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Wildlands v. Kempthorne

March 26, 2007

AMERICAN WILDLANDS, ET AL., PLAINTIFFS,
v.
DIRK KEMPTHORNE, SECRETARY OF THE DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

In 2000, several environmental groups brought suit to challenge the finding of the Fish and Wildlife Service ("FWS" or "the Service") that listing of the westslope cutthroat trout ("WCT") as endangered or threatened under the Endangered Species Act ("ESA") was not warranted. The Court granted plaintiffs' motion for summary judgment, concluding that the Service's decision was arbitrary and capricious. The Court remanded the action to FWS so that it could reconsider its finding and ordered FWS to specifically determine the threat of hybridization to the WCT as it bears on the ESA's listing factors. FWS followed the Court's order, conducted further analysis, and concluded that, notwithstanding the threat of hybridization, listing of the WCT as endangered or threatened was not warranted. Plaintiffs have brought the instant suit, challenging this reconsidered decision as arbitrary and capricious under the Administrative Procedure Act ("APA").*fn1 Currently pending before the Court are the parties' cross-motions for summary judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, the Court determines that the Service's reconsidered decision was not arbitrary and capricious. Therefore, for the reasons stated herein, defendants' motion for summary judgment is GRANTED, and plaintiffs' cross-motion for summary judgment is DENIED.

BACKGROUND

I. Factual and Statutory Background

The westslope cutthroat trout is one of fourteen subspecies of cutthroat trout native to interior streams in western North America. The historic habitat of WCT includes 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 four environmental organizations-- American Wildlands, Montana Environmental Information Center, the Clearwater Biodiversity Project, and the Western Watershed Project --and one individual, Bud Lilly, who fishes in WCT habitat and who is a board member of American Wildlands. American Wildlands formally petitioned FWS to list the WCT as threatened throughout its range and designate critical habitat for the subspecies pursuant to the ESA.

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).

The ESA directs the Secretary of the Interior to determine whether to list species of flora and fauna as endangered or threatened. FWS is obligated to independently identify species for listing, and to respond to listing petitions from the public. § 1533(b)(3)(A). Where there is a public petition for listing, FWS has ninety days from the filing of the petition in which to determine whether the petition presents substantial scientific or commercial information indicating that a listing may be warranted. § 1533(b)(3)(A). If FWS issues a "may be warranted" finding, the Service then has twelve months to complete a "review of the status of the species concerned" to determine if listing is "warranted." §§ 1533(b)(3)(B), 1533(b)(5). If the agency concludes that listing is warranted, it must publish a proposed rule in the Federal Register and provide an opportunity for public comment. § 1533(b)(5). Twelve months after publication of the proposed rule, the agency must make a final decision whether to adopt a final rule listing the species under the ESA. Id.

When making its determination as to whether a species should be listed as endangered or threatened, the agency must consider the following five factors: (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; and (5) other natural or manmade factors affecting its continued existence. § 1533(a)(1). The ESA also instructs that the agency's determination as to whether to list a species under the Act is to be made "solely on the basis of the best scientific and commercial data available." § 1533(b)(1)(A).

II. Procedural History

On May 21, 1997, American Wildlands submitted a petition to FWS requesting the listing of the WCT as a threatened species under the ESA. See generally American Wildlands v. Norton, 193 F. Supp. 2d 244, 249-50 (D.D.C. 2002) (describing procedural history up to 2002). 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 the ESA. 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 WCT as a threatened species "may be warranted." 90-day Finding and Commencement of Status Review for a Petition To List WCT as Threatened, 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. ยง 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 ...


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