State of Colorado, The v. United States Fish and Wildlife Service et al
Filing
33
ORDER Affirming the November 14, 2014 Final Listing Decision and Final Critical Habitat Designation Issued by The United States Fish and Wildlife Service, by Judge Christine M. Arguello on 9/27/2018. (swest)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-00286-CMA-STV
THE STATE OF COLORADO by and through the Colorado Department of Natural
Resource, the Division of Parks and Wildlife, and the Parks and Wildlife Commission,
Plaintiff,
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF GUNNISON,
COLORADO, and
GUNNISION COUNTY STOCKGROWERS’ ASSOCIATION, INC.,
Plaintiff-Intervenors, and
THE STATE OF UTAH, and
SAN JUAN COUNTY, UTAH,
Plaintiff-Intervenors,
v.
UNITED STATES FISH AND WILDLIFE SERVICE,
JAMES KURTH, in his official capacity as acting Director of the United States Fish and
Wildlife Service, and
RYAN ZINKE, in his official capacity as Secretary of the United States Department of
the Interior,
Defendants,
WILDEARTH GUARDIANS, and
DR. CLAIT E. BRAUN,
Defendant-Intervenors, and
CENTER FOR BIOLOGICAL DIVERSITY, and
WESTERN WATERSHEDS PROJECT,
Defendant-Intervenors.
ORDER AFFIRMING THE NOVEMBER 14, 2014 FINAL LISTING DECISION
AND FINAL CRITICAL HABITAT DESIGNATION ISSUED BY
THE UNITED STATES FISH AND WILDLIFE SERVICE
The protagonist in this case is the Gunnison sage-grouse, a native North
American bird, known for its elaborate mating rituals and expansive use of sagebrush
country. At issue is the degree of protection required to ensure the species’ long-term
conservation—a topic on which the Parties vehemently disagree and from which this
federal action stems. This appeal follows the November 14, 2014 issuance by the
United States Fish and Wildlife Service (the “Service”) 1 of Final Rules adding the
Gunnison sage-grouse to the List of Endangered and Threatened Wildlife (“Final
Rule”). 2 (AR at 199346–199518.) 3 Specifically, the Service listed the Gunnison sagegrouse species as “threatened” under the Endangered Species Act, 16 U.S.C. §§ 1531–
1541, and designated 1.4 million acres in Colorado and Utah as “critical habitat” for the
bird. (Id.) Numerous entities now challenge that Final Rule. Among them are the State
of Colorado; the Board of County Commissioners for the County of Gunnison, Colorado
and the Gunnison County Stockgrowers’ Association, Inc.; and the State of Utah and
1
The Defendants in this appeal are the Service, James Kurth (the acting Director of the
Service), and Ryan Zinke (the Secretary of the Department of the Interior) (“Federal
Defendants,” collectively).
2
The Court recognizes that the Service separately published the final “threatened” listing
decision and the final “critical” habitat designation. Throughout this Order, the Court nonetheless
refers to each publication as Final Rule.
3
The Administrative Record (“AR”), (Doc. # 108), in this case is comprised of 4 DVDs, totaling
nearly 300,000 pages. The Court cites to the bates number associated with each document,
without reference to the particular DVD containing it or the type of document being referenced.
2
San Juan County, Utah (Plaintiffs collectively). 4 (Doc. ## 143, 147, 148.) 5 Plaintiffs
contend that the Service erred in numerous ways—procedurally and substantively—and
request that this Court vacate the Final Rule. 6 Having thoroughly considered Plaintiffs’
arguments; Federal Defendants’ and Defendant-Intervenors’ responses; the entire
Administrative Record; and the applicable law, the Court affirms the Service’s
determinations and denies Plaintiffs’ request to vacate the Final Listing Rule.
I.
BACKGROUND
Gunnison sage-grouse are ground-dwelling birds considered obligate users of a
sagebrush landscape and thereby historically located in southwestern Colorado,
southeastern Utah, northwestern New Mexico, and northeastern Arizona. (AR at
199412.) At the time of the Final Rule, the range of the Gunnison sage-grouse included
only southwestern Colorado and southeastern Utah (Doc. ## 156 at 8; 143 at 13–14)
and the rangewide population of the species was estimated at 4,705 birds (AR at
4
The Center for Biological Diversity, Western Watersheds Project, WildEarth Guardians, and
Clait E. Braun also challenge the Final Rule and have likewise initiated federal litigation, Civil
Case Nos. 15-cv-00130 and 15-cv-00128. The Federal Defendants and those entities have
stipulated to a 30-month stay of that litigation to allow the Service to complete a Recovery Plan
for the Gunnison sage-grouse. (Doc. # 175-1.) In this litigation, the Plaintiffs in the stayed
litigation will be collectively referred to as “Defendant Intervenors” because, for the most part,
they disagree with Plaintiffs’ arguments here and filed briefing accordingly. The Court also notes
that Markle Interests, LLC, and P&F Lumber Company 2000, LLC filed an amicus curiae brief
supporting Plaintiffs’ position, which the Court has fully reviewed and considered.
5
Unless otherwise stated, Doc. # citations refer to the docket contained in Case No. 15-cv00130, which was consolidated with this action until April 30, 2018, when that litigation was
stayed.
6
As a preliminary matter, the Court disagrees with Defendants that Plaintiffs have improperly
incorporated by reference (and thereby waived) one another’s arguments. Indeed, this Court
ordered Plaintiffs to do just that: “[Plaintiff] shall coordinate with each other in order to avoid
unnecessary duplication of arguments.” (Doc. # 68 at 5.) The Court would look with disfavor on
the filing of duplicative briefs, particularly in a case this large, with over 300 pages of briefing.
3
199404–408) grouped into seven populations. Gunnison Basin (Unit 6) 7 population
contains most of the species, nearly 4,000 birds. The remaining birds are isolated in six
smaller “satellite” populations (ranging from 10 to 206 birds) identified as MonticelloDove Creek (Unit 1), Piñon Mesa (Unit 2), San Miguel Basin (Unit 3), Cerro SummitCimarron-Simms Mesa (Unit 4), Crawford (Unit 5), and Poncha Pass. (AR at 199401–
406.) All populations are located in Colorado, with the exception of Units 1 and 2, which
extend into Utah.
In January 2013, the Service published a rule (“Proposed Rule”) proposing to list
the Gunnison sage-grouse as “endangered” throughout its range and designating
1,704,227 acres as critical habitat. (AR at 69984–70037.) Over the course of the next
year, the Service opened four public comment periods, held three public hearings, and
elicited evaluation by five peer reviewers. (Doc. # 1156 at 9; AR at 199400–401.) After
reviewing the comments and evaluations, the Service modified the listing to
“threatened” and limited the critical habitat to 1,429,551 acres. (AR at 199346–98;
199399–518.)
In the instant litigation, Plaintiffs challenge the rule-making procedures utilized by
the Service, arguing primarily that the Service failed to disclose a critical scientific study
upon which it relied. Plaintiffs also challenge the merits of the threatened listing and
habitat designation, contending that the best available science does not support them.
The Court addresses each of these contentions below. But before doing so, the Court
7
In the final habitat designation, all of these populations, which the exception of Poncha Pass,
are identified as Critical Habitat Units. (AR at 199392–397.)
4
highlights the laws governing the Service’s actions and this Court’s review of the Final
Rule.
II.
GOVERNING LAW
A. ENDANGERED SPECIES ACT
The Endangered Species Act (“ESA”) was passed in 1973 to preserve
ecosystems upon which threatened and endangered species depend and “to halt and
reverse the trend toward species extinction.” Tennessee Valley Auth. v. Hill, 437 U.S.
153, 184 (1978); 16 U.S.C. § 1531(b). The ESA’s “core purpose” is to prevent the
extinction of a species by preserving and protecting the habitat upon which it depends
from the intrusive activities of humans. Tennessee Valley Auth., 437 U.S. at 184. The
Service is one of the two agencies tasked with implementing the ESA. The ESA
obligates the Service to list any species that qualifies as an “endangered” or
“threatened” species and to designate areas considered to be the species’ critical
habitat. 16 U.S.C. § 1533(a)(1), (3). Enumerated statutory criteria govern these
determinations, which must be made according to the “best scientific and commercial
data available.” Id. at § 1533(b)(1)(A).
B. NATIONAL ENVIRONMENTAL POLICY ACT
The National Environmental Policy Act (“NEPA”) is the centerpiece of
environmental regulation in the United States. It complements the ESA, Middle Rio
Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1230 (10th Cir. 2002), and
requires federal agencies to pause before committing to a project and consider the likely
environmental impacts of and reasonable alternatives to a preferred course of action.
5
See 42 U.S.C. § 4331(b) (congressional declaration of national environmental policy);
U.S. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756–57 (2004); Forest Guardians v.
U.S. Forest Serv., 495 F.3d 1162, 1172 (10th Cir. 2007). Agencies must take a “hard
look” at environmental consequences and satisfy various procedural and substantive
requirements before acting. Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 350–51 (1989). By focusing both agency and public attention on the environmental
effects of proposed actions, NEPA facilitates informed decision-making by agencies and
allows the political process to check those decisions. Marsh v. Or. Natural Res. Council,
490 U.S. 360, 371 (1989); Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S.
87, 97 (1983).
C. ADMINISTRATIVE PROCEDURES ACT
The Administrative Procedures Act (“APA”) sets forth the required procedures
that the Service must follow before listing a species under the ESA. Section 553
requires that an agency give notice of a proposed listing under the ESA. The notice
must set forth “either the terms or substance of the proposed rule or a description of the
subjects and issues involved,” 5 U.S.C. § 553(b), and “give interested persons an
opportunity to participate in the rule making through submission of written data, views,
or arguments,” id. at § 553(c).
The APA also gives this Court jurisdiction to review the Service’s determinations.
Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249 (10th Cir.1998). The Court
determines whether the agency “examined the relevant data and articulated a rational
connection between the facts found and the decision made.” Olenhouse v. Commodity
6
Credit Corp., 42 F.3d 1560, 1576 (10th Cir. 1994) (citing Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983)).
The Court will set aside an ESA determination only if the Court finds it to be
arbitrary, capricious, an abuse of discretion, without observance of procedure required
by law, or otherwise not in accordance with law pursuant to 5 U.S.C. § 706(2)(A).
Citizens’ Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1023 (10th
Cir. 2002).
While the standard of review is deferential to agencies, it does not “shield
[agency actions] from a thorough, probing, in-depth review.” Citizens to Pres. Overton
Park v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977). Agency actions can be set aside as arbitrary and
capricious for several reasons: the agency relied on factors Congress did not intend for
it to consider; the agency completely failed to consider pertinent aspects of the problem;
or the agency’s explanation for its action is counter to the evidence before it or is so
implausible that it can be neither a difference of opinion nor a product of agency
expertise. State Farm, 463 U.S. at 43.
However, “[t]he ultimate standard of review is a narrow one. The Court is not
empowered to substitute its judgment for that of the agency.” Volpe, 401 U.S. at 416.
The Court, moreover, grants controlling weight to the agency’s application and
interpretation of its own regulations, unless plainly erroneous. Thomas Jefferson v.
Shalala, 512 U.S. 504, 512 (1994). So long as the agency articulated a rational basis for
its interpretation and application, and considered all the relevant factors, the Court will
7
uphold the agency’s action. Copart, Inc. v. Admin. Review Bd., U.S. Dep’t of Labor, 495
F.3d 1197, 1202 (10th Cir. 2007).
III.
