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Wildwest Inst. v. Ashe

United States District Court, D. Montana, Missoula Division

April 25, 2014

WILDWEST INSTITUTE, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs,
v.
DANIEL ASHE, in his official capacity as Director of the United States Fish and Wildlife Service; and KENNETH SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, Defendants, and THE STATE OF WYOMING, Defendant-Intervenor

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For Wildwest Institute, Alliance for the Wild Rockies, Plaintiffs: Rebecca Kay Smith, LEAD ATTORNEY, PUBLIC INTEREST DEFENSE CENTER, Missoula, MT; Timothy M. Bechtold, LEAD ATTORNEY, BECHTOLD LAW FIRM, Missoula, MT.

For Dan Ashe, in his official capacity as Director of the U.S. Fish and Wildlife Service, an agency of the U.S. Department of Interior, Ken Salazar, in his official capacity as Secretary of the Department of the Interior, Defendants: Hao-Chin Hubert Yang, LEAD ATTORNEY, U.S. Department of Justice, Washington, DC; Mark Steger Smith, OFFICE OF THE U.S. ATTORNEY, Billings, MT.

For State of Wyoming, Intervenor Defendant: Jay A. Jerde, Michael J. McGrady, LEAD ATTORNEYS, PRO HAC VICE, WYOMING ATTORNEY GENERAL, Cheyenne, WY; Matthias L. Sayer, LEAD ATTORNEY, PRO HAC VICE, OFFICE OF THE WYOMING ATTORNEY GENERAL, Cheyenne, WY; Natasha Prinzing Jones, LEAD ATTORNEY, BOONE KARLBERG, P.C., Missoula, MT.

OPINION

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ORDER

Dana L. Christensen, Chief United States District Judge.

I. Introduction

Plaintiffs filed suit on January 15, 2013 seeking judicial review of the United States Fish and Wildlife Service's July 19, 2011 finding that listing of the whitebark pine ( Pinus albicaulis ) as a threatened or endangered species under the Endangered Species Act is " warranted but precluded." Plaintiffs claim that the finding was arbitrary and capricious, an abuse of discretion, and otherwise inconsistent with the law and congressional intent for a plethora of reasons.

The Court has before it cross-motions for summary judgment filed by the Plaintiffs (Doc. 28), the Defendants (Doc. 46),

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and the Defendant-Intervenor State of Wyoming (Doc. 42), as well as Plaintiffs' motion to strike Defendants' objection to Plaintiffs' statement of disputed facts (Doc. 26). For the reasons expressed herein, the Court will grant the Defendants' and Intervenor's motions for summary judgment, deny the Plaintiffs' motion for summary judgment, and deny the Plaintiffs' motion to strike as moot.

II. Legal Standards for " Warranted But Precluded" Findings

In order for a species to reap the considerable benefits of the Endangered Species Act (" ESA" ), it must be listed as either " endangered" or " threatened" under ESA Section 4, 16 U.S.C. § 1533. Section 4 requires the United States Fish and Wildlife Service (" the Service" )[1] to " determine whether any species is an endangered species or a threatened species because of any of the following [five] factors: (A) the present or threatened destruction, modification, or curtailment of its habitat range; (B) overutilization for commercial, recreational, scientific, or education purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence." 16 U.S.C. § 1533(a)(1). The Service is required to make such determinations " solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A). The ESA permits any " interested person" to petition the Service to list a species as threatened or endangered. Within 90 days of receiving such a petition, the Service must make a " finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted." 16 U.S.C. § 1533(b)(3)(A). If the Service answers this question in the affirmative, it has 12 months from the date it received the petition to issue findings that the petitioned action is either: (i) not warranted; (ii) warranted; or (iii) warranted but precluded. 16 U.S.C. § 1533(b)(3)(B).

The Ninth Circuit has held that " the circumstances under which the Service may invoke the excuse of 'warranted but precluded' are 'narrowly defined.'" Ctr. for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1102 (9th Cir. 2006) (quoting Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 838 (9th Cir. 2001)). The Service must find -- and publish, " together with a description and evaluation of the reasons and data on which the finding is based" -- that implementing the petitioned action (here, listing of the whitebark pine) must be " precluded by pending proposals to determine whether any species is an endangered species or a threatened species," and that " expeditious progress is being made" to list qualified species and delist those for whom ESA's protections are no longer warranted. 16 U.S.C. § 1533(b)(3)(B)(iii); see also Kempthorne, 466 F.3d at 1102. Warranted but precluded findings are expressly subject to judicial review. 16 U.S.C. § 1533(b)(3)(C)(ii).

Species whose listing have been deemed warranted but precluded are referred to as " candidate species," [2] and the

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Service is not required to take any meaningful action towards preparing proposed listing rules for such species. See W. Watersheds Project v. U.S. Fish and Wildlife Service, 2012 WL 369168, *1 (D. Id. 2012) (" This toothless finding -- declaring that the sage grouse deserves protection but doing nothing about it -- is known as a 'warranted-but-precluded' finding" ). The Service annually publishes an update of the review status of candidate species called a Candidate Notice of Review (" CNOR" ).

