American Forest Resource Council v. Ashe
946 F. Supp. 2d 1
D.D.C.2013Background
- AFRC challenges FWS decisions on listing/delisting the tri-state murrelet DPS and on the 1996 murrelet critical habitat designation; AFRC seeks summary judgment on delisting claims and consent-decree-based relief on habitat claims.
- FWS previously listed tri-state murrelet as threatened in 1992 and designated substantial critical habitat in 1996; later five-year reviews found discreteness issues and ultimately affirmed DPS status in 2009.
- AFRC petitioned delisting based on revised discreteness and significant issues; FWS found delisting may be warranted in 2008 and then not warranted after a 2009 review.
- AFRC sought to challenge ongoing critical habitat designations; the parties proposed a consent decree to vacate 1996 designation and have FWS issue revised habitat rules by 2018.
- The court engages in APA review of agency action and applies a limited, deferential standard; it remands as to the significance issue and denies the consent decree in its current form.
- The court addresses whether issues are exhausted, whether reopening/notice-and-comment requirements apply to the consent decree, and whether the proposed surgical remand would be fair and in the public interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FWS erred in treating central California murrelets as part of the DPS for significance. | AFRC argues interbreeding issues render central California murrelets non-interbreeding with others in DPS. | FWS contends issue was waived or not properly raised and the DPS remains valid. | Remand on significance to determine interbreeding impact. |
| Whether the tri-state DPS is discrete. | AFRC contends discreteness is lacking due to regulatory differences and genetic distinctions. | FWS rationally found significant conservation-status differences and changed approaches with a rational basis. | Discreteness upheld; review remanded on interbreeding impact. |
| Whether AFRC's Fourth and Sixth Claims challenge the 1996 habitat designation and are time-barred. | AFRC argues ongoing reopening/reconsideration makes those claims timely. | Agency reopened the rule, thus claims are timely. | Remand for reopening established; claims timely under reopening doctrine. |
| Whether a consent decree vacating the 1996 designation is appropriate without notice and comment. | AFRC/FWS propose vacatur/remand to correct potential defects; notice/comment not required. | Consent decree permissible where judicially approved, but requires fairness/public interest. | Consent decree denied in current form; need greater justification and narrower remand. |
| Whether the proposed consent decree is fair, reasonable, and in public interest. | Remand with vacatur aligns with agency reconsideration and public interest. | Remand period too lengthy; insufficient agency justification to bypass APA procedures. | Consent decree denied; focus on clarified, shorter remand with explicit reasons. |
Key Cases Cited
- Baltimore Gas & Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (U.S. 1983) (presumption of regularity; deference to agency scientific determinations)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (U.S. 1971) (judicial review scope of agency actions; when to defer to agency)
- Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious review; need for rational connection between facts and choices)
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (U.S. 1978) (ESA context; ecosystem-wide conservation purpose and standards)
- Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209 (D.C. Cir. 2004) (APA review; agency rationale and record-based evaluation)