Otter et al v. Salazar et al

Filing 52

MEMORANDUM DECISION & ORDER Plaintiffs' Motion for Summary Judgment (Dkt. 38 ) is GRANTED. The Secretary of the Interiors Final Rule listing L. papilliferum as a threatened species under the Endangered Species Act is hereby vacated and the ma tter is remanded for further consideration consistent with this decision. Defendants' Motion for Summary Judgment (Dkt. 42 ) is DENIED. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ja)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

GOV. C.L. “BUTCH” OTTER,
OFFICE OF SPECIES
CONSERVATION, THEODORE
HOFFMAN, SCOTT NICHOLSON,
and L.G. DAVISON & SONS, INC.,

Case No. 1:11-cv-00358-CWD
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
KEN SALAZAR, THOMAS
STRICKLAND, SAM HAMILTON,
and UNITED STATES FISH &
WILDLIFE SERVICE,
Defendants.

INTRODUCTION
This case represents the fourth time since 2001 that a federal court has been asked
to review a decision by the Secretary of the Interior concerning whether Lepidium
papilliferum (commonly known as slickspot peppergrass) should be listed as an
endangered or threatened species under the Endangered Species Act.1 On October 8,
2009, the Secretary published a Final Rule in the Federal Register listing L. papilliferum
1

A summary of the federal litigation involving L. papilliferum is set forth in Part 3
of the Background section below.
MEMORANDUM DECISION AND ORDER - 1

as a threatened species under the Endangered Species Act. 74 Fed. Reg. 52014. Following
the listing, Idaho Governor C.L. “Butch” Otter, the Idaho Office of Species
Conservation,2 Theodore Hoffman, Scott Nicholson, and L.G. Davison & Sons, Inc.3
(collectively “Plaintiffs”) brought the present action against the United States Secretary of
the Interior Ken Salazar and the United States Fish and Wildlife Service (the “Service”)4
challenging the listing under the Administrative Procedures Act (“APA”) and the
Endangered Species Act (“ESA”). All parties have consented to proceed before a
Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Plaintiffs challenge the listing on four grounds.5 First, Plaintiffs argue that the
listing was not based upon “the best available science” in contravention of the ESA.
Second, Plaintiffs argue that, under the ESA, a species only may be listed as “threatened”
if it “is likely to become an endangered species within the foreseeable future,” and that
2

The Office of Species Conservation is an agency within the executive office of
the Governor and is tasked with coordinating and implementing programs related to listed
species (or species that have been petitioned to be listed) under the Endangered Species
Act.
3

Theodore Hoffman, Scott Nicholson and L.G. Davison & Sons, Inc., are
signatories to a conservation agreement previously entered into between the State of
Idaho, federal agencies, and federal livestock grazing permitees related to slickspot
peppergrass. Messrs. Hoffman and Nicholson conduct cattle ranching operations in the
State of Idaho.
4

Plaintiffs also name Thomas Strickland (the Assistant Secretary for Fish, Wildlife
and parks within the United States Department of the Interior) and Sam Hamilton (the
Director of the United States Fish and Wildlife Service) as individual defendants.
5

Plaintiffs actually list five grounds in their motion for summary judgment, but the
first two both fall within the rubric of the best available science requirement.
MEMORANDUM DECISION AND ORDER - 2

the Service failed to provide an adequate definition of “foreseeable future” in the Final
Rule. Third, Plaintiffs argue that the Final Rule improperly discounted the significance of
the Governor’s conservation efforts. Finally, Plaintiffs argue that the Secretary failed to
provide the State of Idaho with a letter outlining the justifications for the listing, which is
required under Section 4 of the ESA when a state files comments disagreeing with all or
part of a proposed regulation and the Secretary issues a final regulation in conflict with
the state’s comments. Based on these alleged deficiencies, Plaintiffs argue the Final Rule
listing slickspot peppergrass as a threatened species does not comply with the statutory
requirements contained in the ESA and that the listing is arbitrary and capricious under
the APA. Plaintiffs request that the Court vacate, reverse, and remand the listing.
The Federal Defendants argue that the Final Rule complies with both the ESA and
the APA. Moreover, and notwithstanding the fact that the Governor of the State of Idaho
participated as an intervenor (in support of the Service and the Secretary) in two previous
lawsuits filed by an environmental group challenging the Secretary’s decision not to list
slickspot peppergrass as a threatened species, the Secretary now argues that none of the
plaintiffs in this case (including the Governor) have standing to challenge the Final Rule.
Before the Court are the parties’ cross motions for summary judgment. (Pl.s’ Mot.
for Summ. J., Dkt. 38; Def.s’ Mot. for Summ. J., Dkt. 42.) The parties presented oral
arguments on the motions on May 22, 2012. The Court has reviewed the administrative
record, (Dkt. 34 and 35), the motions have been fully briefed, and the case is ripe for
adjudication. For the reasons set forth below, the Court finds that the Service’s failure to
MEMORANDUM DECISION AND ORDER - 3

define “foreseeable future” requires reversal of the listing and remand to the Service for
further consideration.
BACKGROUND
1.

Legal Background
Congress enacted the ESA to provide “a means whereby the ecosystems upon

which endangered species and threatened species depend may be conserved, [and] to
provide a program for the conservation of such endangered species.” 16 U.S.C. § 1531(b).
Section 4 of the ESA directs the Service to determine whether any species should be
listed as endangered or threatened. 16 U.S.C. § 1533(a)(1). A species is “endangered” if it
“is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. §
1532(6). A species is “threatened” if it “is likely to become an endangered species within
the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. §
1532(20).
The ESA requires the Secretary to determine whether any species is endangered or
threatened “because of any” of the following five factors:
(A) the present or threatened destruction, modification, or curtailment of its habitat
or range;
(B) overutilization for commercial, recreation, scientific, or education purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.
MEMORANDUM DECISION AND ORDER - 4

16 U.S.C. § 1533(a)(1). Although the Service outlines all five of the above factors in the
Final Rule published in 2009, the agency’s decision to list slickspot peppergrass was
based primarily on factor A – “the present or threatened destruction, modification, or
curtailment of [the species’] habitat or range.”
The ESA also dictates that the decision to list a species must be based “solely on
the basis of the best scientific and commercial data available to [the Secretary] after
conducting a review of the status of the species and after taking into account those efforts,
if any, being made by a State or foreign nation . . . to protect such species, whether by
predator control, protection of habitat and food supply, or other conservation practices,
within any area under its jurisdiction . . . .” 16 U.S.C. § 1533(b)(1)(A).
In addition, the Secretary is required to consult with the affected states when
considering whether to list a species as endangered or threatened and to “tak[e] into
account those efforts . . . being made by any State . . . to protect such species” under
existing “conservation practices.” 16 U.S.C. § 1533(b)(5)(A)(i) & (ii).
Once a species is listed, various safeguards prevent activities that will cause harm
to members of the species or that will jeopardize the survival and recovery of the species.
16 U.S.C. §§ 1536, 1538. The ESA’s ultimate goal is recovery of listed species to the
point that ESA protection is no longer necessary. 16 U.S.C. § 1531(b) and (c), 1532(3).
2.

