Center for Biological Diversity et al v. Kelly et al

Filing 63

MEMORANDUM DECISION AND ORDER Plaintiffs' Motion for Summary Judgment (Dkt. 38 ) is GRANTED IN PART AND DENIED IN PART. Defendants' Motions for Summary Judgment (Dkt. 49 , 51 ) are GRANTED IN PART AND DENIED IN PART. The Final Rule is REMANDED to the United States Fish and Wildlife Service for proceedings consistent with this opinion. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

CENTER FOR BIOLOGICAL
DIVERSITY, DEFENDERS OF
WILDLIFE, CONSERVATION
NORTHWEST, IDAHO
CONSERVATION LEAGUE, SELKIRK
CONSERVATION ALLIANCE, and
THE LANDS COUNCIL,

Case No. 1:13-CV-00427-EJL-CWD
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
BRIAN KELLY, U.S. Fish and Wildlife
Service Idaho State Supervisor, and U.S.
FISH AND WILDLIFE SERVICE,
Defendants.

Pending before the Court in the above-entitled matter are the Cross-Motions for
Summary Judgment filed by the parties in this environmental case. The matters have been
fully briefed and are ripe for the Court’s consideration. Having fully reviewed the record,
the Court finds that the facts and legal arguments are adequately presented in the briefs
and record. Accordingly, in the interest of avoiding further delay, and because the Court
conclusively finds that the decisional process would not be significantly aided by oral
argument, the Motions shall be decided on the record before this Court without a hearing.

MEMORANDUM DECISION AND ORDER

1

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, Center for Biological Diversity, Defenders of Wildlife, Conservation
Northwest, Idaho Conservation League, Selkirk Conservation Alliance, and The Lands
Council, have brought this action against the Defendants, the United States Fish and
Wildlife Service (“FWS”) and Michael Carrier,1 in his capacity as Idaho State Supervisor.
Plaintiffs challenge the FWS’ November 28, 2012 Final Rule designating 30,010 acres in
Idaho and Washington as critical habitat for the southern Selkirk Mountains population of
woodland caribou (“Selkirk Mountains Caribou”) under the Endangered Species Act
(“ESA”). Others have intervened as parties in this action: Kootenai Tribe of Idaho,
Boundary County, Governor C.L. “Butch” Otter, Bonner County, and the Idaho State
Snowmobile Association, Inc. (collectively “Defendant-Intervenors”).2
In 1983, the Selkirk Mountains Caribou was emergency listed as “endangered”
under the ESA. The final rule listing the Selkirk Mountains Caribou as endangered was
entered in 1984 and the species has retained that status since that time.3 Thereafter, FWS
prepared and approved a Management Plan/Recovery Plan for the species which was

1

Plaintiffs originally named Brian Kelly who has since retired. Michael Carrier
now holds the position as United States FWS Idaho State Supervisor and is therefore
substituted in pursuant to Federal Rule of Civil Procedure 25(d).
2

In this Order, the Court has referred to the “Defendants” collectively and, at
times, the FWS in particular.
3

The FWS recently determined that a revision to this listing is appropriate and
proposed amending the current listing to define the Selkirk Mountains Caribou as a part
of the larger Southern Mountain Caribou Distinct Population Segment and designating
that population as “threatened” under the ESA. (Dkt. 51 at 4-5 n. 3) (Dkt. 55 at 2-3.)
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revised in 1994 (“1994 Recovery Plan”). (Dkt. 51 at 7.) On April 11, 2006, the FWS
published a notice of intention to conduct a five-year review for several species including
the Selkirk Mountains Caribou. (Dkt. 51 at 7-8.) That review was completed on
December 5, 2008 wherein the FWS determined that the recovery criteria in the 1994
Recovery Plan were inadequate and no longer the best available information on the
species and its habitat. (Dkt. 51 at 8.) The anticipated revised recovery plan has not yet
been finalized. (Dkt. 51 at 8.)
On December 6, 2002, the FWS was petitioned to designate critical habitat for the
Selkirk Mountains Caribou. On November 30, 2011, the FWS published a Proposed Rule
seeking to designate approximately 375,562 acres as critical habitat in Boundary and
Bonner Counties in Idaho and Pend Oreille County in Washington (the “Proposed Rule”).
(AR28768.) In August of 2012, the FWS created a Draft Final Rule proposing to
designate 227,100 acres of critical habitat. (AR00671-72.) The difference in acres
between the Proposed Rule and the Draft Final Rule was the result of a change in the base
habitat elevation from 4,000 to 5,000 feet in elevation. (AR00032-33 and AR00667.)
On November 28, 2012, the FWS published its final critical habitat designation
(“Final Rule”) for the southern Selkirk Mountains Caribou designating 30,010 acres of
critical habitat. (AR00001-42.)4 This change in total area designated in the Final Rule
results, in part, from the FWS revised determination of the geographic area of occupied

