Summary
rejecting 2004 CNOR findings
Summary of this case from California Native Plant Society v. NortonOpinion
Civ. No. 03-1111-AA.
June 21, 2004
Matt Kenna, Kenna Hickcox, P.C., Durango, CO, David A. Bahr, Western Environmental Law Center, Eugene, OR, Attorneys for Plaintiff.
Karin J. Immergut, United States Attorney Steve Odell, Assistant United States Attorney Portland, OR, Thomas L. Sansonetti, Assistant Attorney General Jean Williams, Section Chief, Lisa Russell, Assistant Chief Coby Howell, Trial Attorney, U.S. Department of Justice Environmental Natural Resources Division Wildlife Marine Resources Section Washington, D.C., Attorneys for Defendant.
OPINION AND ORDER
Plaintiffs filed suit under the citizen suit provision of the Endangered Species Act (ESA), 16 U.S.C. § 1540 (g), alleging that defendant failed to comply with her mandatory duty to issue findings in response to plaintiffs' citizen petitions to list the Tahoe yellow cress (cress), the southern Idaho ground squirrel (squirrel), and the sand dune lizard (lizard) as endangered or threatened species. 5 U.S.C. § 553 (e); 16 U.S.C. § 1533 (b)(3) (A). Plaintiffs seek declaratory and injunctive relief to remedy defendant's alleged failure.
Both parties now move for summary judgment. Plaintiffs argue that defendant's findings set forth in a Candidate Notice of Review fail to provide sufficiently particularized findings to support defendant's determination that listing of the cress, squirrel, and lizard is precluded by higher priority listing actions. In response, defendant contends that plaintiffs' claim is moot, because defendant's findings provide plaintiffs with the relief they seek and fulfill defendant's duties under the ESA.
I. STANDARD OF REVIEW
The ESA authorizes citizen suits against the Secretary of the Interior "where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary." 16 U.S.C. § 1540 (g)(1)(C). The Secretary's actions are governed by the standards of review set forth in the Administrative Procedures Act. See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981 (9th Cir. 1985). Accordingly, courts must uphold the Secretary's actions unless found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In instances where parties file cross-motions for summary judgment, the court must consider each motion on its merits. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
II. BACKGROUND
A. Endangered Species ActA primary purpose of the ESA is to provide "a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). To carry out this purpose, the Secretary of the Interior, through the Fish and Wildlife Service (FWS), must determine whether particular species warrant listing as endangered or threatened. Id. § 1533(a).
The Secretary may act on her own initiative and identify species eligible for protection under the ESA. Id. § 1533(a)(l). If she determines that a species should be listed as endangered or threatened, the Secretary must publish a proposed rule in the Federal Register. Id. §§ 1533(b)(1)(A), (b)(5). A period of public comment follows, and within one year the Secretary must either publish a final rule, withdraw the proposed rule, or extend the review period to obtain additional data.Id. § 1533(b)(6)(A).
Under implementing regulations, the Secretary may also designate a species as a "candidate" for listing, meaning that the species is "being considered by the Secretary for listing . . . but is not the subject of a proposed rule." 50 C.F.R. § 424.02 (b). Thus, when the Secretary finds that listing may be warranted "but that the available evidence is not sufficiently definitive to justify proposing the action at that time," she may designate a candidate species in a Candidate Notice of Review (CNOR) published in the Federal Register. Id. § 424.15(a). The Secretary may update the status of candidate species "from time to time," but there is no specific time frame during which the Secretary must act. Id. § 424.15(b) ("[N]one of the substantive or procedural provisions of the [ESA] apply to a species that is designated as a candidate for listing.").
Interested citizens may also petition the Secretary to add or remove species from the endangered or threatened list. See 5 U.S.C. § 553 (e); 16 U.S.C. § 1533 (b)(3)(A). The Secretary must decide within ninety days after receipt of a citizen petition whether it presents sufficient "information indicating that the petitioned action may be warranted." 16 U.S.C. § 1533 (b)(3) (A). This is known as the 90-day finding.
If the Secretary finds that listing may be warranted, the Secretary must determine within twelve months from receipt of the petition whether:
(i) The petitioned action is not warranted, in which case the Secretary shall promptly publish such finding in the Federal Register.
(ii) The petitioned action is warranted, in which case the Secretary shall promptly publish in the Federal Register a general notice and the complete text of a proposed regulation to implement such action. . . .
(iii) The petitioned action is warranted, but that —
(I) the immediate proposal and timely promulgation of a final regulation implementing the petitioned action . . . is precluded by pending proposals to determine whether any species is an endangered species or a threatened species, and
(II) expeditious progress is being made to add qualified species to either of the lists published under subsection ©) of this section and to remove from such lists species for which the protections of this chapter are no longer necessary,
in which case the Secretary shall promptly publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based.Id. § 1533(b)(3)(B). This is known as the 12-month finding.
