Markle Interests, LLC v. United States Fish & Wildlife Service et al
Filing
130
ORDER & REASONS: ORDERED that defendants' 92 and 96 Motion to Strike Extra-record Evidence are GRANTED; the defendants' 89 - 91 Motion for Summary and 93 - 95 Motion for Summary Judgment are DENIED IN PART and GRANTED IN PART as stated herein; and the plaintiffs' cross-motions 67 , 69 and 80 Motion for Summary Judgment are GRANTED IN PART and DENIED IN PART as stated herein. Signed by Judge Martin L.C. Feldman. (Reference: ALL)(cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARKLE INTERESTS, LLC
CIVIL ACTION
v.
NO. 13-234
c/w 13-362 and
13-413
(Pertains to all cases)
UNITED STATES
FISH AND WILDLIFE SERVICE, ET AL.
SECTION "F"
ORDER AND REASONS
These
consolidated
proceedings
ask
whether
a
federal
government agency's inclusion of a privately-owned tree farm in its
final designation of critical habitat for the dusky gopher frog,
pursuant
to
capricious.
the
Endangered
Species
Before the Court are
Act,
was
arbitrary
or
11 motions, including nine
cross-motions for summary judgment:
(1) Weyerhaeuser Company's motion for summary judgment,
(2) the federal defendants' cross-motion, and (3) the
intervenor defendants' cross-motion; (4) Markle Interests
LLC's motion for summary judgment, (5) the federal
defendants' cross-motion, and (6) the intervenor
defendants' cross-motion; (7) the Poitevent Landowners'
motion for summary judgment; (8) the federal defendants'
cross-motion, and (9) the intervenor defendants' crossmotion.
Additionally before the Court are two motions to strike extrarecord evidence submitted by Poitevent Landowners, one filed by
federal defendants and one by intervenor defendants.
For the
reasons the follow, the federal and intervenor defendants' motions
to
strike
extra-record
evidence
1
are
GRANTED;
the
plaintiffs'
motions for summary judgment are GRANTED in part (insofar as they
have standing) and DENIED in part; and, finally, the defendants'
motions
are
DENIED
in
part
(insofar
as
defendants
challenge
plaintiffs' standing) and GRANTED in part.
Background
Plaintiffs in these consolidated cases -- landowners and a
lessee of a tree farm in Louisiana -- challenge the United States
Fish and Wildlife Service's (FWS) final rule designating 1,544
acres of a privately-owned timber farm in St. Tammany Parish as
critical habitat that is essential for the conservation of the
dusky gopher frog, an endangered species.
Only about 100 adult dusky gopher frogs remain in the wild.
The frog, listed as endangered in 2001, is now located only in
Mississippi; it does not presently occupy the plaintiffs' tree farm
and was last sighted there in the 1960s.
Nevertheless, FWS
included certain acreage of the plaintiffs' tree farm in its rule
designating critical habitat for the frog, finding this land
essential to conserving the dusky gopher frog.
plaintiffs insist is arbitrary.
A determination
To better understand the factual
and procedural background of this challenge to federal agency
action,
it
is
helpful
first
to
consider
the
context
of
administrative framework germane to the present controversy.
2
the
The Endangered Species Act
Due to the alarming trend toward species extinction "as a
consequence
of
economic
growth
and
development
untempered
by
adequate concern and conservation," Congress enacted the Endangered
Species
Act,
16
U.S.C.
§
1531,
et.
seq.,
(ESA)
to
conserve
endangered and threatened species and the ecosystems on which they
depend.
16 U.S.C. § 1531(a), (b).
By defining "conservation" as
"the use of all methods and procedures which are necessary to bring
any endangered or threatened species to the point at which the
measures provided [by the ESA] are no longer necessary," (16 U.S.C.
§ 1532(3)), the Act illuminates that its objective is not only "to
enable listed species ... to survive, but [also] to recover from
their endangered or threatened status."
Sierra Club v. FWS, 245
F.3d 434, 438 (5th Cir. 2001); Tenn. Valley Authority v. Hill, 437
U.S. 153, 184 (1978)("The plain intent of Congress in enacting this
statute
was
to
halt
and
reverse
the
trend
toward
species
extinction, whatever the cost.").
The U.S. Secretary of the Department of Interior is charged
with administering the Act; the Secretary delegates authority to
the U.S. Fish and Wildlife Service.1 To achieve the Act's survival
and recovery objectives, FWS is obligated to utilize enumerated
1
Technically, administration responsibilities are divided
between the Department of Interior and the Department of Commerce.
16 U.S.C. § 1533(a)(2). The Secretaries of these agencies then
delegated their authority to the FWS or National Marine Fisheries
Service.
3
criteria to promulgate regulations that list species that are
"threatened"
mandatory
or
"endangered".
terms,
the
16
requirement
U.S.C.
to
§
1533
determine
(stating,
in
threatened
or
endangered species status: "The Secretary shall determine....").
A species is listed as "endangered" if it is "in danger of
extinction throughout all or a significant portion of its range."
16 U.S.C. § 1532(6). Listing triggers statutory protections for the
species. See, e.g., 16 U.S.C. §, 1538(a) (setting forth prohibited
acts, such as "taking" (§ 1532(19)) listed animals).
Listing
also
triggers
FWS's
statutory
duty
to
designate
critical habitat; such designation being another tool in FWS's
arsenal to accomplish the Act's species survival and recovery
objectives.
See 16 U.S.C. § 1533(a)(3)(A)("The Secretary, by
regulation promulgated in accordance with subsection (b) of this
section and to the maximum extent prudent and determinable ... (i)
shall
concurrently
with
making
a
[listing]
designate any habitat of such species....").
determination
...
Like its listing
duty, FWS's habitat designation duty is mandatory;2 the designation
2
Sierra Club v. FWS, 245 F.3d 434, 438 (5th Cir. 2001)("Once a
species has been listed as endangered or threatened, the ESA states
that the Secretary 'shall' designate a critical habitat 'to the
maximum extent prudent or determinable.' The ESA leaves to the
Secretary the task of defining 'prudent' and 'determinable.'").
It is incumbent on the Secretary -- "to the maximum extent
prudent and determinable" -- to designate critical habitat
concurrently with listing a species as endangered, 16 U.S.C. §
1533(a)(3)(A)(i), but the Secretary's failure to make a concurrent
designation, for whatever reason, does not preclude later
designation. See 16 U.S.C. § 1532(a)(3)(B)("Critical habitat may
4
must be based on "the best scientific data available ... after
taking into consideration the economic impact, the impact on
national security, and any other relevant impact."
1533(b)(2).
however,
16 U.S.C. §
After weighing the impacts of designation, FWS may,
exclude
an
area
from
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.
Notably, in defining "critical habitat" for an endangered
species, the ESA differentiates between habitat that is "occupied"
and habitat that is "unoccupied" at the time of listing:
(5)(A) The term "critical habitat" for a threatened or
endangered species means–
(i) the specific areas within the geographical area
occupied by the species, at the time it is listed in
accordance with the provisions of section 1533 of this
title, on which are found those physical or biological
features (I) essential to the conservation of the species
and
(II)
which
may
require
special
management
considerations or protection; and
(ii) specific areas outside the geographical area
occupied by the species at the time it is listed in
accordance with the provisions of section 1533 of this
title, upon a determination by the Secretary that such
areas are essential for the conservation of the species.
be established for those species now listed as threatened or
endangered species for which no critical habitat has heretofore
been established...."); see also 16 U.S.C. § 1533(b)(6)(C)(ii)(if
"critical habitat of [listed] species is not ... determinable [at
the time of listing], the Secretary ... may extend the one-year
period specified in paragraph (A) by not more than one additional
year....") and 50 C.F.R. § 424.17(b)(2).
5
16 U.S.C. § 1532(5)(A).
express
terms,
the
Act
Thus, in so differentiating, by its
contemplates
the
designation
of
both
"occupied" and "unoccupied" critical habitat. FWS may designate as
critical
occupied
habitat
that
contains
certain
physical
or
biological features called "primary constituent elements", or
"PCEs".3
50 C.F.R. § 424.12(b).
FWS may designate as critical
unoccupied habitat so long as it determines it is "essential for
the conservation of the species" and "only when a designation
limited to its present range would be inadequate to ensure the
conservation of the species."
50 C.F.R. § 424.12(e).
Once designated, critical habitat is protected from harm if
and
when
triggered:
the
ESA's
federal
agency
consultation
mechanism
is
federal agencies must consult with FWS on any actions
"authorized, funded, or carried out by" the agency to ensure that
their
actions
do
"not
result
modification of habitat...."
in
the
destruction
16 U.S.C. § 1536(a)(2).4
or
adverse
If FWS or
3
PCEs are those "physical and biological features that, when
laid out in the appropriate quantity and spatial arrangement to
provide for a species' life-history processes, are essential to the
conservation of the species." 77 Fed. Reg. 35118, 35131 (2012).
