the court must note that in that motion, the focus was on the analysis of the economic impact of the critical habitat designation, under New Mexico Cattle Grower's Ass'n. v. U.S. Fish Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). Under this court's Memorandum Opinion and Order issued May 9, 2003, an evaluation of the economic impact is but one part of the analysis the Service must now do in redesignating the critical habitat for the snake. Finally, the court finds that Federal Defendants' requested timeframe is, as they argue, supported by evidence in the form of declarations from the officials responsible for administering the ESA in the Sacramento Office of the Fish and Wildlife Service. See generally, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971) (agency decisions entitled to presumption of regularity), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977). The court must conclude that through these declarations, Federal Defendants have provided a reasonable basis for the court to adopt the Service's proposed timeframes for completing the remanded Final Rule designating the critical habitat for the snake.
Accordingly, the court will adopt the timeframe requested by Federal Defendants. Federal Defendants are expressly warned, however, that in light of this decision, the court will be extremely reluctant to extend any of the deadlines set forth below and will regard any motion to do so with disfavor.
ORDER
In light of the foregoing, IT IS HEREBY ORDERED as follows:
1) The Service SHALL begin work on critical habitat designation for the snake no later than October 1, 2004;
2) The Service SHALL complete and publish a proposed, draft rule on critical habitat designation for the snake no later than October 1, 2005;
3) The Service SHALL complete and publish a final rule on critical habitat designation for the snake no later than October 1, 2006.