Opinion
NO. CIV. S-05-0629 WBS-GGH.
January 23, 2007
MEMORANDUM AND ORDER
Plaintiffs brought this action pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq.; the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq.; and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. Plaintiffs challenge the United States Fish and Wildlife Service's ("FWS") critical habitat designation of over 800,000 acres of land in California and Oregon for fifteen vernal pool species. Currently pending before the court are two motions for reconsideration, clarification, or amendment of this court's November 2, 2006, order, filed by plaintiff, Home Builders Association of Northern California, et al. ("Home Builders") and plaintiffs and defendant-intervenors, Butte Environmental Council, et al. ("Environmental Groups"). Also pending before the court is a motion to intervene as a defendant, filed by the Regents of the University of California ("Regents").
I. Factual and Procedural History
The significant factual and procedural history of this case are described in greater detail in this court's prior order, which parties now seek the court to reconsider. (Nov. 2, 2006 Order.) For the purposes of this motion, the following relevant facts are sufficient.
Pursuant to the Endangered Species Act, the FWS listed as endangered fifteen species of plants and animals that live in vernal pool environments. See 43 Fed. Reg. 44, 810 (Sept. 28, 1978); 57 Fed. Reg. 24, 192 (June 8, 1992); 59 Fed. Reg. 48, 136 (Sept. 19, 1994); 62 Fed. Reg. 14, 338 (Mar. 26, 1997); 62 Fed. Reg. 33, 029 (June 18, 1997); 16 U.S.C. § 1533. The fifteen species are four crustaceans and eleven plants, distributed in vernal pool complexes located throughout southern Oregon, parts of California, and parts of northern Mexico. 70 Fed. Reg. 46, 925 (Aug. 11, 2005).
In September, 1994, when the FWS listed the four species of fairy shrimp as endangered, it determined that critical habitat designation for the fairy shrimp was nonetheless "not prudent" because "such designation likely would increase the degree of threat from vandalism or other human activities." 59 Fed. Reg. at 48, 151. In February, 2001, this court joined other courts' findings in determining that the FWS' deviation from its statutory mandate to designate critical habitat, concurrently with the listing of a species as endangered, violated the APA.Butte Envtl. Council v. White, 145 F. Supp. 2d 1180, 1185 (E.D. Cal. 2001).
Accordingly, pursuant to an order by this court, the FWS published a proposed rule to designate 1, 662, 762 acres of critical habitat for the fifteen vernal pool species on September 24, 2002. 67 Fed. Reg. 59, 884. The FWS subsequently issued an "initial" final critical habitat designation on August 6, 2003, that diminished the amount of critical habitat by more than one million acres. 68 Fed. Reg. 46, 684; see Butte Envtl. Council, No. 04-0096 at 4. In January, 2004, Environmental Groups challenged these exclusions from the critical habitat designation in this court. Butte Envtl. Council, No. 04-0096, at 4. The court remanded for reconsideration, but did not set aside the critical habitat designation in the interim.
On March 8, 2005, the FWS confirmed its non-economic exclusion determinations in the August 6, 2003, final rule. 70 Fed. Reg. 11, 140 (Mar. 8, 2005). Subsequently, on August 11, 2005, the FWS published its final rule designating approximately 858, 846 acres of critical habitat in 34 California counties and one county in southern Oregon. 70 Fed. Reg. 46, 924 (Aug. 11, 2005). This final rule excluded the 20 census tracts that would suffer the greatest economic impact, along with three for which the economic benefits of exclusion outweighed the benefits of inclusion. Id. at 46, 931-32, 46, 948-52.
On March 30, 2005, Home Builders filed a complaint under the ESA, NEPA, and APA, challenging FWS's critical habitat designation, (Compl.) and on November 2, 2006, this court ruled on five cross-motions for summary judgment. (Nov. 2, 2006 Order.) The court found that the FWS's reasoning regarding its exclusions from critical habitat designation failed to adequately consider the recovery standard under the ESA, pursuant to Gifford Pinchot Task Force v. U.S. Fish Wildlife Service, 378 F.3d 1059, 1069 (9th Cir. 2004). (Id. at 70.) The court additionally held that the exclusion of two particular tracts from the critical habitat designation (Highway 99 in Tehama County and land being developed for the University of California at Merced) was arbitrary and capricious, because the FWS failed to adequately explain its reasoning. (Id.) Accordingly, the court remanded the matter back to the FWS, with instructions to submit a new final rule within 120 days, consistent with the order. (Id. at 70-71.)