4
Destruction or modification of critical habitat is defined,
by regulation, as "a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species." 50 C.F.R. § 402.02. However, the
U.S. Court of Appeal for the Fifth Circuit struck down, as facially
invalid, this regulatory definition of the destruction/adverse
modification standard. Sierra Club, 245 F.3d at 442-43 (observing
that the ESA distinguishes between "conservation" and "survival"
and "[r]equiring consultation only where an action affects the
value of critical habitat to both the recovery and survival of a
6
the consulting federal agency determines that a contemplated action
"may affect ... critical habitat", the agency and FWS must engage
in "formal" consultation. 50 C.F.R. § 402.14(a). If FWS finds that
a contemplated agency action, such as the issuance of a permit, is
likely to adversely modify critical habitat, FWS must suggest
reasonable and prudent alternatives that the consulting agency
could take to avoid adverse modification. 50 C.F.R. § 402.14(h)(3).
"Reasonable and prudent alternatives" must be "economically and
technologically feasible." 50 C.F.R. § 402.02. Thus, if a private
party's action has no federal nexus (if it is not authorized,
funded, or carried out by a federal agency), no affirmative
obligations are triggered by the critical habitat designation.
In
other words, absent a federal nexus, FWS cannot compel a private
landowner to make changes to restore his designated property into
optimal habitat.
The Dusky Gopher Frog
The dusky gopher frog (Rana Sevosa) is a darkly-colored,
moderately-sized frog with warts covering its back and dusky spots
on its belly.
It is a terrestrial amphibian endemic to the
longleaf pine ecosystem.
The frogs "spend most of their lives
underground5 in forested habitat consisting of fire-maintained,
species imposes a higher threshold than the statutory language
permits.")(emphasis in original).
5
"Underground retreats include gopher tortoise burrows, small
mammal burrows, stump holes, and root mounds of fallen trees." 77
7
open-canopied, pine woodlands historically dominated by longleaf
pine."
isolated
77 Fed. Reg. at 35129 - 35131.
ephemeral
ponds6
to
breed,
They travel to small,
then
return
to
their
subterranean forested environment, followed by their offspring that
survive to metamorphose into frogs.
Amphibians like the dusky
gopher frog need to maintain moist skin for respiration and
osmoregulation.
To this end, the areas connecting their wetland
and terrestrial habitats must be protected to provide cover and
moisture during migration.7
The risk for its extinction is high.
dusky gopher frogs are left in the wild.
Only about 100 adult
They are located in three
sites in Harrison and Jackson Counties in southern Mississippi;
only one of these sites regularly shows reproduction.
The frog is
primarily threatened by habitat loss and disease. Due to its small
numbers, it is also highly susceptible to genetic isolation,
inbreeding, and random demographic or human related events.
Fed. Reg. at 35130.
6
Ephemeral ponds are isolated wetlands that dry periodically
and flood seasonally; because they are short-lived, predatory fish
are lacking.
7
"Optimal habitat is created when management includes frequent
fires, which support a diverse ground cover of herbaceous plants,
both in the uplands and in the breeding ponds." Id. at 35129.
Frequent fires are also critical to maintaining the prey base for
the carnivorous juvenile and adult dusky gopher frogs.
Id. at
35130.
8
Listing and Proposed Critical Habitat Designation
In December 2001, in response to litigation commenced by the
Center for Biological Diversity, FWS listed the dusky gopher frog8
as
an
endangered
species.
FWS
determined
that
the
frog
was
endangered due to its low population size combined with ongoing
threats such as habitat destruction, degradation resulting from
urbanization,
and
associated
stressors such as drought.
that time.
vulnerability
to
environmental
No critical habitat was designated at
Nearly six years later, litigation again prompted FWS
to action: in resolving, through settlement, the litigation to
compel designation, in 2011 FWS published a proposed rule to
designate critical habitat; the proposed rule included unoccupied
and occupied areas in Mississippi only.9
An independent peer review of the proposed rule followed.
Every peer reviewer10 concluded that the amount of habitat already
proposed,
which
included
occupied
and
unoccupied
areas
in
8
At that time, and until 2012, the dusky gopher frog was known
as the Mississippi gopher frog.
9
FWS determined that the frog's optimal habitat includes three
primary constituent elements (PCEs): (1) small, isolated, ephemeral
ponds for breeding; (2) upland pine forested habitat that has an
open canopy; and (3) upland connectivity habitat. FWS determined
that this habitat contains the "physical and biological features
necessary to accommodate breeding, growth, and other normal
behaviors of the [frog] and to promote genetic flow within the
species."
10
These six individuals had scientific expertise and were
familiar with the species and the geographical region, as well as
conservation biology principles.
9
Mississippi, was insufficient for conservation of the species.
Several peer reviewers suggested that FWS consider other locations
within the frog's historical range. One peer reviewer in particular
suggested the area of dispute here, identified as Unit 1 by the
final rule: although the dusky gopher frog does not presently
occupy this land and had not been seen on the land since the 1960s,
Unit 1 contained at least two historical breeding sites for the
frog.
Based on the comments, FWS re-analyzed the "current and
historic data for the species, including data from Alabama and
Louisiana."
FWS
identified
additional
critical
habitat
in
Mississippi and Louisiana,11 and included those areas within the
revised proposed rule published for comment on September 27, 2011.
Before finalizing the rule, FWS considered the potential
economic impacts of the designation.
The final economic analysis
(EA) quantified impacts that may occur in the 20 years following
designation, analyzing such economic impacts of designating Unit 1
based
on
development
the
following
occurring
in
three
Unit
hypothetical
1
would
scenarios:
avoid
impacts
(1)
to
jurisdictional wetlands and, thus, would not trigger ESA Section 7
consultation requirements; (2) development occurring in Unit 1
would require a permit from the Army Corps of Engineers due to
potential impacts to jurisdictional wetlands, which would trigger
ESA Section 7 consultation between the Corps and FWS, and FWS would
11
FWS was not able to identify critical habitat in Alabama.
10
work with landowners to keep 40% of the unit for development and
60% managed for the frog's conservation ("present value incremental
impacts of critical habitat designation due to the lost option for
developing 60 percent of Unit 1 lands are $20.4 million"); and (3)
development occurring would require a federal permit, triggering
ESA Section 7 consultation, and FWS determines that no development
can occur in the unit ("present value impacts of the lost option
for development in 100 percent of the unit are $33.9 million").12
Because the EA "did not identify any disproportionate costs that
are likely to result from the designation[,] the Secretary [did]
not exercis[e] his discretion to exclude any areas from this
designation of critical habitat for the dusky gopher frog based on
economic impacts."
The 6/12/12 Final Rule Designating Critical Habitat
On June 12, 2012 FWS issued its final rule designating
critical habitat for the dusky gopher frog.
77 Fed. Reg. 25118
(June 12, 2012). The habitat designation covers 6,477 acres in two
states, Mississippi and Louisiana, including approximately 1,544
acres of forested land in St. Tammany Parish, Louisiana, known as
Critical Habitat Unit 1. FWS determined that the ephemeral wetlands
in Unit 1 contain all of the physical or biological features that
make
up
PCE
1.
Unit
1
was
12
included
in
the
designation
In preparing the final version of the EA, FWS considered Unit
1's landowners' comments, as well as the landowners' submissions
regarding the value of Unit 1 land.
11
notwithstanding the fact that the dusky gopher frog has not
occupied the lands for decades.
Procedural History of Consolidated Litigation
The plaintiffs in these consolidated proceedings own all of
the forested property identified in the Rule as Unit 1. P&F Lumber
Company (2000), L.L.C., St. Tammany Land Co., L.L.C., and PF Monroe
Properties, L.L.C. (the Poitevent Landowners), as well as Markle
Interests, L.L.C. own undivided interests in 95% of the 1,544 acres
of land comprising Unit 1; and the remaining 5% (approximately 152
acres) of the land in Unit 1 is owned by Weyerhaeuser Company,
which also holds a timber lease on the balance of the 1,544 acres
comprising Unit 1; that lease is up in 2043.
Seeking to invalidate the Rule insofar as it designates Unit
1 as critical habitat for the dusky gopher frog, Markle Interests
filed suit and, shortly thereafter, Poitevent Landowners and later
Weyerhaueuser Company followed suit.13
Each of the plaintiffs
allege that the Rule designating Unit 1 exceeds constitutional
authority under the Commerce Clause, U.S. Const. art. 1 § 8, cl. 3,
and that it violates the Endangered Species Act, 16 U.S.C. § 1531,
et seq.,14 the Administrative Procedure Act, 5 U.S.C. § 551, et
seq., and the National Environmental Policy Act, 42 U.S.C. § 4321,
13
In May 2013 the Court granted motions to consolidated these
three lawsuits.
