Friends of the Wild Swan Inc et al v. Director of the U.S. Fish and Wildlife Service et al

Filing 31

OPINION and ORDER - Upon review, I agree with Judge Acosta's recommendation and ADOPT the Findings & Recommendation 22 as my own opinion. Plaintiffs' first eight claims are DISMISSED with leave to renew. Plaintiffs' ninth claim is DISMISSED with prejudice. IT IS SO ORDERED. DATED this 1st day of June, 2017, by Chief United States District Judge Michael W. Mosman. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

FRIENDS OF THE WILD SWAN, INC.
and ALLIANCE FOR THE WILD
ROCKIES, INC.,
No. 3:16-cv-00681-AC
Plaintiffs,
OPINION AND ORDER
v.
ROBYN THORSON et al.
Defendants.
MOSMAN, J.,
On September 9, 2015, the United States Fish and Wildlife Service (“the Service”) and
the United States Department of Interior (“the Department”) released their Recovery Plan for the
Coterminous United States Population of Bull Trout (“the Plan”). Approximately seven months
later, Plaintiffs Friends of the Wild Swan and the Alliance for the Wild Rockies filed their
Complaint [1], asserting that the Plan violates Section 4(f) of the Endangered Species Act
(“ESA”) 1 and the Administrative Procedures Act (“APA”). Defendants the Service, the
Department, and their individual representatives moved to dismiss [18] the Complaint on July
15, 2016.

1

Section 4(f) of the ESA is located at 16 U.S.C. § 1533(f).

1 – OPINION AND ORDER

Magistrate Judge John V. Acosta considered Defendants’ motion and issued his Findings
and Recommendation (“F&R”) [22] on January 5, 2017. In his F&R, Judge Acosta recommends
that Defendants’ Motion to Dismiss should be GRANTED. Plaintiffs objected to the F&R [27],
and Defendants responded [30] to those objections. Ultimately, I agree with Judge Acosta’s
recommendation and ADOPT the F&R [18] as my own opinion. However, I provide the
following supplemental analysis in response to Plaintiffs’ objections.
LEGAL STANDARD
The magistrate judge makes only recommendations to the court, to which any party may
file written objections. The court is not bound by the recommendations of the magistrate judge,
but retains responsibility for making the final determination. The court is generally required to
make a de novo determination regarding those portions of the report or specified findings or
recommendations as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the
court is not required to review, de novo or under any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny with which I am required to review
the F&R depends on whether or not objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(1)(C).
DISCUSSION
Plaintiffs seek a declaration that, in releasing the Plan, Defendants violated Section 4(f)
of the ESA and the APA. Plaintiffs also seek an injunction ordering Defendants to promptly
develop a legally sufficient recovery plan. In his F&R, Judge Acosta found that Plaintiffs’ claims
only challenge discretionary aspects of the Plan and, therefore, are not actionable under the
citizen-suit provision of the ESA (15 U.S.C. § 1540(g)). Judge Acosta also found that Plaintiffs’
2 – OPINION AND ORDER

APA claim fails because the Plan does not constitute a “final agency action” in accordance with
5 U.S.C. § 704. Plaintiffs object to both of these findings.
I.

Failure to Raise a Claim Under the ESA
In their Complaint, Plaintiffs challenge the content of the Plan, asserting that it fails to

comply with the requirements under 16 U.S.C. § 1533(f)(1)(B). 2 But Judge Acosta found that
even though the Secretary has a non-discretionary duty to incorporate the items from
§ 1533(f)(1)(B) into recovery plans “to the maximum extent possible,” how the Secretary does
so is discretionary. He also found that even though Plaintiffs had alleged deficiencies in the Plan,
the deficiencies related to areas within the Defendants’ discretion rather than a non-discretionary
duty. Based on these findings, Judge Acosta concluded that Plaintiffs’ first eight claims fail to
sufficiently state a claim for relief, and therefore, this Court lacks jurisdiction under the ESA’s
citizen-suit provision.
Plaintiffs object to Judge Acosta’s finding that the way in which § 1533(f)(1)(B)’s
requirements are incorporated into a recovery plan is discretionary and not reviewable.
Specifically, Plaintiffs argue that such an outcome (1) frustrates the purpose and structure of the

