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2004/12/21 City Council Agenda PacketJudy Hauff ICity Hall City Clerk City of Rohnert Park*6750 Commerce Boulevard *Rohnert Park, Cali Phone: (707)588-2227*FAX: (707)588-2274*WEB: www.rpcity.o ROHNERT PARK CITY COUNCIL SPECIAL MEETING AGENDA Tuesday, December 21, 2004 MEETING LOCATION: City Hall Conference Room 6750 Commerce Blvd., Rohnert Park, CA 94928 2:00 p.m. CITY COUNCIL SPECIAL MEETING - Call to Order Roll Call (Flores Smith Spradlin _Vidak-Martinez Mackenzie_) UNSCHEDULED PUBLIC APPEARANCES/COMMENTS: For public comment on items listed on the agenda (limited to 3-5 minutes per appearance & a 30 -minute total time limit, or allocation of time based on number of speaker cards submitted) ADJOURN TO CLOSED SESSION TO CONSIDER: CONFERENCE WITH LEGAL COUNSEL — ANTICIPATED LITIGATION Pursuant to Government Code section 54956.9c, consideration of initiation of litigation in the matter of Center for Biological Diversity v. U.S. Fish and Wildlife Service No. C 04- 04324 WHA (N.D. Cal). RECONVENE TO OPEN SESSION: Mayor's Report on Closed Session (Government Code 54957.1) ADJOURNMENT no later than 3:30 p.m. DISABLED ACCOMMODATION: If you have a disability which requires an interpreter or other person to assist you while attending this City Council meeting, please contact the City Offices at (707) 588-2227 at least 72 hours prior to the meeting to ensure arrangements for accommodation by the City. Please make sure the City Manager's office is notified as soon as possible if you have a visual impairment requiring meeting materials to be produced in another format (Braille, audio -tape, etc.) This agenda has been posted in accordance with State Law, The Brown Act BL-h:agenda\122104 Agenda -Special City of Rohnert Park+6750 Commerce Boulevard ♦Rohnert Park, California 94928 Phone: (707)588-2227*FAX: (707)588-2274*WEB: www.rpcityorg ROHNERT PARK CITY COUNCIL SPECIAL MEETING AGENDA Tuesday, December 21, 2004 MEETING LOCATION: City Hall Conference Room 6750 Commerce Blvd., Rohnert Park, CA 94928 2:00 p.m. CITY COUNCIL SPECIAL MEETING - Call to Order Roll Call (Flores Smith Spradlin _Vidak-Martinez Mackenzie_) UNSCHEDULED PUBLIC APPEARANCES/COMMENTS: For public comment on items listed on the agenda (limited to 3-5 minutes per appearance & a 30 -minute total time limit, or allocation of time based on number of speaker cards submitted) ADJOURN TO CLOSED SESSION TO CONSIDER: CONFERENCE WITH LEGAL COUNSEL — ANTICIPATED LITIGATION Pursuant to Government Code section 54956.9c, consideration of initiation of litigation in the matter of Center for Biological Diversity v. U.S. Fish and Wildlife Service No. C 04- 04324 WHA (N.D. Cal). RECONVENE TO OPEN SESSION: Mayor's Report on Closed Session (Government Code 54957.1) ADJOURNMENT no later than 3:30 p.m. DISABLED ACCOMMODATION: If you have a disability which requires an interpreter or other person to assist you while attending this City Council meeting, please contact the City Offices at (707) 588-2227 at least 72 hours prior to the meeting to ensure arrangements for accommodation by the City. Please make sure the City Manager's office is notified as soon as possible if you have a visual impairment requiring meeting materials to be produced in another format (Braille, audio -tape, etc.) This agenda has been posted in accordance with State Law, The Brown Act BL-h:agenda\122104 Agenda -Special CONFIDENTIAL J;2-1.2-ljo v 5,0.e-�m� CLOSED SESSION 67 2 3 4 5 6 7 8 9 to 11 12 13 14 15. 16 17 18 19 20 21 22 23 24 25 26 27 28 Brendan Cummings (CA Bar No. 193952) Kassia Siegel (CA Bar No. 209497) Center for Biological Diversity P.O. Box 493 54870 Pine Crest Ave. Idyllwild, CA 92549 Phone: (9.51)659-6053 Facsimile: (951) 659-2484 Attorneys for Plaintiff CENTER FOR BIOLOGICAL DIVERSITY 13 `'l�Ecrco c�il,.uRT �Khlq S /U SESSION Linda Krop (CA Bar No. -118773) M'��es Karen M. Kraus (CA Bar No. 181756) Co�munientions ENVIRONMENTAL DEFENSE CENTER A f 04 906 Garden Street C to: Santa Barbara, CA 93101 C to: Telephone: (805) 963-1622 Facsimile: (805) 962-3152 3' Attorneys for Plaintiff ENVIRONMENTAL DEFENSE CENTER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA } eNo CENTER FOR BIOLOGICAL DIVERSITY, a }2 41F non-profit corporation, and ENVIRONMENTAL ) DEFENSE CENTER, a non-profit corporation, ) COMPLAINT FOR DECLARATORY AND } INJUNCTIVE RELIEF Plaintiffs, ) vs. } U.S. FISH AND WILDLIFE SERVICE, and ) GALE A. NORTON, Secretary of the Interior: ) } Defendants COMPLAINT 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION 1. This action is the latest, and hopefully the last, necessary chapter in Plaintiffs' multi-year effort to afford the statutorily mandated protection of the Endangered Species Act ("ESA"), 16 U.S.C.§ 1531 et seg., to a unique and rapidly vanishing species, the California tiger salamander. In Center for Biological Diversity v. U.S. Fish and Wildlife Service C-02-0558 WHA (N. D. CA), this Court approved a Consent Decree which set deadlines for the Defendant U.S. Fish and Wildlife Service ("the Service"), an agency within the Department of Interior, to take long overdue steps to formally protect the California tiger salamander under the ESA. Specifically, the Consent Decree required the Service to first determine if the genetically distinct Sonoma County population of the California tiger salamander warranted emergency listing under the ESA, and if so, to promptly protect it as such. Additionally, the Consent Decree required the Service to propose and ultimately finalize a listing decision for the species in the remainder of its range in Central California. 2. Pursuant to the Consent Decree, the Service listed the Sonoma County population of the California tiger salamander as "endangered" under the Endangered Species Act on an emergency basis in July, 2002, and finalized the "endangered" listing in March, 2003. 67 Fed. Reg. 47726; 68 Fed. Reg. 13497. Subsequently, also pursuant to the Consent Decree, on August 4, 2004, the Service issued a final rule listing the California tiger salamander as "threatened" throughout its range. 69 Fed. Reg. 47212. 3. While the August 4, 2004 rule applied much needed statutory protection to the California tiger salamander in the previously unprotected Central California portion of its range, the rule also, arbitrarily and unlawfully, reduced protections for the highly imperiled Sonoma County population, as well as the previously listed and similarly distinct Santa Barbara County population. The Service, without any justification, and ignoring the advice of its own as well as independent scientists, reclassified the Sonoma and Santa Barbara populations from "endangered" to "threatened". Such reclassification was made even though the Service had previously determined that these populations, which each separately meet the statutory definition of "species" under the ESA, were so imperiled that the Service had listed them as "endangered" on an emergency basis. COMPLAINT Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. In addition to the improper "downlisting" of the Sonoma and Santa Barbara populations from "endangered" to "threatened," the Service also concurrently promulgated a regulation authorizing an unlimited amount of "take" of the California tiger salamander, categorically exempting from the general "take" prohibitions of the ESA a broad range of activities the Service had previously determined were factors in imperiling the species. Prior to this action, take resulting from such activities could be exempted on a case-by-case basis, but only if the Service determined that the taking would not jeopardize the species and if measures were implemented to minimize and mitigate the impact of the taking. The Service applied the new categorical exemption to the Sonoma and Santa Barbara populations, despite their highly imperiled status, without any explanation and without meeting the statutory criteria for such application. Moreover, the Service promulgated this regulation without any analysis as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seg. 5. Additionally, the Service has failed, both with regard to the separate listing of the Sonoma County population of the California tiger salamander, as well as with the August 4, 2004 listing of the species throughout its range, to "concurrently" designate "critical habitat" for the species as required by the ESA. 6. In sum, through this action, Plaintiffs seek to overturn those portions of the August 4, 2004 final rule which unlawfully reclassified the Sonoma and Santa Barbara County populations of the California tiger salamander from "endangered" to "threatened" and which apply exemptions to the "take" prohibitions of the ESA to these populations. Plaintiffs also challenge the failure of the Service to comply with NEPA in promulgating the "take" exemption regulation. Plaintiffs do not challenge the "threatened" listing for the Central California population of the California tiger salamander or the application of the "take" exemption to the Central California population contained in the same rulemaking. Finally, Plaintiffs seek an order compelling the Service to designate "critical habitat" for the California tiger salamander by a date certain. Plaintiffs seek such relief so as to finally afford the California tiger salamander the full protections of the ESA that it desperately needs to ensure that it remains a part of California's living natural heritage in perpetuity. COMPLAINT JURISDICTION AND VENUE Page 2 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 (federal question), 2201 (declaratory relief), and 2202 '(injunctive relief), 16 U.S.C. §§ 1540(c) and (g) (action arising under the ESA and citizen suit provision), and 5 U.S.C. § 702 (Administrative Procedures Act). Plaintiffs served notice upon Defendants of their intent to file suit for the violations alleged in this Complaint