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Environmental Law

: ESA Blawg

On appeal, 10th Circuit upholds FWS decisions related to reintroduction of Northern Aplomado Falcon in New Mexico

By Keith Rizzardi

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Forest Guardians v. U.S. Fish & Wildlife Service, Case No. 08-2226, --- F.3d ----, 2010 WL 2674990 (10th Cir., July 7, 2010)(Gorsuch, McKay and Holmes, Circuit Judges).

SUMMARY: On Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:06-CV-00231-WJ-KBM). Forest Guardians appeals the denial of its petition for review of the U.S. Fish and Wildlife Service's (“FWS”) decision to reintroduce a nonessential experimental population of endangered Northern Aplomado Falcons (“Falcons”) into southern New Mexico. Forest Guardians contends that the FWS violated section 10(j) of the Endangered Species Act (“ESA”), 16 U.S.C. ? 1539(j), when it allegedly promulgated a final rule to release captive-bred Falcons within the current range of the species and in an area that is not wholly separate geographically from an existing Falcon population. We exercise jurisdiction under 28 U.S.C. ? 1291 and AFFIRM the district court's denial of the petition for review.

EXCERPTS RE: BACKGROUND Forest Guardians contends that the Falcon, an endangered species, should be permitted to repopulate the United States naturally, while enjoying full protection of its yet-to-be-designated critical habitat under the ESA. On the other hand, the FWS and The Peregrine Fund, which intervened in this action, advocate the release of captive-bred Falcons into southern New Mexico, while decreasing the Falcon's protection under the ESA. Our task is not to decide which strategy is more scientifically sound; rather, we must review the 10(j) rule under the Administrative Procedure Act (“APA”) to determine if the rule was promulgated in accordance with the ESA and NEPA…

In September 2002, Forest Guardians petitioned the FWS to designate critical habitat for the Falcon, pursuant to 16 U.S.C. ? 1533(b)(3)(D), after a pair of Falcons successfully nested in Luna County, New Mexico in 2001 and bred chicks in 2002. Forest Guardians contended that the FWS should designate a critical habitat for the Falcon in Arizona, New Mexico, and Texas because the Falcon was no longer extirpated from the United States. In subsequent years, other wild Falcons were increasingly sighted in that area. Nevertheless, the FWS did not respond to the petition.

In 2005, the FWS proposed a rule under section 10(j) of the ESA that would reintroduce captive-bred Falcons into New Mexico and Arizona in an attempt to establish a viable resident population of Falcons. (See Final Rule here.) )Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed.Reg. 6819, 6819 (Feb. 9, 2005) (to be codified at 50 C.F.R. pt. 17). Section 10(j) allows the Secretary to authorize the release of an experimental population of an endangered species “out-side the current range of such species if the Secretary determines that such release will further the conservation of such species.” 16 U.S.C. ? 1539(j)(2)(A). Ordinarily, such a population “shall be treated as a threatened species,” rather than as an endangered species. Id. ? 1539(j)(2)(C). If “an experimental population is determined ... to be not essential to the continued existence of a species,” the Secretary may not designate critical habitat for that population. Id. ? 1539(j)(2)(C)(ii) (emphasis added). The FWS intended the proposed 10(j) rule to fulfill one of the goals identified in the Falcon's Recovery Plan, viz., to reestablish the Falcon in the United States.

The Northern Aplomado Falcon, “perhaps one of our most colorful birds of prey,” see Determination of the Northern Aplomado Falcon To Be an Endangered Species, 51 Fed.Reg. 6686, 6686 (Feb. 25, 1986), is a medium-sized subspecies of the aplomado falcon historically located in the “savannas, coastal prairies, and higher-elevation grasslands” stretching across the southwestern United States through Mexico and into Guatemala and Nicaragua. In 1986, the Secretary of the Interior (listed the Falcon as endangered because it had been extirpated from its historic range in Arizona, New Mexico, and Texas for approximately thirty years and was known to nest only in Mexico. In listing the Falcon as endangered, the Secretary did not designate a critical habitat. Instead, FWS determined that the reintroduction of captive-bred Falcons as a nonessential experimental population would help to restore the Falcon and achieve recovery goals. Photo of Aplomado Falcon in Texas by Tim Cooper from Laguna Atascosa National Wildlife Refuge.
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EXCERPT RE: RULING. In this case, the FWS closely followed the definitions upheld in Wyoming Farm Bureau Federation, 199 F.3d at 1231-32 (citing 16 U.S.C. ? 1539(j); H.R.Rep. No. 97-567, at 8 (1982). Accordingly, we conclude that the FWS's definition of what constitutes a population for purposes of the 10(j) rule is not in conflict with the plain language of the ESA and is a reasonable interpretation of that language. Forest Guardians acknowledges the precedential effect of Wyoming Farm Bureau Federation. However, Forest Guardians reasons that Wyoming Farm Bureau Federation does not offer definitive answers to the issues that it advances here -- whether there is substantial evidence in the record to support the FWS's conclusions that: (1) one breeding pair and the individual Falcons seen in New Mexico themselves do not constitute a population; (2) the dispersing Falcons in New Mexico were too distant from the Mexican population to form part of that population; and (3) the international border was a barrier that prevented a finding that there was such a population. After carefully reviewing the record, we conclude that substantial evidence supports the FWS's first two conclusions. And we therefore need not reach the FWS's third conclusion. In particular, we note that the record contains several biologists' surveys that monitored the status of the Falcon in New Mexico and Mexico.

KEITHINKING: As the 10th Circuit explained in this decision, and its prior ruling in Wyo. Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1231-33 (10th Cir.2000), "Congress amended the ESA in 1982 to broaden the FWS's discretion to reintroduce endangered and threatened species into their historic ranges. In particular, Congress added section 10(j) to authorize the FWS to designate certain reintroduced populations of endangered and threatened species as experimental populations.” In practice, Section 10(j) provides a degree of flexibility for the FWS when it implements the Endangered Species Act to ease reintroduction efforts. But that is precisely the reason that Section 10(j) repeatedly becomes the subject of litigation. By definition, people care about the the species we bother to reintroduce. (The ecosystems care, too.) As a result, strong opinions inevitably clash, often involving well-meaning but idealistic environmental groups who demand a rigid interpretation of the Endangered Species Act (or the administrative record), while simultaneously trying to convince the Courts to ignore the flexibility that Congress provided in that same statute. See, e.g., ESA blawg on wolf reintroduction. P.S. The concurring opinion contains an interesting discussion related to use of the administrative record in NEPA disputes.

Full post as published by ESA Blawg on July 10, 2010 (boomark / email).