Arizona Cattle Growers' Ass'n v. Kempthorne

OPINION AND ORDER

This matter arises out of the United States Department of the Interior and its Fish and Wildlife Service’s (collectively the “Service”) promulgation of the Final Designation of Critical Habitat for the Mexican Spotted Owl, 69 Fed.Reg. 53,182 (Aug. 31, 2004), under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531, et seq. At issue are Plaintiff Arizona Cattle Growers’ Association’s Motion for Summary Judgment (Doc. 37), Defendants Dirk Kempt-horne, et al.’s Cross Motion for Summary Judgment (Doc. 44), and Intervenor-De-fendant Center for Biological Diversity’s (“CBD”) Motion for Summary Judgment (Doc. 45).

I. BACKGROUND

A. Procedural History

The events that precipitated this litigation began on December 22, 1989, when Dr. Robin D. Silver submitted a petition requesting that the Service consider fisting the Mexican Spotted Owl (Strix occidental-is lucida) (the “Owl”) as a threatened or endangered species under the ESA. Final Rule to List the Mexican Spotted Owl as a Threatened Species, 58 Fed.Reg. 14, 248, 14,252 (March 16, 1993); Ctr. for Biological Diversity v. Norton, 240 F.Supp.2d 1090, 1091 (D.Ariz.2003). Almost four years later, on March 16, 1993, the Service issued the final rule fisting the Owl as a threatened species. 58 Fed.Reg. at 14,248. At the time of listing, the Service opined that “[d]esignation of critical habitat is prudent, but not determinable at this time.” Id.

In addition to vesting the Service with fisting responsibilities, Congress has directed it to determine those areas that constitute critical habitat for fisted species. 16 U.S.C. § 1533(a)(3). The Service must, “to the maximum extent prudent and determinable,” designate critical habitat concurrent with the fisting of any species as threatened or endangered. Id. If critical habitat is not determinable at the time of fisting, then the Service “may extend the one-year period ... by not more than one additional year.” Id. § 1533(b)(6)(C)(ii). By February of 1994 the Service had yet to propose a rule designating critical habitat for the Owl, so a group of concerned *1018 citizens and environmental organizations filed suit to compel the Service to designate the Owl’s critical habitat. Silver v. Babbitt, 94-CV-337-PHX-RGS; Norton, 240 F.Supp.2d at 1092. The court responded by ordering the Service to designate critical habitat in a final rule to be published no later than May 30, 1995. Id. On June 6, 1995, the Service designated 4.6 million acres of critical Owl habitat. Final Rule Designating Critical Habitat for the Mexican Spotted Owl, 60 Fed.Reg. 29, 914.

Shortly after publication, the Owl’s critical habitat designation was challenged in Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. U.S. Fish and Wildlife Service, CV-95-1258-M (D.N.M.1997), for failure to complete the review required by the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”). 1 The court enjoined the Service from enforcing the critical habitat designation until completion of a NEPA review, leading the Service to revoke the critical habitat designation for the Owl on March 25,1998. 63 Fed.Reg. 14,378; Norton, 240 F.Supp.2d at 1092. Following the revocation, when no new proposed rule designating the Owl’s critical habitat had yet been published, a new lawsuit was filed asking the United States District Court for the District of New Mexico to order the Service into action. Proposed Designation of Critical Habitat for the Mexican Spotted Owl, 65 Fed.Reg. 45,336, 45,339 (citing Sw. Center for Biological Diversity and Silver v. Babbitt and Clark, CIV 99-519 LFG/LCS-ACE (D.N.M.2000)); Norton, 240 F.Supp.2d at 1092. While recognizing that it was in violation of the ESA, the Service requested still more time for publication of the proposed and final rules. Norton, 240 F.Supp.2d at 1092. These requests were denied and, on February 1, 2001, the service published a final rule designating 4.6 million acres of critical habitat. Final Designation of Critical Habitat for the Mexican Spotted Owl, 66 Fed.Reg. 8,530.

On August 27, 2001, the Center for Biological Diversity filed suit alleging that the Service’s decision to designate roughly 4.6 of the proposed 13.5 million acres, and to exclude all National Forest Service lands, was in violation of the ESA and the Administrative Procedure Act (“APA”). Norton, 240 F.Supp.2d at 1109. The court agreed and, on January 13, 2003, ordered the Service to publish a revised proposed order within three months with a final order due following an additional three month period. Id. The Service then sought, and the court begrudgingly granted, an extension of these deadlines, although not to the extent that the Service requested. Center for Biological Diversity v. Norton, 2003 WL 22849594, *1 (D.Ariz. Feb.19, 2003). On August 31, 2004 the Service published the Final Rule designating critical habitat, which is now challenged by Plaintiff. 69 Fed.Reg. at 53,182.

