Allegheny Wood Prods. v. United States Fish & Wildlife Serv.

1

ALLEGHENY WOOD PRODUCTS, INC., Plaintiff, v. UNITED STATES FISH AND WILDLIFE SERVICE, MARTHA WILLIAMS, in her official capacity as the Director of U.S. Fish and Wildlife Service, UNITED STATES DEPARTMENT OF THE INTERIOR, and DEB HAALAND, in her official capacity as the Secretary of the U.S. Department of the Interior, Defendants.

CIVIL No. 2:22-CV-07

United States District Court, N.D. West Virginia

February 12, 2024

MEMORANDUM OPINION AND ORDER [ECF NOS 41,45]

THOMAS S. KLEEH, CHIEF JUDGE NORTHERN DISTRICT OF WEST VIRGINIA.

Pending before the Court is Plaintiff Allegheny Wood Products Inc.'s (“AWP” or “Plaintiff”) motion for summary judgment [ECF No. 41] and Defendant United States Fish and Wildlife Service's (“Service” or “Defendant”) motion for summary judgment [ECF No. 45]. For the reasons discussed herein, Plaintiff's motion for summary judgment is DENIED and Defendant's motion for summary judgment is GRANTED.

I. FACTUAL BACKGROUND

Approximately 16 years ago, Plaintiff began the process of obtaining an Incidental Taking Permit (“ITP”) from the Service for a timber harvest and housing development project. Plaintiff sought the ITP because its use of a tract of property in Tucker County, West Virginia could incidentally affect the habitats of seven threatened or endangered species including the Cheat Mountain Salamander, northern long-eared bat, and the Indiana bat. ECF No. 42, Pl. Mem. Supp. Summ. J., at 1; ECF No. 45-1, Def. Mem. Supp. Summ. J., at 1.

1. The Endangered Species Act and Incidental Taking Permits

The Endangered Species Act (“ESA”) prohibits the unauthorized “take” of an endangered species. 16 U.S.C. § 1538 (a)(1)(B). “The term ‘take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” towards the species protected under the ESA. 16 U.S.C. § 1532(19). However, the ESA provides an exception for certain takings which are “incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C. §1539(a)(1)(B).

To receive this exception, one must apply for and be granted an incidental taking permit (“ITP”). An ITP application must include a complete a habitat conservation plan (“HCP”). The HCP must specify:

(i) the impact which will likely result from such taking;

(ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps;

(iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and

(iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan.

16 U.S.C. § 1539(2)(A). The Service provides further guidance on the ITP application process through regulation. A complete ITP application must include:

(i) A complete description of the activity sought to be authorized;

(ii) The common and scientific names of the species sought to be covered by the permit, as well as the number, age, and sex of such species, if known;

(iii) A conservation plan that specifies:

(A) The impact that will likely result from such taking;

(B) What steps the applicant will take to monitor, minimize, and mitigate such impacts, the funding that will be available to implement such steps, and the procedures to be used to deal with unforeseen circumstances;

(C) What alternative actions to such taking the applicant considered and the reasons why such alternatives are not proposed to be utilized; and

(D) Such other measures that the Director may require as being necessary or appropriate for purposes of the plan.

50 C.F.R. § 17.22. “Upon receipt of a complete application, the Director may issue a permit . . . for the incidental taking of endangered wildlife.” Id.

2. Incidental Taking Permit Application Process

There are four phases to obtaining an ITP: (1) preapplication; (2) developing a habitat conservation plan (“HCP”) and environmental compliance documents; (3) processing, making a permitting decision, and issuing the ITP; and (4) implementing the HCP and compliance monitoring. ECF No. 41-1, HCP Handbook at 113; ECF 45-1, at 3-4. Preparing the ITP application and proposed HCP is meant to be a collaborative process between the applicant and the Service. See generally ECF No. 41-1; ECF No. 42, at 3. The goal of the second phase “is for the applicant, with [Service's] guidance and assistance, to prepare a draft HCP that is statutorily complete and meets the incidental take permit issuance criteria.” ECF No. 41-1, at 2-2; see ECF No. 45-1, at 14-15.