On November 16, 2006, the Environmental Groups filed a motion to amend the judgment pursuant to Rule 59(e), and on November 17, 2006, Home Builders filed a similar motion. In addition, on December 11, 2006, the Regents filed a motion to intervene, claiming that this court's remand of the exclusion of the tract at Merced has violated a significant protectable interest.
II. Discussion
A. Motion for Reconsideration
A district court may reconsider an order under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend judgment) or Rule 60(b) (relief from judgment or order). Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985). Both the Environmental Groups and Home Builders frame their motions as being brought under Rule 59, however both motions were filed more than ten days after entry of the summary judgment order for which they seek reconsideration. The court therefore construes both motions as being brought pursuant to Rule 60(b). Fed.R.Civ.P. 60(b) ("[o]n motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding. . . ."); see Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1463 n. 35 (9th Cir. 1992) (a motion for reconsideration brought later than ten days after entry of judgment is construed as a motion brought under Rule 60(b)).
Rule 59(e) states that "[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." Rule 54 defines "judgment" as "a decree and any order from which an appeal lies."
Reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A motion for reconsideration "should not merely present arguments previously raised, or which could have been raised in the initial summary judgment motion."United States v. Wetlands Water Dist. 134 F. Supp. 2d 1111, 1130 (E.D. Cal. 2001) (citing Backlund, 778 F.2d at 138).
Rule 60(b) "provides for reconsideration only upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) `extraordinary circumstances' which would justify relief." Sch. Dist. No. 1J, 5 F.3d at 1263; Fed.R.Civ.P. 60(b). Under Rule 60(b), reconsideration is generally only appropriate where the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law. See Westlands Water Dist., 134 F. Supp. 2d at 1131.
The court notes that analysis under Rule 59(e) would result in the same outcome. Under Rule 59(e), reconsideration is appropriate only if the "district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (limiting the use of reconsideration to "highly unusual" circumstances).
1. Environmental Groups' Motion
The Environmental Groups argue that this court's conclusion that the FWS failed to adequately consider the recovery standard in specifying its exclusions cannot be squared with the relief granted, asserting that the non-economic exclusions must also be remanded for reconsideration by the FWS. (Envtl. Groups Mot. for Recons. 3-7.) The Environmental Groups also seek clarification of two aspects of this court's previous order, requesting this court: 1) to instruct the FWS that it may not engage in "coextensive" economic impact analysis of exclusions to the critical habitat designation on remand; and 2) to vacate all exclusions. (Id. at 7-9.)
This court's November 2, 2006, order found fault with the FWS's exclusions to its critical habitat designation, as analyzed under Section 4(b)(2) of the ESA, 16 U.S.C. § 1533(b)(2), based on its failure to adequately analyze the recovery benefits conferred by a critical habitat designation. (Nov. 2, 2006 Order 63.) ("This court is . . . unconvinced that the FWS actually considered the recovery benefits of critical habitat designation.") With regard to the ultimate relief granted, the court therefore remanded the exclusions to the FWS for reconsideration consistent with the order. (Id. at 70.) ("The FWS's exclusions of critical habitat pursuant to § 4(b)(2) . . . and accompanying economic analysis, must be remanded to the FWS. . . .")
"Recovery benefits" refers to the requirement that the promulgated Rule adequately address not only the mere survival of the endangered species, but also its recovery.
The Environmental Groups, however, point to language in this court's prior order which they assert is incongruous with the court's ultimate conclusion regarding consideration of the recovery standard. (Envtl. Groups Mot. for Recons. 5.) ("[T]he Court cannot hold that FWS failed to consider the recovery benefits while simultaneously concluding that its balancing of benefits used to justify its exclusions is reasonable.") (citing Nov. 22, 2006 Order 64 ("[T]he court cannot find that the FWS abused its discretion with regard to its consideration of benefits.")) The Environmental Groups are of course correct — the paragraph beginning on page 63 of this court's November 22, 2006, order was included in error and is inconsistent with the preceding ten pages of discussion. Accordingly, the court will amend its prior order, withdrawing this contradictory paragraph. As reasoned on pages 53 through 63 of this court's prior order, the FWS's economic analysis did not adequately consider the recovery benefits of critical habitat designation in designating its exclusions.
a. Non-Economic Exclusions
The question still remains regarding what significance that holding has for the non-economic exclusions. The Environmental Groups contend that, because the FWS's economic analysis failed to adequately consider the recovery standard when balancing the benefits of exclusion with the benefits of designation as critical habitat, the non-economic exclusions were also invalid as a matter of law. The court reviews the FWS's decision to exclude areas pursuant to Section 4(b)(2) "for abuse of discretion." Bennett v. Spear, 250 U.S. 154, 172 (1997).