B. The ESA and Critical Habitat Designation

The ESA was enacted to, among other things, “provide a means whereby the eeo- *1019 systems upon which endangered species and threatened species depend may be conserved.” 16 U.S.C. § 1531(b). To further this policy, Congress directed the Secretaries of Commerce and the Interior to list threatened and endangered species and designate their critical habitats. Id. § 1532(15). ESA listing and critical habitat designation responsibilities for animals such as the Owl have been further delegated to the Service.

Critical habitat is defined as:

(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and

(ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.

Id. § 1532(5)(A). The Service must designate critical habitat “on the basis of the best scientific data available and after taking into consideration the economic impact” of the designation. Id. § 1533(b)(2).

C. Plaintiffs Challenge to the August 31, 2004 Critical Habitat Designation

At present the Service has designated approximately 8.6 million acres of federal land as critical Owl habitat including canyon and forest land in Arizona, New Mexico, Colorado, and Utah. 69 Fed.Reg. at 53, 182. Plaintiff challenges the legality of this critical habitat designation on the following grounds: (1) the Service failed to identify the “physical or biological features ... essential to the conservation of the species”; (2) the Service failed to determine at what point the Owl will be conserved, and thus cannot identify the features essential to that end; (3) the Service unlawfully designated areas not occupied by the Owl as occupied critical habitat; (4) the Service failed to determine which areas contain the “physical or biological features ... essential to the conservation of the species” and thus designated areas as critical habitat that are missing one or more of the essential features; (5) the Service improperly included as critical habitat areas without first determining whether they “may require special management considerations or protection”; (6) the Service did not designate Owl critical habitat using the best scientific data available; and (7) the Service failed to properly take into account the economic impacts of specifying the area as critical habitat.

In its Motion for Summary Judgment, Plaintiff asks the Court to set aside the Final Rule and remand to the Service. Defendants and Intervenor respond that the Service complied with both the ESA and the APA in promulgating the critical habitat designation, and thus no grounds exist for invalidating the Final Rule. In addition, they argue that even if the Court were to find that the Service was not in complete compliance with the statutory requirements, the Final Rule should remain in effect pending any remand.

The Court, having considered the Cross-Motions for Summary Judgment, Intervenor’s Brief, and the oral argument made to the Court, now turns to address each of Plaintiffs arguments.

II. LEGAL STANDARDS AND ANALYSIS

Summary judgment is appropriately granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). When the dis- *1020 triet court reviews an administrative agency decision under the Administrative Procedure Act (“APA”), “summary judgment is an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.” Occidental Eng’g Co. v. INS, 758 F.2d 766, 770 (9th Cir.1985); City & County of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir.1997). “[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Eng’g, 753 F.2d at 769.

The APA, 5 U.S.C. § 706, governs judicial review of agency decisions under the ESA. Native Ecosystems Council v. Dombeck, 304 F.3d 886, 901 (9th Cir.2002). Section 706 states that a court “shall hold unlawful and set aside agency actions ... found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2); see also Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 307 F.3d 964, 975 (9th Cir.2002). “This deferential standard ensures that the agency decision contains no clear error of judgment.” Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir.2003) (citation omitted). The court presumes regulations to be valid, but the inquiry into their validity is a “thorough, probing, in-depth review.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

Under the arbitrary and capricious standard, the court must decide whether the Service “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). The court must reverse an agency action when the agency has “ ‘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.’ ” Pac. Coast Fed’n of Fishermen’s Ass’ns, Inc. v. Nat’l Marine Fisheries Serv., 265 F.Sd 1028, 1034 (9th Cir.2001) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Critical habitat designated under the ESA may also be invalid if it is determined that the Service either failed to use the “best scientific data available” or that it failed to “consider[ ] the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.” 16 U.S.C. § 1533(b)(2). The court’s decision must be based on the administrative record, and “the basis for the agency’s decision must come from the record.” Nat’l Ass’n of Home Builders, 340 F.3d at 841 (citing Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir.2001)). The court “cannot substitute [its] judgment for that of the agency.” Id.

