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Natural Resources Defense Council, Inc. v. Rauch

United States District Court, District of Columbia

March 25, 2017

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs,
v.
SAMUEL D. RAUCH, III, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service, [1] et al., Defendants.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS United States District Judge

         Blueback herring (alosa aestivalis) are silver-colored fish, roughly a foot in length, that inhabit much of North America's Atlantic coast. The species is “anadromous, ” meaning the fish are born in inland rivers, then spend most of their adult lives at sea, while still returning to their natal rivers for six to eight weeks each spring to spawn.

         In 2011, the Natural Resources Defense Council (“NRDC”) petitioned the National Marine Fisheries Service (“Service”) to list blueback herring as “threatened” under the Endangered Species Act of 1973. The Service undertook a lengthy review in response, but ultimately found that listing the species “[wa]s not warranted.” See Endangered Species Act Listing Determination for Alewife and Blueback Herring, 78 Fed. Reg. 48, 944 (Aug. 12, 2013) (“Listing Decision”). The NRDC and others now challenge that determination. Because the Court agrees that the Service failed to offer a rational connection between the facts and two of its essential conclusions, and because the Service entirely failed to consider other important aspects of the problem, the Court will VACATE the Listing Decision and will REMAND the matter to the Service for further proceedings consistent with this opinion.

         I. BACKGROUND

         A. The Endangered Species Act

         The Endangered Species Act exists to conserve endangered and threatened species and “the ecosystems upon which [they] depend.” 16 U.S.C. § 1531(b). As amended, the Act defines “species” to include not just “any subspecies of fish or wildlife, ” but also any “distinct population segment” of any species of vertebrate fish or wildlife which interbreeds when mature. Id. § 1532(16). A species is “endangered” if it “is in danger of extinction” either throughout “all . . . of its range” or throughout “a significant portion of its range.” Id. § 1532(6). And a species is “threatened” if it “is likely to become . . . endangered . . . within the foreseeable future” throughout “all or a significant portion of its range.” Id. § 1532(20) (emphasis added).

         The Act directs the Service, along with its counterpart in the Department of the Interior, [2]to “determine whether any species is . . . endangered . . . or . . . threatened, ” id. § 1533(a), and to publish lists of species designated as such, id. § 1533(c)(1). Listed species then receive heightened protections under the Act. See generally Id. §§ 1533-1538. Any “interested person” may petition the Service to change a species's status, see 5 U.S.C. § 553(e); 16 U.S.C. § 1533(b)(3); 50 C.F.R. § 424.14, and, if the petition “presents substantial scientific or commercial information indicating that the petitioned action may be warranted, ” the Service must “promptly” conduct a species status review, 16 U.S.C. § 1533(b)(3)(A). The Service must then publish its findings in a listing determination, id., which must rest on any one or a combination of the following factors:

(A) the present or threatened destruction, modification, or curtailment of [the species's] 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's] continued existence.

16 U.S.C. § 1533(a)(1); see also 50 C.F.R. § 424.11(c). In addition, the Service must make its listing determination “solely on the basis of the best scientific and commercial data available.” 16 U.S.C. § 1533(b)(1)(A).

         B. Factual Background

         Blueback herring “use many different habits” throughout their life cycle, “including the ocean, estuaries, rivers, and freshwater lakes and ponds.” Listing Decision, 78 Fed. Reg. at 48, 945. They spend the first few months of their life in freshwaters. They then migrate to the open sea, where they mature and spend most of their adult life (in what is called their “ocean phase”), before returning “to estuarine and freshwater rivers, ponds, and lake habitats to spawn.” Id.; see also Dkt. 40-1 at 104-06 (AR 2048-50) (describing blueback herring lifecycle). Adult blueback herring “frequently return[] to their natal rivers for spawning, ” but may, on occasion, “stray[] . . . between rivers.” Listing Decision, 778 Fed. Reg. at 48, 945. Evidence also suggests, but has not conclusively determined, that blueback herring migrate large distances even during their ocean phase, moving en masse with the seasons up and down the Atlantic coast. See, e.g., Id. at 48, 949-50; Dkt. 40-5 at 146 (AR 66, 934). The species's range reaches south to the St. John's River in Florida, north to the Miramichi River in New Brunswick, Canada, and east into oceanic waters along the continental shelf. Listing Decision, 78 Fed. Reg. at 48, 945, 48, 948.

