The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
This Document Relates To:
Ctr. for Biological Diversity,*fn1 et al. v. Salazar, et al., No. 08-2113; State of Alaska v. Salazar, et al., No. 08-1352; Safari Club Int'l, et al. v. Salazar, et al., No. 08-1550; California Cattlemen's Ass'n, et al. v. Salazar, et al., No. 08-1689; Conservation Force, et al. v. Salazar, et al., No. 09-245
In May 2008, the U.S. Fish and Wildlife Service ("FWS" or "the Service") issued its final rule listing the polar bear as a "threatened species" under the Endangered Species Act of 1973. See Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008) (the "Listing Rule"). The Service concluded that the polar bear is likely to become endangered within the foreseeable future because of anticipated impacts to its sea ice habitat from increasing Arctic temperatures, which have been attributed to global greenhouse gas emissions and related atmospheric changes. Numerous plaintiffs have challenged the Listing Rule under the Endangered Species Act ("ESA" or "the Act"), 16 U.S.C. §§ 1531-1544, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-559, 701-706, claiming that the Service's decision to list the polar bear as a threatened species was arbitrary and capricious and an abuse of agency discretion. Pending before the Court are the parties' cross-motions for summary judgment.
As the briefing in this case makes clear, the question of whether, when, and how to list the polar bear under the ESA is a uniquely challenging one. The three-year effort by FWS to resolve this question required agency decision-makers and experts not only to evaluate a body of science that is both exceedingly complex and rapidly developing, but also to apply that science in a way that enabled them to make reasonable predictions about potential impacts over the next century to a species that spans international boundaries. In this process, the Service considered over 160,000 pages of documents and approximately 670,000 comment submissions from state and federal agencies, foreign governments, Alaska Native Tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, non-governmental organizations, and private citizens. In addition to relying on its own experts, the agency also consulted a number of impartial experts in a variety of fields, including climate scientists and polar bear biologists.
In view of these exhaustive administrative proceedings, the Court is keenly aware that this is exactly the kind of decision-making process in which its role is strictly circumscribed. Indeed, it is not this Court's role to determine, based on its independent assessment of the scientific evidence, whether the agency could have reached a different conclusion with regard to the listing of the polar bear. Rather, as mandated by the Supreme Court and by this Circuit, the full extent of the Court's authority in this case is to determine whether the agency's decision-making process and its ultimate decision to list the polar bear as a threatened species satisfy certain minimal standards of rationality based upon the evidence before the agency at that time.
For the reasons set forth below, the Court is persuaded that the Listing Rule survives this highly deferential standard. After careful consideration of the numerous objections to the Listing Rule, the Court finds that plaintiffs have failed to demonstrate that the agency's listing determination rises to the level of irrationality. In the Court's opinion, plaintiffs' challenges amount to nothing more than competing views about policy and science. Some plaintiffs in this case believe that the Service went too far in protecting the polar bear; others contend that the Service did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. However, this Court is not empowered to choose among these competing views. Although plaintiffs have proposed many alternative conclusions that the agency could have drawn with respect to the status of the polar bear, the Court cannot substitute either the plaintiffs' or its own judgment for that of the agency. Instead, this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. That is particularly true where, as here, the agency is operating at the frontiers of science.
In sum, having carefully considered plaintiffs' motions, the federal defendants' and defendant-intervenors' cross-motions, the oppositions and replies thereto, various supplemental briefs, the supplemental explanation prepared by FWS in response to this Court's November 4, 2010 remand order, arguments of counsel at a motions hearing held on February 23, 2011, the relevant law, the full administrative record, and for the reasons set forth below, the Court finds that the Service's decision to list the polar bear as a threatened species under the ESA represents a reasoned exercise of the agency's discretion based upon the facts and the best available science as of 2008 when the agency made its listing determination. Accordingly, the Court hereby DENIES plaintiffs' motions for summary judgment and GRANTS the federal defendants' and defendant-intervenors' motions for summary judgment.