A. Identification of Essential Physical or Biological Features

In defining critical habitat, 16 U.S.C § 1532(5)(A) differentiates between habitat that is “occupied” and habitat that is not “occupied.” For “area[s] occupied by the species,” critical habitat is limited to areas containing “physical or biological features (I) essential to the conservation of the species and (II) which may require special management consideration or protection.” 16 U.S.C § 1532(5)(A). Thus, to satisfy part one of the statutory definition of occupied critical habitat, the Service must identify the “physical or biological features essential to the conservation of the [Owl].” *1021 Id. Plaintiff contends that these features, also known as primary constituent elements (“PCEs”), are inadequately described in the critical habitat designation, and, therefore, violate the ESA.

The Owl’s critical habitat designation identifies three categories of PCEs: (1) forest structure; (2) maintenance of adequate prey species; and (3) canyon habitat. 69 Fed.Reg. at 53,211. The PCEs for the Owl are as follows:

A. [PCEs] related to forest structure:

(1) a range of tree species, including mixed conifer, pine-oak, and riparian forest types, composed of different tree sizes reflecting different ages of trees, 30 percent to 45 percent of which are large trees with a trunk diameter of 12 inches (0.03 inches) or more when measured at 4.5 feet (1.4 meters) from the ground;

(2) a shade canopy created by the tree branches covering 40 percent or more of the ground; and

(3) large dead trees (snags) with a trunk diameter of at least 12 inches (0.3 meters) when measured at 4.5 feet (1.4 meters) from the ground.

B. [PCEs] related to maintenance of adequate prey species:

(1) High volumes of fallen trees and other woody debris;

(2) A wide range of tree and plant species, including hardwoods; and

(3) Adequate levels of residual plant cover to maintain fruits, seeds, and allow plant regeneration.

C. [PCEs] related to canyon habitat include one or more of the following:

(1) presence of water (often providing cooler and often higher humidity than the surrounding areas);

(2) clumps or stringers of mixed-conifer, pine-oak, pinyon-juniper, and/or riparian vegetation;

(3) canyon wall containing crevices, ledges, or caves; and

(4)high percent of ground litter and woody debris.

Id. Plaintiff argues that the “ESA by its very terms requires some minimal degree of specificity [in defining PCEs] which, in this case, has not been met.” (PL’s Combined Opp’n and Reply to Defs.’ and Def.-Intervenor’s Cross-Mots, for Summ. J. (“PL’s Reply”) at 4.) Chief among Plaintiffs concerns is the “vagueness [that] abounds with the descriptions of the PCEs” which it claims fails to “put the public on adequate notice as to the PCEs.” (Pl.’s Mem. of P. & A. in Supp. of Mot. for Summ. J. (“PL’s Mot”) at 9-10.) To support this claim, Plaintiff highlights that “the Service does not provide a definitive list of qualifying trees”; that it uses vague terms including “high volumes,” “wide range,” and “adequate”; and that it uses generalized statements such as, “high percent of ground litter and woody debris.” (PL’s Mot. at 9.) In response to Plaintiffs arguments, the Service contends that it used the best available science to arrive at the PCEs, and that this is all that the ESA requires.

If the Service were to set forth PCEs so utterly lacking in detail as to be facially deficient, then any critical habitat designation made in reliance on those PCEs would certainly fail to meet § 1532(5)(A)’s requirements for the simple reason that one cannot ascertain the physical or biological features essential to a species’s conservation without first identifying those features with some minimal specificity. Indeed, where the Service has designated critical habitat without providing a sufficiently detailed description of the PCEs, at least one court has concluded that such a designation is arbitrary and capricious. See Home Builders I, 268 F.Supp.2d at 1211-13. In Home Builders I the court determined that the Service had essentially neglected to provide any meaningful description of the PCEs in the final rule des *1022 ignating critical habitat for the Alameda whipsnake. Id. at 1211. The Service’s attempt to detail the PCEs for the whips-nake included unhelpful “sentences indicating that the [PCEs] ‘are in’ or ‘may be found in’ particular areas, or that particular habitat features ‘may also contain’ the elements,” and generalizations such as: “a suitable range of temperatures,” “sufficient” “corridors of plant cover,” and “adequate insect populations.” Id. at 1211-13. Fatal to the whipsnake habitat designation was that, “[n]one of these sentences tell the reader what the primary constituent elements actually are.” Id. Plaintiffs attempt to draw parallels between the whipsnake PCEs and those specified for the Owl falls short of convincing the Court that the present Final Rule approaches the Service’s failures identified in Home Builders I. While the Service may not have provided PCEs to a level of specificity sufficient to appease Plaintiff, it did satisfy its statutory obligation with the level of detail given in the Final Rule— and that is all the ESA requires.

