Carpenters Industrial Council v. Kempthorne

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
CARPENTERS INDUSTRIAL )
COUNCIL, et al., )
)
Plaintiffs, )
)
and )
)
SEATTLE AUDUBON SOCIETY, )
et al., )
)
Plaintiff-Intervenors, )
) Civil Action No. 08-1409(EGS)
v. )
)
KEN SALAZAR, Secretary of the )
the Interior, and )
U.S. FISH AND WILDLIFE SERVICE, )
)
Defendants. )
)

MEMORANDUM OPINION

This case arises from a critical habitat designation and

recovery plan that defendant U.S. Fish and Wildlife Service (the

“FWS”) promulgated with respect to the threatened northern

spotted owl in 2008. Plaintiffs Carpenters Industrial Council,

American Forest Resource Council, Swanson Group, Inc., Rough &

Ready Lumber Co., Perpetua Forests Company, and Seneca Jones

Timber Company (collectively, the “CIC plaintiffs”) contend that

the FWS’s final rule on the Revised Designation of Critical

Habitat for the Northern Spotted Owl, 73 Fed. Reg. 47326 (the

“2008 Critical Habitat Designation”), was arbitrary and

capricious and rendered in violation of the National
Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., the

Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., and

the Administrative Procedure Act (“APA”), 5 U.S.C. § 553.

Plaintiff-intervenors Seattle Audubon Society, National Center

for Conservation Science and Policy, Oregon Wild, Klamath-

Siskiyou Wildlands Center, Wilderness Society, Sierra Club,

Center for Biological Diversity, Environmental Protection

Information Center, Conservation Northwest, Audubon Society of

Portland, National Audubon Society, Cascadia Wildlands Project,

Klamath Forest Alliance, Conservation Congress, American Bird

Conservancy, Umpqua Watersheds, and Gifford-Pinchot Task Force

(collectively, the “Seattle Audubon plaintiff-intervenors”),

challenge the federal defendants’ 2008 Critical Habitat

Designation as well as the 2008 Recovery Plan for the Northern

Spotted Owl (the “2008 Recovery Plan”) pursuant to the ESA and

the APA.

Pending before the Court is the federal defendants’ motion

for voluntary remand and vacatur. In their motion, the federal

defendants confess legal error as to the 2008 Critical Habitat

Designation and the 2008 Recovery Plan, and ask the Court to:

(i) remand and vacate the 2008 Critical Habitat Designation;

(ii) remand the 2008 Recovery Plan; and (iii) order the FWS,

after issuance of a revised recovery plan, to evaluate whether

revision of the 1992 Critical Habitat Designation is appropriate,

2
and if so, to complete rulemaking for a new critical habitat

designation after issuance of a revised recovery plan. Fed.

Defs.’ Mot. at 1-2. The Seattle Audubon plaintiff-intervenors

consent to the requested relief and ask the Court to enter the

proposed order submitted by the federal defendants, see generally

Seattle Audubon Mot.,1 while the CIC plaintiffs oppose the

requested relief and urge the Court to enter a briefing schedule

on cross-motions for summary judgment, see CIC Opp’n Br. at 32.

Upon consideration of the motions, the response, the replies and

sur-replies thereto, the applicable law, the parties’ arguments

at the January 20, 2010 hearing, and all post-argument briefs,

the Court GRANTS IN PART AND DENIES IN PART the federal

defendants’ motion for remand and vacatur. As discussed below,

the Court GRANTS the federal defendants’ request to remand the

2008 Critical Habitat Designation and 2008 Recovery Plan, and

DENIES the federal defendants’ request to vacate the 2008

Critical Habitat Designation.

1
Also pending before the Court is the motion of the
Seattle Audubon plaintiff-intervenors for the entry of a proposed
order with respect to the federal defendants’ motion for
voluntary remand and vacatur. See Docket No. 43. Specifically,
plaintiff-intervenors ask the Court to enter the proposed order
filed with the federal defendants’ motion. For the reasons
discussed herein, the Court declines to enter the proposed order.
Accordingly, Seattle Audubon’s motion for entry of the proposed
order is DENIED.

3
I. BACKGROUND

The northern spotted owl is a medium-sized nocturnal bird

that inhabits old-growth forests of western North America,

including parts of northern California, the Pacific Northwest,

and British Columbia. CIC Am. Compl. ¶ 15; Seattle Audubon

Compl. ¶ 28. Due to concerns regarding the widespread loss and

modification of the owls’ habitat, on June 26, 1990, the FWS

published a final rule listing the northern spotted owl as a

“threatened species” under the ESA. CIC Am. Compl. ¶ 16 (citing

55 Fed. Reg. 26114); Seattle Audubon Compl. ¶ 34.2 The final

listing rule indicated that the northern spotted owl is

threatened throughout its range “‘by the loss and adverse

modification of suitable habitat as the result of timber

harvesting and exacerbated by catastrophic events such as fire,

volcanic eruptions, and wind storms.’” Seattle Audubon Compl.

