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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Grand Canyon Trust, et al., 

Plaintiffs, 

vs.

Gale Norton, et al., 

Defendants. 

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No. 04-CV-636-PHX-FJM

ORDER

The court has before it the Plaintiffs' Motion for Summary Judgment (doc. 41),

Defendants' Opposition (doc. 55), and Plaintiffs' Reply (doc. 61); Defendants' Cross-Motion

for Summary Judgment (doc. 49), Plaintiffs' Opposition (doc. 57), and Defendants' Reply

(doc. 60); and Defendants' Motion to Strike (doc. 52), Plaintiffs' Opposition (doc. 54), and

Defendants' Reply (doc. 56).

I.

The humpback chub ("chub"), a fish that inhabits the Colorado River basin, is listed

as an endangered species under the Endangered Species Act ("ESA"). Pursuant to the ESA,

the Secretary of the Interior is required to "develop and implement plans . . . for the

conservation and the survival of endangered species . . . , unless [s]he finds that such a plan

will not promote the conservation of the species." 16 U.S.C. § 1533(f)(1). Accordingly, in

1979, the United States Fish and Wildlife Service ("FWS") developed a recovery plan for the

conservation and survival of the chub. FWS revised this plan in 1990 (the "1990 Recovery
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Plan"), and then supplemented and amended the 1990 Recovery Plan in 2002 (the " Recovery

Goals").

Plaintiffs allege that the Recovery Goals violate the ESA and the Administrative

Procedure Act ("APA"). Amended Complaint at 12. Plaintiffs clarified their allegations in

their opposition to the motion to dismiss. Their "First Claim" is that the Recovery Goals

violate the ESA, 16 U.S.C. § 1533(f)(1)(B), because they fail to provide (1) for the

conservation and survival of the chub; (2) objective, measurable criteria which, when met,

would result in a determination that the species be removed from the endangered species list;

(3) estimates of the time required and the cost to carry out the measures needed to achieve

the goal and to achieve intermediate steps toward that goal; and (4) a population goal for all

areas designated as critical habitat (together, "claim one"). Plaintiffs' Opposition to the

Motion to Dismiss at 5. Plaintiffs' "Second Claim" is that the Recovery Goals violate the

APA because the FWS "ignored relevant facts, did not employee [sic] the best scientific

information available, and failed to support its conclusions in the Recovery Goals" (together,

"claim two"). Id. at 8.

After considering the parties' briefings with regard to defendants' motion to dismiss,

we concluded that "Plaintiffs' challenges to the mandatory procedural requirements of the

ESA may proceed (claim one) [and] Plaintiffs' [APA] claims challenging the specific

recommendations of the 2002 Plan, are dismissed (claim two)." Order at 6-7 (doc. 37). The

order did not specifically refer to plaintiffs' substantive ESA claim–that the Recovery Goals

failed to provide for the conservation and survival of the chub–and therefore we consider that

claim in addition to the procedural ESA claims.

In their memorandum in support of the motion for summary judgment, plaintiffs

restate their claims in a manner that would effectively moot much of our previous order.

Plaintiffs now assert that the "Amended Complaint alleged alternative grounds for

jurisdiction, but only one claim for relief." Plaintiffs' Memorandum in Support of the Motion

for Summary Judgment at 1, n.1. Plaintiffs then redefine claim one to include the allegation
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1

 In any event, plaintiffs' ESA claim for the failure to use solely the best scientific

evidence would likely fail. Unlike 16 U.S.C. § 1533(b), section 1533(f), which regulates

recovery plans, does not explicitly require that determinations be based on the best scientific

and commercial data available. "When certain statutory provisions contain a requirement and

others do not, we should assume that the legislature intended both the inclusion and the

exclusion of the requirement." Stewart v. Ragland, 934 F.2d 1033, 1041 (9th Cir. 1991).

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that the FWS violated the ESA by failing to use " 'solely' the best scientific information

available in developing recovery plans." Id. at 5.

Plaintiffs may not redefine their claims, and thereby effectively amend the complaint.

Plaintiffs led defendants and this court to believe that they raised two separate claims. The

deadline for amending the complaint expired over one year ago. Rule 16 Scheduling Order

at 2 (doc. 17). Plaintiffs' claim that the Recovery Goals violate the ESA requirement to use

" 'solely' the best scientific information available" was dismissed with regard to the APA

claim, and is untimely with regard to the ESA claim, and accordingly, we need not consider

it.1

II.