Slickspot Peppergrass (L. papilliferum)
The following facts are taken from the Final Rule issued in October of 2009 and

do not appear to be disputed by the parties. Slickspot peppergrass is a small, flowering
MEMORANDUM DECISION AND ORDER - 5

plant in the mustard family. (Administrative Record (“AR”) 0002.) The species is
endemic to this region, known only from the Snake River Plain and its adjacent northern
foothills, with a smaller disjunct population on the Owyhee Plateau. (Id.) Slickspot
peppergrass has never been found outside of Idaho. The plant grows in unique microsite
habitats known as slickspots, which are found within the semiarid sagebrush-steppe
ecosystem of southwestern Idaho. (Id.)
The slickspots themselves have been described as small circular patches of ground
with unusual soil chemistry that create visually distinct openings in the surrounding
sagebrush environment. Slickspots are distinguished from the surrounding sagebrush
matrix as having the following characteristics: microsites where water pools when rain
falls, sparse native vegetation, distinct soil layers with a columnar or prismatic structure,
higher alkalinity and clay content and natric properties, and reduced levels of organic
matter and nutrients. (AR 0006.) Most slickspots are between 10 square feet and twenty
square feet in size, although some are as large as one hundred and ten square feet. (AR
0007.) Scientists believe that the slickspots found on the Idaho rangelands likely formed
during the Pleistocene era and took thousands of years to form. Once destroyed, it is
believed that slickspots cannot be re-created.
Slickspot peppergrass is moncarpic, meaning it flowers once and then dies, and
displays two different life history strategies – an annual form and a biennial form. (AR
0003.) The above-ground plants represent only a portion of the species’ population and
slickspot peppergrass has a long-lived seed bank, likely as an adaptation to unpredictable
MEMORANDUM DECISION AND ORDER - 6

conditions, in which years of good rainfall favorable for germination and survival may be
followed by periods of drought. (AR 0010.) A persistent seed bank provides a population
buffer against years of poor reproductive potential in such a highly variable environment.
(Id.) Only a small percentage of slickspot peppergrass seeds germinate annually, resulting
in an estimated maximum longevity of 12 years for seeds in the seed bank. (Id.) The
Service recognizes that the number of above-ground plants that can be counted in any one
year represents only a subset of the latent population that is present in the seed bank. (Id.)
Given this fact, “estimating the number of above-ground plants is by itself not a reliable
measure to evaluate population and species viability.” (AR 0011, quoting Mancuso and
Moseley (1998, p. 1)).
The Idaho Natural Heritage Program (“INHP”) uses element occurrences (“EOs”)
to broadly describe the distribution of slickspot peppergrass and assigns rankings to each
EO based on measures of habitat quality and species abundance. (AR 0005.) EOs are
defined by grouping occupied slickspots that occur within on kilometer of each other.
(Id.) Each EO is assigned a qualitative rank defined by population size and habitat
quality. (Id.) EO ranks are periodically updated when new ranking information becomes
available.
In addition to the EO system, there have been four programs designed to monitor
populations of slickspot peppergrass. The Habitat Integrity Index (“HII”) conducted by
the Idaho Conservation Data Center (“ICDC” now the INHP) was the first rangewide
effort aimed at monitoring slickspot peppergrass. The HII was initiated in 1998 and ran
MEMORANDUM DECISION AND ORDER - 7

for 5 years through 2002. (AR 0005.) Monitoring was initially based on a system of
transects of varying lengths across the range of slickspot peppergrass, each subjectively
located to include 10 slickspots on sites known to contain slickspot peppergrass. (Id.) The
primary goal of the HII methodology was to assess the overall habitat condition.
In 2004, the HII was replaced by the Habitat Integrity and Population monitoring
protocol (“HIP”), which also was implemented by the ICDC. HIP monitoring has been
conducted annually since its implementation (from 2004 through 2008). HIP presents
measures of habitat, disturbance, and plant community attributes at each transect as well
as counts of slickspot peppergrass rosettes and reproductive plants observed. (AR 0005.)
HIP is based on transects of varying lengths subjectively located to include 10 slickspots
along their lengths. (Id.) The monitoring has been annually conducted since 2004 and
consists of the following procedures: (1) establish and permanently mark HIP transects;
(2) record location information; (3) take photographs; (4) measure population, habitat,
and disturbance attributes at selected slickspots; (5) measure plant community attributes;
and (6) analyze and describe the results. (Id.)
In addition to the EO records and the HII-HIP monitoring programs (which cover
the entire range of L. papilliferum), the Idaho Army National Guard has established two
programs within its Orchard Training Area (“OTA”). The OTA is home to one of the
largest and most expansive EOs of the species. (AR 0005.) Two of the OTA programs
have been monitoring the same locations annually since the early 1990's, providing up to
18 years of population data for slickspot peppergrass. (Id.) These two monitoring
MEMORANDUM DECISION AND ORDER - 8

programs are known as rough census areas and special-use plots. In the rough census
areas, counts are conducted by technicians who walk across parallel transects and record
the number of slickspot peppergrass observed. Not all areas have been monitored in all
years, requiring the data to be standardized. The special-use plots are a series of 16 belt
transects on the OTA, each containing a single slickspot. (AR 0005-0006.) A stake is
centered in each slickspot, and each year the number of slickspot peppergrass individuals
with a 16.4 ft radius of that stake are counted. (AR 0006.)
The data generated from the above monitoring programs indicates that the numbers
of slickspot peppergrass can vary dramatically from year to year, depending on
environmental conditions. (AR 0011.)
3.

Listing History and Prior Litigation
The decade-long battle between environmental groups, the State of Idaho, and the

federal government over whether slickspot peppergrass should be listed as a protected
species under the ESA is well chronicled in two previous cases before the Court – both of
which were brought by an environmental group against the Secretary of the Interior after
the Service published notices in 2004 and again in 2007 that it was withdrawing earlier
proposals to list the species under the ESA. See Western Watersheds Project v. Foss, CV
04-168-MHW, 2005 WL 2002473 (D. Idaho 2005); See also, Western Watersheds
Project v. Kempthorne, CV 07-161-MHW, 2008 WL 2338501 (D. Idaho 2008)). The
facts involving the listing of slickspot peppergrass and the multiple litigations that
thereafter ensued are provided below where relevant and are taken largely from the
MEMORANDUM DECISION AND ORDER - 9

Court’s above-referenced decisions.6
In 2000, the Service began preparing a draft rule to list slickspot peppergrass as
endangered under the ESA. Western Watersheds Project v. Foss, CV 04-168-MHW,
2005 WL 2002473 at *4 (D. Idaho 2005). The process was eventually halted due to
alleged political reasons and the Service decided not to publish the proposed rule. Id. at
*5. An environmental group filed a Listing Petition to compel the Service to list the
species under the ESA. Id. The Service rejected the Listing Petition and the following
year, the environmental group filed suit against the Service in the District of Oregon for
violations of the ESA. Id. The suit resulted in a settlement agreement in which the Service
agreed to submit for publication a listing proposal for slickspot peppergrass by July 15,
2002, and to make a final determination by July 15, 2003. Id.
On July 15, 2002, the Service proposed to list slickspot peppergrass as endangered
under the ESA. (AR 0002, citing 67 FR 46441.) The Air Force thereafter filed a challenge
with the Service in March of 2003, claiming the proposed rule violated the Information
Quality Act. Foss, 2005 WL 2002473 at *7. A six-month extension occurred during
which the Service solicited additional data, including submissions from a panel of
experts. Id. At the end of the six-month period, the Service published notice that it was
withdrawing the proposed rule to list the species under the ESA. Id. at *13. The decision
to withdraw the proposed listing was based on the conclusion that there was insufficient

6

The 2009 Final Rule also sets forth a truncated version of the litigation history
involving L. papilliferum. (See AR 0002.)
MEMORANDUM DECISION AND ORDER - 10

evidence indicating a negative population trend. The withdrawal decision also referenced
conservation agreements and found that the conservation measures described in the
agreements would in fact be implemented. Id.
The first conservation agreement, and the one that Plaintiffs rely upon in their
present challenge to the 2009 Final Rule, is the Candidate Conservation Agreement
(“CCA”), which was drafted originally in 2003, updated in 2006, and scheduled to expire
in 2013. (AR 0037.)7 The parties to the CCA include the State of Idaho, the Bureau of
Land Management, nongovernmental cooperators (private landowners who also hold
BLM livestock grazing permits), and several other Federal and State agencies.8 (AR
0037.) The Service states that the CCA “represents an important milestone in the
cooperative conservation of Lepidium papilliferum given its rangewide scope and
coordinated management across Federal and State of Idaho managed lands.” (AR 0037.)9
7

