Plaintiffs' supplemental brief

Robert B. Wiygul*
Waltzer & Associates
1025 Division Street, Suite C
Biloxi, MS 39530
Telephone: (228) 374-0700
Attorney for Plaintiff
* Admitted pro hac vice
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
_______________________________________
)
FOREST GUARDIANS )
)
Plaintiff, ) Civil No. CV 03 451 TUCCKJ
)
vs. )
)
ANN M. VENEMAN, SECRETARY OF )
AGRICULTURE OF THE UNITED STATES, )
and GALE NORTON, SECRETARY OF THE )
INTERIOR OF THE UNITED STATES )
)
Defendants. )
________________________________________ )
RESPONSE TO REQUEST FOR SUPPLEMENTAL BRIEFING
Forest Guardians believes that under the Ninth Circuit’s analysis in Gifford Pinchot
Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9 th Cir. 2004), and under the
plain terms of the ESA, the determination whether an agency action will “jeopardize the
continued existence” of a listed species must review impacts to the recovery of listed species,
even if the bare survival of the species will not be affected. The current regulatory definition
of jeopardy found at 40 C.F.R. § 402.02, like the definition of adverse modification of critical
habitat invalidated by the Ninth Circuit, sets the bar too low by focusing only on survival of

the species. Consequently, in this case the U.S. Fish and Wildlife Service (“FWS”) did not
consider recovery of the species, as required by the ESA.
There is no doubt that the basic purpose of the ESA is to bring endangered species
back from their precarious status. The statute plainly declares it to be “the policy of Congress
that all federal departments and agencies shall seek to conserve endangered species and
threatened species and shall use their authorities in furtherance of the purposes of this
chapter.” 16 U.S.C. § 1531(c)(1)(emphasis supplied). As the Ninth Circuit recognized in the
Gifford Pinchot decision and the Fifth Circuit recognized in Sierra Club v. U.S. Fish and
Wildlife Service, 245 F. 3d 434 (5 th Cir. 2001), “conservation” in the ESA means all methods
that can be employed to "bring any endangered species or threatened species to the point at
which the measures provided pursuant to this [Act] are no longer necessary." Section 7(a)(1)
of the ESA even places an affirmative duty on federal agencies – including the FWS - to
ensure that their overall programs carry out the conservation/recovery purposes of the statute:
The Secretary [of the Interior] shall review other programs administered by him and
utilize such programs in furtherance of the purposes of this chapter. All other federal
agencies shall, in consultation with and with the assistance of the Secretary, utilize
their authorities in furtherance of the purposes of this chapter by carrying out
programs for the conservation of [listed species].
16 U.S.C. § 1536(a)(1). E.g. Sierra Club v. Glickman, 156 F.3d 606, 618 (5th Cir. 1998)
(federal agencies have an affirmative duty under Section 7(a)(1) to develop programs for
conservation of listed species).
The consultation process is the primary procedural means through which federal
agencies are to insure, with the assistance of the FWS, that their actions do not have
consequences contrary to the objectives of the ESA. The fundamental basis of the Ninth
2

