Florida Decisions Without Published Opinions Mand.dism.
ule and the clarification of findings were published."
Id.
Plaintiffs argue the best available science requirement means the Service must consider the available science, even if some of it is dated. They point out that the Service created this cutoff even though it knew some areas lacked more recent data. The Service responds that the ESA defines critical habitat as the "area occupied by the species, at the time it was listed." Id. § 1532(5)(A). The Service used records since 1995 because those lynx would possibly have been alive in 2000 or 2003, when the species was listed. The Service has the better argument.
Plaintiffs also cite an Eleventh Circuit case where the EPA was found to have acted arbitrarily by failing to consider data older than 7.5 years when identifying water bodies that do not meet water quality standards under the Clean Water Act. Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 913 (11th Cir. 2007). In that case, the statutory and regulatory language required the agency to "evaluate all existing and readily available" data. Id. at 913 (citing 40 C.F.R. §§ 130.7(b)(5)). There is no parallel language here.
In determining the "area occupied by the species, at the time it was listed," it is reasonable for the Service to establish a cutoff to identify what data is relevant to accomplish the task. Here, a cutoff of eight years based on the lifespan of a lynx is reasonable. This cutoff, to the extent it precludes outdated data as to where lynx occurred at the time of listing, does not run afoul of the Service's requirement to base its decision on the best available data. Nor is the Service's rationale for the cutoff so implausible that the Court should not defer to it.
V. Remedy
After finding the Final Rule unlawful, the question becomes what is the appropriate remedy. Plaintiffs seek an injunction that keeps the current Rule in place while it is remanded back to the agency.
Ordinarily an agency rule not promulgated in accordance with the law is invalid. Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005). "The effect of invalidating an agency rule is to reinstate the rule previously in force." Id. The Court, however, has discretion to shape an equitable remedy, and sometimes equity requires an invalid rule to stay in place while the agency revisits the issue. Western Oil and Gas Ass'n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980). This appears to be such a case. To invalidate the Final Rule and reinstate the prior one would put in place a rule that designated only 1,841 squares miles of lynx critical habitat that the Service withdrew over concerns that the rule was not supported by the record or adequately explained. 74 Fed. Reg. 8618. To reinstate that rule would unnecessarily deprive lynx of critical habitat based on a rule the Service found indefensible. Thus, the Final Rule must stay in effect while the Service revisits the issue.
VI. Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs' motion for summary judgment (dkt #17) is GRANTED IN PART and DENIED IN PART. The Motion is GRANTED as to Count II: the Service designated occupied critical habitat contrary to the ESA and APA. The Motion is DENIED in all other aspects.
IT IS FURTHER ORDERED that the Defendants' motion for summary judgment (dkt #29) is GRANTED IN PART and DENIED IN PART. It is GRANTED as to Counts I, III and IV of Plaintiffs' Complaint and DENIED in all other aspects.
IT IS FURTHER ORDERED that the existing Final Rule is remanded to the U.S. Fish Wildlife Service for further action consistent with the reasoning provided herein. The current critical habitat designation shall remain in place until the Service issues a new final rule on lynx critical habitat, at which time the current, invalidated Final Rule ( 74 Fed. Reg. 8616) will be superceded.