Home » Case Summaries » 2008 » Coos County Board of County Commissioners v. Kempthorne


Coos County Board of County Commissioners v. Kempthorne



The Coos County Board of County Commissioners (Coos County) appealed a district court decision dismissing its action brought against the United States Fish and Wildlife Service, the Director of the United States Fish and Wildlife Service, and the Secretary of the Interior (collectively FWS). Coos County filed suit in the United States District Court for the District of Oregon under the Endangered Species Act (ESA)[1] citizen suit provision and under the Administrative Procedure Act (APA),[2] alleging that FWS had failed to act on a duty to promptly remove the marbled murrelet, a rare seabird that nests in old growth forests, from the threatened species list following a five-year review. The district court granted FWS’s motion to dismiss for lack of subject matter jurisdiction, or alternatively, for failure to state a claim. The Ninth Circuit affirmed the district court’s dismissal, holding that FWS did not have a nondiscretionary duty under the ESA to delist the marbled murrelet, despite having concluded that it did not qualify as a distinct population segment protected under the ESA.

Marbled murrelets are dove-sized birds that feed on sea life and nest in old growth forests.[3] In 1992, the population of the murrelets living in Washington, Oregon, and California crashed to approximately 9000 birds because a loss of old growth forest habitat from timber harvesting limited potential nest sites and left remaining nest sites more accessible to predators and because of threats from gill-net fishing boats and oil spills.[4] Following National Audobon Society’s petition for listing and a subsequent lawsuit,[5] FWS listed the murrelet population living in Washington, Oregon, and California-referred to as the tri-state murrelet-as a “threatened species.”[6] In its listing decision, FWS explained it was listing the tri-state murrelet as a distinct population segment in compliance with the district court’s order, but that it intended to reexamine whether the tri-state murrelet qualified as a protectable ESA species.[7] However, FWS neither altered nor proposed alteration of the listing. Instead, FWS designated critical habitat[8] and adopted a recovery plan for the tri-state murrelet.

At the completion of a statutorily-mandated,[9] five-year review in 2004, FWS concluded the tri-state murrelet did not meet the definition of a “distinct population segment.”[10] Despite the finding, FWS did not alter the protections afforded to the tri-state murrelet. FWS determined delisting was not warranted, relying on the rationale first articulated by the 1992 district court: Even if the tri-state murrelet did not constitute a distinct population segment, the fact that the marbled murrelet remained threatened through a significant portion of its range provided an alternative basis for listing.[11]

Based on the five-year review’s determination that the tri-state population was not a distinct population segment, Coos County advised FWS of its intent to sue to require FWS to delist the murrelet.[12] When FWS did not comply with Coos County’s request to delist the murrelet, Coos County filed suit under the citizen-suit provision of the ESA, alleging that FWS had violated both the ESA and APA. First, Coos County argued that under the ESA’s publishing requirements, once FWS determined in the five-year review that the tri-state murrelet was not a distinct population segment, it should have concluded that the murrelet could not be protected under the ESA and promptly published a proposed rule for delisting. Second, Coos County argued FWS’s failure to delist the tri-state murrelet was “agency action unlawfully withheld or unreasonably delayed” under the APA.[13] FWS filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The district court granted the motion and Coos County timely appealed to the Ninth Circuit.

The Ninth Circuit characterized Coos County’s complaint as proceeding under the ESA’s citizen suit provision[14] and the APA,[15] but noted that the ESA claim would preclude the APA claim if the two claims were identical.[16] Because Coos County’s claims against FWS depended upon a waiver of sovereign immunity for federal court jurisdiction, the Ninth Circuit reasoned that the claims could proceed “only if FWS has a nondiscretionary duty to begin the delisting process-promptly or otherwise-as a result of the determination made in the Five-Year Review and has failed to act upon that duty.”[17] Accordingly, the court analyzed the specific five-year review provision which provided that “[e]ach [five-year review] determination . . . shall be made in accordance with the provisions of subsections (a) and (b) of [16 U.S.C. § 1533].”[18] To consider Coos County’s claim that the five-year determination incorporated the specific deadlines listed by the referenced provisions, the Ninth Circuit sought to evaluate the text and context of section 1533, as well as regulations implemented pursuant to section 1533.