The other conservation agreements referenced by the Service in its withdrawal
decision were the Air Force and Idaho Army National Guard Integrated Natural Resource
Management Plans. These plans contain measures that attempt to minimize the impacts
from military training activities within areas reserved for conservation of L. papilliferum.
8

The CCA was completed in December of 2003 by the BLM, the State of Idaho,
the Idaho Army National Guard (“IDARNG”), and livestock permittees. As part of the
CCA, several private landowners entered into MOUs with the State of Idaho, committing
to conservation efforts on approx 17,000 acres of private land. 69 fed. Reg. 3113
9

The CCA includes rangewide efforts intended to address the need to: maintain
and enhance L. papilliferum habitat; reduce intensity, frequency, and size of natural and
human caused wildfires; minimize loss of habitat associated with wildfire-suppression
activities; reduce the potential for invasion of nonnative plant species from wildfire;
minimize the loss of habitat associated with rehabilitation and restoration techniques;
minimize the establishment of invasive nonnative species; mitigate the negative effects of
military training and other associated activities on the OTA; and minimize the impact of
MEMORANDUM DECISION AND ORDER - 11

The Final Rule, published in 2004, stated: “We [the Service] believe that the
conservation efforts will reduce the risk of fires in the foreseeable future within the range
of the species” ‘69 Fed. Reg. 3115. Ultimately, the Service concluded that, based on a
lack of data indicating population decline and conservation agreements, “we [the Service]
believe that the species no longer is in danger of extinction throughout all or a significant
portion of its range, nor is it likely to become endangered within the foreseeable future.”
69 Fed. Reg. 3116.
On April 5, 2004, an environmental group filed an action against the Secretary of
the Interior challenging the Service’s decision to withdraw the proposed rule to list
slickspot peppergrass. Western Watersheds v. Foss, CV 04-168-S-MHW. Governor Dirk
Kempthorne (the Governor of Idaho at the time the action was instituted) filed a motion to
intervene as a matter of right under Fed. R. Civ. P. 24(a), and the parties stipulated that
the Governor would be allowed to intervene in the case. On August 19, 2005, this Court
reversed the withdrawal decision. The Court took issue with the Service’s failure to
define “foreseeable future.” Id. at *14. The Court recognized that the ESA does not define
the term “foreseeable future” and that the Service has not promulgated any rules or
regulations setting quantitative thresholds to define the term. Id. The Court also
recognized that the definition of “foreseeable future” “may vary depending on the
particular species.” Id. at *16. For instance, the Court stated that, “‘foreseeable future’

ground disturbances caused by livestock penetrating trampling during periods when soils
are saturated. (Id.)
MEMORANDUM DECISION AND ORDER - 12

may be defined differently for a sequoia tree (the National Park Service indicates an age
of 3,200 years for a mature tree) than for the slickspot peppergrass, which is an annual or
biennial plant.” Id. The Court, however, did not define “foreseeable future” for the
slickspot peppergrass – leaving that decision to the Service – and expressly stated that the
Court was “not attempting to establish a bright-line rule for defining foreseeable future.”
Id.
Notwithstanding the absence of a statutory definition, the Court held that the
Service’s failure to define the term was reversible error: “A mere statement that the
conservation agreement ‘will postpone the projected time when the species has a high risk
of extinction to beyond the foreseeable future,’ without first delineating how the FWS
managers defined foreseeable future, does not suffice – especially when [definitions of
foreseeable future in the context of the slickspot peppergrass were available and had been
estimated by the scientists asked to address the issue].” Id. at *17. The Court reversed the
decision to withdraw the proposed rule, “with directions that the case be remanded to the
Secretary of the Department of Interior for reconsideration in accordance with the legal
standards outlined in th[e] opinion.” Id. at *19.
Following the Court’s 2005 decision, the Service published a document in
February of 2006 entitled “Draft Best Available Biological Information for Slickspot
Peppergrass.” Western Watersheds Project v. Kempthorne, CV 07-161-MHW, 2008 WL
2338501 at *4 (D. Idaho 2008). The document analyzed several data sources, including
the data produced from the HII and HIP monitoring programs done by IDCDC and the
MEMORANDUM DECISION AND ORDER - 13

“census” data produced as part of the OTA program. Id. at *4-5. The document also
described the factors affecting the species based on earlier findings, including non-native
plant invasions, wildfire, livestock grazing, military training, residential and agricultural
development, recreational vehicles, and others. Id. at *5.
In May of 2006, the Service convened a panel of seven scientists, with expertise in
high desert plants, to review the above document. Id. These experts were to share their
knowledge of slickspot peppergrass, apply that knowledge in exercises, and complete an
extinction risk assessment. Id. The experts were asked to estimate the time-frame in
which they thought the species might likely become extinct (as opposed to merely
threatened) by allocating “chips” among time-frames ranging from the next 20 years to
more than 200 years. Id. When the panelists made their decision on when slickspot
peppergrass would likely become extinct, based on then-current conditions, the panelists
placed seventy-five percent of the chips in the range of 21-100 years with the largest
amount of chips in the 61-80 year time-frame. Id.
In May of 2006, four Service managers met with the expert panel to discuss how to
apply the ESA to slickspot peppergrass. The managers defined “foreseeable future” as
“not greater than 40 years based on considerations discussed in the manager panel.” Id. at
*6. In June of 2006, the Service convened a second manager panel. The second manager
panel concluded that slickspot peppergrass should be listed as threatened. Id. On July 11,
2006, the Service prepared a final listing package. Id. at *7.

MEMORANDUM DECISION AND ORDER - 14

On September 19, 2006, Field Office Supervisor Jeff Foss alerted the Service’s
regional office that information had come out after the 2006 Best Available Biological
Information document had been released for public comment. Id. The information
included a report known as the Menke & Kaye report, providing statistical analysis for 20
of the 85 EOs, correlating spring precipitation with plant abundance. Id.
On September 28, 2006, the Service Director for Region 1 met with Idaho’s
United States Senators Craig, Crapo, and then-Congressman Otter. Id. During the
meeting, the Idaho delegation expressed interest in having the Service consider the CCA
in making its listing determination and expressed the concern that a listing could
undermine the cooperative process and progress made through the conservation
agreement. Id.
In November of 2006, the definition of foreseeable future was discussed, with a
note that it was to be redefined to 20 years. Id. at *8.
Later in November of 2006, Mr. Foss sent a memo to Regional Assistant Director
Terry Rabot, relating to information recently gathered concerning the OTA data
collection methodology. Id. Mr. Foss concluded that: (1) the “census” data is more
accurately characterized as survey data because it does not count every plant in the area
surveyed – it is a “rough census”; (2) the “census” area represented 90% rather than 98%
of the total occupied habitat at the OTA; (3) new surveys were finding previously
undetected slickspots; and (4) that the Service’s previous statements about the population
trend at the OTA needed to be reconsidered in light of the new information. Id.
MEMORANDUM DECISION AND ORDER - 15

