Ninth Circuit, following another D.C. decision, finds marbled murrelet 5-year review did not necessitate delisting the bird
Coos County Board of County Commissioners v. Kempthorne, No. 06-35634, CV-06-06010-MRH (9th Cir., June 26, 2008)
Marbled murrelets — small, dove-sized birds — feed primarily on sea life and nest in coastal mature and old-growth forests. “e main cause of population decline has been the loss of older forest and associated nest sites,” in large part because of timber harvesting... Also, when murrelets leave the forest to feed at sea, they are threatened by gill-net fishing boats and by oil spills. Because murrelets do not reproduce every year and generally lay only one egg when they do, the species recovers slowly from population losses. As a result of these various forces, murrelet populations crashed, from a historic estimate of 60,000 murrelets in California alone to today only 9,000 birds all together in California, Oregon and Washington. Caption text from 9th Circuit opinion, photo of nesting murrelet from UC Berekely's Bessinger Lab Group.
SUMMARY: "We are asked to decide whether the Fish and Wildlife Service (“FWS”) has an enforceable duty promptly to withdraw a threatened species (the marbled murrelet) from the protections of the Endangered Species Act (the “ESA” or the “Act”), 16 U.S.C. §§ 1531-1544, after a five-year agency review mandated by the Act found that the species does not fit into one of the several types of population categories protected under the ESA. We answer that FWS does not have such a duty.
BACKGROUND: The Coos County Board of County Commissioners (“Coos County”) brought this action under the ESA’s citizen suit provision, 16 U.S.C. § 1540(g), and under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-559. The suit rests on the results of a FWS species status review of the marbled
murrelet, a rare seabird that nests in mature and old-growth forests. See generally U.S. Fish & Wildlife Service, Marbled Murrelet 5-Year Review (“Five Year Review”)... FWS is required to “conduct, at least once every five years, a review of all species” protected under the ESA and to “determine on the basis of such review whether” the listing status of protected species should be changed. 16 U.S.C. § 1533(c)(2). The five-year review of the tri-state murrelet listing, released in 2004, concluded that the tri-state murrelets do not meet the definition of a “distinct population segment,” one of the population categories which may be protected under the ESA, see 16 U.S.C. § 1532(16), but determined that they nonetheless remained threatened. Five-Year Review at 6, 28. FWS also noted that a district court had held that the tristate murrelets could be protected even if they did not constitute a distinct population segment, because they occupied a significant portion of the range of the entire species. Id. at 6. FWS therefore determined not to alter the protections afforded the species pending a more complete review. Id. at 28. Coos County maintains that this cautious approach to species protection is illegal, and that, instead, FWS had a mandatory duty promptly to remove the tri-state murrelets from the ESA’s threatened species list, “delisting” the birds, as a result of the Five-Year Review.
THE MEANING OF DPS AND SPR: After the tri-state murrelets were listed as threatened, and before the Five-Year Review, FWS promulgated a policy defining characteristics of “distinct population segments” for purposes of the ESA. See Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4,722, 4,724 (Feb. 7, 1996) (“DPS Policy”); see also 16 U.S.C. § 1532(16). We recently determined that the DPS Policy is “based on a reasonable construction” of the ESA. Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1143-45 (9th Cir. 2007). In the DPS Policy, FWS set out a two-step process for determining whether a population qualifies as a “distinct population segment.” DPS Policy, 61 Fed. Reg. at 4,725; see also Nw. Ecosystem Alliance, 475 F.3d at 1138 (describing the DPS Policy). FWS first asks if the population is “discrete” with regard to “the remainder of the species to which it belongs,” and, if the population is discrete, then inquires into the “significance” of the population to the species as a whole. Id. The DPS Policy does not equate the “significant portion of the range” and “distinct population segment” issues, although range considerations are incorporated into the significance aspect of the inquiry. Id.5... FWS understood that earlier distinct population segment determinations might not satisfy the DPS Policy, and so announced that “y istinct population segmentof a vertebrate taxon that was listed prior to implementation of this policy will be reevaluated on a case-by-case basis as recommendations are made to change the listing status for that distinct population segment.” Id. at 4,725. The policy is also to “be considered in the 5-year reviews of the status of listed species required by 6 U.S.C. § 1533(c)(2)” Id. The tri-state murrelet distinct population segment determination was thus subject to consideration under the new DPS Policy when it came up for a five-year review.
