Summary
In National Association of Home Builders v. Norton, 2001 WL 1876349 (D.Ariz. 2001), Judge Bolton based her equitable analysis on whether 1) evidence suggested that significant harm to the listed species was likely to occur if the CHD were vacated during remand; 2) whether the majority of land covered by the CHD was privately held and could be developed during the remand; 3) whether evidence suggested that development was actually planned; and 4) whether such development on privately held land was likely to cause significant harm to the listed species.
Summary of this case from Natural Resources Defense Council, Inc. v. United States Dept. of InteriorOpinion
No. CIV-00-0903-PHX-SRB
September 19, 2001
ORDER
Pending before the Court are the Plaintiffs' Motion for Summary Judgment (Doc. 35-1), the Defendants' Motion for Summary Judgment (Doc. 60-1), the Defendant-Intervenors' Motion for Summary Judgment (Doc. 64-1), and the Defendants' Motion for Partial Voluntary Remand of Critical Habitat Designation (Doc. 76-1).
I. BACKGROUND
On January 9, 2000, the Plaintiffs filed a motion for summary judgment. The Plaintiffs' motion requests that the Court declare unlawful and set aside two rules promulgated by Defendant United States Fish and Wildlife Services (FWS). The rules list the Arizona population of the cactus ferruginous pygmy-owl as endangered, and designate critical habitat for the population under Section 4 of the Endangered Species Act, 16 U.S.C. § 1533 (ESA). The Plaintiffs challenge both FWS' determination that the Arizona pygmy owls are eligible for listing under the ESA and its designation of critical habitat. The Plaintiffs' argue that in designating critical habitat, FWS failed to perform an analysis of economic and other impacts of designating particular areas as critical habitat as required under Section 4(b)(2) of the ESA, 16 U.S.C. § 1533 (b)(2). The Plaintiffs' also contend that FWS made errors concerning their decision to list the species as endangered. On February 21, 2001, Rancho Mission Viejo filed an Amicus Brief in Support of the Plaintiffs' Motion for Summary Judgment.
On April 9, 2001, the Defendants' filed a Cross-Motion for Summary Judgment. The Defendants argue that the Plaintiffs failed to establish that the listing and critical habitat designation violate the Administrative Procedure Act. The Defendant-Intervenors filed a Motion for Summary Judgment that same day. The Defendant-Intervenors request that the Court deny the Plaintiffs' request to have the two rules declared unlawful and that the Court leave both rules in place should it find that remand is appropriate.
On June 6, 2001, the Defendants filed a Motion for Partial Voluntary Remand of Critical Habitat Designation. The Defendants ask the Court to remand the critical habitat designation so that the EWS can re-do its economic impact analysis and satisfy the requirements of the ESA. The Defendants ask that the existing critical habitat designation be left in place pending remand of this issue. The Defendant-Intervenors' do not object to remand of the economic analysis, however, they ask that the Court leave the existing critical habitat designation in place and to decide the remaining critical habitat and listing issues. They further ask the Court to "issue instructions clarifying that it does not endorse the Tenth Circuit's opinion" in New Mexico Cattle Growers Ass'n v. U.S. Fish and Wildlife Service, 2001 WL 514361 (10th Cir. 2001). The Plaintiffs agree that the appropriate remedy for an improperly promulgated rule is remand, however, they ask the Court to grant the Motion for Summary Judgment and to vacate both rules.
The Court heard oral argument on the parties motions on July 9, 2001. The parties agreed that the Court should remand the designation of critical habitat. However, they disagree as to whether the rule should remain in effect pending FWS' reconsideration of critical habitat and promulgation of a new Final Rule. The Plaintiffs' argue that because the FWS did not comply with the requirements of the EPA when designating critical habitat, the only proper remedy is to vacate the rule pending remand. The Defendants argue that equity demands that the Court leave the rule in place until a new critical habitat is designated. The Defendants' concern is that during the time it takes to reconsider the designation of critical habitat, developers will encroach on the cactus ferruginous pygmy-owls' habitat and further endanger the species. The Defendants argue that the potential harm weighs in favor of leaving the rule in place.
