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Doonesbury by Garry Trudeau
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And the Hague will indict Duke for aiding Tryff.
So has Trudeau retired? I've already seen this arc a few times.
Trudeau is having a difficult time now, all the best derogatory material would be about democrats and he only sticks it to republicans.
SueB1863: Read Beckett's "Waiting for Godot" and you'll understand.
Where is Astolat today? Ha! Yes, GT is coming back. Probably in November for dailies and he has new stuff on Sundays.
'Hello, Hague? I'd like to report a perpetrator of crimes against humanity.'
'Sir, what continent would that be?"
'Central Asia'
'Please hold while I connect you… there is a wait, please be patient.'
Good one, MD
Otherwise we would really be scr*wed.
Nice repeat of democrat talking points but just not true. Kerry signed an arms treaty yeterday that by law first must be ratified by the senate, but yet all you can say is that it is all Bush's fault.
Oh God no. I mean, I understand the guy's a monster, guilty of all sorts of murder and genocide… but do we want to descend so far as willingly inflicting David Hasselhoff on him?
Just draw and quarter him, it'd be far more merciful.
GT's new project Alpha House, available on Amazon Video, is expanding, adding on Amy Sedaris and Cynthia Nixon. Should be great stuff. Very funny.
And Wanda Sykes will also make an appearance. I hope they bring Bill Murray back into the mix. Fingers crossed, it should be coming out soon.
Hear,hear. Bet he won't listen to you, though.
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Editor's note: The Courier profiled Kristen Moeller and David Cottrell, who lost their home in the Lower North Fork Fire, at the beginning of April. We have checked on their progress six months after the disaster.
One step forward and two steps back.
That's the best way to describe the past six months for Kristen Moeller and David Cottrell, who lost their home in the Lower North Fork Fire. Moeller says they still have good and bad days after the devastating fire, which started six months ago today.
They have learned many lessons about such tragedies: the good, such as the unending support from the Mountain Resource Center and state Rep. Cheri Gerou, R-Evergreen, to the frustration of working with insurance companies and the state in trying to get compensation.
The Lower North Fork Fire, which started on March 26, burned 4,100 acres, destroyed 23 homes south of Conifer and caused about $11 million in damage. The blaze re-ignited from a Colorado Forest Service prescribed burn that was poorly monitored near Reynolds Park.
The neighbors affected by the fire meet twice a month to provide information and support, and they thank the community for its generosity through fund-raisers and assistance.
They also ask the community to understand they have not healed from the effects of the devastation, and while they may look fine on the outside, it's not the case on the inside.
"I'm not going to be sad for 2012 to be over," Moeller said. "Everything is bittersweet right now."
She and her husband still are working with their insurance company, which has paid some of their claims, and monitoring the actions of the state, which has not come forth with relief of any kind for any victims.
According to the victims, at times it appears they have been lumped in with the High Park and Waldo Canyon fire victims, but at other times it seems the Conifer fire was "too small or too early or not big enough," so the state has not provided help with mitigating burned trees or 0erosion issues, Moeller said.
"If I sound a little cynical, it's because I am," she said.
The couple still are deciding what to do about rebuilding a home on their 37 acres off Kuehster Road and Rocky Top Trail. For now, it's a matter of how much the insurance company will pay and when, and what that money will allow them to afford.
Despite the worry about their finances and home, they continue working. Moeller is an author, author coach and executive publisher of Imbue Press. Cottrell owns a software company.
Moeller says she and her fellow fire victims want the public to know they are not opposed to prescribed burns. Rather, they want prescribed burns to be monitored better, so another fire doesn't get out of control.
On a sunny day last week, Moeller stood on her property. To the west along the ridges was the smoky haze from wildfires burning out of state. The couple have taken down 40 trees, and Moeller is amazed that aspen already have sprouted. The 2-foot-high saplings and grasses are green, and wildflowers bloom in patches. But the blackened sticks that used to be trees are a stark reminder of the fire that turned their dream home to ashes.
Current state of mind
Soon after the fire, Moeller decided she wanted to return to the property, so the couple bought a trailer that they named Flame. They put it on their property around Mother's Day and quickly learned that, with no trees to provide shade, it was too hot for them and their Australian ridgeback dogs, Roscoe and Tigger, to stay. They lasted a month there, she said.
"It was a romantic idea to live out here," she said. "We thought it was a good plan to be up here and reconnect with the land."
The couple have learned they should have moved to a rental home immediately because that could have created a sense of having a place of their own. Instead, they've been staying with friends.
They took a month-long vacation in August to get away from the stress, but returning brought everything back.
Moeller says that six months later the grief isn't as deep as it was, but she still isn't sleeping well because of worrying about finances, where to live and insurance issues.
"Some days are pretty good, and I laugh," she said. "Other days are tougher. It's hard because you have a few good days in a row, and then it all comes back."
More advice
Moeller continues to learn lessons from living through a disaster, and she passes them along:
• Don't compare tragedies. The Lower North Fork Fire victims should not minimize their experiences by comparing them with other fires last summer that were larger, or with the Aurora theater shootings.
• Cultivate a support system of friends you don't have to remind that you're still emotionally raw over the fire.
• The world will go on, and people will forget what you're still going through.
• The stress from losing a home can be difficult on couples because everyone grieves differently and at a different rate.
• It's important to find an outlet for your emotions. For Moeller, it's been her blog, called "Walking Through Fire." It can be found at http://kristenmoeller.com/walking-through-fire/.
She says that while she's sad that so many of her neighbors lost their homes, too, she's grateful for the support they provide one another.
"Thank God we have a group," she said. "To do this alone would be insurmountable."
Contact Deb Hurley Brobst at firstname.lastname@example.com or 303-350-1041. Check www.CanyonCourier.com for updates.
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September 29, 2008
THE HUMANE SOCIETY OF THE UNITED STATES, ET AL., PLAINTIFFS,v.DIRK KEMPTHORNE, SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.
The Endangered Species Act of 1973 affords protection to species that are listed as "endangered" or "threatened."*fn1 In 1978, the gray wolf (Canis lupus) was listed as threatened in Minnesota and endangered throughout the rest of the conterminous United States. On February 8, 2007, the United States Fish and Wildlife Service ("FWS"), an agency within the Department of the Interior, promulgated a final rule revising the wolf's listing status. See 72 Fed. Reg. 6052 (Feb. 8, 2007) (the "Final Rule"). The Final Rule did not affect the listing status of the gray wolf everywhere. Rather, it designated a cluster of gray wolves in the western Great Lakes region as a "distinct population segment," or DPS. It then removed the wolves within the western Great Lakes DPS from the endangered species list. See id., 72 Fed. Reg. at 6066. The Final Rule did not change the listing status of gray wolves outside the boundaries of the western Great Lakes DPS.*fn2
Soon thereafter, plaintiffs The Humane Society of the United States, Help Our Wolves Live, Animal Protection Institute, and Friends of Animals and Their Environment (collectively, "plaintiffs") brought this suit. They challenge the Final Rule under the Endangered Species Act of 1973, 16 U.S.C. §§ 1531 et seq. ("ESA" or "the Act"), and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., claiming that FWS violated the ESA and acted arbitrarily and capriciously by simultaneously designating and "delisting" the western Great Lakes DPS.*fn3
On May 30, 2007, the Court permitted two groups to intervene in this matter: (1) the U.S. Sportsmen's Alliance Foundation, the Wisconsin Bear Hunters Association, Scott Meyer and Robert Stafsholt, and (2) Safari Club International, Safari Club International Foundation and the National Rifle Association. These two groups (collectively, "defendant-intervenors") have jointly submitted briefs in support of FWS' position.