4

An October 12, 2012 FWS’s memo (AR00657-61) and later draft final rule from
November 14, 2012 (AR00464-65) both reflect the changed designation to 30,010 acres
which was the amount ultimately adopted in the Final Rule. (AR00002.)
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habitat for the species and its decision to not designate any unoccupied areas. (AR0009,
23-26.)
Plaintiffs have brought this action under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701 et seq., alleging the Defendants’ violated the ESA, 16 U.S.C.
§ 1531 et seq, in its Final Rule designation. (Dkt. 1.) Defendants maintain their decisions
and actions fully complied with the applicable standards and requirements of the ESA.
(Dkt. 25.) The Intervenors likewise argue that the Final Rule satisfies the requirements of
the ESA and APA. (Dkt. 34, 49, 50, 55, 61, 62.) The parties have filed Cross Motions for
Summary Judgment which the Court has taken up in this Order and finds as follows. (Dkt.
38, 49, 51.)
STANDARD OF REVIEW
Compliance with ESA is reviewed under the APA’s arbitrary or capricious
standard. Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 481 (9th Cir.
2010); 5 U.S.C. § 706(2)(A). Section 706(2)(A) of the APA provides that an agency
action may be set aside only if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Northwest Ecosystem Alliance v. U.S. Fish and
Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (quoting 5 U.S.C. § 706(2)(A)). An
agency decision is arbitrary or capricious if: 1) the agency entirely failed to consider an
important aspect of the issue; 2) the agency offered an explanation for its decision that
was counter to the evidence before it; 3) the agency relied on factors that Congress did
not intend for it to consider; or 4) the agency’s decision is so implausible that it could not

MEMORANDUM DECISION AND ORDER

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be ascribed to the product of agency expertise. See Motor Vehicle Mfrs. Ass’n v. State
Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Under this standard, the Court will “‘sustain an agency action if the agency has
articulated a rational connection between the facts found and the conclusions made.’” San
Luis & Delta-Mendoa Water Auth. v. Locke, 776 F.3d 971, 994 (9th Cir. 2014) (quoting
Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Rec., 426 F.3d 1082, 1090 (9th
Cir. 2005)). Review under the arbitrary and capricious standard “is narrow, and [we do]
not substitute [our] judgment for that of the agency.” Lands Council v. McNair, 537 F.3d
981, 987 (9th Cir. 2008) (citations omitted); Independent Acceptance, 204 F.3d at 1251
(citations and quotations omitted) (“Our task is simply to ensure that the agency
considered the relevant factors and articulated a rational connection between the facts
found and the choices made.”). “Within this narrow review, [the court] cannot substitute
[its] judgment for that of the [agency], but instead must uphold the agency decisions so
long as the agencies have ‘considered the relevant factors and articulated a rational
connection between the facts found and the choice made.’” Selkirk Conservation Alliance
v. Forsgren, 336 F.3d 944, 954 (9th Cir. 2003) (citations omitted). This standard of
review is “highly deferential, presuming the agency action to be valid and affirming the
agency action if a reasonable basis exists for its decision.” Independent Acceptance Co. v.
California, 204 F.3d 1247, 1251 (9th Cir. 2000) (citations omitted).
Thus, under the arbitrary and capricious standard of review, the Court’s “proper
role is simply to ensure that the Forest Service made no ‘clear error of judgment’ that
would render its action ‘arbitrary and capricious.’” McNair, 537 F.3d at 993 (citations
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omitted). Nevertheless, the agency must examine the relevant data and articulate a
satisfactory explanation for its action including a “rational connection between the facts
found and the choice made.” Wildland CPR, Inc. v. U.S. Forest Serv., 872 F.Supp.2d
1064, 1075 (D. Mont. 2012) (citations omitted). In reviewing that explanation, the court
must “consider whether the decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment.” Id. (citations omitted).
“Even when an agency explains its decision with ‘less than ideal clarity,’ a
reviewing court will not upset the decision on that account ‘if the agency's path may be
reasonably discerned.’” Alabama Dep't of Envt'l Conservation v. E.P.A., 540 U.S. 461,
497 (2004) (quoting Bowman Transp. Inc. v. Arkansas-Best Freight Syst., 419 U.S. 281,
286 (1975)). “It is not the reviewing court's task to ‘make its own judgment about’ the
appropriate outcome.” San Luis & Delta-Mendota, 776 F.3d at 994 (quoting River
Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010)). “Congress has
delegated that responsibility to” the agency. Id. “The court's responsibility is narrower: to
determine whether the” agency complied with the procedural requirements of the APA.
Id.
Judicial review of administrative agency decisions under the APA is based on the
administrative record compiled by the agency—not on independent fact-finding by the
district court. Camp v. Pitts, 411 U.S. 138, 142 (1973). In making this determination, the
Court “may not consider information outside of the administrative record...and may not
substitute our judgment for that of the agency.” Independent Acceptance, 204 F.3d at
1251 (citations and quotations omitted). Courts may resolve APA challenges via
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summary judgment. See Nw. Motorcycle Ass’n v. United States Dep’t Agric., 18 F.3d
1468, 1472 (9th Cir. 1994). Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
See Fed. R. Civ. P. 56(a).
ANALYSIS
Plaintiffs claim alleges two violations of the ESA: 1) the Final Rule’s critical
habitat designation is arbitrary and capricious because the Defendants failed to explain
how the limited amount of critical habitat designated is sufficient to recover this
population of caribou and 2) the Defendants failed to provide public notice and comment
on the substantially revised critical habitat designation before issuing the Final Rule.
(Dkt. 38 at 13.) The Defendants and Intervenors maintain that the FWS satisfied the
requirements of the ESA and the Court should uphold the Final Rule’s critical habitat
designation. (Dkt. 49-52, 55, 60, 61, 62.)5
1.

