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Western Watersheds Project, Center For Biological Diversity, and v. United States Fish and Wildlife Service

February 2, 2012

WESTERN WATERSHEDS PROJECT, CENTER FOR BIOLOGICAL DIVERSITY, AND WILDEARTH GUARDIANS,
PLAINTIFFS,
v.
UNITED STATES FISH AND WILDLIFE SERVICE DEFENDANT.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION

INTRODUCTION

The Court has before it (1) cross-motions for summary judgment filed by WWP, the Fish and Wildlife Service (FWS) and the intervenors, and (2) a joint motion to dismiss on prudential mootness grounds filed by the FWS and plaintiff Guardians. The Court held oral argument on December 21, 2011, and took the motions under advisement. For the reasons expressed below, the Court will (1) grant the motions for summary judgment filed by the FWS and intervenors, (2) deny the joint motion to dismiss on prudential mootness grounds filed by the FWS and plaintiff Guardians, and (3) deny the motion for summary judgment filed by WWP.

SUMMARY

The sage grouse is being squeezed. Its western range is consumed by wildfires; its eastern range is trampled by oil and gas drilling. The resulting fragmented habitat isolates and weakens populations, causing a dramatic decline in the species.

Alarmed by these trends, the Fish and Wildlife Service (FWS) decided that listing of the sage grouse was warranted under the Endangered Species Act. At the same time, however, the FWS declined to begin drafting rules to protect the birds because the agency has a limited budget and many other species were in worse condition.

This toothless finding -- declaring that the sage grouse deserves protection but doing nothing about it -- is known as a "warranted-but-precluded" finding. Critics claim that the agency has used this category as a dumping ground for politically-charged species, calling it "an ER waiting room strewn with the corpses of those species who were forced to wait too long." Kalyani Robbins, Strength in Numbers: Setting Quantitative Criteria for Listing Species Under the Endangered Species Act, 27 UCLA J. Envtl. L. & Pol'y 1 (2009).

Indeed, the backlog at the agency was challenged by environmental groups. Some of those groups reached a settlement with the FWS, committing the agency to a timetable to reduce the backlog. Specifically with regard to the sage grouse, the FWS agreed to remove the bird from its "warranted-but-precluded" limbo by 2015.

Plaintiff WWP, however, did not enter into that settlement, and continues to litigate here, seeking a faster resolution for the sage grouse. For reasons explained below, the Court rejects arguments that WWP is barred from proceeding with this lawsuit because it is somehow bound by a settlement that it did not sign.

WWP asks the Court to reverse the FWS's warranted-but-precluded decision for the sage grouse, and to order the agency to prepare listing rules for the sage grouse within 90 days. WWP is challenging the "precluded" portion of the "warranted-but-precluded" decision, focusing on a key finding by the Director of the FWS that the threats to the sage grouse were merely "moderate" rather than "high". This finding, which WWP alleges was based on politics rather than science, essentially guaranteed that the listing would be "precluded."

Before making this finding, the FWS Director had received a recommendation from FWS Regional Director Steve Guertin that the listing be "warranted-but-precluded." Guertin's recommendation ignored his agency's own guidelines, contained no scientific analysis, and featured off-hand comments about the various political interests at play in the case. Given that political meddling has already resulted in one reversal in this case, the Court was frankly astonished at Guertin's cavalier recommendation.

It was not until after Guertin made his recommendation that the agency's scientists supplied the necessary scientific analysis to the Director. This sequence of events raises a red flag of warning: Did the agency scientists "bend" the science to justify Guertin's recommendation? To answer this question, the Court engaged in an especially thorough review of the record. It contains evidence that (1) sage grouse populations in some areas are stable, (2) substantial habitat exists in many parts of the range, and (3) 96% of all populations will remain above effective population sizes over the next 30 years. All of this supports the finding of the Director that the threat level is moderate.

