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Buffalo Field Campaign v. Zinke

United States District Court, District of Columbia

January 31, 2018

BUFFALO FIELD CAMPAIGN et al., Plaintiffs,
v.
RYAN ZINKE et al., Defendants.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER United States District Judge

         While millions of bison once roamed the entire North American plains, most of the few thousand left in the wild today live in or near Yellowstone National Park. Hoping to protect these remaining bison, Buffalo Field Campaign and other environmental groups petitioned the Fish and Wildlife Service to add the Yellowstone bison population to the federal endangered species list. After the Service made a threshold “90-day” determination that their petition failed to present sufficient scientific evidence that listing the bison may be warranted, they brought suit under the Administrative Procedure Act, alleging that the Service's determination was arbitrary and capricious. Because the Court agrees that the Service applied an improper standard when evaluating Buffalo Field's petition, it will grant Buffalo Field's motion for summary judgment, deny the Service's cross-motion, and remand the case for the agency to conduct a new 90-day finding using the proper standard.

         I. Background

         A. The Endangered Species Act and Citizen Petitions

         The Endangered Species Act serves to protect threatened or endangered species. Under the Act, an “endangered” species is one that is “in danger of extinction throughout all or a significant portion of its range” and a “threatened” species is one 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(6), (20). A species can be endangered or threatened by any one of 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;” or (5) “other natural or manmade factors affecting its continued existence.” Id. § 1533(a)(1). The Secretary of the Interior is responsible for determining whether a species is endangered or threatened, and must base such determinations “solely on . . . the best scientific and commercial data available.” Id. § 1533(b)(1)(A).

         Individuals may petition the Secretary “to add a species to, or to remove a species from” the list of endangered and threatened species. Id. § 1533(b)(3)(A). When the Secretary receives such a petition, he is directed “[t]o the maximum extent practicable, within 90 days after receiving the petition” to “make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” Id. Service regulations at the relevant time defined “substantial information” as “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.” 50 C.F.R. § 424.14(b)(1) (2016).[1] If the Secretary concludes that there is substantial evidence, then the petition advances to further review and, within 12 months and following public comment, the Secretary must determine whether the petitioned action is warranted or not and, if it is warranted, publish a proposed implementing regulation. 16 U.S.C. § 1533(b)(3)(B). This additional consideration is known as a “12 month review.”

         The “substantial evidence” standard applied at the 90-day finding period is not a rigorous one. A petitioner need not present “conclusive evidence regarding” threats to a species. Humane Soc'y of U.S. v. Pritzker, 75 F.Supp.3d 1, 14 (D.D.C. 2014); see also Ctr. for Biological Diversity v. Morgenweck, 351 F.Supp.2d 1137, 1140 (D.D.C. 2004) (“[T]he ESA does not require such conclusive evidence that listing is warranted to go to the next step.”); Moden v. U.S. Fish & Wildlife Service, 281 F.Supp.2d 1193, 1203 (D. Or. 2003) (“[T]he standard in reviewing a petition to delist does not require conclusive evidence that delisting is warranted.”). And in making its 90-day determination, the Service is confined to the information contained in the petition or the Service's files. See, e.g., McCrary v. Gutierrez, 2010 WL 520762, at *2 (N.D. Cal. Feb. 8, 2010); Colorado River Cutthroat Trout v. Kempthorne, 448 F.Supp.2d 170, 176 (D.D.C. 2006).

         B. The Yellowstone Bison 90-Day Finding

         Before European settlers arrived, bison occupied millions of square kilometers across North America. A.R. 376. By 1889, however, they had been driven near extinction, with less than 1, 000 still alive in the wild. A.R. 371. Many of the few hundred remaining bison were captured and sent to zoos or private ranches. Id. Today, bison are nearly extinct from their historic range. A.R. 376. The largest extant herd of bison in the wild now occupies roughly 20, 000 square kilometers in the area around and inside Yellowstone National Park. A.R. 376. Moreover, the Yellowstone bison are the only significant herd of bison with no evidence of hybridization with cattle, thus representing a genetically important population. A.R. 379. As of June 2014, there were an estimated 4, 900 bison in the Yellowstone population. A.R. 548.