As explained in great detail, this court's previous order held that the FWS's engaged in improper economic analysis with regard to the exclusions from critical habitat because it neglected to consider the recovery of the species. As the Ninth Circuit made clear in Gifford Pinchot Task Force v. U.S. Fish Wildlife Service, 378 F.3d 1059, 1063 (9th Cir. 2004), the definitions of "jeopardize" and "destruction or adverse modification" were sufficiently similar, so that a Section 7 consultation would be triggered, under either definition, only when a species' survival is threatened. Accordingly, Gifford invalidated the regulation's definition of "adverse modification," as inconsistent with the ESA's recovery goal.
This court's inquiry in its November 22, 2006, order focused on a section of the Service's final rule wherein it indicated that "[t]his section allows the Secretary to exclude areas from critical habitat for economic reasons if she determines that the benefits of such exclusion exceed the benefits of designating the area as critical habitat." 70 Fed. Reg. 46, 948. In an effort to demonstrate compliance withGifford, this section of the Rule professed an allegiance to the Ninth Circuit's guidance. 70 Fed. Reg. 46, 948 ("[O]ur current methodological approach to conducting economic analyses of our critical habitat designations is to consider all conservation-related costs.").
This court found, however, that despite the FWS's assertions that they considered recovery in their economic analysis, the few references to the recovery standard in this section of the rule merely constituted last minute additions of language, in a hollow attempt to satisfy Gifford. (Nov. 2, 2006 Order 60-63.) The economic analysis used to designate these twenty three exclusions was improper, and accordingly these exclusions were remanded back to the FWS.
The various non-economic exclusions, however, did not employ the same such balancing of economic benefits and costs — indeed, by definition, these exclusions were based on non-economic factors. Of course, regardless of the type of analysis used to exclude areas from the critical habitat designation, the FWS continues to have an obligation to consider the recovery goals of the ESA. To this end, this court conducted a separate inquiry into the FWS's analysis of the non-economic exclusions. (Nov. 2, 2006 Order 64-70.) After lengthy analysis, this court found that FWS had reasonably concluded that the non-economic exclusions were governed by alternative land management plans which already adequately incorporated the ESA's recovery goals. (Id. at 65 (affirming exclusion of Carrizzo Plain National Monument); id. at 67 (affirming exclusion of national wildlife refuges and the Coleman National Fish Hatchery complex); id. at 67-68 (affirming exclusion of lands with Habitat Conservation Plans ("HCPs")); id. at 69 (affirming exclusion of two areas of land belonging to the Department of Defense). Thus, while the twenty three economic exclusions were remanded for consideration of the recovery goals, this court found that the non-economic exclusions sufficiently followed Gifford's reasoning and were not an abuse of discretion requiring remand.
16 U.S.C. 1533(b)(2) does not specify exactly how an agency is to analyze exclusions, merely that it determine whether the "benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat."
The rule indicates that FWS's analysis considered recovery for: 1) Carrizzo Plain National Monument by noting that "Goals and Implementation Guidelines of the CPRMP include management for the long-term conservation and recovery of listed plants and animals," 70 Fed. Reg. 46, 947; 2) national wildlife refuges and the Coleman National Fish Hatchery complex by noting that exclusion will not appreciably increase the likelihood of activities that would "diminish the value of the habitat for conservation of the species," 70 Fed. Reg. 11, 151; 3) lands governed by HCP's, by noting that "[t]he purpose of such an HCP is to describe and ensure . . . that the action does not appreciably reduce the survival and recovery of the species," 70 Fed. Reg. 11, 151; and 4) Department of Defense lands by noting that they were excluded pursuant to 16 U.S.C. 1533(a)(3)(B), prohibiting designation of critical habitat for lands subject to integrated natural resource management plans (INRMPs), 70 Fed. Reg. 11, 153-54.
b. Coextensive Economic Analysis
The Environmental Groups also seek clarification from this court, requiring express instruction that the FWS may not consider coextensive costs in its analysis on remand. In order to understand the impact of this court's previous order with regard to coextensive analysis, it is necessary to briefly recount the court's reasoning parsing two relevant cases, New Mexico Cattle Growers v. U.S. Fish Wildlife Service, 248 F.3d 1277 (10th Cir. 2001), and Gifford Pinchot, 378 F.3d 1059.
