Wildearth Guardians et al
Filing
62
ORDER granting in part and denying in part (31) Motion for Summary Judgment; granting in part and denying in part (34) Motion for Summary Judgment; granting (40) Motion ; granting in part and denying in part (42) Motion for Summary Judgment in ca se 9:14-cv-00270-DLC; granting in part and denying in part (31) Motion for Summary Judgment; granting in part and denying in part (40) Motion for Summary Judgment; granting (46) Motion ; granting in part and denying in part (48) Motion for Summary Judgment in case 9:14-cv-00272-DLC. Signed by Chief Judge Dana L. Christensen on 9/7/2016. Associated Cases: 9:14-cv-00270-DLC, 9:14-cv-00272-DLC (DLE)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
WILDEARTH GUARDIANS, a nonprofit organization; CONSERVATION
NORTHWEST, a non-profit organization;
OREGON WILD, a non-profit
organization; CASCADIA WILDLANDS,
a non-profit organization; and
WILDERNESS WORKSHOP,
CV 14–270–M–DLC
(Consolidated with Case No.
14–272–M–DLC)
ORDER
Plaintiffs,
vs.
U.S. DEPARTMENT OF THE
INTERIOR, a federal department;
SALLY JEWELL, in her official capacity
as Secretary of the Interior; DANIEL
ASHE, in his official capacity as Director
of the U.S. Fish and Wildlife Service; and
U.S. FISH AND WILDLIFE SERVICE, a
federal agency,
Defendants.
Before the Court are cross-motions for summary judgment1 in these
1
Also pending is Defendants’ motion to strike extra-record materials appended to
Plaintiffs’ summary judgment briefs, as well as alleged improper legal arguments included in
Plaintiffs’ statement of facts. Because the Court’s decision in no way relied upon those materials
and arguments, the Court will grant Defendants’ motion to strike.
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consolidated cases challenging the United States Fish & Wildlife Service’s (the
“Service”) revised designation of critical habitat for the Canada lynx (“lynx”),
published in the Federal Register on September 12, 2014 (the “September 2014
final rule”). (FR-0052392 et seq.). The Court held a hearing on the motions on
March 9, 2016. For the reasons explained below, the Court grants the motions in
part, denies the motions in part, and remands this matter to the Service for further
consideration consistent with this order.
BACKGROUND
The Service’s effort to designate lynx critical habitat in the contiguous
United States has consumed sixteen years and frequently overlapped with the
federal court system. On March 24, 2000, the Service published a final rule listing
the lynx as a threatened species in fourteen states. (LIT-012981 et seq.) However,
due to budgetary concerns, the Service deferred critical habitat designation and
pledged to “develop a proposal to designate critical habitat . . . as soon as feasible,
considering . . . workload priorities.” (LIT-013013.) When the process
languished, a collection of environmental groups sued the Service in the United
States District Court for the District of Columbia, and obtained a court order
2
The Court will employ the government’s method of citing to the administrative record in
this case, which consists of a directory code (“FR” for Final Rule Development, “PR” for
Proposed Rule Development, etc.) followed by a page number specific to that directory.
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directing the Service to publish a final rule designating lynx critical habitat by
November 1, 2006. (LIT-013081.) The Service published the final rule on
November 9, 2006, and with it designated 1,841 square miles over four “units”
nationwide3. (LIT-013102.) Less than a year later, faced with “questions . . .
about the integrity of scientific information used and whether the decision made
3
The Service included the following description of the “procedural and resource
difficulties” it confronted leading up to the 2006 final rule:
“We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits
challenging critical habitat determinations once they are made.
These lawsuits have subjected the Service to an ever-increasing
series of court orders and court-approved settlement agreements,
compliance with which now consumes nearly the entire listing
program budget. This leaves the Service with little ability to
prioritize its activities to direct scarce listing resources to the
listing program actions with the most biologically urgent species
conservation needs. The consequence of the critical habitat
litigation activity is that limited listing funds are used to defend
active lawsuits, to respond to Notices of Intent (NOIs) to sue
relative to critical habitat, and to comply with the growing number
of adverse court orders. As a result, listing petition responses, the
Service’s own proposals to list critically imperiled species, and
final listing determinations on existing proposals are all
significantly delayed. The accelerated schedules of court ordered
designations have left the Service with limited ability to provide
for public participation or to ensure a defect-free rulemaking
process before making decisions on listing and critical habitat
proposals, due to the risks associated with noncompliance with
judicially imposed deadlines. This in turn fosters a second round
of litigation in which those who fear adverse impacts from critical
habitat designations challenge those designations. The cycle of
litigation appears endless, and is very expensive, thus diverting
resources from conservation actions that may provide relatively
more benefit to imperiled species.
