Pesticide ruling decried by CBD

 Posted by on April 24, 2013
Apr 242013

U.S. District Court Judge Joseph C. Spero dismissed an ESA citizen suit seeking to force consultation under the ESA "regarding the effects of 382 registered pesticides on endangered and threatened species" (Center for Biological Diversity v. EPA, 11-293-JCS, N.D. Cal.).

"Plaintiffs have not pled sufficient facts to show that the EPA was required to reinitiate consultation," the judge ruled, finding that "FIFRA § 16" -- not the citizen suit provision of the ESA -- "appears to confer jurisdiction in this case." He gave the plaintiffs 30 days from the date of his April 22 decision to file an amended complaint.

They will have some work to do. In their amended complaint, they will have to "plead facts showing the specific affirmative acts or orders of the EPA that they allege with respect to each pesticide. They must also plead facts showing standing with respect to each pesticide. And finally, they must plead facts showing how this Court has jurisdiction under FIFRA § 16(a) for the affirmative actions alleged--or that the specific affirmative acts fall outside the ambit of FIFRA § 16."

“This is a disappointing ruling for endangered species on Earth Day," CBD's Jeff Miller said in a press release. “But the court’s decision does not change the fact that the EPA’s pesticide registration program is completely broken and that the agency is not keeping toxic chemicals out of sensitive wildlife habitats.”

"For decades the EPA has registered pesticides without input from expert federal agencies to evaluate harmful impacts to wildlife," CBD said. "Hundreds of scientific studies document harm to endangered wildlife from pesticides, and there is evidence of widespread contamination of groundwater, drinking water and wildlife habitats throughout the country."


Here, Plaintiffs seek a broad remedy--an injunction mandating the EPA to consult with the Services regarding the registration and oversight of 382 pesticides. However, if properly pleaded, each pesticide corresponds to an individual agency affirmative act which triggers the EPA’s duty to consult with the Services. If the EPA failed to consult with the Services regarding the effects of Pesticide X on the environment, and that failure-to-consult confers standing on a plaintiff to bring an ESA claim arising under Section 7, the plaintiff’s standing in connection with Pesticide X does not confer standing on the plaintiff to also bring a separate claim regarding Pesticide Y. (page 19)

The most relevant Ninth Circuit decision to the jurisdictional question at issue in this case is American Bird [Conservancy v. Federal Communications Commission, 545 F.3d 1190 (9th Cir. 2008)], a case decided after Washington Toxics [Coalition v. Environmental Protection Agency, 413 F.3d 1024, 1033 (9th Cir. 2005)]. In American Bird, environmental organizations challenged the decision by the Federal Communications Commission to issue licenses for seven communications towers before consulting with the Services as required under ESA § 7. American Bird, 545 F.3d at 1192. Although the complaint only contained an ESA claim against the FCC for its failure to consult, the FCC argued that the plaintiff’s “core objections” were to the FCC’s order issuing the tower licenses, and therefore, the district court lacked jurisdiction because the Communications Act limits jurisdiction over appeals of FCC orders exclusively to the court of appeals.7 Id. at 1193. Although the plaintiffs “disclaimed any intent to challenge the tower registrations themselves,” the court looked beyond the allegations of the complaint and considered the nature of the lawsuit and the relief sought. Id. The Ninth Circuit agreed with the FCC that the district court lacked jurisdiction: American Bird does not object to the agency’s failure to consult in the abstract; rather, it identifies seven discrete tower registrations that it alleges were not supported by adequate environmental investigation. The tower registrations are therefore inextricably intertwined with the FCC’s obligation to consult with the Secretary. (page 23)

The Court finds that American Bird controls the jurisdictional question in this case. Although Plaintiffs only challenge the EPA’s failure to consult under ESA § 7, Plaintiffs’ “core objections” are to the pesticide registrations themselves, which are governed under FIFRA’s administrative framework. American Bird, 545 F.3d at 1193. Like in American Bird, this Court is
presented with two conflicting jurisdictional statutes--FIFRA § 16 and the ESA’s citizen suit provision. While ESA’s citizen suit provision provides for jurisdiction in district court, FIFRA § 16 establishes a comprehensive framework for all appeals over the EPA’s actions with regard to pesticide registrations. (page 26)