         Figure 1: Approximate Blueback Herring Range in U.S. Waters (2007)[3]

         (IMAGE OMITTED)

         In August 2011, the NRDC petitioned the Service to list blueback herring as “threatened.”[4] See Dkt. 40-1 at 86-192 (AR 2030-136) (Petition). Citing numerous studies, the NRDC argued that blueback herring had “suffered dramatic population declines” from their nineteenth-century peak and that those declines had continued over the past four decades. Id. at 87, 110 (AR 2031, 2054). The causes, the NRDC argued, were primarily “fishing-related mortality, dams, dredging and blasting, water pollution, and global warming.” Id. at 88-89 (AR 2032-33). The Service deemed the petition supported by substantial scientific evidence, see 90-Day Finding on a Petition To List Alewife and Blueback Herring as Threatened Under the Endangered Species Act, 76 Fed. Reg. 67, 652, 67, 656 (Nov. 2, 2011), and, pursuant to its statutory mandate, embarked on a blueback herring status review.

         As a launching point for its analysis, the Service relied on the May 2012 River Herring Benchmark Stock Assessment prepared by the Atlantic States Marine Fisheries Commission (“ASMFC”).[5] Listing Decision, 78 Fed. Reg. at 48, 944. The ASMFC study analyzed data from 52 in-river United States “stocks, ” i.e., discrete “part[s] of a fish population” with “particular migration pattern[s]” and “specific spawning grounds.” Dkt. 40-3 at 146, 151 (AR 52, 745, 52, 750). Of those 52 stocks, 22 displayed evidence of declining river herring populations, 1 displayed evidence of an increasing population, and the remaining 28 lacked data to support definitive quantitative conclusions about population trends. Id. at 151 (AR 52, 750). On the whole, the ASMFC determined that “[t]he coastwide meta-complex of river herring stocks on the U.S. Atlantic coast is depleted to near historic lows.”[6] Id.

         The Service also “worked cooperatively with [the] ASMFC” to “identify information not in the stock assessment that [would be] needed for [the] listing determination.” Listing Decision, 78 Fed. Reg. at 48, 944. At the outset of the status review, they convened three sets of workshops and working groups with experts in the field. Listing Decision, 78 Fed. Reg. at 48, 944; see Dkt. 40-1 at 11 (AR 1). Two of those working group reports received peer review from the Center for Independent Experts. Listing Decision, 78 Fed. Reg. at 48, 944.

         C. The Listing Decision

         On August 12, 2013, the Service published its fifty-page Listing Decision “determin[ing] that listing blueback herring as threatened or endangered” was “not warranted at th[at] time.” Listing Decision, 78 Fed. Reg. at 48, 944. The decision turned on three central conclusions. First, the Service found that it lacked sufficient data to deem any subset of blueback herring a “distinct population segment.” Id. at 48, 950, 48, 993. Second, “as a result of [its] extinction risk analysis, ” the Service determined that the blueback herring “[was] not in danger of extinction [throughout all of its range] or likely to become so in the foreseeable future.” Id. at 48, 993. And, third, without addressing whether the blueback herring was threatened or endangered throughout the “Mid-Atlantic” region, the Service concluded that the Mid-Atlantic region was “not . . . a significant portion of the blueback herring's range.”[7] Id.

         The grounds for those conclusions appear to have been as follows.

         1. The Service 's “Distinct Population Segment” (“DPS”) Analysis

         The Service first sought to identify any “distinct population segments” of blueback herring. Because the Act's definition of “species” includes “distinct population segment[s]” of any species of vertebrate fish, 16 U.S.C. § 1532(16), each “distinct population segment” of blueback herring requires its own status determination. The threshold issue for the Service, therefore, was delineating exactly which “species” were the subjects of its review. See Listing Decision, 78 Fed. Reg. at 48, 948-50.

         a. The 1996 DPS Policy

         To make this threshold determination, the Service applied its Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722 (Feb. 7, 1996) (the “1996 DPS Policy”). Under the 1996 DPS Policy, a group of animals of the same taxon (i.e., biological species) is a “distinct population segment” only if two conditions are met. First, the group must be “discrete[].” Id. at 4725. A group is discrete under the 1996 DPS Policy if it is either (1) “markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavior factors” or (2) “delimited by international governmental boundaries” across which meaningfully different regulatory mechanisms exist. Id. Second, the group must be “significant] . . . to the [taxon] to which it belongs.” Id. Under the 1996 DPS Policy, “significance” depends on factors that “may include”-but are “not limited to”-the following:

1. Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon,
2. Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon,
3. Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or
4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.

