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AMERICAN WILDLANDS v. NORTON
March 31, 2002
AMERICAN WILDLANDS, ET AL. PLAINTIFFS,
GALE NORTON, ET AL., DEFENDANTS
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.
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.
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),
When making its determination as to whether a species should be listed
as endangered or threatened, the agency must consider the following five
(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
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).
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.
On October 23, 2000, Plaintiffs filed the instant suit alleging four
claims. Plaintiffs allege that FWS' consideration of existing regulatory
mechanisms was arbitrary.
Plaintiffs further claim that FWS' consideration of hybridization as a
threat to WCT was arbitrary because, while identifying hybridization as a
primary threat, FWS relied on a draft policy, which contained hybridized
fish, to establish the trout's population size and distribution.
Plaintiffs' third claim avers that FWS arbitrarily considered the threats
to the trout posed by isolation and loss of life histories, factors which
have allegedly formed the basis for other threatened listings. Finally,
Plaintiffs claim that FWS failed to account for the threat of whirling
disease and other important factors, identified in Plaintiffs' 60-day
notice of ESA violations, and that the decision to not list trout as
endangered was arbitrary and capricious. At oral argument, plaintiffs
conceded that their strongest argument, and the one from which their
other concerns ...