Plaintiffs' remaining causes of action arise under the ESA citizen suit provision, 16

U.S.C. § 1540(g)(1)(C), which provides that "any person may commence a civil suit on his

own behalf . . . against the Secretary [of the Interior] where there is alleged a failure of the

Secretary to perform any act or duty under section 1533 . . . which is not discretionary with

the Secretary." Plaintiffs' Opposition to the Motion to Dismiss at 5. Plaintiffs assert that we

have jurisdiction over this claim pursuant to 16 U.S.C. § 1540(c) and 28 U.S.C. § 1331.

Amended Complaint at 2.

A.

Plaintiffs assert that the Recovery Goals fail to provide for the conservation and

survival of the chub. Accordingly, plaintiffs claim that defendants violated their nondiscretionary duty under the ESA, which states that "[t]he Secretary shall develop and

implement plans . . . for the conservation and survival of endangered species." 16 U.S.C. §

1533(f)(1); Plaintiffs' Memorandum in Support of the Motion for Summary Judgment at 2.
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2

 To establish jurisdiction to consider the substance of the Recovery Goals, plaintiffs

cite a series of non-binding decisions considering the viability of citizen suits to challenge

the designation or lack of designation of critical habitat under 16 U.S.C. § 1533(b)(2).

Plaintiffs, however, fail to distinguish Kennecott. Therefore, to the extent that these cases

contradict Kennecott, we cannot follow them.

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Defendants concede that they have a non-discretionary duty to develop and implement a plan

for the conservation and survival of the chub, but argue that the Secretary has the discretion

to determine the substance of the plan. Defendants' Opposition to the Motion for Summary

Judgment at 7. Accordingly, defendants argue that 16 U.S.C. § 1540(g)(1)(C) does not create

a cause of action to challenge the substance of the recovery plan, and therefore we lack

jurisdiction to hear the claim. Id. at 6-7.

By stating that the Secretary "shall" act, the ESA creates a non-discretionary duty to

develop and implement plans for the conservation and survival of endangered species. 

However, the substance of the plan is left to the discretion of the Secretary. See Kennecott

Copper Corp. v. Costle, 572 F.2d 1349, 1354 (9th Cir. 1978); see also Bennett v. Spear, 520

U.S. 154, 172, 117 S. Ct. 1154, 1166 (1997). Conservation is defined broadly, and provides

for a wide range of actions that could be used to conserve various species. 16 U.S.C. §

1532(3). Determining how to provide for the conservation and survival of the humpback

chub "requires the fusion of technical knowledge and skills with judgment which is the

hallmark of duties which are discretionary." Kennecott Copper Corp., 572 F.2d at 1354;

accord Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547 (11th Cir. 1996) ("By providing

general guidance as to what is required in a recovery plan, the ESA 'breathe[s] discretion at

every pore.'") (quoting Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975)). To classify

the duty to conserve as non-discretionary "is to stand words on their head in an effort to

provide jurisdiction when Congress intended that none exist." Kennecott Copper Corp., 572

F.2d at 1354.2

Plaintiffs further argue that even if the statute grants the Secretary discretion as to how

to conserve the chub, there is still a non-discretionary duty to ensure, at minimum, the chub's
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3

 The citizen suit provision in the ESA "must be read in light of the Congressional

intent to use th[e non-discretionary] phrase to limit the number of citizen suits which could

be brought against the Administrator and to lessen the disruption of the Act's complex

administrative processes." Kennecott Copper Corp., 572 F.2d at 1353 (considering the Clean

Air Act citizen suit provision, which is identical in all relevant ways to the ESA citizen suit

provision).

Plaintiffs argue that the ESA citizen suit provision is substantially broader than other

similar citizen suit provisions. Plaintiffs' Opposition to the Cross-Motion for Summary

Judgment at 2. The ESA provision does have "remarkable breadth" because it permits "any

person" to commence a civil suit, as opposed to other statutes which generally require that

the litigant has been adversely affected or has an interest in the action in order to have

standing. Bennett v. Spear, 520 U.S. 154, 164-65, 117 S. Ct. 1154, 1162 (1997). The ESA

provision is not, however, substantially broader than other similar citizens suit provisions

with regard to the permissible subject matter of the suits.

