Colorado Wildlife Federation v. Turner

No. 92-F-884 (D. Colo. October 27, 1992)

The court holds that the U.S. Fish and Wildlife Service (FWS) violated the Endangered Species Act (ESA) by failing to designate the critical habitat of the razorback sucker fish within two years of the U.S. Environmental Protection Agency's (EPA's) listing the species as endangered under the ESA, and has 90 days to designate critical habitat for the species. The species once thrived throughout 3,500 miles of the Colorado River and its tributaries, but is currently threatened with extinction. The court first holds that environmental groups have standing under the ESA to seek injunctive relief for the protection of the species. First, the environmental groups have suffered a particularized harm as a result of the FWS' inaction. Specifically, the environmental groups have suffered an injury-in-fact because certain of the groups' members have been denied the ability to observe and fish for the species in areas where it flourished. By failing to timely follow Congress' directive, the FWS is ensuring that the species is never replenished and that members of the environmental groups are not permitted to enjoy the species. Further, the FWS' failure to define the species' critical habitat blocks any enforcement of the ESA's key provisions, and current water projects threaten the species' comeback. Moreover, requiring the FWS to designate the species' critical habitat, based on the available information, will allow implementation of the ESA's protection provisions that will minimize further threats to the species' critical habitat and survival.

Based on the same facts, the court holds that the FWS violated the ESA and orders EPA to designate critical habitat for the species within 90 days of this order. Although the FWS claims that designation at this time must be made on incomplete information, EPA has completed much of the necessary analysis to designate the critical habitat of the species, and the ESA provides for modification to critical habitat designations as additional information is available.

Counsel for Plaintiffs
Lori Potter, Andrew P. Caputo
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Michael J. Norton, Ass't U.S. Attorney
U.S. Attorney's Office
633 17th St., Ste. 1600, Denver CO 80202
(303) 844-3885

Counsel for Defendants
Christiana P. Perry, James C. Kilbourne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 724-1010/514-2000

[23 ELR 20402]

Finesilver, J.:

Order Granting Motion for Summary Judgment

Plaintiffs filed this action based on defendants' alleged failure to comply with the Endangered Species Act. Jurisdiction is based on § 1331 (West Supp. 1992) and 16 U.S.C.A. § 1540(c) (West 1985). This matter comes before the court on Plaintiff's Motion for Summary Judgment under Fed. R. Civ. P. 56. The issues have been fully briefed by the litigants. For the reasons stated below, Plaintiff's Motion for Summary Judgment is GRANTED.

I. Background

This case arises out of the defendant Fish and Wildlife Service's ("FWS") classification of the razorback sucker fish as an endangered species under the Endangered Species Act ("ESA"), 16 U.S.C.A. §§ 1531-1544 (West 1985 and 1992 Supp.). The razorback sucker is a species of fish found in the Colorado River Basin. It once thrived throughout 3,500 miles of the Colorado River and its tributaries. Currently, however, the razorback sucker is dangerously close to extinction.

In response to the petition of some of the plaintiff environmental groups, the FWS reviewed the razorback sucker's status and published a proposed rule on May 22, 1990, designating it as an endangered species. After the initial failure by the FWS to take final action regarding the razorback sucker's status, some of the plaintiff environmental groups brought suit to compel the FWS to take final action to list the razorback sucker as an endangered species. Colorado Environmental Coalition v. Turner, Civ. Action No. 91-S-1765 (D. Colo.). In response, on October 23, 1991, the FWS listed the razorback sucker as an endangered species.

As of yet, however, the FWS has not defined the razorback sucker's "critical habitat." On May 7, 1992, plaintiffs filed this action alleging that defendants have not complied with the requirements of the ESA. Plaintiffs argue that defendants have violated 16 U.S.C.A. § 1533(b)(6)(C)(ii) by failing to define the razorback sucker's critical habitat within two years of the initial proposal to classify it as an endangered species.

In their Complaint and Motion for Summary Judgment, plaintiffs seek declaratory and injunctive relief requiring defendants to make at least a preliminary designation, based upon the information it has now, of the razorback sucker's critical habitat. After further information becomes available, plaintiffs argue that defendants can redefine the critical habitat, if necessary.

