Fight to Delist Bird Given a Feather for Its Cap

Courthouse News Service
Friday, January 24, 2014

by Rebekah Kearn

(CN) – In their quest to delist the marbled murrelet as a threatened species, timber interests need not wait on reconsideration of the bird’s designated habitat, a federal judge ruled.

The marbled murrelet is a small seabird that nests in old-growth forests along the coasts of California, Oregon and Washington. These forests are popular logging sources for the timber industry, making the bird a common subject in environmental rulemaking and litigation, according to the ruling.

On average, marbled murrelets grow to about 10 inches long and have dark feathers on their backs with dappled white feathers on their stomachs. They build their nests on clumps of moss or lichen that grow where tree branches connect with the trunks of coniferous trees like Douglas fir and Sitka spruce.

The U.S. Fish and Wildlife Service listed the marbled murrelet’s Pacific Northwest populations as threatened in 1992, and designated critical habitat for the species in 1996.

American Forest Resource Council teamed up with Douglas County, Ore., and the Carpenters Industrial Council to delist the bird’s tri-state populations in January 2012. Among other things, they argued that Fish and Wildlife’s designation was unlawful because it failed to demonstrate that the tri-state marbled murrelet population formed a distinct population segment.

In addition to challenging the tri-state murrelet population’s protected status, the groups claimed that Fish and Wildlife included the central Californian marbled murrelet in the protected population despite no evidence that the birds interbred with each other.

They also sought to vacate the agency’s critical habitat designation.

U.S. District Judge John Bates granted the agency summary judgment first in March 2013 and again in September when he found that vacatur would delay work on a new habitat designation. Bates remanded the issue to the agency with orders to fix its errors and submit a new designation by Sept. 30, 2016.

The plaintiffs are appealing the delisting issue, but the D.C. Circuit balked because the remanded habitat issues could mean that the challenged agency decision is not “final,” as required for appellate review.

The plaintiffs in turn asked the lower court to issue final judgment under Rule 54(b), which allows it to appeal the decision on its delisting claims without waiting for Fish and Wildlife to finish the new habitat designation.

With the motion unopposed, Judge Bates agreed Wednesday that there was “no just reason for delay” and issued the final order.

In so ruling, Bates relied on the 1956 Supreme Court decision Sears, Roebuck & Co. v. Mackey, which states that a judgment is final if it disposes of a single claim in an action with several claims.

Bates concluded that “all legal issues were resolved” and that “the entry of summary judgment in favor of FWS [Fish & Wildlife Service] on AFRC’s delisting claims was ‘final’ for the purposes of Rule 54(b).”

Because the delisting claims are distinct from the habitat claims, there is no reason to delay judgment, the judge added.

Both claims center around the marbled murrelet, but “the actual resolution of the delisting claims bears minimal factual or legal similarity to the resolution of the habitat claims,” according to the ruling. “The delisting claims turn on the agency’s factual findings … [o]n the other hand, the habitat claims turn on the physical characteristics of the relevant geographical area … as well as specific flaws in the rulemaking process.”

Since the claims will not return to the court in their current form, there is no reason to force it to wait until the new habitat rulemaking to appeal the decision on its delisting claims, the judge found.

Moreover, forcing the plaintiffs to wait three years while Fish and Wildlife prepares a new designation will force it to do business in light of the current designation, which allegedly impacts the council’s federal timber sales, according to the ruling.

Fish and Wildlife could also benefit from allowing an immediate appeal because any work it does on the new habitat designation would be “wasted” if the court rules in favor of delisting the marbled murrelet, Bates wrote.

There is no danger that the court will have to decide the issue again because the habitat and delisting claims are so dissimilar, Bates added.

“FWS’s new rulemaking may address all of the timber industry’s concerns, or may be unquestionably complaint with the APA’s [Administrative Procedures Act] procedural requirements,” the ruling states. “At the very least, it is unlikely that FWS will repeat its previous mistakes – for example, by failing to make certain statutorily required factual findings, or failing to provide an opportunity for comment on certain expansions of the critical habitat designations – let alone repeat them in the same manner as the first time around. Hence, AFRC’s existing habitat claims will likely be mooted by the pending habitat ruling, minimizing the possibility that granting AFRC’s motion will lead to duplicative appeals.”

The defendants in the case are Fish and Wildlife Service director Daniel Ashe and Secretary of the Interior Sally Jewell.

The Audubon Society of Portland; Seattle Audubon Society; Center for Biological Diversity; Oregon Wild; Conservation Northwest; Environmental Protection Information Center; and Sierra Club intervened as defendants.