If the Secretary determines that listing action for a petition species is "warranted but precluded," she must consider the petition resubmitted as of the date of that finding, thus insuring that the action for the species is reevaluated in a subsequent 12-month finding. 16 U.S.C. § 1533 (b)(3)(C)(i). A finding that listing action is "warranted but precluded" is subject to judicial review. Id. § 1533(b)(3)(C)(ii).
Under current policy, species for which the Secretary makes "warranted but precluded" determinations are placed on the candidate list. See 69 Fed. Reg. 24,876 (May 4, 2004) (candidate designation means that FWS has "on file sufficient information on biological vulnerability and threats to support a proposal to list as endangered or threatened, but for which preparation and publication of a proposal is precluded by higher-priority listing actions").
B. Facts
Plaintiffs are non-profit corporations involved in species, habitat, and natural resource protection. Plaintiff Center for Biological Diversity, Inc. (the Center) is based in New Mexico with offices in Arizona, California, Oregon, and New Mexico. Plaintiff Western Watersheds Project, Inc. is a non-profit membership organization based in Idaho, with offices in Idaho, Montana, Wyoming, and Utah. Plaintiff Committee for the High Desert, Inc. is a non-profit membership corporation located in Boise, Idaho.
Defendant Gale Norton is the United States Secretary of the Interior.
On October 25, 1999, the FWS designated the Tahoe yellow cress (cress), a small perennial herb, as a candidate for listing. In December 2000, the FWS received the Center's petition to list the cress as an endangered species. On February 15, 2001, the FWS notified the Center that the cress had been listed as a candidate species in its CNOR published on October 25, 1999. See 64 Fed. Reg. 57, 534 (Oct. 25, 1999) . The FWS informed the Center that it does not "publish petition findings on candidate species since [the Secretary] ha[s] already determined that their listing is warranted." Plaintiff's Exhibit B, p. 1. The FWS also stated that due to fiscal restraints it did not anticipate resuming the listing process for candidate or petition species until "fiscal year 2002 or later." Id. at p. 2.
On January 29, 2001, the FWS received the Center's petition to list the southern Idaho ground squirrel (squirrel) as an endangered species. In February 2001, the FWS notified plaintiff that emergency listing of the squirrel was not warranted and that, due to insufficient funds, the FWS could not make an initial finding on whether listing was warranted until fiscal year 2002.
On October 30, 2001, the FWS issued its 2001 CNOR and identified the cress, squirrel and sand dune lizard (lizard) as candidate species. See 66 Fed. Reg. 54,808 (Oct. 30, 2001). The FWS explained that listing of the cress, squirrel and lizard was warranted and assigned the cress and lizard a listing priority number of 2, and the squirrel a listing priority number of 3.Id. at 54,810, 54,811, 54,821. However, the FWS determined that higher priority listing actions, required pursuant to court orders or court-approved settlements, precluded listing action on any of the candidate species. Id. at 54,815-16.
On June 4, 2002, the FWS received the Center's petition from the Center to list the lizard as an endangered species.
On June 13, 2002, the FWS issued its 2002 CNOR. 67 Fed. Reg. 40,657 (June 13, 2002). The FWS again identified the cress, squirrel, and lizard as candidates for listing, found the listing of these species was warranted, and maintained the priority listing numbers for each species. Id. at 40, 666, 40,671, 40,672 (table). However, the FWS again determined that listing was precluded by other higher priority actions required by court orders or court-approved settlement agreements. Id. at 40,664-65.
On August 9, 2002, the FWS notified plaintiff that the lizard had been listed as a candidate species in the 2002 CNOR but did not issue additional findings in response to the petition.
On August 14, 2003, plaintiff filed suit alleging that defendant has failed to issue proper petition findings in response to the three citizen petitions to list the cress, squirrel, and lizard as endangered species.
On May 4, 2004, the FWS issued its 2003 CNOR. 69 Fed. Reg. 24,876 (May 4, 2004). Defendant explains that the 2003 CNOR supercedes any findings issued in the 2001 and 2002 CNORs. The FWS again included the squirrel, cress, and lizard as candidate species and found that listing for these species was warranted but precluded by higher priority actions. The FWS maintained the listing priority number of 2 for the cress and lizard but decreased the squirrel's listing priority number from 3 to 6.Id. at 24,881, 24,888, 24,893.