II. LEGAL STANDARD AND ANALYSIS
Under § 4(a) of the ESA, the FWS may list a species as threatened or endangered. 16 U.S.C. § 1533 (a). When the FWS lists a species, he or she must also designate a "critical habitat" for that species. § 1533(a)(3); Douglas County v. Babbitt, 48 F.3d 1495, 1497 (9th Cir. 1995). "Critical habitat," as defined by the ESA, refers to geographic areas which are "essential to the conservation of the species" and which may require special management considerations or protection. § 1532(5)(A); N. Spotted Owl v. Lujan, 758 F. Supp. 621, 623 (9th Cir. 1991); Douglas County, 48 F.3d at 1497. Although extensive areas may be essential to maintaining a particular species over the long term, a designation of critical habitat is only supposed to include "the minimum amount of habitat needed to avoid short term jeopardy or habitat in need of immediate intervention." N. Spotted Owl, 758 F. Supp. at 623.
The initial determination of what areas constitute "critical habitat" is to be made on the basis of the "best scientific data available." Id. This involves identifying geographic areas containing the physical and biological features considered to be "essential to the conservation of the species." Id. In addition, there must be a consideration of the "probable economic and other impacts" on human activities resulting from the critical habitat designation. Id. Habitat that is not presently occupied by the species may be designated as critical only upon a determination that such areas are in fact essential to ensure the conservation of the species. Id.
The Plaintiffs have presented evidence which suggests that the Defendants did not fully evaluate the "economic and other impacts" that designating this area as critical habitat might have. The Defendants do not contest the merits of the Plaintiffs' claim that the economic analysis was improper, and agree to limited remand in order to reconsider the economic analysis used in the critical habitat designation. The Court believes that broader reconsideration of the critical habitat designation is necessary. At oral argument, the Defendants essentially conceded that they did not have the time to do the analysis required to comply with the mandates of the EPA. Because systematic pygmy-owl surveys had not yet been done over all the potential habitat in Arizona, the Defendants determined critical habitat by designating areas where the pygmy-owls have been sighted, areas that they thought would be consistent with the species known habitat, and all the land in between. Not only did they include areas actually occupied by the pygmy-owls, they also designated as "critical habitat" types of areas where they thought the pygmy-owls could live.
Section 1533(b)(2) of the EPA mandates that the FWS designate critical habitat based on "the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." 16 U.S.C.A. § 1533(b)(2) (West 2000). The "terms of § 1533(b)(2) are plainly those of obligation rather than discretion." Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154 (1997). The Defendants concede that they failed to discharge this statutory obligation. An administrative decision involving the ESA will be set aside if the agency action was arbitrary, capricious, in abuse of discretion, or if the action is found to be without the observance of the procedures required by law. Tinoqui-Chalola Council and Yowlumne Indians v. U.S. Dept. of Energy, 232 F.3d 1300, 1306 (9th Cir. 2000). Thus, the critical habitat designation is invalid, and must be set aside. See, e.g., Tinoqui-Chalola Council and Yowlumne Indians, 232 F.3d at 1306 (agency decision involving the ESA must be set aside if the action does not comply with the procedures required by law); Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995) (ordinarily when a regulation is not promulgated in compliance with applicable rules the regulation is invalid).
There are situations where equity demands that an improperly promulgated regulation remain in place pending remand. See, e.g., Idaho Farm Bureau Fed'n, 58 F.3d at 1405. However, this case does not present such a situation. The Defendants have not presented the Court with any evidence suggesting that significant harm to the species is likely to occur if the critical habitat designation is vacated pending remand. The Defendants concede that the majority of the land designated as critical habitat is not held privately and could not be developed during the time period at issue in this case. The Defendants have not presented any evidence that suggests that private land owners are going to develop the privately held section of land so that FWS cannot designate it as critical habitat. Even assuming such development were to take place during the time it took FWS to reconsider the issue of critical habitat, the Defendant has not presented any evidence that development on the sections of land that are held privately would cause significant harm to the species. Even without a critical habitat designation, the present listing of the species as endangered will still provide some protection against destruction of the pygmy owls' habitat.