         The bison population resides principally, but not wholly, within the boundaries of Yellowstone National Park. A.R. 5. During the winter, bison can range outside the Park onto public and private lands. A.R. 376. Within its territory, the bison population is organized into two separate herds, known as the “Central” and “Northern” herds. A.R. 385. Some scientific literature has suggested that these herds are in fact genetically distinct populations of bison, each of which should be preserved. See Natalie D. Halbert et al., “Genetic Population Substructure in Bison at Yellowstone National Park, ” 103 J. Heredity 360, 367 (2012). Other experts have contended that the two herds were artificially created and thus no distinction should be maintained. See Patrick J. White & Rick L. Wallen, “Yellowstone Bison-Should We Preserve Artificial Population Substructure or Rely on Ecological Processes?”, 103 J. Heredity 751, 752 (2012).

         At present, the bison population in Yellowstone is listed neither as endangered nor threatened. Instead, it is managed by the Interagency Bison Management Plan for the State of Montana and Yellowstone National Park (the “IBMP” or “Management Plan”). The IBMP was adopted in 2000 after a decade of negotiation and planning among the National Park Service, the U.S. Department of Agriculture, and the State of Montana. A.R. 4064. The Plan sought “to continue research and take conservative but protective steps toward cooperative management of the bison while protecting Montana's brucellosis class-free status.” A.R. 4066. (Brucellosis is a disease that can be transmitted from bison to cattle and that causes reproductive failure in infected animals. A.R. 404.)

         The IBMP sets a target of 3, 000 for the entire population of bison in Yellowstone, covering both the Central and Northern herds. A.R. 4093. It also establishes boundaries for the population's territory. A.R. 4072. During the spring, pursuant to the Plan, bison are hazed back into the boundaries of Yellowstone National Park and off of public and private lands outside the Park. A.R. 4072. In addition, the Plan provides for the capture and testing of bison for brucellosis when they leave the Park during the winter migration. Id. at 4072-73. It also details the methods used to monitor pregnant bison, since one of the chief means of transmission of brucellosis is through the remains of miscarriages or live births. Id. at 4072. Finally, the Plan provides that if the bison population in late-winter/early-spring exceeds 3, 000, steps may be taken to reduce the population by capturing bison exiting the Park and removing them to quarantine or slaughter. A.R. 4093.

         On November 13, 2014, Western Watersheds Project and Buffalo Field Campaign filed a citizen petition (the “First Petition”) to list the population of bison in and around Yellowstone National Park as an endangered or threatened species. A.R. 370. A second petition was filed on March 2, 2015 by James Horsley (the “Second Petition”). A.R. 39. Two previous petitions, one submitted in 1999 and the other in 2011, had been denied by the U.S. Fish and Wildlife Service. A.R. 372.

         Both petitions contended that the Yellowstone bison population should be listed as threatened or endangered. A.R. 390 (First Petition); A.R. 85 (Second Petition). The First Petition argued that the bison population was threatened or endangered because of restrictions in its range due to historical loss, livestock grazing, infrastructure and development, and invasive species. A.R. 398-400. The First Petition cited overutilization from hunting, disease, and climate change as threats to the bison's survival. A.R. 402-06, 413. Finally, the First Petition contended that the existing regulatory mechanism-the IBMP-was inadequate, in part because it (1) was primarily designed to protect against brucellosis-which, the Petition contends, is not nearly as significant a threat from bison-to-cattle transmission as the IBMP claims-rather than to ensure the survival of the bison, and (2) fails to account for the two distinct genetic herds when setting a population target and thus sets too low a population target to ensure the genetic survival of both herds (and thereby the entire population). A.R. 406-10. The Second Petition took similar ...


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