Building Industry of Superior California v. Babbitt

Page 893

979 F.Supp. 893

BUILDING INDUSTRY ASSOCIATION OF SUPERIOR CALIFORNIA, et al., Plaintiffs, v. Bruce BABBITT, et al., Defendants Environmental Defense Center and Butte Environmental Council, Defendant-Intervenors.

Civil Action No. 95-0726(PLF).

United States District Court, District of Columbia.

July 25, 1997.

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Lawrence R. Lilbesman, Linowes & Blocher, L.L.P., Silver Spring, MD, for Plaintiffs.

Lyn Jacobs, Dept. of Justice, Environmental Div., Washington, DC, for Defendants.

Anne Spielberg, Harmon, Curran & Spielberg, Washington, DC, Marc Chytilo, Environmental Defense Center, Santa Barbara, CA, Neil Levine, University of Denver, Denver, CO, Robin L. Rivett, Mark T. Gallagher, Sacramento, CA, for Defendant/Intervenors.

OPINION

PAUL L. FRIEDMAN, District Judge.

I. BACKGROUND

"Fairy shrimp" are tiny crustaceans found primarily, although not exclusively, in California's Central Valley region. Named for their delicate elongated bodies and wing-like thrashing legs, fairy shrimp are endemic to "vernal pools," sometimes known as seasonal wetlands, which are seasonally wet, isolated water bodies that pond in the winter and spring and evaporate during the summer. Fairy shrimp, the collective term for several similar shrimp species, constitute an important link in the vernal pool ecosystem, providing food for other animals and maintaining various aspects of the vernal pool ecological balance.¹ As a general matter, vernal pool habitat stretches from southern Oregon down the west coast into Baja California, although fairy shrimp are not found throughout this region. Final Rule, 59 Fed.Reg. at 48136. Since vernal pools occur throughout the farmlands of the Central Valley as well as in other areas of heavy agricultural and urban economic development, much of the fairy shrimp's habitat has been destroyed over the years, and it continues to disappear at a rate of about two to three percent per year. Id. at 48137.

The fate of these little creatures and their hotly contested habitat drives the instant case. On September 19, 1994, the Fish and Wildlife Service ("FWS") of the United States Department of the Interior exercised its authority under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., to list as endangered three different species of fairy shrimp — the Conservancy fairy shrimp (Branchinecta conservatio), the longhorn fairy shrimp (Branchinect logiantenna) and the vernal pool tadpole shrimp (Lepidurus packardi) — and to list as threatened one species of fairy shrimp — the vernal pool fairy shrimp (Branchinecta lynchi). Final Rule, 59 Fed.Reg. 48136 (Sept. 19, 1994).² The FWS based its listing decision on its findings that fairy shrimp habitat has been and continues to be destroyed, that a number of specific planned development projects would further eliminate known vernal pool complexes, and that fairy shrimp are scarce within their remaining habitat. Id. at 48147-51.

Plaintiffs challenge the listing of these four species of fairy shrimp, arguing that the listings violate the ESA, the Administrative Procedure Act, 5 U.S.C. §§ 501 et seq., and the Fifth Amendment, the Tenth Amendment and the Commerce Clause of the United States Constitution.³ Defendants and defendant-intervenors maintain that the listings are well supported by law and the best available science, and that in any event plaintiffs lack standing to challenge the listings because their interests do not fall within the zone of interests that Congress intended to protect with the ESA. The case is before the Court on cross-motions for summary judgment.

II. STATUTORY FRAMEWORK

An "endangered species" is "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A "threatened species" is "any species that 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). "To the maximum extent practicable," within 90 days after receiving a petition of an interested person to list a species, the Secretary of the Department of the Interior shall make a finding whether the listing may be warranted. 16 U.S.C. § 1533(b)(3)(A). If the listing may be warranted, within 12 months of receiving the petition the Secretary shall make a determination either that the petitioned action is not warranted, warranted, or warranted but precluded. 16 U.S.C. § 1533(b)(3)(B).⁴ In so doing, the Secretary, through the FWS,

shall ... determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational 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). The Secretary shall make such determinations "solely on the basis of the best scientific and commercial data available...." 16 U.S.C. § 1533(b)(1)(A).