III. Factual and Procedural Background

On December 8, 2008, the Natural Resources Defense Council (" NRDC" ) submitted a petition to the U.S. Fish and Wildlife Service requesting that it list whitebark pine ( Pinus albicaulis ) as endangered throughout its range and designate critical habitat. The Service failed to make a timely 90-day finding, and the NRDC filed suit in the U.S. District Court for the District of Columbia. Subsequently, the Service published a 90-day finding that listing of the whitebark pine may be warranted. Pursuant to a settlement agreement with NRDC, the Service had to make a 12-month finding whether to list the species by July 11, 2011. The Service published its 12-month finding on the listing of the whitebark pine (" the 12-Month Finding" or " Finding" ) on July 19, 2011. The Service determined that although warranted, " funding a proposed listing determination for the Pinus albicaulis is precluded by court-ordered and court-approved settlement agreements, and listing actions with absolute statutory deadlines, and work on proposed listing determinations for those candidate species with a higher listing priority (i.e., candidate species with LPNs of 1-2)." 76 Fed. Reg. 42,631, 42,649 (July 19, 2011). The 12-Month Report also included a discussion of its expeditious progress on listing actions, as required by statute. The pertinent details of the 12-Month Finding will be expounded throughout this order.

Plaintiffs filed their complaint against Defendants on January 15, 2013, requesting the Court to reverse the Service's " precluded" determination based on a finding that it is arbitrary and capricious, an abuse of discretion, and/or contrary to law. Specifically, as articulated in their brief supporting their motion for summary judgment, Plaintiffs take issue with: (1) the fact that the whitebark pine has a listing priority number (" LPN" ) of 2, and there are no species on the waiting list with a LPN of 1; (2) the 12-Month Finding does not provide the necessary description and evaluation of the reasons and data to justify a finding that other LPN 2 species face greater threats than the whitebark pine faces; (3) the Service is listing and proposing to list dozens of species with lower priority LPNs; (4) the Service is relying on self-imposed budget limitations to excuse its delay; and (5) the Service cannot rely on court-ordered deadlines resulting from its legal violations to excuse its delay. (Doc. 29 at 9-10.)

IV. Standard of Review

A determination that listing of a species is " warranted by precluded" is subject

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to judicial review pursuant to 16 U.S.C. § 1533(b)(3)(C)(ii). Judicial review of U.S. Fish and Wildlife Service actions concerning the ESA are governed by Section 7 of the Administrative Procedures Act (" APA" ), 5 U.S.C. § 706. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981 (9th Cir. 1985). Under this standard, as relevant to the case at bar, a reviewing court shall " hold unlawful and set aside agency action, findings, and conclusions" found to be either " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). " 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 of 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 Vehicle Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). An agency action is also arbitrary and capricious if the agency does not " articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Assn., 463 U.S. at 43. An agency must clearly articulate the grounds on which it acted. See Atchinson T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 807, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973). The reviewing court must make a " thorough, probing, in-depth review" of the agency's decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). However, the court's review " under the arbitrary and capricious standard is narrow," and it may not " substitute its judgment for that of the agency." O'Keeffe's Inc., 92 F.3d at 942.

Summary judgment is proper if the " movant shows 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).

V. Analysis

Plaintiffs do not dispute that the listing of the whitebark pine is warranted under the ESA, instead limiting their challenge to the " precluded" portion of the Service's Finding. (Doc. 29 at 18.) Similarly, Plaintiffs do not argue that the Service failed to " determine and present evidence that [it] is, in fact, making expeditious progress in the process of listing and delisting other species" as required by 16 U.S.C. § 1533(b)(3)(B)(iii). See Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 838 (9th Cir. 2001). Thus, the only issue before the Court is whether the Service made findings sufficient to determine that listing of the whitebark pine is " precluded by pending proposals to determine whether any species is an endangered or threatened species," 16 U.S.C. § 1533(b)(3)(B)(iii)(I), and published those findings and supporting data and analysis in its 12-Month Finding. The parties advance several arguments, each of which will be addressed in turn.

A. Standing

The Court must first address the threshold issue of standing, which the Defendants raise in their cross-motion. Article III of the Constitution limits the power of the federal courts such that they may only adjudicate live " cases" or " controversies." U.S. Const. art. III, § 2, cl. The case-or-controversy requirement applies " through all stages of federal judicial proceedings." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108

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L.Ed.2d 400 (1990). The plaintiff bears the burden of demonstrating that it has standing from the " commencement of the litigation." Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir. 2002).

Following the publication of the 12-Month Report in 2011, and prior to the time Plaintiffs filed their complaint, the Service issued two CNORs that address the whitebark pine, the most recent of which was published on November 21, 2012. 77 Fed. Reg. at 70,044. The 2012 CNOR's discussion of the whitebark pine is limited to a two-paragraph summary of the 12-Month Finding, and a reaffirmation that the species is still assigned a Listing Priority Number (" LPN" ) of 2.[3] Id.

The Defendants claim that through the CNOR, the Service issued new findings that supersede the original 12-Month Report, which as a result ceases to have any continuing legal effect. In essence, Defendants argue that Plaintiffs were required to challenge the 2012 CNOR, rather than the original 12-Month Finding. Defendants offer no legal support for this position, save for a clause in the 2012 CNOR stating, " This revised ...


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