On November 21, 2006, the Service convened a third manager panel to discuss the
new information. Id. “The panel concluded that it did not consider Slickspot peppergrass
‘in danger of extinction throughout all or a significant portion of its range nor likely to
become an endangered species within the foreseeable future throughout all of a
significant portion of its range’ based on its review of the new information.” Id. at *9,
quoting the administrative record. On November 29, 2006, the Service drafted a new rule
detailing why the listing of slickspot peppergrass was not warranted and the withdrawal
notice concluded that the species was not endangered or threatened in all or a significant
portion of its range. Id.
Following the withdrawal notice, Western Watersheds Project once again filed suit
against the Secretary of the Interior. See Western Watersheds Project v. Kempthorne, CV
07-161-MHW, 2008 WL 2338501 (D. Idaho 2008). As in the previous suit, the Governor
of Idaho sought to intervene and all parties stipulated to the Governor’s participation in
the case. The Court once again reversed the decision to withdraw the rule listing slickspot
peppergrass as a threatened species. The Court noted that the Service relied heavily upon
the Menke and Kaye report and that, “[s]ince this was not included in the [2006 Best
Available Information document], it was not peer reviewed nor examined by the Expert
Science Panel.” Id. at *14.
The Court held that, “[b]ecause of the reliance placed on this report, the FWS
should have submitted this report to the experts for their reveiw to ensure that the FWS
had the best available scientific information in front of it when making its listing
MEMORANDUM DECISION AND ORDER - 16

determination.” Id. The logical course, according to the Court, “would have been to allow
the prior Expert Science Panel, or a different group of experts, [to] consider and evaluate
the new information and see if it would change the earlier extinction risk estimates.” Id. at
*15. The Court reversed the withdrawal decision and remanded the matter to the Service
for further consideration consistent with the decision. Id.
Following the Court’s 2008 remand order, the Service issued a notice of
reinstatement of the July 15, 2002 proposed rule to list the species as endangered, and
opened a public comment period. (AR 0002.) During the public comment period, the
State of Idaho expressed concern with the upcoming rulemaking, stating:
Given the controversy surrounding the data collected at the
Orchard Training Area, the State requests an exhaustive,
independent, third-party audit of the information collected at
that site. Concurrent with that audit, the Service needs to
examine both the use of that data in other scientific forums as
well as the inferences the Service has drawn from such
research. Without such an audit, the State would have little
confidence in the Service’s ability to correctly determine the
appropriate listing status for the species.
(AR 237.)
Rather than re-submitting the OTA information to the science panel, which was
the primary problem the Court addressed in the 2008 remand order, the Service
contracted with statisticians Joseph Sullivan and Christopher Nations to perform an
“Analysis of Slickspot Peppergrass (Lepidium papilliferum) Population Trends on
Orchard Training Area and Rangewide Implications.” (hereinafter “Sullivan and Nations
Report”). Sullivan and Nations were asked by the Service to: (a) document data collection
MEMORANDUM DECISION AND ORDER - 17

methods at the Idaho Army National Guard Orchard Training Area; (b) statistically
analyze data; (c) compare methods from the “rough censes” to other survey efforts at the
Orchard Training Area; (d) better illustrate habitat quality at the Orchard Training Area;
and (e) compare OTA data with HIP monitoring. (Sullivan and Nations Report at 16.)
Sullivan and Nations concluded that there was “limited evidence for declining
populations,” but that the evidence indicating declining populations was statistically
significant only for the rough census areas. (AR 0012.) Sullivan and Nations also found a
significantly negative relationship between the abundance or density of L. papilliferum
and the presence of B. tectorum (an invasive nonnative plant) and past fires. (AR 00130014.) “These results contrast[ed] with the information that was available to [the Service]
at the time of [the] 2007 finding, which did not indicate any statistically significant
relationship between invasive nonnative plants and the abundance of L. papilliferum.”
(AR 0023.)
On October 8, 2009, the Secretary listed L. papilliferum as a threatened species
under the ESA. The Final Rule states:
We can . . . reasonably anticipate the impacts of the threats on
L. papilliferum rangewide [primarily wildfires and invasive
nonnative plants], and we believe those threats acting in
combination are likely to result in the species becoming
endangered within the foreseeable future.
(AR 0040.) The findings made by the Service in reaching this decision will be discussed
below in the section concerning the best available science standard under the ESA.

MEMORANDUM DECISION AND ORDER - 18

Plaintiffs filed this action on November 16, 2009, in the District of Columbia.
(Dkt. 1.) On January 15, 2010, Defendants moved the court to transfer the case to the
District of Idaho, (Dkt. 11), and on June 21, 2010, the court granted the motion and
transferred the case to Idaho. (Dkt. 20.) Plaintiffs challenge the listing under the APA
and the ESA and seek an order vacating, reversing, and remanding the listing decision.
STANDARD OF REVIEW
Judicial review of final agency actions under the Endangered Species Act is
governed by the Administrative Procedures Act. Under the APA, an agency action must
be upheld unless it is found to be “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Friends of Earth v. Hintz,
800 F.2d 822, 830-31 (9th Cir. 1986). To decide if an agency action is arbitrary and
capricious, the court must determine whether the agency considered the relevant factors
and articulated a rational connection between the facts found and the choices made. Pac.
Coast Fed’n of Fishermen’s Ass’n, Inc. v. NMFS, 265 F.3d 1028, 1034 (9th Cir. 2001).
As long as the agency decision was based on the relevant factors and there is no clear
error of judgment, the reviewing court may not overturn the agency’s action as arbitrary
and capricious. Arizona v. Thomas, 824 F.2d 745, 748 (9th Cir. 1987).
“Deference to an agency’s technical expertise and experience is particularly
warranted with respect to questions involving . . . scientific matters.” United States v.
Alpine Land and Reservoir Co., 887 F.2d 207, 213 (9th Cir. 1989). Nevertheless, the
“presumption of agency expertise may be rebutted if the decisions, even though based on
MEMORANDUM DECISION AND ORDER - 19

scientific expertise, are not reasoned.” Greenpeace v. NMFS, 80 F.Supp.2d 1137, 1147
(W.D. Wash. 2000). “Where an agency fails to articulate a rational connection between
the facts found and the choice made, the Court may not supply a reasoned basis for the
agency’s action that the agency itself has not given.” Defenders of Wildlife v. Babbit, 958
F.Supp. 670, 679 (D.D.C. 1997) (internal quotation marks and citations omitted).
Judicial review under this standard is to be “searching and careful,” but remains
“narrow,” and a court should not substitute its judgment for that of the agency. Mt.
Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993). An agency action
should be overturned only when the agency has “relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29 (1983).
DISCUSSION
1.

Standing
As a preliminary matter, Defendants argue that the Court need not reach the merits

in this case because Plaintiffs lack standing to challenge the Final Rule. (See Mem. In
Support of Def.s’ Mot. For Summ. J. at 10, Dkt. 43.) Defendants devote a surprisingly
large amount of briefing on this issue considering that the Governor participated in the
previous two lawsuits and his participation was stipulated to by the Secretary of the
MEMORANDUM DECISION AND ORDER - 20

Interior. For the reasons set forth below, the Court finds that all the plaintiffs in this case
have standing to challenge the Service’s Final Rule.
Standing is a threshold jurisdictional prerequisite, and the “case and controversy”
requirement of Article III of the Constitution requires plaintiffs to demonstrate that they
have standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The
standing inquiry seeks to determine “whether the litigant is entitled to have the court
decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490,
498 (1975). The party invoking federal jurisdiction bears the burden of proof in
establishing all of the elements. Lujan, 504 U.S. at 561. To establish standing, Plaintiffs
must establish the following three elements:
First, the plaintiff must have suffered an “injury in fact” – an
invasion of legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical. Second, there must be a causal connection
between the injury and the conduct complaint of – the injury
has to be fairly . . . trace[able] to the challenged action of the
defendant, and not . . . the result [of] the independent action of
some third party not before the court. Third, it must be likely,
as opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Lujan, 504 U.S. at 560-61.
A.

The State’s Standing

Defendants argue that the State of Idaho has failed “to demonstrate any actual
injury.” (Def.s’ Reply Br. In Supp. Of Mot. For Summ. J. at 6, Dkt. 47.) The United States
Supreme Court has recognized that special rules apply to states in the standing context.