To counter Plaintiffs reliance on Home Builders I, Defendants cite to a similar ease, also from the Eastern District of California, Home Builders Association of Northern California v. United States Fish and Wildlife Service, 2006 WL 3190518 (E.D.Cal. Nov.2, 2006) (“Home Builders IF), modified on other grounds by 2007 WL 201248 (E.D.Cal. Jan.24, 2007), in support of their position that the PCEs were set forth with the requisite level of specificity. The Home Builders II court addressed a challenge to the critical habitat designation for fifteen vernal pool species, ultimately concluding that the designation complied with the strictures of the ESA. 2006 WL 3190518, at *1. Similar to the arguments advanced by Plaintiff, the vernal pool species’ PCEs were challenged for, among other things, lack of specificity. Id. at *16. Notably, the plaintiff argued that “there is no indication of the size of the uplands or the mounds or swales they contain, and no explanation of what kind of food in the form of detritus would be acceptable.” Id. The court rejected these arguments, writing that “Home Builders do not reference scientific data with regard to the species or PCEs in this case that the FWS should have considered and disregarded.” Id. The Home Builders II court, in rejecting the plaintiffs argument, jumped directly into an analysis that examined whether the PCEs were supported by the best scientific data available, without first assessing whether the PCEs met some sort of baseline level of reasonable specificity. Id. Plaintiff, in its Reply, challenges Defendants’ reliance on Home Builders II by finding error in the court’s decision to proceed without making this preliminary determination. Plaintiff contends that the “court did not apprehend that the challenge to the vernal pool species’ PCEs — like the challenge to the [OJwl’s PCEs — is independent of the record because the ESA by its very terms requires some minimal degree of specificity which, in this case, has not been met.” (Pl.’s Reply (citing Home Builders I, 268 F.Supp.2d at 1213).) Clearly there is some minimal level of specificity required — the Service may not write an absurdly brief set of PCEs for a species and then rely on an argument that the PCEs are supported by the best available science. However, that level of specificity was reached in this case, just as it was in Home Builders II. Thus, the Home Builders II court’s decision to limit its analysis to a review of the Service’s compliance with the best available science standard was appropriate, a finding that is consistent with the holding of Home Builders, which involved a set of PCEs patently less detailed.

Further undermining Plaintiffs argument is the clear indication from the Home Builders I court that it was more eon- *1023 cerned with the Service’s failure to explicitly describe the physical or biological features as being essential to the whipsnake’s conservation than it was with the PCEs’ lack of specificity. Home Builders I, 268 F.Supp.2d at 1211, 1213. The Home Builders I court emphasized this distinction, writing “[m]ore significant, however, is the fact that Defendants do not provide a citation to any part of the Final Rule in which the Service identifies these four environments as essential for the conservation of the species.” Id. at 1211. Later in its analysis, the court again uses this rationale to discredit what it characterized as “[t]he most definitive statement” provided in the list of whipsnake PCEs. Id. at 1213. Disregarding whether the description of these “definitive” features may have been sufficiently detailed, the court instead highlighted that the features were introduced by a phrase stating that they are “specific habitat features needed by whips-nakes.” Id. at 1213. The court contrasted this with the Service’s repeated use of the term “essential” in other parts of the PCEs section of the rule and opined “that it is unclear whether the term ‘need’ used in this context is meant to be synonymous with the term ‘essential.’ ” Id. The whips-nake PCEs were invalidated primarily because of the Service’s inability to unequivocally state that they were in fact “essential to the conservation of the species” as required by the ESA. 16 U.S.C. § 1532(5)(A)(i). Thus, Plaintiffs reliance on Home Builders I as evidence that PCEs have in the past been held to some threshold standard is substantially undercut.

