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Gov. C.L. "Butch" Otter, Office of Species v. Ken Salazar

August 8, 2012

GOV. C.L. "BUTCH" OTTER, OFFICE OF SPECIES
CONSERVATION, THEODORE HOFFMAN, SCOTT NICHOLSON,
AND L.G. DAVISON & SONS, INC., PLAINTIFFS,
v.
KEN SALAZAR, THOMAS STRICKLAND, SAM HAMILTON, AND UNITED STATES FISH & WILDLIFE SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

This case represents the fourth time since 2001 that a federal court has been asked to review a decision by the Secretary of the Interior concerning whether Lepidium papilliferum (commonly known as slickspot peppergrass) should be listed as an endangered or threatened species under the Endangered Species Act.*fn1 On October 8, 2009, the Secretary published a Final Rule in the Federal Register listing L. papilliferum as a threatened species under the Endangered Species Act. 74 Fed. Reg. 52014. Following the listing, Idaho Governor C.L. "Butch" Otter, the Idaho Office of Species Conservation,*fn2 Theodore Hoffman, Scott Nicholson, and L.G. Davison & Sons, Inc.*fn3 (collectively "Plaintiffs") brought the present action against the United States Secretary of the Interior Ken Salazar and the United States Fish and Wildlife Service (the "Service")*fn4 challenging the listing under the Administrative Procedures Act ("APA") and the Endangered Species Act ("ESA"). All parties have consented to proceed before a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

Plaintiffs challenge the listing on four grounds.*fn5 First, Plaintiffs argue that the listing was not based upon "the best available science" in contravention of the ESA. Second, Plaintiffs argue that, under the ESA, a species only may be listed as "threatened" if it "is likely to become an endangered species within the foreseeable future," and that the Service failed to provide an adequate definition of "foreseeable future" in the Final Rule. Third, Plaintiffs argue that the Final Rule improperly discounted the significance of the Governor's conservation efforts. Finally, Plaintiffs argue that the Secretary failed to provide the State of Idaho with a letter outlining the justifications for the listing, which is required under Section 4 of the ESA when a state files comments disagreeing with all or part of a proposed regulation and the Secretary issues a final regulation in conflict with the state's comments. Based on these alleged deficiencies, Plaintiffs argue the Final Rule listing slickspot peppergrassas a threatened species does not comply with the statutory requirements contained in the ESA and that the listing is arbitrary and capricious under the APA. Plaintiffs request that the Court vacate, reverse, and remand the listing.

The Federal Defendants argue that the Final Rule complies with both the ESA and the APA. Moreover, and notwithstanding the fact that the Governor of the State of Idaho participated as an intervenor (in support of the Service and the Secretary) in two previous lawsuits filed by an environmental group challenging the Secretary's decision not to list slickspot peppergrassas a threatened species, the Secretary now argues that none of the plaintiffs in this case (including the Governor) have standing to challenge the Final Rule.

Before the Court are the parties' cross motions for summary judgment. (Pl.s' Mot. for Summ. J., Dkt. 38; Def.s' Mot. for Summ. J., Dkt. 42.) The parties presented oral arguments on the motions on May 22, 2012. The Court has reviewed the administrative record, (Dkt. 34 and 35), the motions have been fully briefed, and the case is ripe for adjudication. For the reasons set forth below, the Court finds that the Service's failure to define "foreseeable future" requires reversal of the listing and remand to the Service for further consideration.

BACKGROUND

1. Legal Background

Congress enacted the ESA to provide "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species." 16 U.S.C. § 1531(b). Section 4 of the ESA directs the Service to determine whether any species should be listed as endangered or threatened. 16 U.S.C. § 1533(a)(1). A species is "endangered" if it "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is "threatened" if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20).

The ESA requires the Secretary to determine whether any species is endangered or threatened "because of any" of the following five factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreation, scientific, or education purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence.

16 U.S.C. § 1533(a)(1). Although the Service outlines all five of the above factors in the Final Rule published in 2009, the agency's decision to list slickspot peppergrasswas based primarily on factor A -- "the present or threatened destruction, modification, or curtailment of [the species'] habitat or range."