II. Standard of Review

Granting summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 242 (10th Cir. 1991); Metz v. United [23 ELR 20403] States, 933 F.2d 802, 804 (10th Cir. 1991), cert. denied, 112 S. Ct. 416 (1991); Continental Casualty Co. v. P.D.C., Inc., 931 F.2d 1429, 1430 (10th Cir. 1991). A genuine issue of material fact exists only where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir. 1990). Only disputes over facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Allen v. Dayco Prods., Inc., 758 F. Supp. 630, 631 (D. Colo. 1990).

In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. Newport Steel Corp. v. Thompson, 757 F. Supp. 1152, 1155 (D. Colo. 1990). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991); Mountain Fuel Supply v. Reliance Ins. Co., 933 F.2d 882, 889 (10th Cir. 1991).

In a motion for summary judgment, the moving party's initial burden is slight. In Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), the Supreme Court held that the language of Rule 56(c) does not require the moving party to show an absence of issues of material fact in order to be awarded summary judgment. Rule 56 does not require the movant to negate the opponent's claim. Id. at 323. The moving party must allege an absence of evidence to support the opposing party's case and identify supporting portions of the record. Id.

Once the movant has made an initial showing, the burden of proof shifts to the opposing party. The nonmovant must establish that there are issues of material fact to be determined. Id. at 322-23. The nonmovant must go beyond the pleadings and designate specific facts showing genuine issues for trial on every element challenged by the motion. Tillett v. Lujan, 931 F.2d 636, 639 (10th Cir. 1991). Conclusory allegations will not establish issues of fact sufficient to defeat summary judgment. McVay v. Western Plains Serv. Corp., 823 F.2d 1395, 1398 (10th Cir. 1987).

In reviewing the evidence submitted, the court should grant summary judgment only when there is clearly no issue of material fact remaining. In Anderson, 477 U.S. at 249-50, the Court held that summary judgment should be granted if the pretrial evidence is merely colorable or is not significantly probative. In Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), the Court held that summary judgment is appropriate when the trial judge can conclude that no reasonable trier of fact could find for the nonmovant on the basis of evidence presented in the motion and the response. Id. at 587.

III. Analysis

Before reaching the merits of plaintiffs' claims, we must determine whether they have standing.

Standing

The ESA explicitly allows any person to bring a lawsuit for injunctive relief. 16 U.S.C.A. § 1540(g)(1). Nevertheless, Article III of the U.S. Constitution provides the outer limit to this court's jurisdiction. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992).

[T]he irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be "fairly . . . traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Id. (citations omitted). On a motion for summary judgment, the plaintiff has the burden of proving, with specific facts, by affidavit or other evidence, the existence of all of these elements. Id. at 2137. In the case at bar, we believe that plaintiffs have satisfied this burden.

Injury in fact must be based on the plaintiff being denied a specific benefit which he would have enjoyed but for the defendants' actions. It is well-established that "the desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for purposes of standing." Id. In Lujan, the Supreme Court held that plaintiffs did not suffer injury in fact because plaintiffs in that case merely visited and planned to return, at some undefined time in the future, to areas where the purported endangered species¹ lived and where government projects allegedly threatened their existence. Id. at 2138.

Unlike in Lujan, we believe that plaintiffs in the case at bar have suffered a particularized harm as the result of defendants' inaction. As was pointed out in Lujan, a sufficient injury is incurred by "a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision." Plaintiffs have suffered an injury in fact because certain of their members have been denied the ability to observe the razorback sucker and fish for the razorback sucker in areas where it flourished.

For example, Mr. Wright McEwan, a member of Plaintiff Four Corners Action Coalition, owns a farm which borders on the Animas River in Aztec, New Mexico, the area where the razorback sucker was previously plentiful. He has fished on the Animas River, from the New Mexico-Colorado border to below Cedar Hill, New Mexico, for most of his life. Mr. McEwan caught razorback suckers in this area in the early 1930s. However, since then he has not been successful in his fishing activity. We are persuaded that Mr. McEwan and others similarly situated are suffering an injury in fact as a result of the defendants' inaction. By failing to timely follow Congress' directive, the FWS is ensuring that the razorback sucker is never replenished and that Mr. McEwan and others are never again permitted the opportunity to enjoy the razorback sucker.