(LIT-013080–81.)
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was consistent with the appropriate legal standards,” the Service announced it
would revisit its lynx critical habitat designation. (LIT-013187.) The Service
published a final rule revising its earlier lynx critical habitat designation on
February 25, 2009, this time identifying approximately 39,000 square miles of
critical habitat over five units in Maine, Minnesota, Montana, Wyoming, Idaho,
and Washington. (LIT-013186.)
Three months later, four environmental groups—including several of the
plaintiffs in these two cases—filed suit challenging the Service’s designation.
This Court granted the plaintiffs’ motion for summary judgment in part, and found
that the Service ran afoul of the ESA with regard to its treatment of occupied
critical habitat. Alliance for the Wild Rockies v. Lyder, 726 F. Supp. 2d 1126,
1145 (D. Mont. 2010) [hereinafter, Lyder]. Specifically, the Court found that: (1)
with respect to Montana and Idaho, the Service impermissibly relied upon a lack
of reproductive data to support its conclusion that certain areas did not contain the
“primary constituent elements” (“PCE”) of lynx critical habitat; and (2) with
respect to Colorado, the Service impermissibly concluded that the PCE was not
present because the available data did not suggest that the lynx population in
Colorado was self-sustaining. Id. at 1134, 1137. The Court remanded the
February 2009 final rule to the Service for further consideration, but also ordered
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that the rule would remain in place until superseded by a revised designation. Id.
at 1145. The subsequently-revised designation, published September 12, 2014, is
the subject of the instant lawsuit.
Plaintiffs in CV 14–270–M–DLC and CV 14–272–M–DLC filed their
respective Complaints on November 17, 2014. In their joint case management
plans, Plaintiffs asserted that the cases shared common questions sufficient to
justify consolidating the two matters, and the Court so ordered under case number
CV 14–270–M–DLC on January 12, 2015. The parties stipulated that Plaintiffs in
each case would file separate summary judgment briefing, while Defendants
would file consolidated briefing. Plaintiffs filed their opening briefs in late July
2015, briefing concluded in December 2015, and the Court held a hearing on the
motions on March 9, 2015.
LEGAL STANDARDS
I.
Summary Judgment
A party is entitled to summary judgment if it can demonstrate that ‘there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is warranted where
the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Only disputes over
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facts that might affect the outcome of the lawsuit will preclude entry of summary
judgment; factual disputes that are irrelevant or unnecessary to the outcome are
not considered. Id. at 248. “[S]ummary judgment is an appropriate mechanism for
deciding the legal question of whether [an] agency could reasonably have found
the facts as it did” based upon the “evidence in the administrative record.” City &
Cnty. of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997)
(citations omitted).
II.
Administrative Procedure Act
Courts review claims regarding the ESA under the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. See Native Ecosystems Council v.
Dombeck, 304 F 3d 886, 891 (9th Cir. 2002). Under the APA, a “reviewing court
shall hold unlawful and set aside agency action . . . found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). The Court’s scope of review is narrow, and the Court
should “not substitute its judgment for that of the agency.” Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A
decision is arbitrary and capricious:
only if the agency relied on factors Congress did not
intend it to consider, entirely failed to consider an
important aspect of the problem, or offered an
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explanation 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.
Gardner v. U.S. Bureau of Land Mgmt., 638 F3d 1217, 1224 (9th Cir. 2011). An
agency’s actions are valid if it “considered the relevant factors and articulated a
rational connection between the facts found and the choices made.” Id. (internal
quotation marks omitted). If the record supports the agency’s decision, that
decision should be upheld even if the record could support alternative findings.
Arkansas v. Oklahoma, 503 U.S. 91, 112-113 (1992). Review of the agency’s
action is “highly deferential, presuming the agency action to be valid.”
Buckingham v. Sec’y of U.S. Dep’t of Agric., 603 F.3d 1073, 1080 (9th Cir. 2010).
However, this presumption does not require courts to “rubber stamp”
administrative decisions “they deem inconsistent with a statutory mandate or that
frustrate the congressional policy underlying a statute.” Bureau of Alcohol,
Tobacco & Firearms v. Fed. Labor Relations Auth., 464 U.S. 89, 97 (1983)
(internal quotation marks omitted). Judicial review under the APA is “narrow but
searching and careful,” and courts need not uphold agency actions where “there
has been a clear error of judgment.” Gifford Pinchot Task Force v. U.S. Fish &
Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir. 2004) (citations and internal
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quotation marks omitted).
ANALYSIS
I.
The ESA
The ESA was enacted to “provide a program for the conservation of . . .
endangered species and threatened species” and to “provide a means whereby the
ecosystems upon which endangered species and threatened species depend may be
conserved.” 16 U.S.C. § 1531(b). To receive the full protections of the ESA, a
species must first be listed by the Service as “endangered” or “threatened.” Id.
