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Center for Biological Diversity v. Kelly

United States District Court, D. Idaho

March 23, 2015

BRIAN KELLY, U.S. Fish and Wildlife Service Idaho State Supervisor, and U.S. FISH AND WILDLIFE SERVICE, Defendants

Page 1194

For Center for Biological Diversity, Defenders of Wildlife, Conservation Northwest, Idaho Conservation League, Selkirk Conservation Alliance, Lands Council, Plaintiffs: Jason C Rylander, LEAD ATTORNEY, PRO HAC VICE, DEFENDERS OF WILDLIFE, Washington, DC; Lauren M Rule, LEAD ATTORNEY, ADVOCATES FOR THE WEST, Portland, OR.

For Brian Kelly, U.S. Fish and Wildlife Service, Defendants: Bradley Howard Oliphant, LEAD ATTORNEY, U.S. Department of Justice, Denver, CO.

For Kootenai Tribe of Idaho, Intervenor Defendant: Julie Weis, LEAD ATTORNEY, Haglund Kelley Horngren Jones & Wilder, Portland, OR; William K Barquin, LEAD ATTORNEY, Kootenai Tribal Headquarters, Portland, OR.

For Boundary County, Intervenor Defendant: Caroline Lobdell, LEAD ATTORNEY, PRO HAC VICE, Western Resources Legal Center, Portland, OR; Paul A Turcke, MOORE SMITH BUXTON & TURCKE, Boise, ID.

For C. L. Otter, Governor, also known as, Butch Otter, Intervenor Defendant: Samuel J Eaton, Governor's Office of Species Conservation, Boise, ID.

For Idaho State Snowmobile Association, Inc., Intervenor Defendant: Kirk J Houston, Norman M Semanko, Moffatt Thomas Barrett Rock & Fields, Chtd., Boise, ID.

For Bonner County, Intervenor Defendant: D Scott Bauer, LEAD ATTORNEY, BONNER COUNTY PROSECUTOR, Sandpoint, ID.

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Honorable Edward J. Lodge, United States District Judge.

Pending before the Court in the above-entitled matter are the Cross-Motions for Summary Judgment filed by the parties in this environmental case. The matters have been fully briefed and are ripe for the Court's consideration. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motions shall be decided on the record before this Court without a hearing.


Plaintiffs, Center for Biological Diversity, Defenders of Wildlife, Conservation Northwest, Idaho Conservation League, Selkirk Conservation Alliance, and The Lands Council, have brought this action against the Defendants, the United States Fish and Wildlife Service (" FWS" ) and Michael Carrier,[1] in his capacity as Idaho State Supervisor. Plaintiffs challenge the FWS' November 28, 2012 Final Rule designating 30,010 acres in Idaho and Washington as critical habitat for the southern Selkirk Mountains population of woodland caribou (" Selkirk Mountains Caribou" ) under the Endangered Species Act (" ESA" ). Others have intervened as parties in this action: Kootenai Tribe of Idaho, Boundary County, Governor C.L. " Butch" Otter, Bonner County, and the Idaho State Snowmobile Association, Inc. (collectively " Defendant-Intervenors" ).[2]

In 1983, the Selkirk Mountains Caribou was emergency listed as " endangered" under the ESA. The final rule listing the Selkirk Mountains Caribou as endangered was entered in 1984 and the species has retained that status since that time.[3] Thereafter, FWS prepared and approved a Management Plan/Recovery Plan for the species which was revised in 1994 (" 1994 Recovery Plan" ). (Dkt. 51 at 7.) On April 11, 2006, the FWS published a notice of intention to conduct a five-year review for several species including the Selkirk Mountains Caribou. (Dkt. 51 at 7-8.)

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That review was completed on December 5, 2008 wherein the FWS determined that the recovery criteria in the 1994 Recovery Plan were inadequate and no longer the best available information on the species and its habitat. (Dkt. 51 at 8.) The anticipated revised recovery plan has not yet been finalized. (Dkt. 51 at 8.)

On December 6, 2002, the FWS was petitioned to designate critical habitat for the Selkirk Mountains Caribou. On November 30, 2011, the FWS published a Proposed Rule seeking to designate approximately 375,562 acres as critical habitat in Boundary and Bonner Counties in Idaho and Pend Oreille County in Washington (the " Proposed Rule" ). (AR28768.) In August of 2012, the FWS created a Draft Final Rule proposing to designate 227,100 acres of critical habitat. (AR00671-72.) The difference in acres between the Proposed Rule and the Draft Final Rule was the result of a change in the base habitat elevation from 4,000 to 5,000 feet in elevation. (AR00032-33 and AR00667.)