Upon careful consideration of the parties' papers, the oral arguments presented by counsel at a hearing on August 4, 2008, and the entire record in this case, the Court concludes that FWS failed to acknowledge and address crucial statutory ambiguities in the course of promulgating the Final Rule. The Court therefore vacates the Final Rule and remands to the agency for further proceedings consistent with this Opinion.*fn4
Gray wolves are the largest wild members of the Canidae, or dog family. See Proposed Rule Designating the Western Great Lakes Population of Gray Wolves as a Distinct Population Segment; Removing the Western Great Lakes Distinct Population Segment of the Gray Wolf from the List of Endangered and Threatened Wildlife, 71 Fed. Reg. 15266 (March 27, 2006). Gray wolves are "frequently a grizzled gray, but . . . can vary from pure white to coal black." Id., 71 Fed. Reg. at 15266. They prey primarily on medium and large mammals, including white tailed deer and elk. Id., 71 Fed. Reg. at 15266.
"Although the gray wolf once roamed across most of North America, by the 1960s the wolf had been almost completely extirpated from the conterminous United States." Pls.' Mot. at 1; see also Defs.' Mot. at 8. In 1978, FWS concluded that "the entire species Canis lupus is Endangered or Threatened to the south of Canada." Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9607 (Mar. 9, 1978). FWS thus listed the wolf as endangered throughout the United States and Mexico, with the exception of Minnesota, where the wolf was listed as threatened. "Nevertheless, even today the gray wolf remains extirpated across 95% of its historic range."
Pls.' Mot. at 1. As of this writing, the gray wolf is concentrated in two regions: the western Great Lakes region (which includes Michigan, Minnesota and Wisconsin) and the northern Rocky Mountains region (which includes Idaho, Montana and Wyoming). Only the status of the western Great Lakes population is at issue in this case.
A. Endangered Species Act
1. Overview
The Endangered Species Act is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978). Congress enacted the ESA "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species or threatened species." 16 U.S.C. § 1531(b).*fn5 "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost." Tennessee Valley Authority v. Hill, 437 U.S. at 184. The Department of the Interior is ultimately responsible for implementation of the ESA with respect to terrestrial species. It has delegated primary enforcement authority to FWS, an agency within the Department of the Interior. See Spirit of Sage Council v. Norton, 294 F. Supp. 2d 67, 75 (D.D.C. 2003).
The ESA's protections are triggered when FWS lists a species as endangered or threatened. A species is endangered if it is "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is threatened if it is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). FWS must determine whether a species should be listed as endangered or threatened based upon five statutorily prescribed factors. See id. § 1533(a)(1)(A)-(E) (hereinafter the "listing factors" or the "Section 4(a)(1) factors"); see also 50 C.F.R. § 424.11(c). The listing factors are: (1) present or threatened destruction, modification, or curtailment of a species' habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; and (5) other natural or manmade factors affecting a species' continued existence. See 16 U.S.C. § 1533(a)(1)(A)-(E).
The ESA further instructs FWS to monitor the status of listed species and, when appropriate, to reclassify or delist species. See 16 U.S.C. § 1533(c). The same five factors that determine whether a species is endangered or threatened also determine whether threats to a species have been diminished or removed to the point that reclassification or delisting is appropriate. See id. § 1533(c)(2); see also 50 C.F.R. § 424.11(d). FWS is required to make listing determinations "solely on the basis of the best scientific and commercial data available."
16 U.S.C. § 1533(b)(1)(A).
2. Distinct Population Segments
The ESA authorizes FWS to list, delist and reclassify "species." When the ESA was enacted in 1973, the term "species" was defined to include species, subspecies or "any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature." Pub. L. 93-205, 87 Stat. 884, 886 (1973). Congress revised this definition in 1978 so that the definition of "species" now includes species, subspecies and any "distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16) (emphasis added).
It is common ground for the parties that because the ESA authorizes FWS to list endangered or threatened "species," and because the term "species" is defined to include "distinct population segments," FWS may list a distinct population segment of a vertebrate species even "when the species as a whole is neither threatened nor endangered." Pls.' Mot. at 5; see also Defenders of Wildlife v. U.S. Dep't of the Interior, 354 F. Supp. 2d 1156, 1169 (D. Or. 2005). In this way, the "DPS tool" (as the parties frequently refer to it) permits FWS to "protect and conserve species and the ecosystems upon which they depend before large-scale decline occurs that would necessitate listing a species or subspecies throughout its entire range." Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722, 4725 (Feb. 7, 1996) (the "DPS Policy").*fn6 The central issue in this case is whether FWS may use the DPS tool in a different way as well: to simultaneously designate and "delist"a distinct population of animals that is thriving even though the broader species of which it is a part remains endangered (and listed as such) elsewhere.
B. Standard of Review
FWS' listing decisions are subject to review under Section 706 of the Administrative Procedure Act. See, e.g., American Wildlands v. Kempthorne, 530 F.3d 991, 997-98 (D.C. Cir. 2008). The standard of review under the APA "is a highly deferential one. It presumes agency action to be valid." Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976). Nevertheless, a reviewing court must reject agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if the agency:
relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Assoc. v. State Farm Mutual Auto. Insurance Co., 463 U.S. 29, 43 (1983).
As explained in more detail below, plaintiffs' principal argument calls into question FWS' interpretation of the ESA. When the action under review involves an agency's interpretation of a statute that the agency is charged with administering, the court applies the familiar analytical framework set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). "Under step one of Chevron, [the court] ask[s] whether Congress has directly spoken to the precise question at issue, in which case [the court] must give effect to the unambiguously expressed intent of Congress." Secretary of Labor, Mine Safety and Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d 1066, 1073 (D.C. Cir. 2007) (internal quotation marks and citation omitted); see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 842-43. In determining whether Congress has directly spoken to the precise question at issue, the court should use all the "traditional tools of statutory construction," including textual analysis, structural analysis, and (when appropriate) legislative history. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 843 n.9; see also Bell Atlantic Telephone Co. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997). If, after employing these tools, the court concludes that "the statute is silent or ambiguous with respect to the specific issue . . . , [the court] move[s] to the second step and defer[s] to the agency's interpretation as long as it is 'based on a permissible construction of the statute.'"