¶ 31 (quoting 55 Fed. Reg. 26151). Consequently, on January 15,

1992, the FWS designated 6,887,000 acres in California, Oregon,

and Washington as critical habitat for the northern spotted owl

2
A threatened species is one 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). An endangered species is one that is “in danger of
extinction throughout all or a significant portion of its range
. . . .” Id. § 1532(6).

4
(the “1992 Critical Habitat Designation”). CIC Am. Compl. ¶ 20;

Seattle Audubon Compl. ¶ 37.3

While no recovery plan was immediately developed for the

owl, on April 13, 1994, the Secretary of Agriculture and the

Secretary of Interior developed a land management plan for the

owl referred to as the “Northwest Forest Plan.” CIC Am. Compl.

¶ 22; Seattle Audubon Compl. ¶¶ 38-39. After determining that

the Northwest Forest Plan provided a sound framework for the

recovery of the owl, the FWS suspended the northern spotted owl

recovery plan preparation process. See also Seattle Audubon

Compl. ¶ 39 (explaining that the Northwest Forest Plan did not

satisfy the ESA’s criteria for a recovery plan).4

3
The ESA defines critical habitat as: (i) the specific
areas within the geographical area occupied by the species, at
the time it is listed in accordance with the provisions of
section 4 of this Act [15 U.S.C. § 1533], on which are found
those physical or biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection; and (ii) specific areas
outside the geographical area occupied by the species at the time
it is listed in accordance with the provisions of section 4 of
this Act [15 U.S.C. § 1533], upon a determination by the
Secretary that such areas are essential for the conservation of
the species. 16 U.S.C. § 1532(5)(A).
4
Once a species is listed as threatened or endangered,
the Secretary is directed to develop and implement “recovery
plans” for the conservation and survival of the species. 16
U.S.C. § 1533(f)(1). A recovery plan must contain: “(i) a
description of such site-specific management actions as may be
necessary to achieve the plan’s goal for the conservation and
survival of the species; (ii) objective, measurable criteria
which, when met, would result in a determination, in accordance
with the provisions of this section, that the species be removed
from the list; and (iii) estimates of the time required and the

5
 In May 2006 - nearly sixteen years after the northern

spotted owl was listed as a threatened species - the FWS

assembled a recovery team (the “Recovery Team”) which began to

devise a recovery plan for the owl. Seattle Audubon Compl.

¶ 45.5 In September 2006, the Recovery Team forwarded its draft

recovery plan to FWS’s Washington, D.C. headquarters for review

by an oversight committee (the “Washington Oversight Committee”).

Seattle Audubon Compl. ¶ 47. One member of the Washington

Oversight Committee was Former Deputy Assistant Secretary Julie

MacDonald (“Deputy Assistant Secretary MacDonald”). Seattle

Audubon Compl. ¶ 47. The Washington Oversight Committee informed

the Recovery Team that it was concerned that the draft recovery

plan was based on the Northwest Forest Plan and purportedly

advised the team to (i) “put less focus on habitat preservation

and to de-link the recovery plan from the Northwest Forest Plan”;

(ii) “include a second alternative that did not rely on fixed

habitat reserves”; and (iii) “minimize the threat to northern

spotted owls from the loss of habitat and emphasize the threat

cost to carry out those measures needed to achieve the plan’s
goal and to achieve intermediate steps toward that goal.” Id.
5
The decision to create a recovery plan was spurred, at
least in part, by a settlement agreement that the FWS entered
into with the CIC plaintiffs in an unrelated lawsuit in 2003,
whereby the FWS agreed to complete rulemaking to revise the
critical habitat designation of the northern spotted owl by July
30, 2008. See CIC Opp’n Br. at 7-8 (explaining that the 2008
Critical Habitat Designation fulfilled the Secretary of the
Interior’s obligations under the 2003 settlement agreement).

6
from barred owls.” Seattle Audubon Compl. ¶ 48; see also Seattle

Audubon Ex. A, Docket No. 45-2, Investigative Report: The

Endangered Species Act and the Conflict between Science and

Policy at 27-28.

Based on the guidance issued by the Washington Oversight

Committee, significant revisions were made to the initial draft

recovery plan. A revised draft recovery plan was published on

April 26, 2007 (the “2007 Draft Recovery Plan”), Seattle Audubon

Compl. ¶ 52, and the final recovery plan for the owls was issued

on May 13, 2008 (the “2008 Recovery Plan”), Seattle Audubon

Compl. ¶ 58.

