2011 Ninth Circuit environmental review.

Position:Case Summaries II. Natural Resources, p. 819-869
 
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  1. NATURAL RESOURCES

  1. Endangered Species Act

    1. Conservation Force v. Salazar, 646 F.3d 1240 (9th Cir. 2011), cert. denied sub nom. Blasquez v. Salazar, 132 S.Ct. 1762 (2012).

      Plaintiffs, hunters Miguel Madero Blasquez and Colin G. Crook and the nonprofit corporation Conservation Force, filed suit against Defendants, (279) including Secretary of the Interior Ken Salazar, challenging an administrative forfeiture under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), (280) the Eighth Amendment Excessive Fines Clause, (281) and the Due Process Clause. (282)

      Each plaintiff separately hunted leopards in different African countries (283) and then attempted to import leopard trophies into the United States with deficient export permits. (284) In April 2008, the United States Fish and Wildlife Service (FWS) notified the plaintiffs of the seizure of the trophies and their proposed forfeiture, and informed plaintiffs of their right to seek either administrative or judicial review. Plaintiffs Blasquez and Crook sought administrative review and made timely petitions for remission with the Office of the Solicitor. However, their petitions were denied; likewise, their supplemental petitions were denied. Consequently, they filed suit in the United States District Court for the Northern District of California in March 2009. On defendants' motion, the district court dismissed plaintiffs' CAFRA claim for lack of jurisdiction (285) and the remaining claims for failure to state a claim. (286)

      The issue presented to the United States Court of Appeals for the Ninth Circuit was whether the plaintiffs had waived their right to judicial forfeiture proceedings by pursuing administrative remedies. First, the Ninth Circuit affirmed the district court's dismissal of the plaintiffs' CAFRA claim for lack of jurisdiction. The court held that the United States Department of the Interior, Office of the Solicitor (Solicitor) did not violate CAFRA because under 50 C.F.R. [section] 12.23(a) the Solicitor may seek forfeiture of the leopard trophies pursuant to the Endangered Species Act of 1973 (ESA), (287) the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), (288) and related regulations. (289) Consequently, if the Solicitor initiates a forfeiture proceeding, the affected party must receive a notice advising him that he may seek recovery of the property either administratively or judicially pursuant to 50 C.F.R. [section][section] 12.23(b), and 12.24. Correspondingly, the court found that FWS acted within its authority under 50 C.F.R. [section] 23.23(a) in enforcing CITES' permit requirements, that the trophies were lawfully subject to forfeiture, (290) and that FWS gave proper notice to plaintiffs both of its intent to forfeit the trophies (291) and of plaintiffs' available remedies. (292) As a result, the court pointed out, the administrative and judicial remedies were mutually exclusive.

      In this case, the plaintiffs were informed of their remedial options via the notice of intent to forfeit issued by FWS. That notice informed the plaintiffs that they could either seek an administrative petition of remission--requesting that the agency return the property--or initiate a judicial process to decide if the property should be forfeited. Noting that the two distinct remedies "provide alternative, not sequential, administrative and legal remedies," (293) the Ninth Circuit concluded that the district court properly held that plaintiffs' CAFRA claim was barred from judicial review. (294) In sum, the court concluded that plaintiffs waived the opportunity for judicial forfeiture proceedings because they received proper notice (295) of the proposed forfeitures and chose to pursue administrative remedies.