The Cattle Growers case rejected a "baseline" approach to analyzing the economic impact of critical habitat designation, in favor of a "coextensive" approach. Cattle Growers, 248 F.3d 1285. A baseline approach uses a "but for" method of determining what economic impacts flow from a critical habitat designation. By contrast, a coextensive approach to analyzing economic impact allows an agency, in considering the impact of a critical habitat designation (whose purpose is ensuring the survival and recovery of the species), to also consider the economic impact of listing the species as endangered (whose sole purpose is ensuring the survival of the species).
Admittedly, some courts have criticized the reasoning of Cattle Growers, because the coextensive analysis permits an agency to consider the economic impact of listing a species in contravention of the ESA's intent. Cape Hatteras Access Pres. Alliance v. U.S. DOI, 344 F. Supp. 2d 108, 130 (D.D.C. 2004) ("The Service, however, must not allow the costs below the baseline to influence its decision to designate or not designate areas as critical habitat. That would be inconsistent with the ESA's prohibition on considering economic impacts during the species listing process."); see also Ctr. for Biological Diversity v. Bureau of Land Mgmt., 422 F. Supp. 2d 1115, 1152 (N.D. Cal. 2004). However, in Cattle Growers, the court was given the choice between possibly ruling contrary to the ESA's intent (via coextensive analysis), or explicitly violating the ESA's provision that a critical habitat designation be made upon consideration of the "economic impact." As discussed supra, this was because the definition of "adverse modification" effectively conflated the survival and recovery goals of the species, thereby subsuming and rendering null any beneficial impact of critical habitat designation, analyzed in comparison to the impact benefits conferred by listing a species. See Cattle Growers, 248 F.3d at 1284-85.
The ESA mandates that an endangered species listing determination be based "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A). Economic analysis is not a factor in the analysis.
However, courts and agencies are no longer "hamstrung by [their] inability to consider the validity of 50 C.F.R. § 402.02," Cape Hatteras, 344 F. Supp. 2d at 129-30, because the court in Gifford explicitly invalidated that provision. 378 F.3d at 1071. Thus, an agency is no longer prevented from engaging in a meaningful analysis of the economic impact of a critical habitat designation, above and beyond the impact of listing a species. While this does undercut the reasoning that the Cattle Growers court used to invalidate the baseline approach, it doesnot require the conclusion that a coextensive analysis is legally improper.
The ESA mandates that the FWS consider various impacts (economic and other) "of specifying any particular area as critical habitat." 16 U.S.C. 1533(b)(2). It does not, however, mandate that in its analysis of those impacts, the FWS be precluded from also considering the impact of listing the species as endangered. Indeed, the statute's language appears to anticipate a broad inquiry regarding any potential impacts of the critical habitat designation. 16 U.S.C. 1533(b)(2) (mandating consideration of "and any other relevant impact"). In this respect, Cattle Growers and Gifford Pinchot are not mutually exclusive — as long as the recovery goals of the ESA are given appropriate consideration.
It is of course possible that an agency conducting a coextensive analysis pursuant to Cattle Growers might also be continuing to follow the invalidated regulatory definition of adverse modification in 50 C.F.R. § 402.02, and thus would fail to adequately consider the recovery standard as required byGifford Pinchot. It is for this reason that the court's previous order noted that "[t]o the extent that the FWS relied on Cattle Growers and neglected to consider the effects of the critical habitat designation on species' recovery, pursuant to Gifford Pinchot, the critical habitat designation is not consistent with applicable Ninth Circuit precedent. (Nov. 2, 2006 Order 57 n. 22.)