B.Factual and Procedural Background
A.The Service Articulated a Rational Basis for Its Conclusion that the Polar Bear Met the Definition of a Threatened Species at the Time of Listing
1.Plaintiff CBD's Claim that the Polar Bear Should Have Been Considered Endangered at the Time of Listing
b.Plaintiff CBD's Arguments
i.Standard of Review on Remand
2.Joint Plaintiffs' Claim that the Polar Bear Should Not Have Been Considered Threatened at the Time of Listing
a.Joint Plaintiffs' Argument that the Service Failed to Demonstrate that the Polar Bear Is 67-90% Likely to Become Endangered
b.Joint Plaintiffs' Argument that the Service Arbitrarily Selected 45 Years As the "Foreseeable Future" Timeframe for the Polar Bear
B.The Service Articulated a Rational Basis for Its Conclusion that No Polar Bear Population or Ecoregion Qualifies As a "Distinct Population Segment"
2.Plaintiffs CBD, SCI, and CF's Claim that the Service Wrongly Concluded that No Polar Bear Population or Ecoregion Is "Discrete"
C.The Service Did Not Arbitrarily Fail to Consider Other Listing Factors
1.Joint Plaintiffs' Claim that the Service Failed to "Take Into Account" Foreign Conservation Efforts to Protect the Polar Bear
2.Joint Plaintiffs' Claim that the Service Failed to Rely upon the "Best Available Science"
a.Joint Plaintiffs' Argument that Climate
Case 1:08-mc-00764-EGS Document 268 Filed 06/30/11 Page 6 of 116
Science Is Too Uncertain to Support the Service's Conclusion
Plaintiffs' Argument that the USGS Population Models Do Not Support the Service's Conclusion c.Joint Plaintiffs' Argument that the Service Ignored Scientific Data and Made Improper Findings Regarding the Southern Beaufort Sea Population 3.Plaintiff CBD's Claim that the Service Failed to Consider Whether the Threat of Overutilization Warranted Listing the Polar Bear As Endangered ("Listing Factor B")
4.Joint Plaintiffs' Claim that the Service Wrongly Concluded that Existing Regulatory Mechanisms Will Not Protect Polar Bears despite Anticipated Habitat Losses ("Listing Factor D") D.The Service Followed Proper Rulemaking Procedures
1.Plaintiff Alaska's Claim that the Service Violated Section 4(i) of the ESA by Failing to Provide a Sufficient "Written Justification" in Response to Comments 2.Plaintiff CF's Claim that the Service Failed to Respond to Significant Comments
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."*fn2
16 U.S.C. § 1531(b). An "endangered species" is "any species which is in danger of extinction throughout all or a significant portion of its range." Id. § 1532(6). A "threatened species" is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). The term "species" is defined in the Act to include species, subspecies, and "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16).
The ESA requires the Secretary of the Interior to publish and maintain a list of all species that have been designated as threatened or endangered. Id. § 1533(c). Species are added to and removed from this list after notice and an opportunity for public comment, either on the initiative of the Secretary or as a result of a petition submitted by an "interested person." Id. §§ 1533(b)(1), (3), (5). The Secretary of the Interior and the Secretary of Commerce are responsible for making listing decisions.*fn3 Id. §§ 1532(15), 1533(a)(2). The Secretary of the Interior has jurisdiction over the polar bear. See 50 C.F.R. § 402.01(b).
A listing determination is made on the basis of one or more of five statutorily prescribed factors:
(a) the present or threatened destruction, modification, or curtailment of the species' 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 the species' continued existence.
16 U.S.C §§ 1533(a)(1)(A)-(E); see also 50 C.F.R. § 424.11(c). The agency must list a species if "any one or a combination" of these factors demonstrates that the species is threatened or endangered. 50 C.F.R. § 424.11(c).
The ESA further provides that the decision to list a species must be made solely on the basis of the best scientific and commercial data available . . . after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species . . . .