STANDING
Before turning to the merits of Plaintiffs’ challenges, the Court must address a
preliminary issue: Plaintiffs’ standing to pursue this case. Defendant-Intervenors argue
that the Plaintiffs lack Article III standing because they allege only “vague” and
hypothetical claims of injury. They also argue that Plaintiffs lack prudential standing
under NEPA because their requests would undermine NEPA’s purpose of protection,
not promote it. For the following reasons, the Court disagrees that Plaintiffs lack
standing to pursue their claims in this case.
A. LAW
Under Article III of the Constitution, which limits federal courts to deciding “cases”
or “controversies,” a party must suffer an “injury in fact” from a governmental action.
The party invoking federal jurisdiction bears the burden of
establishing an actual or imminent injury that is concrete and
particularized rather than conjectural or hypothetical; a
causal connection that is “fairly traceable” to the conduct
complained of; and a likelihood of redressability in the event
of a favorable decision.
Catron Cty. Bd. of Comm’rs v. U.S. Fish and Wildlife Serv., 75 F.3d 1429, 1433 (10th
Cir. 1996), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). The party
invoking federal jurisdiction bears the burden of establishing these elements. See
FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). When a plaintiff is itself an object of
the federal action being challenged, “there is ordinarily little question that the action or
inaction has caused him injury.” Lujan, 504 U.S. at 561–62. Counties and states, like
8
Plaintiffs, are often deemed the object of federal action or inaction under the ESA,
NEPA, and APA. E.g., Catron Cty. Bd. of Comm’rs., 75 F.3d at 1433 (county).
When the plaintiff is an association, the same three elements apply. Warth v.
Seldin, 422 U.S. 490, 511 (1975). An association has standing to sue even if it has not
been injured itself, so long as the association’s members satisfy the constitutional
minimum of Article III. An association has standing to bring suit on behalf of its
members when:
(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are
germane to the organization's purpose; and (c) neither the
claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.
Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977), (quoted by
Committee to Save Rio Hondo v. Lucero, 102 F.3d 445, 447 n.3 (10th Cir.1996)).
Because NEPA does not contain a private right of action for those seeking to
enforce its procedural requirements and a plaintiff must rely on the APA to bring such
an action, a plaintiff must establish prudential standing in addition to Article III standing
by showing that it has “suffer [ed] legal wrong” or that it is “adversely affected or
aggrieved . . . within the meaning of a relevant statute” by some final agency action.
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990). To establish such an adverse
effect under NEPA, Plaintiffs must establish they have suffered an injury in fact that falls
within NEPA’s “zone of interests.” United States v. Students Challenging Regulatory
Agency Procedures, 412 U.S. 669, 686 (1973).
9
B. ANALYSIS
The Court finds that Plaintiffs have met their burden to establish Article III and
prudential standing under NEPA.
Beginning with Article III standing, Plaintiffs have sufficiently alleged a concrete
and particularized injury in fact “fairly traceable” to the Final Rule that would likely be
redressed by a favorable decision. Each state and county Plaintiff (Colorado, Utah, San
Juan County, and Gunnison County) alleged specific facts highlighting impediments to
their sovereign and proprietary interests attributable to the Final Rule. See Illinois Dep't
of Transp. v. Hinson, 122 F.3d 370, 372 (7th Cir. 1997); see also Maine v. Taylor, 477
U.S. 131, 137 (1986) (“a State clearly has a legitimate interest in the continued
enforceability of its own statutes”); Massachusetts v. E.P.A., 549 U.S. 497, 518-19
(2007) (noting it is “of considerable relevance [when] the party seeking review is a
sovereign State and not … a private individual.”); see also Otter v. Salazar, 2012 WL
3257843 at *11 (D. Idaho, 2012) (finding state had standing to challenge listing in part
because of special status of states in the standing context). Plaintiffs have alleged an
increased risk of economic, environmental, and regulatory injury to government-owned
property and other proprietary interests, such as local governments’ ability to manage
and control land use, enforce health regulations, and protect natural resources. Each
Plaintiff set forth consequences of restricted land use imposed by the Final Rule as well
as the curtailment of county and state planning efforts, conservation programs, and
general governance. Plaintiffs have, therefore, sufficiently demonstrated standing.
10
Plaintiff Gunnison County Stockgrowers’ Association (the “Association”) (the only
non-government Plaintiff) also has Article III standing in this case. The Association is
comprised of “over 100 members of the local ranching community and is the primary
land-use organizational interest in the Gunnison Basin.” (Doc. ## 161 at 16; 23-1; 23-3;
23-4; 23-6.) The objectives and purpose of the Association include the protection of
range privileges and other interests of the stock-raising industry. Members of the
Association hold federal grazing leases on lands designated as critical habitat under the
Final Rule. (AR at 20357–58.) The Final Rule imposes new procedural and substantive
requirements on the maintenance and renewal of those leases and, more importantly,
the Association’s members’ land use and participation in certain conservation programs.
16 U.S.C. § 1536(a)(2). The Service’s own assessment revealed an economic impact of
$16,000 to grazing interests. (AR at 198278.) Members are also subject to civil and
criminal penalties for disregarding new restrictions. Based on these and other
allegations, the Association’s claimed harm, flowing from the Final Rule, is sufficient to
support Article III standing in this case.
With respect to prudential standing, the Court also finds that Plaintiffs have met
their burden to show that their injuries fall within the “zone of interests” protected by
NEPA. The Defendant-Intervenors’ only argument against prudential standing is that,
because Plaintiffs request that the Listing Rule be vacated, i.e. eliminating its
environmental protections, they cannot, as a matter of law, be furthering NEPA’s
protections. This argument is misplaced, and the Supreme Court has squarely rejected
it. In Bennett v. Spear, 520 U.S. 154, 166 (1997), the Court found “no textual basis for
11
saying that [NEPA’s] expans[ive] standing requirements appl[y] to environmentalists
alone.” The Court instead concluded that standing exists for plaintiffs “seeking to
prevent application of environmental restrictions” in addition to plaintiffs seeking “to
implement them.” Id. (extending prudential standing “not only to actions against the
Secretary asserting underenforcement under § 1533, but also to actions against the
Secretary asserting overenforcement under § 1533.”). Because plaintiffs who are
opposed to, and injured by, environmental regulation are permitted to challenge it under
well-established precedent, the Court finds that Plaintiffs have standing under NEPA.
Ultimately, under the ESA, Congress has conferred the “widest possible
standing” and authorizes suits with a “remarkable breadth.” Bennett, 520 U.S. at 164;
Sw. Ctr. for Biological Diversity v. Clark, 90 F. Supp. 2d 1300, 1307 (D.N.M. 1999).
Plaintiffs in this case clearly fall within that wide scope, and Defendant-Intervenors’
arguments are accordingly without merit.
Having determined that Plaintiffs’ standing is not an issue in this proceeding, the
Court moves to discuss the merits of Plaintiffs’ challenges to the Final Rule. The Court
begins by addressing Plaintiffs’ concerns with the Service’s rule-making procedures,
thereafter moving to the substantive, science-based challenges to the listing decision
and habitat designation.
II.
PROCEDURAL CHALLENGE
Plaintiffs argue that the Service violated the procedural requirements of the APA
by failing to provide notice of, and opportunity for public comment on, a Population
12
Viability Analysis (“PVA”) 8 conducted by Amy Davis in 2012 (the “Davis 2012 Study” or
“Study”). Plaintiffs argue that this failure constitutes reversible error. The Court
disagrees.
A. NOTICE REQUIREMENTS
Among the information that must be revealed for public evaluation are the
“technical studies and data” upon which the agency relies. See Solite Corp. v. E.P.A.,
952 F.2d 473, 484 (D.C. Cir. 1991). If, during the rule-making process, the Agency
encounters supplemental data or studies, a new notice and comment period is not
always required; “consistent with the APA, an agency may use ‘supplementary’ data,
unavailable during the notice and comment period, that ‘expands on and confirms’
information contained in the proposed rulemaking and addresses ‘alleged deficiencies’
in the pre-existing data, so long as no prejudice is shown.” Solite, 952 F.2d at 484. Such
“supplementary” information is distinct from “provid[ing] entirely new information critical
to the [agency]’s determination.” Chamber of Commerce of U.S. v. S.E.C., 443 F.3d
890, 900 (D.C. Cir. 2006) (citations omitted).
Several cases are illustrative. In Solite, 952 F.2d at 484, the Environmental
Protection Agency (EPA) replaced one report with a later report as the source of data
forming the basis for final quantitative measurements in a protective ESA listing. 952
F.2d at 484. The D.C. Circuit held that the EPA had not violated notice and comment
provisions because the new data enabled the EPA to respond to concerns and confirm
8
A PVA is a species-specific method of risk assessment that is frequently used in conservation
biology to determine the relative probability that a population will go extinct within a given
number of years. (Doc. # 147 at 5, AR at 199498.)
13
prior calculations. Further, the methodology used to analyze the data remained
constant. Id. at 485; see also Cmty. Nutrition Inst. v. Block, 749 F.2d 50, 57–58 (D.C.
Cir. 1984) (no violation of notice and comment requirements when unavailable
supplemental studies were a response to comments which discussed a methodological
flaw in prior studies); In re FCC 11-161, 753 F.3d 1015, 1140 (10th Cir. 2014) (no
violation for addition of over 110 undisclosed documents).
In contrast, in Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1402–04 (9th
Cir. 1995), the Ninth Circuit reversed a final listing where an undisclosed study “did not
merely supplement or confirm existing data” but provided “unique information that was
not duplicated in other reports” and upon which the Service relied in its ultimate listing
determination. The Ninth Circuit found that the new study provided the “key analysis” to
support the final listing and the opportunity for public comment was particularly crucial
because “the accuracy of [the] material . . . [wa]s in question.” Id. at 1403.
Ultimately, the cases make clear that, when the agency relies on supplementary
evidence without a showing of prejudice by an interested party, the procedural
requirements of the APA are satisfied without further opportunity for comment, provided
that the agency’s response constitutes a “logical outgrowth” of the rule initially
proposed. See Solite, 952 F.2d at 484; Envtl. Integrity Project v. E.P.A., 425 F.3d 992,
996 (D.C. Cir. 2005).
B. THE RELEVANT STUDIES
In the Proposed Rule, the Service placed weight on a 2005 PVA conducted by
Dr. Phil Miller when analyzing one of the enumerated listing criteria. (AR at 70029–31.)
14
The purpose of that PVA was to assist “in evaluating the relative risk of extinction for
each [sage-grouse] population under the conditions at that time.” (AR at 70030.) The
2005 PVA predicted the relative probability of extinction under various management
scenarios by looking at, among other things, sage-grouse life history, population
dynamics, demographic parameters, deterministic forces, reproductive habits, genetics,
and more. (AR at 11261, 70030.) The 2005 PVA did not consider several external
threats acting on the species, such as habitat loss or fragmentation, and the Service so
noted. (Id. at 70030.) Based this 2005 PVA, coupled with various other sources, the
Service determined, as relevant here, that although “the Gunnison Basin sage-grouse is
likely to persist long term in the absence of threats acting on it,” the other six sagegrouse populations “are at a high risk of extirpation due to small population size” which
impacts the entire species’ “ability to persist.” (Id. at 11261.)
In the Final Rule, the Service turned to the Davis 2012 Study which the Service
concedes it did not disclose or reopen for comment. Like the 2005 PVA, the Davis 2012
Study sought to assess the survival and viability rates of the Gunnison sage-grouse.