Secretary of Labor, Mine Safety and Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d at 1074 (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 843).
In the D.C. Circuit, Chevron step two review is similar to (but conceptually distinct from) the standard "'arbitrary and capricious' style analysis" described in the first paragraph of this subsection. Continental Airlines Inc. v. DOT, 843 F.2d 1444, 1452 (D.C. Cir. 1988).*fn7 Thus, a "'reasonable' explanation of how an agency's interpretation serves the statute's objectives is the stuff of which a 'permissible' construction is made . . . ; an explanation that is 'arbitrary, capricious, or manifestly contrary to the statute,' however, is not." Northpoint Technology Ltd. v. FCC, 412 F.3d 145, 151 (D.C. Cir. 2005) (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 844). "'Reasonableness' in this context means . . . the compatibility of the agency's interpretation with the policy goals . . . or objectives of Congress." Continental Airlines Inc. v. DOT, 843 F.2d at 1452. As a result, "the critical point is whether the agency has advanced what the Chevron Court called 'a reasonable explanation for its conclusion that the regulations serve the . . . objectives [in question].'" Continental Airlines Inc. v. DOT, 843 F.2d at 1452; see also I RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE§ 3.6 at 172-73 (4th ed. 2002) (under Chevron step two, courts must determine, among other things, "whether the agency adequately discussed the relationship between the interpretation and pursuit of the goals of the statute").
When an agency wrongly concludes that its interpretation is mandated by the statute at issue, a court will not impose its own interpretation of the statute. Rather, a court will vacate the agency's action so the agency can "interpret the statutory language anew." Peter Pan Bus Lines, Inc. v. Federal Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir. 2006); see also Secretary of Labor, Mine Safety and Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d at 1075 ("Because the Secretary did not recognize the ambiguities inherent in the statutory terms, we do not defer to her plain meaning interpretation but instead remand for her to treat the statutory language as ambiguous."). Conversely, when an agency acknowledges statutory ambiguity, it must offer a sufficient explanation for its chosen interpretation. In such cases, "it is incumbent upon the agency not to rest simply on its parsing of the statutory language"; rather, "[i]t must bring its experience and expertise to bear in light of competing interests at stake." PDK Laboratories, Inc. v. DEA, 362 F.3d 786, 797-98 (D.C. Cir. 2004); see also Peter Pan Bus Lines, Inc. v. Federal Motor Carrier Safety Admin., 471 F.3d at 1354.
According to plaintiffs, FWS' Final Rule should be vacated for any one of four reasons:
First, by delisting piecemeal parts of the gray wolf's range, FWS has unlawfully circumvented the requirement that a species be protected so long as it remains endangered "throughout . . . a significant portion of its range." . . . Second, the ESA and the DPS Policy preclude the agency from using DPSs as a delisting tool. Third, even if the agency could lawfully create a DPS for delisting purposes, the boundaries of the western Great Lakes DPS contravene the ESA's directive that species protection be given the highest of priorities. Finally, even assuming the creation of this DPS were otherwise permissible, . . . the Great Lakes wolf population remains endangered due to inadequate regulatory mechanisms, human predation, and disease.
Pls.' Mot. at 19. Plaintiffs' second argument is a sufficient basis on which to resolve this case. The Court therefore need not address the others. See, e.g., PDK Laboratories, Inc. v. DEA, 362 F.3d at 799 (Roberts, J., concurring) (arguing that "if it is not necessary to decide more, it is necessary not to decide more").*fn8
A. The Parties' Arguments
Plaintiffs' second argument is, at bottom, an argument that FWS is misconstruing the ESA and thus disregarding the intent of Congress. See Pls.' Mot. at 28-29; Pls.' Opp. at 16- 20. It therefore implicates one of the core purposes of the Chevron doctrine: to ensure that administrative agencies stay within the bounds of their delegated authority. See Arent v. Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995).
Specifically, plaintiffs argue that FWS is misconstruing those provisions of the ESA which, by authorizing the agency to list, delist and reclassify "species," also authorize the agency to list, delist and reclassify DPSs of vertebrate organisms. According to plaintiffs, Congress added the term "distinct population segment" to the ESA's definition of "species" for a specific and exclusive purpose: to permit FWS to list a struggling sub-population of an organism that is not endangered or threatened on a broader taxonomic level. See Pls.' Opp. at 16 (arguing that "through this definition Congress extended the protections of the ESA to locally-vulnerable populations of vertebrate fish or wildlife in circumstances where the species as a whole is not endangered or threatened"). Plaintiffs acknowledge that the authority to list DPSs in this manner implies the authority to reclassify or delist DPSs once they have recovered. See Pls.' Opp. at 17. But they argue that Congress did not intend to authorize FWS to simultaneously designate and delist DPSs within broader listings -- that is, to "carve out" healthy sub-populations of otherwise endangered or threatened species and remove from those sub-populations the protections of the Act. See Pls.' Mot. at 31 ("A DPS must be designated and listed in the first instance in order for downlisting to later be considered. Nothing in the Act or the DPS Policy authorizes FWS to carve DPSs out of a species-level listing for the sole purpose of delisting that species."); Pls. Opp. at 17 ("[T]he plain language of the statute does not sanction FWS's tactic of carving a DPS out of a special-level listing for the purpose of reducing the protections of the Act."). According to plaintiffs, the Final Rule's use of the DPS tool conflicts with the text, structure and legislative history of the ESA, as well as with various judicial interpretations of the statute and the statute's fundamental conservation goals. See, e.g., Pls.' Mot. at 29 ("In the Final Rule, . . . FWS shunted aside the ESA's intent that DPSs be used as a 'proactive measure' [to protect species by listing locally vulnerable populations] and instead wielded this tool to achieve the opposite effect.") (internal quotation marks omitted).
FWS, of course, disagrees that it is misconstruing the ESA. See Defs.' Mot. at 13 (arguing that "the Final Rule is based upon a valid interpretation of the ESA"). According to FWS, by revising the definition of "species" to include "distinct population segments," Congress authorized FWS to designate and list a struggling population of an unlisted species (as contemplated by plaintiffs) and to designate and delist a healthy sub-population of a listed species without delisting the species as a whole. See Defs.' Opp. at 3-4. Importantly, FWS contends that this interpretation of the statute is compelled by the plain meaning of the ESA. For example, in response to a comment arguing that "DPSs can only be established for listing species as threatened or endangered" -- an argument largely similar to the argument put forth by plaintiffs in this case -- the Final Rule states:
DPSs can be utilized for both listing and delisting species. Section 4(a)(1) of the Act directs the Secretary of the Interior to determine whether "any species" is endangered or threatened. Numerous sections of the Act refer to adding and removing "species" from the list of threatened or endangered plants and animals. Section 3(15) defines "species" to include any subspecies "and any distinct population segment of any species of vertebrate fish or wildlife . . . .". Therefore, the Act authorizes us to list, reclassify, and delist species, subspecies, and DPSs of vertebrate species.