However, the record also contains substantial contrary evidence which indicates that the threats to the sage grouse are high and immediate. The science is thus not conclusive on the threat level -- it does not lead inevitably to a threat level finding that fits precisely within the bureaucratic designations of "high" or "moderate." Given this, the Director had to exercise his discretion to make a difficult decision. In reviewing that decision, the Court is prohibited by law from substituting its own judgment for that of the Director, but must instead defer to that decision so long as it is not arbitrary or capricious.

The initial recommendation of Regional Director Guertin was clearly arbitrary and capricious, since it was offered before receiving any scientific input. But the subsequent decision of the Director was based on sound science and cured the significant deficiencies of the recommendation. The Court therefore upholds the Director's decision that the threat level to the sage grouse falls into the moderate category.

The Director also had to certify that the FWS is making expeditious progress on its ESA duties in order to place the sage grouse in the warranted-but-precluded category. Congress originally intended that this category be used sparingly and that it not become a bottomless pit where controversial species are dumped and forgotten. There are now over 250 species in this category, and the average time spent there is about 19 years. Species have gone extinct while waiting for listing rules. By no common sense measure of the word "expeditious" has the FWS made expeditious progress in its ESA duties. While the FWS blames these delays on a lack of funding by Congress, some of the agency's financial woes are self-inflicted. In the past, the FWS's parent agency -- the Interior Department -- has refused to seek sufficient funds from Congress and has actively sought caps on ESA spending.

Nevertheless, as discussed above, the FWS has recently committed to reducing the backlog, and has made specific commitments regarding the sage grouse. These commitments are the only reason the Court will uphold the agency's certification that it is making expeditious progress. If those commitments prove unreliable, the Court will quickly revisit its findings here upon prompting from any party.

Despite troubling aspects of the FWS decision process, the Court ultimately finds that the Director's decision to place the sage grouse in the warranted-but-precluded category is not arbitrary or capricious.

LITIGATION BACKGROUND

Between 2002 and 2003, the Fish and Wildlife Service (FWS) received three petitions to list the greater sage-grouse (Centrocercus Urophasianus) as an endangered species under the Endangered Species Act (ESA). Sage grouse populations have declined dramatically as their habitat disappears. They are sagebrush obligates, and rely on sagebrush all year to provide roosting, cover and food. See 75 Fed.Reg. 13923. They need large expanses of this sagebrush habitat to survive. Id. at 13927. Yet, almost half of the sagebrush habitat estimated to have been present historically has been destroyed, id. at 13986, and much of the remaining habitat has been badly fragmented. Id. at 13927.

On April 21, 2004, the FWS acted on the petitions for listing by filing its 90-day finding, concluding that the petitions present "substantial information indicating that listing the greater sage-grouse may be warranted." See 69 Fed.Reg. at 21484-94. In making that finding, the FWS relied on the declining population throughout the western United States, the extensive habitat destruction, and the lack of regulatory mechanisms to protect the sage grouse. Id.

After further study, the FWS issued a decision on January 6, 2005, deciding not to list the sage grouse under the ESA. Following a challenge by WWP, this Court held that the FWS failed to rely on the best science and was influenced by a political appointee who intimidated the scientists in an attempt to block listing. See WWP v. U.S. Fish and Wildlife Service, 535 F.Supp.2d 1173 (D. Id. 2007). The agency failed to keep records of the deliberations of the expert panel with the most extensive knowledge of the sage-grouse and its habitat, thereby failing to adequately preserve for the record the "best science." Id at 1183-84. The FWS compounded that error by excluding the panel from the final listing decision, such that "[r]ight at the moment where the 'best science' was most needed, it was locked out of the room." Id. at 1185. The Court also found that the FWS failed to coherently consider the adequacy of existing regulatory mechanisms. Id. at 1187. Finally, the Court found "political meddling," documented in a report issued by the Office of Inspector General, by a Deputy Assistant Secretary, who improperly altered the scientific record to "steer the 'best science' to a pre-ordained outcome." Id. at 1188. The Court remanded the matter to the FWS to reconsider its decision in light of the Court's findings.

