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WildEarth Guardians v. Jewel

United States District Court, D. Arizona

September 8, 2015

WildEarth Guardians, Plaintiff,
v.
Sally Jewel, in her capacity as United States Secretary of the Interior, and United States Fish and Wildlife Service, Defendants, and Board of County Commissioners of Gunnison County, Colorado, American Petroleum Institute, and Western Energy Alliance, Intervenor-Defendants

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[Copyrighted Material Omitted]

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          For WildEarth Guardians, Plaintiff: Ashley D Wilmes, LEAD ATTORNEY, Louisville, CO; Daniel John Rohlf, Thomas C Buchele, LEAD ATTORNEYS, Earthrise Law Center - Portland OR, Portland, OR; Sarah K McMillan, WildEarth Guardians - Missoula, MT, Missoula, MT.

         For Sally Jewell, named as Sally Jewel, in her official capacity as United States Secretary of the Interior, United States Fish and Wildlife Service, Defendants: Mary Elisabeth Hollingsworth, LEAD ATTORNEY, U.S. Dept of Justice, Washington, DC.

         For Board of County Commissioners of the County of Gunnison, State of Colorado, Intervenor Defendant: David Baumgarten, LEAD ATTORNEY, Office of the Gunnison County Attorney, Gunnison, CO.

         For American Petroleum Institute, Western Energy Alliance, Intervenor Defendants: Andrew J Turner, Karma B Brown, LEAD ATTORNEYS, Hunton & Williams LLP - Washington, DC, Washington, DC; Bradley Joseph Glass, LEAD ATTORNEY, Gallagher & Kennedy PA, Phoenix, AZ; David J DePippo, LEAD ATTORNEY, Hunton & Williams - Richmond, VA, Richmond, VA; Matthew Alan Haynie, LEAD ATTORNEY, LEAD ATTORNEYS, American Petroleum Institute, Washington, DC.

         For Board of County Commissioners of the County of Gunnison, State of Colorado, Counter Claimant: David Baumgarten, LEAD ATTORNEY, Office of the Gunnison Cuonty Attorney, Gunnison, CO.

         For Sally Jewell, named as Sally Jewel, in her official capacity as United States Secretary of the Interior, United States Fish and Wildlife Service, Counter Defendants: Mary Elisabeth Hollingsworth, LEAD ATTORNEY, U.S. Dept of Justice, Washington, DC.

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         ORDER AND OPINION [Re: Motions at Docket 75 & 81]

         JOHN W. SEDWICK, SENIOR UNITED STATES DISTRICT JUDGE.

         I. MOTIONS PRESENTED

         At docket 75, plaintiff WildEarth Guardians (" Plaintiff" ) filed a motion for summary judgment as to its challenge to the United States Fish and Wildlife Service's November 14, 2013 decision denying Plaintiff's petition to list the Gunnison's prairie dog as an endangered or threatened species pursuant to the Endangered Species Act, 16 U.S.C. § 1531 et seq. (" ESA" ). At docket 81 defendants Sally Jewell and the United States Fish and Wildlife Service (" Federal Defendants" ) filed their response and a cross motion for summary judgment. Intervenor Defendants filed

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response briefs in support of Federal Defendants' position at dockets 83 and 84. Plaintiff's response to the cross-motion for summary judgment and its reply in support of its motion is at docket 85. Federal Defendants' reply is at docket 100. Oral argument was heard August 28, 2015.

         II. STATUTORY FRAMEWORK

         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 and threatened species." [1] Under the ESA, an endangered species is one that is " in danger of extinction throughout all or a significant portion of its range." [2] A threatened species is one that is " likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." [3] The decision about whether to list a species under the ESA must be based upon the consideration of five factors:

(A) the present or threatened destruction, modification, or curtailment of [the species'] habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting [the species'] continued existence.[4]

         Listing of a species may be done in response to a petition. [5] If a petition is filed, the United States Fish and Wildlife Service (the " Service" ) must determine " whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted." [6] The Service's initial finding in response to a petition is called a " 90-day finding." If the Service determines that action may be warranted then it initiates a full-status review of the species. It must gather the best data available and analyze that data in relation to the five factors described above to determine whether listing of the species is warranted.[7] This final decision is called a " 12-month finding." The Service is required to make such a finding " solely on the basis of the best scientific and commercial data available to [it] after conducting a review of the status of the species and after taking into account" existing efforts to protect the species.[8]