16 U.S.C. § 1533(b)(1)(A).
B. Factual and Procedural Background
Polar bears are marine mammals that are described as "iceobligate," meaning that they are evolutionarily adapted to, and indeed completely reliant upon, sea ice for their survival and primary habitat. ARL 117259.*fn4 They depend upon sea ice for critical functions such as hunting ice-dependent seals (their primary source of food), migrating between feeding areas and land-based maternity dens, and traveling long distances in search of mates or food. ARL 139259. Over most of their range, polar bears remain on the ice year-round. ARL 139245. The international Polar Bear Specialist Group -- the authoritative source for information on the world's polar bears -- has identified nineteen polar bear populations located within five countries in the ice-covered regions of the Northern Hemisphere: the United States (in Alaska), Canada, Denmark (in Greenland), Norway, and Russia.*fn5 ARL 117216-17, 117219.
On February 16, 2005, the Center for Biological Diversity submitted a petition to the Secretary of the Interior to list the polar bear as a threatened species under the ESA due to observed and anticipated declines in the Arctic sea ice upon which the polar bear relies for survival. See generally ARL 4040-4209. FWS ultimately issued a final rule listing the polar bear as a threatened species on May 15, 2008.*fn6 See generally ARL 117215-117307. At the time of listing, there were estimated to be approximately 20,000 to 25,000 polar bears worldwide, distributed throughout the species' range.*fn7 ARL 117219. These estimates further indicated that two of the nineteen polar bear populations were increasing in numbers (Viscount Melville Sound and M'Clintock Channel); six populations were stable (Northern Beaufort Sea, Southern Hudson Bay, Davis Strait, Lancaster Sound, Gulf of Boothia, Foxe Basin); and five populations were declining (Southern Beaufort Sea, Norwegian Bay, Western Hudson Bay, Kane Basin, Baffin Bay). ARL 117221. Insufficient data were available to identify trends for the remaining six populations (Barents Sea, Kara Sea, Laptev Sea, Chukchi Sea, Arctic Basin, East Greenland). ARL 117221.
In its Listing Rule, FWS acknowledged that sea ice conditions across the Arctic had changed over the past several decades. ARL 117227-28. Specifically, the agency cited data indicating that the summer/fall ice melt season in the Arctic lengthened by approximately two weeks per decade between 1979 and 2005. ARL 117227. The agency also cited data indicating that September (i.e., minimum) sea ice extent was at an all-time low during the period between 2002 and 2007. ARL 117224. FWS further noted that scientists had observed significant recent declines in winter (i.e., maximum) sea ice extent, ARL 117226, cumulative annual sea ice extent, ARL 117226, and overall sea ice age and thickness, ARL 117226-27.
Relying on complex climate models and related data from the International Panel on Climate Change ("IPCC") -- which FWS acknowledged to be the leading international body in climate change science -- FWS attributed these changes in sea ice to increased Arctic temperatures caused by greenhouse gas emissions and related changes in atmospheric and oceanic circulation.*fn8 ARL 117227-30. As FWS described, due to a reported lag time in response between when greenhouse gases are emitted into the atmosphere and when the impacts of those emissions are felt on the ground, the IPCC concluded that the global climate system is committed to a continued warming trend through the end of the 21st century. ARL 117233-34. Indeed, FWS noted that average projected warming levels through mid-century were generally consistent across all IPCC climate models, regardless of differences in possible emission levels over that period. ARL 117257. FWS looked also to IPCC models of Arctic sea ice, which similarly projected declines in ice extent through the end of the 21st century. ARL 117234. As FWS noted, the ten models that most accurately reflected historical sea ice changes prior to 2007 all projected a decline in September sea ice extent of over thirty percent (30%) by mid-century. ARL 117236-37. On the basis of these IPCC models and associated analysis, FWS concluded that it could confidently predict a significant decline in the polar bear's sea ice habitat over the next 40 to 50 years. ARL 117279-81.
FWS further concluded that the extent of anticipated declines in sea ice will significantly impact polar bear population health. ARL 117279. As FWS described, sea ice losses have been tied to nutritional stress in polar bears because of lower overall numbers of ice-dependent prey, decreased access to the prey that remain, shorter hunting seasons and longer seasonal fasting periods, and higher energetic demands from traveling farther and swimming longer distances across open water to reach sea ice. ARL 117279. FWS determined that this nutritional stress and other related factors will likely result in a decline in the physical condition of polar bears, leading to lower overall body weights and reduced cub survival rates. ARL 117270. FWS further found that consistent declines in physical condition and reproductive success will ultimately lead to population-level declines. ARL 117279.