Agency Response to Court Remand

In responding to the Court's remand, the FWS set up a cross-regional team consisting of (1) a biological Science Team; (2) a Field Management Team made up of supervisors from several field offices; (3) a Regional Leadership Team, staffed by the three Assistant Regional Directors for Ecological Services; and (4) a Legal Team staffed by Department of the Interior attorneys from each region. See 106 AR 000244, 4387 AR 043441.

The Science Team, consisting of eight senior level biologists and chaired by the FWS's lead sage grouse biologist, was responsible for completing a status review of the sage grouse based on the best science. See 4384 AR 43434. The Field Management Team (FMT), chaired by Wyoming Ecological Services Field Supervisor Brian Kelly, was responsible for (1) ensuring that the Science Team completed the status review, (2) preparing the draft 12-Month Finding, (3) relaying recommendations to the Regional Leadership Team, and (4) serving as a liaison between the teams. See 106 AR 000244-000245; 4387 AR 043441. Finally, the Regional Management Team (RMT) acted as regional level leadership, charged with receiving a final listing recommendation from the FMT. Id. at 241-42. The leader of the RMT was Region 6 Regional Director Steve Guertin.

This system was devised to avoid the political intimidation that infected the earlier finding that listing was not warranted. The management of the status review by the FMT would occur at the "field level" to "eliminate[] even [the] perception of DOI influence." Id. at 43632.

Science Team Findings

By September of 2009, the Science Team had compiled enough information to make a recommendation to the FMT that a listing for the sage grouse was warranted. The Science Team based that recommendation on a combination of threats facing the sage grouse. Energy development, invasive plants, increased wildfires, agriculture, urbanization, and infrastructure development had already eliminated almost half of the species' historical habitat, and much of the remainder was becoming fragmented. The Science Team found that habitat loss and fragmentation were likely to increase due to climate change, and available techniques for restoring sagebrush habitat were "limited and generally ineffective."

The Science Team found that the sage-grouse has two strongholds of large areas of contiguous habitat in the southwest Wyoming Basin and the Great Basin area straddling Oregon, Nevada and Idaho. Their findings on these two stronghold areas become important in the review of this matter and so warrant an extended discussion.

The Science Team found that these two stronghold areas "are the largest remaining contiguous areas of sagebrush habitat and are essential for long-term persistence of the landscape scale species." See 5250 AR 60443-44. The Team noted that while both areas currently "have large expanses of sagebrush," both are also "experiencing threats that are landscape scale in magnitude and that will increase in the foreseeable future." Id.

The principal threat in the Wyoming basin stronghold area is from energy development. The roads and other infrastructure that accompany oil and gas drilling, and uranium mining, cause habitat fragmentation. Although the sage grouse populations in this stronghold area are "currently functioning," the "trajectory [is] towards extirpation sometime in the future." See 4359 AR 43357, 43359.

While the primary threats in the Great Basin stronghold area were different -- wildfire and invasive weeds -- their effect was the same, in that they caused habitat fragmentation. While there are currently "lots of birds," the Science Team was in "[a]greement that it will be swiss cheese in 50 years." Id. By the term "swiss cheese," the Science Team meant that the habitat would be subjected to a "high level" of threats "with pockets of extirpation." See 4349 AR 43357, 43359.

The Science Team found that if these current trends in the two stronghold areas continue, "sage grouse persistence is questionable . . . ." See 5250 AR 60443-44. The Science Team was not optimistic about reversing those trends; it labeled regulatory efforts as "limited" and "ineffective." Id. In making its recommendation to the FMT, the Science Team reached the following conclusion:

It is unlikely that these two strongholds will provide the necessary landscape components necessary to sustain robust populations of greater sage grouse into the foreseeable future without extensive intervention management. While sage grouse are likely to continue to persist in isolated areas of remaining habitats, population connectivity will be limited, ...


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