Final Rule, 72 Fed. Reg. at 6064. See also id., 72 Fed. Reg. at 6065. The agency relies on this plain meaning argument throughout its papers as well. See, e.g., Defs.' Mot. at 15 (arguing that "[p]laintiffs' assertion that the Service cannot utilize DPSs to delist a population is belied by the plain language of the ESA"); Defs.' Opp. at 4.
Ultimately, the Court need not choose between the parties' competing interpretations to resolve this case. As explained below, the ESA is ambiguous with respect to the precise question at issue: whether the ESA permits FWS to use the DPS tool to remove the protections of the statute from a healthy sub-population of a listed species, even if that sub-population was neither designated as a DPS nor listed as endangered or threatened beforehand. As the Final Rule is based on FWS' erroneous conclusion that the ESA is unambiguous on this point, the Court may neither defer to the agency's construction nor endorse plaintiffs' construction. Rather, it must remand the Final Rule to FWS to permit the agency to address the ESA's ambiguity in light of its expertise, experience and insight into the ESA's objectives.
B. The Statute is Ambiguous
FWS argues that the ESA unambiguously supports the Final Rule because the statute unambiguously permits FWS to delist "species" -- a term which, by definition, includes DPSs of vertebrate organisms. See, e.g., Defs.' Mot. at 15 (arguing that "any action that the ESA or its implementing regulations authorize or require for a 'species' -- including delisting -- is also authorized and/or required for a 'distinct population segment'"). FWS reasons as follows: First, the ESA defines "species" to include distinct population segments of vertebrate organisms. See 16 U.S.C. § 1532(16). Second, the ESA requires FWS to "determine whether any species" -- including a DPS -- "is an endangered species or a threatened species" on the basis of the five statutorily prescribed factors. 16 U.S.C. § 1533(a)(1). Third and finally, the ESA and its implementing regulations require FWS to delist a species -- again, including a DPS -- that is no longer endangered or threatened. See 16 U.S.C. § 1533(c)(2)(B) (instructing FWS periodically to review all listed species and "determine on the basis of such review whether any such species should -- . . . be removed from such list; . . . be changed in status from an endangered species to a threatened species; or . . . be changed in status from a threatened species to an endangered species"); see also 50 C.F.R. § 424.11(d)(2). Therefore, FWS argues, the ESA and its implementing regulations unambiguously authorize the agency to designate and delist previously unlisted DPSs which are no longer endangered or threatened according to the factors set forth in Section 1533(a)(1).
At the outset, it is important to note that FWS' argument obscures a distinction between a premise that is compelled by the plain meaning of the ESA and a conclusion that, for reasons explained below, is not compelled by the plain meaning of the ESA. The indisputable premise is that FWS may delist DPSs when appropriate. As plaintiffs acknowledge, see Pls.' Opp. at 17, the ESA unambiguously defines the term "species" to include DPSs, see 16 U.S.C. § 1532(16), and therefore it clearly authorizes FWS to delist DPSs under some circumstances. See 16 U.S.C. § 1533(c)(2)(B). From this general premise FWS reasons to a more specific interpretive conclusion: that is, that the agency can designate as a DPS a sub-population of a listed species and then "delist" that sub-population -- even if it had not been recognized as a DPS or listed beforehand. Thus, the critical question is whether this particular interpretation of the ESA -- the one that underpins the Final Rule and lies at the heart of this case -- is compelled by the plain meaning of the ESA. The Court concludes that it is not.
1. Text and Structure
To begin with, the text and structure of the statute do not unambiguously support FWS' view of its DPS authority. In the Final Rule, for example, FWS appears to read Section 1533(a)(1) of the ESA to mean that FWS is not only authorized but required to designate as a DPS and delist any healthy sub-population within a broader listing. See Final Rule, 72 Fed. Reg. at 6064 ("Section [1533(a)(1)] of the Act directs the Secretary of the Interior to determine whether 'any species' is endangered or threatened.").*fn9 But this reading of Section 1533(a)(1) -- a reading that emphasizes one part of the provision and ignores the others -- is hardly the only plausible one. See United States v. Villanueva-Sotelo, 515 F.3d 1234, 1237 (D.C. Cir. 2008). Read in its entirety, Section 1533(a)(1) does not necessarily instruct or authorize FWS to designate as a DPS a healthy sub-population within a broader listing and then revise the status of that DPS. Instead, Section 1533(a)(1) could be read to mean, more generally, that when it is appropriate to evaluate and/or revise the status of "any species," then the agency must apply the factors prescribed therein.
Of course, that reading of Section 1533(a)(1) would lead one to ask when it is appropriate to evaluate and/or revise the status of a species -- and in particular to ask when it is appropriate to "delist" a species. FWS notes that "[n]umerous sections of the Act refer to adding and removing 'species' from the list of threatened or endangered plants and animals," Final Rule, 72 Fed. Reg. at 6064, but cites only one such section in its papers: Section 1533(c)(2)(B). That provision does indeed contemplate the reclassification or delisting of species and hence DPSs. But contrary to FWS' view, Section 1533(c)(2)(B) does not suggest that FWS may simultaneously designate and delist a previously unlisted sub-population of vertebrates within a broader listing. Rather, it quite strongly suggests -- consistent with common usage -- that the listing of any species (such as the western Great Lakes DPS) is a precondition to the delisting of that species. See 16 U.S.C. § 1533(c)(2)(B) (instructing FWS periodically to conduct a review of all species "included in a list, . . . which is in effect at the time of such review," and to determine whether any particular species should be "removed from such list") (emphasis added); cf. Pls.' Mot. at 31 (arguing that "the Act requires symmetry for the listing and delisting of DPSs.").*fn10
The text of the ESA resists FWS' interpretation in other ways as well. As plaintiffs point out, Congress's definition of "species" does not encompass DPSs of all organisms; rather, it includes only DPSs of "vertebrate fish or wildlife." 16 U.S.C. § 1532(16). That definitional choice limits the use of the DPS tool to vertebrate organisms. See Pls.' Opp. at 17 ("Congress consciously decided not to extend this tool to locally-vulnerable populations of insects and plants; those invertebrate species can only be protected under the ESA if they are at risk throughout all or a significant portion of their range."). Plaintiffs read this definitional choice as a statement of congressional intent. Specifically, they argue that by limiting the DPS tool to "those species that [it] deemed most valuable, such as mammals, birds, and fish," Congress expressed an intent -- or at least revealed an assumption -- that the DPS tool would be used only to list species in the first instance. Pls.' Opp. at 17; see also Pls.' Mot. at 29 ("Congress was not willing to incur the costs of protecting DPSs of insect and plant species, [but was willing to incur the costs of protecting DPSs of] keystone species like the grizzly bear and gray wolf.") (citing KATHERINE M. HAUSRATH, The Designation of "Distinct Population Segments" Under the Endangered Species Act in Light of National Association of Homebuilders v. Norton, 80 CHI.-KENT L. REV. 449, 455-56 (2005)).*fn11 Of course, Congress may have excluded plant and insect DPSs from the definition of "species" for other reasons -- for example, out of concern that identifying and managing "distinct populations" of plants and insects would be unwieldy. Nevertheless, while the inference plaintiffs draw from Congress's definitional choice is not inevitable, it is not implausible either.