MEMORANDUM DECISION AND ORDER - 21

See Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007) (“Well before the creation of the
modern administrative state, we recognized that States are not normal litigants for the
purposes of invoking federal jurisdiction.”) Indeed, the Supreme Court has held that
States are entitled to “special solicitude” in the standing analysis. Id. at 520. The
statement by Justice Holmes in Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907),
cited by the Supreme Court in Massachusetts v. E.P.A. in support of the proposition that
the State had standing to sue the E.P.A., bears repeating here. In that case, one in which
Georgia sought to protect its citizens from air pollution originating outside of its borders,
Justice Holmes stated:
The case has been argued largely as if it were one between
two private parties; but it is not. The very elements that would
be relied upon in a suit between fellow-citizens as a ground
for equitable relief are wanting here. The State owns very
little of the territory alleged to be affected, and the damage to
it capable of estimate in money, possible, at least, is small.
This is a suit by a State for an injury to it in its capacity of
quasi-sovereign. In that capacity the State has an interest
independent of and behind the titles of its citizens, in all the
earth and air within its domain. It has the last word as to
whether its mountains shall be stripped of their forests and its
inhabitants shall breathe pure air.
Tennessee Copper Co., 206 U.S. at 237.
Here, the injury alleged by the State is both actual and procedural – the Supreme
Court has differentiated between the two types of injury and the State’s procedural injury
in this case will be discussed briefly below. Moreover, the factual allegations supporting
the alleged injury are apparent in the administrative record, foreclosing any argument by

MEMORANDUM DECISION AND ORDER - 22

the Defendants that the Governor was required to produce something more at the
summary judgment stage of these proceedings.
The Final Rule in this case, and the forthcoming critical habitat designation, will
impact approximately 62,197 acres of lands within the State of Idaho. This alleged injury
is neither conjectural nor hypothetical; Section 4(a)(3) of the ESA and the implementing
regulations, 50 CFR 424.12, require that, to the maximum extent prudent and
determinable, the Secretary designate critical habitat at the time a species is determined to
be endangered or threatened. The Secretary has determined that it was not prudent to
designate critical habitat at the time of listing in this case, but that does not abrogate the
Secretary’s responsibility to do so within a year. 16 U.S.C. § 1533(b)(6)(C)(ii). Once
designated critical habitat, the land would be subject to the full panoply of ESA
protections and restrictions. This would have the very real effect of restricting the use of
the land – whether owned by the State or a private individual. As in Massachusetts v.
E.P.A., in this case the State of Idaho “owns a great deal of the territory alleged to be
affected . . . [which] only reinforces the conclusion that its stake in the outcome is
sufficiently concrete to warrant the exercise of federal judicial power.” Massachusetts,
549 U.S. at 519.
Although Governor Otter does not specifically refer to the doctrine, the Court finds
that he (and the State) have procedural standing in this case. To establish procedural
standing, the plaintiff must show: (1) that it has been accorded a procedural right to
protect its concrete interests, and (2) that it has a threatened concrete interest that is the
MEMORANDUM DECISION AND ORDER - 23

ultimate basis of its standing. Natural Resources Defense Council v. Salazar, __ F.3d __,
2012 WL 2899095 (9th Cir. 2012); Douglas County v. Babbitt, 48 F.3d 1495, 1500-01
(9th Cir. 1995). Both requirements are met in this case.
The ESA carves out special procedures when a state chooses to participate in the
listing process and requires the Secretary to provide the state with justifications when an
agency action conflicts with the state’s comments. See 16 U.S.C. § 1533(i). Here, the
Governor alleges that this provision was not complied with. Indeed, a letter containing the
Secretary’s justifications was not provided to the State of Idaho until after this litigation
was initiated. The Secretary argues that this procedural violation (if one occurred at all)
was harmless. The history of the listing process involving slickspot peppergrass seems to
indicate otherwise – the Service withdrew proposed listings on more than one occasion
after receiving comments from the State or those representing the State’s interests. If that
were not sufficiently concrete in itself, the State’s loss of land management is sufficiently
concrete. See Maine v. Norton, 257 F.Supp.2d 357 (D. Me. 2003) (holding that Maine had
standing to challenge the listing of Atlantic Salmon under the ESA based upon the State’s
interests in managing its own natural resources and enacting and enforcing its own legal
code).
B.

The Ranchers’ Standing

Defendants also argue that Plaintiffs Theodore Hoffman, Scott Nicholson, and
L.G. Davison & Sons, Inc. (the “Ranchers”) have failed to demonstrate any injury
flowing from the agency’s Final Rule listing slickspot peppergrass as threatened and that
MEMORANDUM DECISION AND ORDER - 24

they therefore lack standing under Article III of the Constitution.
Plaintiffs Hoffman and Nicholson are ranchers and L.G. Davison & Sons, Inc. is a
ranching business. It is undisputed that the Ranchers conduct their operations in the State
of Idaho under permits issued by the Bureau of Land Management (“BLM”) within
allotments containing slickspot peppergrass and that the Ranchers are signatories to the
CCA. In their amended complaint, the Ranchers allege they “have been actively involved
in the consideration of Slickspot peppergrass as a listed species by Defendants[;]” and
that they “have voluntarily implemented a number of Slickspot peppergrass conservation
measures by and through the CCA and incorporated those measures into existing
permits[.]” (Dkt. 13 at ¶ 15.) Concerning their injury, the Ranchers allege that, if the
listing is upheld, their “ranching operations will be subject to and potentially curtailed by
and through the section 7 consultation process for both ongoing and future grazing
permits as well as the designation of critical habitat under section 4 of the ESA.” (Id.)
In response to Defendants’ motion for summary judgment seeking dismissal of the
Ranchers’ claims for lack of standing, Plaintiffs submitted the declaration of Dr.
Hoffman. (Dkt. 44-2.) Dr. Hoffman’s declaration represents that he, Mr. Nicholson and
L.G. Davison & Sons, Inc. are all non-governmental cooperators and signatories to the
CCA. He also states that his ranch includes private and state land leases, as well as land
under permit from the BLM. Moreover, Dr. Hoffman states that his cattle graze in the
vicinity of slickspot peppergrass habitat on the Snake River Plain.

MEMORANDUM DECISION AND ORDER - 25

Dr. Hoffman identifies the following injury he will sustain as a result of the listing:
If the listing of Slickspot peppergrass is permitted to stand,
our respective and collective voluntary efforts under the CCA
will be rendered null and void. Further, my grazing permit
and the BLM’s land use decisions will be the subject of
consultation regarding jeopardy to the plant. . . . These
subsequent land use restructions will impact both my private
property values and my ability to use that property whether it
be for ranching, farming, development, subdivision, or
otherwise. Likewise, I will also have my grazing permits
altered to comport with habitat conservation measures. All of
these restrictions will redound to my detriment as I attempt to
manage renewable natural resources in a sustainable manner
to provide income for my family and a nutritious food supply
to consumers in Idaho and beyond.
(Dkt. 42-2 at ¶¶ 9 and 10.)
In response, Defendants assert that Dr. Hoffman already has undergone Section 7
consultation under the ESA, and the two resulting Biological Opinions each concluded
that the grazing operations would not cause jeopardy to the continued existence of the
slickspot peppergrass. Defendants’ argument misses the point of the standing analysis.
The question is not whether the Ranchers’ operations will be allowed to continue, but
whether the listing has caused “an invasion of a legally protected interest which is (a)
concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.”
Lujan, 504 U.S. at 560 (quotations, citations omitted).
The very fact that the Ranchers’ operations have been subjected to Section 7
consultation under the ESA supports the finding that the Ranchers have standing. See
Hydro Resources, Inc. v. EPA, 562 F.3d 1249, (10th Cir. 2009) (“the unwanted result of

MEMORANDUM DECISION AND ORDER - 26

the government rule whether or not [there was an associated] pecuniary loss suffices as an
injury in fact.”) (alteration in original, quotation marks omitted) (vacated on other
grounds in 608 F.3d 1131 (10th Cir. 2010)). In a similar vein, it is reasonable to infer
from Plaintiffs’ amended complaint and Dr. Hoffman’s declaration that the Ranchers
have (or had) certain business expectations related to the viability of their operations
under the strictures of the CCA and that these expectations have been altered due to the
listing. This too supports a finding that the Ranchers have standing. See AlabamaTombigbee Rivers Coalition v. Norton, 338 F.3d 1244, 1254 (11th Cir. 2003) (holding
that a coalition of businesses had standing to challenge a listing under the ESA based
upon the finding that “[t]he listing adds another layer of concrete economic
considerations that may be in tension with the members’ pre-listing assumptions”).
Finally, the Biological Opinion, which concluded that continued cattle grazing for
a period of three years under the BLM permits would not jeopardize the slickspot
peppergrass, actually undermines Defendants’ argument. Indeed, the Biological Opinion
lists several conservation measures for the BLM to implement. (Dkt. 47-1 at 44.) These
include the continued implementation of measures contained in the CCA, but recommend
additional measures. The Court finds that this additional layer of federal regulation
imposed upon the Ranchers’ operations is sufficient to confer standing.
2.