In responding to Plaintiff, Defendants and Intervenor, in large part, rely on two simple arguments: the ESA does not require the level of specificity demanded by Plaintiff, and the Service used the best available science to set forth the PCEs. The Court agrees with these statements. Both § 1532(5)(A) and 50 C.F.R. § 424.12 undoubtedly require that the Service use some level of specificity in enumerating PCEs — to hold otherwise would eviscerate the definition of critical habitat, as PCEs constitute an essential component of occupied critical habitat and their existence is dispositive to any determination. No statute or regulation provides a formula for the Service to use in setting forth PCEs. Instead, the relevant federal regulation states that “[p]rimary constituent elements may include, but are not limited to, the following: roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinator, geological formation, vegetation type, tide, and specific soil types.” 50 C.F.R. § 424.12(b)(5) (emphasis added). The PCEs detailed by the Service address many of the categories contemplated by the regulation. For instance, “canyon habitat is used by owls for nesting, roosting, and foraging”; Owl “[b]reeding sites are located below canyon rims”; feeding sites include “canyon bottoms, on cliff faces and benches, and along canyon rims and adjacent lands”; geological features include “canyon wall containing crevices, ledges, or caves”; and vegetation is varied but specifies “mixed-conifer, pine-oak, pinyon-juniper,” “hardwoods,” and “residual plant cover to maintain fruits [and] seeds.” 69 Fed.Reg. at 53,211.

Here the record does not support Plaintiffs argument that the PCEs are so vague as to make it unnecessarily difficult for the public to ascertain whether certain plots of land contain the Owl’s PCEs. While certain terms used in the critical habitat designation, including those emphasized by Plaintiff, may, when viewed in isolation, be lacking in the requisite specificity, they are accompanied by other more detailed terms that, when taken together, are reasonably specific and identify the physical or biological features essential for the Owl’s conservation. For example, the Service used the following description as *1024 one attribute related to forest structure: “large dead trees (snags) with a trunk diameter of at least 12 inches (0.3 meters) when measured at 4.5 feet (1.4 meters) from the ground.” Id. This statement, and others like it, are evidence that the Service has endeavored to provide PCEs within a reasonable level of specificity. Given the deference that this Court must accord the Service’s decisions, the Court concludes that the PCEs are facially sufficient.

With the conclusion that the PCEs contain the minimum level of specificity requisite to surmount this preliminary hurdle, the Court now inquires whether the PCEs are supported by the best available science — the position repeatedly taken by Defendants and Intervenor. Defendants argue that “the critical habitat designation is sufficiently detailed” and that “[t]he level of detail the Plaintiff would like is inconsistent with the biological reality of the habitat requirements for the owl and the best available science.” (Defs.’ Summ. J. Reply (“Defs.’ Reply”) at 2.) Tellingly, Plaintiff does not argue that the Service’s PCEs are based on incorrect data or suspect science. In fact, Plaintiff had the opportunity to submit comments challenging the Service’s choice of PCEs, and the science upon which they are based, and even to suggest alternative scientific evidence for consideration. Neither Plaintiff nor any other interested party submitted such a comment. 69 Fed.Reg. at 53,-185 (noting that “[d]uring the comment periods, we requested, but did not receive, any information regarding refinements to the [PCEs].”). Furthermore, Plaintiff conceded in the briefing that it “does not contend that the Service failed to use the best available scientific data in identifying the owl’s PCEs.” (PL’s Reply at 3.) The Court will not investigate whether the PCEs were based upon sound scientific record evidence as Plaintiff has failed to illuminate any contradictory evidence or even call into question any of the evidence cited by the Service as supporting the PCEs. 2 Thus, the Court concludes that the *1025 PCEs meet the statutory criteria of the ESA.

B. Identification of the Point at Which the Owl will be Deemed Conserved

Conservation, as defined in the ESA, occurs when a listed species is brought “to the point at which the measures provided pursuant to this chapter are no longer necessary.” 16 U.S.C. § 1532(3). The ESA defines occupied critical habitat, in part, as the areas containing “those physical or biological features essential to the conservation of the species.” 16 U.S.C. § 1532(5)(A)(i). Plaintiff latches on to the phrase “essential to the conservation” and, from this, argues that it is impossible to know what features are essential to Owl conservation without first identifying at what point that ultimate goal will be attained. In support of this argument, Plaintiff relies on the reasoning of the Home Builders I court which held that, “if the Service has not determined at what point the protections of the ESA will no longer be necessary for the snake, it cannot possibly identify the physical or biological features that are an indispensable part of bringing the snake to that point.” 268 F.Supp.2d at 1214.

While tempting in its logical simplicity, the Court is unconvinced that one cannot move forward with a conservation effort without first identifying that precise point at which conservation will be achieved. Furthermore, as highlighted by the Home Builders II court, the logic used in Home Builders I cited no caselaw and was based not on an examination of the overall statutory scheme, but instead on logical supposition. This Court takes an approach, and reaches a conclusion, identical to that reached in Home Builders II: that the language of the ESA requires a point of conservation to be determined in the recovery plan, 3 not at the time of critical habitat designation.

