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March 27, 1997

DEFENDERS OF WILDLIFE, et al., Plaintiffs,
BRUCE BABBITT, et al., Defendants.

The opinion of the court was delivered by: KESSLER

 Plaintiffs are conservation organizations challenging a final decision by the United States Fish and Wildlife Service ("FWS") refusing to issue a proposed rule listing the contiguous United States population of the Canada Lynx as an endangered or a threatened species under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Plaintiffs allege that the decision by the FWS that listing the Lynx as endangered or threatened was "not warranted" was "arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law," in violation of § 706(2)(A) of the Administrative Procedure Act ("APA"), 5, U.S.C. § 706(2)(A).

 The matter is now before the Court on cross-motions for summary judgment. Having considered the parties' motions, oppositions and replies thereto, as well as the administrative record in this case, and having heard the parties' oral arguments on February 7, 1997, the Court denies Defendants' motion and grants Plaintiffs' motion as set forth below.

 I. Factual Background1

 A. The Canada Lynx

 The Canada Lynx, Felix lynx canadensis ("Lynx"), is a medium-sized cat comparable in size to a bobcat. It is distinguished from other cats of similar size, such as the bobcat, by its long legs and large paws which make it particularly well-adapted for hunting in deep snow. See FWS, Draft Proposed Rule and Notice of Petition Finding, Administrative Record ("AR") 35, at 3. The animal's large, furry paws exhibit a special adaptation, known as a "snowshoe effect" in that its paws spread out, increasing in surface area by 30%, so that the animal can travel quickly over deep snow. The Lynx' elongated back legs are specially adapted for springing action, which is necessary for a predator that relies on stealth and ambush to catch its prey in a habitat characterized by deep snow. Washington Dep't of Wildlife ("WDW"), Status of the North American Lynx in Washington (1993), AR 245 at 1.

 In addition, unlike the bobcat or other predators which consume a variety of different kinds of animals, the Lynx is a "specialized carnivore" that depends heavily on one particular prey -- the snowshoe hare. See Mem. from FWS Reg. Dir., Reg. 6 to Dir., FWS Re: Ninety-Day Admin. Finding on Pet. to List the Conterminous United States Population of the Canada Lynx, AR 62 at 2; Washington Dep't of Wildlife ("WDW"), Native Cats of Washington, AR 322 at 20. Snowshoe hare populations fluctuate according to a natural ten-year cycle. Because of the inextricable link between the snowshoe hare population and the Lynx population it follows that the Lynx population fluctuates according to the same ten-year cycle. AR 62 at 2. When the snowshoe hare population is large, Lynx reproduction and density are high. When hare populations "crash", Lynx populations correspondingly decrease. AR 245 at 19-22. Because the Lynx depends on the snowshoe hare to survive, "good snowshoe hare . . . habitat is good lynx habitat." AR 62 at 2. The Lynx is therefore generally found in "open, mature conifer forests" containing downed logs because this is the habitat where snowshoe hare are generally found. Id.

 The North American range of the Lynx currently extends from Alaska, through Canada, and into the northern part of the contiguous United States. Historically, the Lynx inhabited a substantially larger range which included New England, the Great Lakes, the Rocky Mountains and the Pacific Northwest. AR 248 at 9. The Lynx population in the lower 48 states has declined dramatically for many reasons, including habitat degradation, trapping, logging, road building and other development. AR 182, 245, 247, 248, and 372. The species is now scattered in small subpopulations in a very few states including Montana and Washington. AR 247 at 3. The Lynx has been completely "eliminated from approximately seventeen states" in which it once existed. AR Doc 248 at 9. Among the seventeen states are New Hampshire, Massachusetts, Ohio, South Dakota, Nebraska, and Oregon. Id. The American Lynx population has dropped so dramatically that the total number of Lynx in the contiguous United States may now be only several hundred individual animals, a population much smaller than those of many other species now listed as endangered under the ESA. Id. at 25.

 Although some state laws and regulations currently protect the Lynx and its habitat, to date there has been no nationwide effort to protect the Lynx population from decreasing even further, due to, inter alia, environmental degradation and legal trapping. Over the past two decades, the FWS has repeatedly recognized that the Lynx might warrant protection under the ESA even though the agency has taken no action to provide such protection. As early as 1977, the FWS' Office of Endangered Species reviewed the status of the Lynx and concluded that the "lynx has been totally extirpated in 15 of the 30 states, south of the Canadian border, in which it originally is thought to have occurred," and that in "14 of the remaining States, the species is considered by at least some authorities to be 'rare,' 'endangered,' or in some other category of concern." FWS, Office of Endangered Species, The Lynx in the Lower 48 States (1977), AR 405 at 7. In 1982, the FWS formally designated the Lynx as a potential "candidate" for listing as endangered or threatened, designating the Lynx in a category of species for which listing was deemed "possibly appropriate" pending "further biological research and field study." 47 Fed. Reg. 58454 (Dec. 30, 1982).

