Rocky Mountain Wild v. Walsh

216 F.Supp.3d 1234

ROCKY MOUNTAIN WILD, Center for Biological Diversity, Utah Native Plant Society, Southern Utah Wilderness Alliance, Grand Canyon Trust, Western Resource Advocates, and Western Watersheds Project, Plaintiffs,

v. Noreen WALSH, Regional Director of the Mountain–Prairie Region of the U.S. Fish and Wildlife Service, Sally Jewell, Secretary of the Interior, U.S. Fish and Wildlife Service, and U.S. Department of the Interior, Defendants,andState of Utah, Utah School and Institutional Trust Lands Administration (Sitla), and Uintah County, Utah, Intervenor–Defendants.

Civil Action No. 15–cv–0615–WJM

United States District Court, D. Colorado.

Signed October 25, 2016

Christopher Douglass Eaton, Robin L. Cooley, Earthjustice Legal Defense Fund, Denver, CO, for Plaintiffs.

Alison C. Finnegan, U.S. Department of Justice, Travis James Annatoyn, Washington, DC, for Defendants.

Erin Kelly Murphy, Kathleen C. Schroder, Davis Graham & Stubbs, LLP, Denver, CO, for Intervenor-Defendants.

ORDER VACATING ADMINISTRATIVE ACTION AND REQUIRING MEET–AND–CONFER BETWEEN THE PARTIES

William J. Martínez, United States District Judge

In this lawsuit, various conservation organizations ("Plaintiffs") challenge a decision by the United States Fish and Wildlife Service ("FWS") not to list two flowers as threatened or endangered under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq . (ECF No. 1.) Those flowers are the Graham's beardtongue (Penstemon grahamii ) and White River beardtongue (P. scariosus var. albifluvis ) (together, "beardtongues"). These beardtongues are endemic to eastern Utah and northwestern Colorado, and are allegedly put at risk by oil and gas development.

FWS chose not to list the beardtongues based on a 15–year conservation agreement that FWS had just entered into with other governmental entities ("Conservation Agreement" or "Agreement"). The Conservation Agreement requires the signatories to implement restrictions on federal, state, and private land. These restrictions will ostensibly protect the beardtongues from the decline that might otherwise result from planned development. Plaintiffs, however, believe that FWS is legally precluded from considering the Conservation Agreement in its listing decision, given that it was new and unproven at the time FWS made its decision not to list the beardtongues. Plaintiffs alternatively argue that the Conservation Agreement's provisions do not go far enough, and so FWS's decision not to list the beardtongues based on the Conservation Agreement's protections was arbitrary and capricious.

For the reasons explained in detail below, the Court finds as follows: FWS is not legally precluded from accounting for new conservation agreements when assessing the status of a potentially threatened or endangered species. Thus, FWS did not err when it accounted for the Conservation Agreement in this case, nor did it err in concluding that the Conservation Agreement's provisions were likely to be carried out. Nonetheless, FWS acted contrary to the ESA by: (1) concluding that yet–to-be-enacted regulatory and non-regulatory measures mandated by the Conservation Agreement were "existing regulatory mechanisms"; (2) failing to account for the Agreement's expiration when determining whether the beardtongues face material threats in the "foreseeable future"; and (3) taking into account economic considerations when imposing a 300–foot buffer zone around each beardtongue. Plaintiffs challenge additional aspects of the Conservation Agreement, but the Court finds that those aspects are inseparably linked to the size of the buffer zone. Therefore, the Court can make no ruling on them until FWS reconsiders the buffer zone.

The Court will vacate FWS's decision not to list the beardtongues. However, before entering final judgment and remanding this matter to FWS, the Court will require the parties to meet in person and discuss whether the Conservation Agreement may be modified in a manner satisfactory to Plaintiffs.

I. STATUTORY FRAMEWORK

The ESA is intended to prevent the extinction of species that FWS determines to be "endangered" or "threatened." "Endangered" means the species is "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). "Threatened" means the species is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20).

Section 4 of the ESA (16 U.S.C. § 1533 ) permits private parties to petition FWS to add a particular species to FWS's formal list of threatened and endangered species. Id. § 1533(b)(3)(A). FWS is then directed to make a preliminary finding within 90 days. Id. Assuming it finds "substantial information indicating that the petitioned action may be warranted," FWS has 12 months to issue either a "not warranted" finding (thus rejecting the petition) or a proposed regulation adding the species to either the endangered or threatened list. Id. § 1533(b)(3)(B). If FWS proposes to list the species under either category, it then has 12 more months to make a final decision. Id. § 1533(b)(6)(A).