Critical Habitat Designation
The ESA was enacted “to protect and conserve endangered and threatened species

and their habitats.” National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.
644, 651 (2007).6 Such conservation efforts are made under the ESA by listing those

5

There are many similarities in the arguments presented in the Defendants’ briefs.
While the Court may not cite to each of the Defendants’ briefs on every issue raised in
these motions, the Court has reviewed all of the parties’ briefing in this action and
considered the same in ruling on the Motions for Summary Judgment.
6

The purposes of the ESA are “to provide a means whereby the ecosystems upon
which endangered species and threatened species depend may be conserved, to provide a
program for the conservation of such endangered species and threatened species, and to
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species who meet the definition of being either “endangered” or “threatened.” 16 U.S.C.
§§ 1532(6), (20) and § 1533(a)(1). When listing a species under the ESA, “to the
maximum extent prudent and determinable,” the FWS shall also “concurrently ...
designate any habitat of such species which is then considered to be critical habitat.” 16
U.S.C. § 1533(a)(3)(A). “Critical habitat” is defined under the ESA as:
(i) the specific areas within the geographical area occupied by the species,
at the time it is listed in accordance with the provisions of section 1533 of
this title, on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the species at
the time it is listed in accordance with the provisions of section 1533 of this
title, upon a determination by the Secretary that such areas are essential for
the conservation of the species.
16 U.S.C. § 1532(5)(A). Such a designation “triggers mandatory consultation
requirements for federal agency actions involving critical habitat.” Natural Resources
Defense Council v. U.S. Dept. of the Interior, 113 F.3d 1121, 1127 (9th Cir. 1997).
Critical habitat designations are to be made “on the basis of the best scientific data
available and after taking into consideration the economic impact, the impact on national
security, and any other relevant impact, of specifying any particular area as critical
habitat.” 16 U.S.C. § 1533(b)(2).
After identifying the geographic area that meets this two-pronged definition, the
Service may nonetheless exclude certain portions of that area “if [it] determines that the

take such steps as may be appropriate to achieve the purposes of the treaties and
conventions set forth in subsection (a) of this section.” 16 U.S.C. § 1531(b).
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benefits of such exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless ... the failure to designate such area as critical habitat will result in
the extinction of the species concerned.” 15 U.S.C. § 1533(b)(2). The FWS has
significant discretion in determining whether to exclude particular areas. See 16 U.S.C. §
1533(b)(2). Thus, the critical habitat designation generally involves three steps:
(1) identifying those areas occupied by the species that contain the features
essential to the species' survival, (2) determining if any areas unoccupied by
the species are essential for the conservation of the species, and then (3)
excluding from these two areas any portions where the benefits of exclusion
outweigh the benefits of inclusion, so long as such exclusion will not result
in the species' extinction.
Ctr. for Biological Diversity v. U.S. Fish and Wildlife Serv., No. 5:09-cv-90, 2011 WL
73494, at *2 (C.D. Cal. Jan. 8, 2011). This designation is further governed by regulations
requiring the FWS to “focus on the principal biological or physical constituent elements
within the defined area that are essential to the conservation of the species.” 50 C.F.R. §
424.12(b).7 These “principal constituent elements” (“PCEs”) “may include, but are not
7

In determining critical habitat areas, ESA regulations require the FWS to
consider
those physical and biological features that are essential to the conservation
of a given species and that may require special management considerations
or protection. Such requirements include, but are not limited to the
following:
(1) Space for individual and population growth, and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological
requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, rearing of offspring, germination, or
seed dispersal; and generally,
(5) Habitats that are protected from disturbance or are representative of the
historic geographical and ecological distributions of a species.
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limited to, the following: roost sites, nesting grounds, spawning sites, feeding sites,
seasonal wetland or dryland, water quality or quantity, host species or plant pollinator,
geological formation, vegetation type, tide, and specific soil types.” Id.
A.

Critical Habitat Sufficient to Recover the Species

Plaintiffs assert the FWS failed to adequately explain how the limited amount of
critical habitat designated in the final rule is sufficient to recover this population of
caribou. Plaintiffs’ claim is based on their contention that the purpose of critical habitat
and the ESA are to recover the endangered species. (Dkt. 38 at 13) (Dkt. 57 at 2, 5.)
Defendants’ dispute that the ESA requires designation of sufficient critical habitat to
guarantee, by itself, the recovery of the species. (Dkt. 51 at 25) (Dkt. 55 at 8) (Dkt. 60 at
5.) Defendants instead argue that the ESA’s recovery requirement for the listing
determination is not applicable to the critical habitat designation. (Dkt. 6-7.) Further,
Defendants argue, a greater showing is required to designate unoccupied areas as critical
habitat as opposed to occupied areas. (Dkt. 60 at 6.)