After careful consideration of the parties' arguments and a close reading of the statute, the Court concludes that the text and structure of the ESA are "reasonably susceptible to more than one meaning" with respect to the precise question before the Court. McCreary v. Offner, 172 F.3d 76, 82 (D.C. Cir. 1999). The Court therefore disagrees with FWS that plaintiffs' arguments "are belied by the plain language of the ESA." Defs.' Mot. at 15.
2. Legislative History
Nor can legislative history dispel the ambiguity identified above. According to defendant-intervenors, the ESA's legislative history demonstrates (1) that the purpose of revising the ESA's definition of "species" was to give FWS "'more flexibility in [its] approach to wildlife management,'" and (2) that this evident desire for flexibility is consistent with FWS' reading of the statute. Ints.' Mot. at 17 (quoting Defenders of Wildlife v. Norton, 258 F.3d 1141, 1144 (9th Cir. 2001)). Defendant-intervenors rely principally, if not exclusively, on the following statement by Senator John Tunney, made during a floor debate on the original 1973 bill:
An animal might be "endangered" in most States but overpopulated in some. In a State in which a species is overpopulated, the Secretary would have the discretion to list that animal as merely threatened or to remove it from the endangered species listing entirely while still providing protection in areas where it was threatened with extinction. In that portion of its range where it was not threatened with extinction, the States would have full authority to use their management skills to insure the proper conservation of the species.
Senate Consideration and Passage of S. 1983, with Amendments (July 24, 1973) (statement of Sen. Tunney), reprinted in CONGRESSIONAL RESEARCH SERVICE, A LEGISLATIVEHISTORY OF THE ENDANGERED SPECIES ACT OF 1973 at 360 (1982).
Defendant-intervenors place far too much reliance on this single statement made by Senator Tunney on the floor of the Senate. To begin with, Senator Tunney's statement was made in 1973. It therefore tells us little about what Congress intended by adding the term "distinct population segment" to the definition of "species" in 1978. Moreover, even assuming that Senator Tunney's statement could shed some light on the issue before the Court, it is at most inconclusive. Nothing about Senator Tunney's statement is inconsistent with plaintiffs' view that the purpose of the DPS tool is to list locally vulnerable populations, and thus that a DPS must be designated and listed before it can be delisted.*fn12
3. Judicial Interpretations
Finally, both parties invoke certain judicial interpretations of the ESA. FWS relies heavily on two recent decisions by other district courts to demonstrate that its interpretation is compelled by the plain meaning of the ESA: Defenders of Wildlife v. U.S. Dep't of the Interior, 354 F. Supp. 2d 1156 (D. Or. 2005) and Nat'l Wildlife Federation v. Norton, 386 F. Supp. 2d 553 (D. Vt. 2005).*fn13 According to FWS, the former case supports its interpretation because, in the context of a challenge to an earlier gray wolf-related rule, the District of Oregon observed that (1) the DPS Policy "provides FWS the flexibility to list, downlist, or delist discrete and significant populations, even though the conservation status of the species may differ elsewhere," and (2) FWS "can downlist a DPS if that discrete and significant population is no longer endangered." Defenders of Wildlife v. U.S. Dep't of the Interior, 354 F. Supp. 2d at 1169. In the latter case, which involved a challenge to the same gray wolf-related rule, the District of Vermont stated (without analysis) that "[n]owhere in the ESA is the Secretary prevented from [designating and reclassifying a DPS within a broader listing merely because it would] creat[e] a 'non-DPS remnant' designation [outside of the DPS], especially when the remnant area was already listed as endangered." Nat'l Wildlife Federation v. Norton, 386 F. Supp. 2d at 565.
There are three problems with FWS' reliance on these cases to demonstrate that the statute unambiguously supports the Final Rule. First, neither case directly addresses the interpretive issue before this Court. Second, there is nothing inconsistent between the District of Oregon's observations and plaintiffs' view that a DPS must be listed before it is delisted. Third, while the District of Vermont's statement about "'non-DPS remnant' designation[s]" may be consistent with the approach taken in the Final Rule, it hardly stands for the proposition that FWS' interpretation is compelled by the statute. Thus, these cases can not and do not demonstrate that the ESA compels FWS' interpretation.
4. Conclusion
In sum, the ESA could be construed in the way urged by FWS. But it is one thing to say that the statute could bear FWS' interpretation; it is another thing to say that it could bear no others and therefore is unambiguous on the precise question at issue. See, e.g., Air Transport Ass'n of America v. FAA, 169 F.3d 1, 4 (D.C. Cir. 1999) ("Although the inference petitioner would draw as to the statute's meaning is not by any means unreasonable, it is also not inevitable" and thus not mandatory). For the reasons stated above, the Court concludes that the ESA is "silent or ambiguous with respect to the specific issue" before the Court. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 843. Therefore, the Court cannot endorse FWS' "plain meaning" reading under Chevron step one. See Peter Pan Bus Lines, Inc. v. Federal Motor Carrier Safety Admin., 471 F.3d at 1354. Furthermore, for reasons described below, the Court may not defer to the agency's reading under Chevron step two.
C. FWS' Reliance on the ESA's "Plain Meaning" Precludes Chevron Deference
Because the ESA is ambiguous with respect to the issue at hand, the Court is required to defer to any permissible agency construction under Chevron step two. See Defs.' Mot. at 13; Defs.' Opp. at 4. In this case, however, there is no permissible construction to which the Court can defer. The Final Rule and FWS' papers rely exclusively on a "plain meaning" reading of the ESA which the Court already has rejected. And even assuming that the Court could look elsewhere for an interpretation to which it could defer, there is none in sight. The DPS Policy does not qualify as a construction to which this Court can defer because the DPS Policy does not directly address the interpretive issue before the Court. The purpose of the DPS Policy is to clarify the meaning of the term "distinct population segment" and to set forth criteria for deciding whether a sub-population should be designated as a DPS. It does not address the propriety of simultaneously designating and delisting a DPS within a broader listing, and the Court finds both parties' arguments to the contrary strained and unpersuasive. Nor may the Court look to the ESA's implementing regulations for a Chevron-worthy interpretation. Those regulations largely track the statutory provisions discussed in part III.B and, like those statutory provisions, do not directly address the interpretive issue before the Court.