2

16 U.S.C. § 1533(f)(1)(B) provides that:
(1) . . . The Secretary, in developing and implementing recovery plans, shall, to the maximum
extent practicable -...
(B) incorporate in each plan -(i) a description of such site-specific management actions as may be necessary to achieve
the plan's goal for the conservation and survival of the species;
(ii) objective, measurable criteria which, when met, would result in a determination, in
accordance with the provisions of this section, that the species be removed from the list;
and
(iii) estimates of the time required and the cost to carry out those measures needed to
achieve the plan's goal and to achieve intermediate steps toward that goal.

3 – OPINION AND ORDER

ESA and (2) eviscerates the ESA’s public participation requirements. Furthermore, Plaintiffs
argue that the cases upon which Judge Acosta relied in reaching his conclusion are
distinguishable from the one at hand and do not provide a conclusive answer on the amount of
discretion Defendants have in regards to the content of recovery plans.
In regards to Plaintiffs’ first argument, I disagree that Judge Acosta’s conclusion
frustrates the purpose and structure of the ESA. The ESA was enacted to assist in conserving
endangered and threatened species, as well as the ecosystems upon which those species rely. 16
U.S.C. § 1531(b); Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1091 (9th
Cir. 2015). In furtherance of this purpose, Section 4 of the ESA places several obligations upon
the Secretary, 3 including designating critical habitats and developing recovery plans. See 16
U.S.C. § 1533(b), (g). Congress also authorized civil suits against the Secretary for failure to
perform any acts under Section 4 but only when such acts are not discretionary. Id.
§ 1540(g)(1)(C). Thus, it is clear from the statutory language that Congress intended some acts
of the Secretary to remain outside the purview of judicial review. Cf. Kennecott Copper Corp. v.
Costle, 572 F.2d 1349, 1355 (9th Cir. 1978) (considering a similar citizen-suit provision under
the Clean Water Act).
Here, Plaintiffs’ assertion that Judge Acosta’s conclusion would render § 1533(f)(1)(B)
“nearly a dead letter” is an overstatement. A citizen may still bring suit under § 1540(g) when the
Secretary fails to incorporate, to the maximum extent possible, one of the requirements from §
1533(f)(1)(B) in a given recovery plan. That this understanding of § 1533(f)(1)(B) limits the
public’s ability to challenge the content of recovery plans is undeniable. But it is clear from the
statutory text that Congress intended there to be such limitation, at least to some extent. And

3

In the ESA, the term “Secretary” means the Secretary of the Interior or the Secretary of Commerce. 16 U.S.C.
§ 1532(15).

4 – OPINION AND ORDER

Plaintiffs provide little legal authority to demonstrate that Judge Acosta erred in determining
where Congress drew the line. Thus, even if Plaintiffs are correct as a policy matter that citizens
should be allowed to challenge the way in which the Secretary incorporates the requirements
from § 1533(f)(1)(B) into a recovery plan, this is a matter better suited for Congress than the
courts.
I also disagree that the outcome under Judge Acosta’s F&R would eviscerate the ESA’s
public participation requirements. Under the ESA, the Secretary has a duty to (1) “provide public
notice and opportunity for public review and comment” on the recovery plan and (2) “consider
all information presented during the public comment period prior to approval of the plan.” 16
U.S.C. § 1533(f)(4). This duty is nondiscretionary and thus judicially reviewable under the
statute’s citizen-suit provision. See id. §§ 1533(f)(4), 1540(g)(1)(C). Furthermore, the public
participation duty is separate and distinct from the Secretary’s duty to incorporate, to the
maximum extent possible, the items from § 1533(f)(1)(B) into its recovery plans. Thus, despite
Plaintiffs’ contention, concluding that the way in which § 1533(f)(1)(B)’s requirements are
incorporated is not reviewable does not foreclose a citizen’s ability to bring suit for the
Secretary’s violation of its public participation duty. 4
Finally, Plaintiffs also argue that the cases upon which Judge Acosta relied in his F&R
are distinguishable from the one at hand and do not provide a conclusive answer on the amount
of discretion Defendants have in regards to the content of recovery plans. As a preliminary
matter, I recognize that binding authority on this issue is scant. That said, I agree with Judge
Acosta’s analysis of the ESA’s text and his treatment of relevant caselaw from the Ninth Circuit
4