Before focusing on these specific tools of statutory interpretation, the Ninth Circuit provided an overview of section 1533 of the ESA and described Coos County’s fundamental misinterpretation of it. The court explained that the ESA sets out two methods for listing species for protection and for making determinations concerning those species.[19] The first method allows for the Secretary of the Interior to identify species for protection on his own initiative. The second method allows interested citizens to file a petition compelling listing, and contains a “promptly publish” deadline triggered by the filing of a petition. The Ninth Circuit held the “fundamental flaw in Coos County’s statutory argument is that it conflates these two different mechanisms, inappropriately shoe-horning the five-year review process, a statutory step of the kind conducted on the Secretary’s initiative, into the system of deadlines created to address citizen-initiated petitions.”[20] The statutory text, statutory structure, and associated regulations supported the court’s conclusion to affirm the district court’s dismissal of Coos County’s complaint.

In analyzing the text of the ESA, the Ninth Circuit noted that section 1533(b)(3), the citizen petition provision, contains the “promptly publish” requirement relied upon by Coos County. The citizen provision, importantly, also incorporates explicit statutory deadlines, including requiring the Secretary to review petitions to determine whether listing is warranted.[21] In contrast, the five-year review provision, which is agency-initiated, does not contain any explicit publication deadlines.[22] Thus, the ESA “sets out two review processes, one with deadlines, one without, and includes deadlines only for the petition process.”[23] Explaining that Coos County’s interpretation of the ESA would require the judiciary to pick and choose among the different portions of the ESA, the court rejected Coos County’s argument that the five-year review provision incorporated statutory deadlines from the petition provision. Coos County argued that section 1533(c)(2), which requires that “[e]ach [five-year review] determination . . . shall be made in accordance with” the generally applicable provisions of section 1533(b), required the FWS to comply with the publication deadlines set out in section 1533(b) for responding to citizen petitions. In response, the Ninth Circuit explained that most of the requirements in sections 1533(a) and (b) govern the listing decision-making process in general, not the petition process. For example, section 1533(a)(1) sets out the substantive factors the Secretary must consider in making a listing decision, and section 1533(b)(1)(A) dictates that the decisions are to be based on the basis of the “best scientific and commercial data available.”[24] In the court’s view, the “in accordance with” clause of section 1533(c)(2) incorporates the provisions that generally govern listing determinations, the five-year review process, and delisting determinations, “and not the deadlines that pertain only to petitions.”[25]

The Ninth Circuit also concluded Coos County’s interpretation of the ESA was unsupported by the statutory structure. The court noted that the basic provisions of the ESA as originally enacted gave the Secretary considerable scheduling discretion and contained no deadlines governing the publication of a proposed rule. Only after Congress became aware that such delays could undermine timely implementation of the statutory scheme did it amend the ESA by adding the petition process provisions and the respective mandated deadlines.[26] Coos County’s reading of the statute would undermine the statutory scheme because it would “turn the five-year review process into a hybrid of the two, otherwise distinct, decision-making models that the ESA sets out.”[27] Additionally, the court reasoned that incorporating some of the petition process into the agency-initiated process risked disturbing the balance between “judicial review, agency expertise[,] and the public’s right to a healthy, sustainable ecosystem which fosters biological diversity.”[28] Based on this division between the ESA’s agency-initiated determination and petition-driven actions, the court rejected Coos County’s interpretation of the statute.

The Ninth Circuit’s analysis of implementing regulations also supported its view that the “in accordance with” clause of section 1533(c)(2) is intended only to ensure that five-year review determinations are made consistent with the general standards provided for ESA determinations, and not to incorporate any deadlines relating specifically to the citizen petition process. As the court explained, the regulation governing the five-year reviews[29] does not contain any “promptly publish” requirement. The regulation merely specifies how a determination during the five-year review is to be made, without importing any deadlines from the petition process into the five-year review determination.[30]

Having rejected Coos County’s interpretation of the ESA provisions, the Ninth Circuit held Coos County’s challenge to FWS’s failure to delist the tri-state murrelet must also fail. First, the Ninth Circuit held that Coos County’s ESA claim precluded its APA claim because the two were essentially identical, and the ESA claim-if successful-could provide Coos County with an “adequate remedy.”[31] Under the ESA citizen suit provision, Coos County must allege “a failure of the Secretary to perform any act or duty under section 1533 . . . which is not discretionary with the Secretary.”[32] The Ninth Circuit held that Coos County could not show that the Secretary failed to perform a nondiscretionary duty because FWS lacked any duty under the five-year review procedure to 1) to promptly publish a change in listing status or to 2) delist the tri-state murrelet after determining that delisting was not warranted. Because Coos County failed to show that FWS has “failed to take a discrete agency action that it is required to take,” it also failed to state a claim for relief. [33]

Although the Ninth Circuit affirmed the district court’s dismissal, the court explained that the county is not “without recourse” because it was free to file a delisting petition.[34] The court explained such a petition would not be futile because such a petition may cause FWS to reconsider the conclusions drawn in its five-year review, even though the petition may not ultimately succeed.

