Alliance for the Wild Rockies v. Jewell et al
ORDER granting 19 Plaintiff's Motion for Summary Judgment. The United States Fish & Wildlife Service's December 5, 2014 determination that the Cabinet-Yaak grizzly bear is not warranted for listing as an endangered species under the Endangered Species Act is VACATED. This matter is REMANDED to the United States Fish & Wildlife Service for further consideration consistent with this order. SEE ORDER FOR FURTHER DETAILS. Signed by Judge Dana L. Christensen on 8/22/2017. (ASG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
ALLIANCE FOR THE WILD ROCKIES,
RYAN ZINKE, in his official capacity as
Secretary of the Department of Interior;
DANIEL ASHE, in his official capacity as
Director of the U.S. Fish & Wildlife
BONNER COUNTY, IDAHO;
BOUNDARY COUNTY, IDAHO; and
LINCOLN COUNTY, MONTANA,
Plaintiff Alliance for the Wild Rockies ("Alliance") moves for summary
judgment arguing that Defendants Secretary Ryan Zinke and Director Daniel Ashe
(collectively "Defendants") 1 violated the Endangered Species Act ("ESA") when
the U.S. Fish and Wildlife Service ("FWS") determined that the Cabinet-Yaak
grizzly bear was not warranted for listing as an endangered species. Defendants,
as well Defendant-Intervenors Bonner County, Idaho, Boundary County, Idaho,
and Lincoln County, Montana, oppose Alliance's motion and have filed
cross-motions for summary judgment. As discussed below, the Court will grant
Alliance's motion and deny the cross-motions for summary judgment of
Defendants and Defendant-Intervenors.
In 197 5, the grizzly bear ( Ursus arctos horribilis) was listed as a
"threatened" species in the lower 48 states. This designation was implemented
after the dire decline of the species over the course of the last century where total
grizzly bear numbers dropped from 50,000 in 1880 to fewer than 1,000 in the mid1970s. The great bear's historic range had also shrunk from populations in the
Midwest and California and into Mexico, to just four states today. 3 The bear's
Defendants Secretary Ryan Zinke and Director Daniel Ashe are being prosecuted in
their official capacities as Secretary of the Department oflnterior and Director of the U.S. Fish &
Wildlife Service, respectively.
This background section is derived from Alliance's Amended Complaint, the parties'
Statements of Disputed Facts, and the briefs in support of their respective motions.
These states are Montana, Idaho, Wyoming, and Washington.
drastic decline was caused by habitant destruction, habitat modification, range
curtailment, and human-caused mortality. Based upon these numbers, the FWS
approved a Grizzly Bear Recovery Plan which was subsequently revised in 1993
identifying six grizzly recovery zones with parameters for recovery. These zones
are: the Cabinet-Yaak Ecosystem (the "Cabinet-Yaak"); the Selkirk Ecosystem,
the Yellowstone Ecosystem, the Northern Continental Divide Ecosystem, the
Bitterroot Ecosystem, and the North Cascades Ecosystem. The Cabinet-Yaak
population is the subject of this litigation.
A. The Cabinet-Yaak
The Cabinet-Yaak recovery zone is located on the border between Montana
and Idaho, with 90% of the zone on three national forests: the Kootenai National
Forest, the Idaho Panhandle National Forest, and the Lolo National Forest.
Estimates of the total number of grizzlies in the Cabinet-Yaak vary, but it is
undisputed that less than 50 individual bears can be found in the recovery zone.
The population of bears in the Cabinet-Yaak can be geographically divided into
two areas: a population in the south of the zone in the Cabinet Mountains
("Cabinet population"), and a population in the north located near the Yaak River
The population trends for the bears in these two areas is disputed by the
parties. Nevertheless, in 1988, the Cabinet population was estimated to be 15
bears or fewer. The Yaak population at the time was unknown. As of 2014, the
total population for Cabinet-Yaak was estimated to be between 42 and 49
individual bears in the recovery zone. These numbers are roughly equally divided
between the Cabinet population and the Yaak population. Though these figures
represent a pattern of modest improvement for the total number of bears, the
parties agree that the Cabinet-Yaak grizzly's recovery is not complete.
The parties dispute whether the Cabinet-Yaak grizzly is currently
experiencing improving population trends. Nevertheless, it is undisputed that as
of 2013, the total grizzly bear population in the Cabinet-Yaak was not stable.
Indeed, at a minimum, 100 bears are necessary for the recovery of the
Cabinet-Yaak grizzly and the current number of bears is less than half that
number. However, though the total number of bears is less than ideal, the FWS
contends that current figures show an improving trend since 2006 and a stable
trend since 2013. As a result, the FWS asserts that the Cabinet-Yaak is no longer
warranted for listing as an endangered species. Specifically, the FWS has found
that the Cabinet-Yaak population is "no longer on the brink of extinction." 79
Fed. Reg. 72450, 72488 (December 5, 2014).