In sum, the provision of FIFRA § 16 appears to confer jurisdiction in this case. As described above, in their amended complaint, Plaintiffs must plead facts showing the specific affirmative acts or orders of the EPA that they allege with respect to each pesticide. They must also plead facts showing standing with respect to each pesticide. And finally, they must plead
facts showing how this Court has jurisdiction under FIFRA § 16(a) for the affirmative actions alleged--or that the specific affirmative acts fall outside the ambit of FIFRA § 16.

Jun 122012

An en banc panel of the Ninth Circuit Court of Appeals has held that the Forest Service must consult with FWS and/or NMFS before approving Notices of Intent to conduct mining in endangered species' critical habitat (Karuk Tribe of California v. U.S. Forest Service, 05-16801, 6/1/2012).

In its June 1 ruling, the court overturned a previous decision issued by a three-judge panel that included Circuit Judges William A. Fletcher and Milan D. Smith Jr., and Senior U.S. District Judge James D. Todd, sitting by designation from the Western District of Tennessee. Fletcher dissented from the court's initial opinion.

K-14 – Lower Seiad and Portuguese Creek Claims

This time around, Fletcher got to write the opinion, from which Smith and Chief Judge Alex Kozinski dissented. Circuit Judges Mary Murguia and Sandra Ikuta joined those two in all respects but one -- the section where Smith said that the majority had "render[ed] the Forest Service impotent to meaningfully address low-impact mining," which "effectively shuts
down the entire suction dredge mining industry in the states within our jurisdiction."

"The informal Notice of Intent process allows projects to proceed within a few weeks," Smith wrote. "In contrast, ESA interagency consultation requires a formal biological assessment and conferences, and can delay projects for months or years."

District rangers made "affirmative, discretionary decisions"

The first is whether the Forest Service’s approval of four NOIs to conduct mining in the Klamath National Forest is “agency action” within the meaning of Section 7. Under our established case law, there is “agency action” whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs.

The second is whether the approved mining activities “may affect” a listed species or its critical habitat. Forest Service regulations require a NOI for all proposed mining activities that “might cause” disturbance of surface resources, which include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the “may affect” standard.

We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.

Authorization of action brings NOI approval under ESA's umbrella: Majority

The court took note of the Forest Service's contention that "approval of a NOI is merely a decision not to regulate the proposed mining activities. See 70 Fed. Reg. at 32,720; id. at 32,728 (“a notice of intent to operate was not intended to be a regulatory instrument”)."

"But the test under the ESA," the court continued, "is whether the agency authorizes, funds, or carries out the activity, at least in part. 50 C.F.R. § 402.02 (emphasis added)."

In addition, the court said that in its 1988 Penfold decision (full cite below), "we held that BLM’s review of notice mines was a 'federal action' — albeit, a 'marginal' instead of a 'major' action. Under Section 7 of the ESA, a federal agency action need not be 'major' to trigger the duty to consult. It need only be an 'agency action.' Thus, Penfold cuts against rather than in favor of the Forest Service and the Miners."

The dissenters saw things differently. Here are some excerpts:

Until today, it was well-established that a regulatory agency’s “ ‘inaction’ is not ‘action’ ” that triggers the Endangered Species Act’s (ESA) arduous interagency consultation process. W. Watersheds Project v. Matejko, 468 F.3d 1099, 1108 (9th Cir. 2006). Yet the majority now flouts this crystal-clear and common sense precedent, and for the first time holds that an agency’s decision not to act forces it into a bureaucratic morass.

. . .

Unfortunately, this is not the first time our court has broken from decades of precedent and created burdensome, entangling environmental regulations out of the vapors. In one of the most extreme recent examples, our court held that timber companies must obtain Environmental Protection Agency permits for stormwater runoff that flows from primary logging roads into systems of ditches, culverts, and channels. Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011). In the nearly four decades since the Clean Water Act was enacted, no court or government agency had ever imposed such a requirement. Indeed, the EPA promulgated regulations that explicitly exempted logging from this arduous permitting requirement. Id. at 1073. Yet our court decided to disregard the regulation and require the permits.