"Chevron step 2 deference is reserved for those instances when an agency recognizes that the Congress's intent is not plain from the statute's face" and proceeds to grapple with that ambiguity. Peter Pan Bus Lines, Inc. v. Federal Motor Carrier Safety Admin., 471 F.3d at 1354; see also Secretary of Labor, Mine Safety and Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d at 1074-75 (it will not do for an agency "to rest simply on its parsing of statutory language" when confronted with ambiguity) (internal quotation marks and citations omitted). On the other hand, "deference to an agency's interpretation of a statute is not appropriate when the agency wrongly believes that [its] interpretation is compelled by Congress." PDK Laboratories, Inc. v. DEA, 362 F.3d at 798. As discussed above, it seems clear that FWS erroneously concluded that its interpretation of the ESA was compelled by Congress. See, e.g., Final Rule, 72 Fed. Reg. at 6064. That erroneous conclusion precludes Chevron step two review and therefore precludes Chevron step two deference. See PDK Laboratories, Inc. v. DEA, 362 F.3d at 798.
When an agency "erroneously interpret[s] [statutory terms] as bearing a plain meaning," the Court is not to defer to the agency's "plain meaning interpretation." Secretary of Labor, Mine Safety and Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d at 1074-75. Nor is the Court to "choose between [the litigants'] competing meanings." PDK Laboratories, Inc. v. DEA, 362 F.3d at 798. Rather, the Court is to "remand for [the agency] to treat the statutory language as ambiguous." Secretary of Labor, Mine Safety and Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d at 1075; see also PDK Laboratories, Inc. v. DEA, 362 F.3d at 798 ("The law of this circuit requires in those circumstances that we withhold Chevron deference and remand to the agency so that it can fill in the gap."). Thus, the Court will remand the Final Rule to FWS so that the agency can provide a reasonable explanation for the interpretation of the Act which underlies the Final Rule.
On remand, the agency should bring its expertise and experience to bear on the question of whether the ESA permits it to use the DPS tool in the fashion it has proposed. At a minimum, the agency must explain how its interpretation of the statute conforms to the text, structure and legislative history of the ESA; how its interpretation is consistent with judicial interpretations of the ESA (if there are any on point); and how its interpretation serves the ESA's myriad policy objectives. It must also address any legitimate concerns that its interpretation could undermine those policy objectives. See, e.g., Secretary of Labor, Mine Safety and Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d at 1076-77.*fn14
The only question remaining is the listing status of the western Great Lakes DPS pending FWS' revised interpretation of the statute. FWS and defendant-intervenors argue that the procedural error identified above does not justify returning the wolves in the western Great Lakes DPS to the endangered species list. Rather, FWS and defendant-intervenors would have the Court remand the Final Rule but not vacate it. See Defs.' Opp. at 23-24; Ints.' Mot. at 38-41. Plaintiffs insist that remand and vacatur are appropriate. See Pls.' Opp. at 33. The Court agrees with FWS and defendant-intervenors that it is within the Court's discretion to remand without vacating the Final Rule, but in the context of this case it declines to do so.
"While unsupported agency action normally warrants vacatur, . . . this court is not without discretion [to remand without vacating]." Advocates for Highway and Auto Safety v. Federal Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005); see also Allied-Signal, Inc. v. Nuclear Regulatory Comm'n, 988 F.2d 146, 150 (D.C. Cir. 1993) ("An inadequately supported rule . . . need not necessarily be vacated."). The decision whether to vacate hinges on "the seriousness of the [regulation's] deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences" of vacatur. Int'l Union, United Mine Workers of America v. Federal Mine Safety and Health Admin., 920 F.2d at 967.
The Court concludes that both factors militate in favor of vacating the Final Rule before remanding it to the agency. First, while the Final Rule's deficiency is procedural, it is also fundamental: FWS failed to acknowledge crucial statutory ambiguities, and failed to explain how its interpretation of the ESA comports with the policy objectives of the Act. For that reason, the Court cannot be sure that the agency will arrive at the same conclusion after further consideration -- let alone whether, on further judicial review, this or a similar Final Rule will withstand challenge under the APA. Second, while it is true that vacatur will have a palpable regulatory effect -- specifically, management responsibility for the western Great Lakes DPS will be reposed in the federal government rather than in the states -- the Court concludes that "disruption" is not a substantial concern in this case. Little confusion or inefficiency will result from reinstating a regulatory regime that was in place from 1978 to 2007, particularly given the fact that state and federal wolf management authorities have been working in tandem for years. Finally, the Court agrees with plaintiffs that the ESA's preference for protecting endangered species counsels strongly in favor of vacating the Final Rule while FWS revisits its statutory interpretation. See NRDC v. U.S. Dep't of the Interior, 275 F. Supp. 2d 1136, 1145 (C.D. Cal. 2002). The Court therefore will vacate the Final Rule and remand it to the agency for further proceedings. An Order consistent with this Opinion will be issued this same day.
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Malmaison London Hotel
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April 16, 1953
CLEARY BROS. Inc.
THE WYOMISSING et al. LEHIGH VALLEY R. CO. v. THE WYOMISSING et al. THE NO. 62. THE EUREKA NO. 109. THE LEHIGH VALLEY NO. 473
At about 11:30 P.M. on March 29, 1948, the tug Wyomissing arrived at the foot of 33rd Street, East River, with orders to tow the loaded coal barge Eureka 109 to 14th Street.
The tug there found the coal barge moored between a sand scow, the Penn 10, which was made fast to the bulkhead, and a large steel barge, the Eureka 117. All three boats were loaded. The bows of the Penn 10 and the Eureka 109 were headed upstream, and the bow of the Eureka 117 lay downstream. There was a strong flood tide with a moderate southwesterly wind and good visibility.
In order to make the Eureka 109 available for towing, the tug made fast to the Eureka 117, which lay outside the Eureka 109, and moved the Eureka 117 a short distance downstream to a berth outside another deck scow which was moored to the bulkhead.
While this maneuver was being made the Eureka 109 went adrift and was carried upstream into collision with libelants' scow and gas hoist. These vessels subsequently broke loose and drifted upstream striking various objects en route. To recover for the damage sustained by their vessels, libelants bring these suits against the tug Wyomissing and the Eureka 109.
At the trial there was a serious conflict in the proof as to what caused the Eureka 109 to go adrift.
The following is the version of the accident urged by the owner of the Eureka 109 and which, in my judgment, is supported by a preponderance of the credible evidence:
The tug Wyomissing in moving the Eureka 117 downstream against the flood tide caused the stern of this loaded steel barge to rest heavily upon or come into collision with the Eureka 109. This contact pushed the smaller Eureka 109 ahead with a surge strong enough to part the 'breast' or 'spring' line which was amidships between the Eureka 109 and the Penn 10. The bargee of the Eureka 109, Carlson, seeing that his spring line had broken, looked aft and saw that his stern line had been freed from the after horn of the cleat and was rendering out. As the line rendered, the stern of the barge swung out into the river under the influence of the strong flood tide. Carlson was unable to secure the stern line, and it went overboard with its eye still on the cleat of the Penn 10.
