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Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007)
Jason M. Payne, 2L, University of Mississippi School of Law
Since the Alabama sturgeon was first classified as a separate species from the more common shovelnose sturgeon in 1976, various business interests have been trying to prevent the Fish and Wildlife Service (FWS) and other federal agencies from adding this prehistoric fish to the endangered species list. In February of this year, the U.S. Court of Appeals for the Eleventh Circuit held that the FWS had properly identified the Alabama sturgeon as a separate species by using the best scientific methods available and correctly listed it.
Background
The Alabama sturgeon was once a plentiful species and fished for commercially. An estimated twenty thousand Alabama sturgeon were caught in the late 1800s but their numbers have decreased so drastically that the FWS, despite diligent efforts, had only eight confirmed catches during the 1990s. The only bodies of water in which the fish is now found are small portions of the Alabama River channel in south Alabama and farther downstream to the mouth of the Tombigbee River. The incredible decline in population has been attributed to several factors, among which are overfishing, construction and operation of hydroelectric dams, decline in habitat and water quality due to land management practices, and dredging and channeling to improve the navigability of the Mobile River Basin.
The FWS began studying the Alabama sturgeon in 1980. The agency’s first attempt to list it as an endangered species under the Endangered Species Act (ESA) was in 1993. It was this proposed listing that first brought the FWS into court with the Alabama-Tombigbee Rivers Coalition (Coalition), a group of industries and associations brought together in opposition to the listing of the Alabama sturgeon as an endangered species.
In their first meeting, the Coalition sought and received a permanent injunction preventing the FWS from listing the Alabama sturgeon using information gained from a scientific report that was made in violation of the Federal Advisory Committee Act.1 The FWS appealed the injunction, but the appeals court held that the injunction was valid. A few months later the FWS withdrew the listing proposal because it did not have enough evidence to prove the Alabama sturgeon still existed.
Luckily for the fish, after a few Alabama sturgeon were captured in 1999 the FWS once again proposed its listing. On May 5, 2000, the FWS published a final rule listing the Alabama sturgeon as an endangered species. According to the ESA, after a listing is made the FWS is responsible for designating the “critical habitat” of endangered creatures. The FWS did not do this at the time the Alabama sturgeon was listed and they have yet to do so.
The Coalition brought a new suit alleging defects in the listing process under 16 U.S.C. § 1540(g)(1), a provision of the ESA that allows citizens to voice their concerns in court, and under 5 U.S.C. §§ 701-06, the judicial review provision of the Administrative Procedure Act. The case was originally dismissed because the district court found that the Coalition lacked standing in the case. The district court was later reversed and the suit was allowed to continue.2 Once the district court heard the merits of the Coalition’s case, it decided that the Coalition essentially had no case. The court did, however, order the FWS to issue a proposed and final rule designating the “critical habitat” by May 14, 2006 and November 14, 2006, respectively. The Eleventh Circuit reviewed the district court’s ruling.
Coalition’s Arguments
In its attempt to keep the Alabama sturgeon off the endangered species list the Coalition raised three different arguments before the Eleventh Circuit. The group’s first argument was that the FWS failed to consider the relevant factors in reaching their listing decision. Next, the Coalition contended that the FWS violated § 4 of the ESA, which requires the agency to designate the “critical habitat” of an endangered species concurrently with putting the species on the endangered species list. Finally, the Coalition argued that the FWS ruling (Final Rule) should be dissolved because Congress’s Commerce Clause powers could not be used for the protection of a fish that has no connection to interstate commerce.
Failure to Consider Relevant Factors
The Coalition contended that the FWS discounted genetic typing in favor of morphological taxonomy, failed to examine the best taxonomic data, and allegedly interfered with the research of a FWS scientist, Dr. Steven Fain.
These claims were discredited by a close reading of the Final Rule. The Coalition hand picked research that supported their contention that the shovelnose and Alabama are actually the same species of sturgeon, then claimed that the FWS did not give proper deference to this research. One issue was the genetic testing of the shovelnose and Alabama sturgeon’s mitochondrial cytochrome B gene, which reveals that they are genetically very similar fish. The FWS explained this similarity by invoking the long-held theory that the two species branched away from one another about ten thousand years ago, which is a relatively short period in evolutionary terms.
The taxonomic data the FWS supposedly ignored was a paper written for a statistics-focused journal that concluded that the two fish are actually the same species. The FWS countered with another article, out of an ichthyologic journal, that concluded that the species are separate. The judge resolved this dilemma by quoting the U.S. Supreme Court: “[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if…a court might find contrary views more persuasive.”3
Finally, the Coalition asserted that because Dr. Fain, an FWS researcher, came to a different conclusion from the one he had shared with a Coalition researcher at the beginning of his study, the FWS must have interfered with the research. The court opined that findings typically change from the beginning to the end of a research project.
Violation of § 4 of the ESA
The Coalition next contended that even if the FWS had correctly interpreted the research, the listing was still invalid because the agency had failed to designate the critical habitat within the statutory two-year period. The Coalition argued that critical habitat needs to be determined at the time public hearings are held to present opposition to the listing so all parties influenced by the listing can make their opposition known. The Coalition further believed the district court’s order that the FWS must finally make a designation of the critical habitat was an improper remedy to the agency’s disobedience of the ESA’s requirements. The Coalition believed that making the FWS start the listing process over would be the most effective remedy.
The appeals court looked to the intent of Congress when it created the ESA to make its decision. The judges determined that Congress wanted the listing of an endangered species and the determination of critical habitat to be separate processes so that the economics of potentially affected habitat would not interfere with the FWS’ decision on listing the species.
As for the Coalition’s idea to make the FWS start the listing process over, the judge, bothered as he was by the FWS’ inefficiency in designating critical habitat, said that delisting only benefited the Coalition’s goals.
The Commerce Clause
Congress used its broad constitutional power over interstate commerce, granted in the Commerce Clause,4 to enact the ESA. Administrative agencies that implement the ESA cannot exceed the reach of that power. The Coalition contended the FWS was powerless to regulate something located only within the boundaries of Alabama and having no connection to interstate commerce.
The court, in upholding the listing, relied on several recent cases that allowed Congress to grant the FWS authority under the ESA to list purely intrastate species as endangered. The judges went further, saying the reason the Alabama sturgeon is no longer part of interstate commerce and no longer has any reported commercial harvests is due to its near extinction. The court’s final analysis on the issue, taken from the U.S. Supreme Court, was to look at all of the economic effects of an issue if it is an essential part of larger regulation. This means the FWS can regulate intrastate species because preventing them from doing so would undermine the entire ESA.
Conclusion
Despite the Coalition’s best efforts, the judges of the Eleventh Circuit rejected its arguments and affirmed the district court’s ruling. By doing so, the Eleventh Circuit gave the Alabama sturgeon, if nothing else, a chance at survival.
Endnotes
1. Alabama-Tombigbee Rivers Coalition v. Dept. of Interior, 26 F.3d 1103, 1104 (11th Cir. 1994).
2. Alabama-Tombigbee Rivers Coalition v. Norton, 338 F.3d 1244 (11th Cir. 2003).
3. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989).
4. U.S. Const. Art. I, § 8, cl. 3. |