more than sixty days ago. Defendants have not remedied the alleged violations. An actual controversy exists between the parties within the meaning of 28 U.S.C. § 2201. S. Venue is properly vested in this Court pursuant to 16 U.S.C. § 1540(g)(3)(A) and 28 U.S.C. § 1391(e) as the California tiger salamander which is the subject of this lawsuit occurs in this judicial district. Pursuant to Civil Local Rule 3-2(c), the appropriate intra -district assignment to this case is to either the San Francisco division or the Oakland division. PARTIES 9. Plaintiff CENTER FOR BIOLOGICAL DIVERSITY ("the Center") is a non-profit corporation with offices in San Francisco, Idyllwild, and San Diego, California; Phoenix and Tucson, Arizona; Portland, Oregon, and Silver City, New Mexico. The Center is actively involved in species and habitat protection issues throughout the western United States. The Center has members throughout California, including in the areas where the California tiger salamander is or historically was found, including but not limited to in Sonoma County, in Alameda and Contra Costa Counties, and in Santa Barbara County. The Center's members and staff include local residents with educational, scientific research, ecological, moral, 'spiritual and recreational interests in the California tiger salamander and other rare species in the region. The Center's members and staff also enjoy the biological, recreational and aesthetic values of the region inhabited by this species. The Center, its members and staff have participated in efforts to protect and preserve the habitats essential to* the continued survival of this species, and use the regions which serve as habitat and potential habitat for this species. The Center brings this action ori its own behalf and on behalf of its adversely affected members and staff. 10. Plaintiff ENVIRONMENTAL DEFENSE CENTER ("EDC") is a California non-profit corporation with principal offices in Santa Barbara County. The EDC is actively involved in species and habitat preservation issues. The EDC was founded in 1977 to protect and preserve unique environmental features of California, including biological resources. The EDC has members throughout COMPLAINT Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California, including those who live near and visit the areas in Santa Barbara County that serve as habitat for the Santa Barbara population of the California tiger salamander. The EDC's members include local residents with educational, moral, spiritual, scientific, ecological 'and/or recreational interests in the California tiger salamander. The EDC's members also enjoy the biological, recreational, and/or aesthetic values of the areas inhabited by the California tiger salamander. The EDC and its members have participated in local efforts to protect and preserve the local habitat essential to the continued survival of the California tiger salamander. Since 1993, EDC has made numerous efforts to ensure that this species is provided with the full legal protection and benefits conferred by the ESA. The EDC brings this action on its own behalf and on behalf of its adversely affected members, Board of Directors and staff. 11. Defendants' unlawful action of reclassifying the Santa Barbara and Sonoma County populations of the California tiger salamander from "endangered" to "threatened" and of authorizing "take" of the species, and Defendants' failure to designate critical habitat for the species interferes with the survival and recovery of the species and protection of its habitat and, thus, facilitates the decline of the species and its habitat. Moreover, Plaintiffs rely upon the Defendants to comply with the procedural and substantive mandates of the ESA and NEPA. Without such compliance, species such as the California tiger salamander are deprived of Congressionally mandated protection. Therefore, the above-described interests of Plaintiffs and their members have been, are being, and will continue to be adversely affected and irreparably injured by Defendants' unlawful actions. Unless the relief requested is granted, Plaintiffs' interests will continue to be adversely affected and injured by the implementation of Defendants' unlawful actions and inactions. 12. Defendant UNITED STATES FISH & WILDLIFE SERVICE ("the Service") is a federal agency within the Department of Interior authorized and required by law to protect and manage the fish, wildlife and native plant resources of the United States, including implementing and enforcing the ESA. The Service has responsibility under the ESA over the California tiger salamander which is the subject of this action. 13. Defendant GALE A. NORTON is the Secretary of the Interior and has ultimate responsibility for the implementation of the ESA with regard to terrestrial species such as the California tiger COMPLAINT Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 salamander, and for compliance with all other federal laws applicable to the Department of the Interior. Defendant GALE A. NORTON is sued in her official capacity. Defendants GALE A. NORTON and UNITED STATES FISH & WILDLIFE SERVICE are collectively referred to as "the Service." LEGAL FRAMEWORK A. The Endangered Species Act 14. The Endangered Species Act ("ESA") is a federal statute the purpose of which is to conserve endangered and threatened species and the ecosystems upon which they depend. 16 U.S.C. § 1531(b). The ESA "is the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennesee Valley Authority v. Hill, 437 U.S. 153, 180 (1978). The Supreme Court's review of the ESA's "language, history, and structure" convinced the Court "beyond a doubt" that "Congress intended endangered species to be afforded the highest of priorities." Id. at 174. As the Court found, "the plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost." Id. at 184. 15. Once a species comes within the purview of the ESA, an imposing array of statutory protections applies. For example, Section 7 requires all federal agencies to "insure" that their actions neither "jeopardize the continued existence" of any listed species nor "result in the destruction or adverse modification" of its "critical habitat." 16 U.S.C. § 1536(a)(2). Section 9 prohibits, among other things, "any person" from "taking" endangered species. 16 U.S.C. §1538(a)(1)(B). Other provisions require the FWS to designate "critical habitat" for listed species, 16 U.S.C. §1533(a)(3), require the FWS to "develop and implement" recovery plans for listed species, 16U.S.C. §1533(f), authorize the FWS to acquire land for the protection of listed species, 16 U.S.C. §1534, and make federal funds available to states to assist in their efforts to preserve and protect threatened and endangered species, 16 U.S.C. § 1535(d). 16. A species is "endangered" if it "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is "threatened" if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). I COMPLAINT Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. The term "species" is defined broadly under the ESA to include "any subspecies of fish or wildlife or plants and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532 (16). A distinct population segment ("DPS") of a vertebrate species can be protected as a "species" under the ESA even though it has not formally been described as a "species" in the scientific literature. A species may be composed of several DPSs, some or all of which warrant listing under the ESA. 18. No matter how imperiled a species might be, it does not receive any protection under the ESA unless it is officially listed as threatened or endangered. As a result, Congress aptly described Section 4 of the ESA, 16 U.S.C. §1533, the section that sets out the process for listing a species, as "[t]he cornerstone of effective implementation of the Endangered Species Act ...." S. Rep. No. 418, 97th Cong., 2d Sess. at 10; see also H. Rep. No. 567, 97th Cong., 2d Sess. at 10 ("The listing process under Section 4 is the keystone of the Endangered Species Act"). 19. Section 4 sets forth a detailed process by which the Secretary of Interior through her designee I the U.S. Fish and Wildlife Service adds to the list of threatened and endangered species. 16 U.S.C. § 1533. The listing process can begin either by citizen petition or by .internal Service processes. In either case, strict timelines apply once the process is initiated. In most cases the process begins when a petition for listing is received by the Service. 16 U.S.C. § I 533(b)(3)(A). Upon receiving the petition, the Service must issue an initial finding as to whether the petition "presents substantial scientific or commercial information indicating that the petitioned action may be warranted." Id. The Service must make this initial fording "[t]o the maximum extent practicable, within 90 days after receiving the petition." Id. If the Service determines that the petition presents substantial information that a listing may be warranted, it must "promptly commence a review of the status of the species" to determine whether listing is (1) warranted, (2) not warranted, or (3) warranted but precluded by other pending proposals that require immediate attention. 16 U.S.C. § 1533(b)(3)(B). This fording is due "within 12 months after receiving a petition." Id. If the 12 -month finding concludes that listing is warranted, the Service must simultaneously publish a proposed rule to list the species in the Federal Register. 16 U.S.C. § 1533(b)(3)(13)(11). Within 12 months of publishing the proposed rule, the Service must make a final listing determination for the species. At this point, the Service must either publish a final rule COMPLAINT Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 listing the species, publish a withdrawal of the proposal, or if there is substantial disagreement about scientific data, delay a final determination for up to six months to solicit more scientific information. 