In its final rule, the FWS indicated that in "conducting economic analyses, we are guided by the 10th Circuit Court of Appeal's [sic] ruling in New Mexico Cattle Growers v. U.S. Fish Wildlife Service, 248 F.3d 1277 (10th Cir. 2001), which directed us to consider all impacts, `regardless of whether those impacts are attributable co-extensively to other causes.'" 70 Fed. Reg. 46, 948. As explained in the November 22, 2006, order, the FWS additionally retained the CRA International consulting firm, who projected the economic impacts of the critical habitat designation above and beyond the baseline regulatory burden. (Nov. 2, 2006 Order 47 (citing Admin R., Vol. 2, Doc. 358 45-46.) CRA International also analyzed the administrative costs associated with Section 7 consultations for listing a species, as well as the designation of a critical habitat. (Id. (citing Admin R., Vol. 2, Doc. 358 10.)
To the extent that the FWS's coextensive inquiry may have insufficiently considered the recovery standard, by focusingsolely on those costs which are coextensive with listing, this court's remand of the twenty three exclusions addresses that deficiency. However, it is not the coextensive analysis which is faulty, but the lack of sufficient consideration of the ESA's recovery standard. Accordingly, this court declines to instruct the FWS on remand that it may not conduct a coextensive analysis.
The court also notes the questionable nature of the Environmental Groups' request. See INS v. Ventura, 537 U.S. 12, 16 (2002) ("Generally speaking, a court . . . should remand a case to an agency for decision of a matter that statutes place primarily in agency hands."); Fed. Power Comm'n v. Idaho Power Co., 344 U.S. 17, 20 (1952) ("[T]he guiding principle . . . is that the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the [agency] for reconsideration.").
c. Vacatur of Exclusions
Finally, the Environmental Groups seek vacatur of all of the exclusions remanded back to the FWS. Indeed, the general rule is for a court to "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). While the court did find that the FWS's exclusions were improper, and thus deserving of remand, this does mandate vacatur.
Indeed, "when equity demands, the regulation can be left in place while the agency follows the necessary procedures." Idaho Farm Bureau Fed. v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995) (citing W. Oil and Gas v. EPA, 633 F.2d 803, 813 (9th Cir. 1980)). Factors to be considered in deciding whether to vacate or not include: (1) the purposes of the substantive statute under which the agency was acting, (2) the consequences of invalidating the agency action, and (3) and potential prejudice to those who will be affected by maintaining the status quo. Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982).
Significant is the fact that, while the FWS has committed error requiring remand, that error is minor in the grand scheme of its analysis. For this reason, the court found the need to only grant the FWS 120 days in which to correct its analysis. Moreover, given the slight nature of the agency's error, there is a legitimate possibility that the agency will be able to substantiate its rule without altering the ultimate substance.Fox Television Stations, Inc. v. F.C.C., 280 F.3d 1027, 1048 (D.C. Cir. 2002) (citing Allied-Signal, Inc. v. United States Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir. 1993) ("The decision whether to vacate depends on the seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.").
Finally, the court notes its interest in intervening as little as possible into an already incredibly complex environmental regulation. W. Oil, 633 F.2d at 813 ("We are also influenced by the possibility of undesirable consequences which we cannot now predict that might result from invalidation of the designations. Our intervention into the process of environmental regulation, a process of great complexity, should be accomplished with as little intrusiveness as feasible. Under the unusual circumstances of this case and guided by authorities that recognize that a reviewing court has discretion to shape an equitable remedy, we leave the challenged designations in effect.") In this court's prior order, it reasoned that the balance of equity counsels in favor of leaving the rule in place, and the Environmental Groups have not presented any reasoning as to why this finding must be disturbed. Accordingly, the exclusions to the FWS's critical habitat designation will not be vacated.
2. Home Builders' Motion
Home Builders seeks reconsideration of this court's prior order in two respects. First, Home Builders asserts that this court's decision to invalidate two of the twenty three economic exclusions as arbitrary and capricious effectively granted relief that no party sought. (Home Builders' Mot. for Recons. 1-2.) Secondly, Home Builders argues that this court's order did not adequately dispose of their argument that the FWS's improperly employed a standard of qualifying an area as a critical habitat designation as long as it contained one primary constituent element. (Id. 2-3.)
a. Exclusion of UC Merced and Tehama County Tracts
Home Builders contends that their motion for summary judgment did not seek invalidation of any of the existing economic exclusions, and thus this court's relief remanding two existing economic exclusions (Highway 99 in Tehama County and the development of the University of California at Merced) was improper. To the extent that Home Builders argues that this court granted relief sought by no party, this contention is incorrect. Specifically, the Environmental Groups' motion for summary judgment sought exactly such relief. (Environmental Groups Mot. for Summ. J. 25-28.) ("The elimination of these twenty three census tracts should be set aside. . . .") The fact that the Environmental Groups chose to object to the exclusions en masse does not mean that this court is limited to only finding fault with all, or none, of the exclusions. Both Home Builders and the Environmental Groups called into question the validity of the FWS's exclusion analysis, and the court found fault with only a particular portion of such analysis. Accordingly, the relief granted was not improper.