Circuit’s decision in the Gifford Pinchot case is that, in order for the consultation process on
adverse modification of critical habitat to be consistent with the ESA’s ultimate goal of
promoting the recovery of listed species, it must take into account impacts on recovery:
The agency's controlling regulation on critical habitat thus offends the ESA because
the ESA was enacted not merely to forestall the extinction of species (i.e., promote a
species survival), but to allow a species to recover to the point where it may be
delisted. See 16 U.S.C. § 1532(3) (defining conservation as all methods that can be
employed to "bring any endangered species or threatened species to the point at which
the measures provided pursuant to this [Act] are no longer necessary") . . . .
378 F.3d at 1070.
The Ninth Circuit went on to note that survival and conservation/recovery are not
exclusive, but are both goals of the statute:
Id.
Congress, by its own language, viewed conservation and survival as distinct, though
complementary, goals, and the requirement to preserve critical habitat is designed to
promote both conservation and survival. Congress said that "destruction or adverse
modification" could occur when sufficient critical habitat is lost so as to threaten a
species' recovery even if there remains sufficient critical habitat for the species'
survival. The regulation, by contrast, finds that adverse modification to critical habitat
can only occur when there is so much critical habitat lost that a species' very survival is
threatened.
As a matter of statutory language and logic, the requirement that action agencies
consult with the FWS to “insure that any action authorized, funded, or carried out by such
agency . . . is not likely to jeopardize the continued existence of any endangered species or
threatened species . . .” , 16 U.S.C. § 1536(a)(2), is also designed to promote both
conservation and survival of species.
“Jeopardize the continued existence of” is not defined in the ESA. Species are not
listed as endangered under the ESA, however, and do not get into the consultation process,
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unless they are “in danger of extinction throughout all or a significant portion of [their]
range.” 16 U.S.C. § 1532(6). 1 The “continued existence” of such species is by definition
already at some degree of risk unless and until they recover from the threats that got them
listed in the first place. Simply looking at the bare survival of the species works against
recovery, the ultimate goal of the statute, by giving a green light to agency actions which
prevent the species moving away from being “in danger of extinction,” and thus keep it in a
state in which its “continued existence” is jeopardized.
In fact, the National Marine Fisheries Service, which under the ESA has responsibility
for consulting with action impacts to listed marine species, has applied this approach in its
Section 7 consultations on endangered salmon species. In carrying out its jeopardy
consultation obligations on listed salmon species, NMFS considers recovery to be a necessary
element of any analysis of the likelihood of survival. In a 1999 memo outlining its approach to
carrying out Section 7 consultations for salmon, NMFS put it as follows:
Impeding a species’ progress toward recovery exposes it to additional risk, and so
reduces its likelihood of survival. Therefore, in order for an action to not appreciably
reduce the likelihood of survival, it must not prevent or appreciably delay recovery.
National Marine Fisheries Service, The Habitat Approach (1999), copy submitted as Exhibit
1.
Although FWS has never promulgated a regulation defining “survival,” the agency did
give a definition in its 1998 Consultation Handbook, cited by the federal defendants in their
previous briefing in this case. In that handbook the FWS defines “survival” as “the condition in
which a species continues to exist into the future while retaining the potential for recovery.”
1
Threatened species are those that are likely to become endangered within the foreseeable future.
16 U.S.C. § 1532(20).
4

Handbook at 4-37 (excerpt included as Exhibit 2). This definition makes it clear that the agency
does not consider negative impacts on recovery alone to be sufficient to constitute jeopardy, and
would permit such negative impacts as long as the species retains any potential to recover. Again,
this can allow agency actions which have the effect of keeping the species in danger of extinction,
which is directly contrary to the intent of Congress in the ESA.
The federal defendants may argue that considering impacts to recovery in determining
jeopardy as well as adverse modification of critical habitat would render the two provisions
redundant. This is not so. Although both consultation on the likelihood of jeopardy and
consultation on the likelihood of adverse modification of critical habitat must consider
recovery, the two provisions are focused on different areas and serve different functions.
Consultation on impacts to critical habitat focuses on impacts to habitat, the areas on which
are found “the biological features (I) essential to the conservation of the species, and (II)
which may require special management considerations or protection.” 16 U.S.C. §
1532(5)(A)(ii). Jeopardy consultation focuses on the impacts to the species itself, although
some of those impacts may come about through habitat modification. Critical habitat retains
protection even when, for example, a migratory species is in another part of its range and not
currently occupying the habitat. See id. (defining critical habitat as potentially including
unoccupied as well as occupied habitat). Thus, although sometimes overlapping, the two
inquiries are different and serve different purposes.
In addition, there are a number of situations under the statute in which jeopardy
consultation will be the only consultation that takes place. For example, there may be up to a
year’s time lag between the listing of a species and the designation of critical habitat. See 16
5