Id. “Because precise circumstances are likely to vary considerably from case to case, ” the policy adds, “it is not possible to describe prospectively all the classes of information that might bear on the biological and ecological importance of a discrete population segment.” Id.

         b. The Five “Discrete” Population Segments

         The Service's “discreteness” finding turned largely on genetics research by Dr. Eric P. Palkovacs. Listing Decision, 78 Fed. Reg. at 48, 948-49; see also Dkt. 40-6 at 233-47 (AR 73, 485-99) (Palkovacs et al. report to the “stock structure” working group). Dr. Palkovacs collected DNA samples from 1, 183 blueback herring across 20 rivers in the United States and performed statistical analyses to test them for genetic differentiation.[8] Listing Decision, 78 Fed. Reg. at 48, 948-49; Dkt. 40-6 at 234-35 (AR 73, 486-87). He noted, however, that the “neutral genetic markers” he tracked (i.e., the DNA sequences he compared across specimens) “represent[ed] the effects of gene flow and historical population isolation, but [did] not [represent] the effects of adaptive processes.” Listing Decision, 78 Fed. Reg. at 48, 949.

         The Palkovacs analysis revealed a minimum of four geographic “clusters” of rivers in the United States, within which blueback herring populations were “genetically homogenous, ” Dkt. 40-6 at 235 (AR 73, 487), and between which blueback herring populations were “genetically distinguishable, ” id. at 233 (AR 73, 485). See also Listing Decision, 78 Fed. Reg. at 48, 948-49. These clusters also corresponded to “larger-scale geographic boundaries, ” across which “gene flow [was] extremely minimal.” Dkt. 40-6 at 237 (AR 73, 489). Dr. Palkovacs therefore concluded that these geographic boundaries “define[d] the higher-level population structure” for blueback herring in the United States. Id. The four Palkovacs “stock complexes” were the “Northern New England, ” “Southern New England, ” “Mid-Atlantic, ” and “Southern” stock complexes, Listing Decision, 78 Fed. Reg. at 48, 949 (citing Dkt. 40-6 at 238 (AR 73, 490)), as shown in the figure below.

         Figure 2: Blueback Herring U.S. Stock Structure as Defined by Palkovacs et al.[9]

         (IMAGE OMITTED)

         Applying the 1996 DPS Policy, the Service determined that the four stock complexes identified by Dr. Palkovacs represented “discrete” population segments. Id. at 48, 950. This conclusion presumably relied on the policy's first discreteness prong, which looks for populations “markedly separated from other[s] . . . as a consequence of physical, physiological, ecological, or behavior factors, ” 1996 DPS Policy, 61 Fed. Reg. at 4725-factors that include the genetic and geographic evidence that Dr. Palkovacs examined.

         Notably, the Palkovacs analysis did not consider the entire blueback herring population: it omitted (1) blueback herring in Canadian rivers and (2) blueback herring in their “ocean phase, ” where all blueback herring (regardless of stock) spend most of their adult lives. The Service resolved the issue regarding Canadian blueback herring by designating them as a fifth “discrete” population segment-not based on genetic differentiation, but based on the second prong of the “discreteness” test, which keys to “international governmental boundaries.” Id. at 48, 950 (applying 1996 DPS Policy, 61 Fed. Reg. at 4725). The oceanic population, however, proved more difficult. For that group, the Service found that “[m]igration and mixing patterns of . . . blueback herring in the ocean ha[d] not been determined, ” id. at 48, 949, but that experts suspected the oceanic population to be “comprised of mixed stocks, ” id. at 48, 950. Given the anticipated level of mixing, the Service decided that “the ocean phase” of blueback herring could not be treated as its own discrete population segment “until further tagging and genetic data become available.” Id. at 48, 949.

         The Service, accordingly, settled on five “discrete” blueback herring population segments, which the Listing Decision and this opinion refer to-from north to south-as the (1) Canadian, (2) Northern New England, (3) Southern New England, (4) Mid-Atlantic, and (5) Southern stock complexes. Id. at 48, 949-50. Although blueback herring spend the majority of their adult lives in the ocean, see Id. at 48, 945, the Service could not conclude that the oceanic population segment was "discrete, " id. at 48, 949-50. All of these population segments corresponded to geographic areas, as depicted (roughly) in the map below.

         Figure 3: The Five “Discrete” In-River Stock Complexes and the “Mixed” (Non-Discrete) Oceanic Population[10]

         (IMAGE OMITTED)

         c. No “Significant” Population Segments

         Despite finding these five stock complexes to be “discrete, ” the Service concluded that none of them met any of the 1996 DPS Policy's four (non-exclusive) criteria for “significance.” See Listing Decision, 78 Fed. Reg. at 48, 950. As an initial matter, the Listing Decision stated that the Service “considered all [four] of the [1996 DPS Policy's] criteria” and observed that blueback herring “occupy many different ecological settings throughout their range.” Id. It then devoted several paragraphs to the second and fourth criteria for “significance” under the policy.