§ 1533. Under the ESA, an “endangered” species “means any species which is in
danger of extinction throughout all or a significant portion of its range.” Id.
§ 1532(6). A “threatened” species “means any species which is likely to become
an endangered species within the foreseeable future throughout all or a significant
portion of its range.” Id. § 1532(20).
Upon listing a species under the ESA, the Service must, “to the maximum
extent prudent and determinable,” designate critical habitat for such species. Id. §
1533(a)(3). Under the ESA, “critical habitat” means “the specific areas within the
geographical area occupied by the species, at the time it is listed . . . , 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
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protection; and . . . specific areas outside the geographical area occupied by the
species at the time it is listed . . . , upon a determination by the [Service] that such
areas are essential for the conservation of the species.” Id. § 1532(5)(A). These
two varieties of habitat are generally referred to as “occupied” and “unoccupied.”
In determining whether occupied habitat constitutes “critical habitat,” the
Service is directed to “[i]dentify [the] physical and biological features essential to
the conservation of the species at an appropriate level of specificity using the best
available scientific data.” 50 C.F.R. § 424.12(b)(1)(ii) (2016). “This analysis will
vary between species and may include consideration of the appropriate quality,
quantity, and spatial and temporal arrangements of such features in the context of
the life history, status, and conservation needs of the species.” Id. These
“physical or biological features” constitute the primary constituent elements
(“PCEs”), and are defined as “[t]he features that support the life-history needs of
the species, including but not limited to, water characteristics, soil type, geological
features, sites, prey, vegetation, symbiotic species, or other features.” Id. § 424.02
“A feature may be a single habitat characteristic, or a more complex combination
of habitat characteristics,” and “may include habitat characteristics that support
ephemeral or dynamic habitat conditions.” Id. Moreover, “[t]he [ESA]
contemplates the inclusion of areas that contain PCEs essential for occupation by
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the [particular species], even if there is no available evidence documenting current
activity.” Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544, 556 (9th Cir. 2016)
As with determinations regarding whether a species is “threatened” or
“endangered,” the Service is directed to designate critical habitat “on the basis of
the best scientific data available.” 16 U.S.C. § 1533(b)(2). This requirement
reflects the ESA’s “concern[] with protecting the future of [a listed] species, not
merely the preservation of existing [members of the species].” Alaska Oil & Gas
Ass’n, 815 F.3d at 555. The Service “may not base its [decisions] on speculation
or surmise,” but “where there is no superior data, occasional imperfections do not
violate the ESA.” Id. (citing Bldg. Indus. Ass'n of Super. Cal. v. Norton, 247 F.3d
1241, 1247 (D.C. Cir. 2001)). “The best available data requirement . . . prohibits
[the Service] from disregarding available scientific evidence that is in some way
better than the evidence it relies on.” Kern Cnty. Farm Bureau v. Allen, 450 F.3d
1072, 1080 (9th Cir. 2006) (citations and alterations omitted).
II.
The Lynx PCE
The lynx PCE in the contiguous United States, first developed in the
Service’s 2009 listing decision and subsequently confirmed in its 2013 proposed
listing rule, consists of “[b]oreal forest landscapes supporting a mosaic of differing
successional forest stages and containing: (a) [p]resence of snowshoe hares and
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their preferred habitat conditions, which include dense understories of young trees,
shrubs or overhanging boughs that protrude above the snow, and mature
multistoried stands with conifer boughs touching the snow surface; (b) [w]inter
conditions that provide and maintain deep fluffy snow for extended periods of
time; (c) [s]ites for denning that have abundant coarse woody debris, such as
downed trees and root wads; and (d) [m]atrix habitat (e.g., hardwood forest, dry
forest, non-forest, or other habitat types that do not support snowshoe hares) that
occurs between patches of boreal forest in close juxtaposition (at the scale of a
lynx home range) such that lynx are likely to travel through such habitat while
accessing patches of boreal forest within a home range.” (FR-005269–70.)
III.
Plaintiffs’ Motions
In their motions for summary judgment, Plaintiffs focus on particular
geographical areas that the Service excluded from its final critical habitat
designation, including the Southern Rockies, particularly Colorado; the Kettle
Range of northeastern Washington; the state of Oregon; and certain National
Forest lands in Montana and Idaho. Plaintiffs in CV 14–272–M–DLC also
challenge the Service’s decision against designating any unoccupied critical
habitat, as well as the elements of the PCE itself. The Court will address each
argument in turn, and ultimately agrees with Plaintiffs only with respect to
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Colorado and the National Forest lands in Montana and Idaho.