16 U.S.C. §§ 1533(b)(6)(A)(1) & 1533(b)(6)(13)(1). 20. In sum, these non -discretionary timelines require the Service under normal circumstances to finalize .the listing of a species within two years of receipt of a petition. In reality, as was the case with the California tiger salamander, this deadline is rarely met. Additionally, the ESA also mandates that the Service act on a shorter timeframe when necessary to protect a species. The Service is required, when the situation warrants it, to issue an emergency regulation to prevent an "emergency posing a significant risk to the well being of any species." 16 U.S.C. § 1533(b)(7). Such an emergency regulation remains in effect for up to 240 days, at which time the Service must issue a final rule to continue the protection. Id. 21. While the emergency listing provisions provide ample mechanism for the Service to list a species in a shorter timeframe than two years from the receipt of a petition, the only mechanism provided by the ESA for the Service to lawfully delay processing of a petition is if the agency in its 1.2 - month finding determines that the immediate issuance of a proposed rule is "warranted but precluded." 16 U.S.C. § 1533(b)(3)(B). In order for the Service to lawfully conclude that a proposed rule to list a species is warranted but precluded, both of the following circumstances must be met: (1) the immediate proposal and timely promulgation of a final regulation to list the species is precluded by pending proposals to determine whether any species is an endangered species or a threatened species, and (2) expeditious progress is being made to add species to the threatened and endangered list and .to reclassify or delist other species as necessary. 16 U.S.C. § 1533(b)(3)(B)(iii). Any species for which a warranted but precluded 12 -month fording is made is treated as a petition for which a positive 90 -day fording has been made. Within one year of the date of the warranted but precluded finding, the Service must make a new 12 -month finding on the petition. 16 U.S.C. § 1533(b)(3)(C)(i), 50 C.F.R. §424.14(b)(4). 22. When this provision was added to the ESA in 1982, Congress intended that any delay in listing caused by a warranted but precluded finding be a limited one and that the Service issue a proposed listing rule "as soon as possible" after a warranted but precluded finding. H.R. Conf. Rep. No. 835, COMPLAINT Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 97th Cong_, 2nd Sess. at 22. Congress explicitly made any warranted but precluded finding reviewable so that the Courts could "separate justifications grounded in the purposes of the [ESA] from the footdragging efforts of a delinquent agency." Id.; 16 U.S.C. § 1533(b)(3)(C)(ii). 23. Concerned that species were going extinct while awaiting listing, in 1988 Congress amended the ESA to require that the Service "shall implement a system to monitor effectively the status of all [warranted but precluded] species, and shall make prompt use of the authority under paragraph 7 [the emergency listing powers] to prevent a significant risk to the well being of any such species." 16 U.S.C. § 1533(b)(3)(C). 24. As mentioned above, once a species is listed an array of legal protections is triggered. One such protection comes through the designation of critical habitat. Critical habitat is defined in Section 3 of the ESA as: "(i) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the [ESA], on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it was listed .... upon a determination by the Secretary that such areas are essential for the conservation of the species." 16 U.S.C. § 1532(5)(A). 25. Congress amended Section 4 of the ESA, 16 U.S.C. § 1533, in 1978 to mandate that, when the Service lists a species as endangered or threatened, the agency generally must also concurrently designate critical habitat for that species. Section 4(a)(3)(A)(1) of the ESA now states that, "to the maximum extent prudent and determinable," the Service: shall, concurrently with making a determination ... that a species is an endangered species or threatened species, designate any,habitat of such species which is then considered to be critical habitat .... 16 U.S.C. § 1533(a)(3)(A)(i); see also id. at § 1533(b)(6)(C). In reality the Service almost never designates critical habitat'absent a court order to do so. The ESA generally requires that critical habitat designation take place concurrently with listing because critical habitat provides important protection for imperiled species beyond that provided by listing alone. Pursuant to Section 7(a)(2) of the ESA, federal agencies must insure through consultation with the Service that any action they authorize, fund, or carry out will not "jeopardize the continued existence of any [listed] species." Id. at § 1536(a)(2). COMPLAINT Page 8 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For species with critical habitat, each federal agency must additionally guarantee that its actions will not "result in the destruction or adverse modification" of that habitat. Id. 26. By definition, critical habitat includes areas "essential for the conservation of [listed] species." Id. at § 1532(5)(A). "Conservation," in turn, means recovery of these species "to the point at which the measures provided pursuant to this chapter are no longer necessary." Id. at § 1532(3). Thus, while the Section 7(a)(2) duty not to "jeopardize the continued existence" of listed species helps to ensure their survival, the critical habitat duty allows these species to recover so that they may eventually be delisted. 27. In addition to the protections provided by Section 7 consultation and critical habitat, the other primary protection provided by the ESA is Section 9's prohibition against any "take" of an endangered species. 16 U.S.C. § 1538. The "take" prohibition applies to any "person." Id. A "person" includes private parties as well as local, state, and federal agencies. 16 U.S.C. § 1532(13). "Take" is defined broadly under the ESA to include harming, harassing, trapping, capturing, wounding, or killing a listed species either directly or by degrading its habitat sufficiently to impair essential behavior patterns. 16 U.S.C. § 1532(19). 28. There are two exceptions to Section 9's take prohibitions. First, Section 10 of the ESA permits a non-federal entity to "take" listed species incidental to an otherwise lawful activity only after obtaining an Incidental Take Permit. 16 U.S.C. § 1539. Second, a federal agency may take listed species only in accordance with an Incidental Take Statement issued pursuant to a Section 7 consultation. 16 U.S.C. §§ 1536(b)(4) and 1536(0)(2). In either case, the Service must first conclude that the taking will not jeopardize the species and must set forth terms and conditions that must be followed to minimize and mitigate the impacts of the taking. 16 U.S.C. §§ 1536(b)(4) and 1539. 29. As described above, a species may be listed as either "threatened" or "endangered" under the ESA. The primary regulatory distinction between these two classifications relates to the applicability of Section 9's prohibition on take. The ESA directly applies Section 9's prohibitions only to species listed as "endangered." 16 U.S.C. § 1538. However, Section 4(d) requires the Service to promulgate "protective regulations" where the agency deems them "necessary and advisable to provide for the conservation of such species," including regulations that apply any or all of the prohibitions of Section 9 to species listed as "threatened" 16 U.S.C. § 1533(d). Accordingly, the Service has promulgated a COMPLAINT Page 9 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 blanket regulation pursuant to Section 4(d) that, absent a separate species-specific rule, prohibits all take of threatened species. 50 C.F.R. § 17.31(a). Because of this, the prohibitions of Section 9 and the processes for exemption from such prohibitions through an Incidental Take Permit or Incidental Take Statement generally apply to both threatened and endangered species. 30. The Service has, however, in several instances, such as with the California tiger salamander in this case, promulgated species-specific Section 4(d) rules exempting certain activities from the general take prohibition contained in 50 C.F.R. § 17.31(a). For such species, an activity fitting within the take exemption is deemed to not violate Section 9 and no Incidental Take Permit or Incidental Take Statement is required for the activity. Such an exemption, however, is only available if the species is listed as "threatened." If the species is listed as "endangered" take can only be permitted through an Incidental Take Permit or Incidental Take Statement. 31. While a determination as to whether an imperiled species qualifies for listing as "threatened" rather than "endangered" is supposed to be based -solely on the "best available science," in reality the Service often lists species as "threatened" rather than "endangered" so it can make use of the broader take exceptions available through Section 4(d) rather than the more stringent requirements of an Incidental Take Permit or Incidental Take Statement. Such is the case with the reclassification of the Sonoma and Santa Barbara DPSs of the California tiger salamander from "endangered" to "threatened." B. The National Environmental Policy Act ("NEPA") 32. The purpose of the National Environmental Project Act ("NEPA") is to "promote efforts which will prevent or eliminate damage to the environment." 42 U.S.C. § 4331. NEPA's fundamental purposes are to guarantee that: (1) agencies take a "hard look" at the environmental consequences of their actions before these actions occur by ensuring that the agency carefully considers detailed information concerning significant environmental impacts; and (2) agencies make the relevant information available to the public so that it may also. play a role in both the decisionmaking process and the implementation of that decision. See, e.g. 40 C.F.R. § 1500.1. 