Causation and redressability also exist. It is the FWS' failure to define the razorback sucker's critical habitat that blocks any enforcement of the key provisions of the ESA. Only after the critical habitat is designated, is an agency required to "insure that any action authorized, funded, or carried out by such agency is not likely to . . . result in the destruction or adverse modification of habitat of such species which is determined . . . to be critical." 16 U.S.C.A. § 1536(a)(2). Therefore, Congress has declared that defining the critical habitat is a necessary step in ensuring the protection of an endangered species.

Currently, there exist projects which may threaten the razorback sucker's comeback. Dr. Wendell Minckley, a Professor of Zoology at Arizona State University and an expert regarding the razorback sucker, stated in his affidavit that "ongoing habitat deterioration continues to threaten survival of the razorback sucker." Dr. Minckley explains that current water channelization projects, stocking of nonnative fish, and chemical changes threaten the razorback sucker's habitat. Only by defining the critical habitat can modifications be scrutinized under the standard set forth in 16 U.S.C.A. § 1536(a)(2). Without designation of the critical habitat, many projects may improperly continue and destroy habitat which is invaluable to preventing the razorback sucker's extinction. Therefore, causation and redressability exist and plaintiffs have standing.

Violation of the Endangered Species Act

In our view, FWS' failure to define the razorback sucker's critical habitat constitutes a violation of the ESA. The ESA provides that

[a] final regulation designating critical habitat of an endangered species or a threatened species shall be published concurrently with the final regulation implementing the determination that such species is endangered or threatened, unless the Secretary deems that . . . (ii) critical habitat of such species is not then determinable, in which case the Secretary, with respect to the proposed regulation to designate such habitat, may extend the one-year period specified in subparagraph (A) by not more than one additional year, but not later than the close of such additional year the Secretary must publish a final regulation based on such data as may be available at that time, designating, to the maximum extent prudent, such habitat.

16 U.S.C.A. § 1533(b)(6)(C) (emphasis added).

The FWS published its original proposal to classify the razorback sucker as endangered on May 22, 1990. According to 16 U.S.C.A. § 1533(b)(6)(A)(ii), the FWS was required to issue a final regulation designating the razorback sucker's critical habitat by May 22, 1991. [23 ELR 20404] "The designation of critical habitat is to coincide with the final listing decision absent extraordinary circumstances." Northern Spotted Owl v. Lujan, 758 F. Supp. 621, 626 [21 ELR 20914] (W.D. Wash. 1991). However, by notice dated October 23, 1991,² the FWS stated that the critical habitat was not then determinable. Thus, the FWS invoked the limited one-year extension to May 22, 1992, provided for in 16 U.S.C.A. § 1533(b)(6)(C)(ii).

May 22, 1992, was the deadline for the FWS to designate the razorback sucker's critical habitat. Nevertheless, the FWS still has not accomplished that task. The FWS argues that it does not have sufficient information to properly designate the razorback sucker's critical habitat. Significantly, Congress provided for this situation. The FWS must define the critical habitat to the maximum extent possible and to the best of its ability now using all information presently available. See 16 U.S.C.A. § 1533(b)(6)(C)(ii). It is irrelevant whether the FWS' decision to delay the designation was arbitrary and capricious. See, e.g., Northern Spotted Owl, 758 F. Supp. at 626-28. Given Congress' clear mandate that, after the maximum two years has expired, "the Secretary must publish a final regulation based on such data as may be available at that time, designating, to the maximum extent prudent, such habitat," this court has no discretion to order otherwise. Weinberger v. Romero-Barcelo, 456 U.S. 305, 313-14 [12 ELR 20538] (1982) (holding that Congress restricted district court's discretion regarding matters involving ESA). See 16 U.S.C.A. § 1533(b)(6)(C)(ii).