THE 5 YEAR REVIEW: The Five-Year Review was conducted by “over a dozen biologists,” along with “an international environmental consulting company.”... the Five-Year Review first analyzed whether the tri-state murrelets qualified as a distinct population segment under the DPS Policy. FWS found that, as of 2002 when Canada protected its murrelet population under SARA, there were no significant differences at the American/Canadian border in legal protections for the species. As the American and Canadian murrelet populations are not otherwise separate, FWS found that they did not meet the DPS Policy’s discreteness criterion, and so could not properly be termed a distinct population segment. FWS noted, however, that the district court in Marbled
Murrelet v. Lujan, No. C91-522R, 4-7 (D. Wash. Sept. 17, 1992).“found that, as the murrelet qualifies for listing as a threatened species throughout a significant portion of its range, ‘there is no need to consider the alternative basis of whether the tri-state population is a distinct population segment.’ ”... The Review went on to find that the tri-state murrelets are still threatened and that none of the interim delisting criteria from the Recovery Plan have been met. Further, the new information FWS collected supports the conclusion that the past harvest of oldgrowth forests in the Washington, Oregon, and California range of the murrelet has significantly contributed to a commensurate decline in the number of murrelets rom historic numbers There is no compelling information indicating this situation has improved through the production of significant new suitable nesting habitat since listing. Accordingly, the Review concluded, a change in ESA classification was not warranted because “e threat situation has not changed.
CORE RULING: The ESA and APA provisions under which Coos County filed its complaint require that it be able to allege either, under the ESA, “a failure of the Secretary to perform any act or duty under section 1533 . . . which is not discretionary with the Secretary,” 16 U.S.C. § 1540(g)(1)(C), or, under the APA, that FWS has “failed to take a discrete agency action that it is required to take,” SUWA, 542 U.S. at 64 (interpreting 5 U.S.C. § 706(1), emphases in original). Coos County cannot meet these requirements... Preliminarily, we hold that Coos County’s APA, 5 U.S.C. § 706(1) cause of action is precluded because it is identical in all relevant respects to the ESA cause of action, which provides Coos County with an “adequate remedy.”... The remaining — ESA — cause of action cannot succeed either... As we have demonstrated, the deadlines which the ESA applies to the petition process are not incorporated, sub silentio, into the five-year review provision. There can therefore be no violation of § 1533(b)(3)(B)(ii)... In effect, FWS concluded that “the available evidence is not sufficiently definitive to justify proposing” any changes to the murrelets’ status at this time, see 50 C.F.R. § 424.15, and that what information it did have showed that the threats to the species continued... FWS gave reasons for continuing the listing, entirely independent of its distinct population segment determination. No duty to delist can possibly arise from FWS’s determination that delisting was not warranted.
CONCLUSION: We hold that the dismissal of Coos County’s complaint was entirely proper. Coos County, however, is not without recourse. It may file a delisting petition. As the District Court for the District of Columbia put it while granting summary judgment to the government in American Forest Research Council v. Hall, 533 F. Supp. 2d 84, 93 (D.D.C. 2008), see prior ESA blawg (Feb. 21, 2008) an action brought by other parties challenging the tri-state murrelet Five-Year Review on grounds very similar to those in this case: “ oos Countybelieves that the threatened listing of the tri-state population causes he Countyunwarranted injury, thas the right and the ability to petition FWS to delist the tri-state population of the marbled murrelet. . . . But oos Countyhas failed to pursue this course of action.” 533 F. Supp. 2d at 93. Coos County maintains that FWS has already drawn conclusions in a five-year review, so that it would be futile now to file a petition. That argument relies on Coos County’s erroneous belief that the five-year review and petition processes substitute for each other. They do not.
The Five-Year Review here functioned as it was supposed to: It provided useful information that prompted FWS to consider broadening protections for the murrelets, and to consider revising aspects of its current listing. It also provided information to Coos County and other interested members of the public,
including parties who may decide, based on the information provided in the Five-Year Review, to file a delisting petition. To separate this process from the petition process makes perfect sense. Nor would such a petition be futile. FWS’s conclusions in five-year reviews are not set in stone. Rather, five-year
reviews provide useful guidance on the rationales and data presently supporting an ESA listing, point up remaining uncertainties, and allow petitioners to marshal arguments and information that the agency may find germane in light of the review. The extensive public process triggered by the filing of a petition may well change the agency’s mind.