The opinion of the court was delivered by: Gladys Kessler, United States District Judge
Plaintiffs, twelve conservation organizations committed to preserving
animal and plant species in their natural habitats and one individual
involved in Lynx conservation efforts,*fn1 challenge a final decision by
the United States Fish and Wildlife Service ("FWS" or the "Service")
declaring the Lynx in the contiguous United States to be a "threatened,"
rather than "endangered," species under the Endangered Species Act
("ESA"), 16 U.S.C. § 1531 et seq. Plaintiffs allege that the
designation of the Lynx as threatened is "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
5 U.S.C. § 706(2)(A). Plaintiffs also contend that the
Service has violated the ESA by failing to designate "critical habitat"
for the Lynx as required by that statute.
Defendants are Gale Norton, Secretary of the Interior, who has ultimate
responsibility for implementing the ESA, and Steven Williams, Director of
FWS, the agency that has been delegated the day-to-day responsibility for
implementing the ESA.
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 November 13, 2002, for the reasons
set forth below, the Court grants Plaintiffs' Motion for Summary Judgment
and denies Defendants' Motion for Summary Judgment.
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 Great Oregon, 515 U.S. 687, 698 (1995)
(quoting Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (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,"
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.
§ 1531(a)(1), (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, and the Secretary of the Interior has in turn delegated
day-to-day authority for implementation of the ESA to FWS, an entity
within the Department of the Interior. 16 U.S.C. § 1531(b);
50 C.F.R. § 402.01(b). The ESA's protection of a species and its
habitat is triggered only when 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 or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when mature."
Id. § 1532(16). FWS has issued a "Vertebrate Population Policy"
delineating the circumstances under which the Service will list, as
endangered or threatened, a "distinct population segment" or "DPS" of a
species. 61 Fed. Reg. 4722.
A species is "endangered" when it is in "danger of extinction
throughout all or a significant portion of its range."
16 U.S.C. § 1532(6). A species is defined as "threatened" when it is
"likely to become an endangered species within the foreseeable future."
Id. § 1532(20).
Endangered species are entitled to greater legal protection under the
ESA than threatened species. For any species listed as endangered, the
ESA makes it unlawful for any person to, among other activities, "import
any such species into, or export any such species from the United
States," or to "take any such species within the United States." Id.
§ 1538(a)(1)(A), (B). The term "take" includes "to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt
to engage in any such conduct." Id. § 1532(19). For species that are
listed as threatened, rather than endangered, the Secretary of the
Interior "may," but is not required to, extend these prohibitions on
taking and export. Id. § 1533(d).
When FWS lists a species, it is also required to "concurrently"
designate "critical habitat" for the species, unless it determines that
such habitat "is not then determinable." Id. § 1533(a)(6)(C). In that
event, FWS "must publish a final regulation" designating critical habitat
"to the maximum extent prudent" within one year following the final
listing decision. Id.
Critical habitat is defined to include those specific areas which are
presently "occupied by the species . . . on which are found those physical
or biological features (I) essential to the conservation of the species
and (II) which may require special management considerations or
protection." Id. § 1532(5)(A)(I). Critical habitat may also include
habitat that is unoccupied by the species at the time of the listing, if
FWS determines that such areas are "essential for the conservation of the
C. Section 7 Consultation
Under Section 7(a)(2) of the ESA, after a species is listed as
endangered or threatened, each federal agency that takes or authorizes an
action that may affect a listed species must "insure," in "consultation"
with the Service, that such action "is not likely to jeopardize the
continued existence of any endangered or threatened species or result in
the destruction or adverse modification of [the species' designated
critical] habitat." Id. § 1536(a)(2).
If the Service or federal agency determines that any contemplated
agency action "may affect listed species or critical habitat," the agency
and the Service must engage in "formal consultation."
50 C.F.R. § 402.14(a). Formal consultation is not required, however,
if FWS issues a "written concurrence" that the proposed agency action "is
not likely to adversely affect any listed species or critical habitat."
Id. § (b); 16 U.S.C. § 1536.
The formal consultation process requires FWS to issue a Biological
Opinion "detailing how the agency action affects the species or its
critical habitat." 16 U.S.C. § 1536(b)(3)(A). If the Service finds
that the action under review will jeopardize the continued existence of
the species or destroy or "adversely modify" the species' critical
habitat, then the Service must set forth those "reasonable and prudent
alternatives" which would avoid these results. Id.