When considering the designation of critical habitat, the Secretary shall
focus on the principal biological or physical constituent elements within the
defined area that are essential to the conservation of the species. Known
primary constituent elements shall be listed with the critical habitat
description. Primary constituent elements may include, but are not limited
to, the following: roost sites, nesting grounds, spawning sites, feeding sites,
seasonal wetland or dryland, water quality or quantity, host species or plant
pollinator, geological formation, vegetation type, tide, and specific soil
types.
50 C.F.R. § 424.12(b).
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Resolution of this issue turns on the FWS’s interpretation of the ESA. In reviewing
an agency's interpretation of a statute that it administers, the Court employs the two-step
analysis set forth in Cheveron U.S.A. v. Natural Resorces Def. Council, Inc., 467 U.S.
837, 847-48 (1984). Under that framework, the Court first considers “whether Congress
has directly spoken to the precise question at issue. If the intent of Congress is clear, that
is the end of the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 842–43. “[I]f the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of the statute.” Id. at 843. Here,
the Court finds the Defendants’ interpretation that its critical habitat designation need not
“prove” that it will “ensure” the recovery of the species is contrary to the plain language
and purpose of the ESA. (Dkt. 60 at 5.)
“Congress enacted the Endangered Species Act (“ESA”) in 1973 ‘to provide a
means whereby the ecosystems upon which endangered species and threatened species
depend may be conserved.’” Trout Unlimited v. Lohn, 559 F.3d 946, 949 (9th Cir. 2009)
(quoting 16 U.S.C. § 1531(b)). “The ESA’s ‘primary purpose ... is to prevent animal and
plant species endangerment and extinction caused by man's influence on ecosystems, and
to return the species to the point where they are viable components of their ecosystems.’”
Id. (quoting H.R. Rep. No. 95–1625, at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 9453,
9455). Congress enacted the ESA “to protect and conserve endangered and threatened
species and their habitats.” National Ass’n of Home Builders, 551 U.S. at 651. “‘[T]he
purpose of establishing critical habitat is for the government to carve out territory that is
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not only necessary for the species' survival but also essential for the species’ recovery.’
Thus, [the] FWS [must] be more generous in defining area as part of the critical habitat
designation.’” Home Builders Ass’n of Northern Cal. v. U.S. Fish and Wildlife Serv., 616
F.3d 983, 989 (9th Cir. 2010) (quoting Gifford Pinchot Task Force v. U.S. Fish and
Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir. 2004)).8
The designation of critical habitat is the principal means for conserving an
endangered species, by protecting not simply the species, but also the
ecosystem upon which the species depends. In fashioning the ESA, it was
Congress' understanding that the preservation of species' habitat is essential
to the preservation of the species itself.
Center for Biological Diversity v. Kempthorne, 607 F.Supp.2d 1078, 1086 (D. Ariz.
2009) (internal citations and quotations omitted).
Critical habitat is defined and designated “in relation to areas necessary for the
conservation of the species, not merely to ensure its survival.” Arizona Cattle Growers'
Ass'n v. Salazar, 606 F.3d 1160, 1166 (9th Cir. 2010); see also Gifford Pinchot, 378 F.3d
8