14
Plaintiffs invoke the ESA's citizen suit provision, 16 U.S.C.
§ 1540(g).
12
et seq.; they seek identical declaratory and injunctive relief.
Named as defendants are the U.S. Fish & Wildlife Service; Daniel M.
Ashe, in his official capacity as Director of U.S. Fish & Wildlife
Service; the U.S. Department of the Interior; and Sally Jewell, in
her official capacity as Secretary of the Department of the
Interior. On June 25, 2013 the Center for Biological Diversity and
Gulf Restoration Network were granted leave to intervene, as of
right, as defendants. On August 19, 2013 the federal defendants
lodged
the
certified
administrative
record
with
the
Court.15
Federal and intervenor defendants now request that the Court strike
certain
extra-record
Landowners.
evidence
submitted
by
the
Poitevent
And plaintiffs, federal defendants, and intervenor
defendants now seek summary judgment.
I. Standards of Review
A. Summary Judgment
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine issue of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
15
A genuine issue
This
Court
imposed
an
October
2013
deadline
for
supplementing, or challenging, the administrative record; no party
requested to supplement the record.
13
of fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion. See id. Therefore, "[i]f the evidence is merely colorable,
or
is
not
appropriate.
significantly
probative,"
summary
Id. at 249-50 (citations omitted).
judgment
is
Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claims.
Id.
Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.
Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).
Finally, in evaluating the summary
judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.
14
Anderson, 477 U.S. at 255.
B. Administrative Procedure Act
Where plaintiffs challenge the Secretary's administration of
the ESA -- in particular, a final rule designating critical habitat
-- the Administrative Procedure Act is the appropriate vehicle for
judicial review. See Bennett v. Spear, 520 U.S. 154, 174-75 (1997).
The APA entitles any "person adversely affected or aggrieved
by agency action" to judicial review of "agency action made
reviewable by statute and final agency action for which there is no
other adequate remedy[.]"
5 U.S.C. § 702 (right of review); 5
U.S.C. § 704 (actions reviewable).
A reviewing court must "set
aside agency action, findings, and conclusions found to be ...
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law [or] contrary to constitutional right,
power, privilege, or immunity[.]"
5 U.S.C. § 706(2).
This
standard is "highly deferential" and the agency's decision is
afforded a strong presumption of validity.
Hayward v. U.S. Dep't
of Labor, 536 F.3d 376, 379 (5th Cir. 2008); Miss. River Basin
Alliance v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000)(Courts must
be particularly deferential to agency determinations made within
the scope of the agency's expertise).
The reviewing court must
decide whether the agency acted within the scope of its authority,
"whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment." See
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16
15
(1971)("inquiry into the facts is to be searching and careful,
[but] the ultimate standard of review is a narrow one"), overruled
on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).
The
Court may not "reweigh the evidence or substitute its judgment for
that of the administrative fact finder." Cook v. Heckler, 750 F.2d
391, 392 (5th Cir. 1985).
"Nevertheless, the agency must examine
the relevant data and articulate a satisfactory explanation for its
action including a 'rational connection between the facts found and
the choice made.'"
Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983).
II.
Scope of the Record
With the exception of the Poitevent Landowners, all parties
agree that, in assessing the lawfulness of FWS's designation Rule,
this Court is confined to reviewing only the administrative record
assembled by FWS.
Indeed, "[r]eview of agency action under §
706(2)'s 'arbitrary or capricious' standard is limited to the
record before the agency at the time of its decision."
See
Luminant Generation Co., LLC v. EPA, 675 F.3d 917, 925 (5th Cir.
2012). Notwithstanding this core administrative law principle, the
Poitevent Landowners insist that the Court may consider certain
extra-record materials. The Court disagrees; because the Poitevent
Landowners
have
failed
to
demonstrate
unusual
circumstances
justifying a departure from the record, the Court finds that
granting the federal and intervenor defendants' motions to strike
16
extra-record evidence is warranted for the following reasons.
In reviewing agency action, the APA instructs a reviewing
court to "review the whole record or those parts of it cited by a
party[.]" 5 U.S.C. § 706.
"[T]he general presumption [is] that
review [of agency action] is limited to the record compiled by the
agency."
Medina County Environmental Action Ass'n v. Surface
Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010); Goonsuwan v.
Ashcroft, 252 F.3d 383, 391 n.15 (5th Cir. 2001)(citing Florida
Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985))("It is a
bedrock principle of judicial review that a court reviewing an
agency
decision
record.").
should
not
go
outside
of
the
administrative
Mindful that the Court's task in reviewing agency
action is not one of fact-finding but, rather, to determine whether
or not the administrative record supports agency action, "the focal
point for judicial review should be the administrative record
already in existence, not some new record made initially in the
reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973). That is
an immensely cramped standard of review for courts.
In support of their motion for summary judgment the Poitevent
Landowners
submit
the
following
extra-record
evidence:
(1)
Declaration of Edward B. Poitevent signed on December 9, 2013; (2)
Wall
Street
Journal
newspaper
article
dated
March
11,
2013,
entitled "Fishing for Wildlife Lawsuits"; (3) Washington Times
newspaper
article
dated
February
17
8,
2013,
entitled
"Vitter:
Endangered Species Act's hidden costs"; (4) Poitevent's 60-day
notice of intent to sue letter dated October 19, 2012.16
The
federal and intervenor defendants move to strike these materials,
pursuant to Rule 12(f) of the Federal Rules of Civil Procedure;
they invoke the administrative record review principle that limits
the scope of judicial review of agency action to the record
compiled by the agency.
The Court is unpersuaded to depart from the strict record
review presumption.
First, the Poitevent Landowners had ample
opportunity to request permission to supplement the administrative
record; the deadline to do so expired October 7, 2013. They simply
did not do so.17
Second, the Poitevent Landowners fall short of
demonstrating "unusual circumstances justifying a departure" from
the rule that judicial review is limited to the administrative
record. See Medina County, 602 F.3d at 706.
The Fifth Circuit
instructs that supplementing the administrative record may be
16
The Poitevent Landowners advance a litany of arguments urging
the Court to consider the proffered evidence: (1) judicial review
under the ESA's citizen suit provision and under the Commerce
Clause is not limited to the administrative record; (2) Rule 56
permits submission of such evidence; (3) the contested evidence is
in fact part of the administrative record or otherwise the Court
may take judicial notice of such evidence; (4) exceptions to APA
record review principles apply to warrant the Court's review of
this extra-record evidence; or (5) the FWS' trespass on their lands
require judicial review of the proffered evidence.
17
In fact, the Poitevent Landowners have never requested
permission to submit the materials they submit with their summary
judgment papers; they simply respond to the defendants' motions to
strike.
18
permitted when:
(1) the agency deliberately or negligently excluded
documents that may have been adverse to its decision, ...
(2) the district court needed to supplement the record
with "background information" in order to determine
whether the agency considered all of the relevant
factors, or
(3) the agency failed to explain administrative action so
as to frustrate judicial review.
Id.
None of these factors are implicated here.
Accordingly, the
Court must confine the scope of its review to the administrative
record compiled by the agency and lodged with the Court.
The
federal and intervenor defendants' motions to strike the extrarecord, post-decisional materials are granted.18
III. Standing
The Court turns to consider the threshold issue of standing.
To resolve this issue, the Court must be satisfied that the
plaintiffs have standing to challenge the Rule designating their
land as critical habitat.
"Article
III
of
the
The Court finds that they do.
Constitution
limits
federal
jurisdiction to certain 'Cases' and 'Controversies.'"
courts'
Clapper v.
Amnesty Int'l USA, --- U.S. ---, 133 S.Ct. 1138, 1146 (2013). "One
element of the case-or-controversy requirement"
commands that a
litigant must have standing to invoke the power of a federal court.
See id. (citation omitted); see also National Federation of the
18
The administrative record review principle is not applicable
to the standing assessment; the Court will consider Mr. Poitevent's
Declaration for the purposes of assessing the Poitevent Landowners'
standing.
19
Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir. 2011).
The plaintiffs bear the burden of establishing standing under
Article III.
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
(2006); Miss. State Democratic Party v. Barbour, 529 F.3d 538, 545
(5th Cir. 2008).
The doctrine of standing requires that the Court satisfy
itself that “the plaintiff has ‘alleged such a personal stake in
the outcome of the controversy’ as to warrant his invocation of
federal-court jurisdiction.” See Summers v. Earth Island Institute,
555 U.S. 488, 493 (2009); see also Doe v. Beaumont Independent
School Dist., 240 F.3d 462, 466 (5th Cir. 2001)(citing Warth v.