When making listing determinations, the ESA requires FWS to determine "whether any species is an endangered species or a threatened species because of " five enumerated 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.

Id. § 1533(a)(1) (emphasis added). In evaluating these factors, FWS must make its listing determinations

solely on the basis of the best scientific and commercial data available to [FWS] after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of 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, or on the high seas.

16 U.S.C. § 1533(b)(1)(A).

II. BACKGROUND

A. The Beardtongues

The Graham's beardtongue is a flowering plant endemic to exposed oil shale strata in portions of the Uinta Basin, particularly in Uintah County, Utah, but also in Rio Blanco County, Colorado. 78 Fed. Reg. 47590, 47591–95 (Aug. 6, 2013). The White River beardtongue is a flowering plant endemic to the same region, although in a smaller geographic area that partially overlaps with the Graham's beardtongue habitat. Id. at 47595–97.

B. Previous Listing Decisions Regarding the Graham's Beardtongue

The Graham's beardtongue was brought to FWS's attention in 1975, when FWS accepted a Smithsonian Institution report that included it in a list of potentially endangered species. See 71 Fed. Reg. 3158, 3158 (Jan. 19, 2006). However, FWS did not receive a formal listing petition specific to the Graham's beardtongue until some of the Plaintiffs here filed such a petition in 2002. See id. at 3159.

FWS's failure to act on that petition led to litigation and a settlement requiring it to make a listing decision by January 2006, which it did. In that decision, FWS found that advances in hydrocarbon extraction technologies increased the likelihood that energy companies would begin mining and extracting precisely in the oil-shale-rich range of the Graham's beardtongue. Id. at 3161–63. FWS therefore concluded that "[h]abitat destruction and degradation as a consequence of energy development throughout the species' range pose a serious threat to long-term viability," and therefore proposed that the Graham's beardtongue should be listed as "threatened." Id. at 3164.

In December 2006, however, FWS withdrew its proposal. See 71 Fed. Reg. 76024. FWS concluded that the threat of oil and gas development "ha[d] been adequately addressed and mitigated by BLM [i.e. , Bureau of Land Management] policies, land use planning, and on-the-ground protective measures," and that "there is great uncertainty over the technological and economic viability of commercial production, and, therefore, over timing and eventual location of oil-shale extraction." Id. at 76035.

C. The 2007 Draft Conservation Agreement

In 2007, FWS and BLM began negotiating a conservation agreement with the Utah Department of Natural Resources, the Utah School and Institutional T rust Lands Administration (SITLA),¹ and Uintah County. See 79 Fed. Reg. 46042, 46042–43 (Aug. 6, 2014) (summarizing the 2007 draft agreement). This agreement was never signed by all parties and was "only partially implemented." Id. at 46042. It appears that its main accomplishment was to prompt the parties to fund and conduct surveys of the beardtongues between 2007 and 2010. Id. at 46042–43.

D. The 2008 Lawsuit

In late 2008, some of the same Plaintiffs here filed a lawsuit in this Court, challenging FWS's December 2006 decision to withdraw its listing proposal. (SeeCenter for Native Ecosystems et al. v. United States Fish & Wildlife Service et al. , No. 08–cv–2744 (D. Colo., filed Dec. 16, 2008).) Finding that FWS had not properly considered or explained its withdrawal decision, this Court (per District Judge Walker D. Miller) eventually vacated that decision, reinstated the proposed listing, and directed FWS to reconsider whether to make the proposed listing final. See Ctr. For Native Ecosystems v. U.S. Fish & Wildlife Serv. , 795 F.Supp.2d 1199, 1210 (D. Colo. 2011) (" CNE ").

E. The 2013 Proposed Listing

In August 2013, FWS issued a new proposed listing, this time proposing to classify both the Graham's beardtongue and the White River beardtongue as threatened ("2013 Proposed Listing"). See 78 Fed. Reg. 47590 (Aug. 6, 2013). FWS justified this proposal primarily on the same grounds offered in its January 2006 proposal, i.e. , likely oil...