A.
Colorado
Plaintiffs contend that the Service’s exclusion of Colorado from the
September 2014 final rule was erroneous for the following reasons: (1) the
Service’s decision conflicts with the best available science regarding lynx
presence and persistence in Colorado; (2) the Service employed an undefined
metric in excluding Colorado; and (3) the Service analyzed Colorado’s critical
habitat content using criteria not enumerated in the PCE. The Service counters, as
it explained in the final rule, that though the PCE may be present in Colorado to
some degree, the area does not contain the individual elements “in the quantity and
spatial arrangement necessary to provide for the conservation of the species.”
(Doc. 44 at 25.) The government translates this to mean that the PCE is only
actually present in a given area when there is enough of it to meet certain
thresholds. Because the final rule at once fails to clearly articulate these
thresholds yet appears to suggest they are met in Colorado, the Court will grant
Plaintiffs’ motion for summary judgment with respect to the Service’s treatment of
lynx critical habitat in Colorado.
Notwithstanding the parties’ various detailed citations to the administrative
record on this issue, the Court finds the final rule itself most illuminating. First, in
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the section describing the lynx PCE, the Service stated the following:
Many places in the contiguous United States have (1)
some amount of boreal forest supporting a mosaic of
successional stages, (a) snowshoe hares and their
habitats, (b) deep, fluffy snow for extended periods, (c)
denning habitat, and (d) other habitat types interspersed
among boreal forest patches, but which do not and
cannot support lynx populations. That is, not all boreal
forest landscapes supporting a mosaic of differing
successional forest stages contain the physical and
biological features essential to lynx in adequate
quantities and spatial arrangements on the landscape to
support lynx populations over time. Lynx may
occasionally (even regularly, if intermittently) occur
temporarily in places that do not contain all of the
elements of the PCE, especially during “irruptions” of
lynx into the northern contiguous United States
following hare population crashes in Canada . . . . Other
areas may contain all the essential physical and
biological features but in quantities and spatial
arrangements that are inadequate to support lynx over
time. For example, although evidence of lynx
reproduction confirms the presence of the essential
physical and biological features, short-term, sporadic, or
inconsistent reproduction that is inadequate to maintain a
population over time (i.e., where reproduction and
recruitment are too low to consistently offset mortality
and emigration over the long term) suggests that the
quantity or spatial arrangement (or both) of one or more
of the essential features is inadequate. These areas do
not contain the PCE, are likely population “sinks,” and
as such do not contribute to lynx conservation or
recovery.
(FR-005270.) Then, in a section entitled “Criteria Used to Identify Critical
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Habitat,” the Service stated the following:
To delineate critical habitat for lynx, [the Service] must
be able to distinguish across the extensive range of the
species in the contiguous United States, areas that
contain all essential physical and biological features in
adequate quantity and spatial arrangement to support
lynx populations over time . . . from other areas that may
contain some or all of the features but in inadequate
quantities and/or spatial arrangements of one or more
feature (and which, therefore, by definition do not
contain the PCE). However, the scientific literature does
not confer precisely what quantities and spatial
arrangements of the physical and biological features are
needed to support lynx populations throughout the range
of the DPS. We lack range-wide site-specific
information or tools that would allow us to analyze
boreal forests across much of the range of the DPS and
determine which specific areas contain the spatial and
temporal mosaic of habitats and hare densities that lynx
populations need to persist.
(FR-005272 (emphasis added).) In other words, lynx have different habitat needs
in different parts of the country, regardless of the literal textual uniformity of the
PCE as written by the Service. Finally, in the section applying the habitat criteria
to the Southern Rockies and Colorado, the Service stated the following:
In 1999, just prior to lynx being listed under the [ESA],
the Colorado Division of Wildlife (now Colorado Parks
and Wildlife (CPW)) began an intensive effort to
establish a lynx population in Colorado, eventually
releasing 218 wildcaught Alaskan and Canadian lynx
from 1999 to 2006 . . . . At least 122 (56 percent) of the
introduced lynx died by June of 2010 . . . , but others
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survived and established home ranges in Colorado,
produced kittens in some years, and now are distributed
throughout forested areas of western Colorado. Some
lynx from this introduced population have also traveled
into northern New Mexico, eastern Utah, and southern
and western Wyoming, though no reproduction outside
of Colorado has been documented by these dispersers.
The CPW has determined the lynx introduction effort to
be a success based on attainment of several benchmarks
(e.g., high post-release survival, low adult mortality
rates, successful reproduction, recruitment equal to or
greater than mortality over time . . .), but acknowledges
that the future persistence of the population is uncertain
and hinges on the assumption that patterns of annual
reproduction and survival observed as of 2010 repeat
themselves during the next 20 or more years . . . .
