JOHN D. BATES, District Judge.
Plaintiffs American Forest Resource Council, Carpenters Industrial Council, and Douglas County, Oregon (collectively, "AFRC") bring this action for declaratory and injunctive relief against defendants Daniel M. Ashe, Director of the U.S. Fish and Wildlife Service, and Ken Salazar, Secretary of the Interior (collectively, "FWS"). AFRC alleges that FWS violated the Endangered Species Act, 16 U.S.C. § 1531 et seq., and the Administrative Procedure Act, 5 U.S.C. § 551 et seq., in its listing and critical habitat decisions concerning the marbled murrelet, a small Pacific seabird. In three of its seven claims for relief, AFRC challenges FWS's determination that removing the Washington, Oregon, and California population of the murrelet from the Endangered Species Act list of threatened species was not warranted. AFRC has moved for summary judgment on these three claims. AFRC's other four claims challenge FWS's designation of critical habitat for the murrelet.
The Endangered Species Act ("ESA" or "Act") is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). It is intended "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 the Secretary of the Interior ("the Secretary"), who acts through FWS, to list species that he determines are endangered or threatened. See id. § 1533(a); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1064 (D.C.Cir.2003); 50 C.F.R. § 402.01. An "endangered species" is one that is "in danger of extinction throughout all or a significant portion of its range"; a "threatened species" is one that is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(6, 20).
The term "species" includes "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16). The term "distinct population segment" ("DPS") is not defined in the ESA, but has been interpreted in a 1996 joint policy issued by FWS and the National Marine Fisheries Service ("NMFS"). See Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act ("DPS Policy"), 61 Fed.Reg. 4722 (Feb. 7, 1996); see also Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1145 (9th Cir.2007) (holding that "the DPS Policy is a reasonable construction of `distinct population segment'"). The DPS Policy identifies three elements to be considered in deciding whether a DPS exists: (1) the discreteness of the population segment in relation to the remainder of its species; (2) the significance of the population segment to its species; and (3) the population segment's conservation status in relation to the ESA's listing standards. See 61 Fed. Reg. at 4725.
An interested party may file a petition to list or delist a species. See 16 U.S.C. § 1533(b)(3). Within 90 days of receiving such a petition, FWS must, to the extent practicable, "make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted" and publish this finding in the Federal Register. Id. § 1533(b)(3)(A). FWS then has one year to conduct a status review to determine whether the petitioned action is warranted, not warranted, or warranted but precluded. Id. § 1533(b)(3)(B).
The ESA also directs the Secretary to designate certain geographical areas as "critical habitat." See 16 U.S.C. § 1533(c). Critical habitat is defined as:
Id. § 1532(5)(A). Physical and biological features that are essential to the conservation of a species and that may require special management considerations or protection are known as "primary constituent elements" or "PCEs." See 50 C.F.R. § 424.12(b).
Critical habitat designations must be made "on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat." Id. § 1533(b)(2). Under section 4(b)(2) of the Act, FWS "may exclude any area from critical habitat if [it] determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat," unless it determines that "the failure to designate such area as critical habitat will result in the extinction of the species concerned." Id.
Once a species is listed under the ESA, it gains the benefit of a host of protective measures. Prominent among these is what is known as the section 7 consultation requirement. Under section 7(a)(2) of the Act, every federal agency is required to ensure that any action it authorizes, funds, or carries out "is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species." 16 U.S.C. § 1536(a)(2). Also, the ESA prohibits the "take" of any listed species. Id. § 1538(a)(1); 50 C.F.R. § 17.31(a). The term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(9).
The marbled murrelet is a small, diving seabird that inhabits the waters along the Pacific coast of North America and nests primarily in old-growth forests near the coast. AR 6747. The murrelet's range is from central California to the Aleutian Islands of Alaska. Id. at 6748. Marbled murrelets have been recognized as comprising three genetic units: (1) the western and central Aleutian Islands, (2) the eastern Aleutian Islands to northern California, and (3) central California. Id. at 7, 6789. Murrelets face threats from the logging of old-growth nesting habitat and other sources and are declining throughout their range. Id. at 6885, 8415.
FWS listed the Washington, Oregon, and California ("tri-state") population of the marbled murrelet as a threatened species in 1992. 57 Fed.Reg. 45,328 (Oct. 1, 1992). At that time, FWS deemed the tri-state population of the murrelet "to constitute a distinct population segment comprising a significant portion of the eastern Pacific subspecies of the marbled murrelet." Id. at 45,330. But in the final rule listing the murrelet FWS noted: "[S]ome question remains whether the population listed in this rule qualifies for protection under the Act's definition of `species.'" Id. FWS did not designate critical habitat
In 1994 FWS published a proposed rule for the designation of murrelet critical habitat. 59 Fed.Reg. 3811 (Jan. 27, 1994). After receiving public comments, FWS issued a final designation of critical habitat on May 24, 1996; it designated 3,887,800 acres of federal and non-federal lands in Washington, Oregon, and California as critical habitat for the murrelet. 61 Fed. Reg. 26,256 (May 24, 1996).
In March 2002, AFRC and three of its members filed suit in the District of Oregon, seeking to compel FWS to conduct a five-year status review of the murrelet DPS and challenging the 1996 critical habitat designation. See Am. Forest Res. Council v. Dep't of Interior ("AFRC I"), No. 02-6087 (D.Or.). The parties subsequently entered into a settlement agreement, pursuant to which FWS agreed to do a five-year status review and initiate a rulemaking to consider potential revisions to the murrelet critical habitat designation.
FWS completed the five-year status review in 2004, and in it concluded that the tri-state population of the murrelet remained threatened. See AR 8388. However, FWS also concluded that the tri-state population did not qualify as a DPS under the DPS Policy because the tri-state population was "not discrete." Id. at 8382. Despite this conclusion, FWS said that there would be no change to the species' threatened status, at least not until after the completion of a "range-wide" status review. Id. at 8395. AFRC subsequently filed suit in this Court challenging FWS's five-year status review, including its decision not to change the murrelet's listing status. See Am. Forest Res. Council v. Hall ("AFRC II"), 533 F.Supp.2d 84 (D.D.C.2008). This Court held that FWS's five-year status review was not judicially reviewable final agency action. See id. at 93-94.
Following this Court's decision, plaintiffs in the present case, who represent the forest products industry, petitioned FWS to delist the tri-state population of the murrelet. See AR 2726-36.
FWS completed its second five-year status review in June 2009, concluding that the tri-state population of the murrelet was in fact "discrete," was "significant," and hence was a valid DPS under the 1996
In September 2006, FWS published and sought comment on a proposed rule to revise the 1996 critical habitat designation "in response to [the 2003] settlement agreement." See 71 Fed.Reg. 53,838, 53,838 (Sept. 12, 2006). The agency proposed to designate 3,590,642 acres as critical habitat for the murrelet, but to exclude 3,368,950 of those acres under section 4(b)(2) of the ESA. Id. If adopted in its entirety, the proposed rule would have resulted in a designation of 221,692 acres in total. Id.
In March 2008, FWS published a notice stating that the critical habitat designation for the murrelet should not be revised "[d]ue to uncertainties regarding Bureau of Land Management (BLM) revisions to its District Resource Management Plans in western Oregon." 73 Fed.Reg. 12,067, 12,067 (Mar. 6, 2008). In July of that year, FWS published another proposed rule to revise critical habitat for the murrelet, this time by removing about 254,070 acres in California and Oregon. 73 Fed.Reg. 44,678 (July 31, 2008). In October 2011, FWS published a final rule removing about 189,671 acres in northern California and southern Oregon from the 1996 designation. 76 Fed.Reg. 61, 599 (Oct. 5, 2011).
AFRC filed suit in this Court in January 2012. See Compl. [ECF 1].
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In a case involving review of final agency action under the Administrative Procedure Act ("APA"), however, the standard set forth in Rule 56(a) does not apply because of the limited role of a court in reviewing the administrative record. See Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F.Supp.2d 42, 52 (D.D.C.2010) (citing Sierra Club v. Mainella, 459 F.Supp.2d 76, 89 (D.D.C.2006)), aff'd, 408 Fed.Appx. 383 (D.C.Cir.2010); see also Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001) ("[W]hen a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The entire case on review is a question of law." (footnote and internal quotation marks omitted)). Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas "the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." See Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.1985). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. See Richards v. INS, 554 F.2d 1173, 1177 & n. 28 (D.C.Cir.1977).
Plaintiffs challenge the decisions of FWS under the citizen suit provision of the ESA and under the APA. Because the ESA does not specify a standard of review for agency action, the APA standard of review applies. See AFRC II, 533 F.Supp.2d at 89 (citing Nat'l Ass'n of Home Builders v. Norton, 415 F.3d 8, 13 (D.C.Cir.2005)). The APA requires that the Court "hold unlawful and set aside
"Approving a consent decree `is a judicial act,' and the Court undertakes it with care." United States v. Wells Fargo Bank, NA, 891 F.Supp.2d 143 (D.D.C. 2012) (quoting United States v. Microsoft Corp., 56 F.3d 1448, 1462 (D.C.Cir.1995)). "[A] federal consent decree must spring from, and serve to resolve, a dispute within the court's subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based." Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004).
Before approving a consent decree, a court must determine that it is fair and consistent with the public interest. See Citizens for a Better Env't v. Gorsuch, 718 F.2d 1117, 1126 (D.C.Cir.1983). The Court's duty is not to "inquire into the precise legal rights of the parties nor reach and resolve the merits of the claims or controversy," but only to "determine that the settlement is fair, adequate, reasonable and appropriate under the particular facts and that there has been valid consent by the concerned parties." Id. (internal quotation marks omitted). Generally it is not only the parties, but also the general public, that benefit from the time and monetary savings that result from voluntary settlements. Id.
The parties have cross-moved for summary judgment on AFRC's claims challenging FWS's decision that delisting the murrelet was "not warranted." AFRC challenges that decision under the ESA and the APA on three grounds: first, that FWS failed to determine that murrelets in the tri-state DPS "interbreed when mature"; second, that FWS arbitrarily and capriciously determined that the tri-state DPS was "significant"; and third, that FWS arbitrarily and capriciously determined
AFRC's first argument is that FWS did not determine that all murrelets in the DPS interbreed when mature, as required by the ESA, see 16 U.S.C. § 1532(16), and that FWS's failure to make this determination was arbitrary and capricious. See Pls.' Mot. for Summ. J. [ECF 33] ("AFRC MSJ") 11-16. According to AFRC, because it is undisputed that central California murrelets are genetically distinct from other murrelets in the DPS, the record before FWS "unequivocally" showed that the two groups do not interbreed. See id. at 15.