The ESA also dictates that the decision to list a species must be based "solely on the basis of the best scientific and commercial data available to [the Secretary] after conducting a review of the status of the species and after taking into account those efforts, if any, being made by a State or foreign nation . . . to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction . . . ." 16 U.S.C. § 1533(b)(1)(A).

In addition, the Secretary is required to consult with the affected states when considering whether to list a species as endangered or threatened and to "tak[e] into account those efforts . . . being made by any State . . . to protect such species" under existing "conservation practices." 16 U.S.C. § 1533(b)(5)(A)(i) & (ii).

Once a species is listed, various safeguards prevent activities that will cause harm to members of the species or that will jeopardize the survival and recovery of the species.

16 U.S.C. §§ 1536, 1538. The ESA's ultimate goal is recovery of listed species to the point that ESA protection is no longer necessary. 16 U.S.C. § 1531(b) and (c), 1532(3).

2. Slickspot Peppergrass (L. papilliferum)

The following facts are taken from the Final Rule issued in October of 2009 and do not appear to be disputed by the parties. Slickspot peppergrassis a small, flowering plant in the mustard family. (Administrative Record ("AR") 0002.) The species is endemic to this region, known only from the Snake River Plain and its adjacent northern foothills, with a smaller disjunct population on the Owyhee Plateau. (Id.) Slickspot peppergrasshas never been found outside of Idaho. The plant grows in unique microsite habitats known as slickspots, which are found within the semiarid sagebrush-steppe ecosystem of southwestern Idaho. (Id.)

The slickspots themselves have been described as small circular patches of ground with unusual soil chemistry that create visually distinct openings in the surrounding sagebrush environment. Slickspots are distinguished from the surrounding sagebrush matrix as having the following characteristics: microsites where water pools when rain falls, sparse native vegetation, distinct soil layers with a columnar or prismatic structure, higher alkalinity and clay content and natric properties, and reduced levels of organic matter and nutrients. (AR 0006.) Most slickspots are between 10 square feet and twenty square feet in size, although some are as large as one hundred and ten square feet. (AR 0007.) Scientists believe that the slickspots found on the Idaho rangelands likely formed during the Pleistocene era and took thousands of years to form. Once destroyed, it is believed that slickspots cannot be re-created.

Slickspot peppergrassis moncarpic, meaning it flowers once and then dies, and displays two different life history strategies -- an annual form and a biennial form. (AR 0003.) The above-ground plants represent only a portion of the species' population and slickspot peppergrasshas a long-lived seed bank, likely as an adaptation to unpredictable conditions, in which years of good rainfall favorable for germination and survival may be followed by periods of drought. (AR 0010.) A persistent seed bank provides a population buffer against years of poor reproductive potential in such a highly variable environment. (Id.) Only a small percentage of slickspot peppergrassseeds germinate annually, resulting in an estimated maximum longevity of 12 years for seeds in the seed bank. (Id.) The Service recognizes that the number of above-ground plants that can be counted in any one year represents only a subset of the latent population that is present in the seed bank. (Id.) Given this fact, "estimating the number of above-ground plants is by itself not a reliable measure to evaluate population and species viability." (AR 0011, quoting Mancuso and Moseley (1998, p. 1)).

The Idaho Natural Heritage Program ("INHP") uses element occurrences ("EOs") to broadly describe the distribution of slickspot peppergrassand assigns rankings to each EO based on measures of habitat quality and species abundance. (AR 0005.) EOs are defined by grouping occupied slickspots that occur within on kilometer of each other. (Id.) Each EO is assigned a qualitative rank defined by population size and habitat quality. (Id.) EO ranks are periodically updated when new ranking information becomes available.