Seldin, 422 U.S. 490, 498 (1975)). “Standing to sue must be proven,
not merely asserted, in order to provide a concrete case or
controversy and to confine the courts’ rulings within our proper
judicial sphere.”
Doe v. Tangipahoa Parish School Bd., 494 F.3d
494, 499 (5th Cir. 2007).
The
plaintiffs
must
demonstrate
the
“irreducible
constitutional minimum of standing”, which is informed by three
elements:
(1)
that
they
personally
threatened “injury in fact” (2)
suffered
some
actual
or
that is “fairly traceable” to the
challenged action of the defendants; (3) that likely “would be
redressed”
by
a
favorable
decision
20
in
Court.
See
Lujan
v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).19
The federal
and intervenor defendants challenge the plaintiffs' standing to
contest the Secretary's designation of their land as critical
habitat; in particular, the defendants contend that the plaintiffs
have failed to establish an actual or imminent injury.20
The Court
disagrees.
"'Injury in fact [includes] economic injury, [as well as]
injuries to aesthetics and well-being.'" See Sabine River Auth. v.
U.S. Dept. of Interior, 951 F.2d 669, 674 (5th Cir. 1992) (quoting
Save Our Wetlands, Inc. V. Sands, 711 F.2d 634, 640 (5th Cir.
1983)). Notably, when the plaintiff is an object of the government
action at issue, “there is ordinarily little question that the
action” has caused him injury.
Lujan, 504 U.S. at 561-62.
In
fact, when the plaintiff challenging agency action is a regulated
party or an organization representing regulated parties, courts
have found that the standing inquiry is "self-evident."
See South
Coast Air Quality Management Dist. v. EPA, 472 F.3d 882, 895–96
(D.C.Cir. 2006)(an association of oil refineries had standing to
19
The actual injury requirement ensures that issues will be
resolved “not in the rarified atmosphere of a debating society, but
in a concrete factual context.” Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454 U.S.
464, 472 (1982).
20
The
traceable
challenge
favorable
defendants do not challenge whether the injury is fairly
to their critical habitat designation; nor do they
whether the injury is likely to be redressed by a
ruling.
21
challenge an EPA regulation establishing air pollution standards
because it was “inconceivable” that the regulation “would fail to
affect ... even a single” member of the association); see also Am.
Petroleum Institute v. Johnson, 541 F. Supp. 2d 165, 176 (D.D.C. 2008)
("Regulatory influences on a firm's business decisions may confer
standing when, as here, they give rise to cognizable economic
injuries or even a 'sufficient likelihood' of such injuries.")
(citing Clinton v. City of New York, 524 U.S. 417, 432–33 (1998)
and Sabre, Inc. v. Dept. of Transp., 429 F.3d 1113, 1119 (D.C.Cir.
2005)(firm established standing to challenge regulation where it
was
“reasonably
certain
that
[the
firm's]
[would] be affected” by the regulation)).
business
decisions
This is so because
regulated parties are generally able to demonstrate that they
suffer some economic harm or other coercive effect by virtue of
direct regulation of their activities or property.
These actual injuries are present here.
When the Rule became
final, the plaintiffs (each of whom are identically factually
situated as Unit 1 landowners) became regulated parties who are
subject to regulatory burdens flowing from federal substantive law,
the ESA.
The plaintiffs' sworn declarations are sufficient to
establish constitutional standing.21
21
Now that their land is an
At summary judgment, the plaintiff cannot rely on simply
“mere allegations,” but must “‘set forth’ by affidavit or other
evidence ‘specific facts.’” Lujan, 504 U.S. at 561 (quoting Fed. R.
Civ. P. 56(e)).
22
object
of
agency
action,
plaintiffs
submit
that
they
are
economically harmed in that the value of their land has decreased
as a result of the agency designation; their business decisions
relative to their land are negatively impacted.22
Plaintiffs have
a personal stake in this controversy and have identified a concrete
injury that is actual, not hypothetical.
As a consequence of the
Rule's designation of Unit 1 as critical habitat, the plaintiffs'
pursuit of any development potential for the land clearly has been
impacted by the agency action.
Defendants' attack on standing
grounds seems utterly frivolous.
The defendants downplay these
economic harms and regulatory burdens as speculative,23 but the
22
Weyerhaeuser submits that the land it leases and owns has
been devalued; the "critical habitat designation ... has
immediately devalued the land within Unit 1 for commercial purposes
by bringing increased ... regulatory scrutiny under the Endangered
Species Act, thereby making it more difficult to sell, exchange, or
develop such lands." Markle and the Poitevent Landowners likewise
attribute to the Rule "negative economic impact[s]" and "a drastic
reduction in value [of the land]"; they submit that the designation
"limits the usability and saleability of the property" to their
detriment.
23
Defendants regard Weyerhaeuser's long-term timber lease as
precluding this Court from finding a concrete injury, arguing that
the land is essentially "locked up" for many years.
But
Weyerhaeuser's submission undermines the defendants' position.
Putting aside that Weyerhaeuser in fact owns part of the land in
addition to leasing the remainder, "Weyerhaeuser ... periodically
evaluate[s] its land portfolio to identify properties that have
greater value if placed in non-timber uses[; it] routinely leases
or sub-leases its forest lands for oil, gas and wind energy
development[; and it] frequently renegotiate[s] long-term timber
leases as conditions change."
Moreover, defendants' charge of
speculative injury is further undermined by the administrative
record and the Rule itself, which acknowledges that, due to the
presence of wetlands on Unit 1 (indeed, the reason underlying its
23
Court finds that the plaintiffs have demonstrated actual, concrete
injuries.
See The Cape Hatteras Access Preservation Alliance v.
U.S. Dep't of Interior, 344 F. Supp. 2d 108, 117-18 (D.D.C.
2004)(business association that owned land within critical habitat
designated for watering piping plover had standing to challenge
designation due to its economic and recreational harms).
IV.
Constitutional Challenge
The plaintiffs contend that federal regulation of Unit 1 under
the ESA constitutes an unconstitutional exercise of congressional
authority under the Commerce Clause. The defendants counter that
the ESA is consistently upheld as a constitutional exercise of the
Commerce Clause power and that each application of the ESA is not
itself subject to the same tests for determining whether the
underlying statute is a constitutional exercise of the Commerce
Clause. The Court agrees; the plaintiffs’ constitutional claim is
foreclosed by binding precedent.24
designation), development of this land is likely to trigger the
consultation process.
24
On a separate constitutional note, the plaintiffs do not
allege in their complaint that the Rule constitutes an
unconstitutional taking under the Fifth Amendment. But the
Poitevent Landowners argue in their papers that the critical
habitat designation is an unlawful "extortionate demand" that
constitutes "grand theft real estate." Assuming this is an attempt
to assert a Fifth Amendment takings claim, the defendants point out
that a takings claim must be brought in the Court of Federal
Claims. To be sure, this Court would lack jurisdiction over any
properly asserted takings claim under the circumstances. See
Chichakli v. Szubin, 546 F.3d 315, 317 (5th Cir. 2008)(vacating
district court's judgment as it related to takings claim and
24
Article I, § 8 of the Constitution delegates to Congress the
power “[t]o make all laws which shall be necessary and proper for
carrying into execution” its authority to “regulate commerce...
among the several states.” Supreme Court cases have identified
three
general
categories
of
regulation
in
which
Congress
is
authorized to engage under its commerce power: (1) the channels of
interstate
commerce;
(2)
the
instrumentalities
of
interstate
commerce and persons or things in interstate commerce; and (3)
activities that substantially affect interstate commerce. See
Gonzales v. Raich, 545 U.S. 1, 16-17 (2005) (summarizing the
evolution of the commerce clause power). The ESA, whose provisions
and
applications
fall
under
the
category
of
activities
that
substantially affect interstate commerce, has consistently been
upheld as a constitutional exercise of congressional authority
under the Commerce Clause. Six Circuits, including the Fifth
Circuit, have rejected post-Lopez Commerce Clause challenges to
applications of the ESA. See San Luis & Delta-Mendota Water Auth.
V. Salazar, 638 F.3d 1163 (9th Cir. 2011); Alabama-Tombigbee Rivers
Coal. V. Kempthorne, 477 F.3d 1250 (11th Cir. 2007); Wyoming v.
U.S. Dep’t of Interior, 442 F.3d 1262 (10th Cir. 2006); GDF Realty
Investments, Ltd. V. Norton, 326 F.3d 622 (5th Cir. 2003); Rancho
Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003); Gibbs v.
observing that "Tucker Act grants Court of Federal Claims exclusive
jurisdiction over takings claims against the United States that
seek monetary damages in excess of $10,000").
25
Babbitt, 214 F.3d 483 (4th Cir. 2000).
Plaintiffs mistakenly rely
on an earlier Supreme Court decision.