By this time the bow of the Eureka 109 lay in contact with the outboard downriver corner of an oil barge which was moored ahead of it. Carlson was of the opinion that since the bow of the Eureka 109 was wedged against the oil barge with the full force of the flood tide against the port side of the 109, there was such an enormous strain on the bow line of the Eureka 109 that it would inevitably part the bow line or pull the side out of the Penn 10. Consequently, he ran forward and removed the bow line from the port bow corner of the Eureka 109 in an attempt to move it over to the middle bow bitt to reduce the strain and to slack off enough line to allow the Eureka 109 to swing with the tide until her starboard side lay against the oil barge where he might again secure her. However, with the Eureka 109 drifting away from the Penn 10, this distance proved to be too great for the length of the bow line and the line went overboard, its eye still on the starboard bow bitt of the Penn 10.
On the other hand, it was the contention of the owner of the tug Wyomissing that while Carlson was attempting to take up the slack in his lines after the Eureka 117 had been towed away from him, he lost control of his lines. The tug's witnesses testified that Carlson told them after the accident that he had only a bow and stern line out, and that in attempting to 'single up' or 'take up the slack' in his stern line, it got away from him, that he then went up to the bow, but the bow line also got away from him, and that finally he tried to lasso a bitt on the Penn 10 with a spring line, but that in the process the spring line parted.
Carlson had had thirty years experience at sea on sailing vessels and had been around boats for forty-five years handling lines, and it is highly unlikely that a bargee of his experience would, in the absence of some unusual circumstances, have permitted 'his lines to get away from him'. He impressed me as a truthful witness and after considering his testimony, together with the other evidence presented, I am satisfied that his version of the accident is the correct one.
It is undisputed that immediately prior to the accident the Eureka 109 was lying moored and at rest alongside the Penn 10 and that the only vessel maneuvering in the vicinity was the Wyomissing with the Eureka 117 in tow. The move which the Wyomissing was making with the heavily loaded Eureka 117, against the flood tide and in close quarters, could reasonably have caused the stern of the steel barge to rest heavily upon or come into collision with the stern of the Eureka 109. In addition to Carlson's testimony, there is the testimony of the bargee of the Eureka 117 that he 'heard a riffle * * * it kind of shook me. * * * Then I heard a line part. I heard a line say, 'Pow'. Then I heard the captain tell the deckhand to shake it up because the other boat was coming adrift * * *'. Further, the tug's witnesses admitted finding the three lines aboard the Penn 10 which Carlson described, namely the unbroken bow and stern lines and the parted spring line with its eye on the midships bitt.
The testimony by the Wyomissing's crew that Carlson told them that he had put out the spring line after he had lost his bow and stern lines appears to me to be incredible. Carlson denied such a conversation, and it seems plain that by the time the bow and stern lines had gone overboard, the Eureka 109 would have drifted so far from the Penn 10 on the flood tide that it would have been physically impossible for Carlson to have thrown a seven inch spring line from the Eureka 109 and lassoed the middle bitt on the Penn 10 where the tug's crew found it. It is interesting to note that the tug's witnesses did not testify to the details of this alleged admission by Carlson when first asked about the substance of the conversation, but that they testified concerning it only after Carlson had testified and they were recalled to the witness stand.
Moreover, a disinterested witness, the captain of one of libelants' vessels, the Cleary No. 62, stated in his deposition that while the Eureka 109 was still adrift and in contact with his vessel, he asked Carlson 'what happened -- where he came from -- * * * He said, 'I got knocked adrift in 30th Street.' That is all I know. That is what he told me.' As the event was still going on, this conversation was part of the res gestae and is entitled to considerable probative value.
Thus, it is my conclusion that Carlson's version of the accident is supported by the weight of the credible evidence.
The Wyomissing contends that Carlson was at fault for attempting to shift his bow line from the port to the middle bow bitt while there was no line made fast to any part of his barge. However, the Wyomissing's master, Pryga, admitted that under the circumstances described by Carlson the Eureka 109's bow line would have rendered or broken. It is clear, therefore, that Carlson acted diligently in the emergency which the Wyomissing created and that the Eureka 109 is free from fault.
Libelants are entitled to a decree against the tug Wyomissing, and the libels should be dismissed as against the Eureka 109.
Submit proposed findings of fact and conclusions of law in accordance herewith.
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I had a great cheeseburger. A trip to Carp isn't complete without visiting the Spot. It was crowded but we got a place to sit and the food was fast and great.
An old fashioned burger joint. Lots of choices, but really you go there for the burgers. It's casual and friendly, so just walk up from the beach.
Husband picked food up to go. It was near our hotel and it was recommended. Loved the onion rings! Burger was good. Didn't care for the ranch. Fries were ok.
Simple local spot that doesn't pretend to be fancy and tries to do a good job. It can get crazy busy, but when it isn't it is such a good old fashioned simple burger joint that you feel like it is a landmark even if it is really basic.
This burger stand is close to the beach. Long lines of customers but very nostalgic for old timers, like myself.
By the number of people queuing at this place we had to try it. No pretence, just a shack really but good honest cheap food. Great for a snack or lunch. Burger was very good and will try the fish sandwich next time based on local recommendation. No coffee available but that wasn't a problem.
This is a must stop and eat. Burgers and chicken strips are amazing. You know it is good food when you see a line at the counter of locals! Seats outside are nice,right across the street from the park.
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You can't go wrong with a burger and fries here, especially with patio atmosphere! The burger and fries are done perfectly and the view is awesome from the patio! Don't get discouraged if there's a long line, because there almost always is a line.. it goes pretty fast! Just be patient and wait for a table to become available while...
This place is one block from the beach. You order your food at the window and then wait for them to call your number. We had hamburgers with all the fixings, and fries, which were great. There are also tacos, fish and chips, chicken strips, etc. on the menu. Great place to grab a quick bite.
We love coming to The Spot for lunch whenever we are visiting Carpinteria. When your at the beach and get hungry for lunch it's just a few steps away. Burgers, fries, onion rings & milk shakes are good!
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New Jersey Superior Court, Appellate Division
Decided: February 18, 1981.
DR. HARVEY SALB ET AL., PLAINTIFFS-APPELLANTS,v.LEMOINE AVENUE ASSOCIATES ET AL., DEFENDANTS-RESPONDENTS
On appeal from Superior Court of New Jersey, chancery Division, Bergen County.
Fritz, Polow and Joelson. The opinion of the court was delivered by Joelson, J.A.D.