FWS contends that AFRC waived this claim by failing to raise it during the administrative process. As a general matter, "[a] party must first raise an issue with an agency before seeking judicial review." ExxonMobil Oil Corp. v. FERC, 487 F.3d 945, 962 (D.C.Cir.2007) (citing United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37, 73 S.Ct. 67, 97 L.Ed. 54 (1952)); see also Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1150 (D.C.Cir.2005) ("[A] party will normally forfeit an opportunity to challenge an agency rulemaking on a ground that was not first presented to the agency for its initial consideration."). This doctrine — interchangeably termed "issue exhaustion" and "issue waiver" — does not represent an "ironclad rule" and ordinarily is not a "jurisdictional prerequisite to judicial review." See Advocates, 429 F.3d at 1148-49 (citing, inter alia, Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000)). But given the narrow scope of review of agency action and for reasons of "simple fairness" to the agency, courts typically require arguments advanced in court to have been raised first before the agency. See ExxonMobil, 487 F.3d at 962; see also Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C.Cir.2013) (per curiam).
AFRC argues that "issue exhaustion" does not limit the Court's review of its claims because it is suing under the citizen suit provision of the ESA, 16 U.S.C. § 1540(g), and that provision's 60-day notice requirement displaces all other exhaustion requirements. See Pls.' Reply & Opp'n [ECF 41] ("AFRC MSJ Reply") 1, 7. AFRC cites four decisions from courts outside this circuit for the proposition that giving 60-day notice is the sole exhaustion requirement for an ESA claim; it also cites eight additional decisions purportedly holding that the 60-day notice requirements in other environmental citizen suit provisions similarly "override any prudential exhaustion requirement[s]." See id. at 7-8.
To the extent that AFRC is arguing that it did not have to avail itself of additional administrative procedures before bringing a citizen suit under the ESA, the Court fully agrees. See 16 U.S.C. § 1540(g); see also id. § 1533(b)(3)(B)(i), (C)(ii) (a finding that petitioned action is "not warranted" is subject to judicial review). AFRC gave FWS 60 days notice of its intent to sue to remedy the agency's alleged violations of the ESA, including the denial of AFRC's delisting petition. Hence, AFRC fulfilled its exhaustion obligation under § 1540(g) and did not have to pursue any further administrative remedies after FWS issued its "not warranted" decision.
But § 1540(g) does not obviously preclude the imposition of an issue exhaustion requirement. The Court does not interpret the cases cited by AFRC to do so either, and even assuming that one or more of those cases intended to address issue exhaustion and not just exhaustion of administrative remedies, none offers a persuasive rationale as to why issue exhaustion should not apply in an ESA citizen suit. Indeed, a primary purpose of issue exhaustion is to prevent courts from "`review[ing]' a substantive claim that has never even been presented to the agency for its consideration," see Advocates, 429 F.3d at 1150, and the purpose of the 60-day "notice" requirement is similar: to put the agency on notice of the alleged statutory violation so that it may have an opportunity to remedy it. Several of the cases relied on by AFRC recognize this purpose. See, e.g., Ky. Heartwood, 20 F.Supp.2d at 1091 ("The purpose of the sixty (60) day notice requirement is to give the offending agency an opportunity to cure the alleged illegality."); Silver, 924 F.Supp. at 987 (same); Am. Canoe Ass'n, 30 F.Supp.2d at 922 n. 16 ("Given the plaintiffs' compliance with the 60-day notice provision, which gave EPA actual notice of the claims and time in which to act upon them, they have exhausted all administrative procedures required or available under the Clean Water Act."); Culbertson, 913 F.Supp. at 1578 ("The sixty-day notice provision allows the agency to act prior to federal court involvement, thus serving as a statutory exhaustion requirement."). In the Court's view, however, the ESA's 60-day notice requirement does not relieve a party of its obligation to tell the agency what it is the party thinks the agency did wrong. If anything, it reinforces that obligation.
Moreover, AFRC states that "[i]f [its] claims in this case were based on the judicial review provisions of the APA, there would likely be an issue exhaustion requirement." AFRC MSJ Reply 6. Yet its claims in this case are based in part on the APA, see, e.g., Compl. ¶¶ 31-46 (alleging claims under APA, 5 U.S.C. § 706(2)), and its ESA claims are governed by the judicial review provisions of the APA, see
The Court recognizes, nonetheless, that the application of issue exhaustion will depend on the particular administrative context. See Advocates, 429 F.3d at 1148. As the Supreme Court said in Sims v. Apfel: "The basis for a judicially imposed issue-exhaustion requirement is an analogy to the rule that appellate courts will not consider arguments not raised before trial courts." 530 U.S. at 108-09, 120 S.Ct. 2080. AFRC stresses, correctly, that issue exhaustion is most appropriate "[w]here the parties are expected to develop the issues in an adversarial administrative proceeding." See AFRC MSJ Reply 14 (quoting Sims, 530 U.S. at 110, 120 S.Ct. 2080). But it can also be appropriate where the administrative proceeding is non-adversarial. The D.C. Circuit has applied issue exhaustion numerous times where the underlying proceeding was an agency rulemaking. See Advocates, 429 F.3d at 1148-50 (rejecting argument that "it is inappropriate [under Sims] to apply the general principles of issue waiver to administrative rulemaking"); see also, e.g., Koretoff, 707 F.3d at 398-99; Nat'l Mining Ass'n v. Dep't of Labor, 292 F.3d 849, 874 (D.C.Cir. 2002); Nat'l Wildlife Fed'n v. EPA, 286 F.3d 554, 562 (D.C.Cir.2002) (per curiam) ("We decline to reach the merits of NWF's cost estimate challenges because neither NWF nor any other party before the agency raised any of these contentions during the administrative phase of the rulemaking process.").
Here, the administrative process preceding the challenged "not warranted" decision was neither adversarial nor a notice-and-comment rulemaking. See 16 U.S.C. § 1533(b)(3)(A, B). AFRC asserts that because of the nature of the administrative process, it did not have the public participation rights associated with a standard rulemaking. For example, there was no proposed "not warranted" decision or even a formal public comment period, and FWS did not publish any response to the comments it did receive. See AFRC MSJ Reply 14-15. Hence, AFRC argues that the case for issue exhaustion is weak in this context.
This argument has some persuasive force. If, because of the nature of the administrative process, AFRC did not have a reasonable opportunity to present its "interbreeds when mature" argument to FWS in the first instance, then it would be unfair to refuse to consider it here on that basis. See CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1079 (D.C.Cir.2009) (not imposing issue exhaustion requirement where party "had no way to raise [its] argument until the Board issued its final rule"). If, however, AFRC could have presented its "interbreeds when mature" argument but failed to alert the agency to that issue, then FWS "cannot be faulted for failing to address [the] issue[]." See Appalachian Power Co. v. EPA, 251 F.3d 1026, 1036 (D.C.Cir.2001). The Court therefore looks to the series of events surrounding AFRC's delisting petition and the "not warranted" decision.
AFRC submitted its delisting petition after, and in reliance on, the 2004 status review's conclusion that the tri-state DPS was not discrete. It is no surprise that AFRC's delisting petition focused on that issue. See AR 2731-36. Then, in FWS's 90-day finding that delisting "may be warranted," the agency stated that its discreteness
FWS then issued the 2009 five-year status review and the "not warranted" finding on AFRC's petition. Despite AFRC's assertion that FWS "conducted the entire status review behind closed doors" and "simply announced the result at the conclusion of the process," FWS's approach did not prevent AFRC from arguing that central California murrelets do not "interbreed when mature" with other murrelets in the tri-state DPS. See AFRC MSJ Reply 14. The result announced — that the tri-state population of the murrelet was a valid DPS — was nothing new; the tri-state DPS had been listed since 1992. Compare CSX Transp., 584 F.3d at 1079 (concluding that petitioner had "no way to raise" argument before final rule issued because final rule included change not indicated in proposed rule).
Finally, AFRC's 60-day notice, given after the administrative process was complete, still did not explicitly raise the "interbreeds when mature" issue. Although the notice contains language taken from the ESA's definition of "species," which includes the words "interbreeds when mature," 16 U.S.C. § 1532(16), the notice does not in any way draw attention to these words and hence was insufficient to preserve the issue. While agencies must ensure that their decisions meet statutory requirements, they "have no obligation to anticipate every conceivable [statutory] argument" that could be made. See Koretoff, 707 F.3d at 398 (rejecting argument that "the Secretary was `obligated under the APA to address [his] statutory authority sua sponte,' whether `raised by a commenter or not'"); see also State Farm, 463 U.S. at 51, 103 S.Ct. 2856 (stating that a rulemaking "`cannot be found wanting simply because the agency failed to include every alternative ... thought conceivable by the mind of man'" (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978))); Ohio v. EPA, 997 F.2d 1520, 1528-29 (D.C.Cir.1993) (finding argument that rule violated statute was waived).
Because AFRC did not raise the specific "interbreeds when mature" issue in its petition, its comments to the agency, or its 60-day notice, the issue was waived. Hence, FWS did not act arbitrarily or capriciously by failing to make an explicit "interbreeds when mature" determination. See Advocates, 429 F.3d at 1150.
This is not the end of the "interbreeds when mature" inquiry, however. AFRC also contends that FWS's "significance" determination was arbitrary and capricious. FWS found that the tri-state population of murrelets was significant because its loss would result in (1) a significant gap in the range of the murrelet and (2) the loss of unique genetic characteristics that are significant to the taxon. See AR 7. Both of these conclusions, however, rest on the inclusion of central California murrelets
AFRC argues that the inclusion of central California murrelets in the DPS fatally "taint[s]" the significance determination. See AFRC MSJ 17. Although AFRC argued that the tri-state population was not significant in its comment in support of delisting, it did not raise this particular argument — that in assessing significance, FWS could not properly consider central California murrelets as part of the DPS because they do not interbreed with Washington, Oregon, and northern California murrelets. See AR 2744-46. Hence, FWS makes a plausible argument that AFRC forfeited its opportunity to challenge the significance determination on this basis. See Def.'s Cross-Mot. for Summ. J. & Opp'n [ECF 38] ("FWS Cross-Mot.") 34; see also Advocates, 429 F.3d at 1150.
