Center for Biological Diversity

Protecting endangered species and wild places through
science, policy, education, and environmental law.

October 13, 2003
Contact Kieran Suckling 520-623-5252 ext 305
More Information: Mexican Spotted Owl web



We received a great ruling from Tucson Federal Judge David Bury on 10-10-03 regarding Gale Norton's refusal to comply with his court order to designate critical habitat for the Mexican spotted. Though Bury had already given the Department one extension on his January 2003 order, the Department of Interior in August 2003 informed the court that it had not done any work on the designation, that it would not comply with his order, and that he had no choice but to give them another extension. In his 10-10-03 order, Bury raked Gale Norton over the coals for her "dismissive attitude toward the Endangered Species Act," "obstinate defiance of the ESA," and refusal to submit a supplemental budget request to Congress to enable full compliance with his court order.

Bury rejected consideration of the Bush Administration's self-engineered budget shortfall. He refused to grant an extension. He ordered the Department of Interior to meet with the Center for Biological Diversity and other plaintiffs within 15 days to develop a time line which will satisfy his January 2003 court order "immediately...on an expedited basis." The agreed upon time line must be submitted to Bury within for approval within 20 days. If critical habitat is not designated "expeditiously," he will consider issuing an injunction against some forms of logging until it is completed.

The Department of Interior's submitted a 60(b) motion to court stating that changed circumstances required Bury to rescind his previous ordered deadline for completion of the critical habitat. The DOI wanted the deadline replaced with an open-ended, indefinite deadline based on its future budgetary situation. DOI's argument was that 1) it does not have sufficient funds to implement the order, 2) that the Anti-Deficiency Act prohibits the agency from spending other funds to implement the court order, and 3) that the Anti-Deficiency Act overrules both the ESA and ability of the Judiciary to enforce it.

Bury concluded that the DOI's interpretation of the Anti-Deficiency Act would make the Act unconstitutional by collapsing the separation of powers between Congress and the Judiciary: "Essentially, if this case is stayed pending further legislation from Congress, this Court's Order cannot be enforced without the consent of Congress...Defendant's argument "can [not] be characterized as anything but an impermissible, unconstitutional...intrusion on the judicial power to enforce existing low." Marbled Murrelet, 918 F.Supp at 321 n.3." [page 7]. Bury cites the Comptroller General of the United States interpreting the Anti-Deficiency Act to not apply to "judicial or quasi-judicial judgement[s]" and thus rules that it does contradict his previous court order to designated critical habitat [page 7].

" The Court notes that Defendant has not requested supplemental funding from Congress to address her need to comply with court ordered critical habitat designations. "[T]he mandatory duty of the ESA does not support [D]efendant['s] suggestion that the ESA allows the Secretary to comply with statutory duties at his or her convenience, or that a heavy workload of the agency may excuse compliance." Id. (citing 16 U.S.C. 1533(b)(6)(C))." [page 6]

"Regardless of Defendant's financial woes, this Court can not ignore the incredible amount of time that has been spent compelling Defendant to properly perform her duties under the ESA...Defendant has had ten years to comply with the ESA mandate to designate critical habitat. Thus far Defendant has refused to do so." [page 9]

"Defendant blames the courts and overly-litigious plaintiffs for her present budgetary problems...Defendant knows that plaintiffs only utilize powers intentionally bestowed upon them by Congress...Defendants dismissive attitude toward the Endangered Species Act in general, and designation of critical habitat in particular, created Defendant's current predicament. Defendant openly and unabashedly views designating critical habitat as a "low priority" that "provides little conservation benefit to species." [citing DOI press release]. However, when the ESA was enacted in 1976, Congress believed that designating critical habitat was "[o]f equal or more importance" than simply classifying a species as either threatened or endangered. H.R. Rep. No. 94-887 at 3 (1976). According to Congress, "the ultimate effectiveness of the Endangered Species Act will depend on the designation of critical habitats." Id. The opinion of Congress regarding the importance of critical habitat to the preservation of threatened and endangered species has not changed in intervening years." [pages 9-10].