Following issuance of the 2008 Recovery Plan, on August 13,

2008, the 1992 Critical Habitat Designation was replaced by the

2008 Critical Habitat Designation. Seattle Audubon Compl. ¶ 68.

The 2008 Critical Habitat Designation, which was based on both

the 2007 Draft Recovery Plan and the final 2008 Recovery Plan,

see 73 Fed. Reg. 47,328,6 reduced designated northern spotted owl

habitat by approximately 1,574,000 acres, Seattle Audubon Compl.

¶ 68.

6
See, e.g., 73 Fed. Reg. 47328 (“The [Managed Owl
Conservation Areas] network identified in the 2008 Recovery Plan
for the Northern Spotted Owl, and the [Managed Owl Conservation
Areas] identified for the eastside provinces under Option 1 of
the 2007 Draft Recovery Plan for the Northern Spotted Owl, serve
as the basis for this revised critical habitat designation.”).

7
 Displeased with the 2008 Critical Habitat Designation, on

August 13, 2008, the CIC plaintiffs filed the instant action

alleging that the 2008 Critical Habitat Designation violates

NEPA, ESA, and the APA. The CIC plaintiffs seek declaratory and

injunctive relief, and ask the Court for “a limited remand

without vacatur [of the 2008 Critical Habitat Designation] to

address the specific legal inadequacies presented in their

complaint.” CIC Opp’n Br. at 8.

On November 14, 2008, fourteen environmental conservation

groups sought leave to intervene in the action, which this Court

granted on February 18, 2009. Pursuant to the ESA and the APA,

the Seattle Audubon plaintiff-intervenors challenge the FWS’s

issuance of the 2008 Critical Habitat Designation as well as the

2008 Recovery Plan. Plaintiff-intervenors seek declaratory and

injunctive relief, and ask the Court to remand the 2008 Critical

Habitat Designation and the 2008 Recovery Plan and reinstate the

original 1992 Critical Habitat Designation.

On December 22, 2008, the federal defendants notified the

Court that the Inspector General of the Department of Interior

had issued an Investigative Report entitled “The Endangered

Species Act and the Conflict Between Science and Policy”

(hereinafter, the “IG’s Report”), which examined the influence of

Deputy Assistant Secretary MacDonald on twenty ESA decisions and

actions, including the recovery plan for the northern spotted

8
owl. See Notice, Docket No. 22. The IG’s Report concludes that

Deputy Assistant Secretary MacDonald, acting alone or in concert

with other Department officials, took actions that “potentially

jeopardized” the decisional process for the recovery plan of the

owl. See generally Seattle Audubon Ex. A, Docket No. 45-2

(Letter from Inspector General Earl E. Devaney to former

Secretary of the Interior Dirk A. Kempthorne, dated Dec. 15,

2008, and the attached IG’s Report). In their notice, the

federal defendants advised the Court that it needed to review the

IG’s Report and the administrative record for the 2008 Recovery

Plan and the 2008 Critical Habitat Designation “to determine

whether to continue this litigation, amend their litigation

posture, or pursue further administrative action with respect to

this final recovery plan.” Notice, Docket No. 22 at 2. On March

31, 2009, the federal defendants informed the court that it had

concluded its review, and determined that it was appropriate to

seek a remand of the 2008 Recovery Plan and 2008 Critical Habitat

Designation. See Notice, Docket No. 35.

Accordingly, on July 30, 2009, the federal defendants filed

their motion for voluntary remand and vacatur. The Seattle

Audubon plaintiffs then filed a motion in support of the federal

defendants’ request for remand and vacatur, while the CIC

plaintiffs filed an opposition brief. The federal defendants’

motion is now ripe for determination by the Court.

9
II. ANALYSIS

In their motion, the federal defendants “confess[] legal

error as to the 2008 critical habitat designation and recovery

plan,” and ask the Court to: (i) remand and vacate the 2008

Critical Habitat Designation, thereby restoring the 1992 Critical

Habitat Designation for the owl; (ii) remand the 2008 Recovery

Plan and order the FWS to issue a revised recovery plan within

nine months of the Court’s remand order; and (iii) order the FWS,

after issuance of the revised recovery plan, to evaluate whether

revision of the 1992 Critical Habitat Designation is appropriate,

and if so, to complete rulemaking for a new critical habitat

designation with 24 months of the issuance of the recovery plan.

Fed. Defs.’ Mot. at 1-2. As discussed above, the Seattle Audubon

plaintiff-intervenors consent to the requested relief, while the

CIC plaintiffs oppose it. The Court will explore the federal

defendants’ requests in turn.