But even if the Court were to find this particular argument waived, it would nevertheless have to review FWS's significance determination based on the evidence in the record. A problem with doing that, however, is that the "interbreeds when mature" issue underlies the significance determination. Counsel for FWS conceded as much at the motions hearing. To fairly evaluate the significance determination, the Court would have to consider the reasonableness of including in the DPS a population of murrelets that is genetically distinct from other murrelets in the DPS, and of relying on those murrelets' genetic distinctiveness in finding the DPS significant. In this way, the Court would reach the "interbreeds when mature" issue. Even though that specific issue was not raised, then, the Court could not overlook that the record contains undisputed evidence of the central California murrelets' genetic distinctiveness and even the suggestion by AFRC (albeit in a different context) that the "three genetic entities" should be recognized as "separate DPSs,"
AFRC asserts that two populations of a species cannot be genetically distinct yet interbreed when mature. FWS asserts that genetic distinctiveness does not equate to a failure to interbreed. Intervenors go so far as to say that it is "self-evident" that the two murrelet populations in the tri-state DPS do interbreed, at least on an evolutionary time scale.
Resolution of this issue may be straightforward. But on this record, the Court is simply not equipped to evaluate the parties' dueling propositions of biology. All agree that FWS has not yet made an "interbreeds when mature" determination. That task is for the agency, which, unlike the Court or the parties' lawyers, has expertise in biology. See Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209, 1218 (D.C.Cir.2004) ("The expertise of the agency, not its lawyers, must be brought to bear on this issue in the first instance."). The answer may in fact be "self-evident" to a biologist, but the question is not one for the Court. Accordingly, the Court will remand the significance determination to FWS for the limited purpose of determining whether central California murrelets "interbreed when mature" with other murrelets in the DPS (and the impact of that determination on the significance determination). This remedy both "ensures `simple fairness' to the agency" and will give this Court a record on the issue to "review." See ExxonMobil, 487 F.3d at 962; Advocates, 429 F.3d at 1150 ("[I]t is unsurprising that parties rarely are allowed to seek `review' of a substantive claim that has never even been presented to the agency for its consideration.").
AFRC's final challenge is to FWS's determination that the tri-state DPS was "discrete." Under the 1996 DPS Policy, a population segment may be considered discrete if it is either (1) "markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors," or (2) "delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act." 61 Fed.Reg. at 4722. In the "not warranted" decision, FWS found no evidence of genetic or "morphological" separation between murrelet populations across the U.S. Canada border, nor did it find differences in control of exploitation. AR 3. FWS did, however, find significant differences in management of habitat, conservation status, and regulatory mechanisms between the United States and Canada. Id.
First, AFRC challenges FWS's conclusion that there was a significant difference in the conservation status of the murrelet between the United States and Canada. FWS relied on four factors in reaching its conclusion: first, the murrelet population in the United States is smaller than in Canada (the U.S. population is less than one-third of the Canadian population);
AFRC contends that FWS did not adequately explain why these four factors led it to conclude that there were significant differences in conservation status. But the agency's reasoning is clear enough to the Court. The U.S. population of murrelets, even with the Act's protections, is smaller, less productive, and losing suitable habitat faster than the Canadian population of murrelets. Hence, in FWS's expert judgment, the more imperiled U.S. population was sufficiently distinct from its Canadian counterpart to support a discreteness finding. The agency provided "`a rational connection between the facts found and the choice made.'" Alpharma, 460 F.3d at 6. Hence, no further explanation was required.
Finally, AFRC raises a host of challenges to FWS's conclusion that the differences between U.S. and Canadian regulatory mechanisms were sufficiently significant to support a discreteness finding. In the "not warranted" decision, FWS discussed in detail the regulatory mechanisms in Canada giving protection to the murrelet, including the Species at Risk Act ("SARA"), the Canadian federal endangered species law,
AFRC argues that this conclusion is flawed because FWS failed to consider the "actual effect" of Canadian laws on the murrelet. It points to FWS's determination that SARA is more protective than the MBTA because the MBTA, which prohibits "take" of murrelets, does not prohibit habitat destruction, whereas SARA, by contrast, prohibits "harm, harassment, and destruction of the species' `residence.'" AR 5. AFRC makes a "record-based biology" argument that SARA's prohibition against destruction of a species' residence has little real-world effect, asserting that SARA's protection extends only to trees that are "occupied or habitually occupied" by a murrelet,
Accordingly, the Court does not find that FWS acted arbitrarily or capriciously by noting that SARA imposes significantly greater penalties (felony-level sanctions of up to 5 years' imprisonment and/or $250,000 fines for an individual or $1,000,000 for a corporation) than does the MBTA (misdemeanor penalties of up to 6 months' imprisonment and/or $15,000 in fines). See AR 4-5. Although FWS did not determine the actual deterrent impact of the two penalty schemes, as AFRC urges it had to do, see AFRC MSJ 37-38, the differences between the schemes on paper — a tenfold difference in potential jail time and a more-than-$200,000 difference in potential fines — are significant enough to merit mention.
AFRC also argues that FWS erroneously determined that if the tri-state population were delisted, murrelets in Washington
AFRC additionally argues that FWS's discreteness determination was arbitrary and capricious because FWS allegedly failed to consider several important conservation measures in the United States, including the National Forest Management Act ("NFMA"), the Federal Land Policy and Management Act ("FLPMA"), ESA protections to other listed species (in particular, the northern spotted owl) that would incidentally protect the murrelet, and the Northwest Forest Plan. FWS did consider the Northwest Forest Plan, however. See AR 6. It noted that if the murrelet were delisted, then the Plan could be amended to reduce protection for the species, but that the murrelet "would still derive some incidental benefit" from the Plan's provisions. Id. This did not amount to a failure to consider the Northwest Forest Plan. As to the NFMA, the FLPMA, and the listing of other species under the ESA, FWS did not explicitly discuss these measures in the "not warranted" decision. But in an appendix to the 2009 five-year status review, which formed the basis for FWS's "not warranted" decision, FWS listed the NFMA and the FLPMA among the laws and regulations it considered "in the evaluation of existing regulatory mechanisms" for the review. AR 3, 8486, 8496-97. Thus, it appears that these statutes were considered. A discussion of any incidental conservation benefits flowing from another species' listing might have slightly enhanced FWS's analysis, but it was not required for FWS's determination to be rational. More importantly, AFRC has not indicated how the NFMA, the FLPMA, or another species' listing status would provide more protection to the murrelet than the measures FWS did consider, most notably the Northwest Forest Plan, or how consideration of these measures might have impacted FWS's decision. Therefore the Court will not deem FWS's failure to discuss these measures arbitrary and capricious.
Finally, AFRC argues that FWS "irrationally faulted" non-ESA regulatory mechanisms in the United States for lacking a protective measure — the ESA's section 7 consultation requirement — that is equally lacking in Canada. AFRC MSJ 41 (citing AR 5). That FWS noted the ESA protections that would be lost through delisting is not itself arbitrary and capricious. In determining whether the tri-state DPS was discrete, so as to warrant remaining listed, FWS was not forbidden from discussing the protections conferred by the ESA.
In summary, AFRC has stated numerous reasons why it believes FWS was wrong in concluding that the tri-state DPS was discrete. The Court agrees that the record here might support more than one conclusion, but the conclusion drawn by the agency did not have to be the only, or even the best, conclusion supported by the record. The agency's decision only had to be rational, and in this case it was. FWS's finding of a significant difference in the conservation status of a species is a "scientific determination" to which the Court owes particular deference. See Baltimore Gas, 462 U.S. at 103, 103 S.Ct. 2246; Cytori Therapeutics, Inc. v. FDA, 715 F.3d 922,
AFRC and FWS have jointly moved for entry of a proposed consent decree and dismissal with prejudice of AFRC's fourth, fifth, sixth, and seventh claims for relief, all of which challenge the designation of critical habitat for the murrelet. Pursuant to the proposed consent decree, and in exchange for the dismissal of AFRC's claims, the 1996 critical habitat designation, as revised in 2011, would be vacated and remanded to FWS for a new rulemaking; FWS would submit a proposed revised rule by September 30, 2017, and a final revised rule by September 30, 2018. See Proposed Consent Decree [ECF 25-2] 3. Intervenors oppose entry of the proposed consent decree and argue that the Court should deny the joint motion for three reasons. First, intervenors contend that the Court lacks jurisdiction to enter the proposed consent decree because AFRC's claims to be resolved by the decree are barred by the statute of limitations. Second, they urge that the proposed consent decree should be rejected because it would allow the parties to do through a consent decree what they could not otherwise do under the APA. Finally, intervenors argue that the proposed consent decree is not fair, reasonable, or in the public interest. The Court will address each argument in turn.
Intervenors contend that the Court does not have jurisdiction to enter a consent decree resolving AFRC's 2012 challenges to FWS's 1996 critical habitat designation because those challenges are barred by the six-year statute of limitations set by 28 U.S.C. § 2401(a). Section 2401(a) is a "catch-all statute of limitations for non-tort civil claims against the United States." Price v. Bernanke, 470 F.3d 384, 387 (D.C.Cir.2006). The D.C. Circuit has held that § 2401(a) is jurisdictional. See P & V Enters. v. U.S. Army Corps of Eng'rs, 516 F.3d 1021, 1026 (D.C.Cir.2008); Spannaus v. U.S. Dep't of Justice, 824 F.2d 52, 55 (D.C.Cir.1987). Although AFRC argues, not unreasonably, that recent authority suggests that § 2401(a) is not jurisdictional, see Pls.' Reply in Supp. of Joint Mot. for Entry of Consent Decree [ECF 32] ("AFRC CD Reply") (citing Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012), and other cases), this Court concludes, as it has previously, that it is bound to follow this circuit's precedent.
It is helpful to start with a description of AFRC's critical habitat claims. AFRC's Fourth Claim asserts that FWS unlawfully designated critical habitat that was not "occupied" by the marbled murrelet at the time of listing in 1992. See Compl. ¶¶ 47-50. AFRC's Fifth Claim asserts that by leaving in place the 1996 critical habitat designation in 2008, FWS failed to use the best scientific and commercial data available, namely the scientific information relied on in the 2006 proposed rule and a 2008 updated economic analysis. See id. ¶¶ 51-55. AFRC's Sixth Claim asserts that FWS unlawfully designated critical habitat that did not contain physical or biological features essential to the conservation of the murrelet. See id. ¶¶ 56-60. And AFRC's Seventh Claim asserts that in 2011 FWS improperly expanded the designated critical habitat to areas that do not contain physical or biological features essential to the conservation of the murrelet, and did so without providing notice and comment. See id. ¶¶ 61-67.
