The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
ORDER ADOPTING REPORT AND RECOMMENDATION
On February 11, 2011, United States Magistrate Larry M. Boyle issued his Order and Report and Recommendation in this matter. Dkt. No. 57. Pursuant to 28 U.S.C. § 636(b)(1), the parties had fourteen days in which to file written objections to the Report and Recommendation. On February 28, 2011, Plaintiffs Wildearth Guardians and Wester Watersheds Project filed their Objections to Report and Recommendation. Dkt. No. 58. Defendant Ken Salazar filed his response to Plaintiffs' objection on March 14, 2011. Dkt. No. 59.
Standard of Review for Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." Moreover, this Court "shall make a de novo determination of those portions of the report which objection is made." Id. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. As the Peretz Court instructed, "to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties." Peretz, 501 U.S. at 939, 111 S.Ct. 2661 (internal citation omitted). Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251 ("Absent an objection or request for review by the defendant, the district court was not required to engage in any more formal review of the plea proceeding."); see also Peretz, 501 U.S. at 937-39, 111 S.Ct. 2661 (clarifying that de novo review not required for Article III purposes unless requested by the parties) . .
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). In this case, the Secretary does not object to the Report and Recommendation's legal conclusion the Plaintiffs have standing to bring this action. Accordingly, the Court will address only the objected to portions of the Report and Recommendation.
Plaintiffs challenge the United States Fish and Wildlife Service's ("FWS") denial of their request for FWS to list the Columbian sharp-tailed grouse ("CSTG") as an endangered species pursuant to the Endangered Species Act, 16 U.S.C. §§ 1533 - 1544.
The CSTG is a subspecies of the sharp-tailed grouse, native to the western United States and western Canada. "The historical range of the Columbian Sharp-tailed Grouse extended from the steppe and shrub-dominated habitats in the inter-mountain regains from British Columbia south to California, Nevada, and Utah, and east to western Montana, Wyoming and Colorado." (AR 203, 2).*fn1 The historic range refers to the CSTG's estimated distribution before human activities affected CSTG populations. Report and Recommendation at p.2.
It is undisputed by the parties that human activities have extirpated the CSTG from the majority, over 90 percent, of its historic range as represented in the chart on page 13 of the Report and Recommendation. Stated another way, the CSTG's current range is less than ten percent of its historic range.
It is also undisputed that approximately 95 percent of the current CSTG population exist in one of three unconnected metapopulations located in central British Columbia, southeastern Idaho/northern Utah, and northwestern Colorado/south-central Wyoming. The remaining five percent of CSTG reside in smaller, isolated populations throughout central British Columbia, southeastern Idaho, northwestern Colorado and south-central Wyoming.
One method for requesting listing of a species as an endangered species is for an interested party to file a petition with the applicable federal agency. 16 U.S.C. § 1533(b)(3)(A). When such a petition is filed, the Secretary of the Interior ("Secretary'), in this case Defendant Ken Salazar, has 90 days after receiving the petition to make a finding ("90-day finding") as to whether the petition presents substantial scientific or commercial information indicating the petitioned action may be warranted. Id. If the 90-day finding determines there is substantial information that listing is warranted, the agency proceeds with a more comprehensive study of the species and issues a 12-month finding either supporting or denying the request to list the species as endangered or threatened. 16 U.S.C. § 1533(b)(3)(B). If the 90-day finding does not find substantial information to warrant listing and is negative towards the request to list the species, the process ends. 16 U.S.C. § 1533(b)(3)(C)(ii). The regulations define "substantial information" as "that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted." 50 C.F.R. § 424.14(b)(1).
In this case, it important to understand the history of considering the CSTG as an endangered species in order to address the objections regarding the burdens of persuasion. In 1995, FWS received a petition from Biodiversity Law Foundation ("BLF") to formally list the CSTG. In 1999, FWS determined the BLF's petition provided "substantial information" that listing may be warranted. Based on the findings of the 90-day finding, FWS began the 12-month finding process which included a comprehensive review of the CSTG. FWS relied, at least in part, on the research of biologist Dr. Jonthan Bart, who found the three metapopulations of CSTG did not require protection under the ESA and that listing the CSTG would probably lead to negative reactions by landowners which would impede recovery efforts. Therefore, in 2000, FWS issued its 12-month finding the CSTG did not warrant listing.
In October of 2004, Plaintiffs filed a petition requesting FWS list the CSTG as endangered. As part of the petition, Plaintiffs requested FWS to consider listing the CSTG on an emergency basis. In January of 2005, without completing a 90-day finding on the petition due to other agency priorities, FWS informed Plaintiffs that an emergency listing did not appear warranted given the 2004 petition presented little new information that was not addressed in the 12-month-finding issued in 2000. FWS also noted that Plaintiffs' data indicated that the CSTG discrete populations, including the three metapopulations, had either remained stable or possibly increased since 2000. Plaintiffs filed their notice of intent to sue based on the failure to complete a 90-day finding and later filed a complaint in federal court. The parties reached a stipulated agreement that FWS would conduct a 90-day review. On November 6, 2006, Plaintiff supplemented their 2004 petition. FWS claims the neither the 2004 petition nor the supplemental materials contain substantial information about the biological significance of the unoccupied portion ...