However, notwithstanding this fact, the court now takes the opportunity on this motion to reevaluate its reasoning with regard to the two tracts, and upon reconsideration, finds that it was in error. As noted in the November 2, 2006, order, an agency "is obligated to `articulate a rational connection between the facts found and the choices made.'" Pac. Coast Fed'n of Fishermen's Assocs. v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005) (quoting NRDC v. Dep't of Interior, 113 F.3d 1121, 1126 (9th Cir. 1997)). At that point, it appeared to the court that, while the FWS had indicated high costs for the Merced and Tehama tracts, it had made no "relative comparison amongst all tracts." (Nov. 2, 2006 Order 51.) The FWS had given "no indication that these two tracts are among the twenty-two most impacted tracts," and at oral argument the Federal Defenders were unable to articulate why this might be the case. (Id.)
Upon reconsideration of the record, in particular the June 30, 2005, Proposed Rule, 70 Fed. Reg. 37, 739, and August 11, 2005, Final Rule, 70 Fed. Reg. 46, 924, it now appears that the FWS did sufficiently explain why the two tracts in question were included. In the Proposed Rule, the FWS indicated that it was considering excluding the twenty highest cost areas, as calculated in their draft economic analysis, and sought comments explaining why any of these twenty should not be excluded, or additional tracts should be excluded. 70 Fed. Reg. 37, 740. As affirmed by this court's previous order, the FWS rationally concluded that because "approximately 80 percent of the total costs are represented by 25 percent of the critical habitat" in these twenty tracts, exclusion was reasonable. (Nov. 2, 2006 Order 49-50; 70 Fed. Reg. 37, 740.)
However, as a result of the public notice and comment period, the FWS learned of "additional costs" previously not factored into its economic analysis, in the amount of "$10,000,000 for UC Merced and $6,093,965 for Highway 99." 70 Fed. Reg. 46, 950. After adjusting their draft economic analysis to account for this new information, the new estimated economic costs of designating as critical habitat UC Merced and Highway 99 in Tehama became $15,759,870 and $11,453,799, respectively. 70 Fed. Reg. 46, 949 (Table 2). It is now clear that economic costs of this magnitude do. in fact place these two tracts well within the "twenty-two most impacted tracts," and squarely within the reasoning previously approved of. Accordingly, the court will amend its prior order.
The court wishes to make clear that, while these two particular tracts are no longer singled out and remanded based on arbitrary economic analysis, (Nov. 2, 2006 Order 51), it remains true, as discussed above, that all twenty-three tracts, including these two, are remanded to the FWS for reconsideration consistent with this court's order and the recovery standard in Gifford.
b. Standard for Designating Critical Habitat
Home Builders' second request for clarification asserts that this court failed to address their principal argument that the Service violated the ESA by evaluating whether areas could be designated as critical habitat based on whether they contain "one or more of the species [Primary Constituent Elements ("PCEs")]." (Home Builders' Mot. for Recons. 2.) Home Builders presently argues, as they previously did in their motion for summary judgment, that every area designated as critical habitat must contain all PCEs. (Id.)
Home Builders' contention that this court neglected to address their argument is without merit. On page 35 of the November 2, 2006, order, the court made clear in a lengthy footnote that the particular nature of vernal pools, and their need to be "fed by upland areas," means that a particular area "may not be occupied by the species, and may not contain a vernal pool. . . . Regardless of whether they contain a vernal pool, or other PCEs, they are still essential to the conservation of the 15 vernal pool species." (Nov. 2, 2006 Order 35 n. 7.)
A motion for reconsideration "should not merely present arguments previously raised." Wetlands Water, 134 F. Supp. 2d at 1130 (citing Backlund, 778 F.2d at 138). It is a "extraordinary remedy," reserved for situations where the court has erred, or new relevant information has come to light. Kona, 229 F.3d at 890. It is not a forum for a party to attempt to reargue matters already decided by the court. Home Builders has already briefed and argued this point, and the court has already ruled. Other than simply rehashing previous arguments, Home Builders has not demonstrated why reconsideration is proper. Accordingly, the court declines to revisit the issue.