Intervenors argue that these claims all challenge the 1996 designation and hence are time-barred. AFRC responds that it is challenging FWS decisions made in 2008 and 2011 rather than in 1996. See AFRC CD Reply 4. As to AFRC's Fifth and Seventh Claims, the Court agrees. AFRC's Fifth Claim is directed at FWS's 2008 decision to leave the 1996 critical habitat designation unchanged, notwithstanding the agency's own updated scientific and economic analyses suggesting that the 1996 designation should be updated accordingly. See Compl. ¶¶ 51-55. AFRC's Seventh Claim is directed at a statement made by FWS in the 2011 rule revising critical habitat concerning areas within the boundaries of designated critical habitat that do not contain primary constituent elements. See id. (quoting 2011 rule). Thus, AFRC's Fifth and Seventh Claims are timely.
AFRC's Fourth and Sixth Claims, on the other hand, appear to be directed at the 1996 rule. These claims challenge the designation of allegedly unoccupied critical habitat and the designation of critical habitat that allegedly does not contain primary constituent elements. See Compl. ¶¶ 47-50, 56-60. The only designation of critical habitat took place in 1996. In 2006, the agency proposed a revision to the 1996 designation; in 2008, the agency decided not to make that revision; and in 2011, the agency made a narrow revision to remove certain areas from the designation. Hence, the Court is not persuaded by AFRC's contention that its Fourth and Sixth Claims actually challenge FWS's 2008 and 2011 actions.
If those claims were time-barred, and the Court had jurisdiction over only AFRC's Fifth and Seventh Claims, then entry of the proposed consent decree might be problematic in light of the Supreme Court's statement that a federal consent decree must "spring from, and serve to resolve, a dispute within the court's subject-matter jurisdiction." See Frew, 540 U.S. at 437, 124 S.Ct. 899. The Court recognizes that it "is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial," see Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 525, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986), but in the Court's view, the
However, the Court need not decide this issue if, as FWS and AFRC contend, the Court has jurisdiction over AFRC's Fourth and Sixth Claims by virtue of FWS's 2006-2008 reopening of the 1996 rule.
In this case, FWS proposed a revision to the 1996 critical habitat designation in 2006. See 71 Fed.Reg. at 53,838. The agency proposed to designate 3,590,642 acres as critical habitat for the murrelet, but to exclude 3,368,950 of those acres under section 4(b)(2) of the ESA. Id.; see 16 U.S.C. § 1533(b)(2) (providing that, after taking into consideration all relevant impacts, "[t]he Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat"). If adopted in its entirety, the proposed rule would have resulted in a designation of 221,692 acres in total. Id.
In arriving at the proposed designation, FWS reviewed available information on the murrelet's habitat requirements and all
FWS sought broad public comment on the proposed rule, specifying several particular areas of interest including: "[t]he reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act"; "the amount and distribution of marbled murrelet habitat"; "what areas that were occupied at the time of listing that contain the features that are essential for the conservation of the species should be included in our revised designation"; and "which habitat or habitat components (i.e., physical and biological features) are essential to the conservation of this species, and why." Id. at 58,838.
In 2008, FWS published a finding that the revision proposed in 2006 should not be made. 73 Fed.Reg. at 12,067. FWS said that this decision was "[d]ue to uncertainties regarding [BLM] revisions to its District Resource Management Plans in western Oregon," which would have "significant effects on future conservation of the [marbled murrelet]." Id. at 12,067-68. Although FWS noted that it would continue to consider the appropriateness of future revisions, it did not discuss the substance of either the 1996 rule or the 2006 proposed rule (or, for that matter, the updated economic analysis it had done in 2008). The agency merely concluded that it was not appropriate to revise critical habitat at that time and that, accordingly, the 1996 rule remained in effect. Id. at 12,068.
The parties dispute whether FWS's 2006-2008 actions reopened the 1996 critical habitat designation. Intervenors contend that FWS did not reopen the proposed rule. They label FWS's 2008 decision not to make the revision proposed in 2006 as an "abandonment" of the proposed revision, and argue that merely proposing and then "abandoning" a new rule
The Court does not see reopening as something to assess using a simple two-or four-factor test, as the respective sides urge.
In the 2006 proposed rule (a formal notice of proposed rulemaking), FWS discussed in detail the methodology it had used to identify the areas proposed for critical habitat and at times explained why and how that methodology differed from the one it had used in 1996. For example, FWS explained that it revised the PCEs for the murrelet to make them more specific based on new information, and that it believed LSRs were appropriate for exclusion under section 4(b)(2) of the ESA based on a change in policy since 1996. See 71 Fed.Reg. at 53,846-47. It also explained the "main reasons for the differences" between the proposed and existing critical habitat designations. Id. In short, a review of the 2006 proposed rule shows that the agency devoted considerable time and effort to developing the proposed revision and, implicitly in some ways and explicitly in others, "reexamined its former choice." See Pub. Citizen, 901 F.2d at 151; see also P & V Enters., 516 F.3d at 1024 (noting evident lack of "commitment of agency resources" in finding no reopening); id. at 1025 (stating that advanced notice of proposed rulemaking "did not purport to represent the Corps' considered reevaluation and updated judgment on the substance of the 1986 rule"). In addition, FWS sought broad public comment on the proposed rule, and identified particular areas of interest that went to the heart of the 1996 existing and 2006 proposed rules, such as "whether it is prudent to revise currently designated critical habitat" and "what areas that were occupied at the time of listing that contain the features that are essential for the conservation of the species should be included in our revised designation." 71 Fed.Reg. at 53,838; see also
Intervenors gloss over the critical analysis contained in the 2006 proposed rule, stating merely that proposed changes to an existing rule do not alone trigger a reopening. Intervenors' CD Opp'n 6. But the cases cited by intervenors on this point do not lead to the conclusion that there was no reopening here. In P & V Enterprises, for example, the agency issued an "advance" notice of proposed rulemaking in which it requested comments to help it assess how to approach a "future proposed rulemaking" but said "nothing on the merits." 516 F.3d at 1024-25 (internal quotation marks omitted) (stating that publishing the advance notice of proposed rulemaking was "comparable" to requesting comment on a petition for commencement of a rulemaking, as the agency did in National Mining Association, 70 F.3d at 1351). Here, unlike in P & V Enterprises or National Mining Association, the agency did not just hold out rulemaking as a "possible next step"; it issued an actual proposed rulemaking setting forth its considered views "on the merits." See P & V Enters., 516 F.3d at 1024-25; Nat'l Mining Ass'n, 70 F.3d at 1351.
Intervenors stress FWS's so-called abandonment of the proposed rule in 2008 and the fact that FWS did not substantively reaffirm the 1996 rule, claiming: "In all the cases where courts have found reopener, the courts have also found that the agency substantively decided to reaffirm the old rule." Intervenors' CD Opp'n 7-8. Intervenors are incorrect. What matters for reopening is whether the agency reconsidered or reexamined its prior rule and then, after doing so, adhered to the prior rule. Although an agency's substantive reaffirmance of an existing rule may shed light on whether the rule was reopened, such reaffirmance is not required for reopening. In Appalachian Power Co., for example, the court concluded that an issue had been reopened through two "Technical Amendments" to an existing rule, even though neither the pre-amendment call for comments nor the published Technical Amendments specifically mentioned the issue. See 251 F.3d at 1031-33; cf. Edison Elec., 996 F.2d at 330-32 (finding reopening where agency's rationale for not revising regulation was that revision "would result in a rule that would `be very difficult to implement and enforce'"). Because reopening may be implicit, see Pub. Citizen, 901 F.2d at 150, it is not necessary that an agency give explicit reasons for adhering to its prior approach.
Here, as discussed above, FWS reopened the aspects of the 1996 rule that AFRC is challenging in this lawsuit. In 2008, notwithstanding this reopening, FWS left the 1996 rule in effect. The agency did not say that it was doing so because the 1996 rule was correct, but merely cited "uncertainty regarding the effects of current BLM Resource Management Plan revisions." 73 Fed.Reg. at 12,067-68. Had this decision not to revise the 1996 rule been the only agency action at issue, there would not have been a reopening. See P & V Enters., 516 F.3d at 1025-26 (finding press release announcing agency's decision not to issue new rule insufficient to effect reopening, as press release did not provide new justifications for retaining old rule or any "insight into whether the [agency] had rethought the policy underlying the 1986 rule"). However, the absence of a more
Intervenors next argue that the Court should reject the proposed consent decree because it would impermissibly allow the murrelet critical habitat to be vacated without notice and comment as required by the APA and ESA. See Intervenors' CD Opp'n 10-11 (citing 5 U.S.C. § 553; 16 U.S.C. § 1533(a)(4-6)). Intervenors are correct that ordinarily an agency rule may not be repealed unless certain procedures, including public notice and comment, are followed, and that this is true even where the rule at issue may be defective. See 5 U.S.C. § 553; Consumer Energy Council v. FERC, 673 F.2d 425, 447 n. 79 (D.C.Cir.1982) (rejecting argument that notice and comment requirements do not apply to "defectively promulgated regulations"); Nat'l Parks Conservation Ass'n v. Salazar, 660 F.Supp.2d 3, 5 (D.D.C.2009). But notice and comment is not required in all cases. It is not required, for example, when a court vacates a rule after finding the rule deficient on the merits. See, e.g., Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C.Cir.1993).