    2. Greater Yellowstone Coalition, Inc. v. Servheen, 665 F.3d 1015 (9th Cir. 2011).

      The Greater Yellowstone Coalition (Coalition) challenged the final rule issued by the United States Fish and Wildlife Service (FWS) delisting the Yellowstone grizzly bear (Ursus arctos horribilis) from the threatened species list under the Endangered Species Act (ESA). (296) In 2007, FWS determined that the Yellowstone population of grizzly bears had met the criteria necessary to be considered a recovered population, and then delisted the Yellowstone grizzlies. (297) Coalition argued that FWS's final rule violated the ESA because: 1) FWS failed to adequately consider how the loss of whitebark pine, an important food source, would affect grizzly bears, and 2) there were not adequate regulatory mechanisms in place to protect the grizzlies after delisting. The United States District Court for the District of Montana granted summary judgment to Coalition on both grounds, concluding that FWS failed to rationally support the determinations that whitebark pine loss would not affect grizzlies and that adequate regulatory mechanisms protected the species. (298) FWS and other intervenors (299) appealed. The United States Court of Appeals for the Ninth Circuit affirmed the district court's ruling as to whitebark pine; FWS had not rationally explained why the potential loss of whitebark pine in the ecosystem would not affect grizzly bears. The Ninth Circuit reversed the district court with respect to the question of adequate regulatory mechanisms because the regulatory framework described in the final conservation strategy, national forest plans, and national park regulations provided sufficient protections for grizzlies.

      Coalition filed its lawsuit under the ESA shortly after FWS finalized its conservation strategy and published the final rule to remove the distinct population segment of Yellowstone grizzlies from the list of threatened species. (300) The ESA's procedures for delisting required FWS to issue a finding that the population would not be threatened after federal protections were removed. Specifically, section 4 of the ESA required FWS to consider five factors affecting the species: "(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence." (301) Coalition claimed that FWS failed to explain in the final rule how factors D and E posed no threats to the continued existence of Yellowstone grizzlies.

      The Ninth Circuit reviewed the district court's decision on summary judgment de novo (302) and FWS's compliance with the ESA under the Administrative Procedure Act (APA). (303) The court would uphold FWS's decision to delist the grizzlies unless the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (304) Based on this standard, the court concluded that FWS violated the ESA by not providing a rational basis to conclude that the loss of whitebark pine (factor E) would not threaten grizzlies. Nevertheless, the court concluded that FWS's explanation provided adequate support for the existence of adequate regulatory mechanisms (factor D).

      The court first conducted an analysis of factor E, the natural or manmade factors, by focusing on FWS's conclusion that any changes to whitebark pine production are not likely to impact Yellowstone grizzlies. The court noted that whitebark pine is an important food source for Yellowstone grizzlies, especially in the autumn as the bears prepare to hibernate for most of the winter. In years where whitebark pine production is lower than average, grizzly bears venture into human-occupied areas in search of food, resulting in increased grizzly mortality. The future of the whitebark pine food source, however, is uncertain. Whitebark pine forests are currently facing serious risk of declines related to "epidemic" threats caused by infestations of mountain pine beetles, European blister rust, and loss of habitat resulting from climate change. (305) With this in mind, the court proceeded to reject the five arguments FWS put forward to justify a finding that declines in whitebark pine would not threaten grizzlies.

      First, FWS claimed that Yellowstone grizzlies are "notoriously resourceful omnivores" that will make behavioral adjustments in finding food if whitebark pine becomes scarce. (306) The court rejected this rationale because scientific studies indicated that declines in whitebark pine lead to more human encounters with grizzlies and increased grizzly mortality. Second, FWS pointed to long-term studies that showed grizzly population growth even during years of low whitebark pine productivity. The court called this justification for delisting grizzlies irrational: FWS cannot rely on studies of natural whitebark pine variation to conclude that epidemic declines will not affect grizzlies. Third, FWS cited other populations of grizzlies, including the Northern Continental Divide Ecosystem (NCDE) grizzly population that continued to thrive despite significant declines in whitebark pine. This argument failed to persuade the court that Yellowstone grizzlies would not be threatened because FWS conceded that Yellowstone grizzlies, unlike NDCE grizzlies, have a distinct and unique dependence on whitebark pine. Fourth, FWS argued that whitebark pine reserves would be available for Yellowstone grizzlies in the eastern mountain ranges within the Yellowstone Primary Conservation Area (PCA), even if whitebark pine in the west declined significantly. The court rejected this argument because FWS had defined the PCA as the minimal habitat necessary for Yellowstone grizzly recovery. Therefore, sufficient habitat for the population could not be sustained in only a portion of the PCA where whitebark pine survived. Fifth, FWS averred that adaptive management and monitoring by FWS biologists would allow the agency to relist Yellowstone grizzlies if their population became threatened in...

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