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Colorado River Cutthroat Trout v. Salazar

United States District Court, District of Columbia

October 16, 2012

COLORADO RIVER CUTTHROAT TROUT, Center for Biological Diversity, and Noah Greenwald, Plaintiffs,
v.
Ken SALAZAR, Secretary of the Department of the Interior, and United States Fish and Wildlife Service, Defendants.

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James B. Dougherty, Law Office of J.B. Dougherty, Washington, DC, Justin Augustine, San Francisco, CA, Neil Levine, Denver, CO, for Plaintiffs.

Daniel J. Pollak, U.S. Department of Justice, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

The Colorado River Cutthroat Trout, the only trout indigenous to the upper Colorado River basin, once occupied a range of approximately 21,386 stream miles throughout western North America. During the nineteenth and early twentieth centuries, the trout's population levels plummeted, and its current habitat measures only 3022 miles. Although its population

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levels appear to have stabilized in recent decades, the trout continues to face various threats.

On June 13, 2007, the U.S. Fish and Wildlife Service announced its finding that listing the trout as endangered or threatened under the Endangered Species Act was not warranted at this time. Not Warranted Finding, 72 Fed.Reg. at 32,589.[1] Plaintiffs Colorado River Cutthroat Trout, Center for Biological Diversity, and Noah Greenwald have challenged the FWS's finding, as well as a related legal memorandum by the Department of the Interior, as arbitrary and capricious and in violation of the Endangered Species Act. Plaintiffs and defendants both moved for summary judgment, and defendants moved to dismiss plaintiffs' claim pertaining to the related legal memorandum.

Upon careful consideration of the parties' papers, applicable law, and the entire record in the case, the Court finds that the Not Warranted Finding was not contrary to the statute or arbitrary and capricious.[2] The Court also finds that plaintiffs' challenge to the related legal memorandum has been mooted by the formal withdrawal of the memorandum by the agency. Therefore, by Order of September 28, 2012, the Court granted the defendants' motion for summary judgment as to the first claim, granted the defendants' motion to dismiss as to the second claim, and denied the plaintiffs' motion for summary judgment. This Opinion explains the reasoning underlying that Order.

I. BACKGROUND

A. Statutory and Regulatory Framework

The Endangered Species Act (" ESA" ), 16 U.S.C. § 1531 et seq., is generally considered to be " the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 414 (D.C.Cir.2004) (citing Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)). The ESA " provide[s] a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] ... a program for the conservation of such endangered species and threatened species[.]" 16 U.S.C. § 1531(b). The Department of the Interior, which is ultimately responsible for implementation of the ESA with

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respect to land-based and freshwater species, has delegated primary enforcement authority to the Fish and Wildlife Service (" FWS" ), an agency within the Department of the Interior. See Spirit of Sage Council v. Norton, 294 F.Supp.2d 67, 75 (D.D.C.2003).

An " endangered species" is " any species which is in danger of extinction throughout all or a significant portion of its range[.]" 16 U.S.C. § 1532(6). A " threatened species" is " any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range[.]" 16 U.S.C. § 1532(20). The ESA provides for any " interested person" to petition the Secretary of the Interior to list a species as threatened or endangered, and the Secretary has 90 days to determine whether the petition " presents substantial scientific or commercial information indicating that the petitioned action may be warranted." 16 U.S.C. § 1533(b)(3)(A); see also 50 C.F.R. § 424.14. Within twelve months of receiving a petition that presents such substantial information, and after undertaking a review of the species' status, the Secretary must publish findings in the Federal Register that indicate whether the petitioned action is not warranted, warranted, or warranted but precluded. 16 U.S.C. § 1533(b)(3)(B)(i)-(iii).

The ESA directs the Secretary of the Interior to base the finding of whether a species is " endangered" or " threatened" on:

any of the following 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). FWS regulations further provide that this decision must be based on " any one or a combination" of these factors and " solely on the best scientific and commercial data available" after conducting a status review of the species. 50 C.F.R. § 424.11(c). It is also agency policy to solicit " independent peer review ... on listing recommendations ... to ensure the best biological and commercial information is being used in the decision making process[.]" Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities, 59 Fed.Reg. 34,270, 34,270 (July 1, 1994).

B. Colorado River Cutthroat Trout

The Colorado River cutthroat trout, Oncorhynchus clarkii pleuriticus (the " Trout" ), is the only salmonid native to the upper Colorado River basin, and is one of fourteen subspecies of cutthroat trout known to be native to interior regions of western North America. Not Warranted Finding, 72 Fed.Reg. at 32,590. The Trout exhibits orange or red slash parts on both sides of the lower jaws, and sexually mature males are brightly colored. Id. At the beginning of the nineteenth century, the Trout occupied a range of approximately 21,386 stream miles, running through Wyoming, Colorado, Utah, New Mexico, and possibly Arizona. Id. Currently, the Trout occupies 3022 miles, or 14%, of its historic range, and is found in Colorado, Utah, and Wyoming. Id. at 32,600.

The parties agree that a variety of threats, natural and manmade, can affect the Trout and its habitat. See Pls.' Mot. Summ. at 5-6 (citing grazing, dams and water diversions, logging, oil and gas development, hybridization, disease, small and isolated populations, and natural disasters);

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Defs.' Mot. Summ. at 12-13 (citing habitat fragmentation, population isolation and loss of genetic diversity, hybridization, disease, random catastrophes, and land use activities such as grazing and road-building). Much of the initial decline in Trout distribution from its historic range resulted from the stocking of nonnative sport fish, which " caused problems through hybridization, competition, and predation." Not Warranted Finding, 72 Fed.Reg. at 32,599. This stocking occurred primarily in the late nineteenth and early twentieth centuries, is no longer practiced by fish and wildlife agencies, and no longer occurs near most Trout populations. Id. at 32,599; see also Pls.' Mot. Summ. at 5. In addition, states are implementing programs to remove nonnative competitor species from Trout waters. Id. at 32,597.

