UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
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WALT MODEN, MERLE CARPENTER, CHARLES WHITLATCH, JOHN BAIR, TIFFANY BALDOCK and DALE CROSS,
Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, GALE NORTON, in her official capacity as U.S. Secretary of Interior, and STEVEN A. WILLIAMS, in his official capacity as Director of the U.S. Fish & Wildlife Service, Defendants. |
No. 02-CV-305-BR
AMENDED COMPLAINT |
For their amended complaint, plaintiffs allege:
Parties and Jurisdiction
WALT MODEN, MERLE CARPENTER, CHARLES WHITLATCH, JOHN BAIR, TIFFANY BALDOCK and DALE CROSS are individuals residing in or in the vicinity of Klamath Falls, Oregon, all of whom except WHITLACH have suffered economic loss as a result of the 1988 listing, pursuant to 16 U.S.C. § 1533, of the shortnose sucker (Chasmistes brevirostris) and Lost River sucker (Deltistes luxatus) (hereafter, the "suckers"). All constitute "interested persons" within the meaning of 5 U.S.C. § 553(e).
The UNITED STATES FISH AND WILDLIFE SERVICE, is charged by law with the listing and delisting of species such as the suckers. GALE NORTON is the U.S. Secretary of Interior, who has statutory authority over Endangered Species Act decisions concerning the suckers; STEVEN A. WILLIAMS, is the Director of the UNITED STATES FISH AND WILDLIFE SERVICE, exercises such authority as delegated by NORTON.
This Court has jurisdiction under 28 U.S.C. §§ 1331 (federal question), 2201 (declaratory relief), and 2202 (injunctive relief). Venue is properly vested in this Court pursuant to 28 U.S.C. § 1391(e), as the defendant is located in this district, and the acts or omissions complained of occurred, in part, in this district.
FIRST CLAIM—AGENCY ACTION ARBITRARY, CAPRICIOUS AND CONTRARY TO LAW
Count 1—Administrative Procedure Act
The Endangered Species Act defines "endangered species" to mean "any species which is in danger of extinction throughout all or a significant portion of its range … ". 16 U.S.C. § 1532(6); see also 50 C.F.R. § 402.02(e). All species are always in some danger of extinction. Insofar as defendants and other federal officials have now engaged in widespread listings of species in no significant danger of extinction whatsoever, it is now apparent that the statutory definition fails to provide sufficient direction to render agency action subject to law, and is unconstitutionally vague. Defendants and other federal officials have failed to provide any limiting definition that would constrain them from listing any group of animals whatsoever. Under these circumstances, listing decisions absent cognizable standards for listing are arbitrary, capricious and contrary to law.
The lack of any statutory or regulatory constraints upon the listing power has created widespread conflict between federal, state, local and private interests, and resulted in a massive expansion of federal authority over subjects traditionally within the purview of state or local authority. Insofar as those whose interests are adversely affected by endangered species decisions constitute a tiny minority of the American people, the judicial branch offers the only check upon the extraordinary abuses such as those that arose during 2001 as a consequence of these and other patently unlawful listings. There is no other check upon the powers of defendants other than this and other federal courts.
On October 19, 2001, plaintiffs and others transmitted to defendants UNITED STATES FISH AND WILDLIFE SERVICE, NORTON and others a petition to delist the suckers, a true copy of which is attached hereto as Exhibit 1 and incorporated as if set forth herein.
Pursuant to 16 U.S.C. § 1533(b)(3)(A): "To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 553(e) of Title 5 . . . to remove a species from[] either of the lists published under subsection (c) of this section, the Secretary shall make a finding as to whether the petitioner presents substantial scientific or commercial information indicating that the petitioned action may be warranted."
By Federal Register Notice of May 14, 2002, the UNITED STATES FISH AND WILDLIFE SERVICE issued a finding that "no substantial information has been presented or found that would indicate that delisting of the Lost River sucker or shortnose sucker may be warranted". 67 Fed. Reg. 34,433, 34,423 (May 14, 2002).