A. Voluntary Remand & Vacatur of the 2008 Critical Habitat
Designation

1. Voluntary Remand

The first issue to be resolved is whether the Court has the

authority to remand the 2008 Critical Habitat Designation to the

FWS, and if it does, whether voluntary remand is appropriate.

Federal defendants and plaintiff-intervenors argue that the Court

may exercise its equitable power to order voluntary remand

10
because the federal defendants admit that “the recovery plan and

critical habitat revision for the northern spotted owl are

legally erroneous”; in light of this admission, these parties

argue that “further proceedings on the claims presented by CIC

and Seattle Audubon would simply waste the resources of the Court

and the parties.” Fed Defs.’ Mot. at 7-8; Seattle Audubon Mot.

at 6. The CIC plaintiffs, by contrast, contend that the Court

lacks the authority to remand and vacate the 2008 Critical

Habitat Designation without a final determination of the merits,

see CIC Opp’n Br. at 10-16, and that even if it does, remand is

unwarranted, see CIC Opp’n Br. at 17-22. For the reasons

discussed below, the Court concludes that it has the authority to

remand the 2008 Critical Habitat Designation, and that voluntary

remand is, in fact, appropriate in this case.

i. The Court’s Authority to Grant Voluntary
Remand

As a threshold matter, courts have long recognized the

propriety of voluntarily remanding a challenged agency action

without judicial consideration of the merits upon an admission of

agency error. Specifically, courts have recognized that

voluntary remand is generally appropriate (i) when new evidence

becomes available after an agency’s original decision was

rendered, see, e.g., Ethyl Corp. v. Browner, 989 F.2d 522, 523

(D.C. Cir. 1993) (granting an agency’s motion for voluntary

remand where the agency admitted that new evidence developed that

11
undermined the stated basis for its action), or (ii) where

“intervening events outside of the agency’s control” may affect

the validity of an agency’s actions. SKF USA Inc. v. United

States, 254 F.3d 1022, 1028 (Fed. Cir. 2001). Even in the

absence of new evidence or an intervening event, however, courts

retain the discretion to remand an agency decision when an agency

has raised “substantial and legitimate” concerns in support of

remand. See Sierra Club v. Antwerp, 560 F. Supp. 2d 21, 23

(D.D.C. 2008) (citing cases). Granting voluntary remand in such

circumstances is appropriate, as it preserves scarce judicial

resources by allowing agencies “to cure their own mistakes.”

Ethyl Corp., 989 F.2d at 524.

Indeed, at least three courts have granted the FWS’s

requests for voluntary remand where new evidence or a change in

the law rendered the agency’s critical habitat designations

suspect. See Alliance for the Wild Rockies, Inc. v. Allen, No.

04-1813, 2009 WL 2015407 (D. Or. July 1, 2009) (granting the

FWS’s request for the voluntary remand of its critical habitat

designation for the bull trout in light of new evidence;

explaining that “a remand without expending further judicial

resources to consider the merits is appropriate”); Natural

Resources Defense Council v. U.S. Dep’t of Interior, 275 F. Supp.

2d 1136, 1141 (C.D. Cal. 2002) (granting the FWS’s request for

voluntary remand of its critical habitat designations for the

12
Coastal California Gnatcatcher and the San Diego Fairy Shrimp in

light of a change in case law; explaining that voluntary remand

“promotes judicial economy by allowing the relevant agency to

reconsider and rectify an erroneous decision without further

expenditure of judicial resources”); see also Coal. of

Arizona/New Mexico Counties for Stable Econ. Growth v. Salazar,

No. 07-876, slip op. at 1, 5 (D.N.M. May 4, 2009) (granting the

parties’ joint request for voluntary remand of the FWS’s critical

habitat designations for the Spikedance and the Loach Minnow in

light of new evidence; explaining that “federal courts ‘commonly’

grant agency motions for voluntary remand”).

Therefore, consistent with the case law discussed above, the

Court concludes that it has the equitable power to grant the

federal defendants’ request for voluntary remand.7

7
The cases cited by the CIC plaintiffs do not persuade
the Court to the contrary. In support of their argument that
voluntary remand is impermissible, the CIC plaintiffs rely
principally on Home Builders Association of Northern California
v. U.S. Fish & Wildlife Service, 268 F. Supp. 2d 1197(E.D. Cal.
2003) and National Parks Conservation Association v. Salazar, No.
09-115, 2009 WL 2497393 (D.D.C. Aug. 12, 2009). While both the
Home Builders court and the National Parks court refused to grant
agency requests for vacatur and remand, the Court finds these
cases distinguishable. First, neither case involved later-
acquired information that raised substantial and legitimate
concerns regarding the agency’s decision. See Nat’l Parks
Conservation Ass’n, 2009 WL 2497393, at *2 (explaining that
remand and vacatur was inappropriate because “the Federal
defendants point to no new evidence”); Home Builders Assoc., 268
F. Supp. 2d at 1205 (“‘[T]his is not a case in which later-
acquired information has caused the [FWS] to rethink its
decision. Rather, the [FWS]’ only stated reason for seeking this
remand is the [FWS]’ own conclusion that its decision does not