III. DISCUSSION
Defendant argues that its annual CNOR, a compilation identifying all species awaiting action, complies with her non-discretionary duty to issue findings in response to citizen petitions. Plaintiffs disagree, arguing that defendant's findings in the CNORs that listing of the cress, squirrel and lizard is precluded are not sufficiently particularized and thus supply no meaningful basis for judicial review of defendant's determination. Plaintiffs originally challenged the 2001 and 2002 CNOR findings when they filed suit and moved for summary judgment. Although the FWS has issued a 2003 CNOR that supercedes all previous findings, plaintiffs contend that it, too, fails to meet the ESA's requirements.
Plaintiffs do not dispute that the candidate designations for the cress, squirrel, and lizard fulfill defendant's duty to issue findings explaining why listing is warranted for each species, and I agree that the CNORs issued by the FWS are sufficient with respect to the determination that listing is warranted. See Center for Biological Diversity, 254 F.3d at 838 (designating species as a candidate may arguably fulfill duty to issue findings as to whether listing is "warranted"); see also 69 Fed. Reg. 24,881, 24,888, 24,893.
In support of their arguments, plaintiffs rely primarily onCenter for Biological Diversity v. Norton, 254 F.3d 833 (9th Cir. 2001), where the Center successfully challenged defendant's position that the mere identification of candidate species within a CNOR is the functional equivalent of findings issued in response to citizen petitions. Under the defendant's Petition Management Guidance (PMG) policy, the "the Secretary [treated] petitions to list species already identified as candidates for protection as second petitions and [did] not — ever — fulfill the statutory obligations described above that ordinarily attach to initial petitions." Id. at 836. Instead, the FWS issued a CNOR containing a list of candidate species along with a one-line explanation that further action on these candidate species was precluded by other higher priority listing actions. Id. at 837.
The Ninth Circuit held that defendant's reliance on the PMG policy did not comply with the requirements of the ESA:
If the Secretary finds that listing of a species is `warranted but precluded,' the ESA requires her to `promptly publish such findings in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based.' 16 U.S.C. § 1533 (b)(3)(B) (iii) (emphasis added). A one-line notice in the Federal Register that a species has been designated a candidate does not fulfill this obligation.Id. at 838. The court explained that the candidate designation did not provide any "basis to evaluate the Secretary's conclusion that immediate action is precluded by other more urgent matters."Id. at 839.
Thus, the court concluded, because the PMG policy "allows the Secretary to avoid this explanation in response to a citizen-sponsored petition, it is inconsistent with the express requirements of the ESA." Id.; see also American Lands Alliance v. Norton, 242 F. Supp.2d 1 (D.D.C. 2003) (accord). However, the Ninth Circuit did not find that a CNOR notice could never satisfy the requirements of the ESA, and defendant continues to utilize CNORs to issue findings in response to citizen petitions:
[W]e consider a petition to list a species already on the candidate list to be a second petition, and therefore, redundant. We do not interpret the petition provisions of the Act to require us to make a duplicative finding. Therefore, we are not making additional 90-day findings or initial 12-month findings on petitions to list species that are already candidates.
66 Fed Reg. 54,814 (October 30, 2001) .
Plaintiffs argue that the findings contained in the 2003 CNOR are no better than the one-line candidate designation found deficient by the Ninth Circuit. In the 2003 CNOR, the cress, squirrel, and lizard are again identified as candidate species. With respect to the determination that listing for all candidate species is precluded, defendant made the following findings:
Thus, we anticipate that most or all of the listing actions for the candidate species included in this CNOR will continue to be precluded by higher priority listing actions. The [FWS] allocates the listing appropriation by task, rather than by region as we have done in the past. Thus, listing prioritization accomplished at the national scale. However, the $3,386,000 is fully allocated to fund any emergency listing, and essential litigation-related, administrative, and program management functions and to comply with court orders and court-approved settlement agreements requiring petition findings or listing determinations. We are funding actions on the following species this fiscal year: California tiger salamander — central DPS, Boreal toad, Miami Blue butterfly, Sacramento Mountains checkerspot butterfly, four subspecies of the skipper Pseudocipaeodes eunus, Rota bridled white-eye, eastern sage grouse, greater sage grouse, Salt Creek tiger beetle, Bromus arizonicus, Nasselia cernua, Nesogenes rotensis, Osmoxylon mariannense, Tabernaemontana rotensis, Lepidium papilliferurn, Cymopterus deserticola, Midvalley fairy shrimp, pacific fisher, Florida black bear, New England cottontail, Mariana fruit bat, white-tailed prairie dog, wolverine, Santa Catalina Island fox, Santa Rosa Island, San Miguel Island fox, Santa Cruz Island fox, northern sea otter — southwest Alaska DPS, and Colorado River cutthroat trout.
