FISHER v. SALAZAR
656 F.Supp.2d 1357 (2009)
Paul and Gayle FISHER and Perdido Key Property Rights, Inc., a Florida corporation, Plaintiffs,
v.
Ken SALAZAR, in his official capacity as Secretary of the Interior; U.S. Department of the Interior; United States Fish and Wildlife Service; and Rowan Gould, in his official capacity as Acting Director, United States Fish and Wildlife Service, Defendants.
No. 3:07cv530-WS.
United States District Court, N.D. Florida, Pensacola Division.
August 4, 2009.
Nicholas M. Gieseler, Pacific Legal Foundation, Stuart, FL, for Plaintiffs.
Clifford Eugene Stevens, Jr., U.S. Dept of Justice, Washington, DC, Robert Del Stinson, U.S. Attorney, Tallahassee FL, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENTWILLIAM STAFFORD, District Judge.
The plaintiffs, Paul and Gayle Fisher (the "Fishers") and Perdido Key Property Rights, Inc. ("PKPR") (collectively, "Plaintiffs"), filed this action alleging that the defendants (collectively, "Defendants"), through the United States Fish and Wildlife Service ("FWS"), designated critical habitat for the Perdido Key beach mouse "without adequate delineation or justification and without sufficient analysis of the economic and other impacts of the designation." Before the court at this time are the parties' cross-motions for summary judgment. Docs. 28 & 35. The motions have been fully briefed, docs. 29, 30, 36, 37, 40, 41 & 48; and the parties have been advised (doc. 57) that the motions would be taken under advisement as of a date certain, For reasons explained below, Defendants' motion will be granted.
I. BACKGROUNDA.The Endangered Species Act of 1973 (the "ESA" or the "Act"), 16 U.S.C. §§ 1531-1544, was enacted by Congress "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). The ESA defines the terms "conserve" and "conservation" as "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the Act] are no longer necessary." Id. at 1532(3). As noted by the Fifth Circuit in Sierra Club v. United States Fish and Wildlife Serv.,245 F.3d 434, 438 (5th Cir. 2001), the objective of the ESA "is to enable listed species not merely to survive, but to recover from their endangered or threatened status." Generally regarded as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation," Tennessee Valley Auth. v. Hill,437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), the ESA makes the Secretaries of Commerce and of the Interior responsible for administering and enforcing the Act. The Secretary of the Interior is responsible for terrestrial and freshwater fish species, while the Secretary of Commerce is responsible for marine species. The Secretary of the Interior has delegated the responsibility for terrestrial species, including the Perdido Key beach mouse, to the FWS.
1. Congress has made clear that a "not prudent" finding regarding critical habitat "was intended ... to be exercised only rarely." S. Rep. 106-126, at 4 (1999), 1999 WL 33592886; see also H.R.Rep. No. 95-1625, at 16-17 (1978) (noting that "[i]t is only in rare circumstances where the specification of critical habitat concurrently with the listing would not be beneficial to the species").
2. Primary dunes are those closest to the shoreline. Secondary dunes consist of one or more dune lines landward of the primary dune with a similar, though denser, vegetative cover.
3. In Bischoff, the Eleventh Circuit Court of Appeals explained:
The party invoking federal jurisdiction bears the burden of proving standing. Moreover, each element of standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Therefore, when standing becomes an issue on a motion to dismiss, general factual allegations of injury resulting from the defendant's conduct may be sufficient to show standing. However, when standing is raised at the summary judgment stage, the plaintiff can no longer rest on "mere allegations." Instead, the plaintiff must "`set forth' by affidavit or other evidence `specific facts,' ... which for purposes of the summary judgment motion will be taken to be true."
Bischoff, 222 F.3d at 878 (citations omitted).
4. In a footnote to their reply memorandum (doc. 48), Defendants state that "[t]he Fishers' land (not including the footprint of their prior structure) is included in Unit 2, which has [post-Hurricane Ivan] documented evidence of [beach mouse burrows and tracks]."
5. In a footnote to their reply (doc. 40), it is stated that "[t]he Fishers concede that the footprint of their former structure is seaward of the coastal construction control line."
6. The regulations similarly provide that areas not currently occupied by the species may be designated as critical habitat only "when a designation limited to its present range would be inadequate to ensure the conservation of the species." 50 C.F.R. § 424.12(e).
7. Plaintiffs contend that the FWS failed to make the required "findings" that units 2 and 4 are areas "essential for the conservation of the species." Plaintiffs suggest that, instead, the FWS made mere "statements" that do not rise to the level of "findings." The record establishes otherwise.
8. The consultants estimated that the total impact associated with the unified mitigation fee across Units 2 and 4 would be $78.5 million (in undiscounted dollars), the present value of which was estimated to be $76.3 million assuming a three percent discount rate or $74.2 million assuming a seven percent discount rate.
9. The proposed critical-habitat-designation rule was issued in December of 2005, more than a year after Hurricane Ivan. The final rule was issued in December of 2006, more than two years after Hurricane Ivan. Many landowners experienced post-Ivan delays and other problems before critical habitat was even proposed much less designated.
10. As reported in the consulting firm's Final Report, Escambia County's Development Monitoring and Tracking System showed that, as of July 1, 2005, six months before the FWS issued its proposed rule designating critical habitat and a year and a half before the FWS issued its final rule, approximately 70% of the allowable units on Perdido Key were already existing, currently under construction, or already permitted but not under construction. A.R. 2887.