FWS and AFRC argue that the notice and comment requirements of § 553 similarly do not apply when a court approves a consent decree that vacates a rule. Two judges in this district have so held. See Home Builders Ass'ns of N. Cal. v. Norton, 293 F.Supp.2d 1, 5 (D.D.C. 2002); Nat'l Ass'n of Home Builders v. Evans, No. 00-2799, 2002 WL 1205743, at *3 (D.D.C. Apr. 30, 2002) (collectively, "the Home Builders cases"). Intervenors point to two more recent decisions in this district and submit that these decisions "limit the applicability of the Home Builders cases." Intervenors' CD Opp'n 13 (citing Carpenters Indus. Council v. Salazar, 734 F.Supp.2d 126, 135-36 (D.D.C.2010); Nat'l Parks Conservation Ass'n, 660 F.Supp.2d at 5). But these cases involved motions for voluntary remand and vacatur, not motions for entry of a consent decree, and in Carpenters Industrial Council the court even recognized its "authority to vacate a critical habitat designation without a determination of the merits through the entry of a proposed consent decree." See 734 F.Supp.2d at 136 n. 9 (citing the Home Builders cases). Intervenors assert that the label attached to the action (consent decree versus voluntary remand) should not matter to the outcome, and that in neither case should FWS and AFRC be permitted to bypass the statutory requirements. But a consent decree is a "judicial act" that is materially different from a voluntary remand. See Citizens, 718 F.2d at 1125; see also Nat'l Parks Conservation Ass'n, 660 F.Supp.2d at 4. Moreover, the D.C. Circuit recently granted an agency's request to vacate and remand concededly flawed portions of a rule without even mentioning the notice and comment requirements of the APA. See Sierra Club v. EPA, 705 F.3d 458, 463-66 (D.C.Cir.2013). In short, the cases cited by the parties indicate that the Court may approve the consent decree proposed here, even though
That the Court has the authority to the enter the proposed consent decree does not mean that it is appropriate to do so, however. The Court must first determine that the consent decree is "fair, adequate, reasonable and appropriate under the particular facts" and that it is in the public interest. See Citizens, 718 F.2d at 1126.
As an initial matter, the Court observes that this is not a typical settlement agreement. The proposed consent decree would, as intervenors stress repeatedly, allow FWS and AFRC to accomplish something through an act of this Court that they could not do on their own. No one disputes that FWS could not unilaterally vacate the 1996 critical habitat designation without going through the statutorily-prescribed notice and comment process. Although, for the reasons just discussed, this fact does not preclude the Court from entering the proposed consent decree, it gives the Court some pause. If every lawsuit challenging agency action ended in a consent decree giving a private interest group plaintiff the relief it was seeking, the procedural safeguards of the APA would be eviscerated. The public has an interest in seeing these procedural safeguards enforced. Hence, it is the Court's view that the particular remedy proposed here warrants careful scrutiny. Compare Wells Fargo, 891 F.Supp.2d at 143 (finding that consent decree "easily survive[d] the limited scrutiny appropriate" in that case). With this in mind, the Court considers the arguments for and against entry of the consent decree.
FWS and AFRC assert that the proposed consent decree "embodies a reasonable compromise by the parties thereto." Joint Mot. for Approval of Consent Decree and Partial Dismissal with Prejudice [ECF 25] ("Joint CD Mot.") 7. They explain that the consent decree would give AFRC less than all of the relief it seeks (in addition to vacatur and remand, AFRC has requested declaratory relief). Id. at 8. In exchange for this "compromise" on AFRC's part and in light of FWS's determination that the current critical habitat designation "may be inconsistent with" the ESA's definition of critical habitat, FWS would reconsider the murrelet critical habitat designation and issue a revised rule pursuant to a "reasonable schedule." Id.
At first glance, this strikes the Court as a pretty good deal for AFRC. Although AFRC would not get a ruling from the Court on the merits of its critical habitat claims, it would achieve the (presumably) primary objective of its lawsuit: vacatur of all critical habitat for the murrelet, and a remand period of more than five years, likely a much longer duration than AFRC could have hoped for when it filed suit.
In approving a typical consent decree, it is not the Court's task to "inquire into the precise legal rights of the parties [or] reach and resolve the merits of the claims or controversy." See Citizens, 718 F.2d at 1126 (internal quotation marks omitted); see also id. at 1125 ("[T]he long-standing rule is that a district court has power to enter a consent decree without first determining that a statutory violation has occurred."). But where, as here, a consent decree would allow the parties to bypass the notice and comment requirements of the APA and ESA, the Court concludes that assessing the consent decree's fairness, reasonableness, and consistency with the public interest requires some consideration of the merits. Although the parties suggest to varying degrees that consideration of the merits is inappropriate here, they nevertheless incorporate aspects of
The appropriateness of examining the legal basis for vacatur (i.e., the merits) is supported by the two Home Builders cases relied on by FWS and AFRC. In each of those cases, the agency had entered into a proposed consent decree to vacate critical habitat in light of the Tenth Circuit's decision in New Mexico Cattle Growers Ass'n v. U.S. Fish & Wildlife Service, 248 F.3d 1277 (10th Cir.2001). In the first case, National Ass'n of Home Builders v. Evans, the agency had acknowledged that the approach it had taken in analyzing economic impacts under section 4(b)(2) of the ESA was "similar to the approach ruled to be insufficient by the court in New Mexico Cattle Growers." 2002 WL 1205743, at *4. Before approving the proposed consent decree, the court reviewed the Tenth Circuit's decision, found that it was "well-reasoned and comport[ed] with the express statutory language of Congress," and concluded that, "[c]learly, there is a problem with the current process underlying the critical habitat designation process." Id. at *3. Relying in part on the "persuasive rationale underlying the Tenth Circuit's opinion," the court concluded that the consent decree was fair, equitable, and in the public interest and that vacating the rule was permissible. Id. That certainly seems to be a conclusion resting at least in part on an assessment of the basis for the relief sought. By the time of the second Home Builders decision, Home Builders Ass'ns of Northern California v. Norton, about six months later, FWS had "decided to adopt the economic impact methodology of New Mexico Cattle Growers and apply it to all critical habitat determinations nationwide." 293 F.Supp.2d at 3. The court agreed with the decision in the first Home Builders case, determined that the methodology of New Mexico Cattle Growers was consistent with the ESA, and held that "vacating the [critical habitat designation at issue], rather than leaving it in place pending a new rule, is fair and reasonable in light of the Department of Interior's decision to vacate all critical habitat designations in order to conduct new rulemakings consistent with the methodology of New Mexico Cattle Growers." Id. at 4-5 & n. 2. Again, some assessment of the strength of plaintiffs' claims (i.e., of the merits) is implicit in that conclusion.
Like the courts in the Home Builders cases, this Court will examine the reasons for vacatur put forth by the proponents here. FWS states that it has determined, as it did in those cases, "that it should reconsider its critical habitat designation for the murrelet in light of case law that has issued since the designation was completed." Joint CD Mot. 14. The joint motion explains that since the 1996 designation, courts have required FWS to "specify with more precision" how designated areas meet the statutory definition of critical habitat. Id. at 8-9 (citing Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir.2010); Ariz. Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160 (9th Cir.2010); Cape Hatteras Access Pres. Alliance v. U.S. Dep't of Interior, 344 F.Supp.2d 108 (D.D.C.2004)). In light of these decisions, FWS acknowledges
The Court has reviewed the cases cited in the joint motion and concludes that the circumstances of this case are different from those in the Home Builders cases. There, the defect in the existing critical habitat designations was both clear and discrete: the agency's approach to the economic impact analysis required by section 4(b)(2) of the ESA. See Nat'l Ass'n of Home Builders, 2002 WL 1205743, at *3 (comparing "incremental baseline approach" used by FWS to New Mexico Cattle Growers approach); see also Home Builders Ass'ns, 293 F.Supp.2d at 4 (same). Here, by contrast, FWS has pointed to no particular aspect of its critical habitat designation that is defective or even questionable. It has merely cited cases discussing the requirements of 16 U.S.C. § 1532(5) and said, vaguely, that the challenged designation "may" not meet those requirements because the cases require the agency to be more precise in explaining how those requirements are met. Joint CD Mot. 8-9; see also FWS CD Reply 10 (stating that case law reveals the "potential inconsistency" of current critical habitat designation with statutory definition). So the Court has little from FWS by which to evaluate the significance of the cases cited in relation to AFRC's claims in this case. In short, in the Home Builders cases FWS had already decided that the critical habitat designation was defective, while here the proposed remand is to permit that determination to be made by FWS. See Proposed Consent Decree 2.
Moreover, keeping in mind that AFRC's Fourth and Sixth Claims assert that FWS designated areas that were not "occupied" at the time of listing and did not contain PCEs, it is not obvious that the cases cited compel a victory for AFRC. For example, in Arizona Cattle, the Ninth Circuit indeed observed that the ESA differentiates between "occupied" and "unoccupied" habitat, see Proposed Consent Decree 1-2,
Finally, a brief review of the 1996 critical habitat designation does not convince the Court that it should be vacated in its entirety. In designating critical habitat, FWS apparently did so with the statutory definition in mind. For example, the agency explicitly determined PCEs for the murrelet and used survey information about murrelet "presence/absence and occupancy" to designate specific areas. 61 Fed.Reg. at 26,264-65. It responded to a comment contending that it was designating areas not "occupied" by murrelets at the time of listing and another comment challenging its methodology for determining "occupied" sites. Id. at 26,273-74.
For all of these reasons, it is not clear that vacatur of the 1996 critical habitat designation is a fair and equitable resolution of AFRC's claims and is in the public interest. The Court again stresses the unusual nature of the proposed remedy, and observes that more is required to bypass the procedural requirements of the ESA and APA than has yet been put forth here. If a longstanding critical habitat designation is to be vacated entirely pursuant to an agreement between a private litigant and the government — and over the objection of others — the Court must be reasonably confident that there is a sound legal basis for vacatur. Only then will the public's interest in proper process and in the substantive provisions of the ESA be furthered. Here, AFRC has made a case for vacatur. But missing from the equation is any concession of error by the agency, or even any hint as to how exactly, in FWS's view, the critical habitat designation
The Court's decision is guided by the factors set forth in Allied-Signal, 988 F.2d at 150-51. Although that case did not involve a consent decree, it provides a helpful framework for evaluating the appropriateness of the remedy proposed here.