Background from the decision:

The Tribe brought suit in federal district court alleging that the Forest Service violated the ESA, the National Environmental Policy Act (“NEPA”), and the National Forest Management Act (“NFMA”) when it approved the four NOIs to conduct mining in and along the Klamath River in the Happy Camp District. Karuk Tribe of Cal. v. U.S. Forest Serv. (“Karuk I”), 379 F. Supp. 2d 1071, 1085 (N.D. Cal. 2005).

 The Tribe sought declaratory and injunctive relief. The New 49’ers and Raymond Koons, an individual who leases several mining claims to the New 49’ers on the Klamath River, intervened as defendants in the suit. Id. at 1077. Initially, the Tribe also  challenged five Plans of Operations approved by the Forest Service during the 2004 mining season, but the Tribe dropped those claims in April 2005 after the agency agreed in a stipulated settlement that it violated the ESA and NEPA when it approved the Plans. In other words, the Forest Service agreed that it had a duty under the ESA to consult with the appropriate wildlife agencies, and under NEPA to prepare additional environmental review documents, before approving the Plans.

In July 2005, the district court denied the Tribe’s motion for summary judgment and ruled against the Tribe on all remaining claims. Id. at 1103. Briefing on appeal was stayed by agreement of the parties until we decided a case involving suction dredge mining in the Siskiyou National Forest in Oregon. Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545 (9th Cir. 2009). When briefing resumed, the Tribe pursued only the ESA claim, arguing that the Forest Service violated its duty to consult with the expert wildlife agencies before approving the four NOIs.

In April 2011, a divided panel of this court affirmed the district court’s denial of summary judgment, holding that the Forest Service’s decision to allow proposed mining activities to proceed pursuant to a NOI did not constitute “agency action” under the ESA. Karuk Tribe v. U.S. Forest Serv. (“Karuk II”), 640 F.3d 979 (9th Cir. 2011). We agreed to rehear the case en banc. 658 F.3d 953 (9th Cir. 2011).

Armstrong's decision

In her decision in 2005, U.S. District Judge Saundra Brown Armstrong said the "Ninth Circuit's holding in [Sierra Club v.] Penfold 857 F. 2d 1307 (1988)] makes clear that a federal agency's review of mining "notices" is not a "federal action" within the meaning of NEPA. Although this factor is also not necessarily dispositive with respect to an ESA claim, it weighs heavily in favor of a finding that the Forest Service[] does not "authorize" an NOI merely by reviewing it and, thus, the NOI review process, in and of itself, is not a "federal action."

Coverage of the decision, as well as links to the oral argument and briefs filed in the case, can be found at, which looks to be an excellent place to keep abreast of legal developments affecting Native Americans.


Mar 152012
Judge Ezra did not abuse discretion, court finds

In addition to weighing in on the constitutionality of Congress's wolf delisting rider, the Ninth Circuit yesterday opined on (and approved of) a consent decree designed to reduce the impact of Hawaii's longline fishery on loggerhead sea turtles (Turtle Island Restoration Network v. U.S. Dep't of Commerce,11-15783).

Loggerhead turtle (Caretta caretta)Photo: Marco Giuliano/ Fondazione Cetacea

Here are a few excerpts:

[I]f the Longliners’ position is carried to its logical conclusion, then any attempt by federal agencies to settle litigation involving a regulation would entail a return to the same rulemaking process by which the regulation was created—a proposition that contradicts the Supreme Court’s policy determination in another context. See Local No. 93, 478 U.S. at 524 n.13 (recognizing that a limit on the government’s ability to enter a consent decree would make it substantially more difficult to settle Title VII litigation).