However, CPW has discontinued the intensive
monitoring necessary to determine if these patterns of
reproduction and survival will persist over that time . . . ,
instead embarking on a passive monitoring program to
detect lynx presence . . . .
Although parts of Colorado and the Southern Rocky
Mountains clearly contain some (perhaps all) of the
physical and biological features lynx need, available
evidence does not indicate that the area, or any parts of
it, contain the features in the quantity and spatial
arrangement necessary to provide for the conservation of
the species. That is, the PCE is the elements of the
[physical and biological features] in adequate quantity
and spatial arrangement on a landscape scale. Some
areas may contain some amounts of all the [physical and
biological features], but with one or more in inadequate
quantity and/or spatial arrangement and, therefore, does
not contain the PCE.
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(FR-005274–75 (emphasis added).) The Service then discussed what appears to
be the only feature of the PCE it considered “inadequate” in Colorado—snowshoe
hare density. The Service cited various studies estimating anywhere from 0.004
hares per acre in lodgepole pine stands to 0.5 hares per acre in mature Engelmann
spruce-subalpine fir stands in west-central Colorado, to 0.3 hares per acre in
Summit County, Colorado. (FR-005275.) The Service also cited one study which
“concluded that a snowshoe hare density greater than 0.2 hares per [acre] . . . may
be necessary for lynx persistence,” and another study which “determined that a
hare density of 0.4–0.7 hares per [acre] . . . would be needed for persistence of
lynx translocated . . . to the southern portion of the [lynx] range.” (Id.)
Ultimately, the Service concluded that: (1) “[t]he generally low hare densities
reported in most cases in what is considered good hare habitat in western Colorado
and the very large [lynx] home ranges . . . suggest that even the best potential lynx
habitat in the Southern Rocky Mountains is marginal and unlikely to support lynx
populations over time”; (2) “the Southern Rocky Mountains likely do not possess
the physical and biological features essential to lynx in sufficient quantity and
spatial arrangement to sustain lynx populations over time”; and (3) “the habitat in
Colorado and elsewhere in the Southern Rocky Mountains does not contain the
PCE [and] is not essential for the conservation of the lynx.” (Id.)
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Plaintiffs essentially contend that the Service added to or otherwise
qualified the PCE with respect to Colorado by requiring the elements of the PCE
to be present and arranged in undefined ways and for undefined periods of time.
They also contend that the best available science, which indicates that the
introduced lynx population in Colorado is reproducing, undercuts the Service’s
conclusion that the PCE is not present in Colorado. The Court agrees on both
fronts.
First, the plain language of the PCE leaves no room for the sort of
qualifying the Service engaged in here. The Court views the overriding purpose
of PCEs, with respect to any listed species, as tools for objectively identifying
critical habitat in a binary fashion—the elements of a species’ PCE either are or
are not present in a particular area. While the ESA’s implementing regulations
expressly contemplate agency discretion in the formulation of a PCE, see 50
C.F.R. §§ 424.02, 424.12(b)(1)(ii)4, that discretion is curtailed when it comes to
mapping where the PCE is located. In the case of Colorado, where “most if not
all” of the elements of the PCE are “clearly” present, the evidence in the final rule
compels the designation of critical habitat in that state. While the Court
4
For these same reasons, the Court rejects Plaintiff’s challenge to the PCE, which is
clearly an agency decision within the scientific expertise of the Service.
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understands the Service’s point at oral argument that there must be measurable
quantities of the PCE’s elements present before the Service can safely conclude
that an area in fact contains the PCE, the terms of the PCE itself require only the
“presence of snowshoe hares and their preferred habitat.” The September 2014
final rule sets out hare density data suggesting that parts of Colorado support hare
densities at or near those thought necessary for supporting lynx populations,
meaning snowshoe hares are certainly “present.” In such a close call on a single
element of the PCE, where the Service tacitly acknowledges that all other elements
are present, the ESA demands that the tie go to the species. See Ariz. Cattle
Growers Ass’n v. Salazar, 606 F.3d 1160, 1166–67 (9th Cir. 2010).
Moreover, the ESA’s phrasing establishes that the Service’s role is to
determine which “physical and biological features [are] essential to the
conservation of the species,” not to determine which lands are essential to the
conservation of the species. 16 U.S.C. § 1532(5)(A)(i). The latter presents the
risk of interposing subjectivity into the task of identifying critical habitat, because
the Service could objectively find a species’ PCE in a location yet look to extraPCE factors in determining whether the location held conservation value. This
dovetails with the point immediately above—the Service should simply be asking
whether an area contains a species’ PCE, exactly as enumerated, not weighing
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conservation value based on other considerations that may apply in some areas but
not in others. Indeed, in this case, the Service looked not only for the presence of
the PCE, but an amount of the PCE it decided was necessary to support lynx over
some undisclosed amount of time.