The Notice declares:
"The endangered status of the suckers is based upon continuing threats to the populations. The 2001 status review identifies continuing threats to the two species which warrant maintaining their listing as endangered under the Endangered Species Act, including but not limited to habitat loss, degradation of water quality, periodic fish die-offs, and entrainment into water diversions." Id.
The Notice is arbitrary and capricious to fact with regard to each "threat" it identifies as a basis for continued listing:
(a) With regard to habitat loss, defendants do not identify the magnitude of such alleged loss, any such loss in particular, the baseline against which such loss is to be measured, or the effect of the alleged loss upon the risk of sucker extinction. In fact, the development of the Klamath Basin Project significantly increased the total quantity and quality of habitat available to the suckers. Expert testimony submitted by plaintiffs, ignored in the Notice, states that "it is now obvious that the species' habitats were sufficiently good [at the time of listing] to provide suitable conditions for these populations". For these and other reasons, attributing appreciable extinction risk to alleged habitat loss is arbitrary and capricious.
(b) With regard to degradation of water quality, again defendants do not identify the magnitude of such alleged degradation, any particular degradation, the baseline against which such degradation is to be measured, or the effect of such degradation. Prior to development of the Klamath Basin Project, the sucker habitat was frequently a stinking swamp from which early explorers could not even water their horses, and water quality has improved very substantially over such conditions. For these and other reasons, attributing appreciable extinction risk to alleged water quality problems is arbitrary and capricious.
(c) With regard to periodic fish die-offs, such die-offs have unquestionably and repeatedly occurred at least twice in the 1990s, yet population estimates are substantially higher than pre-listing estimates, notwithstanding such die-offs. The death of large numbers of any particular species, without more, proves nothing about extinction risk. Indeed, tagging studies of suckers have demonstrated that only a tiny fraction of tagged fish (less than 1%) were recovered in the die-offs. For these and other reasons, attributing appreciable extinction risk to the die-offs is irrational.
(d) While some small fraction of the sucker populations are doubtless entrained into irrigation ditches, defendants have yet to establish that this effect has any impact on extinction risk― other than a potentially positive impact by spreading suckers beyond the boundaries of Upper Klamath Lake. (Among the data presented in the delisting petition and ignored in the Notice is testimony that "‘Remnant’ populations postulated in 1988 [outside the Lake] are now known to be abundant.") In fact, defendants’ own data shows that the vast bulk of the sucker population inhabits the opposite end of the lake, nowhere near where irrigators draw their water, as this diagram from defendants shows:
(The irrigation diversion is at the bottom of the Lake, at the lower right in this picture.) For these and other reasons, attributing appreciable extinction risk to entrainment is arbitrary and capricious.
In the context of evaluating extinction risk to listed species, it is inherently arbitrary and capricious to base a listing decision upon the mere existence of "threats" without a meaningful assessment of their significance to the overall persistence of the species in the face of such threats.
In assessing whether to delist the suckers, defendants were to consider:
"(1) The present or threatened destruction, modification, or curtailment of its habitat or range;
"(2) Over-utilization for commercial, recreational, scientific, or educational purposes;
"(3) Disease or predation;
"(4) The inadequacy of existing regulatory mechanisms; or
"(5) Other natural or manmade factors affecting its continued existence." 50 C.F.R. § 424.11(c).
The "threats" discussed above fall within the ambit of factors (1) and (5), but the Notice is arbitrary and capricious for failure to do more than identify "threats" without any rational discussion of whether these threats, in conjunction with all relevant factors, make the species genuinely "endangered".
The Notice does state that sucker populations "declined precipitously in the 1980s . . . which caused the Oregon Department of Fish and Wildlife to terminate the [sucker] fishery in 1987, just prior to the federal listing". There was a demonstrable problem with overfishing, for which existing regulatory mechanisms proved adequate. Thus factors (2) and (4) militated against listing in 1988, and militate against continued listing now.
The Notice states that "comparisons between current [population] estimates and those made during the fishery, prior to its termination in 1987, are not informative due to extreme differences in methodology". This is arbitrary and capricious, insofar as both methodologies aimed to estimate the populations of suckers, and unless defendants can identify defects in one methodology or the other, failure to compare the populations constitutes a failure to consider the best available data as required by 16 U.S.C. § 1533.