Gifford Pinchot was a Section 7 ESA case involving a challenge to the FWS’s
interpretation of “adverse modification,” 50 C.F.R. § 402.02. Gifford Pinchot, 378 F.3d at
1069. There, the Ninth Circuit concluded that the regulatory definition of “adverse
modification” was inconsistent with the purpose of the ESA to establish critical habitat
not only for the survival of a listed species but also for that species’ conservation and
recovery. Id. at 1069-71. The Defendants argue Gifford Pinchot is irrelevant because this
case raises the critical habitat designation requirements found in Section 4 of the ESA,
not Section 7’s adverse modification provision. (Dkt. 60 at 8.) By citing to Gifford
Pinchot here, the Court is not imposing Section 7’s consultation requirements on the
FWS’s critical habitat designation made under Section 4. Instead, the Court finds
instructive Gifford Pinchot’s discussion regarding the ESA’s use of the term conservation
as applied to critical habitat designations of listed species as demanding more than mere
survival of the species; i.e., conservation means using methods and procedures necessary
to bring a species to the point where listing is no longer required. Id. Under that definition
as used in the ESA, conservation necessarily encompasses recovery. See 16 U.S.C.
§ 1532(3).
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at 1070 (discussing the difference between conservation and survival). In this context,
conservation means “to use and the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the point at which the
measures provided pursuant to this chapter are no longer necessary.” 16 U.S.C. § 1532(3),
(5)(A). Thus, the whole point behind designating critical habitat is to identify those
physical and biological features of the occupied area and/or those unoccupied areas that
are essential to the conservation of a species with the aim of arriving at the point where
the species is recovered, i.e., no longer in need of the measures provided for in the ESA.
See 16 U.S.C. § 1532(3); see also Arizona Cattle Growers, 606 F.3d at 1166 (The
purpose of the ESA “‘to prevent animal and plant species endangerment and extinction
caused by man's influence on ecosystems, and to return the species to the point where
they are viable components of their ecosystems.’”) (quoting Trout Unlimited, 559 F.3d at
949 (quoting H.R. Rep. No. 95-1625, at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 9453,
9455)). Failing to make such designations with that aim in mind is arbitrary and
capricious. Because the Defendants’ interpretation of the ESA’s critical habitat
designation is contrary to both the plain language and a permissible construction of the
statute, the Defendants are entitled to no deference here. See Center for Biological
Diversity v. Norton, 240 F.Supp.2d 1090, 1100 (D. Ariz. 2003) (citing Chevron, supra).
The Court recognizes the distinction between the ESA’s requirements for the
recovery plan as opposed to those applicable to critical habitat designations. Home
Builders, 616 F.3d at 989-90 (The “ESA does require a determination of criteria for
measuring when a species will be conserved, but that requirement applies to the
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preparation of a recovery plan.”) (citing 16 U.S.C. § 1533(f)(1)(B)(ii)); see also Aina Nui
Corp. v. Jewell, 2014 WL 4905076, at *10 (D. Hawai’i Sept. 30, 2014) (discussing the
distinction between a critical habitat designation and the recovery planning
requirements.). The plain language and structure of the ESA provides that the requirement
for designating critical habitat (16 U.S.C. § 1533(a)(3)) is separate from the requirement
for preparing a recovery plan (16 U.S.C. § 1533(f)). This distinction does not, however,
change the fact that the critical habitat designation language in the ESA is intended to
ensure “conservation” of the species.
Although the ESA does not require that FWS identify specific recovery criteria at
the time of the designation, the ESA’s critical habitat designation still requires a
determination of what physical or biological features are “essential to the conservation of
the species” even if it does not know precisely how or when recovery of a viable
population will be achieved. Home Builders, 616 F.3d at 989 (citing 16 U.S.C. §
1532(5)(A)) (rejecting argument that FWS must first identify the point at which the
endangered species is considered conserved before it designates critical habitat.); Arizona
Cattle Growers, 534 F.Supp.2d at 1025 (“While tempting in its logical simplicity...the
language of the ESA requires a point of conservation to be determined in the recovery
plan, not at the time of critical habitat designation.”). That determination necessarily
encompasses identifying features that will achieve the ESA’s purpose of conservation
which is recovery of the species to the point that the ESA’s protective measures are no
longer needed. 16 U.S.C. § 1532(3). Thus, under the ESA the FWS is required to
designate areas with the necessary features to promote that purpose. This is evident not
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only from the express language of the ESA but also the intent behind the legislation. The
question in this case then is whether or not the Defendants have properly designated
critical habitat “essential to the conservation” of the Selkirk Mountains Caribou. 16
U.S.C. § 1532(5)(A).
B.

Rational Basis for the Final Rule Critical Habitat Designation

Defendants argue that the Final Rule’s critical habitat designation is rationally
based on the best available scientific data. (Dkt. 51 at 11) (Dkt. 60 at 2-5.) Plaintiffs
counter that the decision is arbitrary and capricious because it fails to explain how the
critical habitat determination provides for recovery of the species. (Dkt. 38 at 13.) In
particular, Plaintiffs claim the Final Rule does not explain a rational connection as to 1)
the decision to limit the designation to occupied habitat and 2) reliance on Canadian lands
and management. (Dkt. 38 at 19-28.)
1.

Occupied and Unoccupied Habitat

“Under ESA § 3(5)(A), an area constitutes ‘critical habitat’ if it meets the
requirements for occupied habitat or for unoccupied habitat.” Home Builders, 616 F.3d at
990 (citing 16 U.S.C. § 1532(5)(A)). The standard for designating unoccupied habitat is
more demanding than that of occupied critical habitat. Id. “The statute thus differentiates
between ‘occupied’ and ‘unoccupied’ areas, imposing a more onerous procedure on the
designation of unoccupied areas by requiring the Secretary to make a showing that
unoccupied areas are essential for the conservation of the species.” Arizona Cattle
Growers, 606 F.3d at 1163. “[W]hen an agency is acting within its expertise to make a