(AR at 69393–95.) Dr. Davis looked at many of the same factors as Dr. Miller, including
population dynamics, demographic parameters, and reproductive rates. However, she
focused on the Gunnison Basin population rather than the species at large. (AR at
199502.) She also included in her analysis additional years, considered external threats,
and assessed more factors affecting the growth or decline of the species, such as
juvenile recruitment and bird translocation efforts. (AR at 41440–43.) The Davis 2012
Study ultimately demonstrated to the Service, in pertinent part, that the Gunnison Basin
15
population was not as stable as previously thought—adding to the conclusion that the
entire species is in decline.
C. ANALYSIS
The Court finds no procedural violation for several reasons: (1) the Davis 2012
Study’s findings permissibly supplemented previously existing data, i.e. logically
outgrew from it; (2) the Study was not the critical basis on which the Service relied to
reach its ultimate listing determination, and (3) Plaintiffs were not prejudiced from nondisclosure.
First, the Davis 2012 Study supplemented the data obtained in the 2005 PVA. It
had the same general purpose and assessed many similar extinction factors. It also
filled in gaps noted by the Service, such as external threats on the species. Plaintiffs
nonetheless harp on one main difference between the two studies: that Dr. Miller found
the Gunnison Basin population to have a less than a 1% extinction rate over the next 50
years while Dr. Davis found the Gunnison Basis population’s mean extinction time to be
58 years. But a mere difference in conclusion does not necessarily mean that the later
study could not have supplemented findings in the former one. And, those differing
conclusions did not significantly alter the Service’s ultimate finding about the Gunnison
sage-grouse’s overall declining viability, which remained unchanged from the Proposed
Rule to the Final Rule. The Service determined both times that the “overall declining
trends in the . . . satellite populations” create concern that the species is not stable
rangewide. (AR at 70030, 199502.) Thus, the Court finds that Davis 2012 Study
16
expanded, supplemented, and logically grew from the findings in the Proposed Rule,
rendering the failure of the Service to disclose it not erroneous.
Second, the Plaintiffs’ overstate the critical nature of the Davis 2012 Study to the
Final Rule. Although the Service often deemed it “the most current and best available
scientific information regarding the viability of Gunnison sage-grouse,” the Service also
limited its primary discussion of the Study to Factor E (only one factor in the five-factor
analysis), acknowledged various weaknesses and uncertainties in the Study, and
expressly stated that it was “also utilizing the [2005] PVA in our consideration of the
foreseeable future.” (AR at 199502–504, 199511.) Moreover Plaintiffs’ “reliance”
argument does not make logical sense. The Proposed Rule, which they contend relied
on the 2005 PVA Study finding the Gunnison Basin population stable, proposed an
endangered listing for the species; the Final Rule, which they contend relied on the
Davis 2012 Study finding the Gunnison Basin population in slight decline, reduced the
listing to threatened. It makes no logical sense to conclude that a study finding an
increased extinction probability caused the Service to lessen the severity of the listing.
The Davis 2012 Study was not as critical to the Final Rule as Plaintiffs contend.
Third, and most importantly, even if the Service somehow erred in failing to
reopen the comment period to provide notice of the Davis 2012 Study, Plaintiffs fail to
demonstrate how this error prejudiced them. To begin, Plaintiffs had access to the study
during the notice and comment period. See Bear Valley Mut. Water Co. v. Jewell, 790
F.3d 977, 993 (9th Cir. 2015) (noting that appellants were aware of, and therefore able
to comment on, the challenged study during notice and comment period). Indeed, the
17
record reflects that Colorado alerted the Service to the Study in December 2012 (AR at
5855) and several of the Plaintiffs commented on the study to the Service during the
notice and comment period. For example, in its second sets of comments to the
Service, Gunnison County referenced the Davis 2012 Study numerous times, urged the
Service to depend on its findings, and criticized the Service for not considering the
Davis 2012 Study in the Proposed Rule. (AR at 91282–413). Gunnison County touted
Dr. Davis’s research as the “most current and longest demographic data collected for
the [Gunnison sage grouse],” the “best scientific information available,” and “better” than
other PVAs presented to the Service. (AR at 91282, 912315–18, 91379–80, 91386.)
The Gunnison County Stockgrowers’ Association also urged the Service to consider the
Davis 2012 Study, as did Colorado, highlighting errors in the previously considered
PVAs as corrected in the Davis 2012 Study. (AR at 73479, 232246.) Plaintiffs can
hardly argue that they had no notice of the Study and no opportunity to comment on its
findings.
Moreover, Plaintiffs’ arguments with respect to the reliability and accuracy of the
Study were expressly considered by the Service before the Final Rule was issued.
Plaintiffs’ primary challenge to Dr. Davis’s data is that she improperly included several
years of population decline for the Gunnison Basin sage-grouse and that, had she
added in a year of population growth or conducted the study at a different time, her
results would have showed a trend toward an increasing population rather than a
18
declining one. 9 (Doc. # 33–34.) Plaintiff Colorado presented this same argument to the
Service during the comment period, stating “it is fundamentally important to note that
the [Davis 2012] data used were from a short time period when [Gunnison sage-grouse]
numbers were declining slightly after reaching record numbers in the Gunnison
Basin.” 10 (AR at 232246.) The Service expressly acknowledged this problem with the
research in the Final Rule, recognizing issues with the Davis 2012 Study because it was
based on a “time when the population was experiencing slight decline” and adding that
“had [the Study] been conducted a few years earlier or a few years later, a different
trend across time could have resulted.” (AR at 199500–502.) Moreover, the data
Plaintiffs presently present to challenge the viability of the Study is the same data
contained in the Davis 2012 Study itself and, therefore, was clearly before the Service
at the time of the listing decision. Because Plaintiffs present no new information or
challenges to the Davis 2012 Study that were not already presented to and considered
by the Service, Plaintiffs fail to demonstrate how another opportunity to comment on the
Study would change or affect the outcome of the listing decision. The Court, therefore,
finds no prejudice has occurred.
9
However, the Court notes that the Davis 2012 Study expressly found that adding a year of
population growth to Dr. Davis’s findings about the Gunnison Basin population would still result
in a minimum extinction time of 41 years, (AR 41539, 41556), which is sooner than the Service’s
58-year extinction time set forth in the Final Rule.
10 Plaintiffs also support this argument by emphasizing the findings in a 2014 manuscript by Dr.
Davis (“Davis et al. (in press)”), which supplemented some of Dr. Davis’s previous findings by
highlighting possible issues with examining short-term demographic data. (AR at 199413,
195646–664.) The Final Rule makes clear that the Service examined this 2014 manuscript,
thoroughly considering its findings, and took into account Plaintiffs’ comments on it. (AR at
195641, 199496.) Moreover, the 2014 manuscript does not wholly undo the findings in the Davis
2012 Study as Plaintiffs insinuate. That manuscript still states that the Gunnison Basin
population is “currently declining” with intervals of “a stable population,” such as between 1996–
2012—a “near stable” time frame. (AR at 195649, 195658, 195662.)
19
Finding no procedural errors, the Court turns to Plaintiffs’ substantive challenges
to the merits of the Final Rule, beginning with their challenges to the “threatened” listing
determination.
III.
LISTING DETERMINATION
Plaintiffs challenge the merits of the “threatened” listing on several grounds. They
argue that many of the Service’s claimed threats to the species are unsupported by
science, particularly with respect to the large, stable Gunnison Basin population, which
Plaintiffs claim could alone secure the entire Gunnison sage-grouse species. Plaintiffs
also object to the Service’s conclusion that ongoing and future local conservation efforts
were insufficient to prevent listing the bird as threatened. Plaintiffs add that the Service’s
findings are “speculative,” “overstat[ed],” and unreasonable and that the Service’s
conclusion that the Gunnison sage-grouse is “threatened” is consequently erroneous.
To succeed, Plaintiffs must demonstrate that the Service’s determinations were arbitrary
and capricious, lacking in reason and scientific support. Plaintiffs have not so
demonstrated.
A. LAW
The Service utilizes enumerated statutory criteria to determine whether to list a
species as “threatened” or “endangered” and, thus, in need of protection. 16 U.S.C. §
1533. A species is “endangered” if it is “in danger of extinction throughout all or a
significant portion of its range.” Id. at §§ 1532(6), (20). A species is “threatened” if it is
“likely to become an endangered species within the foreseeable future throughout all or
20
a significant portion of its range.” Id. A species may be deemed endangered or
threatened because of any one of the following five factors, or a combination thereof:
(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). Ultimately, the Service must determine which species are
threatened or endangered “solely on the basis of the best scientific and commercial
data available to [it].” Id. at § 1533(b)(1)(A). The Service must also consider “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.” Id. In 2003, this latter requirement—
that the Service consider all conservation efforts—was supplemented by the Policy for
Evaluation of Conservation Efforts When Making Listing Decisions (“PECE”). See
PECE, 68 Fed. Reg. 15100 (Mar. 28, 2003). The PECE identifies criteria that the
Service uses for assessing prospective or nascent conservation efforts that have either
not yet been implemented or have not yet proven effective. Id.
B. ANALYSIS
Having thoroughly reviewed the issue, the Court finds that the Service’s decision
to list the Gunnison sage-grouse as threatened was not arbitrary and capricious. To the
contrary, substantial evidence supports that the near-extinction of the six satellite
populations, coupled with the declining Gunnison Basin population, causes the entire
species to face extinction “in the foreseeable future.”
21
1. Threats Facing the Gunnison Sage-grouse
The primary threats challenged by Plaintiffs—each of which corresponds to one
of the five statutory criteria—are increasing habitat decline and climate change (Factor
A), drought (Factor E), West Nile virus (Factor C), and declining genetic health and
small population size (Factor E). 11 (AR at 199435–513.) The Court discusses each
threat and Plaintiffs’ corresponding challenges in turn.
a. Habitat Decline
The Service defines habitat decline as including habitat loss (the reduction or
destruction of habitat), degradation (the reduction of habitat quality), and fragmentation
(the breaking apart of contiguous habitat). (AR at 199435.) The Service found that all
three processes are affecting the Gunnison sage-grouse’s habitat, which consists of
large areas of sagebrush. (AR at 199437.) In so concluding, the Service cited numerous
studies demonstrating that Gunnison sage-grouse’s current range is 10% of its original
size and is decreasing further at a concerning rate. The Service also detailed the
following issues contributing to habitat decline in all seven populations:
•
Residential and infrastructural development, including roads, utility corridors,
and fences;
11
The Final Rule also reflects a reasoned and supported analysis that included many other
threats to the species, such as the encroachment of invasive plants, as well as considerations
not found to be substantial threats, including, but not limited to, agriculture conversion (Factor
A), hunting (Factor B), and nonconsumptive recreational activities (Factor E). (AR at 199470,
199476–477, 199507–508.) In reviewing the Final Rule, however, the Court need not reiterate
every finding of the Service, nor review every document in the record. Instead, the Court
focuses only on the Plaintiffs’ objections, the Defendants’ responses, and the record relevant to
them. See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000) (A district court
is “not obligated to comb the record” to make a party’s argument for him.)
22
•
Substantial increase of human population—“a trend expected to continue into
the future”;
•
Invasive plants, fire, mineral development, piñon-juniper encroachment, and
large-scale water development—the cumulative presence of which constitute
a habitat threat; and
•
Livestock management inconsistent with local ecological conditions causing
the loss of nesting cover, a decrease in native vegetation, and an increased
incursion by invasive plants.
(AR at 199435–199476.)
The Service also thoroughly explained that sage-grouse exhibit low adaptability
to habitat changes, making habitat loss, degradation, and fragmentation among the
more serious threats facing the bird. (AR at 199475.) The Service added that all seven
populations are mostly isolated, with limited migration and gene flow between them,
increasing the likelihood of extinction associated with habitat decline. (Id.) The Service
even examined changes to the Gunnison sage-grouse habitat that do not appear
threatening, such as the increase in nonrenewable energy. (Id.) Overall, the Service
concluded that “based on the best scientific information available,” current and
anticipated habitat threats and their cumulative effects contribute to the overall decline
of the Gunnison sage-grouse and pose a substantial threat to the species “throughout
its range.” (Id. at 199476.)