Invoking United States v. Lopez, 514 U.S. 549, 558-59 (1995),
the plaintiffs argue that, because the ESA is an exercise of
Congress’s commerce power, actions under the ESA are “therefore
limited to the regulation of channels of interstate commerce,
things
in
interstate
commerce,
or
economic
substantially affect interstate commerce.”
activities
that
Put plainly, they
insist that there is no frog on their Louisiana land and the Rule
exceeds the commerce power. The Court is tempted to agree, but for
the state of the law. By focusing on their individual circumstance,
plaintiffs misapprehend Lopez, which dealt with a challenge to an
underlying statute, not a challenge to an individual application of
a valid statutory scheme. Rejecting a similar argument, the Supreme
Court reiterated in Gonzales that “[w]here the class of activities
is regulated and that class is within the reach of federal power,
the courts have no power ‘to excise, as trivial, individual
instances’ of the class.’” 545 U.S. at 23 (quoting Perez v. United
States, 402 U.S. 146, 154 (1971)) (citations and internal quotation
marks omitted).
As odd as the Court views the agency action, this
Court is also without power.
The
Fifth
constitutionally
Circuit
valid
Congress would have to act.
has
observed
statutory
that
scheme,
the
whose
ESA
is
a
“‘essential
purpose,’” according to Congress, "is ‘to protect the ecosystems
26
upon which we and other species depend.’” GDF, 326 F.3d at 640
(citation omitted). Courts including the Fifth Circuit endorse the
proposition that, in the aggregate, the extinction of a species and
the resulting decline in biodiversity will have a predictable and
significant effect on interstate commerce. See, e.g., National
Ass'n of Home Builders v. Babbit, 130 F.3d 1041, 1053-54 (D.C. Cir.
1997).
Thus,
“when
‘a
general
regulatory
statute
bears
a
substantial relation to commerce, the de minimis character of
individual
instances
consequence.’”
arising
under
that
statute
is
of
no
Gonzales, 545 U.S. at 17 (quoting Lopez, 514 U.S.
at 558). Aggregating the regulation of activities that adversely
modify
the
frog's
activities
that
designation
of
critical
affect
habitat
other
critical
with
listed
habitat
the
species'
by
the
regulation
habitat,
Secretary
is
of
the
a
constitutionally valid application of a constitutionally valid
Commerce Clause regulatory scheme. See
GDF, 326 F.3d at 640-41.
V. Merits of the Rule
The defendants urge the Court to sustain the Rule. The
plaintiffs contend that the Secretary's designation of Unit 1 as
critical habitat for the dusky gopher frog was arbitrary and in
violation of the ESA and the National Environmental Policy Act;
they urge the Court to set aside the Rule. They advance a litany of
arguments
challenging
the
merits
of
the
Rule
insofar
as
it
designates Unit 1 as critical habitat for the dusky gopher frog:
27
Unit
1
does
not
meet
the
statutory
definition
of
"critical
habitat"; FWS unreasonably determined that Unit 1 is "essential"
for conservation of the frog; FWS arbitrarily failed to identify a
recovery plan for the species; FWS failed to consider all economic
impacts, and the method used in analyzing economic impacts was
flawed; and FWS acted unreasonably (and violated NEPA) in failing
to prepare an environmental impact statement. In addition to these
challenges, the Poitevent plaintiffs advance additional grounds for
condemning the Rule: the dusky gopher frog is not on the endangered
species list and FWS's unlawful trespass on its lands to view the
ponds invalidates the Rule.
The Court first addresses those arguments concerning whether
the designation of Unit 1 satisfies the ESA's requirements, then
moves on to consider whether the FWS properly considered the
economic
impacts
whether
FWS
of
acted
the
designation;
unreasonably
in
and,
finally,
failing
to
considers
prepare
an
environmental impact statement.
The Court has little doubt that what the government has done
is remarkably intrusive and has all the hallmarks of governmental
insensitivity to private property.
The troubling question is
whether the law authorizes such action and whether the government
has acted within the law.
Reluctantly, the Court answers yes to
both questions.
28
A.
The Court first considers whether FWS's designation of Unit 1
satisfies
the
ESA's
substantive
requirements.
The
federal
defendants submit that FWS considered the best available science,
including the input of six experts, and the importance of ephemeral
ponds to the recovery of the frog, and thus reasonably determined
that Unit 1 is essential for the conservation for the species.
1.
Did FWS reasonably determine that Unit 1 is "essential
for the conservation of" the dusky gopher frog?
The ESA expressly provides that unoccupied areas may be
designated as "critical habitat" if FWS determines that those areas
are "essential to the conservation of the species."
1532(5)(A)(ii).
delegated
to
determination.
16 U.S.C. §
Congress did not define "essential" but, rather,
the
Secretary
the
authority
to
make
that
Plaintiffs take issue with FWS's failure to define
"essential", but they do not dispute that FWS explained its
considerations for assessing what areas are essential.
The Court
finds that FWS's determination seems reasonable and, therefore,
entitled to Chevron deference. See
Chevron, U.S.A., Inc. v. NRDC,
467 U.S. 837, 843 n. 9 (1984)("[T]he judiciary is the final
authority on issues of statutory construction and must reject
administrative
constructions
congressional intent.").
which
are
contrary
to
clear
The Court turns to consider the process
that preceded FWS's finding that Unit 1 is essential.
FWS determined that Unit 1 is essential for the conservation
29
of the dusky gopher frog.
It came to this conclusion after its
initial June 2010 proposed rule was criticized by all of the peer
reviewers as being inadequate to ensure conservation of the frog.
Given the alleged high risk of extinction due to localized threats,
like droughts, disease, and pollution, FWS agreed that the proposed
habitat was inadequate and began considering sites throughout the
frog's historical range.
FWS considered this specific criteria:
(1) The historical distribution of the species; (2)
presence of open-canopied, isolated wetlands; (3)
presence of open-canopied, upland pine forest in
sufficient quantity around each wetland location to allow
for sufficient survival and recruitment to maintain a
breeding population over the long term; (4) opencanopied, forested connectivity habitat between wetland
and upland breeding sites; and (5) multiple isolated
wetlands in upland habitat that would allow for the
development of metapopulations.
Using scientific information on sites throughout the frog's range,
FWS could not identify any locations outside Mississippi that
contained
all
of
these
elements
or
even
all
three
PCEs.
Determining that it is easier to restore terrestrial habitat than
it
is
to
restore
or
create
breeding
ponds,
FWS
focused
on
identifying more ponds in potential sites throughout the species'
range.
FWS determined that the recovery of the frog "will not be
possible
without
the
establishment
populations of the species.
of
additional
breeding
Isolated, ephemeral ponds that can be
used as the focal point for establishing these populations are
rare, and this is a limiting factor in" the frog's recovery.
Fed. Reg. at 35124.
30
77
After a peer reviewer suggested Unit 1 as a potential site,
that peer reviewer and a FWS biologist "assessed the habitat
quality of ephemeral wetlands in [Unit 1] and found that a series
of five ponds contained the habitat requirements for PCE 1."
Fed. Reg. at 35123; AR2320.
77
The five ponds' close proximity to
each other meant that a metapopulation structure existed, which
increases
long-term
survival
and
recovery
of
the
frog;
FWS
determined that these ponds in Unit 1 "provide breeding habitat
that in its totality is not known to be present elsewhere within
the historic range."
77 Fed. Reg. at 35124.
Based on this
scientific information, FWS determined that Unit 1 is essential for
the conservation of the frog
because it provides: (1) Breeding habitat for the [frog]
in a landscape where the rarity of that habitat is a
primary threat to the species; (2) a framework of
breeding ponds that supports metapopulation structure
important to the long-term survival of the [frog]; and
(3) geographic distance from extant [frog] populations,
which likely provides protection from environmental
stochasticity.
Id.
Notably,
the
plaintiffs
do
not
meaningfully
dispute
the
scientific and factual bases of FWS's "essential" determination.
Instead, the plaintiffs insist that Unit 1 can not be "essential"
for the conservation of the frog because the frog does not even
live there.
Indeed it hasn't been sighted there since the 1960s.
But the plaintiffs ignore the clear mandate of the ESA, which tasks
FWS with designating unoccupied areas as critical habitat. 16
31
U.S.C. § 1532(5)(A)(ii). FWS's finding that the unique ponds
located
on
Unit
1
are
essential
for
the
frog's
recovery
is
supported by the ESA and by the record; it therefore must be upheld
in law as a permissible interpretation of the ESA, a statutory
scheme focused not only on conservation but also on recovery of an
endangered species.
2.
Must unoccupied areas contain PCEs to be designated
critical habitat?
Plaintiffs similarly argue that FWS acted unreasonably in
designating Unit 1 as critical habitat because Unit 1 does not
contain all of the PCEs25 as required by the ESA.