In addition to the EO system, there have been four programs designed to monitor populations of slickspot peppergrass. The Habitat Integrity Index ("HII") conducted by the Idaho Conservation Data Center ("ICDC" now the INHP) was the first rangewide effort aimed at monitoring slickspot peppergrass. The HII was initiated in 1998 and ran for 5 years through 2002. (AR 0005.) Monitoring was initially based on a system of transects of varying lengths across the range of slickspot peppergrass, each subjectively located to include 10 slickspots on sites known to contain slickspot peppergrass. (Id.) The primary goal of the HII methodology was to assess the overall habitat condition.

In 2004, the HII was replaced by the Habitat Integrity and Population monitoring protocol ("HIP"), which also was implemented by the ICDC. HIP monitoring has been conducted annually since its implementation (from 2004 through 2008). HIP presents measures of habitat, disturbance, and plant community attributes at each transect as well as counts of slickspot peppergrassrosettes and reproductive plants observed. (AR 0005.) HIP is based on transects of varying lengths subjectively located to include 10 slickspots along their lengths. (Id.) The monitoring has been annually conducted since 2004 and consists of the following procedures: (1) establish and permanently mark HIP transects; (2) record location information; (3) take photographs; (4) measure population, habitat, and disturbance attributes at selected slickspots; (5) measure plant community attributes; and (6) analyze and describe the results. (Id.)

In addition to the EO records and the HII-HIP monitoring programs (which cover the entire range of L. papilliferum), the Idaho Army National Guard has established two programs within its Orchard Training Area ("OTA"). The OTA is home to one of the largest and most expansive EOs of the species. (AR 0005.) Two of the OTA programs have been monitoring the same locations annually since the early 1990's, providing up to 18 years of population data for slickspot peppergrass. (Id.) These two monitoring programs are known as rough census areas and special-use plots. In the rough census areas, counts are conducted by technicians who walk across parallel transects and record the number ofslickspot peppergrassobserved. Not all areas have been monitored in all years, requiring the data to be standardized. The special-use plots are a series of 16 belt transects on the OTA, each containing a single slickspot. (AR 0005-0006.) A stake is centered in each slickspot, and each year the number of slickspot peppergrassindividuals with a 16.4 ft radius of that stake are counted. (AR 0006.)

The data generated from the above monitoring programs indicates that the numbers of slickspot peppergrasscan vary dramatically from year to year, depending on environmental conditions. (AR 0011.)

3. Listing History and Prior Litigation

The decade-long battle between environmental groups, the State of Idaho, and the federal government over whether slickspot peppergrassshould be listed as a protected species under the ESA is well chronicled in two previous cases before the Court -- both of which were brought by an environmental group against the Secretary of the Interior after the Service published notices in 2004 and again in 2007 that it was withdrawing earlier proposals to list the species under the ESA. See Western Watersheds Project v. Foss, CV 04-168-MHW, 2005 WL 2002473 (D. Idaho 2005); See also, Western Watersheds Project v. Kempthorne, CV 07-161-MHW, 2008 WL 2338501 (D. Idaho 2008)). The facts involving the listing of slickspot peppergrassand the multiple litigations that thereafter ensued are provided below where relevant and are taken largely from the Court's above-referenced decisions.*fn6

In 2000, the Service began preparing a draft rule to list slickspot peppergrassas endangered under the ESA. Western Watersheds Project v. Foss, CV 04-168-MHW, 2005 WL 2002473 at *4 (D. Idaho 2005). The process was eventually halted due to alleged political reasons and the Service decided not to publish the proposed rule. Id. at *5. An environmental group filed a Listing Petition to compel the Service to list the species under the ESA. Id. The Service rejected the Listing Petition and the following year, the environmental group filed suit against the Service in the District of Oregon for violations of the ESA. Id. The suit resulted in a settlement agreement in which the Service agreed to submit for publication a listing proposal for slickspot peppergrassby July 15, 2002, and to make a final determination by July 15, 2003. Id.