Second, by failing to acknowledge that lynx reproduction in Colorado likely
signals the presence of the PCE in at least some parts of the state, the Service’s
contrary conclusion “runs counter to the evidence before the agency” and
frustrates the purpose of the ESA. Gardner, 638 F3d at 1224. The Court in Lyder
specifically found, and agreed with the Service, that “evidence of breeding
populations is the best way to verify that the physical and biological features
essential to lynx are present in sufficient quantity and spatial configuration to meet
the needs of the species.” 728 F. Supp. 2d at 1134. The same holds true for
“evidence of a self-sustaining population.” Id. at 1137. These are eminently
logical concepts—no species will breed in the absence of sufficient resources for
both parent and offspring, and no population sustains itself, absent immigration,
without some level of reproduction. Yet, in the September 2014 final rule, the
Service abandoned these ideas when it came to Colorado. Instead, the Service
concluded that notwithstanding the successful seventeen-year campaign to
reintroduce lynx to Colorado, the state’s less-than-ideal hare densities mean not a
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single acre of critical habitat exists there, and that “the lynx population in
Colorado is beneficial, but not essential, for recovery.” (FR-005275.) Given that
evidence cited by the Service in the September 2014 final rule shows that a
reproducing lynx population exists in Colorado, the Service’s failure, on account
of marginal hare densities, to designate critical habitat to protect that population
and aid in its maintenance is arbitrary, capricious, and “offends the ESA.” Gifford
Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir.
2004).
Based on the foregoing, the Court grants Plaintiffs’ motions for summary
judgment with respect to lynx critical habitat designation in Colorado, and
remands the September 2014 final rule to the Service for reconsideration. The
Service’s own representations suggest that parts of Colorado constitute suitable
critical habitat, appropriate for designation.
B.
The Kettle Range
Plaintiffs in CV 14–270–M–DLC contend that the Service erred by
excluding the Kettle Range, a relatively small north-south oriented mountain range
in northeastern Washington, from the critical habitat designation at issue.
Plaintiffs allege that the Kettle range “contains boreal forest landscapes with
sufficient snowshoe hare densities and winter snow, making it ideal for lynx.”
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(Doc. 32 at 21.) More importantly, given the Service’s determination that the
Kettle Range was unoccupied by lynx at the time of listing in 2000, Plaintiffs
claim that record evidence shows the Kettle Range was in fact occupied at the time
of listing. The Service counters that the best available science regarding
occupancy in this area, which appears relatively scant, simply does not support the
conclusion that lynx occupied the Kettle Range in 2000. Because the Court must
defer to the Service’s reasonable interpretation of “evidence for and against its
decision,” Modesto Irrigation Dist. v. Gutierrez, 619 F.3d 1024, 1036 (9th Cir.
2010), the Court will grant Defendants’ motion for summary judgment with
respect to the Service’s exclusion of the Kettle Range.
The primary record evidence which could support a conclusion that the
Kettle Range was occupied by lynx at the time of listing derives from materials
submitted by the Washington Department of Fish and Wildlife (“WDFW”) to the
Service in regards to the 2009 critical habitat designation. Most notably, in a
comment letter to the Service regarding the 2009 proposed rule, WDFW refuted
the Service’s conclusion that only two lynx detections occurred in the Kettle
Range in the 1990's, and instead claimed to have received reports of twenty-six
lynx detections between 1990 and 2007. (FR-018780.) Also, using suitable
habitat and predicted lynx density as proxies, WDFW estimated in its 2001 Lynx
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Recovery Plan that the Kettle Range hosted an estimated twelve lynx, though the
margin of error equaled two-thirds that number. (LIT-011189.) Indeed, as of
April 2008, the Service considered WDFW’s position that the Kettle Range was
occupied to be credible and—despite a lack of “thorough and comprehensive lynx
surveys”—the “more appropriate conservative and defensible position.” (FR018828.)
However, by July 2014, WDFW had changed its position relative to lynx
occupancy in the Kettle Range, and instead urged the Service to designate the area
as critical habitat pursuant to the “essential to the conservation of the species”
standard attendant unoccupied habitat. (PI-002683.) Echoing an opinion offered
by numerous parties in response to the most recent proposed rule (see, e.g. FR018769; FR-018777), WDFW noted that the Kettle Range may be important as a
movement link between lynx populations in the Northern Rockies to the east and
the North Cascades to the west. (PI-002683.) Just as others had noted though,
WDFW indicated that the area’s importance in terms of linkage was
theoretical—no commenter appears to have provided scientific evidence of lynx
utilizing the Kettle Range to travel from Montana and Idaho to western
Washington. The Service stated as much in the September 2014 final rule, and
indicated that absent any other feature elevating the importance of the Kettle
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Range, it could not conclude “that this area is essential to the conservation and
recovery of the” lynx. (FR-005255.) These were reasonable interpretations of the
evidence before the agency, and consequently the Court will not second guess the
Service’s evaluation of the science. See San Luis & Delta-Mendota Water Auth. v.