13
 ii. The Appropriateness of Voluntary Remand

Having determined that it has the authority to grant

voluntary remand, the Court must now determine whether the FWS’s

request is warranted. The federal defendants and the Seattle

Audubon plaintiff-intervenors argue that voluntary remand is

appropriate in light of the IG’s Report, which found that the

decisional process for the recovery plan for the northern spotted

owl was “potentially jeopardized” by the actions of Deputy

Assistant Secretary MacDonald. The federal defendants explain

that “[r]econsideration here would allow the Service to remove

comply with a later-issued decision by the Tenth Circuit. . . .
[T]he Court finds that this assumption is faulty, for the obvious
reason that this court is not within the Tenth Circuit.’”
(quoting Mem. Op. & Order dated July 2, 2002)). In this case, by
contrast, the federal defendants acquired new information – the
IG’s Report – which found that the FWS’s recovery plan and
critical habitat designation for the owl were “potentially
jeopardized” by the actions of Deputy Assistant Secretary
MacDonald. Second, neither court analyzed its authority to
remand the rule without granting the agency’s request for
vacatur. See Nat’l Parks Conservation Ass’n, 2009 WL 2497393, at
*2 (emphasizing that the federal defendants “ask the Court not
only to remand the case, but to vacate the [agency’s rule]”);
Home Builders Assoc., No. 01-5722, slip op. at 13 (E.D. Cal. July
2, 2002) (finding that “the court lack[ed] authority to vacate
the existing critical habitat rule absent a decision on the
merits” (emphasis added)). But see Home Builders Assoc., No. 01-
5722, slip op. at 3 (E.D. Cal. Nov. 6, 2002) (summarily
concluding, without analysis, that it lacked authority to grant
the FWS’s request for voluntary remand). While these cases
provide compelling authority regarding the impropriety of
judicial vacatur without a determination of the merits, they do
not persuade the Court that it lacks the authority to grant a
request for voluntary remand given the extraordinary facts of
this case.

14
any question of potential taint from Ms. MacDonald’s interference

and ensure that the owl’s survival and recovery are supported by

scientifically valid measures.” Fed. Defs.’ Reply Br. at 9. The

CIC plaintiffs reject this contention, arguing that “[t]he Court

must independently determine whether legal error occurred, and

may not simply accept confession of error by the government,” and

that, in any event, “[t]he record does not establish any legal

error that permits remanding the 2008 critical habitat rule to

the FWS.” CIC Opp’n Br. at 17, 18. Finding the federal

defendants’ request for voluntary remand consistent with the case

law discussed above, the Court will explore the CIC plaintiffs’

objections in turn.

With regards to the CIC plaintiffs’ first objection, see CIC

Opp’n Br. at 17-18, the Court is not persuaded that it must

independently determine whether legal error occurred in order to

grant a request for voluntary remand. While it is undoubtedly

true that “[a] court is ‘not obligated to accept the government’s

confession of error, particularly when there is reason to doubt

whether the government’s position is correct,’” CIC Opp’n Br. at

17, the CIC plaintiffs’ contention that the Court must conduct an

independent inquiry to determine that wrongdoing occurred in

order to remand an agency decision for reconsideration is

unpersuasive. See, e.g., Sierra Club, 560 F. Supp. 2d at 24-25

(remanding to allow the government agency to address its

15
“potential mistake”); cf. Ethyl Corp., 989 F.2d at 524

(discussing “the tradition of allowing agencies to reconsider

their actions where events pending appeal draw their decisions in

question” (emphasis added)).

Moreover, the Court also disagrees with the CIC plaintiffs’

assertion that the record lacks evidentiary support for the

federal defendants’ confession of legal error. Indeed, to the

contrary, the Court finds that the federal defendants submitted

compelling evidence in support of their claim of legal error and

request for remand: the IG’s Report, which was completed before

the change in administrations. See Fed. Defs.’ Reply Br. at 8-

12. Given the current posture of this case, the Court finds no

reason to question the Inspector General’s determination that

Deputy Assistant Secretary MacDonald’s “zeal to advance her

agenda . . . [and] heavy-handedness . . . potentially

jeopardized” the FWS’s 2008 rulemaking as to the northern spotted

owl. See Seattle Audubon Ex. A, Docket No. 45-2 (Letter from

Inspector General Earl E. Devaney to former Secretary of the

Interior Dirk A. Kempthorne, dated Dec. 15, 2008).8

8
While the CIC plaintiffs warn that “[t]he court must be
especially vigilant not to allow the ‘pretext of correction,’ to
mask the desire of a new administration . . . to reopen a closed
proceeding in order to substitute its own policies for those of
its predecessors,” CIC Opp’n Br. at 17-18, the Court finds this
argument unpersuasive in light of the fact that the prior
administration’s investigation revealed that Deputy Assistant
Secretary MacDonald had potentially jeopardized the northern
spotted owls’ recovery plan.