 B. Procedural history of this case

 From 1982 to 1991, the FWS took no formal steps to make a decision on listing the Lynx as an endangered species. In August 1991, a coalition of conservation organizations including some of the Plaintiffs in the instant case filed a petition with the FWS requesting that the agency list the Lynx remaining in the North Cascades ecosystem of the State of Washington as endangered ("North Cascades Petition"). See 57 Fed. Reg. 46007, 46008 (Oct. 6, 1992), AR 284. The Acting Director of the FWS denied that petition on the grounds that (1) there was no indication that the Lynx was in danger of extinction in British Columbia and Alaska, the areas which "constitute the majority of the lynx's range" and (2) the Lynx in the North Cascades is not a "species" as defined in the ESA because it is not a "distinct population segment" within the meaning of the ESA. Id. at 46008-09.

 After the FWS denied the North Cascades Petition, several of the petitioners filed a lawsuit challenging that decision in the United States District Court of the Western District of Washington, see Canada Lynx et al. v. Babbitt, Case No. C92-1269 (W.D. Wash. 1992). While that case was pending, on March 11, 1993, the Director of Region 6 of the FWS wrote a memorandum to the Acting Director of the FWS urging that the agency's finding on the North Cascades Petition be rescinded or amended. Region 6 of the FWS ("Region 6") comprises a significant portion of the Lynx's historical range, including Colorado, Montana, North Dakota, Utah, and Wyoming. The March 1993 memorandum took the position that the agency's rationale for denying the North Cascades petition was inconsistent with past listing decisions and therefore might lead to the delisting of species, such as the grizzly bear, which were already protected under the ESA. One "major problem with the finding", the Regional Director stated, "was that it primarily addressed the present range of the lynx and did not properly consider historical range." "Discussion Document", attached to Memorandum from Deputy Regional Director, Region 6 to FWS Director Re: North Cascades Lynx Finding and Implications to Draft Vertebrae Population Policy (March 11, 1993), AR 265 at 1 (emphasis in original). The memorandum stated that if the same reasoning used to deny the North Cascades petition were applied to species already listed, many species would not receive the protection which they merited under the ESA. Id.

 On April 28, 1993, the parties in Canada Lynx v. Babbitt reached a settlement agreement under which the FWS agreed to reevaluate its 90-day finding on the North Cascades Petition. The Director of Region 1 of the FWS, which encompasses Lynx habitat in the North Cascades in Washington State, prepared a memorandum recommending a new finding emphasizing that the FWS "must evaluate the decline of the species in its historical range and whether the United States population historically represented a significant portion of the species [sic] entire range." Memorandum from Regional Director, Region 1, Re: Evaluation of the Petition to Emergency List the North American Lynx in the North Cascades Ecosystem (June 18, 1993), AR 256 at A-4 (emphasis added). The Region 1 memorandum recommended denying the North Cascades Petition, but urged the FWS to clarify that the Lynx population's "emigration and immigration across the United States/Canada border" did not preclude its being considered a "distinct population", and therefore would not require the delisting of distinct populations of the bald eagle, grizzly bear, gray wolf, or woodland caribou which had already been listed. Id.

 On July 9, 1993, the FWS published a new 90-day finding. Although this new finding once again denied the North Cascades Petition, it did so on different grounds than those stated in the first denial. This time the FWS acknowledged that "distinct population segments" within the meaning of the ESA could include either "populations that are reproductively isolated from other members of the species" or "the entire conterminous United States population of a species". AR 256 at 36924. The FWS therefore denied the petition as to the North Cascades Lynx population, but concluded that further inquiry was needed with respect to the entire Lynx population. FWS found that the evidence before it justified conducting an "in-depth rangewide status review for the lynx". Id. Subsequently, in February 1994, the Service published a notice soliciting information from the scientific community and the public concerning the "biological status" of the Lynx. 59 Fed. Reg. 4887 (Feb. 2, 1994), AR 227. Taking into account the Service's commitment to conduct such a status review, the plaintiffs in the Washington case stipulated to dismissal of their lawsuit. See Canada Lynx v. Babbitt, AR Doc. 249.