In conclusion, the Ninth Circuit affirmed the dismissal of Coos County’s complaint against FWS. The court held that FWS did not have a mandatory duty to promptly delist the tri-state murrelet from protections under the ESA after the five-year review because the review provision did not incorporate the deadlines from the petition provisions and because the five-year review determined that a delisting was unwarranted. Because Coos County’s claim under the APA duplicated its ESA claim, it was precluded. The court ruled that Coos County could use the petition process if it “wishes to force FWS to act swiftly” to consider delisting the tri-state murrelet.[35]

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2006).

[2] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

[3] Determination of Threatened Status for the Washington, Oregon, and California Population of the Marbled Murrelet (Listing Rule), 57 Fed. Reg. 45,328, 45,328-29 (Oct. 1, 1992).

[4] Id. at 45,329, 45,333-36.

[5] Marbled Murrelet v. Lujan, No. C91-522R, slip op. (D. Wash. Sept. 17, 1992).

[6] A species qualifies as a “threatened species” under the ESA if it “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) (2006).

[7] Listing Rule, 57 Fed. Reg. at 45,330.

[8] Final Designation of Critical Habitat for the Marbled Murrelet, 61 Fed. Reg. 26,256, 26,258 (May 24, 1996).

[9] See 16 U.S.C. § 1533(c)(2) (2006) (requiring FWS to conduct, at least every five years, a review of all species protected under the ESA and to determine on the basis of such a review whether the listing status of protected species should be changed).

[10] Under its distinct population segment policy, FWS first considers whether a population is discrete relative to “the remainder of the species to which it belongs.” If the species is discrete, the FWS inquires into the “significance” of the population to the species as a whole. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4,722, 4,725 (Feb. 7, 1996).

[11] U.S. Fish & Wildlife Service, Marbled Murrelet 5-Year Review 6 (2004), available at http://www.fws.gov/Pacific/ecoservices/endangered/recovery/Documents/Marbled%20murrele.pdf(citing Marbled Murrelet v. Lujan, No. C91-522R, slip op. at 12 (D. Wash. Sept. 17, 1992).

[12] See 16 U.S.C. § 1540(g)(2) (2006) (requiring notice for ESA citizen suits).

[13] 5 U.S.C. § 706(1) (2006).

[14] 16 U.S.C. § 1540(g)(1) (2006).

[15] 5 U.S.C. § 706(1) (2006).

[16] See Brem-Air Disposal v. Cohen, 156 F.3d 1002, 1005 (9th Cir. 1998).

[17] Coos County Bd. of County Comm’rs v. Kempthorne (Coos County), 531 F.3d 792, 803 (9th Cir. 2008).

[18] 16 U.S.C. § 1533(c)(2) (2006).

[19] Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 834 (9th Cir. 2001).

[20] Coos County, 531 F.3d at 804.

[21] See 16 U.S.C. § 1533(b)(3) (2006).

[22] Compare id. § 1533(b)(3)(A), with id. § 1533(c)(2).

[23] Coos County, 531 F.3d at 805.

[24] 16 U.S.C. § 1533(b)(1)(A) (2006).

[25] Coos County, 531 F.3d at 807.

[26] See Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 840 (2001); see also Endangered Species Act Amendment of 1982, Pub. L. No. 97-304, § 2, 96 Stat. 1411, 1412-14 (1982).

[27] Coos County, 531 F.3d at 808.

[28] Wyoming v. U.S. Dep’t of the Interior, 360 F. Supp. 2d 1214, 1229 (D. Wyo. 2005),aff’d on other grounds, 442 F.3d 1262 (10th Cir. 2006).

[29] 50 C.F.R. § 424.21 (2008).

[30] The court also noted that 50 C.F.R. § 424.21references three regulations that follow the statutory provisions applying to determinations generally, instead of the statutory provisions applying to the petition process.

[31] Brem-Air Disposal, 156 F.3d 1002, 1004-05 (9th Cir. 1998).

[32] 16 U.S.C. § 1540(g)(1)(C) (2006).

[33] Norton v. S. Utah Water Alliance, 542 U.S. 55, 62 (2004)(interpreting 5 U.S.C. § 706(1)).

[34] Coos County, 531 F.3d 792, 812 (9th Cir. 2008)

[35] Id. at 813.

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