II. FACTUAL AND PROCEDURAL BACKGROUND*fn2
The Canada Lynx, Felix lynx canadensis ("Lynx"), is a medium-sized cat
comparable in size to a bobcat. Adult males average 22 pounds in weight
and 33.5 inches in
length, and adult females average 19 pounds and 32
inches. The Lynx 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 Endangered and Threatened
Wildlife and Plants; Determination of Threatened Status for the
Contiguous U.S. Distinct Population Segment of the Canada Lynx and
Related Rule, 65 Fed. Reg. 16052 ("Lynx Final Rule" or "Final Rule"). In
contrast to the bobcat, coyote, and 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. Id.
The North American range of the Lynx currently extends from Alaska,
through Canada, and into the northern part of the contiguous United
States. Id. In Canada and Alaska, Lynx inhabit the classic boreal forest
ecosystem known as the taiga, whereas in the contiguous United States,
the distribution of the Lynx is associated with the southern boreal
forest, comprised of subalpine coniferous forest in the West and
primarily mixed coniferous/deciduous forest in the East. Id.
In the lower forty-eight states, the Lynx range extends into four
different regions that are separated from each other by ecological
barriers consisting of unsuitable Lynx habitat. These regions are (1) the
Northeast, (2) the Great Lakes, (3) the Southern Rocky Mountains, and (4)
the Northern Rocky Mountains/Cascades. Id. at 16054. There is evidence
that the Lynx may currently be extirpated from New Hampshire, Vermont and
New York in the Northeast region, and from Colorado and southeastern
Wyoming in the Southern Rockies region. The largest presence of Lynx
population in the contiguous United States is in the Northern Rocky
Mountains/Cascades region. Id. at 16055-59.
B. The Lynx's Listing History
The Lynx has been the subject of either administrative action or
judicial proceedings for the last ten years. In 1982, FWS formally
identified the Lynx as a potential "candidate" for ESA listing. During
the next ten years, however, the Service "took no formal steps to make a
decision on listing." Defenders of Wildlife v. Babbitt, 958 F. Supp. 670,
674-75 (D.D.C. 1997) ("Lynx"). In response, conservation groups,
including some of the Plaintiffs in the instant case, filed formal
petitions with FWS, requesting that the agency list the Lynx in the
contiguous U.S. Id.
1. FWS's "Not Warranted" Finding
In 1994, Region 6 of FWS — which comprises a significant portion
of the Lynx's historic range, including Colorado, Montana, North Dakota,
Utah, and Wyoming — prepared a "90-day finding" regarding one of
the petitions for listing.*fn3 It determined that all five of the
criteria for listing a species as endangered under the ESA were
applicable to the Lynx.*fn4 Id. at 674.
That finding triggered the Service's obligation to conduct a
comprehensive "review of the status of the species concerned," which
included the Service's solicitation of "comments and relevant data from
the public as well as from independent Lynx experts as to whether the
Lynx should be listed." Id. at 676; 16 U.S.C. § 1533(a)(3)(A).
FWS's biologists in Region 6 also conducted their own review of the
available scientific and commercial information. They concluded that
"`Lynx populations in the contiguous United States have suffered
significant declines due to trapping and hunting and habitat loss,' and
that at least four of the five statutory criteria for listing a species
under the ESA apply to lynx." Lynx, 958 F. Supp. at 676 (quoting 1st
A.R. Doc. 35 at 19-43). 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 Northeast, Great Lakes, and
Southern Rockies, as endangered. This recommendation was accompanied by
an extensive, 50-page analysis of the Lynx's history and current status.
See id. at 676.
Biologists from both Region 5 and Region 3, which encompass the
Northeast and Great Lakes areas, respectively, supported the proposed
rule. Only the Director of Region 1, which encompasses the Pacific
Northwest, opposed it. Id. Although not every comment from the public
indicated complete agreement with the 50-page report, not a single
biologist or Lynx expert employed by FWS disagreed with the
recommendation of the Region 6 biologists that the Lynx be listed. Id.
On October 20, 1994, Region 6 submitted its listing proposal to the
Acting Director of FWS in Washington, D.C. for approval. Id. Two weeks
later, the Acting Director 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." Id.
The Lynx I plaintiffs subsequently challenged that finding, and, on
March 27, 1997, the Court granted their motion for summary judgment. In
so doing, the Court rejected various rationales advanced by the Service
for not listing the Lynx. First, the Court rejected FWS's position that
the ESA requires, prior to listing, "conclusive evidence of the
biological vulnerability or real threats to the species in the contiguous
48 states." Id. at 679 (quotation omitted). Second, the Court rejected
the Service's argument that Lynx need not be protected in the contiguous
U.S. because they "remain plentiful in Canada and Alaska." Id. at 684