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scientific determination a reviewing court must generally be at its most deferential.” Id. at
1167 (citations and quotations omitted).
The Final Rule designates 30,010 acres of occupied land as critical habitat for the
Selkirk Mountains Caribou; a reduction of approximately 345,522 acres from the
Proposed Rule’s designation. (AR00002.) Both the Final Rule and the Proposed Rule
concluded that “there were no areas within the United States outside the geographical
area occupied at the time of listing that are essential to the conservation of the species.”
(AR00027) (AR28773.) In redefining the occupied area, the FWS stated it applied the
best available scientific data including reevaluating surveys, census monitoring data,
information and literature, and caribou observations. (AR00002.) This reassessment of
the geographic area of occupation generally resulted in the conclusion that the species’
area of occupation in the United States was significantly less than presented in the
Proposed Rule. (AR00027.) For instance, the FWS noted the “anecdotal reports of
caribou sightings” do not satisfy the best available scientific data standard and have not
been considered. (AR00028.) Final Rule then goes on to identify the physical or
biological features essential to the conservation of the species. (AR00028-30.) Ultimately
the Final Rule “determined that there are no areas within the United States outside the
geographical area occupied at the time of listing that are essential to the conservation of
the species” and designates “as critical habitat lands that [the FWS has] determined are
occupied at the time of listing and contain sufficient PBFs to support life-history
processes essential for the conservation of the southern Selkirk Mountains population of
woodland caribou.” (AR00027, 33.)
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Plaintiffs challenge that this reasoning is arbitrary and capricious because the
decline of the species should not form the basis for not designating unoccupied habitat.
(DKt. 38 at 20.) Limiting critical habitat to the occupied area, Plaintiffs also argue, will
not allow for recovery of the species and is contrary to the purpose of the ESA. Plaintiffs
further challenge the science relied upon by FWS in the Final Rule used to make this
determination arguing there is no basis given to support the FWS’s contention that the
areas formerly used by the caribou are not essential to its recovery. (Dkt. 38 at 22.)
Defendants maintain the best available science was used in making the Final Rule’s
critical habitat determination. (Dkt. 50 at 6-8) (Dkt. 51 at 11-21) (Dkt. 61 at 4-11.)
This is a matter within the FWS’s particular area of expertise that is entitled to
great deference. See Arizona Cattle Growers, 606 F.3d at 1163-65. The Final Rule
appears to articulate a rational connection between the facts and the scientific evidence
relied upon by the FWS in determining the geographic occupancy area of critical habitat
for the Selkirk Mountains Caribou. While the Final Rule’s analysis seems reasonably
based on the best available science, the Court does not make this determination
conclusively at this time in light of the ruling below concerning the procedural
requirements necessitating a further public review and comment period.
As to Plaintiffs’ argument challenging the determination that unoccupied areas
were not essential to the species, the Defendants contend that because the occupied
critical habitat designation was determined to contain sufficient PBFs to support lifehistory processes essential for the conservation of the [species] that there was no basis to
designate unoccupied habitat. (Dkt. 51 at 22) (Dkt. 61 at 4-11.) Moreover, Defendants
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point out that the FWS did consider unoccupied areas and determined they were not
essential to the conservation of the species. (Dkt. 51 at 23.)
Again, designation of areas outside the geographic area occupied by the species as
critical habitat necessitates a heightened finding that such areas are essential for the
conservation of the species. See Arizona Cattle Growers, 606 F.3d at 1163-65; 16 U.S.C.
§ 1532(5)(A)(ii). The applicable regulation specifies that “[t]he Secretary shall designate
as critical habitat areas outside the geographical area presently occupied by a species only
when a designation limited to its present range would be inadequate to ensure the
conservation of the species.” 50 C.F.R. § 424.12(e).
The Final Rule discusses the FWS’s reasoning underlying its designation of the
geographical area of occupation by the Selkirk Mountains’ Caribou. As noted above, this
is a matter within the FWS’s unique area of expertise and afforded great deference. If that
reasoning was based on the best available science and the FWS’s explanation of its
determination that the occupied area was adequate to ensure the conservation of the
species was reasonable, the FWS is not required to designate unoccupied areas as critical
habitat. Again, the Court does not make this finding at this time.
The Court’s discussion on this issue here is only preliminarily in light of the
Court’s determination below that Defendants violated the ESA’s procedural public review
and comment requirement. Because this matter will be remanded to the FWS for further
proceedings to cure that procedural error, the Court’s discussion in this section is intended
only to provide assistance to the parties going forward but is not binding in any future
proceedings.
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2.

Canadian Lands and Management

Plaintiffs also challenge the Final Rule’s reliance on lands located in and managed
by Canada as a basis for not designating more area as critical habitat in the United States.
(Dkt. 38 at 25-28.) Defendants maintain that the designation of 30,010 acres in the United
States coupled with the land Canada has protected are sufficient to provide for a selfsustaining caribou population and the total area exceeds the Recovery Plan’s goals. (Dkt.
51 at 28.) The Defendants further represent that their consideration of Canadian lands was
part of its “determination as to whether an areas not occupied at the time of listing were
essential to the conservation of the species, such that they also met the definition of
‘critical habitat.’” (Dkt. 51 at 29) (Dkt. 61 at 7-8.)
The Final Rule’s discussion relying on the Canadian land was not similarly
included in the Proposed Rule nor did it flow from the same reasoning. For the reasons
sated in the following section of this Order, the Court finds the considerations relating to
Canadian lands have not been subject to public review and comment as required by the
ESA and APA. This matter will be remanded to the FWS with instructions for it to take
action to correct that procedural shortcoming. Accordingly, the Court makes no ruling in
regard to this material at this time.
2.