In reaching this conclusion, FWS relied in part on long-term studies showing that these impacts had already been observed in some of the southern-most polar bear populations. According to FWS, monitoring reports indicated that the Western Hudson Bay population -- one of the longest-studied polar bear groups -- had experienced declines in body condition among both adult male and adult female bears over the past three decades, with an associated population decrease of approximately twenty-two percent (22%). ARL 117271. FWS noted that this Canadian population also experienced significant declines in body mass among female bears over that period. ARL 117270. A comprehensive review of the polar bear's status conducted prior to listing indicated that, between 1971 and 2001, the average date of spring break-up of the sea ice in the region advanced by three weeks, and temperatures increased by between 0.5 C and 0.8 C per decade. ARL 139286. The correlation between the timing of sea ice break-up and the body condition of adult female polar bears was found to be statistically significant. ARL 139286.
The same polar bear status review also indicated that scientists monitoring the Southern Beaufort Sea polar bear population -- another long-studied group -- observed similar changes in body condition and unusual hunting behaviors. ARL 139279. As noted in the status review, population estimates for this group between 1986 and 2006 also showed declines, although researchers were not confident enough in these estimates to assert that the observed declines were statistically significant. ARL 139279.
Prior to issuing its final rule, FWS commissioned the United States Geological Survey ("USGS") to conduct additional scientific analysis related to the polar bear listing decision.*fn9
Among other things, USGS undertook an effort to forecast the status of polar bears in different parts of the Arctic at three future time periods in the 21st century (i.e., 45 years, 75 years, and 100 years). See generally Forecasting the Range-Wide Status of Polar Bears at Selected Times in the 21st Century, ARL 161306-161436. USGS developed two models in an effort to predict potential future changes to polar bear population numbers across a range of scenarios, using climate models and the existing body of knowledge about polar bears. ARL 161313. A simple "carrying capacity" model was designed to estimate potential changes in numbers of bears based on current polar bear population densities and annual sea ice projections. ARL 161316. A more comprehensive "Bayesian Network" model was designed to determine the probability of certain population outcomes (e.g., "larger than now," "same as now," "smaller," "rare," or "extinct"), taking into account a wide range of factors including the seasonal availability of sea ice, as well as population stressors unrelated to sea ice loss. ARL 161317, 161325-26.
For the purpose of these models, USGS grouped the nineteen global polar bear populations into four "ecoregions" -- Seasonal Ice, Divergent Ice, Convergent Ice, and Archipelago -- based upon regional patterns of ice formation. ARL 117276. The Seasonal Ice Ecoregion, for example, occurs at the southern end of the polar bear range and is ice-free for a portion of the year. ARL 117221. In the Divergent Ice Ecoregion, which is located mainly in Alaska, ice formed at the shore drifts away from land as a result of wind and ocean currents. ARL 117222. In the Convergent Ice Ecoregion, sea ice formed in the Divergent Ice Ecoregion moves toward land and collects at the shore. ARL 117222. The Archipelago Ecoregion, at the northernmost point of the Canadian Arctic, generally has thicker and more persistent ice year-round. ARL 117222. USGS determined that these variations in sea ice conditions generally correlate to differences in how polar bears interact with their sea ice habitat. ARL 117221.