U.S.C. § 1532(b)(C)(ii) (additional year may be taken if critical habitat is not determinable at
the time of listing). In other cases, like that of the spikedace and loach minnow here, critical
habitat may have to be reworked for some reason. In practice, of course, critical habitat is
seldom designated at all save by court order. See, e.g. Center for Biological Diversity v.
Norton, 304 F. Supp.2d 1174, 1180 (D. Ariz. 2003). Prior to the designation of critical
habitat only jeopardy consultation is possible, and if recovery is not considered in that
consultation federal actions could result in the species remaining at risk of extinction
indefinitely. This is impossible to square with the idea that “[t]he plain intent of Congress in
enacting this statute was to halt and reverse the trend toward species extinction, whatever the
cost. This is reflected not only in the stated policies of the Act, but in literally every section of
the statute.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978).
There are other situations in which jeopardy consultation will be the only procedural
protection received by listed species. Areas may be excluded from a critical habitat
designation if there is a finding that the benefits of the exclusion outweigh the benefits of a
designation. 16 U.S.C. 1533(b)(2). Further, designation of critical habitat is not required for
species listed prior to 1978. It would be anomalous if Congress, having made recovery the
goal of the statute, would then set up a system under which in numerous situations the impact
of agency actions on the recovery of species might not be considered at all.
The Court noted in its November 15, 2004 order that in Sierra Club v. U.S. Fish and
Wildlife Service, 245 F. 3d 434 (5 th Cir. 2001) the Fifth Circuit did not invalidate the
regulatory definition of jeopardy. Undersigned counsel was also counsel of record in that
case, and the reason that the Fifth Circuit did not address the validity of the jeopardy
6

egulation is that the issue was not raised or briefed. Sierra Club v. U.S. Fish and Wildlife
Service arose in the context of a failure to make an initial designation of critical habitat, rather
than, as in this case, in the context of the analysis in a biological opinion. The Fifth Circuit’s
opinion does not imply anything about the validity of the jeopardy regulation, since the
language of the jeopardy regulation was not and could not have been at issue.
The Forest Service and FWS will likely contend that this issue is not properly raised in
this case. Forest Guardians’ complaint clearly raises the validity of the “no jeopardy”
determination, however, and clearly states that this determination is in violation of the
agencies’ obligation to conserve listed species. Complaint Paragraph 13. The issue is
properly before the Court in this case.
Finally, Forest Guardians would note that although the FWS’ regulation defining
“jeopardize the continued existence of” is contrary to the terms of the ESA, in this case the
Court need not reach the question of the validity of the regulation. Even the FWS will admit
that for some species, survival and recovery are essentially the same thing. This is true of the
spikedace and loach minnow. As the FWS has stated, “[b]ecause of the species’ precarious
status, mere stabilization of spikedace and loach minnow at their present levels will not achieve
conservation. Recovery through protection and enhancement of existing populations, plus
reestablishment of populations in suitable areas of historical range, are necessary for their survival.”
65 Fed. Reg. at 24330. The record in this case does not contain an explanation of how the “no
jeopardy” determination can be squared with the current population of the species, the
numbers and habitat needed for recovery, or the timeframe on which recovery may be
7

expected, all elements necessary for a reasoned decision. See, e.g. Sierra Club v. Norton, 207
F.S upp.2d 1310, 1329 (S.D. Ala. 2002).
In short, Forest Guardians submits that the definition of “jeopardy” used in this
biological opinion is invalid. The FWS’ “no jeopardy” finding should be invalidated and the
matter remanded to the agency for a new consultation using the correct definition.
Dated this 14th day of December, 2004.
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Respectfully submitted,
_____________________________
Robert B. Wiygul*
Waltzer & Associates
1025 Division Street, Suite C
Biloxi, MS 39530
Tel: (228) 374-0700
Fax: (228) 374-0725
* Admitted pro hac vice
Attorney for Plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that a copy of this Motion has been served on all counsel of record by U.S.
mail, postage prepaid this 14th day of December, 2004.
Robert L. Gulley, Esquire
Wildlife & Marine Resources Section
United States Department of Justice
Ben Franklin Station, P.O. Box 7369
Washington, D.C. 20044-7369
Tom Wilmoth
Fennemore Craig
3003 North Central Avenue
Suite 2600
Phoenix, Arizona 85012-2913
_____________________________