In general, Plaintiffs’ arguments relating to the ESA’s public participation duty are confusing. In fact, from reading
the Plaintiffs’ objections, one would think that Plaintiffs’ Complaint includes allegations that Defendants violated
their nondiscretionary duty to provide public comment and consider information from a public review period.
However, Plaintiffs’ Complaint includes no such allegations. And, to the extent Plaintiffs are trying to allege that
Defendants violated that duty here, they are too late.

5 – OPINION AND ORDER

and other districts. Plaintiffs highlight distinctions in some of these cases, but they do not
provide any principled reasons for why the distinctions matter, let alone any cases that would
produce a different result. Thus, I agree with Judge Acosta’s conclusion that the way in which
the Secretary incorporates § 1533(f)(1)(B)’s requirements into recovery plans is discretionary
and thus not reviewable.
For the reasons above, I reject Plaintiffs’ objections relating to their claims brought under
the ESA. Furthermore, I agree with Judge Acosta that these claims fail to state a claim for
violation of a nondiscretionary duty. The consequence of this particular type of failure to state a
claim is that this Court lacks jurisdiction over the claims under the citizen-suit provision. 5 That
said, Plaintiffs might be able to assert additional facts that would demonstrate a violation of a
nondiscretionary duty and, therefore, provide a basis for the Court’s jurisdiction. As such, I
DISMISS Plaintiffs’ first eight claims but grant Plaintiffs leave to amend their Complaint. See
Desoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (“[W]hen a court
dismisses a complaint for failure to state a claim, leave to amend should be granted unless the
court determines that the allegation of other facts consistent with the challenged pleading could
not possibly cure the deficiency.” (citation omitted) (internal quotation marks omitted)).

5

I recognize there is a confusing interplay here between lack of subject matter jurisdiction and failure to state a
claim. See Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006) (“On the subject-matter jurisdiction/ingredient-ofclaim-for-relief dichotomy, this Court and others have been less than meticulous.”). But, in Coos County Board of
County Commissioners v. Kempthorne, the Ninth Circuit explained:
Because the United States must waive its sovereign immunity before a federal court may
adjudicate a claim brought against a federal agency, and has done so through the above-discussed
ESA and APA provisions, to establish waiver of immunity Coos County must have successfully
stated a claim under those provisions. . . . Thus, if the district court's Rule 12(b)(6) dismissal was
justified, its Rule 12(b)(1) ruling was also correct.
531 F.3d 792, 801 (9th Cir. 2008) (internal quotation marks omitted). As such, it appears that when addressing this
“hybrid” area of Rule 12(b), the standard procedure is to determine whether a plaintiff has properly stated a claim in
order to determine whether the district court has subject-matter jurisdiction.

6 – OPINION AND ORDER

II.

Final Agency Action Under the APA
In their ninth claim for relief, Plaintiffs assert that their previous eight claims are

alternatively actionable under the APA. But Judge Acosta found that the Plan was not a final
agency action, and thus, the Court does not have jurisdiction to hear the claim. Plaintiffs object
to this finding.
Courts only have jurisdiction under the APA to review final agency actions. Or. Natural
Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006). “For an agency action to be
final, the action must (1) ‘mark the consummation of the agency's decisionmaking process’ and
(2) ‘be one by which rights or obligations have been determined, or from which legal
consequences will flow.’” Id. (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997)). In making
this determination, courts “focus on the practical and legal effects of the agency action,”
determining finality “in a pragmatic and flexible manner.” Id. (citation omitted).
In his F&R, Judge Acosta did not focus on the first prong of the Bennett test. Instead, it
appears he relied exclusively on the second prong to conclude that the Plan does not constitute a
final agency action. 6 Specifically, relying on caselaw stating that recovery plans are not binding,
he found that the Plan “does not determinate any rights or obligations and does not require
immediate compliance with its terms.” As such, the Plan is not a final agency action for purposes
of the APA.
Plaintiffs essentially admit that recovery plans are not legally binding. But Plaintiffs
argue that the non-binding nature of these plans is not dispositive of their finality. Rather,
Plaintiffs assert that courts should focus on a plan’s real-world consequences to determine

