United States District Court, D. Arizona
ORDER AND OPINION
JOHN W. SEDWICK, District Judge.
I. MOTION PRESENTED
At docket 14, the Board of County Commissioners of the County of Gunnison, Colorado ("County") moves to intervene as an interested party, generally seeking to oppose the relief sought by plaintiff WildEarth Guardians ("Plaintiff"). Defendants Sally Jewell, in her capacity as United States Secretary of the Interior, and United States Fish and Wildlife Service ("the Service") (jointly "Federal Defendants") respond at docket 27. Plaintiff did not respond. County's reply is at docket 28. Oral argument was not requested and would not assist the court.
Plaintiff's complaint challenges the Service's November 14, 2013 decision denying Plaintiff's petition to list the Gunnison's prairie dog ( Cynomys gunnisoni ) as an endangered or threatened species pursuant to the Endangered Species Act, 16 U.S.C. § 1531, et seq. ("ESA"). Plaintiff contends that the "Service arbitrarily and unlawfully concluded that both subspecies of Gunnison's prairie dog ( C. g. gunnisoni and C. g. zuniensis ) are not endangered or threatened throughout all or a significant portion of their range." Plaintiff alleges that the Service acted in violation of the ESA, citing 16 U.S.C. § 1533(a)(1) of the ESA and 5 U.S.C. §§ 701-706, the judicial review provisions of the Administrative Procedure Act ("APA").
County's motion to intervene is brought pursuant to Fed.R.Civ.P. 24. The motion does not explain whether intervention is sought as a matter of right under Rule 24(a) or permissively under Rule 24(b). Federal Defendants do not oppose County's request to intervene to the extent they seek to proceed as a defendant supporting the Service's decision. Plaintiff has not responded to the motion to intervene. The court finds that whether or not County can qualify to intervene under Rule 24(a), it's motion papers demonstrate a sufficient interest in the issues raised in the litigation to support permissive intervention under Rule 24(b).
The County's proposed Answer In Intervention and Counterclaim by the Board of County Commissioners of the County of Gunnison, Colorado ("Proposed Answer and Counterclaim") responds to Plaintiff's complaint, and as its title indicates also includes a "counterclaim" against Federal Defendants. The counterclaim reads in its entirety: "Defendants arbitrarily and capriciously differentiated the Gunnison's Prarie Dog into two subspeciees: Cynomys gunnisoni and C.g. zuniensis. " Federal Defendants do oppose inclusion of the counterclaim. Plaintiff has not addressed the issue.
Federal Defendants' first argument against County's effort to plead its counterclaim is that the claim is a "citizen suit" brought under the ESA which requires the County to file a notice of intent to sue the Secretary of the Interior sixty days before filing the claim in court. Federal defendants effectively rely on two statutory provisions. The first provision is 16 U.S.C. § 1540(g)(1)(C) which authorizes a citizen to sue the Secretary, "where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary." The second provision is 16 U.S.C. § 1540(g)(2)(C) which, as pertinent here, precludes commencing an action pursuant to the first provision "prior to sixty days after written notice has been given to the Secretary."
County concedes that it has not given written notice to the Secretary. Thus, if notice is required, the counterclaim cannot proceed. To avoid the problem County contends that its claim is not truly a citizen suit, but rather "lies independently under the ESA citizen suit provisions and the Administrative Procedure Act." County relies on the Supreme Court's decision in Bennett v. Spear  to support its argument.
In the Spear decision, the petitioners, Bennett et al., challenged a biological opinion issued by the Secretary under the ESA concerning the Klamath Irrigation Project and its impact on two species of endangered fish. The petitioners had water rights which would be negatively impacted by the Secretary's decision. The claims presented in Spear were described by the Court in some detail as follows:
Petitioners' complaint included three [relevant claims]. The first and second claims allege that the Service's jeopardy determination [and resultant] imposition of minimum water levels violated... 16 U.S.C. § 1536. The third claim is that the imposition of minimum water elevations constituted an implicit determination of critical habitat for the [fish, ] which violated... 16 U.S.C. § 1533(b)(2), because it failed to take into consideration the designation's economic impact. Each of the claims also states that the relevant action violated the APA's prohibition of agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
The Court first held that petitioners had standing to pursue the three claims. The court next held that the third claim could properly be pursued pursuant to the citizen suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(C). The Court then held that the first two claims could not be pursued under the ESA because they alleged violations of 16 U.S.C. § 1536 rather than § 1533.
Having decided the first two claims could not be maintained under the ESA, the Court discussed whether they were viable under the APA which provides a right to sue for arbitrary and capricious actions "for which there is no other adequate remedy in a court." Ultimately the Court held: "Petitioners' § 1533 claim is reviewable under the ESA's ...