[178 NJSuper Page 38]
Plaintiffs are commercial tenants on the first floor of a high-rise apartment building in Fort Lee known as Bridge Plaza. The building contains 114 residential units and 19 professional or business suites. Defendant Lemoine Avenue Associates (Lemoine) was the tenant under the original long-term ground lease of the building. Pursuant to a plan of conversion of the property to a cooperative, on August 3, 1977 it offered for sale the residential apartments in the building. Commercial units were not included in the offering. A cooperative conversion took place and defendant Bridge Plaza Co-op, Inc. (Bridge Plaza) took over from Lemoine as tenant under the long-term ground lease of the building.
Thereafter, on November 1, 1978, Bridge Plaza offered 3,000 of the total 50,000 shares of capital stock to commercial tenants, and on May 16, 1979 increased the allotment to 8,621 shares for 15 commercial units. However, the price per share and the maintenance costs per share were considerably higher than that offered residential tenants. NRK Management Corporation (NRK) was the selling agent under the cooperative conversion offering and management agent for the building.*fn1
Plaintiffs brought action seeking an injunction against further implementation of the offering and requiring that commercial tenants be treated in all respects in the same manner as residential tenants. They also sought compensatory and punitive damages. Upon the motion of several defendants for summary judgment the trial judge signed an order which in effect denied plaintiffs' request to be treated on the same basis as residential tenants. Plaintiffs appeal this determination. We affirm.
[178 NJSuper Page 39]
Plaintiffs rely on N.J.S.A. 2A:18-61.8, which provides as follows:
Any owner who intends to convert a multiple dwelling as defined in P.L.1967, c. 76 (C. 55:13A-1 et seq.), other than a hotel or motel, or a mobile home park into a condominium or cooperative shall give the tenants 60 days' notice of his intention to convert and the full plan of the conversion prior to serving notice, provided for in section 3 of P.L.1974, c. 49 (C. 2A:18-61.2). A duplicate of the first such 60-day notice and full plan shall be transmitted to the clerk of the municipality at the same time. In the notice of intention to convert tenants shall be notified of their right to purchase ownership in the premises at a specified price in accordance with this section, and their other rights as tenants under this act in relation to the conversion of a building to a condominium or a cooperative. A tenant in occupancy at the time of the notice of intention to convert shall have the exclusive right to purchase his unit or the shares of stock allocated thereto for the first 90 days after such notice that such purchase could be made during which time the unit shall not be shown to a third party unless the tenant has in writing waived the right to purchase.
Plaintiffs contend that since they were tenants in occupancy at the time of the notice of intention to convert, they are entitled to the right to purchase by reason of the last sentence of the statute quoted above. In so arguing, they misread the clear intention of the enactment. We are satisfied that it does not extend its protection to commercial tenants. It refers to a multiple dwelling as defined by N.J.S.A. 55:13A-1 et seq. , which is a law described by N.J.S.A. 55:13A-2 as remedial legislation necessary to provide "decent, standard and safe units of dwelling space. . . .'" Furthermore, N.J.S.A. 55:13A-3(k) defines the term "multiple dwelling" as any building "in which three or more units of dwelling space are occupied or are intended to be occupied by three or more persons. . . ." Resort to a lexicographer is not necessary. The common understanding of the word "dwelling" carries connotations of a living place or home.
Furthermore, N.J.S.A. 2A:18-61.8 is part of a general statutory scheme, N.J.S.A. 2A:18-61.1 et seq. It should be noted that N.J.S.A. 2A:18-61.1 bears the heading: "Removal of residential tenants." It has no application to commercial tenants. Removal
[178 NJSuper Page 40]
of such tenants is governed by an entirely different statutory scheme, N.J.S.A. 2A:18-53. Since N.J.S.A. 2A:18-61.1 et seq. is in derogation of a landlord's common law rights of ownership, it must be strictly construed. Floral Park Tenants v. Project Holding, Inc. , 152 N.J. Super. 582, 591 (Ch.Div.1977), aff'd 166 N.J. Super. 354 (App.Div.1979). We must enforce the legislative will as written and not according to some unexpressed intention. Dacunzo v. Edgye , 19 N.J. 443, 451 (1955); Hoffman v. Hock , 8 N.J. 397 (1952).
Plaintiffs further allege that the cooperative conversion plan was in violation of the Uniform Securities Law, N.J.S.A. 49:3-47 et seq. , and the Real Estate Syndication Offerings Law, N.J.S.A. 49:3-27 et seq. We have held that shares of membership interests in cooperatives such as we are now considering do not fall within the purview of such laws. AMR Realty Co. v. State , 149 N.J. Super. 329 (App.Div.1977). The United States Supreme Court has similarly held with regard to the Federal Securities Act. United Housing Foundation, Inc. v. Forman , 421 U.S. 837, 95 S. Ct. 2051, 44 L. Ed. 2d 621 (1975), reh. den. 423 U.S. 884, 96 S. Ct. 157, 46 L. Ed. 2d 115 (1975). Plaintiffs seek to distinguish the case now before us from these cases under special circumstances alleged to exist here. In this respect they aver that some of the residential units were "sold to outsiders at the insider price" and that these "outsiders" purchased the units only for the purpose of renting them at a profit. Thus, they contend that the holding in AMR Realty Co. is not applicable.
We need not decide that issue because although plaintiffs in their complaint seek damages for violations of "New Jersey Blue Sky Laws," they do not allege nor can they prove that they are persons "buying the security" within the meaning of N.J.S.A. 49:3-71(a)(2). That section is the only provision in the Uniform Securities Law which entitles a person to recover damages against the offeror or seller of a security for violations of the
[178 NJSuper Page 41]
legislation, and it limits recovery to the consideration paid for the security by the purchaser of same, together with interest, "less the amount of any income received on the security, upon the tender of the security and any income received on it, or for damages if he no longer owns the security. . . ." Since plaintiffs have not bought any shares in the cooperative, they have no claim for damages under N.J.S.A. 49:3-71(a)(2). Any other claim they may assert based upon a violation of the Uniform Securities Law relates to the administration of that law which is the province of the Bureau of Securities. N.J.S.A. 49:3-66. If plaintiffs believe that the board is not taking any necessary step, it may seek to compel it through an action in lieu of prerogative writs, but that type of action is not relevant to the case now before us. The same is true with regard to the Real Estate Syndication Offerings Law, N.J.S.A. 49:3-27 et seq.
Plaintiffs also contend that the conversion is invalid because NRK, which was the selling agent, was not a licensed real estate broker of New Jersey. Since this is not an action involving the right of a nonlicensed real estate broker to be paid a commission, this issue also lacks relevance to the dispute before us. It has no bearing on the question of whether plaintiffs as commercial tenants are entitled to participation in the plan to convert the property into a cooperative.
We note, in conclusion, that the trial judge, although ruling that the commercial tenants had no rights under N.J.S.A. 2A:18-61.8, nevertheless went on to order that if they wished, they should have authority to purchase at prices no higher than those established in the offering plan of November 1, 1978. No timely cross-appeal having been filed by defendants, we need not consider this aspect of the order.
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