"If Defendant truly believes that designating critical habitat actually "hinders species conservation," obstinate defiance of the ESA is not the remedy." [page 11]

"Ten years have passed since the Mexican spotted owl was listed as a threatened species. Defendant has spent the last ten years thwarting the stated purpose of the ESA by refusing to designate critical habitat for the owl. Defendant has been ordered time and time again by court after court to comply with the critical habitat requirements of the ESA for the Mexican spotted owl...Instead of complying, however, Defendant has repeatedly sought to further delay compliance with the ESA with the same argument -- inadequate resources. Without exception, every court presented with Defendant's argument, absent a moratorium, has dismissed it. Nonetheless, despite the clear message from the courts that Defendant's "inadequate resources argument" lacks merit, Defendant continues in non-compliance with the ESA. Defendant is not entitled to any additional time to do what should have been done a decade ago." [page 11]

"Defendant is reminded that the basis upon which this Court rejected Defendant's prior designation of critical habitat was extremely narrow. Specifically, Defendant decided to exclude from its final designation of critical habitat approximately 70 percent of the lands included in its proposed designation...Defendant has already proceeded through the Final Rule making phase of her designation of critical habitat for the Mexican spotted owl. Accordingly, the best scientific and commercial data available has been compiled, public comment has been solicited, reviewed, assessed and addressed as recently as February 1, 2001. But for her erroneous critical habitat definition, the excluded lands would have been included in the final rule designating critical habitat for the Mexican spotted owl that was issued on February 1, 2001. There is no need for any further rule-making activities prior to publication of the final rule designating habitat....In light of the above clarification, this Court is confident that designation of critical habitat for the Mexican spotted owl can be done immediately and that it need not involve a large expenditure of Defendant's budget...This Court anticipates a very narrow and abbreviated rule-making procedure, to be conducted on an expedited basis." [pages 11-13]

"Defendant is advised that no further extensions shall be granted. In the event that critical habitat is not expeditiously designated, Plaintiff may reurge its request for a blanket injunction against the approval or authorization of projects that may impact the Mexican spotted owl until critical habitat is properly designated or reurge its request that this Court direct Defendant to treat lands at issue here as critical habitat for the Mexican spotted owl." [page 13]

On July 21, 2000 the Clinton Administration proposed to designate 13.5 million acres of critical habitat for the threatened Mexican spotted owl in AZ, NM, UT, and CO. After the election of the Bush Administration, however, the Department of Interior ordered the USFWS biologists in Albuquerque exclude all national forests in AZ and NM even though they contain over 90% of all known spotted owls and are the most heavily logged segment of spotted owl habitat. Thus, on February 1, 2001, the USFWS slashed 8.9 million acres from the Clinton proposal, excluding all eleven national forests in the two states. Instead, its proposal focused on National Parks, National Monuments, and BLM lands where no logging occurs. Thus the timber industry is minimally if at all impacted by the designation. At the time, one of the USFWS’s own biologists complained that “the designation would make no biological sense if the U.S. Forest Services land was excluded since these lands are the most essential for the owl.”

On January 13, 2003, Tucson Federal Judge David C. Bury agreed. Calling the eviscerated critical habitat “nonsensical,” he blasted the Administration for knowingly violating the Endangered Species Act:

"Defendant [Secretary of Interior] knew or should have known that their decision not to designate critical habitat in Arizona or New Mexico on the basis that it would provide no 'additional' protection was unlawful. Indeed Defendant and FWS have been told by no fewer than three federal courts, including the Ninth Circuit, that its position is untenable and in contravention to the ESA. Nevertheless, with apparent disregard of the courts, Defendant decided not to designated critical habitat ... on the basis that 'adequate' plans were already in place and 'additional' protection was unnecessary. This argument has already failed three times. It fails yet again here."

Bury initially ordered Norton to complete the designation by July 2003. The Department of Interior asked for an extension to April, 2004 with an interim deadline for a proposed designation on October 13, 2003. The Center did not oppose the extension, so it was granted. In July 2003, the Department asked the Center to agree to extend the deadline once again, this time to January 2005. The Center sent a written acceptance of the additional extension to the Department of Interior on July 15, 2003. The agreement was predicated on the Interior Department agreeing to also complete long-delayed recovery plans and listings for a number of other imperiled species. Top bureaucrats at the Department of Interior then blocked the agreement and would not even respond to the Center’s offer. The Bush Administration blocked the agreement because it wants a crisis, not a peaceful settlement.

Ignoring the Center’s acceptance of the USFWS offer, the Department of Interior filed papers with the court on August 27, 2003 asking that the critical habitat designation be delayed indefinitely. The filings admitted that the USFWS was not permitted to do any work on the critical designation since the court order was issued in January. Thus the agency made absolutely no attempt to comply with the court order. This admission prompted the Center to request in September and October that a contempt of court order be issued.


more press releases. . .

Go back