Opinion
CIV-S-99-274 DFL JFM
January 26, 2001
MEMORANDUM OF OPINION AND ORDER
Plaintiffs challenged the United States Fish and Wildlife Service's ("the Service") issuance of an incidental take permit ("ITP") to allow development in the Natomas Basin, a 53,000 acre tract of land that lies to the north of the City of Sacramento ("the City"). The Natomas basin contains habitat of the Giant Garter Snake, a threatened species under the federal Endangered Species Act ("ESA"), and the Swainson's Hawk, a threatened species under the California Endangered Species Act. Plaintiffs' complaint was founded on the ESA, the National Environmental Policy Act ("NEPA"), and the Administrative Procedure Act ("APA"). On August 15, 2000, the court granted summary judgment in favor of plaintiffs on tour ESA claims, holding that certain of the Service's findings with respect to the City's ITP application were not supported by the administrative record, and on one NEPA claim, holding that the Services s decision to forgo an Environmental Impact Statement ("EIS") was arbitrary and capricious.
Plaintiffs now move for voluntary dismissal of their two remaining claims under Fed.R.Civ.P. 41(a)(2), and for entry of final judgment reflecting the disposition of all claims in the case. While Plaintiffs' motion to dismiss is unopposed, the Service, the City, and interveners Kaufman and Broad of Sacramento, Inc. and Kern Schumacher ("interveners") all oppose entry of final judgment. Lennar Winncrest, LLC, Northpointe Park and Borden Ranch Partnership, and River West Investments (collectively "proposed interveners") move to intervene in the case, and oppose entry of final judgment.
The City argues that its affirmative defense of laches bars entry of judgment in favor of plaintiffs. "Laches requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 543 (1961) (citations omitted). Further, "[l]aches must be invoked sparingly in environmental cases because ordinarily the plaintiff will not be the only victim of alleged environmental damage." Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 854 (9th Cir. 1982)
The City has not made an adequate showing that plaintiffs lacked diligence in bringing this suit. The City acknowledges that three plaintiff organizations "participated in the public review of, and commented on, the various drafts of the present [Habitat Conservation Plan]." (City Opp. at 3, n. 2). Plaintiffs filed a notice of intent to sue the Service within six months of its issuance of an ITP to the City, and filed the present suit just over 13 months after the date of issuance. These facts do not support a finding of laches.
II.
Plaintiffs' motion to enter final judgment should be granted. Plaintiffs challenged the Service's actions under the APA, 5 U.S.C. § 706 (2)(A). The APA provides that "[t]he reviewing courtshall . . . hold unlawful and set aside agency action found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706 (emphasis added). This language admits of no discretion in the court to withhold judgment having determined that agency action fell below the "arbitrary and capricious" standard. See, e.g., Lopez v. Davis, 2001 WL 20545, at *6 (U.S. Jan. 10, 2001) (contrasting Congressional use of "mandatory "shall'" with "permissive "may'" in language of 18 U.S.C. § 3621 (e)); United States v. Monsanto, 491 U.S. 600, 607, 109 S. Ct. 2657, 2662 (1989) (holding that "Congress could not have chose stronger words to express its intent that forfeiture be mandatory in cases where the statute applied," where "shall" appeared in language of civil forfeiture statute). Thus, under the APA, the court must "hold unlawful and set aside" the "Service's decision to issue an ITP to the City, once it makes the finding that the permit was issued in violation of the relevant statutory standards. See e.g., Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 56-57, 103 S.Ct. 2856, 2873-74 (1983) (holding that National Highway Traffic Safety Administration order revoking requirement that new motor vehicles be equipped with passive restraints was arbitrary and capricious under § 706(2)(A), and directing the Court of Appeals to remand the matter to agency for further consideration consistent with Supreme Court opinion).
Two further considerations support the entry of judgment. First, plaintiffs are not seeking an exercise of the court's equitable powers. There is no request for an injunction which would require the court to examine the "balance of hardships" and the public interest. Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996). Moreover, because the permit was found invalid under the ESA the court's discretion is even more confined. "Congress has determined that under the ESA the balance of hardships always tips sharply in favor of endangered or threatened species." Id. Thus, even in the context of an injunctive action, a court's equitable discretion in adjudicating ESA claims is strictly limited.
For all of these reasons, the court concludes that is not permitted to withhold judgment based upon a balancing of equities.
III.
"The judgment sought shall be rendered forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Because there are no remaining issues for adjudication in this case, the court must enter judgment. It would seem that a simple entry of judgment based on the court's August 15, 2000 order would leave no doubt as to the invalidity of the Service's ITP in light of 5 U.S.C. § 706 (2)(A). The Secretary is of the view that the permit is no longer valid once judgment is entered on the August 15, 2000 order; however, the City and interveners suggest that there may be doubt as to whether a permit issued in violation of law is yet a permit. To forestall any dispute as to the import of the court's August 15, 2000 order, the court now declares that the permit issued by the Service to the City on December 31, 1997 is no longer valid because it was issued in violation of the ESA as explained in the August 15, 2000 memorandum of opinion and order. See, e.g., Sierra Club v. Marsh, 816 F.2d 1376, 1389 (9th Cir. 1987) (holding that the Sierra Club was entitled to a declaration that the Army Corps of Engineers violated the ESA by refusing to reinitiate consultation with the Service when it allowed highway and flood control project construction to continue in the face of the failure of an initial mitigation plan)
IV.
Proposed interveners "seek to intervene in the remedial phase of this litigation." (Motion at 10). However, there will be no remedial phase in this litigation. The motions to intervene are denied as moot.
V.
Plaintiffs' motion to dismiss claims seven and eight is GRANTED. Plaintiffs' motion for final judgment is GRANTED. Proposed interveners' motions to intervene are DENIED.
The clerk shall enter judgment in favor of plaintiffs.
IT IS SO ORDERED.