6

In their objections, Plaintiffs provide some argument on Bennett’s first prong, but both parties devote most of their
attention to the second prong. Because I ultimately agree with Judge Acosta that the Plan does not satisfy Bennett’s
second prong, I do not need to address whether the Plan satisfies the first prong.

7 – OPINION AND ORDER

whether it is a final agency action. Plaintiffs then provide several cases that purportedly show the
influential effect recovery plans have on future actions in regard to a protected species.
I disagree with Plaintiffs’ position. First, despite their assertion, Plaintiffs provide no
authority that I should focus on the Plan’s real-world consequences instead of its non-binding
nature. In Oregon Natural Desert Association, the Ninth Circuit recognized that an “agency
action may be final if it has a direct and immediate effect on the day-to-day business of the
subject party.” 465 F.3d at 987 (citation omitted) (internal quotation marks omitted). This
statement might appear to support Plaintiffs’ assertion that a plan with real-world consequences
is sufficiently final for purposes of the APA. But, in the next breath, the Ninth Circuit stated that
courts should consider “whether the [action] has the status of law or comparable legal force, and
whether immediate compliance with its terms is expected.” Id. (emphasis added) (citation
omitted). Thus, the fact that a recovery plan carries with it “real-world consequences” is not
enough to qualify it as a final agency action. 7
Plaintiffs’ concession that recovery plans are not legally binding fits in with Ninth Circuit
authority. The Ninth Circuit has explicitly stated that recovery plans “are not binding
authorities.” Conservation Cong. v. Finley, 774 F.3d 611, 614 (9th Cir. 2014); see also Cascadia
Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1114 n.8 (9th Cir. 2015) (“It is undisputed
that, generally, FWS recovery plans are not mandatory. The Endangered Species Act does not
mandate compliance with recovery plans for endangered species.”). As such, I agree with Judge
Acosta’s finding that the Plan is not a final agency action, and thus, this court does not have
7

The cases on which Plaintiffs rely provide support for the assertion that recovery plans carry with them real-world
consequences. See, e.g., Alaska v. Lubchenco, 723 F.3d 1043, 1053-54 (9th Cir. 2013) (noting that the agency
considered the prospects of a species’ recovery as set out in the recovery plan when issuing limitations on
commercial fishing); Ctr. for Biological Diversity v. Evans, No. C 04-04496 WHA, 2005 WL 1514102, at *4, 7
(N.D. Cal. June 14, 2005) (relying, in part, on a recovery plan to determine that the agency’s delay in complying
with its statutory duty to designate a critical habitat was unreasonable). But, as noted above, the fact that a recovery
plan may affect an agency’s future conduct does not necessarily mean the plan is a final agency action. The cases do
not support an argument that recovery plans are legally binding or that compliance with them is expected.

8 – OPINION AND ORDER

jurisdiction to hear Plaintiffs claims under the APA. Furthermore, because there are no facts that
Plaintiffs can allege to correct this deficiency, I DISMISS Plaintiffs’ ninth claim with prejudice.
CONCLUSION
Upon review, I agree with Judge Acosta’s recommendation and ADOPT the F&R [22] as
my own opinion. Plaintiffs’ first eight claims are DISMISSED with leave to renew. Plaintiffs’
ninth claim is DISMISSED with prejudice.
IT IS SO ORDERED.
DATED this

1st

day of June, 2017.

/s/ Michael W. Mosman_________
MICHAEL W. MOSMAN
Chief United States District Judge

9 – OPINION AND ORDER