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)
20
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
21
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.”).
22
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 . . . .”).
23
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
24
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
25
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
26