69 F. 24885 (May 4, 2004).
Defendant emphasizes that she no longer relies on one-line candidate designations, and that the 2003 CNOR findings constitute the complete explanation as to why listing action for the cress, squirrel, and lizard is precluded: limited resources and higher priority court-ordered or court-sanctioned actions. Therefore, defendant argues that plaintiffs' claim is moot, because the 2003 CNOR provides plaintiffs with the relief they seek. To the extent that plaintiffs disagree with the substance of defendant's "warranted but precluded" findings, defendant contends that such a claim must be asserted under the Administrative Procedures Act.
I agree with defendant that she may utilize annual CNORs to issue petition findings, because nothing in the ESA mandates the form in which the findings must be made. However, I do not find that plaintiffs' claim is moot. The crux of plaintiffs' argument is that defendant has failed to issue individualized, detailed findings for each petition species to support her determination that listing action for those species is precluded, regardless of the format in which the findings are published.
Initially, plaintiffs asserted that a CNOR could not take the place of petition findings. Complaint, pp. 2, 10. Plaintiffs, however, subsequently narrowed their challenge to the sufficiency of the CNOR findings.
Specifically, plaintiffs contend that defendant cannot comply with her non-discretionary duty to issue adequate findings by simply declaring that resources are allocated nationwide and identifying a backlog of listing proposals. Rather, plaintiffs argue that defendant must explain with specificity what listing action for particular species precludes action for the cress, squirrel, and lizard in their respective geographical regions. Plaintiffs maintain that without particularized findings for each petition species, there is no way for an interested person to determine whether defendant is properly prioritizing her duties or whether the continued delay of listing actions for "warranted but precluded" species is "the foot-dragging efforts of a delinquent agency." Center for Biological Diversity, 254 F.3d at 838.
At the time plaintiffs' Complaint was filed, their claim was not moot for an additional reason. Defendant is required to issue updated findings for the petition within 12 months of finding that listing action is warranted but precluded. Until May 4, 2004, defendant had not issued any findings since July 13, 2002 and was in violation of the duty to issue updated findings.
Defendant responds that she cannot issue the individualized findings sought by plaintiff, because listing actions are no longer prioritized on a regional or geographical basis. In other words, according to defendant, all nationwide listing actions deemed higher priority preclude listing actions for candidate and petition species, including those species for which defendant makes a "warranted but precluded" determination.
Plaintiffs cite no authority and the court is aware of none that dictates the way in which defendant must prioritize listing actions to comply with her mandatory duty to issue findings in response to citizen petitions. Thus, I cannot find that defendant fails to comply with her ESA duties by failing to issue particularized findings specifying which regional, higher priority listing actions preclude listing action for a specific petition species. Instead, a challenge to defendant's prioritization of listing actions is a substantive claim that I will not consider here.
Nevertheless, as emphasized by the Ninth Circuit, defendant is required to issue findings that listing action on a petition species "is precluded by pending proposals to determine whether any species is an endangered species or a threatened species," and provide "a description and evaluation of the reasons and data on which the finding is based." Center for Biological Diversity, 254 F.3d at 838 (citing 16 U.S.C. § 1533 (b)(3)(B) (iii)). I find the 2003 CNOR deficient in several respects.
For example, the 2003 CNOR does not specify what listing action is proposed for the identified higher-priority species to determine whether they actually involve "pending proposals to determine whether any species is an endangered species or a threatened species." 16 U.S.C. § 1533(b)(3)(B) (iii) (I). Further, the 2003 CNOR does not describe or evaluate the "reasons or data" on which defendant's "warranted but precluded" findings are based, other than to describe the budgetary restraints followed by a recitation of listing actions defendant has funded.Id.
In other words, the 2003 CNOR does not explain the reasons why actions for the identified species are deemed higher in priority, or why such actions result in the preclusion of listing actions for species such as the cress, squirrel or lizard. Simply stating that there isn't enough money does not constitute "a description and evaluation" of the reasons underlying defendant's findings.
Presumably, interested parties could infer that each of the species identified as higher priority are either emergency listings, court orders or court-approved settlements that involve listing actions for those species. See 69 Fed. Reg. 24,885. The ESA, however, places the burden to explain such findings squarely on defendant. Accordingly, defendant's findings fail to support her determination that listing actions for the cress, squirrel, and lizard are precluded by higher priority listing actions.
IV. CONCLUSION
Plaintiffs' motion for summary judgment (doc. 13) is GRANTED, in part. Within 180 days within the date of this order, defendant shall issue updated CNOR findings consistent with this opinion in response to plaintiffs' petitions to list the Tahoe yellow cress, the Idaho ground squirrel, and the sand dune lizard as endangered or threatened species. Defendant's Motion for Summary Judgment (doc. 14) is DENIED. IT IS SO ORDERED.