The Longliners contend that the district court used the Consent Decree impermissibly to modify substantive regulatory rules. See Mt. St. Helens Mining & Recovery Ltd. P’ship v. United States, 384 F.3d 721, 728 (9th Cir. 2004) (“[T]he APA does not empower the district court to . . . order the agency to reach a particular result.”). This argument fails for the same reasons discussed above. Specifically, the Consent Decree vacates only a portion of the Final Rule and the supporting 2008 Biological Opinion and incidental take statements, thus restoring the 2004 regulations during the remand and reconsideration process. The Consent Decree leaves NMFS free on remand to fashion a new rule based on the new biological opinion without imposing any substantive requirements on its terms.

The fact that the Federal Agencies complied with the Magnuson Act’s rulemaking requirements when they issued both the 2009 Final Rule and the 2004 Regulations, see 74 Fed. Reg. 65460, 65462 (Dec. 10, 2009); 69 Fed. Reg. 40734, 40734 (July 6, 2004), and that any subsequent regulations incorporating the new biological opinion’s findings will be subject to the Magnuson Act’s rulemaking procedures further supports upholding the validity of the Consent Decree.

Notably, on September 16, 2011, while this appeal was pending, NMFS uplisted the North Pacific Ocean Distinct Population Segment of loggerhead turtles (the population segment at issue here) as endangered. On January 30, 2012, NMFS issued the biological opinion contemplated in the Consent Decree.

The longliners also had argued that the judge's finding that a return to 2004 incidental take limits would be "more protective" of turtles was clearly erroneous. In part, they contended that any increased take would be “statistically and biologically insignificant” to the loggerhead turtle populations as a whole.

But the appeals court disagreed. There is "no clear error regarding the 'more protective' finding because a reduction in the actual number of incidental take, even if statistically insignificant, is still a logical basis for the finding that turtles would be more protected."

More links

Hawaii longline fishing regs (fact sheet)

Opinion from the Ninth Circuit's site

Some recent Earthjustice press releases

Grand Canyon Uranium Mining Ban Defended by Havasupai Tribe, Conservation Coalition  (3/13/2012)

Conservation Groups Support Swinomish Tribe Battle to Protect Skagit River and Salmon  (3/7/2012)

NAS: EPA Underestimated Number of Polluted Florida Streams, Lakes, Rivers and Springs in Florida  (3/6/2012)

Mar 142012

Photo by Gary Kramer/USFWS

The Ninth Circuit Court of Appeals has denied a challenge brought by the Center for Biological Diversity and other conservation groups to a congressional rider that effectively delisted Northern Rocky Mountain gray wolves.

"A three-judge panel rejected the conservation organizations’ argument that the rider is unconstitutional because it violates the separation-of-powers doctrine," CBD said in a press release.

The panel included Circuit Judges Mary M. Schroeder, Stephen Reinhardt and Mary H. Murguia. Schroeder wrote the decision. Here is the court's analysis and conclusion:


The cornerstones of plaintiffs’ separation of powers challenge were laid in the mid-19th century when the Supreme Court decided United States v. Klein, 80 U.S. 128 (1871) and Pennsylvania v. The Wheeling and Belmont Bridge Co., 59 U.S. 421 (1855).

In Klein, the Supreme Court struck down an act of Congress that dictated the result in pending litigation. The plaintiff in Klein sued the government for the proceeds of property sold during the Civil War. The suit was filed under a statute granting such a cause of action to noncombatant confederate landowners who could show proof of loyalty to the federal government. The Supreme Court, in an earlier case, had decided that receipt of a Presidential pardon was sufficient proof of “loyalty” under this law. The Court of Claims in Klein followed that decision and awarded recovery. While the government’s appeal was pending, Congress passed a statute providing that no pardon could be admitted as proof of loyalty to the federal government and that acceptance of a pardon, under most circumstances, was conclusive evidence of disloyalty. The statute thus directed the Supreme Court and the Court of Claims to find that a claimant who had accepted a Presidential pardon was in fact disloyal and, therefore, not entitled to land sale proceeds. The newly enacted statute further directed the Supreme Court to dismiss any case, for want of jurisdiction, if the claimant had prevailed upon proof of loyalty by Presidential pardon.