Defendants also contend that requiring the FWS to designate the critical habitat now will not be in the best interests of the razorback sucker. They state that requiring a designation now will delay maximum protection to the species, "will likely result in the exclusion of a larger geographic area from the final rule designating critical habitat," and needless uncertainty will be created thus fostering opposition to the designation of the razorback sucker's critical habitat. Federal Defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment 18-20. Although these arguments may have some intuitive logic, this court is still not permitted to extend the deadline clearly provided for by Congress. In compliance with the requirement that the designation of critical habitat be prudent, the FWS is requested to use its best efforts to avoid the alleged evils which a prompt designation may cause. Furthermore, the FWS is obligated to revise this designation, while analyzing all required factors, when more information becomes available. See H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess. 23 (1982); 50 C.F.R. Part 424 (1991).

The court recognizes that the designation of critical habitat in this case covers a substantial area in the Colorado River Basin. The FWS admits, however, that it "has completed much of the [required] analysis" to designate the critical habitat of the razorback sucker. Federal Defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment at 11. The FWS already has significant information available to it. Currently, it is more than four months beyond the deadline provided for by Congress. Therefore, 90 (ninety) days is an appropriate amount of time to permit the FWS to accomplish the required designation utilizing all information available to it now and to publish its proposed designation. The final designation is to be thereafter published at the earliest possible time as permitted by the ESA and related regulations.

For the foregoing reasons, summary judgment shall be entered in favor of plaintiffs and against defendants. There are no genuine issues of material fact and plaintiffs are entitled to judgment as a matter of law.

IV. Order

ACCORDINGLY, it is ordered that:

(1) Plaintiffs' Motion for Summary Judgment, filed August 18, 1992, is GRANTED.

(2) The clerk is DIRECTED to enter judgment in favor of plaintiffs and against defendants.

(3) Defendants are DIRECTED to, within 90 (ninety) days of entry of this order, publish a proposed designation of the razorback sucker's critical habitat using their best efforts given all information presently available and in accordance with 16 U.S.C.A. §§ 1531-1544 (West 1985 and 1992 Supp.) and 50 C.F.R. Part 424 (1991).

(4) Defendants are DIRECTED to publish a final designation of the razorback sucker's critical habitat at the earliest time permitted in and in accordance with 16 U.S.C.A. §§ 1531-1544 (West 1985 and 1992 Supp.) and 50 C.F.R. Part 424 (1991).

(5) Defendants are DIRECTED to revise the razorback sucker's critical habitat final designation when more information becomes available in accordance with 16 U.S.C.A. §§ 1531-1544 (West 1985 and 1992 Supp.) and 50 C.F.R. Part 424 (1991), or the then effective statutes and regulations.

(6) All dates previously set by this court are hereby VACATED.

Judgment

PURSUANT TO and in accordance with the Order Granting Motion for Summary Judgment entered October 27, 1992, by the Honorable Sherman G. Finesilver, Chief Judge, it is

ORDERED THAT:

(1) Judgment is entered in favor of the above-named plaintiffs and against the above-named defendants.

(2) Defendants are DIRECTED to, within 90 (ninety) days of entry of this order and judgment, publish a proposed designation of the razorback sucker's critical habitat using their best efforts given all information presently available and in accordance with 16 U.S.C.A. §§ 1531-1544 (West 1985 and 1992 Supp.) and 50 C.F.R. Part 424 (1991).

(3) Defendants are DIRECTED to publish a final designation of the razorback sucker's critical habitat at the earliest time permitted in and in accordance with 16 U.S.C.A. §§ 1531-1544 (West 1985 and 1992 Supp.) and 50 C.F.R. Part 424 (1991).

(4) Defendants are DIRECTED to revise the razorback sucker's critical habitat final designation when more information becomes available in accordance with 16 U.S.C.A. §§ 1531-1544 (West 1985 and 1992 Supp.) and 50 C.F.R. Part 424 (1991), or the then effective statutes and regulations.

(5) Plaintiffs shall have their costs upon the filing of a bill of costs within ten (10) days of the entry of judgment.

1. In Lujan, plaintiff environmental groups sought to protect several alleged endangered species including the Nile crocodile, the Asian elephant, and the leopard. Lujan, 112 S. Ct. at 2138.

2. We note that the FWS should have filed this notice of extension by May 22, 1991. 16 U.S.C.A. § 1533(b)(6)(A)(ii)(II).