 In April 1994, several of the other Plaintiffs in this case, including the Biodiversity Legal Foundation ("BLF"), submitted a petition asking FWS to list the Lynx as threatened or endangered throughout its range in the "lower conterminous United States". Petition to List the North American Lynx (April 23, 1994), AR 171 at 1 ("BLF Petition"). In August 1994, Region 6 of the FWS prepared a "90-day finding", which concluded that "there is substantial information to indicate that listing of the contiguous United States population of the Canada lynx may be warranted." Memorandum from Regional Director, Region 6 to FWS Director (Aug. 18, 1994), AR 62 at 5. In reaching this conclusion, the Region 6 Regional Director emphasized that habitat destruction and fragmentation, due particularly to heavy logging, threatened the continued existence of the Lynx. Id. at 3-4.

 The FWS published the positive 90-day finding, prepared by Region 6, stating that all five of the criteria for listing a species as endangered under the ESA were applicable to the Lynx. See 59 Fed. Reg. 44123-24 (Aug. 26, 1994), AR 54. In the same Federal Register publication, FWS indicated that it was in the process of conducting a formal status review of the Lynx, as required under the ESA. As part of that status review, the agency solicited comments and relevant data from the public as well as from independent Lynx experts as to whether the Lynx should be listed.

 Region 6, which contains a significant portion of the Lynx's historic range, assumed the principal duties of conducting a status review and drafting a proposed listing decision. The FWS' biologists in Region 6 reviewed the comments and information received and conducted their own thorough review of the available scientific and commercial information. In October 1994, they concluded that the Lynx should be listed throughout its range in the conterminous United States. Proposed Rule to List One Population Segment of the Canada Lynx as Endangered and One Population Segment As Threatened Within the Contiguous United States (Oct. 17, 1994), AR 35 at 1-2, 41. The biologists drafted a proposal to list one segment of the Lynx population, in the Northwest and Northern Rockies, as threatened, and a second population, in the Southern Rockies, Great Lakes, and Northeast, as endangered. This recommendation was accompanied by an extensive, 50-page analysis of the Lynx's history and current status. See AR 35. The Region 6 biologists concluded that "Canada lynx populations in the contiguous United States have suffered significant declines due to trapping and hunting and habitat loss", id. at 1, and that at least four of the five statutory criteria for listing a species under the ESA apply to the Lynx. Id. at 19-43. Relying on extensive citations of scientific evidence, the biologists concluded that Lynx habitat is currently being destroyed, degraded, and fragmented by a number of factors including timber harvest, fire suppression, road construction, and clearing of forests for urbanization, ski areas, and agriculture. Id. at 25-27.

 Region 6 biologists then circulated their draft proposal for review by FWS biologists in the three other regions containing Lynx populations. See Memorandum from Deputy Regional Director, Region 6 to Regional Directors, Regions 1, 3, and 5 Re: Draft Proposed Rule for the Canada Lynx (Oct. 11, 1994), AR 37. Biologists from Region 3 and Region 5, which encompass the Great Lakes area and the Northeast, respectively, both supported the proposed rule. Only the Director of Region 1, which encompasses the Pacific Northwest, opposed it. See AR 27 (Region 5); AR 23 (Region 3); AR 18 (Region 1). Even within Region 1, the FWS biologists in the agency's field office in Washington State -- the state with the largest Lynx population in Region 1 -- supported the proposed rule. See AR 24.

 Much of the voluminous Administrative Record on the present rule consists of comments and reactions to the rule proposed by the Region 6 biologists. Although not every comment indicated complete agreement with the 50-page report, it is significant that not a single biologist or Lynx expert employed by the FWS disagreed with the recommendation of the Region 6 biologists that the Lynx be listed.

 On October 20, 1994, Region 6 submitted its listing proposal to the Acting Director of the FWS in Washington, D.C. for approval. AR 34. Two weeks later, the Acting Director of the Service, Richard Smith, rejected Region 6's proposal in a five-page memorandum which summarily concluded that the "listing of the Lynx in the 48 contiguous States is not warranted." Memorandum from Acting Director, FWS to Regional Director, Region 6 (Nov. 10, 1994) ("12-month Finding Memo"), AR 25, at 5. In this brief document, the Acting Director cited no scientific study or Lynx expert, but instead set forth a number of conclusions which directly contradicted the conclusions reached by the Region 6 biologists. The finding stated, without further explanation, that "there is little evidence that lynx populations have suffered significant declines due to trapping and hunting," id. at 4, and that "hunting and trapping pressure on the lynx in the U.S. has always been low." Id. at 5.