On November 28, 2012, the FWS published its final critical habitat designation (" Final Rule" ) for the southern Selkirk Mountains Caribou designating 30,010 acres of critical habitat. (AR00001-42.)[4] This change in total area designated in the Final Rule results, in part, from the FWS revised determination of the geographic area of occupied habitat for the species and its decision to not designate any unoccupied areas. (AR0009, 23-26.)

Plaintiffs have brought this action under the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701 et seq., alleging the Defendants' violated the ESA, 16 U.S.C. § 1531 et seq, in its Final Rule designation. (Dkt. 1.) Defendants maintain their decisions and actions fully complied with the applicable standards and requirements of the ESA. (Dkt. 25.) The Intervenors likewise argue that the Final Rule satisfies the requirements of the ESA and APA. (Dkt. 34, 49, 50, 55, 61, 62.) The parties have filed Cross Motions for Summary Judgment which the Court has taken up in this Order and finds as follows. (Dkt. 38, 49, 51.)


Compliance with ESA is reviewed under the APA's arbitrary or capricious standard. Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 481 (9th Cir. 2010); 5 U.S.C. § 706(2)(A). Section 706(2)(A) of the APA provides that an agency action may be set aside only if it is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)). An agency decision is arbitrary or capricious if: 1) the agency entirely failed to consider an important aspect of the issue; 2) the agency offered an explanation for its decision that was counter to the evidence before it; 3) the agency relied on factors that Congress did not intend for it to consider; or 4) the agency's decision is so implausible that it could not be ascribed to the product of agency expertise. See Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

Under this standard, the Court will " 'sustain an agency action if the agency has articulated a rational connection between the facts found and the conclusions made.'" San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 994 (9th Cir. 2014) (quoting Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Rec.,

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426 F.3d 1082, 1090 (9th Cir. 2005)). Review under the arbitrary and capricious standard " is narrow, and [we do] not substitute [our] judgment for that of the agency." Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (citations omitted); Independent Acceptance, 204 F.3d at 1251 (citations and quotations omitted) (" Our task is simply to ensure that the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made." ). " Within this narrow review, [the court] cannot substitute [its] judgment for that of the [agency], but instead must uphold the agency decisions so long as the agencies have 'considered the relevant factors and articulated a rational connection between the facts found and the choice made.'" Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 954 (9th Cir. 2003) (citations omitted). This standard of review is " highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000) (citations omitted).

Thus, under the arbitrary and capricious standard of review, the Court's " proper role is simply to ensure that the Forest Service made no 'clear error of judgment' that would render its action 'arbitrary and capricious.'" McNair, 537 F.3d at 993 (citations omitted). 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." Wildland CPR, Inc. v. U.S. Forest Serv., 872 F.Supp.2d 1064, 1075 (D. Mont. 2012) (citations omitted). In reviewing that explanation, the court must " consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. (citations omitted).

" Even when an agency explains its decision with 'less than ideal clarity,' a reviewing court will not upset the decision on that account 'if the agency's path may be reasonably discerned.'" Alabama Dep't of Envt'l Conservation v. E.P.A., 540 U.S. 461, 497, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (quoting Bowman Transp. Inc. v. Arkansas-Best Freight Syst., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1975)). " It is not the reviewing court's task to 'make its own judgment about' the appropriate outcome." San Luis & Delta-Mendota, 776 F.3d at 994 (quoting River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010)). " Congress has delegated that responsibility to" the agency. Id. " The court's responsibility is narrower: to determine whether the" agency complied with the procedural requirements of the APA. Id.

Judicial review of administrative agency decisions under the APA is based on the administrative record compiled by the agency--not on independent fact-finding by the district court. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). In making this determination, the Court " may not consider information outside of the administrative record...and may not substitute our judgment for that of the agency." Independent Acceptance, 204 F.3d at 1251 (citations and quotations omitted). Courts may resolve APA challenges via summary judgment. See Nw. Motorcycle Ass'n v. United States Dep't Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). Summary judgment is appropriate where " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(a).


Plaintiffs claim alleges two violations of the ESA: 1) the Final ...

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