Consistent with IPCC climate and sea ice models, both of the USGS models projected population declines in all four polar bear ecoregions over the next 100 years. ARL 161312. The simple carrying capacity model indicated that polar bear population levels range-wide will have moderately decreased by year 45, assuming average projected levels of future sea ice. ARL 161331. Assuming minimal levels of future sea ice, the carrying capacity model projected trends "toward extirpation" of bears in the Divergent Ice Ecoregion by year 45 and in the Seasonal Ecoregion by year 75. ARL 161331. Similarly, according to USGS, the Bayesian Network model results suggested that "multiple stressors will likely play important and deleterious roles on all polar bear populations, even starting at year 45, and generally increase in their effect through year 100." ARL 161332. For example, the Bayesian Network model projected an outcome of extinction for bears in the Seasonal and Divergent Ice Ecoregions by year 45 and for bears in the Convergent Ice Ecoregion by year 75. ARL 161312-13. In the Archipelago Ecoregion, a "smaller" population was the dominant outcome at year 45 under all scenarios. ARL 161332.
In relying on the USGS population models, FWS emphasized that it had less confidence in the specific numerical outcomes of these models than in their "general direction and magnitude." ARL 117278. Specifically, FWS pointed to several caveats that USGS itself identified in the development of these models. As FWS described, USGS acknowledged that the carrying capacity model only accounted for changes in sea ice extent and could not account for several other important factors, including seasonal ice fluctuations and other population stressors. ARL 117277. Further, USGS indicated that this simple model assumed a linear relationship between sea ice and numbers of bears, which is not necessarily the case, and it also assumed that polar bear density will not change over time, which "is almost certainly not valid." ARL 161323. FWS similarly discounted the specific outcomes of the Bayesian Network model, which USGS described as a "first-generation 'alpha' level prototype," ARL 161338, because it reflected the judgment of only one polar bear expert and "still must be vetted through other polar bear experts."
ARL 161338; see also ARL 117278. Insofar as these population models were generally consistent with the record as a whole, however, FWS found that these models supported a conclusion that sea ice losses will negatively impact polar bears in a significant way within the foreseeable future. ARL 117278; ARL 117300.
Based on a voluminous administrative record, including the studies described above, and input from fourteen peer reviewers and numerous polar bear specialists, climate scientists, experts in Traditional Ecological Knowledge ("TEK"),*fn10 state and federal agencies, foreign governments, Alaska Native tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, non-governmental organizations, and private citizens, FWS concluded that the polar bear was threatened throughout its range at the time of listing, within the meaning of the ESA. ARL 117296. Specifically, FWS determined that all polar bear populations will be affected by substantial losses of sea ice within the foreseeable future (which it defined as 45 years), although different populations will be affected at different rates and to different degrees. ARL 117279-80. FWS further found that polar bears are unlikely to adapt to these anticipated habitat changes. ARL 117264-66.
However, notwithstanding these findings, FWS concluded that the polar bear was not endangered in any portion of its range at the time of listing. ARL 117301. The agency determined that at the time of listing the species was generally abundant throughout its range, the species continued to occupy the full extent of its historical range, and it had yet to experience precipitous population declines in any portion of its range. ARL 117299-301. Even in the Western Hudson Bay population, where a statistically-significant decline had been observed, the species continued to reproduce normally. ARL 117300. According to FWS, these countervailing facts demonstrated that the polar bear was not "in danger of extinction" at the time it made its listing decision, although the agency reiterated that the species would likely become an endangered species by mid-century. ARL 117301.
The publication of the Listing Rule triggered lawsuits by a number of
organizations and individuals: (1) the State of Alaska
("Alaska")*fn11 (State of Alaska v. Salazar, et al.,
No. 08-1352 (D.D.C. Aug. 4, 2008)); (2) Safari Club International and
Safari Club International Foundation (collectively, "SCI")*fn12
(Safari Club Int'l, et al. v. Salazar, et al., No. 08-1550 (D.D.C. Sept. 8,
2008)); (3) California Cattlemen's Association and the Congress on
Racial Equality (collectively, "CCA")*fn13 (California
Cattlemen's Ass'n, et al. v. Salazar, et al., No. 08-1689 (D.D.C. Oct.