Best Available Science
Plaintiffs argue that the Service violated the best available science mandate for

several reasons, primarily taking issue with the Service’s use of the OTA data as evidence
MEMORANDUM DECISION AND ORDER - 27

of a rangewide negative population trend. Plaintiffs argue that the Service was aware that
the data from the OTA census program was not what it purported to be – it was a rough
census rather than an actual census in which each plant was counted – and that the
reliance upon that data violated the best available science requirement. Plaintiffs also
assert that the Service did not communicate the shortcomings of the OTA data to Sullivan
and Nations for their statistical analysis of the OTA data. Ultimately, Plaintiffs disagree
with the Service’s conclusion that the available data demonstrates a negative population
trend and assert that the evidence actually shows that slickspot peppergrass populations
are stable. The gist of Plaintiffs’ argument and their overriding concern appears to be the
fact that the Service relied on the same data that was available in 2007 – when the Service
determined that a listing was not warranted – to justify the listing in 2009. Plaintiffs argue
that the Service has flip-flopped, and that this does not comport with the best available
science mandate.
A.

Legal Standard

Under 16 U.S.C. § 1533(b)(1)(A), an agency must discharge its ESA duties,
including listing determinations, “solely on the basis of the best scientific and commercial
data available . . . after conducting a review of the status of the species and after taking
into account those efforts, if any, being made by any State or foreign nation, or any
political subdivision of a State or foreign nation, to protect such species.” The best
available science requirement “merely prohibits [an agency] from disregarding available
scientific evidence that is in some way better than the evidence [the agency] relies on.”
MEMORANDUM DECISION AND ORDER - 28

Kern Co. Farm Bureau v. Allen, 450 F.3d 1072, 1080 (9th Cir. 2006) (citation omitted).
In other words, the agency “cannot ignore available biological information.” Id. at 108081. On the other hand, “absent superior data . . . occasional imperfections do not violation
§ 1533(b)(1)(A).” Allen, 450 F.3d at 1081, citing Building Indus. Ass’n of Superior Cal.
v. Norton, 247 F.3d 1241, 1246 (D.C. Cir. 2001). The statute contains no requirement of
absolute scientific certainty – assuming such a thing exists – to justify listing a species,
but rather requires application of the best science available. Defenders of Wildlife v.
Babbitt, 958 F.Supp. 670, 679-81 (D. D.C. 1997).
B.

Analysis of the 2009 Final Rule
(1) population trend

The 2009 Final Rule begins its discussion by describing the characteristics of
slickspot peppergrass and its habitat and the monitoring programs that have been used to
collect data on the species. (AR 2-10.) In evaluating the value of the data monitoring
programs, the Service states that, due to the highly variable nature of annual precipitation
and plant abundance, “the numbers of years included in the data set for evaluation is of
great importance in determining the degree of confidence in the outcome of any statistical
analysis.” (AR 0008.) “For this reason, [the Service concluded that] the Sullivan and
Nations evaluation of the 18-year dataset from the OTA is the best available data
regarding the relationship between precipitation and abundance of L. papilliferum.” (Id.)
Because Plaintiffs take issue with the Service’s reliance on this data, it should be noted
that the data sets from the HII and HIP monitoring programs were considered but found
MEMORANDUM DECISION AND ORDER - 29

less reliable due to the relatively short amount of years that those programs covered. It
should also be noted that the Service accurately characterizes the OTA census data as a
“rough censes,” (AR 0005), which belies Plaintiffs contention that the value of the OTA
data was overestimated.
The Final Rule continues with a discussion of the population trend for slickspot
peppergrass, and recognizes at the outset that any attempt to analyze the population trend
for the species is complicated by multiple factors, which ultimately diminishes the value
of any conclusion concerning the population trend for the species. (AR 0010.) The Final
Rule identifies the following factors complicating the population trend analysis:
For one, since individuals of the species may act as
either an annual or a biennial, in any given year there will be
varying numbers of plants acting as spring-flowering annuls
verses overwintering rosettes. The relative proportions of
these two life history forms can fluctuate annually depending
on a variety of factors . . . . Second, L. papilliferum has a
long-lived seed bank, likely as an adaptation to unpredictable
conditions, in which years of good rainfall favorable for
germination and survival may be followed by periods of
drought; a persistent seed bank provides a population buffer
against years of poor reproductive potential in such a highly
variable environment. . . . The presence of this persistent seed
bank confounds the ability to determine any trend in
abundance over time, as the number of above-ground plants
that can be counted in any one year represents only a subset of
the latent population that is present in the seed bank. In effect,
it takes at least 12 years to trace the fate of a single year’s
cohort of seeds, resulting in a significant lag effect in
detecting any real underlying change in total population
abundance over the long term.
(AR 0010.) Given these complications, the Final Rule notes from one report that

MEMORANDUM DECISION AND ORDER - 30

“estimating the number of above-ground plants is by itself not a reliable measure to
evaluate population and species viability.” (AR 0011, quoting Mancuso and Moseley.)
The same referenced report also states that monitoring the integrity of the species habitat
quality and quantity could act as an alternative or supplement to population monitoring.
(Id.) The Final Rule notes that “[h]abitat monitoring is a recommended method of
monitoring annual plants with a long-lived seed bank.” (Id.)
Concerning the data sets, the Service states: “we weighed the relative quality of the
available datasets for discerning population trend . . . according to the degree of
confidence we had in the results of any analyses, given the great degree of variability
observed and the multiple factors potentially influencing annual counts of the plant.” (Id.)
In this regard, the Service found the OTA datasets, including the rough census areas and
special-use plots, the best available data, which provide 18 years of population
monitoring information. (Id.)
Based on the count data from the OTA special-use plots, Sullivan and Nations
concluded that “there was not sufficient evidence to conclude that the slope of abundance
over time was significantly different from zero.” (AR 0012.) In other words, the specialuse plots did not provide evidence of a negative population trend. Sullivan and Nations
did find, however, that the data from the OTA rough censes program provided “limited
evidence for declining populations.” (Id.)
Ultimately, the Service recognized that “[t]he extreme variability in annual counts
of the species makes it difficult to discern a trend in numbers with statistical confidence.”
MEMORANDUM DECISION AND ORDER - 31

(AR 0012.) Recognizing this limitation, the Service concluded that “[t]he long-term data
from the OTA, which [the Service] considered to be the best available data . . . suggest
that population numbers may be trending downward on the OTA.” (Id.) The Service also
noted, however, that the “OTA provides some of the highest quality habitat remaining for
Lepidium papilliferum,” and the agency believed it was reasonable “to infer that if the
population is trending downward there, then conditions are likely worse in the remainder
of the plant’s range where habitat conditions are more degraded.” (AR 0012-13.) In
weighing all of the available information, the Service concluded that “the best available
evidence suggests that Lepidium papilliferum numbers may be trending downward.” (AR
0013) (emphasis added). Finally, concerning population trend, the Service notes that “it
would be inappropriate to rely on this model to predict any future population trajectory
for L. papilliferum.” (Id.)
The above discussion illustrates that the Service was quite conservative with its
conclusions related to population trend. This is in line with the 2007 withdrawal notice,
which concluded that there was insufficient evidence relating to population trend to list
the species under the ESA. The above discussion also demonstrates, contrary to Plaintiffs’
position, that the Service considered the tentative negative population trend finding when
listing the species. Indeed, as the discussion below illustrates, the Service relied not on
population trend evidence in justifying the listing of the species, but on the finding that
various factors were contributing to the degradation of the species’ habitat.