On July 15, 2002, the Service proposed to list slickspot peppergrassas endangered under the ESA. (AR 0002, citing 67 FR 46441.) The Air Force thereafter filed a challenge with the Service in March of 2003, claiming the proposed rule violated the Information Quality Act. Foss, 2005 WL 2002473at *7. A six-month extension occurred during which the Service solicited additional data, including submissions from a panel of experts. Id. At the end of the six-month period, the Service published notice that it was withdrawing the proposed rule to list the species under the ESA. Id. at *13. The decision to withdraw the proposed listing was based on the conclusion that there was insufficient evidence indicating a negative population trend. The withdrawal decision also referenced conservation agreements and found that the conservation measures described in the agreements would in fact be implemented. Id.

The first conservation agreement, and the one that Plaintiffs rely upon in their present challenge to the 2009 Final Rule, is the Candidate Conservation Agreement ("CCA"), which was drafted originally in 2003, updated in 2006, and scheduled to expire in 2013. (AR 0037.)*fn7 The parties to the CCA include the State of Idaho, the Bureau of Land Management, non-governmental cooperators (private landowners who also hold BLM livestock grazing permits), and several other Federal and State agencies.*fn8 (AR 0037.) The Service states that the CCA "represents an important milestone in the cooperative conservation of Lepidium papilliferum given its rangewide scope and coordinated management across Federal and State of Idaho managed lands." (AR 0037.)*fn9

The Final Rule, published in 2004, stated: "We [the Service] believe that the conservation efforts will reduce the risk of fires in the foreseeable future within the range of the species" '69 Fed. Reg. 3115. Ultimately, the Service concluded that, based on a lack of data indicating population decline and conservation agreements, "we [the Service] believe that the species no longer is in danger of extinction throughout all or a significant portion of its range, nor is it likely to become endangered within the foreseeable future." 69 Fed. Reg. 3116.

On April 5, 2004, an environmental group filed an action against the Secretary of the Interior challenging the Service's decision to withdraw the proposed rule to list slickspot peppergrass. Western Watersheds v. Foss, CV 04-168-S-MHW. Governor Dirk Kempthorne (the Governor of Idaho at the time the action was instituted) filed a motion to intervene as a matter of right under Fed. R. Civ. P. 24(a), and the parties stipulated that the Governor would be allowed to intervene in the case. On August 19, 2005, this Court reversed the withdrawal decision. The Court took issue with the Service's failure to define "foreseeable future." Id. at *14. The Court recognized that the ESA does not define the term "foreseeable future" and that the Service has not promulgated any rules or regulations setting quantitative thresholds to define the term. Id. The Court also recognized that the definition of "foreseeable future" "may vary depending on the particular species." Id. at *16. For instance, the Court stated that, "'foreseeable future' may be defined differently for a sequoia tree (the National Park Service indicates an age of 3,200 years for a mature tree) than for the slickspot peppergrass, which is an annual or biennial plant." Id. The Court, however, did not define "foreseeable future" for the slickspot peppergrass -- leaving that decision to the Service -- and expressly stated that the Court was "not attempting to establish a bright-line rule for defining foreseeable future." Id.

Notwithstanding the absence of a statutory definition, the Court held that the Service's failure to define the term was reversible error: "A mere statement that the conservation agreement 'will postpone the projected time when the species has a high risk of extinction to beyond the foreseeable future,' without first delineating how the FWS managers defined foreseeable future, does not suffice -- especially when [definitions of foreseeable future in the context of the slickspot peppergrass were available and had been estimated by the scientists asked to address the issue]." Id. at *17. The Court reversed the decision to withdraw the proposed rule, "with directions that the case be remanded to the Secretary of the Department of Interior for reconsideration in accordance with the legal standards outlined in th[e] opinion." Id. at *19.

Following the Court's 2005 decision, the Service published a document in February of 2006 entitled "Draft Best Available Biological Information for Slickspot Peppergrass." Western Watersheds Project v. Kempthorne, CV 07-161-MHW, 2008 WL 2338501 at *4 (D. Idaho 2008). The document analyzed several data sources, including the data produced from the HII and HIP monitoring programs done by IDCDC and the "census" data produced as part of the OTA program. Id. at *4-5. The document also described the factors affecting the species based on earlier findings, including non-native plant ...


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