Public Notice and Comment
Plaintiffs argue the Defendants violated the procedural requirements of the ESA

and APA by failing to provide for public notice and comment on the substantially revised
critical habitat designation made in the Final Rule. (Dkt. 38 at 28.) Defendants maintain

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they were not required to provide an additional notice and comment period prior to
issuing the Final Rule because they had already provided for extensive public
commenting and the changes to the Final Rule were logical outgrowth of the Proposed
Rule and within the ambit of the solicited topics and public comments such that the
changes could have been anticipated. (Dkt. 51 at 31-35)9 (Dkt. 50 at 3-6)(Dkt. 55 at 1117) (Dkt. 61 at 2-4) (Dkt. 62 at 4-5.)
The ESA and APA require the FWS to provide the public with notice and to accept
comment on any proposed listing or critical habitat designation. See 16 U.S.C. §
1536(b)(5)(A), 1533(b)(8); 5 U.S.C. § 553(b)-(c). The final rule need not, however, be
identical to the proposed rule. “The law does not require that every alteration in a
proposed rule be reissued for notice and comment.” Natural Resources Defense Council
v. U.S. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002) (citation omitted). Yet, a “final rule
which departs from a proposed rule must be a ‘logical outgrowth’ of the proposed rule.”
Id. at 1186; see also Environmental Defense Center, Inc. v. U.S. EPA, 344 F.3d 832, 851
(9th Cir. 2003). “The essential inquiry focuses on whether interested parties reasonably
could have anticipated the final rulemaking from the draft.” Id. (internal quotation and
citation omitted). “In determining this, one of the salient questions is ‘whether a new
round of notice and comment would provide the first opportunity for interested parties to