In striking down the statute, the Supreme Court in Klein explained that the effect of the new law was to deny jurisdiction to the Supreme Court and Court of Claims in pending cases “solely on the application of a rule of decision, in causes pending, prescribed by Congress.” Id. at 146. This, the Court held, Congress could not do: “It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.” Id. Because Congress had “prescribe[d] a rule for the decision of a cause in a particular way,” Congress “passed the limit which separates the legislative from the judicial power,” and the provision was declared unconstitutional. Id. at 146-47.

The Court in Klein had to distinguish Wheeling Bridge. There, the Court had originally held that a bridge was an obstruction to navigation. 59 U.S. at 429. Intervening legislation, however, made the bridge a post-road for passage of the United States mail and forbade users of the river from interfering with the bridge. The Court concluded in Wheeling Bridge that this new statute had changed the earlier law that the bridge was obstructing navigation. “[A]lthough [the bridge] still may be an obstruction in fact, [it] is not so in the contemplation of law.” Id. at 430. The Court in Klein held Wheeling Bridge differed from Klein in a critically important aspect: Congress had changed the law, not told the Court that it should decide the case differently under the same law. “No arbitrary rule of decision was prescribed in [Wheeling Bridge], but the court was left to apply its ordinary rules to the new circumstances created by the act. In [Klein] no new circumstances have been created by legislation.” Klein, 80 U.S. at 146-47.

Klein, however, has remained an isolated Supreme Court application of the separation of powers doctrine to strike down a statute that dictated the result in pending litigation. This court relied on Klein in Seattle Audubon Society v. Robertson, 914 F.2d 1311 (9th Cir. 1990), rev’d, Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992) to strike down a statute enacted to affect pending environmental litigation aimed at restricting logging and protecting the endangered spotted owl. While the litigation was still ongoing, and after the environmental groups had won a preliminary injunction on the ground that there had been inadequate study of the logging’s environmental effects, Congress intervened and passed section 318 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Pub. L. No. 101-121, 103 Stat. 701, 745-50 (1989) (“section 318”). Section 318 allowed logging in parts of the disputed spotted owl habitat. Section 318(b)(6)(A) specified how the environmental concerns in the pending litigation were to be satisfied and barred judicial review. It provided:

Without passing on the legal and factual adequacy of the Final Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide-Spotted Owl Guidelines and the accompanying Record of Decision issued by the Forest Service on December 12, 1988 or the December 22, 1987 agreement between the Bureau of Land Management and the Oregon Department of Fish and Wildlife for management of the spotted owl, the Congress hereby determines and directs that management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR. The guidelines adopted by subsections (b)(3) and (b)(5) of this section shall not be subject to judicial review by any court of the United States.

Our court held that section 318 violated the rule in Klein in that it directed the court “to reach a specific result and make certain factual findings under existing law in connection with two cases pending in federal court.” 914 F.2d at 1316. We noted that, although subsections (b)(2), (b)(3), and (b)(5) added additional requirements, the statute did not by its plain language repeal or amend the environmental laws underlying the litigation. Id.

The Supreme Court, however, told us the error of our ways. Robertson, 503 U.S. 429. The Court held that section 318 amended the law because subsections (b)(3) and (b)(5) replaced the legal standards underlying the old growth forest litigation. Id. at 437. The Court held that the rule of Tennessee Valley Authority, requiring repeal of a law to be explicit, did not apply because section 318 did not repeal, but “amended” or changed the environmental laws applicable to a specific case and therefore did not violate the constitutional prerogative of the courts. Id. at 440 (citing TVA v. Hill, 437 U.S. 153, 190 (1978)).