         III. BACKGROUND

         In 2004 Plaintiff and other individuals and organizations submitted a petition to the Service requesting that it list the Gunnison's prairie dog (" GPD" ) as a threatened or endangered species pursuant to the ESA. GPDs are one of five species of prairie dogs found in North America. GPDs inhabit grasslands and shrub-steppe landscapes of intermountain valleys in the " Four Corners" region of northern Arizona, southwestern Colorado, northwestern New Mexico, and southeastern Utah. They are considered a " keystone" species given the important role they play in their habitat. The 2004 petition asserted that the GPD should be listed under the ESA because of " significant population declines, ongoing habitat loss and degradation, overutilization due to shooting, unrestricted poisoning, threats attributed to disease, inadequate regulatory mechanisms, and

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other factors, including drought." [9] In early 2006 the Service published a 90-day finding, which concluded that Plaintiff's petition did not present substantial scientific information to indicate that listing the GPD may be warranted under the ESA.[10]

         After Plaintiff filed a complaint challenging the finding, the Service agreed to conduct and publish a 12-month finding. In February of 2008, the Service issued its finding (" 2008 Finding" ) wherein it determined that listing the GPD was only warranted in the " montane portion" of the species' range in certain parts of Colorado and New Mexico[11] and not warranted within the remaining " prairie portion" of its range.[12] However, the Service concluded that even though listing was warranted, it was nonetheless precluded by other listing priorities. Plaintiff again challenged the finding, and the court granted its motion for summary judgment, holding that the Service impermissibly determined that only a portion of the species was entitled to listing; that is, there was no support for the fact that GPDs living in the montane regions of its range were a separate species.[13] As part of a stipulated settlement agreement with Plaintiff and other parties, the Service agreed to submit a new 12-month finding on the petition to list the GPD.

         On November 14, 2013, the Service published its new finding (" 2013 Finding" ).[14] The Service determined that the best available science showed that the GPD can be differentiated into two subspecies: Cynomys gunnisoni gunnisoni and C.g. zuniensis. The ranges of these two subspecies correspond roughly to the " montane" and " prairie" ranges described in the Service's 2008 Finding; the Cynomys gunnisoni gunnisoni subspecies is generally found in the montane portions of the range and the C.g. zuniensis is generally found in the prairie portions of the range. However, unlike the 2008 Finding, the Service concluded that, based on scientific information available to it, neither subspecies warrant listing under the ESA. It concluded that both populations are stable and that no threats are placing or expected to place either subspecies in danger of extinction.

         Plaintiff now challenges the Service's decision in its 2013 Finding to deny the petition to list the GPD as an endangered or threatened species pursuant to the ESA. Plaintiff contends that the " Service arbitrarily and unlawfully concluded [in its 2013 Finding] that both subspecies of Gunnison's prairie dog ( C.g. gunnisoni and C.g. zuniensis ) are not endangered or threatened throughout all or a significant portion of their range." [15] In its motion for summary judgment, Plaintiff alleges that the Service acted arbitrarily by (1) failing to properly interpret and apply the language " throughout all or a significant portion of its range" in the ESA, as well as failing to interpret the term " significant" in a manner that provides it meaning under the ESA; (2) inconsistently using various definitions of range when applying the ESA's five-factor threats analysis; (3) failing to explain its conclusions pertaining to invasive plant species; (4) reversing its prior conclusion that plague threatens the montane portion of the GPD range; and

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(5) ignoring available information about grazing. Federal Defendants argue that its decision not to list either subspecies of the GPD was reasonable in all respects. It sets forth an argument as to why its interpretation of the ambiguous language in the ESA involving the species' range is correct and otherwise due deference. Relatedly, it argues that its method for determining whether a portion of a species' range is actually significant is irrelevant to the 2013 GPD Finding. It also argues that it properly applied the best available information when conducting its threats analysis and that there is no information in the record showing detrimental range-wide impacts on the GPD population. It asserts that any difference between the 2008 Finding and the 2013 Finding is rationally based on new information and a different understanding of the prior facts.

         IV. STANDARD OF REVIEW

         " Agency decisions under ESA are governed by the Administrative Procedure Act, which requires an agency action to be upheld unless it is found to be 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" [16] Review under the arbitrary and capricious standard is narrow, and the court will not substitute its judgment for that of the agency.[17] The court must be particularly deferential when the agency is analyzing scientific or technical data within its expertise.[18] A decision is arbitrary and capricious 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." [19]

         The court's review of final agency action under the APA does not require fact finding because its review is limited to the administrative record. Thus, because such a case does not involve disputed facts, summary judgment is the proper mechanism for resolving it.[20] The court's role in resolving a summary judgment motion 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." [21]

         V. DISCUSSION

         A. Interpretation of " throughout all or a significant portion of its range"

         As explained above, a species is listed for protection under the ESA if it is in

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danger of extinction, or likely to become endangered in the foreseeable future, " throughout all or a significant portion of its range." [22] In its 2013 Finding, the Service indicated that it interpreted the ESA's language to mean that a species can be listed for protection everywhere the species is located if it is endangered or threatened throughout all of its range or in a significant portion of its range. That is, it understood the phrase " 'significant portion of its range' [to provide] an independent basis for listing and protecting the entire species." [23] Consequently, when the Service considers whether to list a species under the ESA, it analyzes the status of a species range-wide, and then, if stable and not at risk from the listed threats range-wide, it determines whether there are any specific portions of the range that need further analysis.