B. Regents' Motion to Intervene
The Regents are the true owners of the land being developed as part of the University of California at Merced, which was originally excluded from the critical habitat designation in the FWS's August 11, 2005, final rule. The Regents have invested significant time and money into the development of UC Merced Project, and the designation of their land as critical habitat would no doubt interfere with their development plans. (Regents' Mot. to Intervene 1.) However, as indicated in their motion, while they have closely monitored the litigation, until now they have decided not to intervene because the issues raised by the parties demonstrated that their interests were adequately represented. (Id.)
Subsequent to this court's November 2, 2006, order, the Regents sought to intervene based wholly on this court's singling out of the UC Merced tract. They seek to intervene in order to protect their interests in the UC Merced Project, because they contend it is substantially and individually affected by this court's previous order. However, as explained in Section II(A)(2)(a), supra, this court will now be amending its prior order, withdrawing any reference to the reasoning the Regents found objectionable. Therefore, the Regents' justification for intervening is now moot.
"[The lack of a desire to intervene] changed, however, with the Court's SJ Order, which for the first time singled out the UC Merced Project, analyzed it separately from the remaining twenty-one Census tracts whose exclusion the court affirmed, and concluded that the Service's analysis for excluding just the UC Merced Project was insufficient." (Regents' Mot. to Intervene 1.)
Indeed, a cursory analysis of the standards for intervention as a matter of right and permissive intervention supports this conclusion. Rule 24 allows intervention as a matter of right under various circumstances "unless the applicant's interest is adequately represented by existing parties." Fed.R.Civ.P. 24(a). Because the tract at UC Merced is no longer singled out for individual treatment, as the Regents themselves confess, their interests are sufficiently represented by the parties already involved in the case. (Regents' Mot. to Intervene 1.)
Permissive intervention is allowed when an applicant's "claim or defense and the main action have a question of law or fact in common." Fed.R.Civ.P. 24(b). In this case, the Regents' unique claims have become moot — the reasoning in this courts previous order to which they are objecting will be withdrawn pursuant to this order. (Regents' Mot. to Intervene 17) ("Regents' claims and defenses . . . are in direct response to determinations made by the Court['s November 2, 2006 order] in this action.") Accordingly, the court will decline to grant the Regents' motion.
As this court indicated to the Regents at oral argument, however, if it becomes necessary for the Regents to intervene at a later date (for example, to represent unique interests upon appeal) it may do so at that time.
C. Timing on Remand
In this court's previous order, it reasoned that because the necessary changes were "simply an amendment to a prior final designation . . . a 120 day deadline is more than reasonable for this purpose." (Nov. 2, 2006 Order 71 n. 27) (citing Butte Environ. Council v. White, 145 F. Supp. 2d 1180, 1185 (E.D. Cal. 2001) (allowing six months for the FWS to complete a final critical habitat designation and noting that many courts have allowed only 120 days for the same action)). While this court is granting, in part, both motions for reconsideration of the previous order, the substantive changes are not great, and thus the issues on remand are similarly minor. However, in light of the uncertainty created by both motions, the court will grant the FWS 120 days from the issuance of this order within which to complete the new critical habitat rule.
III. Conclusion
IT IS THEREFORE ORDERED that Environmental Groups' motion for clarification, reconsideration, or amendment be, and the same hereby is, GRANTED IN PART. The entire paragraph beginning on page 63 of this court's November 2, 2006, order, is hereby WITHDRAWN.
IT IS FURTHER ORDERED that Home Builders' motion for clarification, reconsideration, or amendment be, and the same hereby is, GRANTED IN PART. The two paragraphs on pages 50 and 51, as well the first paragraph on page 70, of this court's November 2, 2006, order, regarding the remand specifically of the exclusions of UC Merced and Tehama County, are hereby WITHDRAWN.
IT IS FURTHER ORDERED THAT:
(1) in all other respects, Environmental Groups' and Home Builders' motions for reconsideration be, and the same hereby are, DENIED;
(2) the Regents' motion to intervene be, and the same hereby is, DENIED;
(3) this matter be, and the same hereby is, REMANDED to the FWS for further action and consideration consistent with this order, as well as the portions of this court's November 2, 2006 order not withdrawn above. The FWS shall submit a new final critical habitat rule to the Federal Register for publication therein within 120 days of the date of this order.