MEMORANDUM DECISION AND ORDER - 32

Based upon the above discussion, the Court finds that the Service did not violate
the best available science requirement by characterizing the OTA data as the best
available data related to population trend.
(2)

Habitat

As noted above, Section 4 of the ESA sets forth five factors for the Service to
evaluate whether a species may be determined to be endangered or threatened. 16 U.S.C.
§ 1533(a)(1). A finding that any one of the factors has been met is sufficient to list the
species. In this case, the Service relied on factor “A” – the present or threatened
destruction, modification, or curtailment of the species’ habitat or range.
Following the discussion of population abundance, the 2009 Final Rule discusses
the species’ habitat and the threats to its habitat. (AR 0013-31.) The discussion begins
with the statement that Sullivan and Nations “found a significantly negative relationship
between the abundance or density of Lepidium papilliferum and both the presence of B.
tectorum [an invasive nonnative plant] and past fire.” (AR 0013-14.) This relationship is
described in the Final Rule as follows: “The complex and positive feedback loop between
the encroachment of invasive annual grasses such as B. tectorum, increased fire
frequency, and decreased integrity of biological soil crusts contributes to the degradation
of sagebrush-steppe habitat quality for L. papilliferum.” (AR 0014.) In layman’s terms,
the encroachment of nonnative plants near the slickspots have increased the available fuel
for wildfires and have resulted in more frequent fires. Moreover, “[s]ince post-fire
conditions are favorable for further invasion . . . of nonnative annual grasses, invasive
MEMORANDUM DECISION AND ORDER - 33

grasses soon dominate the community.” (AR 0016.) These conditions have led to “the
establishment of an invasive grass-increased fire frequency cycle.” (Id.)
Although the Service previously recognized wildfire as a threat to slickspot
peppergrass, the Sullivan and Nations report provided “[n]ew evidence suggest[ing] . . . a
significant negative association between cover of nonnative plant species and wildfire and
the abundance of L. papilliferum, such that the species appears to be in decline across its
range, with adverse impacts continuing and likely increasing into the foreseeable future.”
(AR 0015.) Sullivan and Nations found a consistent, statistically significant negative
correlation between wildfire and the abundance of L. papilliferum across its range. (AR
0017.) “Their analysis if 5 years of HIP monitoring data indicated that L. papilliferum
abundance was lower within those slickspot[s] . . . that had previously burned, and the
relationship between L. papilliferum abundance and fire is reported as relatively large and
statistically significant, regardless of the age of the fire or the number of past fires.” (Id.)
(quotation marks and citations omitted.)
Summarizing its discussion of wildfire as a threat to the habitat of slickspot
peppergrass, the Final Rules provides:
The observed increases in frequency and geographic extent of
wildfires, the negative consequences for L. papilliferum and
its habitat associated with the invasion of nonnative grasses
and wildfire, the strong positive feedback loop between
wildfire and conversion of sagebrush-steppe to annual
grasslands, and the lack of effective rangewide control
mechanisms all contribute to the current modified wildfire
regime being the greatest ongoing threat to L. papilliferum’s
existence.
MEMORANDUM DECISION AND ORDER - 34

(AR 0018.) The Service also concluded that “the best available data indicates that fire
frequency is likely to increase in the foreseeable future.” (Id.)
The Service next discusses the other threats to the habitat of slickspot peppergrass,
including invasive nonnative plant species, development, and livestock use, but ultimately
concludes that combination of wildfire and invasive plants poses the most significant
threat to the species and that wildfire mitigation efforts have not been successful. Given
these findings, the Service determined under § 1533(a)(1) that wildfire and invasive
nonnative plants pose a significant threat to the viability of the species throughout its
range, “such that [the Service] anticipate[s] L. papilliferum is likely to become an
endangered species within the foreseeable future.” (AR 0031.)
The Service’s finding underlying the above conclusion are supported by the
administrative record and entitled to deference. See Baltimore Gas & Elec. Co. v. Natural
Res. Def. Council, 462 U.S. 87, 103 (1983). Moreover, Defendants are correct that this
finding was sufficient to list the species.
3.

Foreseeable Future
The ESA defines “threatened” as “likely to become an endangered species within

the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. §
1532(20) (emphasis added). Here, the Final Rule defines foreseeable future “to be that
period of time over which events can reasonably be anticipated.” (AR 0043.) Plaintiffs
argue that this definition is wholly inadequate under the ESA, that it undermines the
entire listing analysis, and that it requires vacatur of the Final Rule and remand for further
MEMORANDUM DECISION AND ORDER - 35

consideration.
Judicial review of an agency’s interpretation of a statute is governed by the twopart formula announced in Chevron v. Natural Resource Defense Council, 467 U.S. 837
(1984). A court reviewing an administrative interpretation of a statute must first ask
“whether Congress has directly spoken to the precise question at issue.” Id. at 842. If the
statute is unambiguous, then the court “must give effect to the unambiguously expressed
intent of Congress” regardless of the agency’s view. Id. at 843. However, if the statute is
silent on the matter, or ambiguous with respect to the specific issue, then the court must
defer to the agency’s interpretation unless that interpretation is unreasonable. Id. at 84344.
The ESA does not define the term “foreseeable future” and the Service has not
promulgated any rules or regulations setting quantitative thresholds to define the term.
The first question under Chevron is whether “foreseeable future” is ambiguous. This
prong is not at issue, as the parties agree that the ESA is silent on the issue and that
Chevron applies. The second prong of the analysis is whether the agency’s interpretation
is reasonable. On this prong, the parties disagree.
The Service’s definition of “foreseeable future” is limited to the following eleven
words: “that period of time over which events can reasonably be anticipated.” (AR 0043.)
Presumably, this definition stems from the Court’s 2005 decision, in which the Court
began its discussion of this very issue with a definition of “foreseeable” from MerriamWebster’s Dictionary of Law as “such as reasonably can or should be anticipated.” Foss,
MEMORANDUM DECISION AND ORDER - 36

2005 WL 2002473 at *15. The Court, however, in no way endorsed this definition as the
definition of “foreseeable future” under the ESA. Instead, the Court specifically stated
that “the definition of “foreseeable future” may vary depending on the particular species.”
Id. at *16. The definition of “‘foreseeable future’ may be defined differently for a sequoia
tree (the National Park Service indicates an age of 3,200 years for a mature tree) than for
the slickspot peppergrass, which is an annual or biennial plant.” Id.
Defendants were not without guidance on this issue. The Court noted in its 2005
decision that “[t]he FWS own experts recommended that the timeframe the panel should
have considered with respect to ‘foreseeable future’ was 60 to 100 years.” Id. at *15.
Similarly, in the 2008 case, it was noted that “[t]he first manager panel defined the
foreseeable future as not greater than 40 years based on the species’ biology, habitat
threats, and other factors.” Moreover, other federal environmental agencies have
constructed workable definitions of “foreseeable future” for other species, and while the
Service was not required to look to those definitions in its analysis of L. papilliferum,
“they are certainly instructive.” Foss, 2005 WL 2002473 at *16. Plaintiffs also point out
that the Service used the life cycle of the sage-steppe ecosystem to define foreseeable
future for the sage-grouse. See 70 Fed. Reg. 2281 (Jan. 12, 2005) (using approximately 30
to 100 years (about 10 greater sage-grouse generations to 2 sagebrush habitat regeneration
cycles)).
Defendants argue that the Court should defer to the Service’s definition because it
is consistent with the U.S. Department of the Interior Solicitor’s M-Opinion 37021: The
MEMORANDUM DECISION AND ORDER - 37