 The Service published this 12-month finding, with some minor modifications, in the Federal Register, as the agency's final decision rejecting protection for the Lynx under the ESA. See 59 Fed. Reg. 66507 (Dec. 27, 1994) ("12-month Finding Notice"), AR 7. Without mentioning the detailed study and proposal by Region 6 biologists, the agency announced that, having conducted a status review, and upon "careful[] evaluation [of] the best available scientific and commercial information", it concluded that listing the species was not warranted. Id. at 66509. Without citing any scientific or commercial information, the agency set forth conclusions directly opposite to each conclusion reached by the Region 6 biologists on each statutory factor. Without supporting citations, the FWS concluded that the species was not overutilized, that the Lynx "currently occupies much of its original historic range", that existing regulatory mechanisms were adequate to protect the species, and that the "Service is unable to substantiate that trapping, hunting, poaching, and present habitat destruction threaten the continued existence of the Lynx in the wild in the contiguous United States." Id. With respect to Plaintiffs' request that the southern Rocky Mountain population of the species should receive expedited protection under the ESA, the Service stated that there was no "substantial information that the southern Rocky Mountain population of the Canada lynx meets the definition of a 'species' under section 3(15) of the Act." Id.

 On March 27, 1995, Plaintiffs gave the Secretary of the Interior and the Director of the FWS detailed notice that the agency's refusal to list the Lynx as an endangered or threatened species violated Congress' intent in enacting the ESA. Plaintiffs subsequently filed this lawsuit on January 30, 1996.

 II. Statutory Framework

 The ESA is the "'most comprehensive legislation for the preservation of endangered species ever enacted by any nation.'" Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, 515 U.S. 687, 132 L. Ed. 2d 597, 115 S. Ct. 2407, 2413 (1995) quoting Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978). When Congress enacted the statute in 1973, it intended to bring about the "better safeguarding, for the benefit of all citizens, [of] the Nation's heritage in fish, wildlife, and plants." 16 U.S.C. § 1531(a)(5). Having found that a number of species of fish, wildlife, and plants in the United States had become extinct "as a consequence of economic growth and development untempered by adequate concern and conservation", 16 U.S.C. § 1532(a)(1), Congress intended the ESA to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species . . ." Id. at § 1531(b). In particular, the legislative history of the statute reflects a "consistent policy decision by Congress that the United States should not wait until an entire species faces global extinction before affording a domestic population segment of a species protected status." Southwest Ctr. for Biological Diversity v. Babbitt, 926 F. Supp. 920, 924 (D. Ariz. 1996); see H.R. Rep. No. 412, 93d Cong., 1st Sess. 10 (1973), reprinted in 1978 U.S.C.C.A.N. 2989, 2998.

 The Act imposes certain responsibilities on the Secretary of the Interior, 16 U.S.C. § 1531(b), and the Secretary of the Interior has in turn delegated day-to-day authority for implementation of the ESA to the FWS, an agency within the Department of the Interior. 50 C.F.R. § 402.01(b). The ESA's protection of a species and its habitat is triggered only when the FWS "lists" a species in danger of becoming extinct as either "endangered" or "threatened". 16 U.S.C. § 1533. The Act defines a "species" as "any subspecies of fish or wildlife . . . and any distinct population of any species of vertebrate fish or wildlife which interbreeds when mature". Id. at § 1532(16). A species is "endangered" when it is in "danger of extinction throughout all or a significant part of its range", while a species is "threatened" when it is "likely to become an endangered species within the foreseeable future". Id. at §§ 1532(6), (20), 1533(c).

 As soon as the FWS lists a species as either endangered or threatened, that species is immediately entitled to a number of measures designed to preserve and protect it. For example, it is illegal for anyone to "take" an endangered or threatened animal by, inter alia hunting, trapping, killing, or capturing such an animal or attempting to do so. 16 U.S.C. § 1533(c), 1538(a)(1), 50 C.F.R. §§ 17.21, 17.31. After a species is listed, federal agencies are required to ensure that no future actions they take will jeopardize the continued existence of the species. 16 U.S.C. § 1536(a)(2). The FWS itself must also take a number of specific steps to protect the species and its habitat, including creating and implementing a "recovery plan" for each listed species. Id. at § 1533(f).

 The FWS has a duty to independently identify species that must be listed as well as to respond to listing petitions from the public. 16 U.S.C. § 1533(b)(A). In the latter instance, the FWS has 90 days from filing within which to determine whether the "petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted", id. at § 1533(b)(3)(A); 50 C.F.R. § 424.14(b). If the FWS determines that the petition presents such information, the agency must conduct "a review of the status of the species concerned", id., to determine whether listing the species "is warranted". Id. at § 1533(b)(3)(B). This status review must be concluded within twelve months of the agency's receipt of the petition. If the agency concludes that such a listing "is warranted", it must publish a proposed rule in the Federal Register listing the species and providing an opportunity for public ...

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