16
 Therefore, in view of the federal defendants’ later-acquired

information regarding the actions of Deputy Assistant Secretary

MacDonald, which raise “substantial and legitimate concerns”

about the rule-making process for the northern spotted owl, the

Court concludes that the FWS’s request for voluntary remand is

well justified. See also, e.g., Alliance for the Wild Rockies,

Inc., 2009 WL 2015407, at *2 (granting the FWS’s request for the

voluntary remand of a critical habitat designation in light of

the IG’s Report on Deputy Assistant Secretary MacDonald); Coal.

of Arizona/New Mexico Counties, No. 07-876, slip op. at 5 (same).

Voluntary remand will also preserve this Court’s scarce judicial

resources by providing the federal defendants’ the opportunity to

“cure their own mistakes.” Ethyl Corp., 989 F.2d at 524; see,

e.g., Nat’l Res. Def. Council, 275 F. Supp. 2d at 1141

(“Voluntary remand also promotes judicial economy by allowing the

relevant agency to reconsider and rectify an erroneous decision

without further expenditure of judicial resources.”); Sierra

Club, 560 F. Supp. 2d at 24-25 (“Remand in this case will serve

the interest of allowing the [government] to cure its own

potential mistake rather than needlessly wasting the Court’s and

the parties’ resources.”). Accordingly, the federal defendants’

request for voluntary remand is hereby GRANTED consistent with

the terms set forth herein. Upon submission of a joint timetable

to the Court regarding the length of remand, see infra Section

17
II.C, and the Court’s approval thereof, the 2008 Critical Habitat

Designation shall be remanded to the FWS for further

consideration and evaluation.

2. Vacatur

Having concluded that the 2008 Critical Habitat Designation

should be remanded for reconsideration, the Court must now

determine whether it has the authority to vacate the 2008

Critical Habitat Designation, thereby reinstating the preceding

1992 Critical Habitat Designation for the owl, and if so, whether

vacatur is appropriate. The federal defendants argue that in

light of their confession of “legal error” the 2008 Critical

Habitat Designation should be vacated, explaining that “‘[t]he

usual remedy for a procedural violation of the APA is to set the

regulation aside.’” Fed. Defs.’ Mot. at 10 (quoting Endangered

Species Comm. of the Building Ass’n v. Babbitt, 852 F. Supp. 32,

41 (D.D.C. 1994)). The federal defendants and Seattle Audubon

plaintiff-intervenors also argue that vacatur is consistent with

the purposes of the ESA, as it would permit the prior, more

expansive 1992 Critical Habitat Designation to be reinstated for

the owl. See, e.g., Fed. Defs.’ Mot. at 11-12. The CIC

plaintiffs counter that granting vacatur based solely upon

defendants’ confession of error would allow the federal

defendants to circumvent the APA, by effectively authorizing the

repeal of an agency rule without public notice and comment or

18
judicial consideration of the merits. CIC Opp’n Br. at 14-15.

The CIC plaintiffs also argue, among other things, that vacatur

of the 2008 Critical Habitat Designation would be inequitable as

it would rescind the settlement agreement that the Interior

Department entered into with the CIC plaintiffs in 2003. See CIC

Opp’n Br. at 24-26; see also infra n.5. As explained below, the

Court concludes that it lacks the authority to vacate the 2008

Critical Habitat Designation at this stage of the litigation.

i. The Court’s Authority to Vacate the 2008
Critical Habitat Designation Without a
Determination of the Merits

The federal defendants and the Seattle Audubon plaintiff-

intervenors argue that the Court has the authority to vacate the

2008 Critical Habitat Designation without making a determination

of the merits as a result of the federal defendants’ confession

of legal error. See Fed. Defs.’ Mot. at 11-13; Fed. Defs.’ Reply

Br. at 18-23; see also Seattle Audubon Post-Argument Br. at 4

(“Here, by itself, the federal defendants’ confession of legal

error is sufficient to justify vacating the 2008 critical habitat

revision under 5 U.S.C. § 706(2).”). Although two courts have

agreed with this position and exercised their equitable power to

summarily vacate critical habitat designations, see Coal. of

Arizona/New Mexico Counties for Stable Econ. Growth v. Salazar,

No. 07-876, slip op. at 5 (D.N.M. May 4, 2009); Natural Res. Def.

