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American Bird Conservancy v. Kempthorne

October 9, 2007

AMERICAN BIRD CONSERVANCY, ET AL., PLAINTIFFS,
v.
DIRK KEMPTHORNE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pisano, District Judge.

OPINION

Currently before the Court is a motion by defendants, Dirk Kempthorne, Secretary of the United States Department of the Interior, and H. Dale Hall, Director of the United States Fish and Wildlife Service (collectively, "Defendants"), for judgment on the pleadings and to dismiss for lack of jurisdiction. Defendants seek dismissal of Plaintiffs' Amended Complaint, alleging that this Court lacks jurisdiction to review the agency action challenged in this case or, alternatively, that the Plaintiffs' claims are moot. Because the Court finds that the challenged action is one that is not subject to judicial review under the applicable statutes, Defendants' motion is granted and this matter is dismissed.

I. Background

A. Factual and Statutory Background

In 1973, Congress enacted the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (the "ESA"), "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). The ESA directs that the Secretary of the Interior ("Secretary")*fn1 shall "determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational 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) (these factors are sometimes referred to herein as the "five listing factors"). This determination by the Secretary must be made "solely on the basis of the best scientific and commercial data available . . . after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation. . . to protect such species."16 U.S.C.§ 1533(b)(1)(A).

To receive protection under the ESA, a species must be "listed" by Secretary as endangered or threatened. The determination of whether a given species should be listed as endangered or threatened under the ESA may be made either through the agency-initiated "candidate process" or in response to a citizen petition. See 16 U.S.C. §§ 1533(a)(1),1533(b)(3). Once a species is listed, the Secretary "shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species." 16 U.S.C.A. § 1533(d).

Under the petition process, any "interested person" may petition to have a species listed as threatened or endangered. 16 U.S.C. § 1533(b)(3)(A). Pursuant to the ESA, within 90 days after receiving a citizen petition (to the "maximum extent practicable"), the Secretary must determine whether the petition presents "substantial scientific or commercial information" such that the petitioned action may be warranted. Id. This is generally referred to as a "90-day finding." If it is found that listing is not warranted, the listing process ends for that species. However, if the Secretary finds that listing may be warranted, then further review of the species' is conducted. Id. This review must be completed within 12 months of receiving the petition (generally known as a "12-month finding") and must state whether the petition action is (1) warranted, (2) not warranted, or (3) warranted but precluded by other listing activity. 16 U.S.C. § 1533(b)(3)(B). To make a "warranted but precluded" finding, the Secretary must conclude that the petitioned action is warranted, but that immediate listing is precluded by pending listing proposals and that "expeditious progress" is being made to address pending listing proposals. 16 U.S.C. 1533(b)(3)(B)(iii). If a "warranted but precluded" finding is made, the agency must publish the finding in the Federal Register along with a "description and evaluation of the reasons and data on which the finding is based." Id.

Under the normal listing procedure, the Secretary lists a species by promulgating a regulation after undertaking formal rulemaking pursuant to the procedures set forth in the ESA and the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq. See 16 U.S.C. § 1533(b)(4). However, in situations where there exists an "emergency posing a significant risk to the well-being of any species of fish or wildlife or plants," the Secretary is given the authority under the ESA to bypass ESA and APA rulemaking procedures and issue regulations, including a listing, that take effect, at the discretion of the Secretary, immediately upon publication in the Federal Register. 16 U.S.C. § 1533(b)(7). These emergency regulations are temporary in nature and remain in force for only 240 days, although rulemaking pursuant to the standard procedures may conducted during that time to enact further regulations. Id. In order to issue an emergency regulation, the Secretary must publish in the Federal Register "detailed reasons why such regulation is necessary" and give actual notice to appropriate state agencies of the regulation. 16 U.S.C. § 1533(b)(7).

In late July and early August 2005, Plaintiffs petitioned the FWS and the Department of the Interior to list the migratory shorebird Calidris canutus rufa, commonly known as the "red knot," as "endangered on an emergency basis, and to designate critical habitat in the Delaware Bay ecosystem under the ESA." Compl.*fn2 at ¶ 6 (internal quotations omitted). The red knot is a medium-sized shorebird that travels each year from wintering grounds in Patagonia and Tierra del Fuego to breeding grounds in the Arctic. Id. at ¶ 2. The birds make a stop during this migration in the Delaware Bay area, where they feed on horseshoe crab eggs. According to Plaintiffs' First Amended Complaint ("Complaint"), the population of the red knot has declined over the past 20 years from about 100,000 in the mid-1980's to approximately 13,000 in 2006. Id. at ¶ 4.

About four months after Plaintiffs filed their petition, in a letter dated December 22, 2005 (the "December Letter), Defendants denied Plaintiffs' request to list the red knot on an emergency basis. In that regard, the letter from FWS stated as follows:

While we have not made a decision on whether the petition presents substantial information that the petitioned action may be warranted, we have looked at the immediacy of possible threats to the species to determine if emergency listing may be warranted at this time. Our initial review of your petition, and the information within our files, does not indicate that an emergency situation exists. If at any time the conditions change, and we later determine that an emergency listing is warranted, an emergency rule maybe developed.

However, we will review the petition in the context of a non-emergency, through our petition process.

Compl. at Ex. C.

On September 12, 2006, the FWS issued a Candidate Notice of Review ("CNOR").

71 Fed. Register 53,756 (Sept. 12, 2006). CNORs are published annually by the FWS and provide information regarding the status of the listing program as a whole and progress that is being made on the listing backlog. 50 C.F.R. § 424.15(b). "The CNOR summarizes the status and threats" for each species. 71 Fed. Reg at 53,756. Also, each species is assigned a "listing priority number" from 1 to 12, "depending on the magnitude of threats, imminence of threats, and taxonomic status." Id. at 53,757.

With respect to the red knot, the September 12, 2006 CNOR noted the "substantial decline" in the population in recent years:

At the Delaware Bay area, peak counts between 1982 and 1998 were as high as 95,360 knots. Although counts may vary considerably between years, some of the population fluctuations can be attributed to predator-prey cycles in the breeding grounds, and counts show that knots rebound from such reductions. In the past, horseshoe crab eggs were so numerous that a knot could eat enough in two to three weeks to double its weight. Research shows that from 1997 to 2002 an increasing proportion of red knots leaving the Delaware Bay failed to achieve threshold departure masses needed to fly to breeding grounds and survive an initial few days of snow cover, and this corresponded to reduced annual survival rates. Recently, peak counts at the Delaware Bay area have been lower than in the past and do not show a rebound. The ...


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