ESA in the District Courts: jumping mouse in Colorado, Fishers in California, prarie dogs in Arizona.
CENTER FOR NATIVE ECOSYSTEMS v. SALAZAR, 711 F.Supp.2d 1267 (D. Colorado, April 14, 2010) / Civil Action No. 09-cv-01463-AP
BACKGROUND: Environmental groups brought action under Endangered Species Act (ESA) challenging Fish and Wildlife Service's (FWS) final rule to de-list Preble's meadow jumping mouse in Wyoming, and to list it as threatened, rather than endangered, in Colorado, as well as memorandum opinion upon which final rule was based. Wyoming and farming and stock growers associations intervened. Groups moved to supplement administrative record.
HOLDING: The District Court, Kane, J., held that: (1) complaint did not constitute improper facial challenge; (2) agencies had to include in administrative record documents considered by relevant decision makers in connection with legal opinion underlying decision; (3) biological assessments (BA) and biological opinions (BiOp) did not form portion of administrative record; but (4) supplementation of administrative record to include BAs and BiOps was warranted.
EXCERPT: Though I do not speculate as to the Respondents' motives in failing to consider these documents, it is apparent that they are relevant to the decision to de-list the Preble's in Wyoming. The BAs and BiOps contain detailed information and analysis relating to the Preble's... these documents were created by the agency's own experts and are relevant to the decision challenged in this case. Nevertheless, Respondents argue that... they intentionally decided not to consider the substance of the consultation documents to which Petitioners refer.
KEITHINKING: If supplementation of the administrative record continues to be reduced to an issue of "relevance," then the norms of APA litigation -- deferential "arbitrary and capricious" review -- have been rewritten by case law. ESA cases will depend upon a Plaintiffs ability to find other "relevant" documents, and the judiciary's willingness to declare those other documents sufficient to conclude that the agency failed to articulate a rational connection between the facts found and the decision made, supported by substantial evidence in the record. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983).
CENTER FOR BIOLOGICAL DIVERSITY v. SALAZAR, No. C 10-1501 JCS, Docket No. 60, Slip Copy, 2010 WL 4055568 (N.D.Cal., Oct. 15, 2010).
SUMMARY: Plaintiffs bring this action challenging the findings made by the United States Fish and Wildlife Service (“the Service”) in 2004, 2005, 2006, 2007, 2008 and 2009 under the Endangered Species Act (“ESA”), 16 U.S.C. § 1533(b)(3)(iii), that the listing of the west coast population of the Fisher as an endangered species is “warranted but precluded” by other pending ESA listing proposals. See Complaint for Declaratory and Injunctive Relief (Docket No. 1) (“Complaint”), at 38-46. The Plaintiffs also challenge whether expeditious progress is being made on those pending proposals in violation of the ESA. Id. The Federal Defendants have filed a motion for partial dismissal under Rule 12(b)(1) on the ground that some of the claims in the Plaintiff's Complaint are moot and that this Court therefore lacks subject matter jurisdiction over them. A hearing was held on October 1, 2010. Having considered the papers filed and the arguments of counsel at the hearing, the Court DENIES the Defendants' motion to dismiss.
KEITHINKING: While the warranted but precluded and candidate process has helped the Service's assert a degree of discretion over their decision-making based upon budgets and competing priorities, this lawsuit, coupled with the court's refusal to dismiss it, suggests that the scrutiny will soon increase even more. (Particularly noteworthy was the discussion of the potential for the mootness exception to apply, because each year, when FWS makes a decision, it mooted out litigation based on the prior year.)
WILDEARTH GUARDIANS v. SALAZAR, No. CV-09-00574-PHX-FJM, 2010 WL 3895682 (D. Arizona, Sept. 30, 2010)(FREDERICK J. MARTONE, District Judge).
BACKGROUND: In 2004, the plaintiff's predecessor petitioned the defendant to list the Gunnison's prairie dog as an en-dangered or threatened species. See id. § 1533(b)(3)(A). The Gunnison's prairie dog is a ground squirrel which inhabits Arizona, Colorado, New Mexico, and Utah. On February 5, 2008, the defendant found that listing the Gunnison's prairie dog was warranted within the “montane portion” of its range in central and south-central Colorado and north-central New Mexico and not warranted within the remaining “prairie portion” of its range. Tr. at 18755 (finding published at 73 Fed.Reg. 6660).
EXCERPT: Congress defined endangered and threatened species as species under the plain language of the ESA. Therefore, this “is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781. The defendant cannot determine that anything other than a species, as defined by the ESA, is an endangered or threatened species. Because the montane Gunnison's prairie dog cannot warrant listing in accordance with the plain language of the ESA unless there is a species called the montane Gunnison's prairie dog, we set aside the defendant's Gunnison's prairie dog finding and remand the matter to the agency for further action consistent with this Order. The plaintiff's remaining contentions are moot.