As discussed, however, the present showing on the rule's defects is inconclusive, and this, taken in conjunction with the second Allied-Signal factor, does not support vacatur as proposed by the parties. Regarding the "disruptive consequences" factor, FWS has determined that vacatur of the critical habitat designation until a revised designation is issued (by not later than 2018 — more than six years after the consent decree was proposed) "will not result in significant harm to the murrelet." Joint CD Mot. 9; see also id., Attach. 1, Decl. of Gary Frazer ("Frazer Decl."). FWS explains that if critical habitat were vacated, the murrelet and its habitat would continue to receive significant protections under provisions of the Northwest Forest Plan governing LSRs (87% of currently designated murrelet habitat is in LSRs) and under other provisions of the ESA, namely the "no jeopardy" provision in section 7(a)(2) and the "take" provision in section 9. See Frazer Decl. ¶¶ 7-14; see also 16 U.S.C. § 1536(a)(2) ("Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to
Yet even accepting the agency's determination that the murrelet would not likely suffer "significant" harm as a result of vacatur, the length of the remand period exacerbates the uncertainties inherent in any predictive determination. As intervenors point out, the Northwest Forest Plan may change in the coming years, as FWS admits, and such change may be to the murrelet's detriment. See Intervenors' CD Opp'n 26; FWS CD Reply 14-15. The magnitude of the change being proposed is by its nature likely to be disruptive. The current critical habitat designation has been in effect for nearly 17 years, and FWS says that it cannot begin to act on a new designation until 2017. See Frazer Decl. ¶ 25. By that time, murrelet nesting habitat in the current designation — all or part of which may be legally justified — might be lost irretrievably, or at least for a very long time. Forested stands containing 33-foot-high trees do not grow overnight. See 71 Fed.Reg. at 53,843. The length of the remand period is problematic from a procedural standpoint as well. By 2017-2018, much of the scientific and other information compiled during the recent revision processes will likely be outdated. Were FWS to act sooner, it might be able to build off of the 2006 proposed rule (into which the agency clearly put considerable time and resources) and the 2008 updated economic analysis, rather than have to start completely anew. In short, the Court views the five-to six-year remand period proposed as simply too long. See, e.g., Bldg. Indus., 231 F.Supp.2d at 107-08 (finding 31-month proposed time frame "too long" and requiring FWS to promulgate new critical habitat designations within 21 months despite agency's "resource allocation issues"). At least it has not been adequately justified by FWS (and AFRC). The Court understands that it may be difficult for FWS to commit to a shorter remand period in light of the commitments made in MDL agreements. But considering that the Court would be vacating a longstanding critical habitat designation, without public notice and comment and without a determination on the merits, the Court is unwilling on this record to approve the lengthy and potentially disruptive remand period proposed.
All this is not to say that some modification to the proposed consent decree might not make it more acceptable to the Court. As this circuit has recognized, "voluntary settlement of civil controversies is in high judicial favor." Citizens, 718 F.2d at 1126 (internal quotation marks and alteration omitted). If AFRC is correct that the 1996 critical habitat designation is defective, then the parties, the Court, and the public would benefit from the resolution of this case by consent decree rather than by protracted litigation. Given a fuller explanation from the agency on the basis for vacatur (which may stop short of an outright admission that the law was violated)
For the foregoing reasons, the Court will grant in part and deny in part the parties' cross-motions for summary judgment and will deny the joint motion for entry of a consent decree. A separate order accompanies this memorandum opinion.
Plaintiffs American Forest Resource Council, Carpenters Industrial Council, and Douglas County, Oregon (collectively, "AFRC") brought this action against defendants Daniel M. Ashe, Director of the U.S. Fish and Wildlife Service, and Sally Jewell, Secretary of the Interior (collectively, "FWS").
The background of this case is fully set forth in the Court's March 30, 2013 memorandum opinion. See 946 F.Supp.2d 1. In that decision, the Court granted summary judgment in favor of FWS and intervenors on two of AFRC's three claims regarding FWS's decision not to delist the Washington, Oregon, and California ("tri-state") population of the marbled murrelet. On the third of these claims, which challenges FWS's determination that the tri-state population was "significant," the Court deferred its decision on summary judgment and remanded to FWS the question whether central California marbled murrelets "interbreed when mature" with other marbled murrelets in the tristate population. Id. at 14-15.
FWS had determined in January 2010 that delisting the murrelet was "not warranted" because the tri-state population was a "distinct population segment" or "DPS" under the Endangered Species Act ("ESA"). See 75 Fed.Reg. 3424 (Jan. 21, 2010). The ESA defines the term "species" to include "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16). The term "distinct population segment" is not defined by statute, but has been interpreted in a 1996 joint policy issued by FWS and the National Marine Fisheries Service. See 61 Fed.Reg. 4722 (Feb. 7, 1996). The policy identifies three elements to be considered in deciding whether a DPS exists:
FWS has now completed the remand, and has determined that central California murrelets not only are capable of interbreeding with, but actually interbreed with, other murrelets in the tri-state DPS. See Defs.' Notice of Completion of Remand [ECF 58], Ex. 1 ("Remand Mem.") 2-3. The parties have each submitted responses to FWS's determination on remand. AFRC contends that the remand memorandum "is unlawful and should be set aside," and consequently that its motion for summary judgment on its Third Claim (regarding FWS's significance determination) should be granted. See Pls.' Post-Remand Br. in Supp. of MSJ [ECF 61] ("AFRC Post-Remand Resp.") 2, 20. FWS and intervenors maintain that FWS's significance determination was rational and supported by the record and assert that FWS's determination on the "interbreeds when mature" issue simply confirms this conclusion. See Intervenors' Resp. to Remand Mem. [ECF 60] ("Intervenors' Post-Remand Resp.") 3; Defs.' Reply in Supp. of Remand Mem. [ECF 62] ("FWS Post-Remand Reply") 1-2.
In its March 30, 2013 decision, the Court also denied the joint motion of AFRC and FWS for entry of a proposed consent decree, under which the critical habitat designation for the murrelet would have been vacated and remanded to FWS for a new rulemaking. 946 F.Supp.2d at 32-33. The joint motion was opposed by intervenors, who argued (1) that the Court did not have jurisdiction to enter the proposed consent decree because AFRC's critical habitat challenges were time-barred, (2) that the Court did not have authority to enter the proposed consent decree because it would have vacated a rule without notice and comment, and (3) that the proposed consent decree did not meet the standard of being fair, adequate, reasonable, and appropriate under the particular facts, as well as in the public interest. Id. at 20-21; see also id. at 9 (discussing standard set forth in Citizens for a Better Env't v. Gorsuch, 718 F.2d 1117, 1126 (D.C.Cir. 1983)). The Court rejected intervenors' first two arguments, concluding that it had both jurisdiction and the authority to enter the proposed consent decree, but was unable to conclude that the proposed consent decree met the applicable standard. Id. at 25-27, 31-32. The Court found it particularly problematic that FWS had not confessed error or explained how the critical habitat designation might be deficient and that the proposed remand period was to last until September 2018. Id. at 30-32. It left open the possibility, however, that it might accept a modified proposed consent decree that included a more robust explanation from FWS on the rule's deficiencies and contemplated a shorter remand period. Id. at 32-33.
Now that FWS has completed the remand, AFRC contends that it is entitled to summary judgment on its claim that FWS's significance determination was arbitrary and capricious under the Administrative Procedure Act. See 5 U.S.C. § 706(2).
On remand, FWS evaluated whether there is evidence of interbreeding between murrelets in central California and murrelets in northern California. Remand Mem. 1. Examining the birds' long-distance movements, it found that "murrelets anywhere within the DPS are capable of intermingling and interbreeding with murrelets in other parts of the DPS, specifically between central California and northern California." Id. at 2 (citing evidence of murrelet movements of several hundred kilometers). FWS also found "evidence of actual interbreeding." Id. It explained that, although central California murrelets diverged genetically from northern populations during the twentieth century, "they are not completely isolated genetically because very low gene flow continues to occur among murrelets across the range, and specifically between northern and central California." Id. at 3 (citation omitted). This gene flow, along with evidence of northern California murrelets "immigrating" into central California, led FWS to conclude that "the murrelets in central California are interbreeding, albeit at low levels, with murrelets from elsewhere within the DPS." Id.
In light of this conclusion, FWS reaffirmed its determination that the tri-state population of the murrelet is sufficiently significant to warrant listing as a DPS. See id. at 3-4. The agency again stated, as it had in its January 2010 "not warranted" decision, that loss of the tri-state DPS would result in a significant gap in the range of the murrelet. See id.; accord 75 Fed.Reg. at 3430. According to FWS, such a gap would be significant because the tri-state area accounts for about 18 percent of the murrelet's coastal distribution, spans 17 degrees of latitude, is located at the southern periphery of the murrelet's range, and contains an ecologically distinct forest system, the coastal redwoods.
In a footnote in its determination on remand, FWS also said the following:
Remand Mem. 1 n. 1.
The parties make much of FWS's footnote interpreting the phrase "interbreeds when mature" in the ESA's definition of "species." In the footnote, FWS takes the position that the phrase means that "a DPS must consist of members of the same species or subspecies," as defined by the "biological species" concept. See Remand Mem. 1 n. 1. Intervenors assert that the phrase means that members of a DPS must be "capable of interbreeding." See Intervenors' Post-Remand Resp. 3. And AFRC asserts that the phrase means that members of a DPS must actually interbreed. See AFRC Post-Remand Resp. 6. The Court need not now decide which (if any) of these interpretations is correct, however, because under any interpretation of the phrase "interbreeds when mature," FWS has rationally concluded that central California murrelets actually interbreed when mature with other murrelets in the tri-state DPS, albeit at low levels. See Remand Mem. 3.
Before addressing AFRC's arguments concerning FWS's determination on remand, the Court finds it necessary to clarify the following statement in its March 30, 2013 memorandum opinion: "If the genetic distinctiveness of the two populations comprising the tri-state DPS means that they
Id.
In remanding FWS's significance determination here, the Court's intent was not to define once and for all the meaning of the arguably "ambiguous" phrase "interbreeds when mature." Because the phrase appears in the ESA's text, the Court concluded that interbreeding when mature, however defined, is a statutory condition for classification as a DPS. The Court did not hold that FWS must make an explicit finding that members of a DPS interbreed when mature in every case. But because in this case AFRC had asserted that two genetically distinct populations cannot interbreed when mature, and because FWS had not spoken on this disputed issue of biology, the Court remanded the significance determination to obtain the agency's considered view. See 946 F.Supp.2d at 14-15. The Court intended only to have FWS determine whether central California murrelets and other murrelets in the DPS "interbreed when mature," not to define the meaning of that phrase for the agency. Accordingly, a perhaps better formulation of the Court's prior statement is that FWS's significance determination would be called into question if the genetic distinctiveness of the two murrelet populations in the tristate DPS means that they do not, or cannot, "interbreed when mature," however that phrase is defined.