Their position
is, again, contrary to the ESA; plaintiffs equate what Congress
plainly differentiates: the ESA defines two distinct types of
critical habitat, occupied and unoccupied; only occupied habitat
must
contain
1532(5)(A).26
all
of
the
relevant
PCEs.
See
16
U.S.C.
§
Wise or unwise, that is for Congress to decide.
25
PCEs are those "physical and biological features that, when
laid out in the appropriate quantity and spatial arrangement to
provide for a species' life-history processes, are essential to the
conservation of the species." 77 Fed. Reg. at 35131.
26
(5)(A) The term "critical habitat" for a threatened or
endangered species means–
(i) the specific areas within the geographical area
occupied by the species, at the time it is listed in
accordance with the provisions of section 1533 of this
title, on which are found those physical or biological
features (I) essential to the conservation of the species
and
(II)
which
may
require
special
management
considerations or protection; and
(ii) specific areas outside the geographical area
occupied by the species at the time it is listed in
32
Unit 1 is unoccupied.
Unlike occupied habitat, on which FWS
must find all of the physical or biological features called PCEs
(50 C.F.R. § 424.12(b)),27 Congress does not define unoccupied
habitat
by
reference
to
PCEs;
rather,
FWS
is
tasked
with
designating as critical unoccupied habitat so long as it determines
it is "essential for the conservation of the species" and "only
when a designation limited to its present range would be inadequate
to ensure the conservation of the species." 50 C.F.R. § 424.12(e).
As previously explained, FWS determined that the recovery of the
frog "will not be possible without the establishment of additional
breeding populations of the species" and it found that the ponds in
Unit 1 "provide breeding habitat that in its totality is not known
to
be
present
plaintiffs
have
elsewhere
not
within
the
demonstrated
historic
that
FWS's
range."28
findings
The
are
accordance with the provisions of section 1533 of this
title, upon a determination by the Secretary that such
areas are essential for the conservation of the species.
16 U.S.C. § 1532(5)(A).
27
The cases invoked by plaintiffs in support of their argument
are distinguishable in that they relate to designations of occupied
habitat.
28
Federal defendants explain "[i]f the biggest threat to a
critically endangered species is the destruction of habitat, as is
the case with the frog, it does not make sense to hamstring FWS'
efforts to conserve the species by limiting the designation of
habitat to only those areas that contain optimal conditions for the
species. If such habitat was readily available, the frog would not
be reduced to 100 individuals."
Again, if this administrative
structure is to be changed, it is for Congress to do so.
33
implausible.
3.
Did FWS act unreasonably in failing to identify the point
at which ESA protections will no longer be required for
the dusky gopher frog?
Before determining what is "essential" to the conservation of
the dusky gopher frog, the plaintiffs contend that FWS first must
identify the point at which the protections of the ESA will no
longer be required.
The defendants respond that the plaintiffs
improperly seek to import the recovery planning criteria into the
critical habitat designation process.
The Court agrees.
The plaintiffs' argument runs counter to the plain language
and structure of the ESA, which provides that the requirement for
designating critical habitat (16 U.S.C. § 1533(a)(3)) is separate
from the requirement for preparing a recovery plan (16 U.S.C. §
1533(f)).
The ESA recognizes that FWS must designate critical
habitat, habitat that is "essential for the conservation of the
species", even if it does not know precisely how or when recovery
of a viable population will be achieved.
See Home Builders Ass'n
of Northern California v. U.S. Fish and Wildlife Service, 616 F.3d
983, 989 (9th Cir. 2010)(rejecting argument that FWS must first
identify the point at which the endangered species is considered
conserved before it designates critical habitat "because it lacks
legal support and is undermined by the ESA's text."); Arizona
Cattle Growers' Ass'n v. Kempthorne, 534 F. Supp. 2d 1013, 1025 (D.
Ariz.
2008)("While
tempting
in
34
its
logical
simplicity...the
language
of
the
ESA
requires
a
point
of
conservation
to
be
determined in the recovery plan, not at the time of critical
habitat designation."), aff'd, Arizona Cattle Growers' Ass'n v.
Salazar, 606 F.3d 1160 (2010), cert. denied, 131 S. Ct. 1371
(2011).
"essential
Moreover, in directing FWS to assess what would be
for
the
conservation"
of
a
species,
it
did
not
explicitly require that FWS identify specific recovery criteria at
that time.
Notably, Congress imposed specific deadlines for the
designation of critical habitat, but included no such deadlines for
the preparation of a recovery plan.
FWS's failure (as yet) to
identify how or when a viable population of dusky gopher frogs will
be achieved, as indifferent and overreaching by the government as
it appears, does not serve to invalidate its finding that Unit 1
was
part
of
the
minimum
required
habitat
for
the
frog's
conservation.29
29
Plaintiffs advance additional arguments that are clearly
rebutted by defendants and, most critically, by the ESA's mandate.
For example, plaintiffs contend that, to uphold the Rule as valid,
it can only apply to the general geographic area in which the frog
was found at the time the listing decision for it was made in 2001.
This is the same sort of argument already considered and foreclosed
by the ESA's clear text.
Plaintiffs seek to conflate listing
duties with critical habitat designation duties and, again, ignore
the plain statutory distinction between occupied and unoccupied
habitat. The plaintiffs also argue that the designation is
arbitrary because the agency should have exercised its discretion
to exclude Unit 1. But this failure to exclude argument -- to the
extent it is reviewable (see The Cape Hatteras Access Preservation
Alliance v. U.S. Dep't of Interior, 731 F. Supp. 2d 15, 29 (D.D.C.
2010)(Service's decision not to exclude areas from critical habitat
designation is not reviewable pursuant to the ESA)) seems better
directed to plaintiffs' challenge to FWS's consideration of the
35
4.
Did FWS designate critical habitat for a species that is
not listed as endangered?
The Poitevent Landowners argue that the "Mississippi" gopher
frog, not the dusky gopher frog, is the frog on the endangered
species list.
For this reason, they insist that the Rule is
economic impacts of designation.
Finally, to the extent the plaintiffs suggest that the Rule is
overbroad, they fail to support their argument. The defendants
submit that all of Unit 1 meets statutory and regulatory criteria
for critical habitat; they base their decision on survey
methodologies, historical data, and the need for corridors between
breeding sites to maintain connectivity and gene flow. To put a
finer point on it, the methodology used for delineating the
critical habitat unit boundaries starts by using "digital aerial
photography using ArcMap 9.3.1 to map...[t]hose locations of
breeding sites outside the geographic area occupied by the species
at the time it was listed...that were determined to be essential
for the conservation of the species...." 77 Fed. Reg. 35134. FWS
looked to breeding sites deemed essential for conservation, the
ephemeral ponds. From these points, FWS created a buffer by using
"a radius of 621 m (2,037 ft)." Id. FWS "chose the value of 621
m...by using the median farthest distance movement (571 m (1,873
ft)) from data collected during multiple studies of the gopher
frog...and adding 50 m (164 ft) to this distance to minimize the
edge effects of the surrounding land use...." Id. FWS then "used
aerial imagery and ArcMap to connect critical habitat areas within
1,000 m (3,281 ft) of each other to create routes for gene flow
between breeding sites and metapopulation structure." Id. With
respect to Unit 1, FWS explained that "the last observation of a
dusky gopher frog in Louisiana was in 1965 in one of the ponds
within [Unit 1]," and that at least two of the ponds in this
immediate area were former breeding sites, and that the five ponds
close to each other could create a metapopulation. Id. at 3512325. It was from these ephemeral ponds that FWS applied its
methodology (621 m buffer and routes for gene flow) to create Unit
1's boundaries that resulted in the designation of 1,544 acres in
Unit 1. Scientific findings that are not credibly called into
question by plaintiffs' hopeful argument.
See Medina County
Environmental Action Ass'n v. Surface Transp. Bd., 602 F.3d 687,
699 (5th Cir. 2010("Where an agency's particular technical expertise
is involved, we are at our most deferential in reviewing the
agency's findings."). The Court defers, as it must under the law,
to FWS's methodology for delineating Unit 1's boundaries.
36
invalid.
The defendants counter that plaintiffs willfully ignore
FWS's taxonomic explanation in the Rule; its mere change of the
common and scientific name of the frog does not alter the fact that
the listed entity remains the same.
A review of the listing
leading up to the designation supports FWS's position.
Recall that in 2001 FWS listed a distinct population segment
of the gopher frog subspecies and provided a scientific definition
of the listed frog.
During that listing process, FWS explained
that the population segment was so distinct that some biologists
believed it should be recognized as its own species, rather than
just a distinct population segment.