C. Procedural History

This action stems from a December 9, 1999, petition that plaintiffs filed with the FWS to list the Trout as an endangered or threatened species. See Colorado River Cutthroat Trout v. Kempthorne, 448 F.Supp.2d 170, 174 (D.D.C.2006). In October 2000, plaintiffs filed suit in this Court, contending that the FWS violated the ESA by failing to issue the required 90-day finding on the petition. Id. In April 2004, the FWS issued the 90-day finding, which concluded that the petition did not " present substantial information that listing the trout may be warranted." Id.; 90-Day Finding on a Petition to List the Colorado River Cutthroat Trout, 69 Fed.Reg. 21,151 (Apr. 20, 2004). Plaintiffs then amended their complaint to challenge the sufficiency of the 90-day finding. Colorado River Cutthroat Trout v. Kempthorne, 448 F.Supp.2d at 174. The Court awarded summary judgment to the plaintiffs after finding that the FWS had " solicited information and opinions from limited outside sources" rather than considering the petition alone in making its decision, which rendered the FWS's consideration of the petition " procedurally flawed." Id. at 177. Consequently, the Court ordered the FWS to conduct a " full status review of the [Trout] within nine months ... and issue a 12-month finding on the [Trout]" after the status review and public comment period. Id. at 179.

On November 7, 2006, the FWS announced the commencement of its status review, which involved a public comment period through January 8, 2007, as well as two scheduled public workshops. 12-Month Finding on a Petition to List the Colorado River Cutthroat Trout as Threatened or Endangered, 71 Fed.Reg. 65,064, 65,065 (Nov. 7, 2006). While the status review was underway, the then-Solicitor of the Department of the Interior issued a memorandum defining " a significant portion of its range" as that term is used in the ESA. See M-37013, Solicitor's Memorandum Regarding Meaning of " In Danger of Extinction Throughout All or a Significant Portion of its Range" (March 16, 2007) (the " Solicitor's Memorandum" ), [Dkt. No. 16-2]. On June 13, 2007, the FWS issued its 12-month finding, which announced that the Trout " is not now in danger of extinction (endangered), nor is it likely to become endangered within the foreseeable future (threatened)." Not Warranted Finding, 72 Fed.Reg. at 32,600. Accordingly, the FWS found that listing the Trout as a threatened or an endangered species under the ESA was not warranted at this time. Id. Although the FWS did not mention the Solicitor's Memorandum in its Finding, the FWS adopted an interpretation of " significant portion of its range" that was consistent with that set forth in the Solicitor's Memorandum. On November 24, 2009, plaintiffs filed the instant case, challenging the FWS's Not Warranted Finding and the Solicitor's

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Memorandum under the ESA and the Administrative Procedure Act (" APA" ).

II. LEGAL STANDARDS

A. Endangered Species Act and Administrative Procedure Act

The ESA provides for judicial review of an agency's " not warranted" finding. 16 U.S.C. § 1533(b)(3)(C)(ii). The APA provides the standard for judicial review of agency listing decisions. See Am. Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C.Cir.2008). The reviewing court may set aside agency actions, findings, or conclusions when they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A).

The standard of review of agency action is " a highly deferential one." Am. Wildlands v. Kempthorne, 530 F.3d at 997 (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.1976)). There is a strong, albeit rebuttable presumption in favor of upholding decisions of the FWS in view of its expertise in the area of wildlife conservation and management and the deferential standard of review. Colorado River Cutthroat Trout v. Kempthorne, 448 F.Supp.2d at 174; see Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375-78, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). If the agency has " considered the relevant factors and articulated a rational connection between the facts found and the choice made," its decision cannot be considered arbitrary and capricious. Colorado River Cutthroat Trout v. Kempthorne, 448 F.Supp.2d at 174 (quoting Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). The Court's review, however, must be " searching and careful." Nat'l Envtl. Dev. Assn's Clean Air Project v. E.P.A., 686 F.3d 803, 810 (D.C.Cir.2012) (quoting Ethyl Corp. v. EPA, 541 F.2d at 36-37).

As explained in more detail below, one of plaintiffs' principal arguments challenges the FWS's interpretation of the ESA. The court must defer to the agency's interpretation of a statute that it implements " so long as it is reasonable, consistent with the statutory purpose, and not in conflict with the statute's plain language." OSG Bulk Ships v. United States, 132 F.3d 808, 814 (D.C.Cir.1998) (quoting Coal Emp't Project v. Dole, 889 F.2d 1127, 1131 (D.C.Cir.1989)). When the action under review involves an agency's interpretation of a statute that the agency is charged with administering, the court applies the familiar analytical framework set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under step one of Chevron, the court asks " whether Congress has directly spoken to the precise question at issue, in which case we must give effect to the unambiguously expressed intent of Congress." Sec'y of Labor, Mine Safety and Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d 1066, 1073 (D.C.Cir.2007) (internal quotation marks and citation omitted); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. at 842-43, 104 S.Ct. 2778.

If the court concludes that " the statute is silent or ambiguous with respect to the specific issue," the court moves " to the second [ Chevron ] step and defer[s] to the agency's interpretation as long as it is ‘ based on a permissible construction of the statute.’ " Sec'y of Labor, Mine Safety and Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d at 1074 (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. ...


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