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survival. Plaintiffs' Opposition to the Cross-Motion for Summary Judgment at 8; Plaintiffs'

Reply in Support of the Motion for Summary Judgment at 5. The citizen suit provision, and

waivers of federal sovereign immunity in general, must be strictly construed.3

 Kennecott

Copper Corp., 572 F.2d at 1353; Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 2096

(1996). In contrast, plaintiffs' argument would substantially expand the scope of the citizen

suit provision. Any person would be able to challenge the substance of recovery plans by

merely alleging that the Secretary's plan is not only poor, but likely to lead to the extinction

of a species. 

Accordingly, we conclude that no cause of action arises under 16 U.S.C. §

1540(g)(1)(C) for the failure to provide for the conservation and survival of the humpback

chub, in contrast to the development and implementation of a plan to conserve them. We

therefore grant defendants' motion for summary judgment on this claim (doc. 49). And

because this claim is no longer before us, we grant defendants' motion to strike the

declarations submitted by plaintiffs (doc. 52), which are only relevant to plaintiffs' challenges

to the substance of the Recovery Goals.

B.
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4

 Plaintiffs argue that this prerequisite to suit is not applicable because the only

statutory prerequisite is the 60 day notice requirement of 16 U.S.C. § 1540(g)(C). Plaintiffs'

Memorandum in Opposition to the Cross-Motion for Summary Judgment at 8-9. We need

not consider this argument because all prerequisites are satisfied.

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Plaintiffs also claim that the Recovery Goals violate 16 U.S.C. § 1533(f)(1)(B)(iii)

because they fail to incorporate "estimates of the time required and the cost to carry out the

measures needed to achieve the plan's goal and to achieve intermediate steps toward that

goal." Plaintiffs' Memorandum in Support of the Motion for Summary Judgment at 12.

Defendants included limited time estimates in the Recovery Goals, Administrative Record

at 3109-10, but they failed to include any cost estimates.

Defendants argue that plaintiffs are barred from raising this claim because they failed

to raise this issue during the notice and comment period. Defendants' Memorandum in

Support of the Cross-Motion for Summary Judgment at 7-8. It is necessary that the issue be

raised during the decisionmaking period to alert the agency to the party's position and

therefore allow the agency "to give the issue meaningful consideration." Dep't of Transp. v.

Pub. Citizen, 541 U.S. 752, 764, 124 S. Ct. 2204, 2213 (2004). However, it is not necessary

that the plaintiffs raise the issue, so long as it is raised during the decisionmaking period.

Jasch v. Potter, 302 F.3d 1092, 1095 n.2 (9th Cir. 2002) (quoting Hosp. & Serv. Employees

Union v. NLRB, 743 F.2d 1417, 1426 (9th Cir. 1984); Natural Res. Def. Council, Inc. v.

EPA, 824 F.2d 1146, 1151 (D.C. Cir. 1987). This issue was raised before the FWS during

the decision-making period. Administrative Record at 2550, 2567, 2736, 2738.

Accordingly, there is no procedural bar to recovery.4

Defendants argue that the 1990 Recovery Plan "provided detailed and comprehensive

time and cost estimates"; the Recovery Goals are an amendment and supplement to the 1990

Recovery Plan; and accordingly, the Recovery Goals need not include revised time and cost

estimates. Defendants' Memorandum in Support of the Cross-Motion for Summary

Judgment at 9.
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It appears that the 1990 Recovery Plan does include time and cost estimates,

Administrative Record at 123-128, but strikingly, the Recovery Goals state otherwise:

These recovery goals were developed as an amendment and supplement to the

Recovery Plan to focus on the requirements of Section 4(f)(1)(B) of the ESA,

which requires that the Secretary of the Interior incorporate into each plan sitespecific management actions; objective, measurable criteria; and estimates of

the time and costs to carry out those measures needed to achieve the plan's

goal and to achieve intermediate steps toward that goal. The Recovery Plan

did not contain those key requirements of the ESA; therefore, these recovery

goals take precedence over the Recovery Plan.

Administrative Record at 3059-60. Defendants fail to reconcile this inconsistency with their

argument.

