keeping with congressional intent in crafting the ESA. Congress repeatedly explained that it intended to require the FWS to take preventive measures before a species is "conclusively" headed for extinction. The purpose of creating a separate designation for species which are "threatened", in addition to species which are "endangered", was to try to "regulate these animals before the danger becomes imminent while long-range action is begun." S. Rep. No. 307, 93d Cong. 1st Sess. 3 (1973), reprinted in Legislative History of the Endangered Species Act of 1973, As Amended in 1976, 1977, 1978, 1979, and 1980 ("Leg. Hist."), at 302.
The legislative history of the ESA contains ample expressions of Congressional intent that preventive action to protect species be taken sooner rather than later. See, e.g., Leg. Hist. at 204 (H.R. Rep. No. 412, 93d Cong., 1st Sess. 5 (1973) ("in the past, little action was taken until the situation became critical and the species was dangerously close to total extinction. This legislation provides us with the means of preventive action.") (remarks of Rep. Clausen); id. at 205 ("in approving this legislation, we will be giving authority for the inclusion of those species which . . . might be threatened by extinction in the near future. Such foresight will help avoid the regrettable plight of repairing damages already incurred. By heeding the warnings of possible extinction today, we will prevent tomorrow's crisis") (remarks of Rep. Gilman); id. at 144 ("sheer self-interest impels us to be cautious," and "the institutionalization of that caution lies at the heart of the [ESA]").
Judicial and administrative interpretations of the ESA have consistently construed the statute's "best available data" standard as requiring far less than "conclusive evidence." The Ninth Circuit Court of Appeals, for example, explained that by requiring the listing of species based on the "best available data", Congress intended to give "the benefit of the doubt to the species". Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988). The "best available data" requires the agency to consider the scientific information presently available. Id.; accord Roosevelt Campobello Int'l Park v. EPA, 684 F.2d 1041, 1054-55 (1st Cir. 1982). In setting aside the refusal of FWS to list the Queen Charlotte goshawk and the Alexander Archipelago wolf, Judge Stanley Sporkin of this Court cited the failure of the agency to make its decisions "solely on the basis of the best scientific and commercial date [available]." Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23, 25 (D.D.C. 1996) (emphasis in original); accord Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 49, slip op. at 5-6 (D.D.C. 1996).
The FWS itself has taken the position that it need not, and must not, wait for conclusive evidence in order to list a species. For example, in its decision to list the northern spotted owl, it explained that because the agency had "used the best data available to prepare the proposed rule", it was "not obligated to have data on all aspects of a species' biology prior to reaching a determination on listing". 55 Fed. Reg. 26114, 26128 (June 26, 1990). Moreover, the agency concluded that "to withdraw the proposal and conduct additional research would not improve the status of the [species] and would not be in keeping with the mandates of the Endangered Species Act." Id. at 26129. More recently, the FWS decided to list the California red-legged frog, even though many aspects of the species' status were "not completely understood", because "a significant delay in listing a species due to large, long-term biological or ecological research efforts could compromise the survival of the [species]." 61 Fed. Reg. 25813, 24817 (May 23, 1996).
The FWS, as the agency charged with implementing the ESA, and the courts have thus consistently held that the statute requires listing decisions to be made on the basis of the "best available data" rather than the more stringent standard of "conclusive evidence." Because the agency's instant decision thus conflicts with the agency's earlier interpretation of the same statutory provision, the Court must accord that decision less judicial deference than it would give to a consistently held agency view. INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987).
At oral argument on the instant motions, the government attempted to argue that even though the agency's decision repeatedly used the phrase "conclusive evidence",
it was actually applying the "best available data" standard required by the ESA. Defendant have, however, pointed to nothing in the Administrative Record to indicate that the agency applied anything other than the "conclusive evidence" standard it plainly states in its final decision. See AR 25 at 5. It is well-established that this kind of "post hoc rationalization" by an agency's lawyer cannot sustain a decision upon review. See, e.g., Consumer Federation of America v. U.S. Dep't of Health and Human Services, 317 U.S. App. D.C. 449, 83 F.3d 1497, 1507 (D.C. Cir. 1996) (citing Camp v. Pitts, 411 U.S. 138, 142, 36 L. Ed. 2d 106, 93 S. Ct. 1241 (1973)).
Furthermore, Defendants have gone to great lengths to argue that there is a lack of "scientific certainty" as to various aspects of the Lynx's status. The ESA does not, however, require such "certainty" to justify the listing of a species. To the contrary, the clear intent and purpose of Congress in enacting the ESA was to provide preventive protection for species before there is "conclusive" evidence that they have become extinct. Because the agency applied the wrong legal standard, in clear violation of the plain wording of the statute as well as the case law and its own prior interpretation of that statute, its decision not to list the Lynx must be set aside.
C. The FWS acted arbitrarily and capriciously in basing its decision not to list the Canada Lynx on glaringly faulty factual premises.
The agency's decision not to list the Lynx made several critical factual findings that are directly contradicted by the undisputed facts in the Administrative Record.
