NWF v. Harvey: Federal Judge in Arkansas finds flaws in informal consultation on Ivory Billed Woodpeckers
National Wildlife Federation v. Harvey, No. 4:05-CV-01278-WRW, 2008 WL 3365017 (E.D.Ark., Aug. 8, 2008).
Ivory Billed Woodpecker specimen image from ARKive, Images of Life on Earth, © John Cancalosi / www.ardea.com, available online The Ivory Billed Woodpecker (Campephilus principalis) (IBW) is the largest woodpecker in the United States and the second largest in the world. The IBW was thought to be extinct since 1944; however, in April 2005, Cornell scientists confirmed a sighting in the Cache River National Refuge, and it was heard in the White River National Wildlife Refuge. The primary reason for the decrease in the IBW appears to be a reduction in suitable habitat because of logging and conversion of forest habitats. In order to thrive, the IBW must have uninhabited forest with old-growth trees and a continuous supply of newly dead trees. A single breeding pair may need as much as seventeen square miles of bottomland forest to survive. The IBW forages in trees greater than 11.8 inches in diameter at breast height ("dbh"), where they feed on beetles and beetle larvae in dead trees, and on ground dwelling insects. The IBW is known to nest forty feet above ground in large dead trees or in dead portions of live trees.
FACTUAL BACKGROUND: The Grand Prairie consists of approximately 500,000 acres located between the Mississippi and Arkansas Rivers and has become one of the major rice producing areas of the world. The White River runs directly through the region and water used to support agriculture has come primarily from wells drilled into the Alluvial Aquifer… Based on the current rate of usage, scientists estimate that the Alluvial Aquifer will go dry, or nearly dry, in four to nine years… The Grand Prairie Project ("GPP"), which is under attack in this lawsuit, is designed to prevent the depletion of the Alluvial and Sparta Aquifers by pumping water from the White River and delivering it to the Grand Prairie farmland for irrigation. This will be done by constructing a pumping station, and by using a system of man-made canals, pipelines, and existing streams… Importantly, the GPP's impact area will include the White River National Wildlife Refuge, which is home to the largest remaining functional bottomland hardwood ecosystem on any tributary of the Mississippi River. This area is renowned for its fish and wildlife, as well as the overall uniqueness of its ecosystem. It is also the last known North American refuge of the Ivory-billed Woodpecker ("IBW").
PROCEDURAL HISTORY: From 1996 to 2005, NWF and the Corps were engaged in litigation related to the National Environmental Policy Act and the construction of the GPP. After an 8th Circuit affirmation of the NEPA analysis, the Corps began construction... On April 28, 2005, the FWS announced the rediscovery of the IBW, and the Corps suspended construction… The Corps, with FWS concurrence, initially concluded that the GPP was not likely to adversely affect the IBW… but the District Court granted a preliminary injunction on continued GPP construction, agreeing with NWF that there was evidence that the IBW might be jeopardized… After an informal consultation, the Corps and FWS identified the potentially affected habitats, and developed surveys and monitoring criteria, and concluded that the GPP was not likely to adversely affect the IBW.
RULING RE: SURVEYS. The District Court agreed with the Federal Defendants that much of the GPP area is on prairie terrace, and "currently primarily in agricultural production with forested areas confined to lands in public ownership or the lowest wettest areas along streams and drainage.” Thus, most of the project area is "outside the area considered to be within the potential range of the IBW."
RULING RE: WATER WITHDRAWALS: “Based on the administrative record before me, the agencies reasonably decided that the impacts of the water withdrawals would not adversely affect the IBW or its habitat. Additionally, the FWS, aware of the possible effects of water withdrawal, created a monitoring and daptive Management Program as an additional safeguard against unexpected impacts.” … “Plaintiffs argue that it will take many years to detect unacceptable changes, and that Defendants' claims that they will quickly craft and implement solutions to counter unacceptable changes is unreasonable, unscientific, and arbitrary because of the complexity of the ecosystem. To support their position, Plaintiffs again rely on statements that were not part of the administrative record, and therefore, are outside the scope of my review. I must rely on the agencies if they have a reasoned, rationale explanation for their decision, and I find here that they have.”
RULING RE: SURVEY CRITERIA: Plaintiffs argue that the final survey criteria relied upon by the agencies were inadequate and the FWS arbitrarily changed the search criteria used. Ultimately, the District Court held: (i) FWS reasonably set the final survey criteria based upon typical distances traveled by the IBW. (ii) FWS’s final survey criteria placed a greater emphasis on the larger trees and determined that areas dominated by trees with 16 inch in dbh or greater would provide proper nesting and roosting opportunities for the IBW… and FWS conclusion was rational and supported by the record. (iii) FWS properly surveyed the area around permanent structures. However, (iv) FWS unreasonably reduced the monitoring of tree cavities… “FWS does not supply a reasoned basis for its decision to reduce the monitoring time nor is the FWS's logic reasonably discerned. It is unclear why monitoring would be reduced when the IBW was not discovered using the longer monitoring period... reducing the observation time, thereby apparently making it less likely to observe the IBW, without explanation, is arbitrary and capricious. An agency must cogently explain why it has exercised its discretion in a given manner--the FWS has not met this burden.”
REMEDY: “The Supreme Court has held that "when an administrative agency has made an error of law, the duty of the Court is to 'correct the error of law committed by that body, and after doing so remand the case to the agency so as to afford it the opportunity of examining the evidence and finding the facts as required by law.' " In other words, when an administrative error has been identified, a reviewing court "should ordinarily remand the matter to the agency rather than compensate for the agency's oversight by launching a free-wheeling judicial inquiry into the merits." … For the above stated reasons, Defendants' finding that the GPP will not adversely affect the IBW is VACATED, and the action is REMANDED to correct the deficiencies regarding the monitoring period in the administrative record.”
KEITHINKING: The District’s courts ruling on the inadequacy of the tree cavity monitoring program is noteworthy, given the fact that this was an informal consultation. While the record may indeed have lacked sufficient explanation of why FWS felt that less monitoring was reasonable, FWS was held to a very high standard for an analysis of a project that was not likely to adversely affect the species. While certainly a good idea, especially for purposes of helping to locate the Lord God bird, nowhere does the ESA require monitoring to result from informal consultation, and the requirement seems particularly out-of-place for a project found to be NLAA.