33. NEPA and the regulations promulgated thereunder by the Council on Environmental Quality ("CEQ") require that all federal agencies, including the Service, must prepare an environmental impact COMPLAINT Page 10 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statement ("EIS") for all "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C); see also 40 C.F.R. § 1501.4. 34. An _EIS must provide a detailed statement of: (1) the environmental impact of the proposed action; (2) any adverse environmental effects that cannot be avoided should the proposed action be implemented; (3) alternatives to the proposed actions; (4) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(C). 35. An EIS must "inform decision -makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. NEPA also requires federal agencies to analyze the direct, indirect, and cumulative impacts of the proposed action. 40 C.F.R. §§ 1508.7, 1508.8. In addition to alternatives and impacts, NEPA requires agencies to consider mitigation measures to minimize the environmental impacts of the proposed action. 40 C.F.R. § 1502.14 (alternatives and mitigation measures); 40 C.F.R. § 1502.16 (environmental consequences and mitigation measures). 36. An agency may first prepare a detailed Environmental Assessment ("EA") to determine whether the project may significantly affect the environment and requires a full EIS. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.9. 37. Significance is based upon the "intensity" and "context" of the action. 40 C.F.R. § 1508.27. "Context" refers to the geographic and temporal scope of the agency action and the interests affected. Id. § 1508.27(a). "Intensity" addresses the severity of the impacts. Id. § 1508.27(b). Factors relevant to intensity include: the degree to which the effects on the quality of the human environment are likely to be highly controversial; the degree to which the action may adversely affect an endangered or threatened species or its critical habitat; the presence of "uncertain impacts or unknown risks;" whether the action is "related to other actions with individually insignificant but cumulatively significant effects;" and whether the project "threatens a violation" of other laws. Id. at § 1508.27(b). COMPLAINT Page I 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 38. If after preparing and EA, the agency determines an EIS is not required, the agency must provide a "convincing statement of reasons" why the project's impacts are insignificant and issue a Finding of No Significant Impact or "FONSI." 40 C.F.R. §§ 1501.4, 1508.9, 1508.13. 39. The promulgation of an ESA Section 4(d) rule authorizing the otherwise prohibited take of a threatened species is a "major Federal action significantly affecting the quality of the human I I environment." FACTUAL AND PROCEDURAL BACKGROUND A. The California Tiger Salamander 40. The California tiger salamander (Ambystoma californiense) is an amphibian native to California that was historically distributed throughout most of the Central Valley, adjacent foothills, and the Coast Ranges, with disjunct populations occurring in the Santa Rosa Plain in Sonoma County and in northwestern Santa Barbara County. The populations of the species found in Sonoma and Santa Barbara County are geographically and genetically distinct from each other and from the Central California population, and as described below, may ultimately warrant recognition as separate species. 41. The California tiger salamander is a species that spends most of its life underground in abandoned rodent burrows. In order to reproduce, the California tiger salamander requires seasonal ponds, or vernal pools, in which to lay its eggs. Adult salamanders migrate to pools to breed on rainy nights in early winter. Female California tiger salamanders lay between 400 to 1,300 eggs which hatch into larvae in 10 to 14 days. California tiger salamander larvae require a minimum of approximately 10 weeks in this aquatic habitat to metamorphose to the terrestrial stage. In the late spring or early summer, before the' ponds dry completely, metamorphosed juveniles leave the ponds and enter nearby small mammal burrows after spending up to a few days in mud cracks or tunnels in moist soil near the water. Juveniles and adults may emerge from these retreats to feed during nights of high relative humidity before settling in their selected underground, or estivation, sites for the dry summer months. 42. The California tiger salamander is a species with a relatively low reproductive output. California tiger salamanders are often six years old before breeding for the first time. Scientists estimate that less than 50% of California tiger salamander breed more than once in their lifetime. In years where rainfall begins late in the season, females may forego breeding altogether. When COMPLAINT Page 12 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California tiger salamanders do attempt to breed, the pools that they lay eggs in may not hold water long enough for successful metamorphosis. The larvae will dry out and perish if a pool dries before larvae complete metamorphosis. 43. Because of the California tiger salamander's naturally low reproductive output and vulnerability to natural climatic fluctuations, the species will normally undergo small-scale, local extirpations from time to time. That is, in some years, the species will disappear altogether from a given breeding site. Research has shown that vernal pool complexes and large blocks of connected habitat are necessary to the long term survival of the species, because habitat connectivity will allow the species to recolonize areas from which it has temporarily disappeared. Scientists have suggested that the species needs complexes of several breeding pools surrounded by a minimum of 400 acres of uplands habitat in order to survive in the long term. Isolated populations are highly vulnerable to extirpation with no chance of recolonization. 44. The Sonoma County distinct population segment of the California tiger salamander (hereinafter "Sonoma salamander") occurs only in the Santa Rosa Plain in Sonoma County, in a six long wide by four mile wide band of habitat that extends roughly from Santa Rosa to Petaluma on the Route 101 corridor. The Sonoma salamander is geographically isolated from all other areas of the state where the California tiger salamander occurs. The Sonoma salamander has been genetically isolated from all other populations of the California tiger salamander statewide for approximately one million years. 45. While the California tiger salamander is in serious trouble throughout its range, the Sonoma salamander is quite literally on the brink of extinction. The Sonoma salamander, which once occurred throughout the Santa Rosa Plain, has been reduced to only eight known breeding sites (some with multiple pools) that are increasingly fragmented. None of these sites harbors a Sonoma salamander population that is secure from known threats. All of the known breeding pools occur within 450 meters of roads. Many of the sites are threatened by current development proposals. While a few sites are considered "protected," they can all be described as "postage stamp" reserves, far smaller than what scientists believe is necessary for the long term survival of the species. The largest preserve is only 183 acres in size. When habitat has been this highly fragmented, the species cannot survive long-term. Individuals are crushed by cars while migrating to and from breeding pools, or bulldozed and killed COMPLAINT Page 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 while they are underground in their burrows. Temporarily unoccupied habitat is lost to development before the species can recolonize it. Add to this the impacts of natural factors (i.e. in dry years vernal pools do not hold water long enough for successful reproduction) and the species is on a rapid spiral I I towards extinction. 46. Like the Sonoma salamander, the Santa Barbara salamander is perilously close to extinction. The Santa Barbara distinct population segment of the California tiger salamander (hereinafter "Santa Barbara salamander") occurs only in the northwestern portion of Santa Barbara County. Following an extreme reduction in the amount of seasonal wetlands and uplands due to agricultural and urban development, the distribution of the Santa Barbara salamander is limited to six sub -populations. These sub -populations are considered isolated from each other, and each remains highly imperiled by threats such as urban development proposals, habitat fragmentation and road mortality, predation by non-native species, siltation of and other impacts to breeding pools, and the species' own small population size. The majority of habitat still occupied by the Santa Barbara salamander is ranchland. The Santa Barbara salamander is genetically distinct from other California tiger salamander populations, and expert scientists have noted that recognition of the Santa Barbara salamander as a distinct species may be justified. 