This conclusion was not arbitrary and capricious; it was thoroughly reasoned and
supported by relevant data. Indeed, the Service referenced more than a dozen scientific
studies to support its findings—none of which are challenged by Plaintiffs. Plaintiffs
instead highlight several sentences from the Final Rule suggesting that residential
development is a small concern. Plaintiffs, however, provide this Court with no studies,
23
scientific or otherwise, to solidify their contention, nor do they cite to any support for
their argument in the record, despite stating that “the only evidence in the record”
supports it. (Id.) Plaintiffs also assert that, in the Proposed Rule, the Service
overestimated human population growth. (Doc. # 143 at 15–17.) Even if true, an error in
the Proposed Rule provides no grounds for vacating a Final Rule that is based on
accurate population estimates, coupled with numerous other threats to the habitat and
supported by a reasonable analysis with a scientific basis. Plaintiffs’ contentions amount
to little more than a disagreement with the Service’s ultimate conclusion—which
constitutes insufficient grounds to reverse.
b. Climate Change and Drought
In a thorough, lengthy analysis, the Service discussed the concerning increase in
temperatures in Colorado, where “warming is occurring more rapidly than elsewhere in
the country.” (AR at 199462.) Citing various studies, including projections from the
National Center for Atmospheric Research, the Service explained that future projections
for western Colorado indicate that “average summer (June through September)
temperature could increase by 2.8° C (5.1° F) and average winter (October through
March) temperature could increase by 2.2° C (4.0° F) by 2050”—with a corresponding
decrease in summer precipitation. (Id.) The Service noted that increasing temperatures
create drought conditions that negatively impact the late summer brood-rearing habitat
of the sage-grouse, which necessarily consists of moist, riparian areas. (Id.) The
Service found that such changes could “result in a significant long-term reduction in the
distribution of sagebrush communities,” including in the Gunnison Basin. (Id.) The
24
Service found that, “because Gunnison sage-grouse are sagebrush obligates, loss of
sagebrush would result in a reduction of suitable habitat and negatively impact the
species.” (Id.) Citing to numerous accredited sources, the Service then discussed
various other consequences of increased temperatures and prolonged drought that
would affect the Gunnison sage-grouse rangewide, including fire, cheatgrass invasion,
and insect reduction. (Id.)
Plaintiffs do not dispute that temperatures are rising and precipitation, lessening.
Plaintiffs also admit to some climate-and drought-related issues, such as a decrease in
riparian systems upon which sage-grouse depend for brood-rearing. Plaintiffs
nonetheless contend that these changes do not significantly impact the Gunnison Basin
population because of its low elevation and resiliency, as well as the protective
conservation efforts in place. (AR at 25222.) Again, Plaintiffs’ arguments amount to little
more than a disagreement with the science upon which the Service relied to reach a
contrary conclusion and the Service’s assessment of local conservation efforts (which
this Court discusses at length below). But this Court may not vacate a listing simply
because evidence may support a contrary conclusion, unless the Service’s decision
lacked reasonable and substantial support. That is not the case here. See Custer Cty.
Action Ass’n v. Garvey, 256 F.3d 1024, 1036 (10th Cir. 2001) (“We cannot displace the
agencies’ choice between two conflicting views, even if we would have made a different
choice had the matter been before us de novo.”); Wyoming Farm Bureau Fed’n v.
Babbitt, 199 F.3d 1224, 1241 (10th Cir. 2000) (“[T]he mere presence of contradictory
evidence does not invalidate the [a]gencies’ actions or decisions.”). To the contrary, the
25
record demonstrates an affirmative association between past drought conditions in
Colorado and reductions to all Gunnison sage-grouse populations, including the
Gunnison Basin population which experienced a 30 percent decline during a serious
past drought. That the Gunnison Basin population rebounded after this drought does
not, by itself, render erroneous or arbitrary the Service’s predictions that impending
drought may nonetheless cause a decline in that population again. Nor does it
necessarily mean that a rebound will occur again, particularly considering the Service’s
supported findings with respect to other increasing threats facing the species.
Ultimately, the Court finds that the Service’s assessment of an increased threat
from climate change and drought conditions was not arbitrary and capricious, nor does
it support reversal.
c. West Nile Virus
The Court concludes that the Service’s findings with respect to West Nile virus
are reasonable and supported by the record. The Court, thus, declines to disturb them.
Plaintiffs mischaracterize the Service’s conclusion with respect to West Nile
virus. The Service did not attribute the entire threatened listing to the presence of this
disease. Indeed, the Service assessed West Nile virus to be a future threat, not a
present threat. (AR at 199480.) The Service found Gunnison sage-grouse “susceptible”
to West Nile but also recognized that the virus “has not been documented in Gunnison
sage-grouse.” (Id.) Furthermore, the Service’s analysis of West Nile was a limited
portion of the Service’s overall discussion as to the general threat of disease and other
significant threats to the bird.
26
The Service found that West Nile virus, which is present across the majority of
the sage-grouse range, has resulted in significant mortality in the greater sage-grouse
population and other taxonomically related birds; thus, indicating that the sage-grouse is
biologically susceptible to the disease. (AR at 199480.) Although the Service recognized
that the risk of West Nile was currently less concerning in low-elevation areas, like the
Gunnison Basin, referencing its discussion in Factor A, the Service noted that warming
temperatures are expected to increase that risk. (Id. at 199481, 1999461–63.)
The Service also relied upon studies supporting the position that a “West Nile
virus outbreak in any [other] Gunnison sage-grouse population . . . would challenge their
survival.” (Id.) Plaintiffs’ arguments in no way debunk these findings, nor do they render
them unreasonable. The level of deference this Court must accord these findings is
especially high because the challenged decision involves technical and scientific
matters within the agency’s area of expertise. See Citizens For Alts. To Radioactive
Dumping v. U.S. Dep’t of Energy, 485 F.3d 1091, 1098 (10th Cir. 2007). The Court
accordingly finds no error.
d. Small Population Size
The Court next reviews the Service’s assessment of the risks associated with the
small size of Gunnison sage-grouse populations, ultimately finding no error.
The Service defined “effective population size” as the “number of individuals
contributing their genes to the next generation.” (AR at 199498.) The Service noted that
a decrease in effective population size correlates to a loss in genetic diversity, reduced
fitness through inbreeding depression, and reduced adaptive potential. (Id.) The Service
27
then cited to several studies—which Plaintiffs do not challenge—suggesting that a
population size of 5,000 sage-grouse may be necessary to avoid these risks. (Id.) It is
undisputed that the six satellite population sizes at the time of the Final Rule ranged
from 10 to 206 birds; the Gunnison Basin population was nearly 4,000 birds.
The Service continued with a lengthy and thorough analysis of three population
studies concluding that the six satellite populations are seriously compromised in size
and viability. Scientific analysis demonstrated that “small population sizes, declining
population trends, low genetic diversity, geographic isolation, and overall low viability
. . . indicate that long-term persistence and evolutionary or adaptive potential are
compromised in [all] six satellite populations.” (AR at 199503.) Although the Service
then found the larger Gunnison Basin population to be more resilient, it also found that
this larger population remains in decline due to numerous threats facing the bird. This
conclusion was supported in part by the population viability findings of Dr. Davis. The
Service also found that the Gunnison Basin population alone could not save the species
from foreseeable extinction if all six smaller populations were extirpated. Research
showed that a loss of all six satellite populations would cause a loss of more than 700
birds, 24% of the rangewide genetic pool. The Service found that this loss would
substantially weaken the entire species because the satellite populations critically
increase species abundance and redundancy, minimize the threat of catastrophic
events by being widely distributed across the landscape, and provide genetic diversity
not found in the Gunnison Basin population. (AR at 199374.) Thus, due to the serious
decline of the satellite populations, the increasing threats to the Gunnison Basin
28
population, and the need for multiple populations across a broad geographic range, the
Service found the entire Gunnison sage-grouse species faced a rate of population
decline insufficient for long-term viability. (AR at 199504.) In reaching this conclusion,
the Service examined the relevant data and articulated a rational connection between
the facts found, the studies supporting them, and the decision made. The Service’s
analysis was not, therefore, arbitrary and capricious.
Plaintiffs nonetheless argue that, in reaching this conclusion, the Service (1)
improperly relied on the Davis 2012 Study, which Plaintiffs contend is unreasonable and
contradicted by the evidence, and (2) arbitrarily found that the Gunnison Basin could not
sustain the entire species. The Court rejects both arguments.
First, the Service provided a lengthy and thorough analysis of three PVAs,
including the 2005 PVA, the Davis 2012 Study (as supplemented by the 2014 Davis et
al. in press), and a 2005 study conducted by Dr. Edward Garton (the “Garton PVA”). (Id.
at 199498–199503.) The Service recognized the benefits and limitations of each PVA,
including, as explained in Part III.C, the limitations of the Davis 2012 Study that Plaintiffs
highlight. The Service’s finding that the more recent Davis 2012 Study was the most
reliable of the three PVAs, is not erroneous. The Davis 2012 Study (as supplemented
by the 2014 Davis et al. in press) is not only the most recent PVA, but also, the most
relevant in that it focuses specifically on Gunnison sage-grouse data and addresses the
impact of external threats such as drought and disease. (Doc. # 156 at 35.) Even if this
Court were to find the other studies more persuasive, the Court could not reverse on
those grounds. See Custer Cty. Action Ass’n, 256 F.3d at 1036 (“We cannot displace
29
the agencies’ choice between two conflicting views, even if we would have made a
different choice had the matter been before us de novo.”)
Plaintiffs’ second argument—regarding the perceived strength of the large
Gunnison Basin population—also does not support reversal. Plaintiffs cite to several
studies, as well as the Service’s own conclusions about the stability of that singular
population and its ability to sustain the entire species without the satellite birds. 12 As this
Court has noted, the presence of dueling or contradictory studies is insufficient to
support displacing the Service’s listing, provided it was not arbitrary or capricious, an
abuse of discretion, or otherwise not in accordance with law. The Service’s analysis of
serious threats to the entire Gunnison sage-grouse species, including the Gunnison
Basin population, was thoroughly reasoned and supported by science. The Service’s
analysis of the import of the satellite populations to the sustainability of the entire
species was likewise well-reasoned and supported. The consequent conclusion that,
despite the slower decline of the larger Gunnison Basin population, the species faced
extinction in the foreseeable future was, accordingly, not erroneous.
12
Several other arguments proffered by Plaintiffs mischaracterize the Service’s conclusion
about the need for redundancy. For example, Plaintiffs argue that redundancy cannot form the
sole basis for listing a species. The Federal Defendants agree, as does this Court. However, the
Service’s listing was not based solely on redundancy. The Service determined that a need for
redundancy, combined with myriad other threats to the species, which this Court has found
reasonable and supported, contributed to the threatened listing. (AR at 199498–13.) Plaintiffs’
myopic redundancy arguments are accordingly misplaced, and the Court summarily rejects
them.
30
2. Insufficient Regulatory Mechanisms
Plaintiffs next argue that the Service acted unreasonably in dismissing the
effectiveness of the regulatory mechanisms in place in Gunnison Basin. Analyzing the
current and prospective efforts separately, the Court disagrees.
a. Current Efforts
In making the listing decision, the Service is obligated to consider all local
conservation efforts being made to protect a species. Plaintiffs challenge the Service’s
analysis of several ongoing efforts: the Candidate Conservation Agreement with
Assurances (“CCAA”), the Candidate Conservation Agreement (“CCA”), and other
Gunnison County conservation measures. The Court addresses each in turn.
i.