         In line with its interpretation of the statute, the Service first analyzed the status of the GPD range-wide. In doing so, the Service looked at the GPD's " distribution, abundance, and trends." [24] It noted that " [e]stimating the abundance of prairie dogs, or the number of individuals in a population, is notoriously difficult" and that, therefore, abundance estimates historically have been expressed as acres of occupied habitat.[25] While aerial mapping of the GPD's colonies is more efficient than actual counting, it is nonetheless " time-consuming" and " logistically unfeasible." [26] Mapping also has the potential to overestimate the area of occupied habitat and is generally inaccurate.[27] Occupancy modeling is a newer technique for estimating GPD that has been used since 2005. " Occupancy models detect changes over time in the proportion of habitats occupied by a species, which correlates to changes in population size." [28] It provides insight into the GPD's metapopulation structure, which is important to the species' viability.[29] It is a statistically based model that provides an estimated percentage of occupancy within the species' predicted range.[30] The GPD's predicted range is area where the species could potentially be located based on habitat characteristics such as the surrounding vegetation and slope.[31] Although the Service recognizes that not all areas within the predicted range are occupied by the GPD or necessarily suitable for the GPD, it is nonetheless an approximated area where GPDs are most likely to be found within the outer boundaries of the GPD's range. The occupancy models do not provide information about colony size or the exact location of the colonies and do not provide the number of occupied acres. Thus, reliable comparisons to past approximations of the GPD's occupied acres--that is data obtained prior to 2005--is not possible.[32] While occupancy modeling does not provide a spacial representation of where exactly the GPD can be found, the Service concluded that the technique " is well- established in the literature and

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deemed adequate and reliable for the long-term monitoring of the [GPD]." [33] It provides the " best available information regarding the [GPD's] current population status and trends." [34]

         The 2013 Finding indicates that the predicted range is about 23.5 million acres and that, based on the most recent occupancy surveys and subsequent modeling, the GPD currently occupies about 20 percent of that theoretically available habitat.[35] The 2013 Finding describes how the GPD's estimated occupied areas has changed over time; in 1916 the GPD occupied about 24.3 million acres but by 1961 that number had dropped about 95 percent to 1 million acres " largely because of disease and poisoning." [36] It then summarized known, piecemeal data related to the GPD's abundance and occupancy trends after 1961 and indicated that the populations fluctuated after that time with some increases in Arizona and Colorado.[37] The 2013 Finding then goes on to discuss the occupancy surveys undertaken in 2005, 2007, and 2010 across the four states in which the GPD is located and concludes that the occupancy percentages have been stable since 2005.[38] It concludes that there is " sufficient redundancy of populations for continued stability." [39] The Service then examined whether any of the five listed factors, individually or collectively, threaten that stability.

         After determining that there were no range-wide threats to the GPD's stability, it then proceeded to examine whether there were any significant portions of the GPD's range where the species could be in danger of extinction. Recognizing that " [t]he range of a species can theoretically be divided into portions in an infinite number of ways," the Service determined that the only portions warranting further consideration are those portions that are biologically significant, as defined further in the finding, and wherein the species may be particularly " in danger of extinction or likely to become so within the foreseeable future." [40] That is, the portion must be both significant and have threats present that put the species at risk before further consideration is necessary.[41] The Service explained that " [i]n practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range is whether the threats are geographically concentrated in some way." [42] If there is a concentration of threats in a specific portion, then the Service would determine whether that " portion qualifies as 'significant' by asking whether without that portion, the representation, redundancy, or resiliency of the species would be so impaired that the species would have an increased vulnerability to threats to the point that the overall species would be in danger of extinction." [43] Applying this definition and methodology to the GPD, the Service never looked at whether any portion met the definition of significant, because it determined that there was no concentration of threats anywhere within the predicted or overall range.