The requirement to include time and cost estimates is intended to "provide a means

by which to judge the progress being made toward recovery." S. Rep. No. 100-240, at 9-10

(1988). Therefore, assuming the time and cost estimates of the 1990 Recovery Plan satisfy

the ESA requirement, they are only applicable to the Recovery Goals if the Recovery Goals

do not either amend the goals, amend the measures needed to achieve the goals, or amend

the interim steps toward the goals. See 16 U.S.C. § 1533(f)(1)(B)(iii). Again, however, the

Recovery Goals themselves state otherwise. Their stated purpose is to "assimilate current

information on the life history of the species and status of populations to develop recovery

goals associated with the five listing factors that . . . identify site-specific management

actions necessary to minimize or remove threats; . . . and provide estimates of the time and

costs required to achieve recovery." Administrative Record 3059. Moreover, plaintiffs

identify a series of undisputed examples where the Recovery Goals modify the measures

needed to achieve the goals outlined in the 1990 Recovery Plan. Plaintiffs' Memorandum

in Opposition to the Cross-Motion for Summary Judgment at 12-13. The time and cost

estimates of the 1990 Recovery Goals are therefore insufficient to meet the requirements of

16 U.S.C. § 1533(f)(1)(B)(iii) as they apply to the 2002 Recovery Goals.

Defendants argue that they were not required to update the recovery plan and produce

the Recovery Goals, and therefore the Recovery Goals cannot violate 16 U.S.C. §

1533(f)(1)(B)(iii). Defendants' Reply in Support of the Cross-Motion for Summary
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Judgment at 9. Even if it is true that defendants were not required to update the Recovery

Plans, defendants have nonetheless updated the "measures needed to achieve the plan's

goals," and accordingly, must provide the "estimates of time required and the cost to carry

out those measures." 16 U.S.C. § 1533(f)(1)(B)(iii).

Defendants assert that the FWS "has and will continue to have accurate and up-to-date

assessments and information on the necessary costs and time frames for implementing

[recovery] actions," but chose not to expend their scarce resources by including this

information in the Recovery Goals. Defendants' Reply in Support of the Cross-Motion for

Summary Judgment at 10. The Secretary is, however, obligated to include such estimates

"to the maximum extent practicable." 16 U.S.C. § 1533(f)(1). Defendants fail to argue that

it was not "practicable" to include the estimates in the Recovery Goals, and therefore, they

are not excused from this requirement.

Defendants failed to comply with their non-discretionary duty to provide time and cost

estimates pursuant to 16 U.S.C. § 1533(f)(1)(B)(iii). Accordingly, we grant summary

judgment for plaintiffs on this claim (doc. 41).

C.

In their opposition to defendants' motion to dismiss, plaintiffs claim that defendants

failed to incorporate objective, measurable criteria which, when met, would result in a

determination that the species be removed from the endangered species list; and failed to

incorporate a population goal for all areas designated as critical habitat. Plaintiffs'

Opposition to the Motion to Dismiss at 5. We consider these claims abandoned because

plaintiffs make no mention of them in their numerous briefings with regard to the motions

for summary judgment. Accordingly, we grant summary judgment for defendants on these

claims (doc. 49).

III.

The Recovery Goals fail to comply with the ESA, and accordingly, defendants are

ordered to withdraw them. We declare them of no force and effect.
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Plaintiffs seek an injunction requiring the issuance of new recovery goals that

comply with the ESA. Amended Complaint at 13. Defendants argue, however, that they

were not required to produce the Recovery Goals, and that they produced them

voluntarily. Defendants' Reply in Support of the Cross-Motion for Summary Judgment at

9. Plaintiffs fail to assert a basis upon which we should order defendants to produce new

recovery goals. Accordingly, plaintiffs' request is denied. However, if defendants

produce new recovery goals, they must comply with our findings and conclusions.

IV.

IT IS ORDERED GRANTING summary judgment for plaintiffs on their claim that

defendants violated their non-discretionary duties to provide time and cost estimates under

16 U.S.C. § 1533(f)(1)(B)(iii) (doc. 41). IT IS ORDERED DENYING the remainder of

plaintiffs' motion for summary judgment (doc. 41).

IT IS ORDERED DENYING defendants' motion for summary judgment on

plaintiffs' time and cost estimates claim (doc. 49) and GRANTING summary judgment for

defendants on all other claims (doc. 49).

IT IS ORDERED GRANTING defendants' motion to strike (doc. 52).

Defendants are ORDERED to withdraw the 2002 Recovery Goals.

All claims having been resolved, the clerk is directed to enter judgment.

DATED this 18th day of January, 2006.