AFRC does not seriously contest FWS's conclusion on remand that central California murrelets actually interbreed with their northern counterparts. In fact, AFRC now states that FWS's finding of interbreeding at low levels "reflects scientific consensus since at least 2007," and argues that FWS's recognition of this scientific consensus "does not answer any relevant question." See Pls.' Supp'l Post-Remand Br. [ECF 65-1] 15-16.
Yet during the first round of summary judgment briefing in this case, AFRC argued that "FWS could not lawfully find that central California murrelets `interbreed[]
AFRC additionally argues that the remand memorandum should be set aside because it fails to address three factors that, in AFRC's view, the Court "specifically identified" in its opinion: (1) the reasonableness of including in the DPS a population of murrelets that is genetically distinct from other murrelets in the DPS; (2) the reasonableness of relying on those murrelets' genetic distinctiveness in finding the DPS significant; and (3) whether central California murrelets should be designated as a separate DPS. See AFRC Post-Remand Resp. 2-3, 11-12. With respect to the first two of these factors, the Court's concern about central California murrelets' genetic distinctiveness was that their distinctiveness might preclude them from interbreeding with, or being capable of interbreeding with, other murrelets in the DPS. The remand memorandum satisfies this concern, by explaining that central California murrelets "are not completely isolated genetically" and that as a result low levels of interbreeding can and do occur. See Remand Mem. 3. The Court concludes that the ESA's interbreeding requirement is met by low levels of actual interbreeding. See Modesto Irrigation Dist., 619 F.3d at 1032 (accepting position of agency that "`all organisms that belong to a DPS must interbreed when mature (at least on some time scale)'"); Alsea Valley Alliance v. Lautenbacher, No. 06-6093, 2007 WL 2344927, at *6-7 (D.Or. Aug. 14, 2007) (accepting agency interpretation of ESA to require that "members of the same species, subspecies or distinct population segment be capable of interbreeding when mature"), aff'd, 319 Fed.Appx. 588 (9th Cir.2009). Hence, there is no need to resolve the parties' dispute about the precise contours of that requirement here.
With respect to the possibility of designating a separate DPS, although the Court's opinion noted AFRC's prior suggestions that central California murrelets should be recognized as a separate DPS, it
AFRC finally argues that FWS failed to find a rational connection between the fact it found — that low levels of interbreeding occur — and its conclusion that the tri-state DPS, inclusive of central California murrelets, is significant. An agency is required to articulate a satisfactory explanation for its actions, including "a rational connection between the facts found and the choice made." See Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C.Cir.2006) (internal quotation marks omitted). As AFRC acknowledges, however, a reviewing court may "`uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.'" See AFRC Post-Remand Resp. 13 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)). AFRC asserts that no reasonably discernible path is to be found in FWS's remand memorandum, but the Court disagrees.
In light of its determination that central California murrelets interbreed when mature with other murrelets in the DPS, FWS reaffirmed its January 2010 significance determination. Its reasoning is not difficult to discern. Factors that may bear on a DPS's biological and ecological significance include: "[p]ersistence of the discrete population segment in an ecological setting unusual or unique for the taxon," "[e]vidence that loss of the discrete population segment would result in a significant gap in the range of a taxon," and "[e]vidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics." 61 Fed.Reg. at 4725. FWS initially found that loss of the tri-state DPS would result in a significant gap in the murrelet's range because the tri-state area accounts for about 18 percent of the murrelet's coastal distribution, spans 17 degrees of latitude, is located at the southern periphery of the murrelet's range, and contains an ecologically distinct forest system, the coastal redwoods. See 75 Fed.Reg. at 3430. The agency also found that loss of the DPS would result in the loss of "unique genetic characteristics" that are significant to the taxon. Id. Had FWS found that central California murrelets should not have been
But because FWS has concluded that central California murrelets are properly included in the DPS, its previously stated rationales remain valid and, in the Court's view, are adequate to withstand arbitrary and capricious review. The Court will not second guess FWS's determination that a hypothetical loss of 18 percent of the murrelet's coastal distribution and 17 degrees of latitude would be significant, as that is the kind of judgment that is best left to agency expertise. And FWS explained the significance of "peripheral and disjunct populations," which "may play an important role in maintaining opportunities for speciation and future biodiversity." See 75 Fed.Reg. at 3430. As pertinent here, the tri-state DPS is located at the southernmost extent of the murrelet's range, i.e., is a peripheral population, and contains both an ecologically distinct forest system, the coastal redwoods, and a genetically distinct group of murrelets, the central California murrelets. See id. In FWS's view, the genetic characteristics of the central California murrelets add to the significance of the tri-state DPS because the loss of these murrelets would mean a loss of "a portion of the species' genetic resources and/or local adaptations" and might "compromise its long-term viability." See id.
In sum, the Court concludes that FWS has provided a rational explanation for its significance determination. AFRC's motion for summary judgment on its Third Claim will be denied, and FWS's and intervenors' cross-motions will be granted.
Courts in this circuit commonly grant motions for voluntary remand, "preferring to allow agencies to cure their own mistakes rather than wasting the courts' and the parties' resources reviewing a record that both sides acknowledge to be incorrect or incomplete." See Ethyl Corp. v. Browner, 989 F.2d 522, 524 & n. 3 (D.C.Cir.1993) (citing cases); Carpenters Indus. Council v. Salazar, 734 F.Supp.2d 126, 132 (D.D.C.2010); Sierra Club v. Van Antwerp, 560 F.Supp.2d 21, 23 (D.D.C. 2008). Voluntary remand is generally appropriate "(i) when new evidence becomes available after an agency's original decision was rendered, or (ii) where `intervening events outside of the agency's control' may affect the validity of an agency's actions." Carpenters Indus. Council, 734 F.Supp.2d at 132 (citation omitted) (quoting SKF USA, Inc. v. United States, 254 F.3d 1022, 1028 (Fed.Cir.2001)). Even in the absence of new evidence or intervening events, voluntary remand may be appropriate. For example, an agency might "request a remand (without confessing error) in order to reconsider its previous position," or it might "request a remand
Here, FWS seeks a remand "to reconsider its critical habitat designation for the murrelet" in light of post-1996 case law requiring it to specify how designated areas meet the ESA's definition of "critical habitat." FWS VR Mot. 1. FWS concedes that its explanation for the challenged designation is deficient, and hence it argues that voluntary remand is within the Court's equitable discretion and appropriate in this case. See id. AFRC does not dispute that the Court has discretion to grant voluntary remand in these circumstances, but argues that the equities do not support that result. See AFRC VR Opp'n 1, 8.
The ESA provides for the designation of geographical areas as "critical habitat" for endangered and threatened species. See 16 U.S.C. § 1533(a)(3)(A). Critical habitat is defined as:
Id. § 1532(5)(A). Physical and biological features that are essential to the conservation of a species and that may require special management considerations or protection are known as "primary constituent elements" or "PCEs." See 50 C.F.R. § 424.12(b). Thus, under the ESA, occupied or unoccupied areas may be designated as critical habitat, but the criteria for designating occupied areas — that the areas contain PCEs — differ from the criteria for designating unoccupied areas — that the areas be essential for the conservation of the species. See 16 U.S.C. § 1532(5)(A)(i)-(ii).
The current critical habitat designation for the marbled murrelet is the product of FWS's initial designation in 1996, its 2008 decision not to adopt revisions proposed in 2006, and its minor revision to the designation in 2011. See 946 F.Supp.2d at 6-8. In designating critical habitat in 1996, FWS concededly did not "identify which designated areas were occupied at the time of listing" or "make an explicit determination that unoccupied areas were essential to conservation of the species." See FWS VR Mot., Attach. 1, Decl. of Gary Frazer (May 16, 2013) ("Frazer Decl.") ¶ 3. FWS asserts that despite these omissions, its explanation in the preamble to the 1996 rule was consistent with existing case law, although courts have since imposed a "higher burden" on the agency to provide a more detailed explanation of how designated areas meet the statutory definition of critical habitat. Id. ¶¶ 3-4; FWS VR Mot. 10-11 (citing Otay Mesa Prop., L.P. v. U.S. Dep't of the Interior, 646 F.3d 914 (D.C.Cir.2011); Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir.2010); Ariz. Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160 (9th Cir.2010)). FWS admits it did not
Because FWS seeks remand based on its belief that it can no longer defend the murrelet critical habitat designation, the Court has discretion over whether to remand.
As an initial matter, the Court notes it has only two options at this time: either to grant FWS's motion for voluntary remand without vacatur or to deny FWS's motion and proceed to the merits. AFRC's critical habitat claims have not been fully briefed, and the administrative record as to those claims has not been filed. Hence, it would be premature to decide the merits now and the Court will not do so. In addition, FWS has not asked for vacatur, and neither AFRC nor intervenors argue that any remand should be with vacatur, so the Court does not consider vacatur an option at this time. The Court therefore
A review of the record persuades the Court that FWS's concerns about the murrelet critical habitat designation are "substantial and legitimate." See Sierra Club, 560 F.Supp.2d at 23. It appears that the agency should have done a better job of explaining how the areas it designated met the statutory definition of critical habitat. Among other things, FWS did not set a standard for determining "occupied" areas, did not clearly identify which designated areas were occupied at the time of listing, and did not make any findings about unoccupied areas.
FWS now seeks an opportunity to "cure [its] own mistakes." See Ethyl Corp., 989 F.2d at 524. Such requests are commonly granted, and are desirable even where they are driven by the litigation in which they are made. See id.; Lamprecht v. FCC, 958 F.2d 382, 385 (D.C.Cir.1992) (grant of agency's motion to remand case for reconsideration after vote to rehear case en banc, where agency admitted that decision was erroneous and contrary to law); see also Sierra Club, 560 F.Supp.2d at 23 ("It is undisputed that administrative agencies have inherent power to reconsider their own decisions, since the power to decide in the first instance carries with it the power to reconsider." (internal quotation marks omitted)). And there has been no suggestion that FWS is acting in bad faith or that its remand request is otherwise improper. See SKF, 254 F.3d at 1029 ("A remand may be refused if the agency's request is frivolous or in bad faith." (citing Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 349 (D.C.Cir.1998))).
Moreover, a voluntary remand at this time will save the Court's and the parties' resources. See Ethyl Corp., 989 F.2d at 524. FWS does not wish to defend the murrelet critical habitat designation, so forcing it to litigate the merits would needlessly waste not only the agency's resources but also time that could instead be spent correcting the rule's deficiencies. The sooner FWS begins revising the critical habitat designation, the more likely that it can complete the revision by the dates proposed — September 30, 2015 for the proposed rule, and September 30, 2016 for the final rule.