9

The Defendants point out that several rounds of public comment periods were
held, along with numerous public meetings, and two public hearings. (Dkt. 51 at 32.) In
addition, Defendants note that they solicited peer reviews and public comments
specifically on the question of what areas were occupied at the time of listing. (AR0000425.) The FWS received hundreds of public comments and four peer reviews on this issue.
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offer comments that could persuade the agency to modify its rule.’” Id. (citations
omitted). “The purpose of the notice and comment requirement is to provide for
meaningful public participation in the rule-making process.” Idaho Farm Bureau Fed. v.
Babbitt, 58 F.3d 1392, 1404 (9th Cir. 1995) (citation omitted).
The FWS is not required to reopen the comment period unless the information is
critical. Idaho Farm Bureau, 58 F.3d at 1403 (citation omitted); Kern County Farm
Bureau v. Allen, 450 F.3d 1072, 1074 (9th Cir. 2006). After the close of the comment
period, the agency can add information that responds to comments on the proposed
rulemaking, or “supplementary” data that “‘expand[s] on and confirm[s]’ information
contained in the proposed rule[ ] and addresses ‘alleged deficiencies’ in the pre-existing
data,” provided no prejudice is shown. Id. at 1402.
In Idaho Farm Bureau, the Ninth Circuit concluded that the agency’s reliance
upon a USGS study that was not available to the public at the time the final listing
decision was issued was critical to the agency's decision because the report “provided the
only scientific information on the cause of decline in spring flows. The USGS study
provided unique information that was not duplicated in other reports.” Idaho Farm
Bureau, 58 F.3d at 1403. Thus, the agency was required to “provide an opportunity for
public comment on the final USGS report and reconsider the listing decision thereafter.”
Id. at 1404.
In Kern County Farm Bureau, on the other hand, the Ninth Circuit held that three
post-comment period studies were not critical to the listing decision. There, the Ninth
Circuit distinguished the circumstances from those found in Idaho Farm Bureau based on
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the fact that “the new materials do not provide the sole, essential support for the listing
decision.” Kern, 450 F.3d at 1079. The Ninth Circuit found that because the studies in
Kern “confirm and expand on existing data, providing additional grounds,” and “did not
alter the justifications or conclusions that were vital to the listing decision,” they were not
critical to the listing decision and agency was not required to reopen the public comment
period. Id.
Here, Defendants maintain that the changes to the Final Rule could have been
anticipated because the FWS explicitly solicited comments on the basis for the reduction
and received several comments and peer reviews pointing out flaws in the FWS’s
approach taken in the Proposed Rule. (Dkt. 60 at 18) (Dkt. 55 at 14-15.) Plaintiffs counter
that they could not have reasonably anticipated the “fundamental shift” in reasoning by
the FWS leading to the Final Rule’s determination that 375,562 acres in the United States
were no longer essential for recovery of the species and that only 30,010 acres would now
be designated as critical habitat. (Dkt. 57 at 17-18.) The Court agrees with Plaintiffs.
The Final Rule contains a lengthy discussion of the peer reviews and public
comments received which prompted the FWS’s reassessment as well as a section
summarizing the changes from the Proposed Rule. (AR00002-27.) The Final Rule reveals
that the FWS made a fundamental and dramatic change in reasoning based on materials
not previously discussed or cited in the Proposed Rule. Those materials form the basis for
the FWS’s conclusion in the Final Rule that the critical habitat needed in the United
States is only 30,010 acres because (1) the caribou population occupying habitat in the
United States is much less than the studies relied on in the Draft Rule suggest, (2) the
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caribou are occupying more habitat in Canada, and (3) Canada is managing its lands to
protect the species. (AR00023-27.) The Court finds the reasoning underlying the Final
Rule’s habitat designation could not have been anticipated as it does not logically flow
from the Draft Rule’s reasoning. The new basis for the Final Rule’s designation is the
FWS’s reevaluation of data from different materials as prompted in large part by four
peer reviews. Further, the Court finds the materials underlying the reasoning in the Final
Rule are not “supplemental” to the prior logic of the Proposed Rule.
In making its revised determination of the geographical area occupied by the
species in the Final Rule, the FWS considered peer review comments as well as studies
conducted by “Scott and Servheen” and “DeGroot and Wakkinen.” (AR00024-26.) These
materials are the basis for the dramatic reduction in the size of the geographical area of
occupation found in the Final Rule which were not discussed in the Proposed Rule. While
both the Proposed Rule and the Final Rule recognized that the number of caribou in the
United States had “dwindled” and that the bulk of the population primarily occupied
habitat in Canada, the Proposed Rule still defined the geographic area occupied by the
Selkirk Mountains Caribou as comprising some 375,562 acres in the United States based
on the studies and materials reflecting that there exists at least a small population of the
species in the United States. (AR00027) (AR28772, 2877-79.) Following periods of
public commenting and receipt of the four peer reviews, the FWS “reevaluated” and
“reassessed” its critical habitat designation in the Final Rule, changing its analysis of the
geographical area occupied by the species which resulted in a significant reduction to the
area proposed for designation based on materials not mentioned in the Proposed Rule.
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(AR00002-5) (noting the Proposed Rule incorrectly equated occupancy with approximate
area of utilization.) The Court does not fault the ultimate conclusion reached in the Final
Rule on this issue. In fact, the Court agrees with the Defendants that the FWS can and
should undertake such reassessments of its positions when presented with better scientific
evidence. The Court appreciates the candor with which the FWS explained its change in
analysis in the Final Rule. Such an unexpected and significant change in reasoning based
on materials not previously discussed in the Proposed Rule, however, require an
additional period of public review and comment.
As to the consideration of Canada’s land management in particular, the Defendants
counter that they did not rely “heavily” on those plans nor were they vital or of singular
importance in arriving at its decision. (Dkt. 60 at 19.) The Defendants’ maintain that Final
Rule was instead based on the FWS’s reevaluation of the best available science
concerning lands in the United States based on the research identified by the peer
reviewers and public comments. (Dkt. 61 at 2-3.) Thus, the management plans were
merely additional supporting documentation regarding relevant lands that the FWS knew
to be managed in Canada. (Dkt. 55 at 15-16.)
The Court finds the materials showing greater numbers of the species in Canada
are in some respects similar to the FWS’s finding in both the Final Rule and the Proposed
Rule that caribou are occupying more habitat in Canada than in the United States. The
procedural problem here, however, is the Final Rule’s reasoning relying upon the
Canadian management of caribou habitat as a basis for its rational to reduce the amount of
critical habitat designated in the United States. Had these materials simply been more
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current data of occupation numbers they would be supplemental to the reasoning
expressed in the Proposed Rule. The Final Rule, however, used these materials to support,
at least in part, its new reasoning that the protected Canadian lands are sufficient critical
habitat for the species and, therefore, significantly less critical habitat need be designated
in the United States. Recognizing that the caribou are occupying more land in Canada is
one thing. Relying on protected Canadian lands as a basis for overhauling the amount of
occupied habitat proposed for designation in the United States was a new and
unanticipated line of logic, which the public did not have an opportunity to review and
comment on.
The Court acknowledges the many hearings and opportunities for public comment
provided by the FWS but finds that the critical deviation in reasoning made in the Final
Rule demands an additional period of public review. The Court makes clear that it is not
finding here that the FWS’s reasoning is unsound or arbitrary and capricious. The error in
this case is a procedural one resulting from the FWS failing to provide a period of public
review and comment on the Final Rule’s critical change in reasoning, however logical
that reasoning may ultimately turn out to be.
Based on the foregoing, the Court finds that the FWS failed to provide the public
with the requisite opportunity to review and comment on the Final Rule. As such, the
Court will remand this matter to the FWS for it to cure the procedural error in regards to
affording the necessary public comment period and consider anew the critical habitat
designation in light of those comments.

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ORDER
NOW THEREFORE IT IS HEREBY ORDERED as follows:
1)

Plaintiffs’ Motion for Summary Judgment (Dkt. 38) is GRANTED IN
PART AND DENIED IN PART.

2)

Defendants’ Motions for Summary Judgment (Dkt. 49, 51) are GRANTED
IN PART AND DENIED IN PART.

3)

The Final Rule is REMANDED to the United States Fish and Wildlife
Service for proceedings consistent with this opinion.
DATED: March 23, 2015

Honorable Edward J. Lodge
U. S. District Judge

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