    [1] Here, as in Robertson, Congress has directed an agency to take particular action challenged in pending litigation by changing the law applicable to that case. In Robertson, Congress replaced the environmental laws applicable to the spotted owl litigation with new provisions and effectively directed the agency to comply with the new provisions. Here, Congress has directed the agency to issue the rule “without regard to any other provision of statute or regulation that applies to issuance of such rule.” This court has held that, when Congress so directs an agency action, with similar language, Congress has amended the law. Consejo de Desarollo Economico, Mexicali v. United States, 482 F.3d 1157, 1169 (9th Cir. 2007) (“[W]hen Congress has directed immediate implementation ‘notwithstanding any other provision of law,’ we have construed the legislation to exempt the affected project from the reach of environmental statutes which would delay implementation.”). In Consejo, Congress directed the immediate commencement of a project to line a canal “notwithstanding any other provision of law.” We relied upon our earlier decision in Stop H-3 Ass’n v. Dole, 870 F.2d 1419 (9th Cir. 1989) which upheld a statute that exempted a project from environmental laws. We said in Consejo that, like the legislation underpinning Stop H-3, “the 2006 Act does not direct us to make any findings or to make any particular application of law to facts. Rather, the legislation changes the substantive law governing pre-conditions to commencement of the Lining Project. As such, it does not violate the constitutional separation of powers.” Id. at 1170; see also Apache Survival Coal. v. United States, 21 F.3d 895, 902 (9th Cir. 1994) (“[L]ike in Robertson, the statute substituted preexisting legal standards that governed a particular project, in this case ESA and NEPA, with the new standards . . . .”). We must reach the same result here.

   [2] Appellants’ arguments that Section 1713 is a repeal rather than an amendment must fail for a similar reason. Congress did not repeal any part of the ESA. Rather, Congress effectively provided that no statute, and this must include the ESA, would apply to the 2009 rule. Congress thus amended the law applicable to the agency action.

Appellants also contend that the meaning and effect of the 2009 Rule as reissued under Section 1713 are unclear, and that ambiguity prevents the court from finding an amendment. We cannot agree. The meaning and intended effect of Section 1713 are perfectly clear. The partial delisting was to take effect within 60 days, with no court review or interference.

   [3] Section 1713’s bar to judicial review does not remove it from the broad safe harbor recognized in Robertson. The bar has the same purpose and effect as the statutory language in Consejo that directed agency action “without delay” and “notwithstanding any other provision of law.” See 482 F.3d at 1168-69. As we stated in Consejo, particular language “is not dispositive.” Id. There are no “magic words” that can sweep aside constitutional concerns. See id. Here, as in Consejo, however, it is clear that Congress intended to amend the law so as to avoid the usual course of administrative proceedings that include judicial review; otherwise, “it would have been unnecessary for Congress to act at all.” Id. at 1169. The D.C. Circuit has reached the same conclusion when dealing with a statute that also stated, expressly, that an agency action “shall not be subject to judicial review.” Nat’l Coal. to Save Our Mall v. Norton, 269 F.3d 1092, 1095 (D.C. Cir. 2001). In National Coalition, the court held that the preclusion of review tracked language elsewhere in the statute that the project at issue “be ‘constructed expeditiously’ ” and, therefore, “demonstrate[d] Congress’s clear intent to go ahead” with the project “regardless of the . . . relation to pre-existing general legislation.” Id. We agree with the D.C. Circuit that preclusion of judicial review indicates Congressional intent to change the law applicable to the project.

Section 1713 could be read to bar judicial review of even its own constitutionality. Such a construction would, of course, raise serious questions concerning the constitutionality of Section 1713. See Webster v. Doe, 486 U.S. 592, 603 (1988); Johnson v. Robison, 415 U.S. 361, 366 (1974). The government has disavowed this interpretation before the district court and this court. We reject any such interpretation.

   [4] Finally, we observe that while Section 1713 bars judicial review of the reissuance of the 2009 Rule, the 2009 Rule does provide standards by which the agency is to evaluate the continuing viability of wolves in Montana and Idaho. See, e.g., 74 Fed. Reg. 15,123 at 15,186. Review of any regulations issued pursuant to the Rule or of agency compliance with the standards, does not appear to be restricted. Section 1713 itself, however, ordering the Rule to issue without regard to the laws that might otherwise apply, is entitled to be enforced.


For the reasons given above, the decision of the district court is AFFIRMED and the motion for an injunction pending appeal is DENIED as moot.