Council, 275 F. Supp. 2d at 1143, this Court is not persuaded

19
that it has the authority to order vacatur of the 2008 Critical

Habitat Designation without an independent determination that the

FWS’s action was not in accordance with the law. See generally 5

U.S.C. § 706(2) (directing a reviewing court to hold unlawful and

set aside agency action, findings, and conclusions that it finds

to be arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law). To summarily grant the federal

defendants’ request for vacatur “would allow the Federal

defendants to do what they cannot do under the APA, repeal a rule

without public notice and comment, without judicial consideration

of the merits.” Nat’l Parks Conservation Ass’n, 2009 WL 2497393,

at *3. The Court, therefore, concludes that it lacks the

authority to grant the federal defendants’ request for vacatur

without a determination of the merits.9

9
As an alternative argument, the federal defendants and
the Seattle Audubon plaintiff-intervenors ask the Court to
construe the federal defendants’ proposed order as a consent
decree, arguing that vacatur of a critical habitat designation
without a determination of the merits is appropriate pursuant to
a consent decree. See Seattle Audubon Reply Br. at 14; see also
Seattle Audubon’s Post-Argument Br. at 3 (explaining that
“without even reaching the merits, this Court has the power to
approve settlement agreements that are fair, adequate,
reasonable, and appropriate if there has been valid consent by
the concerned parties”(citing Citizens for a Better Env’t v.
Gorsuch, 718 F. 2d 1117, 1125-26 (D.C. Cir. 1983))). While the
Court recognizes its authority to vacate a critical habitat
designation without a determination of the merits through the
entry of a proposed consent decree, see, e.g., Home Builders
Ass’ns of N. California v. Norton, 293 F. Supp. 2d 1, 4 (D.D.C.
2002) (vacating and remanding critical habitat designation
pursuant to a consent decree); Nat’l Ass’n of HomeBuilders v.
Evans, No. 00-2799, 2002 WL 1205743, at *2 (D.D.C. Apr. 30, 2002)

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 ii. The Propriety of Ordering Partial Summary
Judgment Briefing

The Court also declines the invitation of the Seattle

Audubon plaintiff-intervenors to proceed with partial summary

judgment briefing on the issue of whether the improper influence

of Deputy Assistant Secretary MacDonald caused the 2008 Critical

Habitat Designation to depart from the best available science.

See Seattle Audubon Post-Argument Br. at 5.10 While the Court is

(same), the Court is unpersuaded that entry of a consent decree
is appropriate in this case as the CIC plaintiffs have not agreed
to settle their claims with the federal defendants. See CIC
Surreply at 2 (“Defendant’s motion for remand and vacatur does
not seek approval of a consent decree - it is a contested motion
to dispose of CIC’s claims over its objection.”). Although the
federal defendants and plaintiff-intervenors cite cases in which
courts have entered consent decrees over the objections of
defendant-intervenors and amici, see Home Builders Ass’ns, 293 F.
Supp. 2d at 2 (entering a consent decree over the objections of
defendant-intervenors); Nat’l Ass’n of Home Builders, 2002 WL
1205743, at * 1-2 (entering a consent decree over the objections
of amici), the parties have provided no case law in which a court
has entered a consent decree vacating a critical habitat
designation over the objection of the original plaintiff.
Moreover, in light of the facts of this case, the Court concludes
that such an outcome would be inequitable.
10
Although the federal defendants and the Seattle Audubon
plaintiff-intervenors assert that the Court could decide the
issue on the papers already before it, the Court finds this
argument unpersuasive in light of the comprehensive review that
the federal defendants had to undertake to determine whether to
seek voluntary remand. See Notice, Docket No. 22 at 2 (“As a
result of [the IG’s Report], Federal Defendants will be reviewing
the decision and administrative record for this action to
determine whether to continue this litigation, amend their
litigation position, or pursue further administrative action with
respect to this final recovery plan.”); Notice, Docket No. 35 at
2 (“[T]he Service and Department of the Interior undertook a
comprehensive review of the [IG’s Report] and the Service’s files
for the recovery plan and revised critical habitat designation

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sensitive to the plaintiff-intervenors’ strong opposition to

remand without vacatur, see Seattle Audubon’s Post-Argument Br.

at 3, the Court concludes that such a piecemeal approach to the

resolution of this litigation is not in the interest of justice.