A fundamental rule of statutory construction is “that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute.” Hamdan v. Rumsfeld, 548 U.S. 557, - - -, 126 S.Ct. 2749, 2766-67, 165 L.Ed.2d 723 (2006) (citing Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (“ ‘[W]here Con *1026 gress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ”)). The ESA is a comprehensive piece of environmental legislation and, as such, it is necessary to examine all of its requirements in order to construe its specific commands. Viewed in isolation, the process of critical habitat designation seems a logical place to insert a requirement that the Service determine the point where the species will be conserved. However, instead, Congress explicitly instructed the Service to make this determination in the species’s recovery plan. 16 U.S.C. § 1533(f).

Recovery plans must incorporate three separate categories of information, the second of which includes “objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list.” Id. § 1533(f)(B)(ii). In contrast, the statutory language relating to critical habitat designation imposes no similar obligation. The Court presumes, therefore, that Congress, by requiring the inclusion of “objective, measurable criteria” specifying the point of conservation in one ESA section, while excluding it from another, acted intentionally. Plaintiff has offered no persuasive legal argument sufficient to call this presumption into question and accordingly its position is in opposition to Congressional intent.

Further distinguishing these two sections is the strict timeline imposed by Congress which mandates timely designation of critical habitat. There is no similar requirement for recovery plans. Had Congress deemed the point at which the species will be conserved as essential to the listing of the PCEs, then logically it would have included that requirement at the critical habitat designation stage. Rather, the ESA reflects a preference for swift designation of critical habitat with promulgation of the recovery plan — and its detailed explanation of when a species can be deemed conserved — to be more appropriately rendered at some future date.

To address Plaintiffs more basic point, the Court is not persuaded that PCEs cannot be determined without first identifying the point where the Owl will no longer need ESA protection. Many elements incorporated in the Owl’s PCEs, such as those specifying nesting sites and adequate prey species, would clearly be required for Owl conservation regardless of whether the Owl is deemed conserved after its population reaches one thousand or one million Owl individuals. All species need essential items including food, water, and shelter, and it is apparent that the Service can determine the areas containing these critical habitat elements without first knowing the point when the Owl will no longer be in need of ESA protection. The Court concludes that the Service fully complied with the ESA by setting forth PCEs, and designating critical habitat, without first determining at what point the owl will be deemed conserved. 4 ’ 5

*1027 C. Designation of Occupied Versus Unoccupied Critical Habitat 6

The Service may designate critical habitat that is either “occupied” or “out *1028 side the geographical area occupied” by the species. 16 U.S.C. § 1532(5)(A). Differentiation between occupied and unoccupied habitat is necessary so that the Service may apply the proper ESA analysis. Statutory conditions that must be met before designating unoccupied areas are more onerous that those needed for occupied habitat. Id. The Final Rule designated occupied habitat only; the Service has not designated unoccupied habitat for the Owl. Plaintiff believes that the Final Rule impermissibly “blurs the distinction between occupied and unoccupied critical habitat by designating as occupied habitat ... areas where owls are likely to occur.” (PL’s Reply at 7.) As a result, Plaintiff contends that the Service applied the less stringent requirement to areas that the Service acknowledged are locations where the Owl is merely “likely to occur.” Plaintiff argues that the Service’s decision to include those areas was based on an unreasonable interpretation of the statutory language, and that, for this reason, the designation is invalid. The Service responds that it reasonably interpreted the term occupied to include those areas where the Owl is likely to occur, and further contends that this interpretation is owed deference by the Court.

“When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). While Congress did provide a list of definitions in the ESA, it chose not to define “occupied.” See 16 U.S.C. § 1532; Cape Halteras Access Pres. Alliance v. U.S. Dep’t of Interior, 344 F.Supp.2d 108, 120 (D.D.C.2004) (finding that “[t]he ESA does not define ‘occupied’ ” and that “the Service has retained flexibility” when defining the term). It is reasonable to infer, therefore, that Congress did not speak on this precise question. Where, as is the case here, the statute is “silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. In a situation where Congress has implicitly delegated authority to the agency, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. at 844, 104 S.Ct. 2778. When reviewing the interpretation for reasonableness, “considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.” Id.

Generally, formal agency actions, such as those resulting from notice-and-comment rulemaking, warrant Chevron deference. Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). However, agency actions that lack the force of law, such as opinion letters, policy statements, and agency manuals, are not entitled to Chevron deference.