47. In addition to the disjunct Sonoma and Santa Barbara populations, the largest population of the California tiger salamander (hereinafter "Central California salamander") occurs in portions of the Bay Area, including Alameda, Contra Costa, and Santa Clara Counties, as well as portions of the Central Valley, Central Coast Ranges, and Southern San Joaquin Valley. Once widely distributed throughout this large geographic area, the Central California salamander has also suffered from widespread habitat destruction and fragmentation, including ongoing conversions of habitat to urban and agricultural development. While not as critically imperiled as the Sonoma and Santa Barbara populations, the Central California salamander is clearly threatened, and absent protection likely to become endangered in the foreseeable future. At least fourteen percent of the Central California salamander's habitat is currently designated for urban or residential development, and this figure fails to capture true growth projections because city and county planning documents have variable planning horizons that almost never extend beyond 20 years. Approximately 220,000 new houses are estimated as needed each year COMPLAINT Page 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to meet the state's burgeoning population in the next 20 years. Most of the growth will occur in low density developments outside of current metropolitan areas, and much will occur within the range of the Central California salamander. The Central California salamander's habitat is also threatened by conversion to intensive agriculture, including vineyards. In addition, the Central California salamander is threatened by hybridization by non-native salamanders that have been introduced to the state and continue to spread. Along with predation by non-native species such as bullfrogs, the hybridization threat is extremely difficult to control or eliminate. B. The Salamander's Listing Under the ESA 48. Academic scientists have long recognized the need to protect the California tiger salamander and its habitat from extinction. As early as 1966, Dr. Robert Stebbins, one of the founding fathers of modern herpetology, suggested that the California tiger salamander be included on the first national list of endangered species. The California tiger salamander was not included at that time,. 49. The lengthy procedural history which underlies this litigation was first set in motion in February, 1992, when the Service received a petition from Dr. H. Bradley Shaffer, the world's leading scientific expert on the California tiger salamander, to list the species as endangered throughout its range in California. In August, 1993, Dr. Shaffer requested that the Service list the California tiger salamander populations in Sonoma and Santa Barbara Counties on an emergency basis. In April, 1994, the Service published 'a 12 -Month Finding on Dr. Shaffer's petition, finding that listing of the California tiger salamander throughout its range in California was "warranted but precluded" by higher priority actions. 59 Fed. Reg. 18353 (12 -Month Finding for the California Tiger Salamander, April 18, 1994). This finding made no mention of the pressing threats facing the isolated Sonoma and Santa Barbara populations or the request to emergency list these populations. 50. For many years, the Service took no further action to protect the California tiger salamander, and it remained in the "warranted but precluded" category without any formal protection under the ESA. Ultimately, lawsuits brought by Plaintiffs forced the Service to carry out its duties under the ESA and protect the three distinct population segments of the California tiger salamander. 1. Protection of the Santa Barbara Salamander as an Endangered Species COMPLAINT Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 51. Following litigation brought by Plaintiff EDC, on January 19, 2000, the Service promulgated an emergency rule protecting the Santa Barbara salamander. 65 Fed. Reg. 3095 (Emergency Rule To List the Santa Barbara County Distinct Population Segment of the California Tiger Salamander as Endangered, January 19, 2000.). At that time, the Service determined that the Santa Barbara salamander was distinct from other California tiger salamander populations (based on, among other factors, geographic isolation and marked genetic differentiation) and it was biologically and ecologically significant. Id. at 3097. The Service therefore designated the Santa Barbara salamander as a "distinct population segment" and eligible for listing as a "species" under the ESA. 65 Fed. Reg. at 3098. 52. The Service also concluded that because the Santa Barbara salamander was in "imminent danger of extinction" it required listing as "endangered" on an emergency basis. Id. at 3106-07. The Service reached this conclusion by considering the five statutory factors and the best available scientific and commercial data as required by the ESA and its implementing regulations. 16 U.S.C. § 1533 (a)(1); 50 C.F.R. § 424.11. 53. The emergency protections were permanently extended by a subsequent rule, published on September 21, 2000, in which the Service reiterated these conclusions and permanently listed the Santa Barbara salamander as endangered. 65 Fed. Reg. 57241 (Final Rule to List the Santa Barbara County Distinct Population of the California Tiger Salamander as Endangered, Sept. 21, 2000). The Service analyzed the best scientific and commercial data available and concluded that the Santa Barbara salamander faced a host of threats including the following: a. The Service concluded that the destruction, modification, and curtailment of Santa Barbara salamander habitat and range is a significant factor in the reduced distribution of the Santa Barbara salamander and that it remained a significant threat to the status of the species. Id. at 57252-54. b. The Service concluded that disease is a potential threat to the status of the Santa Barbara salamander. Id. at 57254. c. The Service concluded that predation by introduced or non-native species, including bullfrogs, mosquitofish, bass, and sunfish is a factor in the reduced distribution of the COMPLAINT Page 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Santa Barbara salamander and that it continued to pose a potential threat to the status of the species. Id. at 57254-55. The Service also determined -that predation by native species, when combined with other impacts, may cause a significant decrease in the population viability of the Santa Barbara salamander. Id. at 57255. d. The Service concluded that other natural and manmade factors, including habitat fragmentation, contaminants, rodent control, mosquito control, hybridization with, and competition from, introduced species, grazing and water drawdownsall present potential threats to Santa Barbara salamander and its aquatic and upland habitat. Id. at 57257-61. i. With regard to rodent control, the Service stated that active ground squirrel colonies are likely needed to sustain tiger salamanders, and that "rodent control programs may be responsible for the lack of California tiger salamander in some areas." Id. at 57260 (emphasis supplied). ii. With regard to grazing, the Service stated that "grazing generally is compatible with the continued use of rangelands by the California tiger salamander as lona as intensive burrowing rodent control programs are not implemented on such areas and grazing is not excessive." Id. at 57261 (emphasis supplied). e. The Service concluded that "Federal, State, and local regulations and ordinances, individually and collectively, do not provide adequate protection for California tiger salamanders or assure that California tiger salamanders will continue to survive in Santa Barbara County." Id. 54. Based upon the above findings, the Service concluded that the Santa Barbara salamander is "in imminent danger of extinction throughout most of its historic range." Id. The Service further stated that "[t]he survival of the Santa Barbara DPS of the California tiger salamander now depends on protecting as many breeding sites and their associated upland habitats from further degradation and destruction as possible, and on the rapid rehabilitation of sites that have been seriously degraded in the last few years," and that "The remaining subpopulations in Santa Barbara County are vulnerable to extinction from random natural or human -caused events unless sufficient habitat can be protected and the subpopulations increased in size." Id. COMPLAINT Page 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20. 21 22 23 24 •25 26 27 28 55. When the Service did not propose or designate critical habitat for the Santa Barbara salamander within the timeframes required by the ESA, Plaintiffs successfully brought an action to require it to do so. As a result of the court order in Environmental Defense Center, et. al., v. U.S. Fish and Wildlife Service, et. al., Case No. CV -03 -00195 -VAP (C.D. CA), the Service proposed geographic areas. to designate as critical habitat for the Santa Barbara salamander on January 22, 2004. 69 Fed. Reg. at 47245 (Proposed Designation of Critical Habitat for the Santa Barbara Distinct Population Segment of the California Tiger Salamander, January 22, 2004). Pursuant to the Court Order in that case, the Service must make a final critical habitat determination by November 15, 2004. 2_ Protection of the Sonoma Salamander as an Endangered Species 56. In the decade following the 1992 petition to list the California tiger salamander, the Service failed to take any action to protect the species in Sonoma County or in Central California, and the species continued to decline in these areas. In June, 2001, Plaintiff Center for Biological Diversity petitioned the Service to list the Sonoma salamander on an emergency basis. When the Service failed to take any action on this petition, the Center sued the Service to compel it to take action to protect the species both in Sonoma County and throughout the remainder of its range. Center for Biological Diversity v. U.S. Fish and Wildlife Service, C-02-0558 WHA (N. D. CA). The Consent Decree entered in this case required, inter alia, that the Service submit a determination on the Center's petition to list the Sonoma salamander for publication in the Federal Register by July 15, 2002, and that, if the Service determined that the Sonoma salamander warranted emergency listing, that the Service submit both an emergency listing rule and a final listing determination prior to the expiration of the emergency rule. Stipulation Settlement Agreement and Consent Decree, June 6, 2002 (Docket #58) in Center for Biological Diversity v. U.S. Fish and Wildlife Service, C-02-0558 WHA (N. D. CA) at pp. 3-4, ¶¶ 1-4. The Consent Decree further required the Service to submit a proposed rule to list the Central California salamander by May 15, 2003, and a final determination on the proposed rule by May 15, 2004. Id. at p. 4, ¶¶ 5-6. 