The Notice states that "Population estimates made since listing, while numerically higher than earlier estimates, show no overall trend for increasing populations within the last decade". Insofar as defendants predicate "endangered" status upon a failure of populations further to increase, this too is arbitrary and capricious, insofar as fish and wildlife populations obviously cannot be endangered merely because they are not trending upward, particularly in a context where habitat is necessarily finite. The only discernable trend in the data, which defendants arbitrarily and capriciously refuse to acknowledge, is an upward trend, a trend inconsistent with a finding of "endangered" status.
The Notice offers no response whatsoever to the conclusions of independent biologist David Vogel, submitted by plaintiffs, in connection with the delisting petition, that defendant UNITED STATES FISH AND WILDLIFE SERVICE deliberately excluded contrary scientific data and opinions from its decision-making processes and "so selectively reported the available information that it can only be considered a distorted view of information available to the agency [at the time of listing]". The Notice was arbitrary and capricious for failure to consider whether "subsequent investigations … show[ed] that the best scientific and commercial data available when the species was listed, or the interpretation of such data, were in error" within the meaning of 50 C.F.R. § 424.11(d)(3).
Defendants’ position that the suckers remain endangered, notwithstanding populations more than an order of magnitude higher than pre-listing estimates, is not supported by the best available scientific and commercial data in the administrative record generated by defendants.
The reliance upon "junk science" such as that proffered in the Notice and elsewhere by defendants and others has prompted widespread public concern. Among other responses, Congress passed § 515(a) of the Treasury and General Appropriations Act for Fiscal Year 2001 (P.L. 106-554), pursuant to which defendant UNITED STATES FISH AND WILDLIFE SERVICE was supposed to have promulgated proposed (and later final) "guidelines ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by the agency", but has failed to do so. Defendants do not have any procedures or policies in place adequate to ensure the quality, objectivity, utility and integrity of the scientific information they disseminate, including the challenged 90-day determination.
The Notice offers no response to the independent biologist's conclusion, submitted by plaintiffs, that the individuals presently making scientific decisions concerning the suckers have a "vested interest in the suckers . . . remaining listed species under the ESA" and that such decisions will remain "flawed" unless and until reviewed by those without such vested interests. Upon information and belief, agents of defendants with responsibility for the 90-day finding have personal and institutional biases that prevent them from rendering an objective scientific opinion concerning the endangered status of the suckers, such that to permit their unsupported opinions concerning endangerment to stand would deny plaintiffs due process of law.
Upon information and belief, were the suckers to be delisted, agents of defendants involved in the decision here challenged would lose their jobs. The degree of financial interest on the part of decision-makers far exceeds that routinely thought to be disqualifying in a judicial context, while the decisions here made have effects far larger than most judicial decisions.
Plaintiffs have no adequate remedy at law, and will suffer continuing and irreparable injury so long as defendants refuse to reconsider the listing status of the suckers.
Count 2—Endangered Species Act
Plaintiffs reallege paragraphs 1-21 hereof as if incorporated herein.
Exhibit 1 contains a notice of intent to sue defendants under the citizen suit provisions of the Endangered Species Act, 16 U.S.C. §1531 et seq., so as to ensure an appropriate and lawful response to the petition.
Defendants' ninety-day finding constitutes a violation of 16 U.S.C. § 1533(b)(3)(A), for which plaintiffs are authorized to sue by 16 U.S.C. § 1540(g)(1)(C).
WHEREFORE, plaintiffs pray for judgment as follows:
A. For a declaration that defendants' failure ninety-day finding is arbitrary, capricious and contrary to law;
B. For an order remanding the ninety-day finding to the agency for reconsideration in light of the declaration sought herein;
C. For their reasonable attorney fees and costs pursuant to 16 U.S.C. § 1540(g)(4) and/or the Equal Access to Justice Act; and
D. Awarding plaintiffs such other and further relief as the Court may deem just and proper.
Dated: May 23, 2002.
MURPHY & BUCHAL LLP
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James L. Buchal, OSB #92161
Tel: 503-227-1011
Attorney for Plaintiffs