Candidate Conservation Agreement with Assurances (“CCAA”) and
Candidate Conservation Agreement (“CCA”)
In 1999, the Service and National Marine Fisheries Service (“NMFS”) established
a policy to encourage states and private actors to undertake voluntary efforts to
conserve “candidate species,” which are those species being considered for an ESA
listing. Under the CCAA framework, in return for implementing agreed-upon
conservation measures, state and private entities receive “assurances from [the
Service] that additional conservation measures will not be required . . . should the
species become listed in the future.” Final Policy for Candidate Conservation
Agreements with Assurances, 64 Fed.Reg. 32,726, 32,727 (June 17, 1999). Although
CCAAs are designed to “remov[e] any need to list the covered species,” the mere
existence of a CCAA will not preclude listing. Id. Over time, CCAAs have become a
common mechanism for promoting conservation of numerous candidate species. Id.
31
Created in 2006, the Colorado Gunnison sage-grouse CCAA is an agreement
between the Service and the Colorado Division of Wildlife (now the CPW) with the
relevant goal of reducing threats to Gunnison sage-grouse by protecting, maintaining,
and enhancing or restoring non-federally-owned Gunnison sage-grouse habitat in
Colorado. (Doc. # 143 at 23; AR at 14195–14230.) As pertinent here, private
landowners who enroll in the CCAA are required to engage in specified habitat
protection measures on their property in exchange for assurances that, if the species is
listed, they will reap the benefits of the CCAA permit and not be required to engage in
additional conservation measures. (AR at 14195–98.) Once a species is listed under the
ESA, the CCAA is closed to additional enrollees. (AR at 199471.)
Likewise, Colorado Conservation Agreements (“CCAs”) are also encouraged by
the federal government. CCAs are formal, voluntary agreements between the Service
and one or more parties to address the conservation needs of a candidate species or
species likely to become listed in the near future. (AR at 199472.) Like the CCAA,
participants voluntarily commit to implement specific actions designed to remove or
reduce threats so that a listing may not be necessary. (Id.) Unlike CCAAs, however,
CCAs do not provide assurances that additional conservation measures will not be
required if a species is listed or critical habitat is designated. (Id.)
In 2012, federal land management agencies in the Gunnison Basin signed the
CCA at issue in this case to promote conservation of the Gunnison Basin sage-grouse
32
population. (AR at 88471.) 13 This CCA covers all lands managed by federal agencies in
the Gunnison Basin (roughly two-thirds of the occupied habitat); it does not cover areas
harboring the satellite populations. (AR at 88474.) The CCA serves as a project screen
and requires the implementation of conservation measures associated with three
federal land-use programs: Development (roads, transmission lines, etc.), recreation
(trails and special recreation permits, etc.), and livestock grazing (permit renewals and
operations). (AR at 199472.) Many larger or impact intensive projects, such as the
construction of a new transmission line or energy development, are not covered under
the CCA. (Id.) Nonetheless, the CCA covers the “most common land use authorizations
where the Gunnison sage-grouse occur on Federal lands in the Gunnison Basin.” (AR
at 88473, 199472.)
In the Final Rule, the Service thoroughly analyzed both the efforts and the impact
of the CCAA and the CCA. It lauded the CCAA as “net gain” for the Gunnison sagegrouse and praised it for having made “great strides to enroll landowners, protect
habitat, and alleviate threats to the Gunnison sage-grouse.” (AR at 199471–199472.)
The Service also commended the members of the CCA for “their efforts in the design of
the CCA and implementation of conservation measures to benefit the Gunnison sagegrouse.” (AR at 199472.) The Service found that the CCA would “provide a long-term,
net benefit for the Gunnison sage-grouse on a landscape scale.” (Id.)
Nonetheless, the Service determined that neither of these agreements was
sufficient to overcome the substantial threats facing the survival of species. With respect
13
The Service conducted an ESA Section 7 formal conference on the CCA and, in 2013, issued
its conference opinion and signed the CCA. (AR at 199472.)
33
to the CCAA, the Service found problematic the voluntary nature of the program, its
limited 20-year duration, and the fact that the Agreement did not address many of the
identified threats to the sage-grouse or its habitat. (AR at 13797, 199472.) These
findings are not arbitrary and capricious. Indeed, the CCAA is a limited, voluntary
conservation measure; it is not legally binding, nor are the incentives sufficient to ensure
regulatory certainty. Landowners who enroll can withdraw at any time, and for any
reason. The CCAA also does not preclude landowners from selling their property to
developers, to whom the assurances, incentives, and promises under the CCAA would
not transfer. The CCAA does not take into account climate change, drought, disease,
and small population issues—all of which reasonably support the threatened listing.
Likewise, the Court finds no error in the Service’s determination that the CCA is
not effective at reducing the threats to the species rangewide, such that the listing is not
warranted. (AR at 199473.) The Service’s conclusion hinged on the fact that the CCA
did not apply to the Gunnison sage-grouse rangewide; it was limited to the Gunnison
Basin population, neglecting the most critically declining 22% of the species. (AR at
199472–199473.) As this Court has already noted, the Service found numerous threats
affecting the six satellite populations that could result in a foreseeable extinction of all
the birds. The Service’s assessment of these efforts was thorough, providing a clear
connection to the record and the facts of this case. Reversal is therefore unwarranted
on these grounds.
34
ii. Other Gunnison County Conservation Measures
Plaintiffs further contend that the Service “erroneously discounted the
effectiveness of Gunnison County’s conservation mechanisms,” including:
numerous land use and other police-power regulatory
mechanisms to protect Gunnison sage-grouse, including an
umbrella land use zoning regime; requirements to review
permit applications on any parcel within 0.60 miles of a
Gunnison sage-grouse lek or occupied habitat; that oil and
gas operations [do] not cause significant degradation of
sensitive wildlife habitat; that applications for a road-access
permits within sage-grouse habitat must receive special
scrutiny and include specific conditions in an approval; and
authorizations to temporarily close roads for [the] protection
of Gunnison sage-grouse.
(Doc. # 143 at 25–26.) Plaintiffs also highlight the creation and implementation of a
“Habitat Prioritization Tool” that identifies and targets the highest priority sage-grouse
habitat for protection for consideration in land-use regulations. (Id. at 26.)
Contrary to Plaintiffs assertions, the Service did not “discount” these ongoing
efforts. The Service discussed the Gunnison County sage-grouse regulations and
efforts at length, ultimately commending the County for its “regulatory measures” and
recognizing that they have “helped to reduce some of the negative effects of human
development and infrastructure on the species and habitat.” (AR at 199487.) The
Service nonetheless found that those measures were insufficient to prevent listing the
bird as threatened because they do not entirely prevent human development in sagegrouse habitat. The Service consequently found that the current regulations do not
“address or require offsetting or mitigation for the habitat loss and fragmentation that
cannot be avoided and that occurs as a result of permitted development in the species’
35
habitat.” (Id.) Plaintiffs have not countered these conclusions in this appeal. Plaintiffs’
briefing describes Gunnison County measures as “consider[ing]” the nature of the sagegrouse habitat when assessing applications for construction within that habitat; it also
discusses “mitigation measures implemented” to protect “priority habitat” from adverse
impacts of construction. (Doc. # 143 at 26.) The Court recognizes that the case study
referenced by Plaintiffs details mitigation measures for habitat loss and plans for habitat
enhancement that appear to be part of Gunnison County’s review process for
construction in or near sage-grouse habitat. (AR at 67772–67784.) But it appears the
review process merely reduces the impacts of human development; it does not prevent
all human development in the habitat range or mitigate habitat loss when human
development is necessary. All of these are critical, reasonable, and supported concerns
of the Service.
Further, even if the Gunnison County measures were seen as sufficient to
counter the threat of human population and infrastructure growth, the measures do not
address the other documented threats, thoroughly explicated above, to the Gunnison
sage-grouse rangewide.
Accordingly, the Court finds that Plaintiffs have not met their burden of showing
that the Service’s assessment of the Gunnison County conservation efforts was
arbitrary, capricious, or otherwise lacking in reason or support.
b. Prospective Efforts
Pursuant to the Policy for Evaluation of Conservation Efforts When Making
Listing Decisions (“PECE”), in addition to reviewing existing conservation efforts, the
36
Service is also required to evaluate formalized efforts “that have not yet been
implemented or have been implemented, but have not yet demonstrated whether they
are effective.” (AR at 9123). The PECE sets forth the mechanism for doing so. It
specifically identifies criteria the Service uses for evaluating nascent formalized
conservation efforts. (Id.) “Formalized” efforts mean efforts that are “identified in
conservation agreements, conservation plans, management plans, or similar documents
developed by Federal agencies, State and local governments, Tribal organizations,
businesses, organizations, and individuals.” (AR at 9123.) The Service need not
evaluate informal conservation agreements, such as “when a property owner
implements conservation measures” simply out of concern “without any specific intent to
affect a listing decision.” (Id.)
In conducting a PECE analysis, the Service must first determine whether a
formalized conservation effort is “sufficiently certain” to be implemented and effective.
(AR 9124.). If so, then the Service evaluates whether the effort contributes to the listing
decision (positively or negatively). If not, then the Service need not consider the effort in
making its listing decision. To determine whether a formalized conservation effort is
“sufficiently certain” to be implemented, the Service considers, among other things, the
following nine criteria:
•
Identification of the conservation effort, the party(ies) to the agreement or plan
who will implement the effort, and the staffing, funding level, funding source,
and other resources necessary to implement the effort;
•
Description of the legal authority of the party(ies) to the agreement or plan to
implement the formalized conservation effort, and the commitment to proceed
with the conservation effort;
37
•
Description of the legal procedural requirements (e.g., environmental review)
necessary to implement the effort, and provision of information indicating that
fulfillment of these requirements does not preclude commitment to the effort;
•
Identification of authorizations (e.g., permits, landowner permission)
necessary to implement the conservation effort, and provision of a high level
of certainty that the party(ies) to the agreement or plan who will implement the
effort will obtain these authorizations;
•
Identification of the type and level of voluntary participation (e.g., number of
landowners allowing entry to their land, or number of participants agreeing to
change management practices and acreage involved) necessary to
implement the conservation effort, and provision of a high level of certainty is
provided that the party(ies) to the agreement or plan who will implement the
conservation effort will obtain that level of voluntary participation (e.g., an
explanation of how incentives to be provided will result in the necessary level
of voluntary participation);
•
In-place regulatory mechanisms (e.g., laws, regulations, ordinances)
necessary to implement the conservation effort;
•
Provision of a high level of certainty that the party(ies) to the agreement or
plan who will implement the conservation effort will obtain the necessary
funding;
•
Provision of an implementation schedule (including incremental completion
dates) for the conservation effort; and
•
Approved-of conservation agreement or plan that includes the conservation
effort by all parties to the agreement or plan.
(AR at 9125.) To determine whether a conservation effort is “sufficiently certain” to be
effective, the Service considers, among other things, the following six criteria:
•
Description of the nature and extent of threats being addressed by the
conservation effort are described, and how the conservation effort reduces
the threats is described;
•
Whether explicit incremental objectives for the conservation effort and dates
for achieving them are stated;
38
•
Detailed identification of the steps necessary to implement the conservation
effort;
•
Identification of quantifiable, scientifically valid parameters that will
demonstrate achievement of objectives and standards for these parameters
by which progress will be measured;
•
Identification of provisions for monitoring and reporting progress on
implementation (based on compliance with the implementation schedule) and
effectiveness (based on evaluation of quantifiable parameters) of the
conservation effort; and
•
Incorporation of principles of adaptive management.