FWS' failure to comply with the statutory requirements regarding critical habitat designation is more than a minor procedural error. Its failure to follow the mandates of the statute calls the very substance of the critical habitat designation into question. In the absence of any evidence that vacating the critical habitat designation pending remand is likely to result in harm to the Arizona population of the cactus ferruginous pygmy-owls, the Court cannot justify leaving a substantively defective rule in place. Thus, the Court finds the Final Rule designating critical habitat was arbitrary and capricious and REMANDS this matter back to the FWS for further consideration consistent with the statutory requirements of the ESA. The Defendants' Motion for Partial Voluntary Remanded is GRANTED to the extent that the critical habitat designation is remanded but DENIED with respect to the request that the critical habitat designation remain in place pending remand. The Final Rule designating critical habitat for the Arizona population of the cactus ferruginous pygmy-owl is VACATED.
The parties concede that if the Court sets aside the critical habitat designation, the remaining challenges to that designation become moot. Accordingly, the Plaintiffs' Motion for Summary Judgment, the Defendants' Motion for Summary Judgment, and the Defendant Intervenors' Motion for Summary Judgment are DENIED as moot with respect to the issues involving the designation of critical habitat.
B. Motions for Summary Judgment
The only issues remaining in the respective motions for summary judgment concern FWS' listing of the Arizona population of the cactus ferruginous pygmy-owl as endangered.
FWS' decision to list the Arizona pygmy-owl population as endangered was based on a determination that the members of the subspecies found in Arizona constitute a distinct population segment. The Plaintiffs argue that the rule must be set aside because the Defendants relied on the international border with Mexico in determining that the Arizona population of the cactus ferruginous pygmy-owl is a separate "species" under the ESA.
The Plaintiffs do not dispute that there are only an estimated 20 to 40 of these pygmy-owls left in Arizona. The Plaintiffs do not dispute that FWS properly determined that the western and eastern populations of the pygmy-owls constitute distinct population segments and qualify as a "species" under the ESA. The Plaintiffs argue that it was "arbitrary and capricious" for FWS to further divide the "western population," which includes southern Arizona and western Mexico, on the basis of the international border between Arizona and Mexico.
The Plaintiffs argue that the Mexico population must be taken into consideration when determining whether the Arizona population can be listed as an endangered species because there is no biological difference between the birds. The Plaintiffs further argue that the Defendants have not presented any evidence that there were ever more cactus ferruginous pygmy-owls in Arizona. According to the Plaintiffs' theory, the Arizona population is not "endangered" because it isn't any closer to extinction than it was a hundred years ago.
The Defendants admit that the population segment is delimited by the international boundary between Mexico and the United States. However, they claim that the listing was proper in light of other factors considered by the FWS, including the differing conservation status of the population segment in western Mexico, and the potential significant harm that would result to the species as a whole should the population segment in Arizona become extinct.
The arbitrary and capricious standard of the Administrative Procedure Act governs review of FWS actions taken pursuant to the ESA. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981-82 (9th Cir. 1985). Under this standard, the reviewing court must set aside the agency's decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.A.' § 706(2)(A) (West 1996). A decision is arbitrary and capricious if the agency "has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." O'Keeffe's, Inc. v. U.S. Consumer Product Safety Comm'n, 92 F.3d 940, 942 (9th Cir. 1996) (quoting Motor Vehicles Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866 (1983)). An agency action is also arbitrary and capricious if the agency fails to "articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n., 463 U.S. at 43, 103 S.Ct. at 2866 (citations omitted).
