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March 31, 2002


The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge.


This matter stems from a challenge brought by plaintiffs to a decision made by the United States Fish and Wildlife Service ("FWS") that listing the Westslope cutthroat trout ("WCT") as endangered or threatened under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et. seq., is not warranted at this time.

Pending before the Court are cross motions for summary judgment. The Court has carefully considered the parties' motions and the responses and replies thereto, the briefs filed by Amici Montana and Idaho, the administrative record in this case, oral argument of counsel at the hearing held November 2, 2001, the parties' proposed findings of fact and conclusions of law and the responses thereto, and the applicable statutory and case law. The Court finds that the agency decision that listing of the WCT as endangered or threatened was not warranted was arbitrary and capricious and not supported by the best available scientific data. Accordingly, the Court GRANTS plaintiffs' motion for summary judgment, DENIES defendants' motion for summary judgment and REMANDS this matter to FWS with instructions that it reconsider its "not warranted" finding for WCT in light of this Court's decision.

I. Background

The westslope cutthroat trout*fn1 is one of fourteen subspecies of cutthroat trout native to interior streams in western North America. The historic habitat of WCT consists of several major drainages of the upper Columbia River basin (Idaho and Montana), the Methow River and Lake Chelan drainages (Washington), the John Day River drainage (Oregon), the headwaters of the South Saskatchewan River (Montana), and the upper Missouri River basin (Montana and Wyoming). The historic range of WCT is considered to be the largest of any of the cutthroat trout subspecies.

Plaintiffs in this case are five environmental organizations — American Wildlands, Idaho Watersheds Project, Montana Environmental Center, the Clearwater Biodiversity Project and the Madison-Gallatin Chapter of Trout Unlimited — and one individual, Bud Lilly, who fishes in WCT habitat and who is a board member of American Wildlands.

Plaintiffs formally petitioned FWS to list the WCT as threatened throughout its range and designate critical habitat for the subspecies pursuant to the ESA. On April 14, 2000, FWS issued a formal determination that listing of the WCT under the ESA was not warranted. See 65 Fed. Reg. 20120.

Plaintiffs bring suit against Gale Norton, Secretary of the Department of Interior, and Marshall Jones, Acting Director of FWS, claiming that the Service's listing determination was arbitrary and capricious and a violation of the Administrative Procedure Act and requesting that the Court remand the determination to the Service for reasoned consideration. The State of Montana and the State of Idaho have entered their appearances as Amicus Curiae.

A. The Endangered Species Act

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." 16 U.S.C. § 1531(b). 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." § 1532(16). A species is "endangered" when it is in "danger of extinction throughout all or a significant part of its range," and a species is "threatened" when it is "likely to become an endangered species within the foreseeable future." §§ 1532(6), 1532(20), 1533(c).

When making its determination as to whether a species should be listed as endangered or threatened, the agency must consider the following five factors:

(A) the present or threatened destruction, modification, or curtailment of its 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 its continued existence.

16 U.S.C. § 1533(a)(1). The ESA also instructs that the agency's determination as to whether to list a species under the Act be made "solely on the basis of the best scientific and commercial data available." § 1533(b)(1)(A).

B. Procedural Background

On May 21, 1997 American Wildlands submitted a petition to the FWS requesting the listing of the WCT as a threatened species under the ESA. The petition described reasons warranting the listing and provided information about threats to the trout's habitat, hybridization of the trout population, predation and the trout's distribution patterns. On January 23, 1998, American Wildlands supplemented its petition with information detailing increasing threats to the trout.

On March 17, 1998, American Wildlands brought suit to compel FWS to issue a 90-day finding on the WCT listing petition as required by 16 U.S.C. § 1533(b)(3)(A). FWS then agreed to prepare a 90-day finding, and, in June 1998, it published its determination that American Wildlands' petition provided sufficient information to conclude that a listing of the westslope cutthroat trout as a threatened species "may be warranted." 63 Fed. Reg. 31691 (June 10, 1998).

Following the "may be warranted" determination and publication, FWS failed to meet its twelve-month statutory deadline for making a final determination as to the trout's listing. See 16 U.S.C. § 1533(b)(3)(B). In March 1999, almost eleven months after the twelve-month statutory period had run, American Wildlands provided notice to FWS that it was in violation of ESA and its implementing regulations. On August 4, 1999, American Wildlands filed suit to compel FWS to issue its twelve-month finding. In March 2000, FWS and American Wildlands reached a settlement that provided that FWS would publish its twelve-month finding on or before April 10, 2000.

On April 14, 2000, FWS published its finding on American Wildlands' petition to list the WCT as a threatened species. 65 Fed. Reg. 20120 (April 14, 2000). FWS determined that listing the WCT was not warranted at that time.

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