On November 19, 1990, Roxanne Bittman petitioned the FWS to list the Conservancy fairy shrimp, the longhorn fairy shrimp, the vernal pool fairy shrimp, and the California linderiella as endangered species. On April 28, 1991, Dee Warenycia petitioned the FWS to list the vernal pool tadpole shrimp as endangered. The FWS found that the petitions "may be warranted," 56 Fed.Reg. 426968 (Aug. 30, 1991), and published a Proposed Rule proposing to list the five species as endangered. 57 Fed.Reg. 19856 (May 8, 1992), A.R. at 480. An initial public comment period lasted from May 8 through July 7, 1992, and a public hearing was held on August 31, 1992. The public comment period was reopened and extended until September 18, 1992. 57 Fed.Reg. 36380 (Aug. 13, 1992). On September 18, 1992, Representative Vic Fazio organized a public meeting in Red Bluff, California, which representatives of the FWS also attended. By the end of the public notice and comment period, the FWS had received 117 comments from public and private parties including, inter alia, the California Department of Parks and Recreation, the California Department of Fish and Game, and 41 private parties, all supporting the listing; it received comments from 34 private parties (including Sugnet and Associates, a consultant retained by plaintiff BIA), and two Congresspersons opposing the listing. 59 Fed.Reg. at 48139.

On February 9, 1994, conservation groups brought suit to compel the Secretary to list the fairy shrimp species as endangered. Environmental Defense Center v. Babbitt, Case No. 94-0788, Complaint (N.D.Cal. Feb. 9, 1994), A.R. at 19. In compliance with an agreement reached in settlement of that suit, the FWS published its Final Rule on September 19, 1994. See A.R. at 185. The FWS determined that three fairy shrimp species were endangered — the Conservancy fairy shrimp, the longhorn fairy shrimp and the vernal pool tadpole shrimp — and that one species, the vernal pool fairy shrimp, was threatened. It based its determination primarily on the present and threatened destruction, modification and curtailment of the fairy shrimp's habitat and range, the inadequacy of existing regulatory mechanisms, and other natural and man-made factors. 59 Fed.Reg. at 48147-50; see 16 U.S.C. § 1533(a)(1).

III. STANDARD OF REVIEW

Judicial review of agency decisions under the ESA is governed by Section 706 of the APA. 5 U.S.C. § 706; see City of Las Vegas v. Lujan, 891 F.2d 927, 932 (D.C.Cir.1989). Agency actions may be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The Supreme Court has described the principles governing review as follows:

The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. 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 choices made.... The reviewing court ... may not supply a reasoned basis for the agency's action that the agency itself has not given. [The court] will, however, uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.

Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983) (internal quotations and citations omitted). Review is based on the entire administrative record. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); see San Luis Obispo Mothers For Peace v. Nuclear Regulatory Commission, 751 F.2d 1287, 1325-26 (D.C.Cir.1984).⁵ Although the Court may not substitute its judgment for that of the agency, Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861-62, 104 L.Ed.2d 377 (1989), the Court's review must nevertheless be "searching and careful." Id.

In this case, much of the dispute revolves around the defendants' scientific conclusions about the state of the fairy shrimp species. The Supreme Court has made clear that under such circumstances where a determination "requires a high level of technical expertise [a court] must defer to the informed discretion of the responsible federal agencies." Marsh v. Oregon Natural Resources Council, 490 U.S. at 377, 109 S.Ct. at 1861; see Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437 (1983) ("When examining this kind of scientific determination ... a reviewing court must generally be at its most deferential."). In the same vein, "[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of...