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Environmental Law

: ESA Blawg

Attempt to challenge delayed five-year status review for suckers dismissed by U.S. District Court in Oregon

By Keith Rizzardi

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Moden v. U.S. Fish & Wildlife Service, Civil No. 08-CV-214-CL, 2008 WL 4763025 (D.Or. Oct. 27, 2008)(Recommendations by Magistrate Judge Clarke adopted by Judge Panner)

Plaintiffs filed a complaint under the Endangered Species Act ("ESA") alleging that the United States Fish and Wildlife Service ("FWS") breached its nondiscretionary duty to utilize the best available scientific and commercial data in its decision making, and that FWS's breach of that nondiscretionary duty was arbitrary and capricious.

In five-year reviews, FWS determined that the Lost River Sucker should be downlisted from endangered to threatened and that the Short Nose Sucker should remain listed as endangered. Plaintiff's effort to challenge the delay in the release of these documents was dismissed for lack of subject matter jurisdiction. Photo of Lost River Sucker from FWS (pictured fish is 30-35 years old)

BACKGROUND. FWS originally listed the Lost River Sucker and its fellow, the Short Nose Sucker, as endangered in 1988. 53 Fed.Reg. 27,130 (July 18, 1988). After finalizing a recovery plan and a proposed critical habitat for both species, 59 Fed.Reg. 61,744 (Dec. 1, 1994), a series of "massive die-offs" reduced the population of both species in 1995, 1996, and 1997. 69 Fed.Reg. 43,554, 43,555 (July 21, 2004). FWS conducted a five-year review of both species in 2001, pursuant to 16 U.S.C. ? 1533(c). 67 Fed.Reg. 34,422, 34,423 (May 14, 2002).… Because FWS had not completed the five-year reviews on the Lost River Sucker and the Short Nose Sucker by 2007 (as promised through prior litigation) Plaintiffs filed a second case in the United States District Court of Oregon against FWS in 2007 on the grounds that FWS had "unlawfully withheld or unreasonably denied" the five-year review, seeking release of the five-year review within 60 days. Moden v. U.S. Fish & Wildlife Serv., No. 07-799-CL (D.Or.2007) ("Moden II "). After Plaintiffs initiated the suit, FWS completed a five-year review for both species. Subsequently, the parties agreed to dismiss the suit. Id. ... Plaintiffs filed this suit alleging a claim for arbitrary and capricious agency action under the APA, 5 U.S.C. ? 706, and failure to perform a nondiscretionary duty under the ESA, 16 U.S.C. ? 1540(g)(1)(C). Defendants now move to dismiss Plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Plaintiffs move for summary judgment and request leave to amend their complaint.

DISCUSSION. Defendants contend that this Court lacks subject matter jurisdiction over Plaintiffs' APA claim because the FWS's five-year review is not a final agency action, 5 U.S.C. ? 704, and that the Court lacks subject matter jurisdiction over Plaintiffs' ESA claim because there is no nondiscretionary duty alleged which allows Plaintiffs to bring suit, 16 U.S.C. ? 1540(g)(1)(C). Plaintiffs concede in their response that they cannot secure through this suit their ultimate goal of challenging the substantive outcome of the five-year reviews. However, Plaintiffs' contend that, because they allege in their complaint that they seek a remedy to compel agency action unlawfully withheld or unnecessarily delayed, 5 U.S.C. ? 706(1), they can compel Defendants to proceed to the next step: make the five-year "determination" required under 16 U.S.C. ? 1533(c)(2)...

Plaintiffs' claim is not cognizable because 16 U.S.C. ? 1533(c) does not impose a nondiscretionary duty to initiate the rulemaking process, and the FWS has full discretion following a five-year review to pursue rulemaking if it so chooses. Thus, because the plaintiffs' claims are not cognizable under the APA or the ESA, the Court does not have subject matter jurisdiction over this case. See Coos County, 531 F.3d at 801: Am. Forest, 533 F.Supp.2d at 94....

"However, for a claim of unreasonable delay to survive, the agency must have a statutory duty in the first place." San Francisco Baykeeper v. EPA, 297 F.3d 877, 885 (9th Cir.2002). Additionally, "the only agency action that can be compelled under the APA is action legally required," Norton v. S. Utah Wilderness Alliance, 524 U.S. 55, 63 (2004), and "a delay cannot be unreasonable with respect to action that is not required," id., at 63 n. 1. Thus, regardless of the determination resulting from a five-year review, whether it suggests that a listing status should be changed or should remain the same, if rulemaking has not been initiated by the FWS at its discretion, the Court remains without jurisdiction to mandate action by the agency.

CONCLUSION. Defendants' motion to dismiss should be granted. Plaintiffs' request to amend should be denied because the amendment would be futile. See U.S. ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir.2001) (futility of the proposed amendment, alone, supports denial of a motion to amend). Plaintiffs' motion for summary judgment should be denied... Plaintiffs, however, are not without recourse. It appears that two options are available to Plaintiffs: (1) based on Defendants' counsel's representation at oral argument, Plaintiffs may still be able to challenge the FWS's 2004 negative response to Plaintiffs' citizen petition from 2001; or (2) in the alternative, Plaintiffs could file a new citizen petition. See Coos County, 531 F.3d at 812 (citing Am. Forest, 533 F.Supp.2d at 93 (stating that, if a party believes that a listing causes "unwarranted injury, [it] has the right and the ability to petition FWS to delist" the species in question)).

Full post as published by ESA Blawg on November 08, 2008 (boomark / email).