Nov 222011

The Ninth Circuit has partially affirmed a lower court ruling that found the Fish and Wildlife Service's delisting of Yellowstone grizzly bears was unlawful (Greater Yellowstone Coalition v.  Servheen, 09-36100).

Ursus arctos horribilis (credit: USFWS)

Specifically, FWS did not "articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly," the court said.

"[O]f critical importance ..., the [service's delisting] rule repeatedly acknowledges a  'well-documented association' between reduced whitebark pine seed abundance and increased grizzly mortality," the court said.

In a news release issued the day after the decision, FWS said it would evaluate the availability of whitebark pine as a food source.

"Based on the evidence of a relationship between reduced whitebark pine seed availability, increased grizzly mortality, and reduced grizzly reproduction, it is logical to conclude that an overall decline in the region’s whitebark pine population would have a negative effect on its grizzly bear population," the court said. "The service advances several rationales in the rule to support its conclusion that food shortages caused by whitebark pine declines are nonetheless 'not a threat' to the Yellowstone grizzly." However, the court found "all of [those rationales] lacking."

Circuit Judge Sidney R. Thomas partially concurred with his fellow judges, but also partially dissented, concluding that FWS relied on voluntary measures that may or may not be implemented. (See below for an excerpt.) The two judges in the majority were Circuit Judges Susan P. Graber and Richard C. Tallman. Tallman wrote the opinion.

Here are a couple of paragraphs from the beginning of the opinion that summarize the issues and the court's conclusion:

The service’s delisting decision, the subject of this appeal, raises a host of scientific, political, and philosophical questions regarding the complex relationship between grizzlies and people in the Yellowstone region. We emphasize at the outset that those are not the questions that we grapple with here. We, as judges, do not purport to resolve scientific uncertainties or ascertain policy preferences. We address only those issues we are expressly called upon to decide pertaining to the legality of the service’s delisting decision: first, whether the Service rationally supported its conclusion that a projected decline in whitebark pine, a key food source for the bears, does not threaten the Yellowstone grizzly population; and second, whether the service rationally supported its conclusion that adequate regulatory mechanisms are in place to maintain a recovered Yellowstone grizzly population without the ESA’s staunch protections.

As to the first issue, we affirm the district court’s ruling that the service failed to articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly, given the lack of data indicating grizzly population stability in the face of such declines, and the substantial data indicating a direct correlation between whitebark pine seed availability and grizzly survival and reproduction. As to the second issue, we reverse the district court and hold that the service’s determination regarding the adequacy of existing regulatory mechanisms was reasonable.

In his dissent, Circuit Judge Thomas said he agreed with the majority's conclusion that FWS did not "articulate a rational connection between the record data and its determination that whitebark pine declines were not likely to threaten the Yellowstone grizzly bear." But breaking with the majority, Thomas also said he would have agreed with U.S. District Judge Donald Molloy "that the agency also erred in concluding the Yellowstone grizzly is not threatened by  'the inadequacy of regulatory mechanisms,' " specifically the “Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area.”

The service’s reliance on voluntary action is contrary to law. The phrase  “regulatory mechanism” plainly does not encompass voluntary, unenforceable measures such as the Strategy and many of its components. Or. Natural Res. Council v. Daley, 6 F. Supp. 2d 1139, 1155 (D. Or. 1998) (interpreting 16 U.S.C. § 1533(a)(1)(D) to mean that “the [agency] must base its decision on current, enforceable measures”). The service therefore erred by considering the strategy’s voluntary and unenforceable components in its Factor D determination. Good intentions are not rules of law. Unenforceable aspirational goals are not regulatory mechanisms. Promises to monitor, review, and convene committees do not satisfy the statutory requirement. See Norton v. So. Utah Wilderness Alliance, 542 U.S. 55, 72 (2004) (noting that monitoring is not a legally binding commitment under the APA). Thus, the rule must be vacated for non-compliance with 16 U.S.C. § 1533(a)(1)(D).  See State Farm, 463 U.S. at 43 (“[A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider . . . .”).


Grizzly bear species profile from FWS

FWS FR notice reinstating threatened status for Greater Yellowstone grizzlies (3/26/10)