Meaning of ‘Foreseeable Future’ in Section 320 of the Endangered Species Act (Jan. 16,
2009). In that opinion, the Solicitor opined that “[b]ecause a species may be susceptible to
a variety of threats for which different data are available, or which operate across
different time scales, [the Service’s] ability to make reliable predictions may vary
according to the threat at issue. Consequently, the foreseeable future is not necessarily
reducible to a particular number of years.” The opinion also states that “quantifying the
foreseeable future in terms of years may add rigor and transparency to [the Service’s]
analysis if such information is available.” Finally, the opinion states that quantification is
“not required for a ‘foreseeable future’ analysis.”
The Court finds that the Service’s definition in this case is not supported by the MOpinion. The M-Opinion, like the Court’s 2005 decision, makes clear that the definition
of foreseeable future is to be made on a species-by-species basis and through an analysis
of the time frames applicable to the particular species at issue. The Service’s definition in
this case is not species specific. The definition provided by the Service makes no
reference to the actual species at issue. In fact, if this Court upheld the definition, it could
conceivably be used for any species. It is generic on its face. The ESA requires more.
Not only were Defendants on notice through the Court’s 2005 decision that they
must provide an adequate definition of “foreseeable future,” but the requirement that the
Service provide a definition simply does not seem that arduous. The agency has been
provided multiple definitions of “foreseeable future” by multiple scientists and groups of
scientists throughout the listing process involving slickspot peppergrass. The Service
MEMORANDUM DECISION AND ORDER - 38

seems to have simply thrown up its hands after two previous remand orders from this
Court and thrown in the towel on this issue. The Court finds no problem with the
agency’s science. But without a viable definition of foreseeable future, there can be no
listing under the ESA.
As Plaintiffs argue, the failure to provide an adequate definition of foreseeable
future undermines the entire listing. Plaintiffs posit the following question: “how can the
Secretary discern whether the species is ‘likely’ . . . to become an endangered species
[within the foreseeable future] without knowing the accompanying time horizon for
making this determination?” (Dkt. 44 at 19.) The question is well taken. Plaintiffs also
accurately point out that the ESA requires conservation measures “necessary to bring any
. . . threatened species to the point at which the measures provided pursuant to this Act are
no longer necessary.” 16 U.S.C. 1531(3). Without a properly calibrated definition of
foreseeable future, Plaintiffs’ concern that the species will be perpetually listed is wellfounded.
Based upon the above, the Court will vacate the listing on this issue and remand to
the Secretary for further consideration consistent with this decision.10

10

During the hearing on the parties’ cross motions for summary judgment,
Defendants argued that, if the Court found problems with the Service’s definition of
foreseeable future, the Court should remand the case without vacating the Final Rule. In
support of their argument, Defendants directed the Court to In re Polar Bear Endangered
Species Act Listing and § 4(D) Rule Litigation, 748 F.Supp.2d 19 (D.D.C. 2010). In that
case, the court found the phrase “endangered species” in the ESA was ambiguous and
remanded the case – without vacating the listing – for the Service to interpret the phrase,
which would then be binding on the court under Chevron unless the agency’s
MEMORANDUM DECISION AND ORDER - 39

4.

Consideration of Conservation Measures
A listing determination under the ESA may be made only “after taking into

account those efforts . . . being made by any State . . . to protect the species.” 16 U.S.C. §
1533(b)(1)(A). Additionally, the Secretary must consider the “inadequacy of existing
regulatory mechanisms.” 16 U.S.C. § 1533(a)(1). Plaintiffs argue that the Secretary did
not comply with these provisions and failed to adequately consider the conservation
measures undertaken by the State of Idaho to protect L. papilliferum. Specifically,
Plaintiffs direct the Court to the CCA and argue that it should have been given more
weight in the listing determination. Plaintiffs also note that the Service relied upon the
CCA as a basis for withdrawing its proposed listing in 2004 and again referenced the
CCA in its 2007 notice of withdrawal.
Defendants argue that the State’s conservation efforts were given consideration in
the listing determination and that, in light of recently updated information about threats to
the species, the conservation efforts were found not to have adequately addressed (or

interpretation was found to be unreasonable. The court also stated that, “[i]n ordering a
limited remand, the Court does not require the agency to conduct additional fact-finding.”
Id. at 30 n.18.
Here, the Court finds the circumstances distinguishable from those involved in the
Polar Bear litigation. In this case, the Court is not seeking an agency interpretation of an
ambiguous statutory phrase. Rather, the parties in this case concede that the phrase in
issue is ambiguous, and the Court has found that the Service’s definition of the
ambiguous phrase is unreasonable under Chevron. Furthermore, the remand may very
well require additional fact-finding; the Service may decide that an expert panel needs to
be reconvened to offer an opinion on what constitutes the foreseeable future for the
slickspot peppergrass. Given these considerations, the Court finds that vacatur is
appropriate in this case.
MEMORANDUM DECISION AND ORDER - 40

capable of addressing in the future) the threats of wildfires and invasive nonnative plants.
The listing decision states that “[c]urrently, there are no feasible means of controlling the
spread of B. tectorum or the subsequent increase in wildfire frequency and extent once B.
tectorum is established.” (AR 0023.) Based upon a review of the listing, the Court finds
that it was reasonable for the Service to conclude that the CCA’s “effectiveness in
reducing or eliminating the most significant threats has not been demonstrated.” (AR 37.)
5.

Compliance with Section 4(i)
Under Section 4(i) of the ESA, if the Service receives comments from a state

disagreeing with all or part of a proposed listing, and the agency subsequently issues a
final rule that conflicts with those comments, it must then provide the State with a
“written justification” explaining its failure to adopt regulations consistent with the
agency’s comments. 16 U.S.C. 1533(i).
It is undisputed that the State of Idaho submitted comments in this case and that
the Final Rule was contrary to those comments. The Governor claims that the State did
not receive the letter contemplated by Section 4(i). Defendants explain, in a declaration
submitted by Dr. Michele Zwartjes, that a draft letter in compliance with Section 4(i) was
completed by the Service’s regional and field offices and sent to the Service’s
headquarters in D.C. The regional office believed that the D.C. office would sign and
deliver the letter to the Governor. The D.C. office believed that the regional office would
send the letter to the Governor. Because of this mix up, no letter was sent to the State

MEMORANDUM DECISION AND ORDER - 41

until after this litigation was initiated.
Notwithstanding the mix-up, Defendants argue that they satisfied Section 4(i) by
addressing the State’s comments in the listing. (Dkt. 43 at 27, citing In re Polar Bear
Endangered Species Act Listing and 4(d) Rule Litigation, 794 F.Supp.2d 65, 115 (D. D.C.
2011).) Defendants also argue that, even if the failure to send the letter constituted error,
the error was harmless. Because the Court has found that the listing must be vacated and
the case remanded to the agency to define “foreseeable future,” the Court need not
resolve this issue.
ORDER
Based on the foregoing, the Court being otherwise fully advised in the premises,
IT IS HEREBY ORDERED that:
1.

Plaintiffs’ Motion for Summary Judgment (Dkt. 38) is GRANTED. The

Secretary of the Interior’s Final Rule listing L. papilliferum as a threatened species under
the Endangered Species Act is hereby vacated and the matter is remanded for further
consideration consistent with this decision.
2.

Defendants’ Motion for Summary Judgment (Dkt. 42) is DENIED.
DATED: August 8, 2012

Honorable Candy W. Dale
Chief United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 42