First, the agency makes the bald assertion that "hunting and trapping pressure on the lynx has been historically low in the U.S. and there is little evidence that these activities pose a threat to the continued existence of this species in the wild." 59 Fed. Reg. 66507, 66508, AR 7. This claim, supported by no citation to scientific evidence, study, or data of any kind, flies in the face of the overwhelming evidence gathered and analyzed by the Region 6 biologists, who concluded that "human-induced mortality is the most important mortality factor for Canada lynx populations", and that the "adverse impacts of past overharvest continue to threaten Canada lynx recovery in the contiguous United States". AR 35 at 29, 33 (emphasis added). Lynx experts widely agree that "overexploitation . . . is the other major systematic factor impacting populations" of Lynx. AR 247 at 37. The extensive study conducted by the Washington Department of Wildlife ("WDW"), and widely relied on by Lynx experts generally (although ignored by the FWS in its decision not to list) concluded that "human activity results in the greatest mortality of lynx, principally through trapping." AR 245 at 49. Another recent study concluded that 86% of Lynx mortalities was caused by trapping. AR 247 at 42. In Montana in particular, a dramatic decline has been attributed primarily to trapping as a result of the rising value of Lynx pelts. AR 326, at 3-4.
While the Region 6 biologists, in their proposed rule, examined both the historical and ongoing threats posed by trapping, the agency's decision discussed neither threat beyond the one dismissive and conclusory sentence quoted above. The proposed rule of Region 6 points not only to the historic depletion of Lynx populations in Idaho, AR 248 at 16, New Hamphsire, AR 372 at 44-46, and Minnesota, id. at 44, but also explains that, despite the limits currently imposed on trapping Lynx in a number of states, the existence of any trapping at all poses a serious threat at this time to the future of the species. AR 110.
Second, the FWS states categorically that, despite a reduction in its range at the turn of the century, "the lynx currently occupies much of its original historic range." AR 7 at 66509. Once again, the agency provides no support for this statement, in the face of overwhelming evidence in the record that the Lynx has been entirely "eliminated from approximately seventeen states" in which it once existed -- including New Hampshire, Massachusetts, Ohio, South Dakota, Nebraska, and Oregon. AR 248 at 9; see also, e.g., AR 247 at 3; compare maps attached at Pl.'s Ex. C (from AR 248 at 23 and AR 322) illustrating past and current Lynx range in the United States.
Third, the agency's final decision states that the Lynx "is actually common through its North American range" but is "considered rare because of its secretive nature". AR 7 at 66507. This statement is simply erroneous in light of overwhelming record evidence documenting the dramatic decrease over time in the Lynx population in the United States portion of its North American range. AR 34 at 7-17. Wildlife experts currently estimate that the number of Lynx in the entire contiguous United States "may not exceed several hundred individuals -- far fewer than many other species now listed as endangered" under the ESA. AR 248 at 25. Again, the FWS cites no scientific evidence for its sweeping statements. To the extent that the agency decision refers to the United States population of the Lynx, it relies on inaccurate facts contradicted by the entire Administrative Record. To the extent the agency decision refers to the Canadian and Alaskan portions of the Lynx's range, it is irrelevant to the instant petition, which requests listing of the Lynx population in the contiguous United States.
Fourth, the FWS erroneously claims that a past trend of declining Lynx populations has now been reversed. Although the agency acknowledges that "at the turn of the century . . . habitat loss due to human settlement and forest clearing reduced the southern range of the lynx", it asserts that "since the 1970's, this trend has reversed in some states." AR 7 at 66508. The agency cites no documentation for this sweeping claim, which runs counter to the consistent record evidence that the "trend" of destruction of Lynx habitat, and therefore of decreasing numbers of Lynx, continues to this day. See, e.g., AR 245 at viii-ix (WDW study concluded Lynx population faces intensified threat due to timber harvest practices); AR 247 at 11, 37 (Forest Service biologist John Weaver concludes that Lynx have already "declined to the point of local extinction in some portions of their native range" and other portions of the Lynx population "appear vulnerable to local and regional extinction"); AR 248 at 23 (Wildlife Society concludes that "downward trends in lynx abundance have occurred through most areas of lynx range in the contiguous U.S. and . . . lynx distribution is shrinking. Much of the decline has occurred during the last 2 decades."). Far from noting an end to the "trend" of declining Lynx populations, each of the scientific studies and analyses in the Administrative Record predicts that such trends will continue absent legal protection of the species, due to ongoing damage to Lynx habitat by logging, fire suppression, roadbuilding, and other development.
Finally, the agency implies that the Lynx population in Montana has actually increased in recent years when the scientific evidence in the Administrative Record points to the exact opposite conclusion. Several of the scientific studies relied on by the Region 6 biologists conclude that Montana's Lynx population is "in serious trouble" because the animals "have shown dramatic declines with no associated increases on the expected 10 year scale . . . " AR 326 at 3-4; accord AR 248 at 18. The agency cites no evidence for the reversal of this trend of a decreasing Lynx population in Montana. Instead, it merely asserts tangentially that the Lynx benefits from better habitat conditions in Montana than in other parts of its contiguous United States range. AR 7 at 66508.
In sum, the agency makes a number of unsupported statements which contain significant factual errors contradicted by overwhelming record evidence. These significant factual errors are clear indications that the agency's decisionmaking, based on glaringly faulty factual premises, was arbitrary and capricious and therefore must be set aside.
D. The FWS acted arbitrarily and capriciously in rejecting the views of its own experts that the Lynx satisfied four out of the five statutory criteria for listing a species as endangered or threatened.
The ESA sets out five specific factors the FWS must consider in determining whether to list a species as "threatened" or "endangered". Those factors, one or more of which are sufficient to justify listing a species, are:
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) over-utilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;