(Id.) To the extent that a conservation agreement contains numerous conservation
efforts that are not sufficiently certain to be implemented and effective, these efforts
“cannot contribute to a determination that a listing is unnecessary or a determination to
list as threatened, rather than endangered.” (Id.)
The Service’s PECE evaluation is entitled to “some deference” by this Court.
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
Plaintiffs’ objections to the Service’s PECE evaluation can be boiled down to the
following three concerns: that the Service failed to properly evaluate: (1) the 2013
Conservation Agreement executed by the Governors of Colorado and Utah and all
counties comprising the sage-grouse range; (2) other conservation efforts presented to
the Service during the comment period, including a list of 118 local efforts provided by
the Director of Colorado Parks and Wildlife (the “CPW”); and (3) prospective land
enrollments under the CCAA. In addition, Plaintiffs contend that the Service improperly
reviewed these Agreements in a “perfunctory” and “conclusive” manner, without
conducting a PECE evaluation of each discrete conservation effort contained therein or
39
presenting its findings to the public. (Doc. # 147 at 20.) The Court addresses each
challenge in turn, ultimately finding no error.
i.
2013 Conservation Agreement
Plaintiff argues that the Service should have conducted a separate PECE
evaluation for each of the alleged conservation efforts described “in the body of the
[Conservation Agreement] . . . and in its appendix.” (Doc. # 161 at 3.) The Court
disagrees. The Court finds that Conservation Agreement does not describe formalized
conservation efforts in need of separate PECE analyses and, consequently, the Service
properly evaluated the Conservation Agreement as a whole.
The stated purpose of the Conservation Agreement is to
identify and implement measures and strategies to help
reach the goal of increasing the current abundance and
vitality of Gunnison sage-grouse and their habitat by
providing coordinated guidance, [R]ecommendations, and a
rangewide perspective as well as analysis of threats, and
specific Rangewide and local assessments goals, strategy
goals, implementation tools, and targets.
(AR at 67655.) The Conservation Agreement itself does not detail any new conservation
efforts or plans; it appears to be little more than a general agreement to foster
“cooperation, collaboration, and partnership” in the monitoring of other programs
already in existence. (Id. at 67654.) Eleven counties are then listed as having programs
in place, but the Agreement does not name those programs, much less describe
them. 14 (Id. at 67659.) It would hardly be logical to call these unnamed, unlisted
programs “formalized conservation efforts” subject to an individual PECE evaluation.
14
Of note, the Conservation Agreement references appendices that allegedly describe each of
40
With respect to the formalized conservation efforts that were referenced in the
Conservation Agreement—those contained in a 2005 Rangewide Conservation Plan,
the CCAA, and the CCA 15—except for the prospective enrollment section of the CCAA
(which is discussed below), none of those agreements (and the efforts therein) were
new or recently implemented at the time of the listing. And a PECE evaluation applies
only to efforts “that have not yet been implemented” or have been recently implemented
“but have not yet demonstrated whether they are effective.” (AR at 9123.) The Service
did not therefore need to conduct an individual PECE evaluation on the efforts
contained on those agreements. The Service, however, was required to address those
efforts, and it did—at length—in the “Conservation Programs and Efforts” section as
well as under “Factor A” and “Factor D” of the Final Rule. (AR at 199470–199496.)
Moreover, the Conservation Agreement, as a whole, does not describe the
information necessary to meet many of the PECE criteria for substantial certainty of
“implementation” and “effectiveness,” including funding sources, staffing needs,
these programs. The Court has reviewed the record in search of these appendices (A–N) but
cannot locate them. Nor has Plaintiff provided any citations to the record where these
appendices might be located. See Mitchell, 218 F.3d at 1199 (A district court is “not obligated to
comb the record” to make a party’s argument for him.)
15
The Conservation Agreement also references a Gunnison Basic Strategic Committee, a
Memorandum of Understanding (MOU), and a Gunnison Sage Grouse Conservation Trust.
None of those, however, warrant a PECE evaluation because none is a formalized conservation
effort. The first is a committee or working group, not a plan, agreement, or conservation effort.
The second, the MOU, is likewise bereft of any formalized efforts, instead stating intentions to
“continue informal[]. . . discussions,” “take coordinated actions,” and “when reasonable . . . enter
into formal intergovernmental agreements.” The Trust is simply a reserve of money; the Trust’s
mission statement contains an intention to “develop pilot projects” but none of those projects are
listed, much less described. To the extent Plaintiffs believe otherwise—that these three “joint
efforts” should have received a PECE evaluation, they have not so stated or submitted any
argument in support thereof. Instead, their arguments are vague and general, mentioning none
of these programs by name.
41
implementation schedule, incremental objectives and dates for achieving them, and
provisions for monitoring and reporting implementation progress. (AR at 121825.) The
Conservation Agreement also fails to address many threats affecting the Gunnison
sage-grouse, including human disturbance, climate change, drought, fire, and disease.
(AR at 199234.) The desire to reduce or eliminate the nature and severity “of threats to
a species” are a prerequisite to any PECE analysis. (AR at 9124.)
Accordingly, the Service’s approach to evaluating the Conservation Agreement
was not erroneous, and Plaintiffs’ contrary arguments are misplaced.
ii. Other Conservation Efforts Identified During Comment Period
Plaintiffs next argue that the Service should have conducted an individual PECE
analysis of the conservation efforts described in “three detailed comment letters” during
the rule making process as well as the 118 efforts listed in a letter sent from the Director
of CPW to the Regional Director of the Service. The Court disagrees that an individual
PECE evaluation was required for each of the conservation efforts alluded to in this
correspondence.
With respect to the “three detailed comment letters,” Plaintiffs’ arguments are
vague, conclusory, and generalized. Plaintiffs point this Court to three documents in the
record, totaling over 400 pages, and argue that the Service should have evaluated the
“many” conservation efforts contained therein, including “efforts such as mandatory
local government land-use control mechanisms, employment of a species conservation
coordinator, habitat enhancement research projects, establishment of a ‘Wildlife
Conservation Society Climate Adaptation Fund,’ updated numbers reflecting growing
42
enrollments under the CCAA, and an array of other rangewide conservation efforts.”
(Doc. # 161 at 7–8.) Aside from enrollments under the CCAA, it is unclear to this Court
whether any of these efforts were “formalized conservation efforts” set forth in a formal
agreement, plan, or other similar document. To the extent Plaintiffs contend that the
three comment letters satisfy the “agreement” requirement, the Court disagrees; such
an expansive definition would erode the limited application of the PECE and create an
inordinate burden on the Service.
A similar analysis applies to the letter from the CPW to the Service. That letter is
not a formal agreement or plan. And neither was the “chart and list identifying 118
separate local” conservation efforts attached to the letter. Indeed, Plaintiffs have made
no argument to support the position that any of these 118 efforts—which are merely
listed and nowhere described—were set forth in a “conservation agreement[],
conservation plan[], management plan[], or similar document[] developed by Federal
agencies, State and local governments, Tribal organizations, businesses, organizations,
and individuals” containing “formalized conservation efforts.” (AR at 9110.) And this
Court does not so find. Without some showing that these 118 “actions” constitute
“formalized conservation efforts” subject to evaluation under PECE, Plaintiffs argument
that the Service was required to individually evaluate them lacks merit.
iii. Prospective Land Enrollments under the CCAA
Finally, the Court rejects Plaintiffs’ challenge the Service’s failure to conduct a
PECE analysis of prospective land enrollments under the CCAA. Citing to Permian
Basin Petroleum Ass’n v. Dep’t of the Interior, Plaintiffs argue that the Service was
43
required to conduct a PECE evaluation on the impact of future enrollments to the
756,562 acres of lands that remained un-enrolled under the CCAA. 127 F. Supp. 3d
700, 705–06 (W.D. Tex. 2015).
Permian Basin Petroleum, however, is distinguishable from this case because
the Service in Permian Basin, which was presented with an entirely new CCAA that had
not yet been implemented, was provided with future “enrollment numbers” and “pending
applications for enrollment.” Id. at 705, 714, 716–717 (repeatedly highlighting the
importance of these materials). The District Court vacated the final listing because the
Service summarily rejected the value of the CCAA without making any projections as to
the number of landowners anticipated to enroll. Id.
In contrast to Permian Basin Petroleum, the Service in this case, had before it a
CCAA that had been in existence for nearly a decade. Moreover, Plaintiffs presented
the Service with no information regarding the number of prospective enrollees and what
conservation efforts those landowners would choose to implement on their respective
properties, which can differ substantially by landowner. (Doc. # 156 at 43.) Without
some indication of who would enroll and the measures they would select, there were no
numbers, projections, or proposed efforts for the Service to evaluate. 16 (Id.) The Service
cannot be expected to make an “educated forecast” on future enrollees and their effect
16
Even on appeal, Plaintiffs fail to provide any indication of how many future enrollees to expect
and what sort of conservation selections they might choose. There is no evidence in the record
of pending applications or enrollment projections. Nor is there evidence of any studies
attempting to hypothesize those numbers based on the frequency of past enrollments and their
level of participation.
44
on a listing decision without any information being supplied. The Court therefore finds
no error in the Service’s evaluation of prospective enrollment under the CCAA.
C. CONCLUSION AS TO “THREATENED” LISTING
In sum, based on all the reasons set forth above, the Court finds that the
Service’s final listing decision was not arbitrary, capricious, or lacking in a strong
scientific basis. The Service thoughtfully progressed through the required analysis
under the ESA, supporting its findings with scientific analyses and data. Affording it the
highest deference, the Court finds that the Service’s ultimate conclusion that the
Gunnison sage-grouse is “threatened” under the ESA was supported by reason and not
arbitrarily drawn, nor was it contrary to law. The Court, therefore, affirms the final listing
decision. (AR at 199399–517.)
The Court next turns to address Plaintiffs’ challenges to the critical habitat
designation.
IV.
CRITICAL HABITAT DESIGNATION
Plaintiffs present three main challenges to the critical habitat designation: they
argue that the Service (1) “vastly over-designated critical habitat”; (2) conducted a
“sham” analysis under NEPA; and (3) failed to consider all economic impacts of the
designation. (Doc. # 148 at 6, 11, 16.) Again, to succeed on these challenges, Plaintiffs
must demonstrate that the Service’s decisions and actions were lacking in reason and
scientific support and, thus, arbitrary and capricious. For the following reasons, Plaintiffs
do not prevail.
45
A. LAW
The ESA gives designation of critical habitat the same priority as the listing. It
requires that critical habitat, specified to the maximum extent prudent and determinable,
“shall” be made concurrently with listing the species as endangered or threatened.
16 U.S.C. § 1533(3)(A); 50 C.F.R. § 424.12(a). The Act compels the habitat designation
despite other methods of protecting the species the Secretary might consider more
beneficial. 16 U.S.C. § 1533(3)(A).
The ESA expressly envisions two types of critical habitat: areas occupied by the
endangered species at the time it is listed as endangered and areas not occupied by the
species at the time of listing. See 16 U.S.C. § 1532(5)(A)(i)–(ii). To designate an
occupied area as critical habitat, the Service must demonstrate that the area contains
“those physical or biological features . . . essential to the conservation of the species,”
i.e. it must contain the species’ primary constituent elements (“PCEs”). Id. at §
1532(5)(A)(i). To designate unoccupied areas, the Service must determine that (1) the
occupied areas are inadequate, and (2) designated unoccupied areas are “essential for
the conservation of the species.” Id. at § 1532(5)(A)(ii). “Congress did not define
‘essential’ but, rather, delegated to the Secretary the authority to make that
determination.” Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 827 F.3d
452, 464 (5th Cir. 2016), cert. granted sub nom. Weyerhaeuser Co. v. U.S. Fish &
Wildlife Serv., 138 S. Ct. 924 (2018).