On the other hand, remand without vacatur will leave in place a concededly flawed rule for the duration of the remand period. AFRC argues that the rule's continued enforcement would prejudice its interests in harvesting timber. It asserts, for example, that because of the 2011 revision to the critical habitat rule, ESA section 7 consultation is now required for certain timber management projects for which consultation "probably" was not required before, and that AFRC's claims in this case are "among the tools that appear to have a likelihood of reversing the federal timber supply curtailment and offering the remaining timber manufacturers the raw material supply they require to remain in business." See AFRC VR Opp'n 10-11, 13; see also 16 U.S.C. § 1536(a)(2). The costs of retaining the rule, then, would include the costs of delay pending ESA section 7 consultation and the opportunity costs of foregone timber harvesting that could take place if the rule were vacated. But AFRC has not attempted to quantify these costs, nor has it provided any concrete
AFRC also argues that granting FWS's motion would unfairly prevent it from challenging the critical habitat rule in court, and that if this Court were to reach the merits of its claims, the rule would likely be vacated. See AFRC VR Opp'n 8-10, 14. But the Court is not persuaded that a plaintiff's "right of access to the courts," which AFRC asserts here, is alone sufficient to prevent voluntary remand without vacatur. See id. at 8. If this were the case, then opposed motions for voluntary remand without vacatur would almost never be granted. Yet such motions are commonly granted even when they are opposed. See, e.g., Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 417-18 (6th Cir.2004); Ethyl Corp., 989 F.2d at 523-24; Carpenters Indus. Council, 734 F.Supp.2d at 134-35; Sierra Club, 560 F.Supp.2d at 24-26.
Nevertheless, AFRC offers more than just its right to be heard as a reason to reach the merits here. Because an error like the one conceded by FWS may be grounds for vacatur of a rule, AFRC's argument about the likely result on the merits, if reached, deserves discussion.
After an agency rule or order has been found unlawful on the merits, the decision whether to vacate or remand without vacatur depends on: (1) "the seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose correctly)," and (2) "the disruptive consequences of an interim change that may itself be changed." See Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C.Cir. 1993) (internal quotation marks omitted). AFRC argues that these factors would support vacatur at the merits stage and hence that they counsel against remand without vacatur now.
The first Allied-Signal factor deals with the likelihood that a rule's deficiencies can be redressed on remand, "even if the agency reaches the same result." See Black Oak Energy, LLC v. FERC, 725 F.3d 230, 244 (D.C.Cir.2013) (citing Allied-Signal, 988 F.2d at 150-51). FWS's position is that a more detailed explanation on remand can remedy the deficiencies in the current critical habitat designation because all of the areas designated either were occupied at the time of listing or meet the more demanding standard for unoccupied habitat. See FWS VR Mot. 11, 13; Frazer Decl. ¶ 5. AFRC sees it differently, arguing that if this case proceeded to the merits, it could establish "a major substantive flaw in the 1996 rule," which could not be cured on remand. AFRC VR Opp'n 15. AFRC points to FWS's 2011 statement that "each of the areas designated as critical habitat is within the geographical area occupied by the species at the time it was listed," and asserts that, because FWS indicated that all areas were designated on the basis that they were "occupied," FWS
This is incorrect. Just because FWS said that all of the areas designated were occupied at the time of listing does not make it so. AFRC recognizes as much, arguing in its Fourth Claim that FWS unlawfully designated critical habitat that was "not occupied at the time of listing." See Compl. [ECF 1] ¶¶ 47-50. AFRC cannot argue that FWS erroneously found that the designated areas were occupied, see id., and at the same time seek to bind the agency to that (allegedly erroneous) finding, see AFRC VR Opp'n 17. If AFRC is correct that some designated areas were not occupied at the time of listing, then such areas were "outside the geographical area occupied by the species" and possibly qualify as critical habitat under 16 U.S.C. § 1532(5)(A)(ii). On remand, then, FWS may be able to justify the current designation by adequately explaining that the designated areas were in fact occupied at the time of listing and did in fact contain PCEs. Or, notwithstanding that FWS apparently designated all critical habitat on the basis that it was occupied, the agency may determine on remand that some of the areas designated, though not occupied, are critical habitat because they are essential for the conservation of the murrelet. See Otay Mesa, 646 F.3d at 918 (indicating that FWS, which had designated land on basis that it was occupied, might be able to justify re-designation on remand on basis that it was "`essential for the conservation of the species'"). Thus, it is "plausible that [FWS] can redress its failure of explanation on remand while reaching the same result." See Black Oak Energy, 725 F.3d at 244 (citing Lone Mountain Processing, Inc. v. Sec'y of Labor, 709 F.3d 1161, 1164 (D.C.Cir.2013) ("The Commission may well arrive at the same result it reached originally, but it must do so with more clarity than it showed in the first instance.")).
That is not to say that the Court would not vacate the critical habitat designation if it reached the merits. Courts have vacated critical habitat rules where FWS has failed to adequately explain how designated areas met the definition of critical habitat set forth in 16 U.S.C. § 1532(5)(A). See, e.g., Otay Mesa, 646 F.3d at 918 (vacating designation of property as critical habitat because record did not support FWS's determination that property at issue was "occupied" at time of listing); Cape Hatteras, 344 F.Supp.2d at 122-23 (vacating critical habitat that included areas FWS determined to be "occupied" but on which PCEs were not "found"); Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv., 268 F.Supp.2d 1197, 1237-39 (E.D.Cal.2003) (rejecting intervenor's argument for remand without vacatur and vacating critical habitat, in significant part because of "serious" errors in FWS's legal description of critical habitat). In Otay Mesa, the D.C. Circuit even noted that FWS might be able to justify a re-designation on remand, but vacated nevertheless (though the court did not address remand without vacatur as an alternative to vacatur in that case). See 646 F.3d at 918.
In summary, reaching the merits in this case might lead to remand without vacatur, because it is plausible that further explanation on remand can redress the rule's deficiencies, or it might instead lead to vacatur, as has resulted in some similar cases. At this time, however, the Court is not in a position to fully assess the seriousness of the deficiencies or to predict whether or how the new designation will
The Court next turns to the second Allied-Signal factor, the "disruptive consequences" of vacatur. If, as FWS asserts here, the revised rule will be little different from the current rule, then a three-year interim vacatur — of a longstanding rule that has been in place since 1996 — may well be disruptive. See FWS VR Reply 7 (stating that FWS "has no reason to believe... that any of the areas currently designated will not qualify as critical habitat"). FWS maintains its position that interim vacatur would not result in significant harm to the murrelet, see FWS VR Mot. 14, and AFRC stresses this as well, see AFRC VR Opp'n 11-12, 18. But as the Court noted in its March 30, 2013 memorandum opinion, vacating murrelet critical habitat altogether may have unpredictable and irreversible consequences. See 946 F.Supp.2d at 31-32; see also, e.g., Natural Res. Def. Council, 275 F.Supp.2d at 1146 ("The strong public policy in favor of environmental protection indicates that the Court should resolve uncertainties in estimating the risk of harm from habitat conversion during remand, in the absence of viable critical habitat designations, in favor of retaining the disputed rules."). At any rate, the second Allied-Signal factor does not strongly favor vacatur.
Weighing the equities here, the Court will grant FWS's motion for voluntary remand without vacatur. As previously stated, avoiding further litigation of this matter will conserve the resources of the Court and the parties, as well as taxpayer dollars. A substantial part of the relief requested — a remand of the murrelet critical habitat designation to FWS — will be granted whether FWS's motion is granted now or AFRC prevails on the merits later. Although FWS hints that briefing on the merits would be "solely" about vacatur, the Court has little confidence that the merits litigation would be so confined. AFRC does not limit its request to briefing the issue of vacatur, and intervenors do not concede that AFRC would prevail on its critical habitat claims. See AFRC VR Opp'n 2, 19 (request to "present[] dispositive summary judgment motions on the critical habitat claims"); Intervenors' VR Resp. 4-5 (stating that merits determination would require "review of the not-yet-filed administrative record and fully-developed legal argument"). And even if the appropriateness of vacatur were the only issue before the Court, determining the seriousness of the critical habitat rule's deficiencies would necessitate the expenditure of considerable time and resources.
In addition, even if the merits of AFRC's claims are decided, open questions — for example, which areas were occupied
Finally, the Court concludes that, although AFRC has raised some legitimate objections, it will not be unduly prejudiced by remand without vacatur. As a practical matter, since briefing on the merits has not yet transpired, it would be many months before a decision on the merits could be rendered by the Court. The critical habitat designation would remain in force during that time regardless of the Court's decision today, and so the additional amount of time that AFRC will be subject to the rule as a result of voluntary remand is actually less than three years. Also, the murrelet critical habitat designation is a longstanding rule that may be justified by FWS on remand. The real possibility that the rule's deficiencies can be addressed on remand, and hence that the rule would not be vacated in any case, decreases the expected benefit to AFRC and the public of going forward with this litigation now. That possibility also increases the likelihood that a three-year interim vacatur will be unduly disruptive. And AFRC has not convinced the Court that the ill-defined prejudice to its timber interests outweighs the certain benefits to be gained by avoiding further litigation. Hence, the Court will remand the murrelet critical habitat designation to FWS and order FWS to submit a new proposed critical habitat designation by not later than September 30, 2015, and a new final critical habitat designation by not later than September 30, 2016.
For the foregoing reasons, the Court will deny AFRC's motion for summary judgment on its Third Claim, grant FWS's and intervenors' cross-motions, and grant FWS's motion for voluntary remand. A separate order accompanies this memorandum opinion.
Julie MacDonald, former Deputy Assistant Secretary for Wildlife and Parks at the Department of the Interior, was found to have improperly used her influence to modify a number of FWS decisions during her tenure. See Intervenors' Cross-Mot. 11; AR 3752-53. One such decision was the 2004 five-year status review for the marbled murrelet. See AR 3753. Apparently, reviewers at a regional office of FWS at first determined that the tri-state population of the murrelet was discrete, but, due to MacDonald's influence, that determination was reversed in the final status review. AR 3736-37, 3753. MacDonald's improper influence on the 2004 status review may help to explain the change in FWS's discreteness analysis between 2004 and 2009-2010.
Proposed Consent Decree 2.