Because there was still some
dispute, FWS concluded that "[t]he scientific name, Rana capito
sevosa, will be used to represent this distribution of frogs [but]
if
the
name
Rana
sevosa
is
ultimately
accepted
by
the
herpetological scientific community, we will revise our List...to
reflect this change in nomenclature (scientific name)."
66 Fed.
Reg. 62993. Indeed, the scientific community recently did conclude
that the species it listed as a distinct population segment of the
Mississippi gopher frog in 2001 "is different from other gopher
frogs
and
warrants
acceptance
as
its
own
species...and
scientific name for the species was changed to Rana sevosa."
the
77
Fed. Reg. 35118. FWS also changed the common name of this distinct
population segment of the gopher frog from Mississippi gopher frog
to Dusky gopher frog.
37
Contrary to the plaintiffs' argument, FWS did not simply
arbitrarily "change its mind" about the name of the frog; rather,
it
adapted
changes
accepted
in
the
scientific
community.
Plaintiffs elevate form over substance; they fail to persuade that
the listed entity, this distinct population of gopher frogs, has
changed, or that FWS's taxonomic finding is unsupported.30 And, the
Court finds that FWS, acting in its expertise, considered the best
scientific evidence in effecting a change in the taxonomic and
common name of the frog.31
5.
Does FWS's alleged "trespass" on Unit 1 invalidate the
Rule?
The Poitevent Landowners charge that FWS and a scientist
trespassed on its lands in March 2011; they took photos and, as a
result of the ponds discovered there, included Unit 1 in the Rule.
Although the Poitevent Landowners concede that Wyerhaeuser, a coowner and lessee, granted permission to the FWS agent and scientist
to enter the land, plaintiffs insist that such permission was
invalid.
Plaintiffs insist that invalidation of the Rule is the
30
And the record belies the plaintiffs' charge that they were
denied the opportunity to publicly comment on the name change. In
fact, the plaintiffs submitted comments on the revised proposed
rule, in which FWS asked for comments on the proposed name change.
76 Fed. Reg. 59774, 59775.
31
Cf. Alabama-Tombigee Rivers Coalition v. Kempthorne, 477 F.3d
1250, 1260 (11th Cir. 2007)("The Service's finding that the Alabama
sturgeon is a separate species is consistent with the [scientists']
position...on the question and is supported by...peer review[,] and
by the opinion of the Service's own experts.").
38
proper
way
to
indemnify
them
for
their
trespass
damages.
Alternatively, the Poitevent Landowners suggest that the Court
apply the "civil equivalent" of the fruit-of-the-poisonous-tree
doctrine and exclude the evidence as illegally obtained.
This argument was raised for the first time in their reply
papers, and the Poitevent plaintiffs fail to plead a trespass
claim.
They likewise fail to suggest how any such claim would be
timely, or why -- (assuming for the sake of argument) their
fictitious civil fruit-of-the-poisonous-tree doctrine applies -FWS's
reliance
borrowing
from
on
Weyerhaeuser's
exclusionary
rule
good
faith
principles
consent
in
the
(again
criminal
context) would not validate the "trespass." The Court declines to
address the merits of this argument, which is not properly before
it,
has
not
been
properly
or
timely
raised,
and
seems
an
afterthought.
B.
The Court now turns to address what, in its view, is the most
compelling issue advanced by plaintiffs in challenging the validity
of the Rule:
its
FWS's economic analysis and, perhaps most troubling,
conclusion
that
the
economic
impacts
on
Unit
1
are
not
disproportionate.
Plaintiffs contend that designating Unit 1 as critical habitat
is irrational.
Unit 1, they submit, provides no benefit to the
dusky gopher frog and the designation's estimated potential price
39
tag for the landowners' damage is somewhere between $20.4 million
and
$33.9
million.
Defendants
answer
that
FWS
fulfilled
its
statutory obligation and applied the proper approach to consider
all potential economic impacts to Unit 1.
restrained
by
a
confining
standard
of
Once again the Court is
review.
The
Court,
therefore, is not persuaded that FWS engaged a flawed economic
analysis or otherwise failed to consider all potential economic
impacts the designation would have on Unit 1.
The decision to list a species as endangered is made without
reference to the economic effects of the listing decision.
with critical habitat designations.
Not so
The ESA directs that the
"Secretary shall designate critical habitat ... on the basis of the
best scientific data available and after taking into consideration
the economic impact ... of specifying any particular area as
critical habitat."
16 U.S.C. § 1533(b)(2).
Informed by these
considerations, FWS exercises its wide discretion in determining
whether to exclude particular areas. See 16 U.S.C. § 1533(b)(2)(the
Service "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");
see also The Cape Hatteras Access Preservation Alliance v. U.S.
Dept. of Interior, 731 F. Supp. 2d 15, 29-30 (D.D.C. 2010)(citing
Arizona Cattle Growers' Ass'n v. Kempthorne, 534 F. Supp. 2d 1013,
1032 (D.Ariz. 2008)).
But the Service is precluded from excluding
40
areas
from
a
designation
if
it
determines
that
"failure
to
designate such area as critical habitat will result in extinction
of the species."
The
16 U.S.C. § 1533(b)(2).
plaintiffs
contend
that
FWS
failed
to
consider
economic impacts of the critical habitat designation.
all
But, in
fact, the record establishes that FWS considered several potential
economic impacts. The record shows that FWS endeavored to consider
any economic impacts that could be attributable to the designation,
and that plaintiffs were given (and indeed availed themselves of)
the opportunity to participate in the process for evaluating
economic impacts. The Court finds that FWS fulfilled its statutory
obligation.
the
present
The outcome seems harsh, but it is not unlawful under
administrative
process
and
this
Court's
confined
standard of review.
Nevertheless, the plaintiffs object to FWS's methods and
findings on the issue of the designations's economic impact.
Plaintiffs challenge FWS's utilization of the baseline method for
considering potential economic impacts, and argue that, no matter
what method is used, FWS arbitrarily concluded that "[o]ur economic
analysis did not identify any disproportionate costs that are
likely to result from the designation."
Although the plaintiffs'
dispute as to the appropriate method for considering economic
impacts is unfounded, their challenge to FWS's ultimate conclusion
invites rigorous scrutiny.
41
As an initial matter, FWS permissibly used the baseline
approach in conducting the economic analysis (EA).
Under this
approach, the impacts of protecting the dusky gopher frog that will
occur regardless of the critical habitat designation (i.e., the
burdens imposed by simply listing the frog) are treated as part of
the regulatory baseline and are not factored into the economic
analysis of the effects of the critical habitat designation; the
approach calls for a comparison of "the world with the designation
... to the world without it."
See The Cape Hatteras Access
Preservation Alliance v. U.S. Dept. of Interior, 344 F. Supp. 2d
108, 127 (D.D.C. 2004); see also Cape Hatteras II, 731 F. Supp. 2d
15, 30 (D.D.C. 2010).32
Consideration of economic impacts is all that is required.
FWS
fulfilled
this
economic impacts.
occur
in
the
20
statutory
mandate
by
identifying
baseline
And the final EA quantified impacts that may
years
following
designation,
analyzing
such
economic impacts of designating Unit 1 based on the following three
hypothetical scenarios: (1) development occurring in Unit 1 would
avoid impacts to jurisdictional wetlands and, thus, would not
trigger ESA Section 7 consultation requirements; (2) development
32
To the extent the plaintiffs object to the baseline approach
and instead advocate for the co-extensive approach to assessing
economic impacts, the plaintiffs fail to explain how such an
approach changes the economic analysis. The defendants contend,
and the Court agrees, that the baseline and co-extensive methods of
analyzing potential economic impacts yield the same results.
42
occurring in Unit 1 would require a permit from the Army Corps of
Engineers due to potential impacts to jurisdictional wetlands,
which would trigger ESA Section 7 consultation between the Corps
and FWS; and FWS would work with landowners to keep 40% of the unit
for
development
and
60%
managed
for
the
frog's
conservation
("present value incremental impacts of critical habitat designation
due to the lost option for developing 60 percent of Unit 1 lands
are $20.4 million"); and (3) development occurring would require a
federal permit, triggering ESA Section 7 consultation, and FWS
determines that no development can occur in the unit ("present
value impacts of the lost option for development in 100 percent of
the unit are $33.9 million").33
Because the EA "did not identify
any disproportionate costs that are likely to result from the
designation[,] the Secretary [did] not exercis[e] his discretion to
exclude any areas from this designation of critical habitat for the
dusky gopher frog based on economic impacts."
77 Fed. Reg. 35141.
The plaintiffs do not take issue with these projected costs
but, rather, insist that FWS's conclusion -- its decision not to
exclude Unit 1 from the designation in light of what the potential
economic impacts in the event Section 7 consultation is triggered
-- is arbitrary.
