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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« In missed deadline litigation, environmental interests advocating action have standing, but property owners seeking to avoid a listing do not. | Main| FWS notices on midwestern species, including warranted but precluded finding on Sprague's Pipit »

Feds admit rule in error, but Court denies request to vacate the rule

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CARPENTERS INDUSTRIAL COUNCIL v. SALAZAR, Civil Action No. 08-1409 (EGS), --- F.Supp.2d ----, 2010 WL 3447243 (D.D.C.,  Sept. 1, 2010)(EMMET G. SULLIVAN, District Judge)

SUMMARY: This case arises from a critical habitat designation and recovery plan that defendant U.S. Fish and Wildlife Service (the “FWS”) promulgated with respect to the threatened northern spotted owl in 2008. Plaintiffs Carpenters Industrial Council et. al. (collectively, the “CIC plaintiffs”) contend that the FWS's final rule on the Revised Designation of Critical Habitat for the Northern Spotted Owl, 73 Fed.Reg. 47326 (the “2008 Critical Habitat Designation”), was arbitrary and capricious and rendered in violation of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 553. Plaintiff-intervenors Seattle Audubon Society et. al. challenge the federal defendants' 2008 Critical Habitat Designation as well as the 2008 Recovery Plan for the Northern Spotted Owl (the “2008 Recovery Plan”) pursuant to the ESA and the APA.

BACKGROUND: Pending before the Court is the federal defendants' motion for voluntary remand and vacatur. In their motion, the federal defendants confess legal error as to the 2008 Critical Habitat Designation and the 2008 Recovery Plan, and ask the Court to: (i) remand and vacate the 2008 Critical Habitat Designation; (ii) remand the 2008 Recovery Plan; and (iii) order the FWS, after issuance of a revised recovery plan, to evaluate whether revision of the 1992 Critical Habitat Designation is appropriate, and if so, to complete rulemaking for a new critical habitat designation after issuance of a revised recovery plan.

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In 1990, the Service estimated spotted owl habitat had declined 60 to 88 percent since the early 1800s.  This loss, which was concentrated mostly at lower elevations and in the Coast Ranges, was attributed primarily to timber harvest and land-conversion activities, Image from FWS.

EXCERPT RE: REMAND: The federal defendants and the Seattle Audubon plaintiff-intervenors argue that voluntary remand is appropriate in light of the IG's Report, which found that the decisional process for the recovery plan for the northern spotted owl was “potentially jeopardized” by the actions of Deputy Assistant Secretary MacDonald. The federal defendants explain that “reconsideration here would allow the Service to remove any question of potential taint from Ms. MacDonald's interference and ensure that the owl's survival and recovery are supported by scientifically valid measures.” Fed. Defs.' Reply Br. at 9.   Therefore, in view of the federal defendants' later-acquired information regarding the actions of Deputy Assistant Secretary MacDonald, which raise “substantial and legitimate concerns” about the rule-making process for the northern spotted owl, the Court concludes that the FWS's request for voluntary remand is well justified. See also, e.g., Alliance for the Wild Rockies, Inc., 2009 WL 2015407, at *2 (granting the FWS's request for the voluntary remand of a critical habitat designation in light of the IG's Report on Deputy Assistant Secretary MacDonald); Coal. of Arizona/New Mexico Counties, No. 07-876, slip op. at 5 (same). Voluntary remand will also preserve this Court's scarce judicial resources by providing the federal defendants' the opportunity to “cure their own mistakes.” Ethyl Corp., 989 F.2d at 524; see, e.g., Nat'l Res. Def. Council, 275 F.Supp.2d at 1141 (“Voluntary remand also promotes judicial economy by allowing the relevant agency to reconsider and rectify an erroneous decision without further expenditure of judicial resources.”);   Sierra Club, 560 F.Supp.2d at 24-25 (“Remand in this case will serve the interest of allowing the overnmentto cure its own potential mistake rather than needlessly wasting the Court's and the parties' resources.”). Accordingly, the federal defendants' request for voluntary remand is hereby GRANTED consistent with the terms set forth herein.

EXCERPT RE: VACATUR: federal defendants and the Seattle Audubon plaintiff-intervenors argue that the Court has the authority to vacate the 2008 Critical Habitat Designation without making a determination of the merits as a result of the federal defendants' confession of legal error. Although two courts have agreed with this position and exercised their equitable power to summarily vacate critical habitat designations, see Coal. of Arizona/New Mexico Counties for Stable Econ. Growth v. Salazar, No. 07-876, slip op. at 5 (D.N.M. May 4, 2009); Natural Res. Def. Council, 275 F.Supp.2d at 1143, this Court is not persuaded that it has the authority to order vacatur of the 2008 Critical Habitat Designation without an independent determination that the FWS's action was not in accordance with the law. See generally 5 U.S.C. § 706(2) (directing a reviewing court to hold unlawful and set aside agency action, findings, and conclusions that it finds to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law). To summarily grant the federal defendants' request for vacatur “would allow the Federal defendants to do what they cannot do under the APA, repeal a rule without public notice and comment, without judicial consideration of the merits.” Nat'l Parks Conservation Ass'n, 2009 WL 2497393, at *3. The Court, therefore, concludes that it lacks the authority to grant the federal defendants' request for vacatur without a determination of the merits.

EXCERPT RE: TIMING. Finally, the federal defendants ask the Court to order the FWS, after issuance of the revised recovery plan, to evaluate whether revision of the 1992 Critical Habitat Designation is appropriate, and if so, to complete rulemaking for a new critical habitat designation with 24 months of the issuance of the recovery plan. The Court finds this request-which was premised upon vacatur of the 2008 Critical Habitat Designation-moot in light of the Court's ruling on the issue of vacatur.However, in view of the federal defendants' confession of legal error as to the 2008 Critical Habitat Designation, the Court is sensitive to the need for new rulemaking for the owl to be undertaken as expeditiously as possible. Accordingly, by no later than September 30, 2010, the parties are directed to submit a joint proposed timetable to the Court addressing the length of time within which rulemaking for a new critical habitat designation for the northern spotted owl shall be completed; in the event that the parties are unable to reach a joint recommendation, each party shall submit an individual recommendation by that time. The Court will withhold issuance of its Order remanding the 2008 Critical Habitat Designation to the FWS pending resolution of this issue .

KEITHINKING: Ah, the machinations of justice.  The Federal Government admits that its rule was in error, and asks for its repeal, but the court denies the request, and leaves the rule intact, so now all the parties can file briefs seeking a formal determination that the rule should be revoked, just like they asked.  Anyone else smell an attorney's fees issue in the wind?  Sadly, the 2008 Recovery Plan was considered an important step in what has been a multi-decade effort to recover the spotted owl. See FWS.