         Plaintiff challenges the Service's 2013 Finding denying protection to the GPD

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based on the Service's failure to consider the species' lost historic occupied areas as potentially significant portions of the GPD's range as required by Defenders of Wildlife v. Norton.[44] In that case, the Ninth Circuit reversed the Service's decision not to designate the flat-tailed horned lizard for protection under the ESA, because the Secretary had failed to consider whether the lizard's lost historic range amounted to a " significant portion of its range." The court there noted that the Service had not " expressly considered" the " significant portion of its range" issue at all, and the Service's arguments as for how the issue should be decided were not supported by other regulations or rulings. Thus, it indicated that it owed no deference to the Service's interpretation and instead concluded that under the ESA " a species can be extinct 'throughout ... a significant portion of its range' if there are major geographical areas in which it is no longer viable but once was." [45]

         The Ninth Circuit revisited the issue in Tucson Herpetological Society v. Salazar [46] and affirmed that Defenders requires the service to analyze lost historic range under the ESA. It noted that " Defenders left the appropriate criteria for testing 'significance' undefined, but made clear that the [Service] must develop some rational explanation for why the lost and threatened portions of a species' range are insignificant before deciding not to designate the species for protection." [47]

         Plaintiff points out that the 2013 Finding failed to explain why the lost historical range of the GPD is not a significant portion of its range. The Service asserts that it did not need to follow Defenders given that it has since developed an official interpretation of the ESA's phrase " throughout all or a significant portion of its range," which has gone through the notice and comment procedure and is thus entitled to Chevron deference and reviewed only for reasonableness. The Service's " Final Policy on Interpretation of the Phrase 'Significant Portion of its Range'" was published on July 1, 2014 (2014 Policy).[48] The policy sets forth the process by which the Service will determine whether a species is in danger of extinction, or threatened to be in danger of extinction, " throughout all or a significant portion of its range." Specifically, it explains that the Service first looks at the status of the species in its current range and determines whether there are factors that threaten the species range-wide. Then, after that analysis, it will determine whether there are any specific portions that need further analysis by looking for concentration of threats. That is what the Service did in the 2013 Finding. The 2014 Policy also explains that historical losses are taken into account, but only as a consideration of the species' stability range-wide. It takes into account " the effects that loss of historical range may have on the current and future viability of the species," but does not specifically consider whether that lost range constitutes a " significant portion of its range." [49] It goes on to define what it means for a portion of range to be " significant" --applying the same interpretation as set forth in the 2013 Finding. Federal Defendants note that the 2014 Policy is due Chevron deference, and thus, the specific requirement that lost historical range be considered as a potentially significant portion as set forth in Defenders is not applicable anymore. Alternatively, they argue that Defenders is not applicable to the situation

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here, because, unlike the lizard's range in Defenders, there are not major geographical areas where the GPD is no longer viable; that is, contraction of available habitat is not the primary issue here.

         In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[50] the Supreme Court held that a court must accept an agency's reasonable construction of an ambiguous statute even if the agency's reading differs from what a court believes is the best statutory interpretation. Such deference applies, however, " only when (1) it appears that Congress delegated authority to the agency generally to make rules carrying the force of law and (2) the agency interpretation claiming deference was promulgated in the exercise of that authority." [51] Thus, in determining whether to apply Chevron deference to the Service's interpretation of what it means to be endangered or threatened " throughout all or a significant portion of its range," this court must consider whether the statutory term is ambiguous, and, if it is, it must consider whether " Congress clearly delegated authority to the agency to make rules carrying the force of law, and . . . whether the agency interpretation was promulgated in the exercise of that authority." [52] If these requirements are met, the court then looks at whether the agency's interpretation is reasonable.

         Here, the Ninth Circuit has already concluded that the term " significant portion of its range" in the ESA is ambiguous. Indeed, the parties do not contend otherwise. Also, it is clear that the Service is the " agency responsible for the protection and recovery of endangered [ ] species," [53] and therefore, " has the authority to interpret the ESA" through rules that carry the force of law.[54] Indeed, any published guidelines setting forth criteria for making findings with respect to ESA listing decisions are rules that are promulgated pursuant to the Service's delegated authority and due Chevron deference.[55] Thus, the Service's 2014 Policy, which was subject to notice and comment and officially sets forth the Service's interpretation of what it means for a species to be in danger of extinction " throughout all or a significant portion of its range," is entitled to Chevron deference and is reviewed only for reasonableness.

         The Plaintiff emphasizes that what is under review here is not the 2014 Policy but, rather, the 2013 Finding regarding the GPD. The Service's policy on the phrase " throughout all or a significant portion of its range" was only in draft form at the time of the 2013 Finding. However, despite the Service's recognition that it was not necessarily bound by the draft policy, the 2013 Finding nonetheless applied the same process and definitions discussed in more detail in the 2014 Policy. As noted by the Federal Defendants, " [c]ourts extend Chevron deference to an agency's authoritative interpretation of a statute even when the interpretation post dates the challenged administrative action" as long as it is not displacing any prior agency interpretation." [56] Here, the 2014 Policy was not replacing any prior official

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interpretation of the ESA phrase at issue. The court concludes that it should accord Chevron deference to the Service's authoritative interpretation of the ESA, ...


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