57. The Service listed the Sonoma salamander on an emergency basis on July, 22, 2002. 67 Fed. Reg. 47726 (Emergency Rule Listing the Sonoma County Distinct Population Segment of the California Tiger Salamander as Endangered, July 22, 2002.). At that time, the Service determined that COMPLAINT Page 18 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27_i 28 the Sonoma salamander was distinct from other California tiger salamander populations (based on, among other factors, geographic isolation and marked genetic differentiation) and that it was biologically and ecologically significant. Id. At 47729-47730. The Service therefore designated the Sonoma salamander as a "distinct population segment," and therefore eligible for listing as a "species" under the ESA. Id. 58. The emergency rule further found that the Sonoma salamander was "imperiled by a variety of factors" that constituted "a significant and immediate risk" to the species. Id. The Service reached this conclusion by considering the five statutory factors and the best available scientific and commercial data as required by the Endangered Species Act and its implementing regulations. 16 U.S.C. § 1533 (a)(1); 50 CFR 424.11. 59. The Service analyzed the best scientific and commercial data available and concluded that the Sonoma salamander faced a host of threats including the following: a. The Service concluded that habitat destruction and fragmentation, primarily from urban development, is the primary threat to the Sonoma salamander. Id. at 47730-47732. The Service found that only seven viable breeding sites were known at the time of the emergency listing, and that plans to construct a residential development would result in the loss of one of the seven known sites and severely impact and further isolate two of the others. The Service found that these potential losses constituted "an emergency posing a significant and imminent risk to the well-being of the Sonoma County Distinct Population Segment of the California tiger salamander" such that emergency listing was necessary. Id. at 47726. b. The Service concluded that disease is a potential threat to the status of the Sonoma salamander. Id. at 47732-3. c. The Service concluded that predation by introduced or non-native species, including bullfrogs, mosquitofish, sticklebacks, and crayfish was a threat that potentially affects all known breeding populations of the Sonoma salamander. Id. at 47733. The Service COMPLAINT also determined that predation by native species, when combined with other impacts, Page 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 may cause a significant decrease in the population viability of the Sonoma salamander. Id. at 47733. d. The Service concluded that "Federal, State, and local laws have been insufficient to prevent past and ongoing losses of the limited habitat of the Sonoma County California tiger salamander." Id. at 47733. e. The Service concluded that other natural and manmade factors, including contaminants, ground squirrel and gopher control, hybridization with non-native salamanders, predation and competition with introduced species, mosquito control, and grazing all may have negative impacts to the Sonoma salamander and its aquatic and upland habitat. Id. at 47734. f. With regard to ground squirrel and gopher control, the Service stated "[c]ontrol of ground squirrels could significantly reduce the number of burrows available for use by the Sonoma County California tiger salamander," and specifically mentioned that owners of livestock seek to eliminate ground squirrel burrows because cows may break their legs if they accidentally step in a burrow. Id. at 47735. g. With regard to livestock grazing, the Service stated that "grazing generally is compatible with the continued use of rangelands by the California tiger salamander as long as intensive burrowing rodent control programs are not implemented on such areas, and grazing -is not excessive. Id. at 47736 (emphasis supplied). 60. Final listing of the Sonoma salamander as endangered, on March 19, 2003, permanently extended the protections offered by the emergency listing. 68 Fed. Reg. 13370 (Determination of Endangered status for the Sonoma County Distinct Population Segment of the California Tiger Salamander; Final Rule, Mar. 19, 2003). At that time, the Service determined based on its analysis of the five factors that the Sonoma salamander faced "imminent" extinction due to many factors which would occur without immediate and total protection of its remaining habitat. Id. at 13517. 3. Protection of the Central California Salamander and the Reclassification of the Santa Barbara and Sonoma Salamanders from "Endangered" to "Threatened" COMPLAINT Page 20 l' 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16* 17 18 19 20 21 22 23 24 25 26 27 28 61. Pursuant to its obligations under the Consent Decree, on May 23, 2003 the Service issued a notice of a proposal to list the Central California salamander as a threatened species_ 68 Fed. Reg. 28648 (Listing of the Central California Distinct Population Segment of the California Tiger Salamander; Proposed Rule, May 23, 2003). The notice proposed that the Central California salamander constituted a third DPS ("Central California salamander"), and that the DPS should be listed as "threatened" based on the five statutory factors. Id. at 28648, 28653 and 28662. 62. In the same notice proposing to list the Central California salamander as threatened, the Service also added a proposal to reclassify both the Sonoma and Santa Barbara salamanders from "endangered" to "threatened" status. Id. at 28648, 28667-68. The notice did not propose to eliminate the separate DPS listing for the Sonoma and Santa Barbara populations. Id. at 28648, 28668 ("We are not, however, proposing at this time to eliminate the DPSs in favor of a single listed population.") 63. The notice also included a proposed "protective regulation" under Section 4(d) of the ESA, 16 U.S.C. § 1533(d), authorizing the take of California tiger salamanders that occurs as a result of "routine ranching activities" (hereinafter "4(d) Rule"). Id. at 28648, 28665-67 and 28668. In the absence of this proposed 4(d) Rule, take of the California tiger salamander without incidental take authority issued pursuant to Sections 7 or 10 of the Endangered Species Act would be prohibited by the ESA and its implementing regulations. 16 U.S.C. § 1538(a); 50 C.F.R. § 17.31(a). 64. Plaintiffs submitted comments to the Service opposing the proposed reclassification of the Santa Barbara and Sonoma salamanders .and opposing the proposed 4(d) Rule authorizing take of the California tiger salamander. Plaintiffs' comments included detailed analyses and data in support of their opposition. 65. Many academic scientists, including the individuals selected by the Service to serve as peer reviewers of the proposed rule, submitted comments strongly criticizing the reclassification of the Sonoma and Santa Barbara salamanders and the 4(d) Rule as proposed. 66. On August 4, 2004, the Service issued the Final Rule at issue in this action ("Final Rule"). 69 Fed. Reg. 47212 (Determination of Threatened Status for the California Tiger Salamander; and Special Rule Exemption for Existing Routine Ranching Activities August 4, 2004). The Final Rule contains a COMPLAINT Page 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 number of components. First, the Final Rule listed the Central California salamander as a threatened species. Id. at 47212. Plaintiffs do not challenge the listing of the Central California salamander. 67. Second, the Final Rule reclassified both the Sonoma and Santa Barbara salamanders from "endangered" species to "threatened" species. Id. at 47241. a. In reclassifying the Sonoma and Santa Barbara salamanders, the Service did not evaluate the status of the Sonoma and Santa Barbara salamanders with respect to each of the five factors required by the ESA and its implementing regulations. 16 U.S.C. § 1533(a)(1); 50 CFR 424.11. b. In reclassifying the Sonoma and Santa Barbara salamanders, the Service did not address its previous conclusions regarding the five listing factors, and did not explain what has changed since the Sonoma and Santa Barbara salamanders were listed as "endangered" to warrant reclassification to "threatened" status. The Service also did not supply any legally adequate analysis for its abrupt regulatory reversal with regard to the Sonoma and Santa Barbara salamanders. c. In reclassifying the Sonoma and Santa Barbara salamanders, the Service also did not COMPLAINT consider and address the best available scientific and commercial data available. 16 U.S.C. § 1533(a)(1) and (b)(1); 50 CFR 424.11(b). The Service did not consider and address the large body of data supporting the emergency and final listings of the Sonoma and Santa Barbara salamanders, as well as the proposed critical habitat designation for the Santa Barbara salamander. This data demonstrates that the status of the Sonoma and Santa Barbara salamanders has not improved, that threats to the populations have not diminished, ,and that the populations remain in danger of extinction throughout all or a significant portion of their ranges. The Service also did not consider and respond to data submitted by scientists (including its own peer reviewers) and other members of the public that the status of the Sonoma and Santa Barbara salamanders has not improved, that threats to the populations have not diminished, and that the populations remain in danger of extinction throughout all or a significant portion of their ranges. Page 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d. The Service's decision to reclassify the Sonoma and Santa Barbara salamanders is also internally inconsistent and contradictory. For example, the Service states that the Santa Barbara and Sonoma salamanders are at higher risk than the species range wide, yet still concludes that the Santa Barbara and Sonoma salamanders should be reclassified as threatened. 