The Court, therefore, concludes that remand of the 2008

Critical Habitat Designation without vacatur is the most

equitable outcome, as it will preserve this Court’s scarce

judicial resources by allowing the FWS to cure its own purported

“legal error,” and allow the agency to focus its efforts on

issuing a revised recovery plan and critical habitat designation

for the owl. See Fed. Defs.’ Post-Argument Reply Br. at 4 n.3

(explaining that requiring the FWS to file an administrative

record in this case “would have the disadvantage of delaying

resolution of this case and agency reconsideration of the owl’s

critical habitat needs” because “agency personnel now working on

the habitat reserve system for any revised recovery plan would

have to delay that work and be tasked with preparation of the

record”). Accordingly, the federal defendants’ request for

vacatur of the 2008 Critical Habitat Designation is DENIED.

and briefed the appropriate decision-makers. The government has
concluded its review and has decided that it is appropriate to
seek a remand of the recovery plan and revised critical habitat
designation.”).

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 B. Remand of the 2008 Recovery Plan

Next, the federal defendants and the Seattle Audubon

plaintiff-intervenors ask the Court to remand the 2008 Recovery

Plan to the agency and to order the FWS to issue a revised plan

within nine months of the Court’s remand order.11 Although the

CIC plaintiffs do not challenge the lawfulness of the 2008

Recovery Plan, they nevertheless object to the federal

defendants’ request for remand arguing that the Court lacks

jurisdiction to remand a recovery plan. Substantially for the

reasons stated in the federal defendants’ post-argument reply

brief, the Court disagrees. See Fed. Defs.’ Post-Argument Reply

Br. at 2 (explaining that the APA’s final agency action

requirement is not jurisdictional in this Circuit (citing Trudeau

v. FTC, 456 F.3d 178, 184 (D.C. Cir. 2006))); see also, e.g.,

Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 131-135

(D.D.C. 2001) (remanding the recovery plan for the Sonoran

pronghorn); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105-16

(D.D.C. 1995) (remanding the recovery plan for the grizzly bear).

11
The federal defendants do not move the Court to vacate
the final recovery plan pending its revision on remand. See Fed.
Defs.’ Mot. at 12-13; see also Fed. Defs.’ Reply Br. at 2
(“Federal Defendants have sought remand without vacatur of the
recovery plan principally because there is no prior recovery plan
to reinstate . . . .”).

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Therefore, in light of the fact that both the federal defendants

and the Seattle Audubon plaintiff-intervenors consent to the

voluntary remand of the 2008 Recovery Plan, and given the

interconnectedness of the 2008 Critical Habitat Designation and

the 2008 Recovery Plan, see Fed. Defs.’ Post-Argument Reply Br.

at 2 (explaining that the “recovery plan and critical habitat

rule are intimately intertwined”), the Court concludes that

remand of the 2008 Recovery Plan as part of the agency’s

reconsideration of the 2008 Critical Habitat Designation is

appropriate. See Fed. Defs.’ Post-Argument Reply Br. at 2-3.

Accordingly, the 2008 Recovery Plan is hereby REMANDED to the FWS

for the issuance of a revised recovery plan within nine months of

this Order. The FWS is directed to file status reports with this

Court every 90 days apprising the Court of its progress in

developing the revised recovery plan.

C. Rulemaking for a New Critical Habitat Designation

Finally, the federal defendants ask the Court to order the

FWS, after issuance of the revised recovery plan, to evaluate

whether revision of the 1992 Critical Habitat Designation is

appropriate, and if so, to complete rulemaking for a new critical

habitat designation with 24 months of the issuance of the

recovery plan. The Court finds this request – which was premised

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upon vacatur of the 2008 Critical Habitat Designation – moot in

light of the Court’s ruling on the issue of vacatur.

However, in view of the federal defendants’ confession of

legal error as to the 2008 Critical Habitat Designation, the

Court is sensitive to the need for new rulemaking for the owl to

be undertaken as expeditiously as possible. Accordingly, by no

later than September 30, 2010, the parties are directed to submit

a joint proposed timetable to the Court addressing the length of

time within which rulemaking for a new critical habitat

designation for the northern spotted owl shall be completed; in

the event that the parties are unable to reach a joint

recommendation, each party shall submit an individual

recommendation by that time. The Court will withhold issuance of

its Order remanding the 2008 Critical Habitat Designation to the

FWS pending resolution of this issue.

III. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART AND

DENIES IN PART the federal defendants’ motion for remand and

vacatur. Pursuant to the Order accompanying this Memorandum

Opinion, the 2008 Recovery Plan shall be remanded forthwith for

the issuance of a revised recovery plan within nine months of

this Order. The Order remanding the 2008 Critical Habitat

Designation, however, shall be withheld pending resolution of the

timetable for the proposed rulemaking. Finally, the federal

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defendants’ request to vacate the 2008 Critical Habitat

Designation is DENIED. The 2008 Critical Habitat Designation

shall remain in force during the rulemaking period.

SIGNED: Emmet G. Sullivan
United States District Court Judge
September 1, 2010

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