2, 2008)); (4) Center for Biological Diversity, Natural Resources
Defense Council, and Greenpeace (collectively, "CBD")*fn14
(Ctr. for Biological Diversity, et al. v. Salazar, et
al., No. 08-1339 (N.D. Cal. Mar. 10, 2008));*fn15 and
(5) Conservation Force, the Inuvialuit Game Council, and numerous
hunting and trapping organizations as well as individuals
(collectively, "CF")*fn16 (Conservation Force, et al.
v. Salazar, et al., No. 09-245 (D.D.C. Feb. 9, 2009)). These five
actions were subsequently consolidated before this Court, along with
six related actions, pursuant to an order of the Judicial Panel on
Multi-District Litigation.*fn17 See generally
Certified Copy of Transfer Order, Docket No. 1.*fn18
Several groups intervened to defend against plaintiffs' challenges to the Listing Rule. Specifically, this Court permitted the Alaska Oil and Gas Association ("AOGA") and the Arctic Slope Regional Corporation ("ASRC") to intervene as defendants in the challenge brought by plaintiff CBD. See Stipulation and Order Regarding Intervention, Docket No. 33, at 4-5. The Court also permitted SCI, a plaintiff in its own action, to intervene as a defendant in the action brought by plaintiff CBD. Plaintiff CBD was permitted to intervene as a defendant in the remaining challenges to the Listing Rule.
On October 20, 2009, plaintiffs filed their motions for summary judgment.*fn19 Among other claims, plaintiff CBD contends that the decision to list the polar bear as threatened was arbitrary and capricious because the polar bear met the definition of an endangered species under the ESA at the time of listing and thus qualified for a higher level of protection. The remaining plaintiffs (collectively, "Joint Plaintiffs") contend, among other things, that the decision to list the polar bear was arbitrary and capricious because the polar bear did not meet the definition of a threatened species at the time of listing and therefore did not qualify for ESA protections.
The federal defendants filed their cross-motion for summary judgment on December 7, 2009. See generally Federal Defendants' Combined Opposition and Cross-Motion for Summary Judgment on Listing Rule Claims, Docket No. 137 ("Fed. Def. Mot."). The various defendant-intervenors filed their cross-motions for summary judgment on January 19, 2010.*fn20
This Court held an initial hearing on the parties' cross-motions for summary judgment on October 20, 2010. At that hearing, the Court focused only on a threshold question: whether it must review the agency's interpretation of the ESA listing classifications under step one or step two of the familiar framework set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In a Memorandum Opinion issued on November 4, 2010, the Court held that FWS had improperly relied on an erroneous plain-meaning reading of the definition of an endangered species that could not be upheld under step one of Chevron. In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, 748 F. Supp. 2d 19, 29 (D.D.C. 2010) [hereinafter In re Polar Bear]. Finding that the term "endangered species" under the ESA is instead ambiguous, the Court remanded the Listing Rule to the agency "to treat the statutory language as ambiguous." Id.
In response to the Court's remand order, on December 22, 2010, the federal defendants submitted the agency's memorandum of supplemental explanation. See generally Supplemental Explanation for the Legal Basis of the Department's May 15, 2008 Determination of Threatened Status for Polar Bears, Docket No. 237-1 ("Supp. Exp."). In their Supplemental Explanation, FWS concluded that, even treating the phrase "in danger of extinction" in the definition of an endangered species as ambiguous, the administrative record does not support a finding that the polar bear qualified for endangered status at the time of listing. Because the agency determined that the species is likely to become endangered within the foreseeable future, however, FWS reiterated that the polar bear met ESA's the definition of a threatened species at the time of listing. Supp. Exp. at 16.
The Court gave the parties an opportunity to submit additional briefs responding to the agency's supplemental explanation. See generally Joint Plaintiffs' Response to Federal Defendants' Supplemental Explanation, Docket No. 240 ("JP Supp. Mem."); Plaintiff CBD's Response to Federal Defendants' Supplemental Explanation, Docket No. 241 ("CBD Supp. Mem."); AOGA and ASRC Defendant-Intervenors' Response to Federal Defendants' Supplemental Explanation, Docket No. 239 ("AOGA Supp. Mem."); Federal Defendants' Supplemental Reply, Docket No. 242 ("Fed. Def. Supp. Reply"). A second motions hearing was held on February 23, 2011, during ...