69 Fed. Reg. at 47241. 68. Third, the Final Rule eliminates the separate DPS listings for the Santa Barbara and Sonoma salamanders, stating "Having determined that the Santa Barbara and Sonoma populations have the same listing status as the taxon as a whole, we are removing these populations as separately listed DPSs." Id. 47241. a. In eliminating the separate DPS listings for the Santa Barbara and Sonoma salamanders, the Service did not consider the best available scientific and commercial data in making its determination. The Service did not provide a rationale for the elimination of the DPS status beyond the statement "[h]aving determined that the Santa Barbara and Sonoma populations have the same listing status as the taxon as a whole, we are removing these populations as separately listed DPSs." Id. at 47241. The Service did not consider and address the large body of data supporting the emergency and final listings of the Sonoma and Santa Barbara salamanders that demonstrate that they are distinct from other populations of the species and ecologically and biologically significant. The Service also did not consider and respond to data submitted by scientists (including its own peer reviewers) and other members of the public that the Santa Barbara and Sonoma salamanders are distinct and significant. The Service made no finding that the Santa Barbara and Sonoma salamanders are not DPSs and therefore not eligible for listing as "species" under the ESA.' Rather, the Service on multiple previous occasions made findings that the Santa Barbara and Sonoma salamanders were DPSs and therefore were eligible for listing as "species" under the ESA. The Service provides no explanation for the reversal of its previous position. b. The Service never issued a proposed rule to eliminate the *separate. listings as DPSs of COMPLAINT the Santa Barbara and Sonoma salamanders. Page 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 69. Fourth and finally, the Final Rule adopted the proposed 4(d) Rule allowing take of the California tiger salamander that occurs during "routine ranching activities" (hereinafter "4(d) Rule"). 69 Fed. Reg. at 47248. The Service applied the 4(d) Rule to the California tiger salamander range wide, that is, to the Santa Barbara salamander, Sonoma salamander, and Central California salamander. The 4(d) Rule authorizes an unlimited amount of "take" of individuals of the California tiger salamander, so long as the "take" is the result of routine ranching activities. As defined in the Final Rule, routine ranching activities include but are not limited to: livestock grazing, stock pond management and maintenance, elimination of burrowing rodents by pesticide application and habitat modification, and fire prevention management. Id. at 47242-47245. a. In adopting the 4(d) Rule, the Service does not identify or discuss the potential impacts of the authorized activities with respect to the status of, and threats to, the Santa Barbara and Sonoma salamanders. The Service does not explain what, if anything, has changed such that the authorization of activities previously identified by the Service as threats to the survival and recovery of both the Sonoma and Santa Barbara salamanders should now be allowed. b. In adopting the 4(d) Rule, the Service does not discuss or address the significant comments raised by the public and by the Service's own peer reviewers regarding the impacts of the special rule on the Sonoma and Santa Barbara salamanders. c. In adopting the 4(d) rule, the Service acknowledges that the 4(d) Rule has the potential for "large scale take" of the salamander in certain locales. Id. at 47245. The Service identifies measures that could be implemented to minimize the potential for take, but does not require that such measures be implemented . Id. d. In adopting the 4(d) Rule, the Service authorizes activities that have been identified by the Service as threats to the continued existence of the Santa Barbara and Sonoma salamanders. e. In adopting the 4(d) Rule, the Service did not conduct any review of the 4(d) Rule COMPLAINT pursuant to NEPA, or provide any legally adequate rationale why NEPA review is not necessary. Page 24 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70. On August 10, 2004, the Service proposed critical habitat for the Central California salamander. 69 Fed. Reg. 48,570-48,649 (Designation of Critical Habitat for the California Tiger Salamander Central Population; Proposed Rule, August 10, 2004). The Service has failed to issue a final critical habitat determination concurrently with the listing of the species. 71. The Service has never proposed or designated critical habitat for the Sonoma salamander_ Instead, the Final Rule stated the Service's intention to delay designation of critical habitat for the Sonoma salamander for an unspecified and indefinite time period. 69 Fed. Reg. at 47245. The Final Rule gives no explanation for the failure to do so, other than to state that a proposal will be published "in the future." Id. CLAIMS FOR RELIEF First Claim for Relief Unlawful Reclassification of the Sonoma County Distinct Population Segment of the California Tiger Salamander from "Endangered" to "Threatened" and Elimination of its DPS Status [Violations of the ESA and the APA] 72. Each and every allegation set forth above in this Complaint is incorporated herein by reference. 73. On August 4, 2004, the Service reclassified the Sonoma County Distinct Population Segment of the California tiger salamander ("Sonoma salamander") from "endangered" to "threatened" and eliminated its status as a Distinct Population Segment. 69 Fed. Reg. 47212. 74. In reclassifying the Sonoma salamander the Service failed to comply with the non -discretionary requirements imposed by Section 4 of the ESA, its implementing regulations, and the Service's own guidance documents, including the requirements to use the best available science and to analyze the species' status in light of the five statutory listing factors. 16 U.S.C. §§ 1533(a)(1) & (b)(1)(A); 50 CFR 424.11. 75. In eliminating the separate listing of the Sonoma salamander as a Distinct Population Segment, the Service failed to comply with the non -discretionary requirements imposed by Section 4 of the ESA, its implementing regulations, and the Service's own guidance documents, including the requirements to use the best available science and to analyze the species' status in light of the five statutory listing factors. 16 U.S.C. §§ 1533(a)(1) & (b)(1)(A); 50 CFR 424.11. The Service also failed to issue a COMPLAINT Page 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proposed regulation eliminating the Distinct Population Segment as required by 16 U.S.C. § 1533(b)(5). 76. The Service's August 4, 2004 decision reclassifying the Sonoma salamander from "endangered" to "threatened" and eliminating its status as a Distinct Population Segment is arbitrary, capricious, and an abuse of discretion, in excess of statutory jurisdiction, authority or limitations, and without observance of procedure required by law. The Service's violation of the ESA is subject to judicial review under the ESA, 16 U.S.C. § 1540(g)(1)(C), and the APA, 5 U.S.C. §§ 701 through 706. Second Claim for Relief Unlawful Reclassification of the Santa Barbara Distinct Population Segment of the California Tiger Salamander from "Endangered" to "Threatened" and Elimination of its DPS Status [Violations of the ESA and the APA] 77. Each and every allegation set forth above in this Complaint is incorporated herein by reference. 78. On August 4, 2004, the Service reclassified the Santa Barbara County Distinct Population Segment of the California tiger salamander ("Santa Barbara salamander") from "endangered" to "threatened" and eliminated its status as a Distinct Population Segment. 69 Fed. Reg. 47212. 79. In reclassifying the Santa Barbara salamander the Service failed to comply with the non - discretionary requirements imposed by Section 4 of the ESA, its implementing regulations, and the Service's own guidance documents, including the requirements to use the best available science and to analyze the species' status in light of the five statutory listing factors. 16 U.S.C. §§ 1533(a)(1) & (b)(1)(A); 50 CFR 424.11. 80. In eliminating the separate listing of the Santa Barbara salamander as a Distinct Population Segment, the Service failed to comply with the non -discretionary requirements imposed by Section 4 of the ESA, its implementing regulations, and the Service's own guidance documents, including the requirements to use the best available science and to analyze the species' status in light of the five statutory listing factors. 16 U.S.C. §§ 1533(a)(1) & (b)(1)(A); 50 CFR 424.11. The Service also failed to issue a proposed regulation eliminating the Distinct Population Segment as required by 16 U.S.C. § 1533(b)(5). COMPLAINT Page 26 1 2 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 81.. The Service's August 4, 2004 decision reclassifying the Santa Barbara salamander from "endangered" to "threatened" and eliminating its status as a Distinct Population Segment is arbitrary, capricious, and an abuse of discretion, in excess of statutory jurisdiction, authority or limitations, and without observance of procedure required by law. The Service's violation of the ESA is subject to judicial review under the ESA, 16 U.S.C. § 1540(g)(1)(C), and the APA, 5 U.S.C. §§ 701 through 706. Third Claim for Relief Unlawful Authorization of Take of the Sonoma and Santa Barbara Distinct Population Segments of the California Tiger Salamander lViolations of the ESA and the APA] 82. Each and every allegation set forth above in this Complaint is incorporated herein by reference. 