This is so, plaintiffs contend, because their
land is the only land designated that faces millions of dollars in
33
In preparing the final version of the EA, FWS considered Unit
1's landowners' comments, as well as the landowners' submissions
regarding the value of Unit 1 land.
43
lost
development
triggered.
opportunity
if
the
consultation
process
is
How can FWS say that the economic impacts are not
disproportionate?
FWS defends its determination in the Rule: "considerable
uncertainty exists regarding the likelihood of a Federal nexus for
development activities [in Unit 1]."
The record confirms that FWS
considered potential economic impacts and exercised its discretion,
considered potential costs associated with Section 7 consultation,
and determined that these economic impacts to Unit 1 were not
disproportionate.34 All that the ESA requires. The Court, with its
somewhat paralyzing standard of review, defers to the agency's
expertise in its methods for cost projections and its refusal to
except Unit 1 from the designation.35
Only Congress can change the
regime of which plaintiffs understandably complain.
C.
Finally, the Court considers whether the Secretary acted
arbitrarily
in
failing
to
prepare
an
environmental
impact
34
The alleged arbitrariness of the "not disproportionate"
determination is undermined by the uncertain potential for
development. The ESA only requires that the Service consider all
potential costs, which it has done.
Although this "not
disproportionate" conclusion is discomforting it, again, is harsh
but not invalid as the law exists.
35
As always, the Court is mindful of its scope of its
constrained review. "If the agency's reasons and policy choices
conform to minimal standards of rationality, then its actions are
reasonable and must be upheld." Luminant Generation Co. LLC v.
U.S. E.P.A., 714 F.3d 841, 850 (5th Cir. 2013)(quoting Tex. Oil &
Gas Ass'n v. U.S. E.P.A., 161 F.3d 923, 933 (5th Cir. 1998)).
44
statement.
The plaintiffs submit that the defendants’ failure to complete
an Environmental Impact Statement concerning the critical habitat
designation of Unit 1 violates the National Environmental Policy
Act of 1969, 42 U.S.C. §§ 4321, et seq., a statute that serves the
dual purposes of informing agency decisions as to the significant
environmental
effects
of
proposed
major
federal
actions
and
ensuring that relevant information is made available to the public.
See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349
(1989). The defendants counter that, pursuant to long-standing FWS
policy, an EIS is simply not required when designating critical
habitat.36
They are correct.
In passing NEPA, Congress declared that it is the continuing
policy of the federal government to “create and maintain conditions
under which man and nature can exist in productive harmony, and
fulfill the social, economic, and other requirements of present and
36
The defendants also argue that the plaintiffs lack prudential
standing to bring a NEPA claim because their claims of economic
harm fall outside the zone of environmental interests protected by
NEPA. Indeed, the Court agrees that prudential standing for NEPA
claims is doubtful, given the economic nature of the harm asserted
by the plaintiffs and the environmental interests protected by
NEPA. See Nevada Land Action Ass'n v. U.S. Forest Serv., 8 F.3d
713, 716 (9th Cir. 1993) (“The purpose of NEPA is to protect the
environment, not the economic interests of those adversely affected
by agency decisions. Therefore a plaintiff who asserts purely
economic injuries does not have standing to challenge an agency
action under NEPA”) (citations omitted). Nevertheless, the Court
considers whether an EIS is required.
45
future generations of Americans.” 42 U.S.C. § 4331. Specifically
listed as having a “profound influence” on this natural environment
that Congress sought to protect are population growth, high-density
urbanization, industrial expansion, resource exploitation, and new
and expanding technological advances. Id. To accomplish these
objectives, NEPA requires that an agency prepare a comprehensive
environmental impact statement (EIS) for "major Federal actions
significantly affecting the quality of the human environment."
U.S.C.
§
4332(2)(c).
"Notably,
the
NEPA
statutory
42
framework
provides no substantive guarantees; it prescribes adherence to a
particular process, not the production of a particular result."
Spiller v. White, 352 F.3d 235, 238 (5th Cir. 2003)(NEPA "does not
prohibit the undertaking of federal projects patently destructive
of the environment" but, rather, requires "only that [an agency]
make its decision to proceed with the action after taking a 'hard
look at environmental consequences.'").
Congress does not expressly mandate preparation of an EIS for
critical habitat designations.
Nevertheless, through tortured
reasoning, the plaintiffs assert that an EIS was required because
NEPA demands an EIS for “major Federal actions significantly
affecting the quality of the human environment” and the critical
habitat
designation
here
involves
a
change
to
the
physical
environment. 42 U.S.C. § 4332(C). Tossing aside the conservation
objectives achieved by critical habitat designations, plaintiffs go
46
on to detail the modifications to Unit 1 that would make it optimal
habit for the frog, namely regular burning of the land and planting
different trees.
However, the ESA statutory scheme makes clear
that FWS has no authority to force private landowners to maintain
or improve the habitat existing on their land.37 77 Fed. Reg. 35118,
35121, 35128. FWS cannot and will not instruct the plaintiffs to
burn
their
land,
thus,
the
descriptors of ideal habitat.
PCEs
serve
as
nothing
more
than
Plaintiffs invoke Catron County Bd.
Of Com’rs, New Mexico v. U.S. Fish and Wildlife Serv., 75 F.3d
1429, 1436-39 (10th Cir. 1996). There, the Tenth Circuit determined
that designation of critical habitat would harm the environment by
limiting the county’s ability to engage in flood control efforts.
Id.
Unlike the critical habitat designation in that case -- where
the environmental impact of the critical habitat designation "will
be
immediate
designating
and
Unit
disastrous"
1
does
not
--
the
effect
critical
changes
to
habitat
the
Rule
physical
environment.
Moreover, the Ninth Circuit has expressly held that NEPA does
not apply to critical habitat designations. Douglas County v.
Babbitt, 48 F.3d 1495, 1501-08 (9th Cir. 1995)(considering issue of
37
The only “bite” to the statute is the consultation
requirement, which simply requires that, when a private party’s
action has a federal nexus, the federal agency authorizing such
action must first consult with the Secretary. 16 U.S.C. §
1536(a)(2). Activities such as timber management lack a federal
nexus and are therefore exempt.
47
first impression, and determining that NEPA does not apply to the
Secretary's decision to designate critical habitat under the ESA).
In so holding, the Ninth Circuit articulated three reasons why
critical habitat designations are not subject to NEPA: (1) the ESA
displaced the procedural requirements of NEPA with respect to
critical habitat designation; (2) NEPA does not apply to actions
that do not alter the physical environment; and (3) critical
habitat designation serves the purposes of NEPA by protecting the
environment from harm due to human impacts.
Id.
Three logical
reasons. The Fifth Circuit agrees that NEPA itself provides, in no
uncertain terms, that alteration of the physical environment is a
prerequisite for NEPA application and the need to prepare an EIS.38
See Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669,
679
(5th
Cir.
1992)("[T]he
acquisition
of
the
[negative
conservation] easement by [FWS] did not effectuate any change to
the environment which would otherwise trigger the need to prepare
an EIS."); see also City of Dallas v. Hall, 562 F.3d 712, 721-23
(5th Cir. 2009)(setting an acquisition boundary for a wildlife
refuge did not alter the physical environment and therefore did not
require the preparation of an EIS).
38
For all of these reasons, the
The Fifth Circuit has not directly addressed whether NEPA
applies to critical habitat designations.
Based on competing
authority within the Fifth Circuit, one district court has applied
the arbitrary and capricious standard to decisions not to prepare
EISs.
See Center for Biological Diversity v. U.S. Fish and
Wildlife Service, 202 F. Supp. 2d 594, 646-48 (W.D.Tex. 2002)
(citations omitted).
48
Court finds that the Secretary was not required to prepare an EIS
before designating Unit 1 as critical habitat.39
***
Accordingly, IT IS ORDERED: that the defendants' motions to
strike extra-record evidence are GRANTED; the defendants' motions
for summary judgment are DENIED in part (insofar as they challenge
the plaintiffs' standing) and GRANTED in part (insofar as the Rule
including Unit 1 in its critical habitat designation is not
arbitrary); and the plaintiffs' cross-motions are GRANTED in part
(plaintiffs
have
standing)
and
DENIED
in
part
(the
Rule
is
sustained).40
New Orleans, Louisiana, August 22, 2014
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
39
As defendants acknowledge, there is nothing to preclude
preparation of an EIS if or when changes to the physical
environment become required, if consultation is triggered.
40
The Court is compelled to remark on the extraordinary scope
of the ESA, the Court's limited scope of review on the matters
presented, and the reality that what plaintiffs truly ask of the
Court is to embrace or countenance a broad substantive policy: they
effectively ask the Court to endorse -- contrary to the express
terms and scope of the statute -- a private landowner exemption
from unoccupied critical habitat designations. This, the Third
Branch, is the wrong audience for addressing this matter of policy.
49
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