The Service must designate critical habitat based on “the best scientific data
available and after taking into consideration the economic impact, the impact on
46
national security, and any other relevant impact, of specifying any particular area as
critical habitat.” 16 U.S.C. § 1533(b)(2). “When examining this kind of scientific
determination, as opposed to simple findings of fact, a reviewing court must generally
be at its most deferential.” Balt. Gas & Elec. Co., 462 U.S. at 103; Medina Cty. Envtl.
Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010) (“Where an
agency’s particular technical expertise is involved, we are at our most deferential in
reviewing the agency’s findings.”).
B. HABITAT DESIGNATION
In a thorough and well-reasoned rule, the Service designated as critical habitat
for the Gunnison sage-grouse an estimated 1,621,008 acres in southwestern Colorado
and southeastern Utah, comprised of 923,314 acres of occupied habitat (57 percent)
and 697,994 acres unoccupied land (43 percent). In reaching this designation, the
Service cited numerous, varied, and peer-reviewed studies; provided a detailed
explanation of the physical and biological features of the sage-grouse; and identified all
primary constituent elements (“PCEs”) essential for the conservation of the species.
Specifically, the Service explained that the Gunnison sage-grouse requires the
following physical and biological features:
•
Space for Individual and Population Growth and For Normal Behavior. Sagegrouse depend on large, interconnected expanses of sagebrush plant
communities that contain a herbaceous understory. The birds also require a
variety of habitat types, driven in part by breeding activities, but the use of any
non-sagebrush habitats is dependent on sagebrush habitats being nearby.
(AR at 199364–199365.) Moreover, Gunnison sage-grouse make “relatively
large movements on an annual basis due to the need for a diverse range of
seasonal habitat types.” (Id.) Maximum reported movements have ranged
from 17.3 km to 18.5 km. Ultimately, the bird requires a “large scale annual
habitat.” (Id.)
47
•
Food, Water, Air, Light, Minerals, or Other Nutritional or Physical
Requirements: Although food resources used by the Gunnison sage-grouse
vary throughout the year, the birds’ diet is still “composed of nearly 100
percent sagebrush in the winter”, while forbs, insects, and grasses are
“important dietary components during the remainder of the year.” (AR at
199365.) Areas rich in forbs and insects are particularly important for female
reproductive success and chick survival—which are “essential to the
persistence of Gunnison sage-grouse populations.” (Id.) In summer through
late fall, the herbaceous understory of the sagebrush typically dries out and
the Gunnison sage-grouse must forage in more mesic habitats, such as
springs and meadows, located adjacent to sagebrush plant communities. (Id.
at 199365–199366.)
•
Cover or Shelter: Predation, including from raptor and nest predators, such as
golden eagles, red foxes, bobcats, weasels, badgers, and coyotes, is a
common cause of sage-grouse mortality. (AR at 199366.) Gunnison sagegrouse therefore require “adequate shrub and herbaceous structure to
provide year-round escape and hiding cover, as well as areas that provide
concealment of nests and broods during the breeding season.” (Id.) Sagegrouse also require protection from severe colds and depend “nearly
exclusively” on sage-brush communities for thermal cover during the winter
season. (Id.)
•
Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring:
Unlike the protective areas discussed above, lek sites (areas where sagegrouse gather during the breeding season) can be located in relatively open
areas with good visibility and low vegetation structure. (AR at 199367.)
Nesting success, however, usually requires higher shrub density and forb and
grass cover. (Id.) Early brood-rearing habitats are typically found close to
nesting sites, but can also be located in mesic or riparian areas. (Id.)
The Service also discussed the historical diminution of the Gunnison sagegrouse range, which at the time of the listing, constituted a mere 8.5 percent of the
historical range. 17
Based on this information, the Service determined that the PCEs for the
Gunnison sage-grouse are:
17
The Service’s critical habitat range increases that percentage to 12 percent.
48
PCE 1: Extensive sage-brush landscape capable of supporting an entire
population of Gunnison sage-grouse.
PCE 2: Breeding habitat with varying levels of coverage from sagebrush, other
shrubs, grasses, and forbs.
PCE 3: Summer to late fall habitat containing different levels of sagebrush, other
shrubs, grasses, and forbs as well as riparian-type areas.
PCE 4: Winter habitat comprised of at least 30 to 40 percent sagebrush canopy
cover.
PCE 5: Alternative, mesic habitats such as riparian communities, springs, seeps,
and meadows.
(AR at 199368–69.) The Service then used these PCEs to identify occupied habitat
areas at the time of the listing that contained the features essential to the conservation
of the species. (AR at 199369–70.) Relying heavily on maps submitted by the CPW and
Utah Division of Wildlife Resources (UDWR), containing information derived from sagegrouse sightings, biological expertise, and other data sources, the Service delineated
occupied habitat that met the landscape specific PCE 1 and one or more of the
seasonally specific PCEs 2–5. (Id.) This resulted in a designation of 923,314 occupied
habitat acres.
Although Plaintiffs broadly challenge this designation, they provide no argument
or authority (scientific or otherwise) to support a reversal. Plaintiffs also fail to specify
what portion of the occupied acreage they believe was improperly designated. It is not
this Court’s responsibility to comb through the Burj Khalifa of agency records searching
for flaws in the Service’s reasoning. The Court instead finds that the Service’s
designation—which was accompanied by significant scientific explanation supported by
49
numerous unchallenged studies, the ESA, and the record—was not arbitrary or
capricious.
The Service then turned to examine whether unoccupied habitat also needed to
be designated as critical, ultimately deciding in the affirmative because the occupied
acreage alone was “inadequate for the conservation of the species.” (AR at 199371.)
Plaintiffs object to this finding, arguing that it makes no “logical sense” and is supported
by “absolutely no scientific evidence.” (Doc. # 148 at 7.) The Court finds these
objections without merit. The Service supported its conclusion with several scientific
studies, finding that populations of 500 birds or more are considered viable and “a
habitat area in excess of 100,000 acres is needed to support a population of 500 birds.”
(AR 11473, 11565, 199371.) The Service added that “several of the satellite populations
remain in decline and all remain at population size estimates that indicate concern for
their viability.” (AR at 199406; 199371–72.) And even if they are viable, three out of six
(ranging from 35,015 to 44,678 acres) contain significantly less acreage than the
minimal acreage required to sustain a long-term viable population; two others barely
cross the minimal threshold (containing 101,750 acres and 112,543 acres). (AR at
199371–72.) This issue is compounded by the habitat threats detailed in Part III.B.1
above, which could render the occupied habitat of these satellite populations even
smaller. Although the Gunnison Basin acreage is significantly larger (592,168 acres), as
this Court has already concluded, the Gunnison Basin population alone is insufficient to
support the longevity of the species rangewide; the satellite species are critical to the
long-term viability of the species and their already-insufficient habitats are in decline.
50
Based on this and other information detailed by the Service, the Court finds no
error in the Service’s conclusion that occupied habitat alone is inadequate for the
conservation of the species.
Turning next to the delineation of critical unoccupied habitat, the Service
considered four criteria: (1) distribution and species range; (2) potential occupancy of
the species; (3) proximity and potential connectivity to occupied habitats; and (4) habitat
suitability. (AR at 199370–199372.) Applying the first criteria, the Service limited
unoccupied land designations to those within the species’ historical range. (AR at
199370.) Second, using habitat maps supplied by CPW and UDWR, the Service
considered whether unoccupied land could serve as a potential habitat. (Id.) The
Service then added and subtracted from this potential habitat based on the third criteria,
considering only unoccupied land within 18.5 km of occupied habitat, which several
studies found to be the bird’s maximum rangewide seasonal movement. (Id. at 199370–
199371.) The Service discussed the importance of designating nearby unoccupied
lands to serve as corridors or movement areas between populations and to increase
gene flow, connectivity, and expansion of otherwise isolated populations of birds. (Id.)
Applying the fourth criteria, the Service determined that, based on numerous scientific
studies, Gunnison sage-grouse “habitat suitability is dependent on large landscapes
(18- to 30-km radius area) where 25 percent or greater of the area is dominated by
sagebrush cover.” (AR at 199371.) At finer scales (a 1.5-km radius area) and during
breeding and nesting seasons, the bird requires at least 5 percent to be dominated by
sage brush. (Id.)
51
Using these criteria, the Service designated unoccupied lands rangewide. The
Service found much of the designated unoccupied land potentially suitable as habitat for
the sage-grouse. Some of the designated unoccupied land, however, was determined to
be “locally unsuitable as habitat” for the Gunnison sage-grouse. The Service
nonetheless designated those unsuitable lands as “essential” for the bird for several
reasons, including that they (1) fell within the critical habitat large landscape scale and
therefore part of the larger, indivisible sage-grouse habitat; (2) would facilitate bird
movements and dispersal because they were located adjacent to or between critical
surrounding sage-grouse populations, reducing population isolation and increasing
genetic exchange; and/or (3) could be re-worked to enhance needed sagebrush
communities and other PCEs, making them suitable for habitation in the future. (AR at
199375–199379.) Ultimately, the Service designated 697,994 acres of unoccupied land
rangewide.
Plaintiffs challenge this designation of unoccupied lands, specifically the portions
of the designated areas presently found unsuitable as sage-grouse habitat. Plaintiffs’
arguments are premised on their general belief that the Service is prohibited from
designating, as critical habitat, lands that are unsuitable as habitat, i.e. contain no
PCEs, because those lands could not logically qualify as “essential” to sage-grouse
conservation pursuant to 16 U.S.C. § 1532(5)(A)(ii). The Court disagrees with Plaintiffs’
reading of the statute. The statute does not require that the designated unoccupied land
be habitable; the plain language of the statute reads that unoccupied land be “essential
to the conservation of the species.” Id. Congress has likewise not defined essential to
52
mean “habitable.” Indeed, there is no habitability requirement in the text of the ESA or in
its implementing regulations. Nor has any Circuit Court interpreted it to so require. C.f.
Bear Valley, 790 F.3d at 994 (upholding the designation of unoccupied critical habitat,
even though the area was not habitable by the endangered species). The Fifth Circuit
has expressly decided that “the plain text of the ESA does not require [unoccupied land]
to be habitable.” In Markle Interests, the Fifth Circuit held that “the plain text of the ESA
does not require [unoccupied land] to be habitable.” Markle Interests, L.L.C. v. United
States Fish & Wildlife Serv., 827 F.3d 452, 467 (5th Cir. 2016). 18 The panel reasoned
that imputing a habitability requirement onto unoccupied lands would “effectively
conflate[] the standard for designating unoccupied land with the standard for
designating occupied land.” Id. (emphasis in original). The Court finds the Fifth Circuit’s
reasoning persuasive. Indeed, to require habitability or PCEs to necessarily exist on
unoccupied land before designation, would “equate what Congress plainly differentiates:
the ESA defines two distinct types of critical habitat, occupied and unoccupied; only
occupied habitat must contain all of the relevant [physical and biological features.]” Id.