83. The ESA and its implementing regulations generally prohibit "take" of endangered and threatened species. 16 U.S.C. § 1539; 50 C.F.R. § 17.31(a). In the August 4, 2004 Final Rule, the Service also finalized the Section 4(d) Rule authorizing unlimited take of California tiger salamanders that occurs during "routine ranching activities." 69 Fed. Reg. 47212. The Service stated that this rule was promulgated under the authority of Section 4(d) of the ESA, 16 U.S.C. § 1533(d). 69 Fed. Reg. at 47241. 84. In promulgating the Section 4(d) Rule authorizing take of the Sonoma and Santa Barbara Distinct Population Segments of the California tiger salamander, the Service failed to comply with the non -discretionary requirements imposed by Section 4 of the ESA, its implementing regulations, and the Service's own guidance documents, including the requirement to promulgate regulations that are. "necessary and advisable to provide for the conservation of such species." 16 U.S.C. § 1533(d). The Service failed to articulate any lawful rationale for the promulgation of the Section 4(d) Rule authorizing unlimited take of the Sonoma and Santa Barbara Distinct Population Segments of the California tiger salamander or explain how the 4(d) Rule was necessary and advisable for the conservation of the species. 85. The Service's promulgation of and application of the August 4, 2004 Section 4(d) Rule authorizing take of the Sonoma and Santa Barbara Distinct Population Segments of the California tiger salamander that occurs during "routine ranching activities" is arbitrary, capricious, and an abuse of COMPLAINT Page 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discretion, in excess of statutory jurisdiction, authority or limitations, and without observance of procedure required by law. The Service's violation of the ESA is subject to judicial review under the ESA, 16 U.S.C. § 1540(g)(1)(C), and the APA, 5 U.S.C. §§ 701 through 706. Fourth Claim for Relief Failure to Prepare an Environmental Impact Statement or Environmental Assessment in Violation of NEPA and its Implementing Regulations Violations of NEPA and APA] 86. Each and every allegation set forth above in this Complaint is incorporated herein by Ireference. 87. The Service's promulgation of the Section 4(d) rule authorizing take of the California tiger salamander is a major federal action significantly affecting the quality of the human environment. 88. The Service's failure to prepare an EA or an EIS for the promulgation of the Section 4(d) rule authorizing take of the California tiger salamander is a violation of NEPA, 42 U.S.C. § 4321 et seq. 89. The Service's failure to prepare an EA or an EIS for the promulgation of the Section 4(d) rule authorizing take of the California tiger salamander as required by NEPA is arbitrary, capricious, and not in accordance with law as required by Section 706(2) of the APA, and is subject to judicial review thereunder. 5 U.S.C. §§ 701 through 706. 90. The Service's failure to prepare an EA or an EIS for the promulgation of the Section 4(d) rule authorizing take of the California tiger salamander as required by NEPA constitutes agency action that is unreasonably delayed and/or unlawfully. withheld as provided by § 706(1) of the APA, and is subject to judicial review thereunder. 5 U.S.C. §§ 701 through 706. Fifth Claim for Relief Failure to Designate Critical Habitat for the California Tiger Salamander [Violations of the ESA] 91. Each and every allegation set forth above in this Complaint is incorporated herein by reference. 92. The Service listed the Sonoma County Distinct Population Segment of the California tiger salamander ("Sonoma salamander") on an emergency basis on July, 22, 2002. 67 Fed. Reg. 47758. At COMPLAINT Page 28 1 2 3 4 5 6 7 8 .9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the same time, the Service issued a proposed rule to list the Sonoma salamander as endangered. 67 Fed. Reg. 47758. The Service issued a final rule listing the Sonoma salamander as endangered on March 19, 2003. 68 Fed. Reg. 13370. 93. The Service's critical habitat determination must be made concurrently with its final determination that a species is endangered or threatened. 16 U.S.C. §§ 1533(a)(3), 1533(b)(6)(A) & (C). The. Service has never proposed or designated critical habitat for the Sonoma salamander, nor has the Service found that such designation of critical habitat is "not prudent," or "not determinable." The Service has thus failed to perform a non -discretionary ESA duty and is therefore in violation of the ESA. 94. On August 4, 2004 the Service published a final rule listing the California tiger salamander throughout its range in California. 65 Fed. Reg. 47212. The Service did not designate critical habitat for the California tiger salamander concurrent with this listing, nor did the Service find that designation of critical habitat is "not prudent," or "not determinable." While the Service published a proposed critical habitat determination for the Central California population of the California tiger salamander, on August 10, 2004, 69 Fed. Reg. 48570, this proposal has not been finalized. The Service's critical habitat determination must be made concurrently with its final determination that a species is endangered or threatened. 16 U.S.C. §§ 1533(a)(3), 1533(b)(6)(A) and (C). The Service has thus failed to perform a non -discretionary ESA duty and is therefore in violation of the ESA. The Service's failure to designate critical habitat for the Sonoma and Central California populations of the California tiger salamander violates the agency's non -discretionary duty under Section 4 of the ESA, 16 U.S.C. § 1533, to designate critical habitat "to the maximum extent prudent and determinable" concurrently with listing, 16 U.S.C. § 1533(a)(3), and/or violates the ESA within the meaning of the APA, 5 U.S.C. § 706. The Service's violation of the ESA is subject to judicial review under the ESA, 16 U.S.C. § 1540(g)(1)(C), and the APA, 5 U.S.C. §§ 701 through 706. COMPLAINT Page 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment providing the following relief: 1) A Declaratory judgment that the Service's reclassification of the Sonoma County distinct population segment of the California tiger salamander from "endangered" to "threatened" and the elimination of its status as a distinct population segment is unlawful; 2) A Declaratory judgment that the Service's reclassification of the Santa Barbara County distinct population segment of the California tiger salamander from "endangered" to "threatened" and the elimination of its status as a distinct population segment is unlawful; 3) Preliminary and permanent injunctive relief compelling the Service to withdraw the portions of the Final Rule reclassifying the Sonoma County distinct population segment of the California tiger salamander from "endangered" to "threatened" and eliminating its status as a distinct population segment, and to reinstate the listing of the Sonoma County distinct population segment of the California tiger salamander as "endangered;" 4) Preliminary and permanent injunctive relief compelling the Service to withdraw the portions of the Final Rule reclassifying the Santa Barbara County distinct population segment of the California tiger salamander from "endangered" to "threatened" and eliminating its status as a distinct population segment, and to reinstate the listing of the Santa Barbara County distinct population segment of the California tiger salamander as "endangered; 5) A Declaratory judgment that the Service's application of the 4(d) rule authorizing take of California tiger salamander occurring during routine ranching activities to the Santa Barbara and Sonoma distinct population segments of the California tiger salamander is unlawful. 6) Preliminary and permanent injunctive relief compelling the Service to withdraw the portions of the Final Rule applying the 4(d) rule authorizing take of California tiger salamander occurring during routine ranching activities to the Santa Barbara and Sonoma distinct population segments of the California tiger salamander; 7) A Declaratory judgment that the Service's failure to conduct review of the 4(d) Rule pursuant to the National Environmental Policy Act is unlawful; COMPLAINT Page 30 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8) Preliminary and pennanent injunctive relief remanding the 4(d) Rule to the Service for until such time as the Service has conducted review pursuant to the National Environmental Policy Act; 9) A Declaratory judgment that the Service's failure to designate critical habitat for the California tiger salamander in Sonoma and Central California is unlawful; 10) Preliminary and permanent injunctive relief compelling the Service designate critical habitat for the California tiger salamander in Sonoma and Central California by dates certain; ll) An order awarding Plaintiffs their costs of litigation, including reasonable attorneys' fees pursuant, to the ESA and/or the Equal Access to Justice Act; 12) Such other relief as the Court deems just and proper. Respectfully Submitted this V date of October, 2004. COMPLAINT Brendan Cummings Kassia Siegel CENTER FOR BIOLOGICAL DIVERSITY P.O. Box 493 54870 Pinecrest Ave. Idyllwild, CA 92549 Telephone: 951-659-6053 Facsimile: 951-659-2484 Linda Krop Karen M. Kraus ENVIRONMENTAL DEFENSE CENTER 906 Garden Street Santa Barbara, CA 93101 Telephone: 805-963-1622 Facsimile: 805-962-3152 Attorneys for Plaintiffs Page 31