Jewell, 747 F.3d 581, 602 (9th Cir. 2014). The Court grants Defendants’ motion
for summary judgment with respect to the Kettle Range.
C.
Montana and Idaho
Plaintiffs in CV 14–272–M–DLC contend that the Service erred by
excluding the Beaverhead-Deerlodge, Bitterroot, Nez Perce, Clearwater, and Idaho
Panhandle National Forests, as well as portions of the Lolo and Helena National
Forests, from the September 2014 final rule5. They primarily allege that the
Service failed to comply with the Court’s remand instructions in Lyder by
neglecting to consider whether the above lands contained the physical and
biological features essential to lynx recovery. The Service counters that its
analysis was reasonable in that prior to analyzing those features, the agency
conducted a thorough occupancy analysis. Moreover, at least as to the
Beaverhead-Deerlodge, Bitterroot, and Clearwater National Forests, the Service
5
Plaintiffs’s argument does not include any points specific to the Idaho Panhandle
National Forest, nor did the Court address it in Lyder. Consequently, the Court will focus on the
other enumerated National Forests, as it did in the previous order.
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claims to have examined the physical and biological features along with
occupancy. The Court agrees with Plaintiffs that Service largely failed to comply
with Lyder, and will grant their motion for summary judgment on this issue.
As mentioned above, in Lyder the Court found that the Service improperly
used the absence of evidence of reproduction as a proxy for determining that
portions of Montana and Idaho did not contain the PCE. 728 F. Supp. 2d at
1134–35. That the question of whether the PCE was or was not present on the
lands at issue indicates that the Court and the parties understood those lands to be
occupied at the time of listing—otherwise, the question would be whether the
lands themselves were essential for lynx conservation. On remand, the Court
directed the Service to “consider the physical and biological features of the
occupied areas to determine whether they should be designated as critical habitat
under the ESA.” Id. at 1135.
However, in the September 2014 final rule, the Service focused more
intently on whether the forests were occupied in the first instance. As to the
Beaverhead-Deerlodge, the Service cited numerous data suggesting a post-listing
absence of lynx, and in a single line addressed the PCE by stating that “most of the
Beaverhead-Deerlodge National Forest was and appeared to be dry lodgepole
pine, which likely is not good lynx habitat.” (FR-005276 (quotation marks
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omitted).) As to the Bitterroot, the Service again cited mostly occupancy-related
data, and only addressed the PCE by citing a 2012 study that found only 16.1% of
223 forest vegetation plots “met minimum horizontal cover standards for
snowshoe hare/lynx habitat.” (Id.) As to the Clearwater, the Service cites two
studies—one specific to forest carnivore presence, which speaks to occupancy,
and another specific to hare habitat and density, which speaks to the PCE. (FR005277.) The Service’s analyses of the Nez Perce, Helena, and Lolo National
Forests mention only lynx tracking data, and include no study-based examination
of the PCE. (FR-005276–77.) Yet, with respect to each National Forest, the
Service found “no scientific evidence that [the particular] area contains the
physical and biological features essential to lynx in adequate quantity and spatial
arrangement,” and that therefore none contained the PCE.
The Service clearly failed to comply with the remand order with respect to
the Nez Perce, Helena, and Lolo National Forests—the September 2014 final rule
contains no specific analyses of the PCE in these forests, and instead exchanges
occupancy for lack of reproductive data as an impermissible proxy for the
presence of the PCE. The Service approached compliance with the remand order
with respect to the Beaverhead-Deerlodge and Bitterroot National Forests by
considering forest types and horizontal cover, but ultimately failed to justify why
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each forest was excluded in its entirety from the critical habitat designation. The
Service specifically noted that most, but not all, of the Beaverhead-Deerlodge was
dry lodgepole, and that a portion of the plots in the Bitterroot study did meet
horizontal cover standards. Rather than designating those areas that apparently
could serve as lynx habitat—the “but not all” on the Beaverhead-Deerlodge and
the 16.1% of the Bitterroot—the Service simply resorted to the same extra-PCE
“quantity and spatial arrangement” metric relied upon to exclude all of Colorado.
As discussed in detail above, the Service may not qualify the PCE in this manner.