The ESA's definition of "species" includes any "distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. 16 U.S.C.A § 1532 (16) (West 2000). The Defendants have clearly set forth the grounds on which FWS acted. Atchison T. S.F. Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 807, 93 S.Ct. 2367, 2374-75 (1973). The administrative record reflects that FWS decided that the Arizona population constituted a "distinct population segment" after it first determined that the population was "discrete" and "significant" consistent with FWS policy on listing vertebrate population segments. According to the FWS policy, a population segment can be considered "discrete" if it is delimited by international boundaries across which exist differences in management control of the species. The population segment can also be considered "significant" if its loss would result in a significant gap in the range of the taxon. The record reflects that FWS determined that the western population of the cactus ferruginous pygmy-owl was divided by the international border between southern Arizona and Western Mexico. It further reflects that the FWS determined from available data that the Arizona population has been declining "significantly" and faces a significant threat of extinction due to loss of riparian habitat. FWS estimates that between 85 and 90 percent of the low-elevation riparian habitats in the southwestern United States have been modified or lost. Because of the international border, the Arizona segment of the western population of the cactus ferruginous pygmy-owl is the only population segment over which the United States Government could affect protection and recovery for the species. Because the data indicated a decline in the species Within Arizona, an area which once constituted the pygmy owls' "major United States range," the FWS determined that listing in Arizona was warranted.
The ESA's essential purpose is to conserve and protect endangered species. U.S. v. McKittrick, 142 F.3d 1170, 1172 (9th Cir. 1998). Despite the Plaintiffs' contentions to the contrary, what is important to the determination of whether a species may be listed as endangered under ESA is whether the species is facing extinction here in the United States, not whether the population in Mexico is plentiful. See, e.g., Norton, 258 F.3d at 1146 (FWS is required to address whether species is in danger of extinction in a significant portion of its historical range, regardless of whether the species as a whole is in danger of extinction); McKittrick, 142 F.3d at 1172 (the gray wolf is properly listed as endangered under the ESA, although the populations in Canada are plentiful); Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 684 (D. D.C. 1997) (FWS cannot dismiss the contiguous United States population of a species merely because it is plentiful elsewhere).
FWS' decision to divide the "western population," at the international border between Arizona and Mexico in order to protect the population segment facing extinction within the United States is not only permissible, it is consistent with the policy and intent of the ESA. The language of the ESA was specifically chosen to affect a shift away from prior law which considered a species to be endangered only when it was threatened with worldwide extinction. Defenders of Wildlife v. Norton, 358 F.3d 1136, 1143 (9th Cir. 2001); H.R. Rep. No. 412, 93rd Cong. Sess. (1973). Under the present statute, a species can be extinct throughout a significant portion of its range if it is no longer viable in that particular geographic area, but once was. Norton, 358 F.3d at 1145. The ESA allows the FWS to list an animal as endangered through a portion of its range. Id. at 1144. Such areas can coincide with national or state political boundaries. Id. at 1145.
There is no evidence that FWS relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency. FWS articulated a satisfactory explanation for its action including a rational connection between the facts found and the choices it made. The Plaintiffs have not presented any evidence indicating that FWS' determination that the Arizona population was a "distinct population" segment was arbitrary or capricious. Therefore, the Plaintiffs' Motion for Summary Judgment is DENIED.
IT IS ORDERED granting in part and denying in part the Defendants' Motion for partial voluntary remand. (Doc. 76-1). The critical habitat designation is remanded to the United States Fish and Wildlife Services for further proceedings consistent with this opinion. The Final Rule designating critical habitat for the Arizona population of the cactus ferruginous pygmy-owl is vacated.
IT IS FURTHER ORDERED denying the Plaintiffs' Motion for Summary Judgment. (Doc. 35-1).
IT IS FURTHER ORDERED the Defendants' Motion for Summary Judgment is denied in part and granted in part. (Doc. 60-1).
IT IS FURTHER ORDERED the Defendant-Intervenors' Motion for Summary Judgment is denied in part and granted in part. (Doc. 64-1).