The Habitat Conservation Planning and Incidental Take Permit Processing Handbook (“HCP Handbook”) serves as an instructional aid for Services staff, as well as provides applicants with further assistance through the ITP application process. ECF No. 41-1. The HCP Handbook provides that Service field office staff must review a submitted ITP application to determine it is “statutorily complete and otherwise meets regulatory and policy requirements applicable to a permit application,” before sending the application package to the Service's Regional Office. ECF No. 411, at 14-11. The third phase, which includes publishing the HCP in the Federal Register for public comment, cannot occur until the Service determines it has received a statutorily complete application. See 50 C.F.R. §§ 17.22, 17.32(b)(1)(ii); ECF No. 411, at 1-13.

3. Allegheny Wood Product's ITP Application

To date, Plaintiff has not received an ITP since beginning the process in 2006. ECF No. 42, at 1. However, the parties disagree as to why this is the case. Plaintiff argues that the Service rejected its application as statutorily incomplete after the application remained in a “perpetual administrative limbo” for sixteen years. Id. Plaintiff contends that the Service's decision was procedurally improper because it engaged in a substantive review of the application at the formalistic intake stage. Id. at 2. Plaintiff claims that it submitted multiple drafts of the HCP to the Service over the years, but that the agency was overall unresponsive or delayed in providing feedback and comments. Id. at 3-8.

Plaintiff and Defendant went through eleven drafts of comments and revisions on the HCP. Id. at 7; ECF No. 45-1, at 9. On December 7, 2021, Plaintiff submitted what it believes was a complete application for the ITP. ECF No. 42, at 7. Plaintiff alleges the Service rejected the application in October 2022, after the subject suit was filed. Id. at 8.

In contrast, the Service contends that Plaintiff has resisted the HCP process from the outset. ECF No. 45-1, at 2. Defendant argues that Plaintiff was non-cooperative and that the Service tried to work with Plaintiff to develop a legally defensible HCP. Id. Following the tenth version of the HCP, the Service drafted a 22-page single-spaced document outlining the issues with the HCP and a 45-page document to model how to approach accounting for the likely take of species and mitigating the effects of the proposed activities. Id. at 9. The Service states that Plaintiff continually refused to address the deficiencies in the HCP for years and thus, the Service ultimately determined the ITP application was incomplete. Id. at 9-10. The Service argues it needed certain information, elaborated upon below, from Plaintiff during the HCP process to move forward with the application process. Id.

The Service claims that Plaintiff was ultimately unwilling to implement the recommended revisions to create a complete HCP. Id. at 9. When Plaintiff submitted its “final draft” HCP for consideration in 2021, the Service found it incomplete and that it did not meet the ESA's statutory requirements. Id. at 10.

4. The Service's Final Decision Regarding Completeness

On October 17, 2022, the Service sent a letter to AWP rendering a decision on AWP's December 2021 final draft HCP. AR-000059-65. See also, ECF No. 45-1, at 10; ECF No. 42, at 8. The letter was in response to Plaintiff's request for a “Service determination as to whether AWP's Draft HCP for the Blackwater property in Tucker County, West Virginia, meets all necessary requirements and is complete.” AR-000059. See also AR-000860-61. AWP specifically requested in its correspondence to the Service that it intended the Draft HCP to be “the Final Draft for consideration by USFWS and the public towards a permit issuance decision” and that AWP believed the HCP was “sufficient to meet the criteria for issuance of an incidental take permit and urge[d] the USFWS to complete the process of considering its application for a permit.” AR-000059; AR-000860-61.

Upon completing its review, the Service determined the application was incomplete because it did not meet all the necessary requirements. AR-000059. Thus, AWP's ITP application could not proceed to the next phase of the application process. AR-000059-60. The Service identified two foundational issues with the HCP. AR-000060; ECF No. 45-1, at 10; ECF No. 42, at 16.

The Service's letter further detailed the identified insufficiencies of AWP's Draft HCP and reviewed its attempts to collaborate with AWP. AR-000062. First, the Service found that the Draft HCP “did not provide sufficient information on the covered activities for the Service to fulfill its responsibility to adequately assess the impacts to the covered species - an issue the Service has previously identified to AWP in prior drafts.” Id. The service found the Draft HCP failed to fully account for the type, amount, or impact of the resulting takings because AWP did not provide sufficient project details at scales relevant to the impacted species. Id. For example, the Draft HCP combined and characterized multiple...