Thus, only with respect to the Clearwater National Forest did the Service comply
with the Court’s order in Lyder and actually analyze the PCE, specifically the
element of snowshoe hare habitat and density. Consequently, the Court will grant
Plaintiffs’ motion for summary judgment on this issue, and remand the September
2014 final rule to the Service to perform an analysis of the PCE—not through
reproduction or occupancy-based proxies—in the Beaverhead-Deerlodge,
Bitterroot, Nez Perce, Lolo and Helena National Forests.
D.
Oregon
Plaintiffs in CV 14–270–M–DLC allege that the Service erred in excluding
the state of Oregon from the September 2014 critical habitat designation, claiming
that the Service ignored the best available science in doing so. However, Plaintiffs
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recognize in their brief that “the existence of a self-sustaining [lynx] population is
unlikely” in Oregon, and that lynx presence there is intermittent. (Doc. 32 at 31.)
They nevertheless cite an unpublished Service white paper indicating that lynx
were historically present on the east and west slopes of the Cascade Range in
Washington and Oregon. (PI-007830 et seq.) While the paper stands for the
propositions Plaintiffs raise, there is no information accompanying the document
to indicate its author or date of publication. Moreover, the paper appears more a
solicitation for comments regarding issues surrounding lynx in this part of the
west than a definitive study. This is insufficient to overcome the Service’s
reasonable interpretation and application of what the Court agrees is the best
available science regarding lynx presence in Oregon, including its determinations
from previous Federal Register publications and the comments of United States
Forest Service wildlife biologist Keith Aubry, who noted a total of twelve verified
records of lynx occurring in Oregon between 1897 and 1993. (LIT-014469.) For
these reasons, the Court will grant Defendants’ motion for summary judgment
with respect to the Service’s exclusion of Oregon from the September 2014 final
rule.
E.
Plaintiffs’ remaining arguments
Fore the reasons articulated in the Court’s order in Lyder, the Court rejects
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Plaintiffs arguments in CV 14–272–M–DLC related to whether the Service erred
by not designating unoccupied habitat that nevertheless could serve as lynx travel
corridors and climate change refugia in the future. The Court agrees with
Defendants that the purported distinctions between Plaintiffs’s arguments as
articulated in Lyder and those in the instant case are negligible, and therefore
subject to the same analysis. See 728 F. Supp. 2d at 1138–40.
CONCLUSION
When it published the September 2014 final rule designating lynx critical
habitat in the United States, the Service erred by: (1) excluding the state of
Colorado from the designation, based upon an improper application of the lynx
PCE and ignoring the best available science; and (2) failing to comply with the
Court’s remand order in Lyder with respect to the Beaverhead-Deerlodge,
Bitterroot, Nez Perce, Lolo and Helena National Forests. In all other respects, this
most recent critical habitat designation is lawful and satisfies the Service’s
statutory mandate under the ESA. As the multi-year effort to protect the
landscapes required by the lynx continues, the Court is confident that the final
product will, as the ESA demands, “conserve to the extent practicable” the Canada
lynx.
Accordingly, IT IS ORDERED that:
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(1)
Plaintiffs’ motion for summary judgment (Doc. 31) is GRANTED IN
PART. The motion is GRANTED with respect to the Service’s
failure to designate the state of Colorado as occupied lynx critical
habitat in the September 2014 final rule. The motion is DENIED in
all other respects.
(2)
Plaintiffs’ motion for summary judgment (Doc. 34) is GRANTED IN
PART. The motion is GRANTED with respect to the Service’s
failure to designate the state of Colorado as occupied lynx critical
habitat in the September 2014 final rule, and its failure to comply
with the Court’s remand order in Alliance for the Wild Rockies v.
Lyder, 726 F. Supp. 2d 1126 (D. Mont. 2010) regarding the the
Beaverhead-Deerlodge, Bitterroot, Nez Perce, Lolo and Helena
National Forests of Montana and Idaho. The motion is DENIED in
all other respects.
(3)
Defendants’ motion for summary judgment (Doc. 42) is GRANTED
IN PART. The motion is GRANTED with respect to the Service’s
determinations in the September 2014 final rule regarding the Kettle
Range of northeastern Washington, the state of Oregon, unoccupied
habitat designations related to travel corridors and climate change,
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and the lynx PCE. The motion is DENIED in all other respects.
(4)
Defendants’ motion to strike (Doc. 40) is GRANTED.
(5)
The September 2014 final rule, 79 Fed. Reg. 54,782 et seq., is hereby
REMANDED to the Service for further action consistent with this
order. The final rule shall remain in effect until the Service issues a
new final rule on lynx critical habitat, at which time the September
2014 final rule will be superseded.
DATED this 7th day of September, 2016.
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