         As to the second criterion-whether “the loss of [a] discrete population segment” would create a “significant gap” in the remaining population's range, id. at 48, 948-the Service acknowledged that “the loss of [any one] stock complex would mean the loss of [the corresponding] subpopulations” of herring that were born in and annually return to those rivers, id. at 48, 950. But, because the oceanic population is “comprised of mixed stocks, ” the Service reasoned, the oceanic territory “would most likely still be occupied by migratory river herring from other stock complexes.” Id. The Service thus concluded:

As it has been shown that gene flow is greater among neighboring runs than among distant runs, we might expect that river herring would re-colonize neighboring systems over a relatively short time frame. Thus, the loss of one stock complex in itself may not be significant; the loss of contiguous stock complexes may be. The goal then for river herring stock complexes is to maintain connectivity between genetic groups to support proper metapopulation function (spatially separated populations of the same species that interact, recolonize vacant habitats, and occupy new habitats through dispersal mechanisms).

Id.

         As to the fourth criterion-whether any “discrete population segment differs markedly . . . in its genetic characteristics”-the Service sought to distinguish its earlier finding under the discreteness prong that the four Palkovacs stock complexes were “markedly separated from other population segments” as a result of their genetic characteristics. See supra Part I.C.1.b. To do so, the Service seized on Dr. Palkovacs's “caveat” that the genetic markers his study looked for “represented the effects of gene flow and historical population isolation, but not the effects of adaptive processes.” Id. at 48, 949. As the Service explained, “[n]eutral genetic markers . . . have a longstanding history of utilization in stock designation for many anadromous fish species.” Id. at 48, 950. “[T]hese markers, ” however, “represent the effects of gene flow and historic population isolation and not the effects of adaptive behavior.” Id. That information, the Service concluded, is “appropriately used in support of the discreteness criterion.” Id. But because “neutral markers” of the kind Dr. Palkovacs measured do not “capture[]” “[t]he effects of adaptive genetic and phenotypic diversity, ” they have no bearing on the significance determination. Id.

         Based on this analysis, the Service declined to designate any “distinct population segments” of blueback herring. See Id. “The [four Palkovacs] stock complexes may be discrete, ” the Service wrote, “but under the DPS policy, they are not significant.” Id. The Service further concluded that, “given the unknown level of intermixing between Canadian and U.S. river herring in coastal waters, the Canadian stock complex should also not be considered separately under the DPS policy.” Id.

         2. The Service's Extinction Risk Analysis

         Having determined that the only “species” at issue was the entire taxon of blueback herring, the Service turned to its main inquiry: Are blueback herring “threatened”-i.e., “likely to become [in danger of extinction] in the foreseeable future” throughout “all . . . of their range”? 16 U.S.C. §1532(20). This extinction risk analysis contained both a qualitative and a quantitative component, although it is unclear whether and how the qualitative component impacted the decision not to list the species.

         a. The Qualitative Rankings

         In the qualitative component, the Service first surveyed the threats to blueback herring and categorized them under the five factors enumerated in 16 U.S.C. § 1533(a)(1). See Listing Decision, 78 Fed. Reg. at 48, 953-70. This part of the Listing Decision merely catalogued potential threats to blueback herring, without analyzing the magnitudes of those threats or the likelihood that they would cause extinction. See Id. Instead, the Service promised after each section that “the level of threat posed by these potential stressors [would be] evaluated further in the qualitative threats assessment below.” Id. at 48, 958; accord Id. at 48, 961, 48, 963, 48, 968, 48, 970.

         In the “qualitative threats assessment” itself, the Service asked nine of its team members to rank each potential threat on a scale from zero to five, according to perceived severity. Id. at 48, 970. For example, if a team member considered a threat to be of “low” severity, she would assign it a “one;” if she considered it to be of “high” severity, she would assign it a “five.” Id. After tabulating the results, the Service determined that its team believed “dams and other barriers” to be the most serious threats. See Id. at 48, 978. Although this “qualitative analysis” occupied thirty-two of the Listing Decision's fifty pages, it nowhere discussed, analyzed, or drew conclusions regarding whether these or any other threats posed a risk of extinction to the blueback herring.

         b.The Quantitative ...


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