(alternations in original). See Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913, 919
(2015) (“Congress generally acts intentionally when it uses particular language in one
section of a statute but omits it in another.”). To avoid a result contrary to the plain
language of the statute, the Court rejects Plaintiffs’ argument that unoccupied areas
18
Plaintiffs assert that the Supreme Court’s decision to grant certiorari “casts doubt on the
validity of the majority opinion in Markle Interests and other precedent relied on by Federal
Defendants.” (Doc. # 164 at 2.) Not necessarily. Plaintiffs provide no legal authority to support
the argument that granting certiorari implies a pending reversal. It is equally possible that the
Supreme Court granted certiorari on the issue to affirm the Markle Interests decision, rendering
it binding precedent throughout the country.
53
presently unsuitable as habitat for the Gunnison sage-grouse may not be designated as
essential for its conservation. 19 Here, the Service provided scientific data, as set forth
above, to support its finding that unoccupied areas are essential for conservation of the
Gunnison sage-grouse. The Court accordingly concludes that the Service did not overdesignate such land.
In sum, because the Service’s critical habitat designation was supported with
reason and significant scientific and evidentiary support, the Court finds that it was not
arbitrary and capricious and reversal is not warranted.
C. NEPA ANALYSIS
Plaintiffs next argue that the Service’s NEPA analysis was a sham process which
unlawfully excluded reasonable alternatives with the goal of inexorably leading to a
predetermined outcome. Plaintiffs add that these flaws are fatal to the critical habitat
designation. (Doc. # 148 at 11–17.) Having thoroughly reviewed this issue, the Court
disagrees that the Service’s NEPA analysis was erroneous.
19
The Amicus Curiae brief argues that allowing unsuitable habitat to be considered “essential”
for the species makes the standard for unoccupied habitat less onerous or demanding than the
standard for designating occupied habitat, which, they contend, flies in the face of substantial
case law. Arizona Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010) (“The
statute . . . impos[es] a more onerous procedure on the designation of unoccupied areas by
requiring . . . a showing that unoccupied areas are essential.”). The Court disagrees with that
argument. As the Final Rule in this case indicates, designating unoccupied habitat remains
demanding. To designate occupied habitat, the Service reviewed where the sage-grouse
resided and assessed the necessary elements for their prolonged survival there. But, to
designate unoccupied habitat “essential” for the species, the Service first had to determine that
the occupied land was insufficient; it then had to look beyond the obvious, inhabited lands; wade
through four scientifically-driven criteria; delineate, using the best available science, obscure
landscape required to sustain the species long term; and then support that delineation by
demonstrating that land is essential for the conservation of the bird. This was no small task, and
certainly one worthy of the descriptor, “onerous.”
54
1. Law
For proposed actions the environmental effects of which are uncertain, NEPA
requires an agency to prepare an Environmental Assessment (“EA”) to determine
whether a significant effect will result from the proposed action. 42 U.S.C. § 4332(2)(E);
see also 40 C.F.R. § 1508.9; Oregon Nat. Res. Council v. Lyng, 882 F.2d 1417, 1421–
22 (9th Cir.1989). Based upon the EA, the agency must either make a “finding of no
significant impact” (“FONSI”) or determine if a significant environmental impact will
result, thus requiring the preparation of a more in-depth Environmental Impact
Statement (“EIS”). 40 C.F.R. § 1508.9(a); Comm. to Preserve Boomer Lake Park v.
Dept. of Transp., 4 F.3d 1543, 1554 (10th Cir.1993). An EA need only include “brief
discussions” of the need for the proposal, alternatives, and environmental impacts of
both the proposed action and its alternatives. 40 C.F.R. § 1508.9(b); Town of Superior
v. U.S. Fish & Wildlife Serv., 913 F. Supp. 2d 1087, 1112 (D. Colo. 2012), aff’d sub
nom. WildEarth Guardians v. U.S. Fish & Wildlife Serv., 784 F.3d 677 (10th Cir. 2015).
Federal agencies must comply with NEPA “to the fullest extent possible.” 42
U.S.C. § 4332. NEPA does not, however, require particular results but merely a
particular process. Robertson, 490 U.S. at 350; see also 40 C.F.R. 1500.1(c).
2. Analysis
Pursuant to NEPA, the Service produced an EA in this case. (AR at 198238–
198292.) In so doing, contrary to Plaintiff’s contention, the Service expressly considered
three potential alternatives to its final critical habitat designation. (AR at 198254–
198257.) The Service considered designating (1) only on occupied land; (2) only on
55
public lands; and (3) only in the Gunnison Basin. (Id.) The Service thoroughly explained
why each alternative was untenable. (Id.) With respect to occupied land, the Service
reiterated reasoning set forth in the Final Rule and already detailed by this Court in Part
IV. (AR at 198254.) With respect to public lands, the Service explained that such lands
are “not sufficient to ensure conservation of the species” because much of the public
land in the Gunnison sage-grouse range is “either unsuitable habitat such as forested
areas, or is at a greater distance from existing habitat than is typically covered during
sage-grouse movements.” (AR at 198255.) Examining the third alternative, the Service
concluded that relying only on the Gunnison Basin land and population would not
preserve the entire species because the satellite populations outside the Gunnison
Basin provide necessary redundancy, among other things—as further expounded in the
Final Rule and previously addressed in this Order.
Plaintiffs call the Service’s explanations “flimsy and unconvincing.” (Doc. # 148 at
12.) Plaintiffs argue that the Service should have further explained their decisions not to
designate only occupied habitat or habitat in the Gunnison Basin. Plaintiffs contentions
echo arguments already addressed by this Court previously in this order, and the Court
rejects them here for the same reasons. The Court instead finds the Service’s
examination of reasonable alternatives, although brief, is sufficient under NEPA.
The Court likewise rejects Plaintiffs’ arguments that the Service’s NEPA analysis
was predetermined.
Plaintiffs “must meet a high standard to prove predetermination.” Forest
Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 714 (10th Cir. 2010). They must
56
show that the Service “irreversibly and irretrievably commit[ed] itself to a plan of action
that is dependent upon the NEPA environmental analysis producing a certain outcome”
and that this irreversible and irretrievable commitment occurred “before the agency . . .
completed th[e] environmental analysis-which of course is supposed to involve an
objective, good faith inquiry into the environmental consequences of the agency’s
proposed action.” Id.; see, e.g., Silverton Snowmobile Club v. U.S. Forest Serv., 433
F.3d 772, 781 n. 2 (10th Cir. 2006) (detecting no predetermination because agency
“had no preexisting agreement with any user group”); Lee v. U.S. Air Force, 354 F.3d
1229, 1240 (10th Cir. 2004) (concluding that no predetermination occurred, even though
the U.S. Air Force had entered into a series of agreements with the German Defense
Ministry, because those agreements either were not executed until after the completion
of the NEPA requirements or would not take effect until after the completion of those
requirements).
Plaintiffs’ only arguments supporting predetermination are that (1) the Service
failed to consider proposed alternatives—an argument this Court has already rejected—
and (2) the Service received the EA only days before sending the Final Rule for
publication, indicating that the Service had its decision made before considering
environmental impacts. These challenges fall far short of demonstrating that the Service
“irreversibly and irretrievably” committed to an outcome before complying with NEPA. At
best, the challenges could demonstrate that the Service had a preferred alternative, not
that the Service engaged in predetermination. Because the record contains no evidence
that the Service failed to take a hard look at the environmental impacts of the Final Rule
57
due to bias, the Court concludes that the Service did not act arbitrarily and capriciously
in conducting its NEPA analysis.
D. ECONCOMIC IMPACTS
Last, Plaintiffs challenge the Service’s considerations of the economic impacts
stemming from its critical habitat designation. This challenge is also without merit.
Before designating critical habitat, the Service must take “into consideration the
economic impact.” 16 U.S.C. § 1533(b)(2). The ESA is silent on the method the Service
must use when assessing the economic impact of its designation. In New Mexico Cattle
Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1283 (10th Cir. 2001), the
Tenth Circuit examined one such method used by the Service: the baseline approach.
Under that approach, the Service analyzed the economic impacts that result solely from
the critical habitat designation without considering other impacts attributed to the listing
decision. The Tenth Circuit disapproved of the method, holding that the Service should
apply a broader approach—one that considers “all the economic impacts of a critical
habitat designation, regardless of whether those impacts are attributable co-extensively
to other causes.” Id. at 1285. The Parties refer to this approach as the “coextensive
impacts” approach. The Tenth Circuit’s primary reason for rejecting the baseline
approach was that another regulatory provision, 50 C.F.R. § 402.02, rendered the
approach “meaningless.”
Plaintiffs’ argue that the Service improperly used the baseline approach here,
rendering the entire habitat designation erroneous under the New Mexico Cattle
Growers Ass’n holding. The Court disagrees. Since the Tenth Circuit decided New
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Mexico Cattle Growers Ass’n in 2001, two vital changes have occurred: (1) the
applicable provisions of 50 C.F.R. § 402.02 have been invalidated by Gifford Pinchot
Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004), and (2) the
Service has promulgated, following formal rulemaking procedures, a new method for
conducting an economic impact analysis—the “incremental impacts” approach—which
the Service applied here. Under the incremental impacts approach, the Service
assesses economic impacts in part by comparing “the hypothetical world with the
designation to the hypothetical world without it.” 78 Fed. Reg. 53,062 (Aug. 28, 2013).
The Tenth Circuit has not reviewed this new incremental impacts approach or revisited
the application of the old baseline approach following the invalidation of the relevant
definitions in 50 C.F.R. § 402.02. Although the new incremental approach closely
resembles the admonished baseline approach (indeed, many courts refer to it as the
“baseline approach”), the invalidation of 50 C.F.R. § 402.02, which hamstrung the Tenth
Circuit’s review of that approach, nonetheless renders the Tenth Circuit’s holding in
New Mexico Cattle Growers Ass’n outdated and inapplicable to this case. Plaintiffs
indeed make no attempt to mold the Tenth Circuit’s 2001 reasoning to the changed
situation, regulations, and statutory authority presently binding this Court.
Moreover, even if the Court were to find New Mexico Cattle Growers Ass’n
prohibitive of the new incremental approach, the Court would still uphold the Service’s
conduct in this case because the Service, “recognizing that the designation occurred
within the jurisdiction of the Tenth Circuit,” pursued a “co-extensive impacts approach
[in addition to an incremental approach] out of an abundance of caution.” (Doc. # 156 at
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70; AR at 79126.) In the Final Rule, although the Service expressly disagreed that New
Mexico Cattle Growers Ass’n binds them, it nonetheless considered impacts attributable
co-extensively to other causes to be safe—just as the Tenth Circuit required. (AR at
199382.)20
Accordingly, the Court finds that the Service did not err in its assessment of the
economic impacts of its critical habitat designation.
V.
CONCLUSION
Having thoroughly considered the Parties’ briefing, the administrative record, and
the relevant law, the Court finds that the Service’s decision to list the Gunnison sagegrouse as threatened and designate land as its critical habitat was not arbitrary,
capricious, an abuse of discretion, without observance of the required procedures, or
otherwise contrary to law. Both determinations are therefore AFFIRMED.
DATED: September 27, 2018
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
20
Plaintiffs briefly mention the Service’s critical habitat exclusion analysis (which stems from its
economic impact assessment), apparently taking issue with the Service’s decision not to
exclude areas where the Service “did not identify any costs that are concentrated in any
geographic area or sector.” (Doc. # 148 at 19.) Plaintiffs present no legal argument or authority
to support this two-sentence challenge, and the Court declines to address it, except to note that
numerous cases have determined the Service’s “exclusionary process [to be] discretionary,”
subject to “no particular methodology.” Bldg. Indus. Ass’n of the Bay Area v. U.S. Dep’t of
Commerce, 792 F.3d 1027, 1033 (9th Cir. 2015).
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