In contrast, Alliance contends that these numbers demonstrate that the
Cabinet-Yaak population is warranted for listing because it is currently not viable
or close to recovery. Alliance states that various factors are hindering the recovery
of this population, including natural and human-caused threats. For example,
grizzly bears have a limited reproductive capacity which precludes a rapid increase
in population. Due to the relatively late age when grizzles first reproduce, their
small litter size, and long intervals between litters, even in optimum conditions a
single female grizzly is likely to produce less than four other females in her
lifetime. Combined with other factors such as population isolation and
displacement from human caused activities, such as mining and logging, Alliance
contends that the Cabinet-Yaak grizzly faces a unique set of challenges which
warrant their listing. Alliance also argues that the human-caused mortality rate for
the Cabinet-Yaak grizzly is significantly contributing to the bear's lack of
stability. For example, from 1999 to 2006, 18 bear deaths were known to be
directly caused by humans. Further, from 2007 to 2014, at least 17 bears were
killed by humans. Alliance contends that this mortality rate, among the other
factors mentioned, warrants listing of the Cabinet-Yaak grizzly.
B. The ESA and the Listing Process
The ESA requires the Secretary of the Interior to determine, "solely on the
basis of the best scientific and commercial data available," whether any species
should be listed as "endangered" or as "threatened." 16 U.S.C. § 1533(a)(l),
(b )(1 )(A). The ESA defines an "endangered species" as "any species which is in
danger of extinction throughout all or a significant portion of its range .... " 16
U.S.C. § 1532(6). A "threatened species" is "any species which is likely to
become an endangered species within the foreseeable future throughout all or a
significant portion of its range." Id. at § 1532(20). The Secretary, through the
FWS, is statutorily required to consider various factors in its listing decision,
including: (1) "the present or threatened destruction, modification, or curtailment
of its habitat or range; (2) "overutilization for commercial, recreational, scientific,
or educational purposes"; (3) "disease or predation"; ( 4) "the inadequacy of
existing regulatory mechanisms"; or (5) "other natural or manmade factors
affecting its continued existence." 16 U.S.C. § 1533(a)(l)(A)-(E).
A species' listing determination is resolved through a petition process.
Essentially, any "interested person" may petition to add or remove a species from
the endangered species list. 16 U.S.C. § 1533(b)(3)(A). After receiving the
petition, if the Secretary concludes that it "presents substantial scientific or
commercial information indicating that the petitioned action may be warranted ...
the Secretary shall promptly commence a review of the status of the species
concerned." Id. This status review must then be completed in 12 months ("12
Month Review") and the Secretary must issue one of the three findings: (1) the
listing of the species is not warranted; (2) the listing is warranted; or (3) the listing
is "warranted but precluded." 4 Id. at§ 1533(b)(3)(B)(i)-(iii).
A "warranted but precluded" finding recognizes that a species qualifies for
protection under the ESA, but whose listing is "precluded by pending proposals
and expeditious progress must be being made to list qualified species and delist
those for whom ESA's protections are no longer necessary." Wildwest Inst. v.
Kurth, 855 F.3d 995, 1005 (9th Cir. 2017) (quoting Ctr. for Biological Diversity v.
Kempthorne, 466 F.3d 1098, 1102 (9th Cir. 2006); see also 16 U.S.C. §
l 533(b)(3)(B)(iii). If, under this third option, the Secretary finds that the listing of
the species is precluded, the FWS then treats the petition as one that has been
resubmitted through the initial listing process. Id. at§ 1533(b)(3)(C)(i). The
Secretary is then required to implement a system to monitor any species whose
listing has been determined to be warranted but precluded. Id. at§
l 533(b )(3)(C)(iii).
Specifically, this listing determination recognizes that "[t]he petitioned action is
warranted, but that- (I) the immediate proposal and timely promulgation of a final regulation
implementing the petitioned action ... is precluded by pending proposals to determine whether
any species is an endangered species or a threatened species, and (II) expeditious progress is
being made to add qualified species to either [the threatened species list or endangered species
list] and to remove from such lists species for which the protections of this chapter are no longer
necessary." 16 U.S.C. § 1533(b)(3)(B)(iii).
Implementation of this system requires the FWS to fashion "a ranking
system to assist in the identification of species that should receive priority
review." 16 U.S.C. § 1533(h)(3). This system assigns a Listing Priority Number
"LPN" between 1 (highest priority, i.e., an "emergency") and 12 (lowest priority)
based on three criteria: (1) magnitude of threats; (2) immediacy of threats; and (3)
taxonomic status. Wildwest Inst., 855 F.3d 995 at 1007. Under the priority
ranking system, a species' level is assigned according to its taxonomic status and
is assigned under one of three categories: (1) monotypic genus (species that are the
sole members of a genus); (2) full species (for genera that have more than one
species); and (3) subspecies or distinct population segments of a vertebrate
species. As a distinct population segment, the Cabinet-Yaak grizzly may be listed
under one of four LPNs: 3, 6, 9, or 12.
C. Listing of the Cabinet-Yaak Grizzly
Following the grizzly bear's initial listing as a "threatened species"
subsequent to the passage of the ESA, from 1986 to 2007 the FWS received and
reviewed 10 petitions requesting a change in the status of the bear. In 1993, the
FWS determined that the grizzly population in the Cabinet-Yaak ecosystem
warranted listing as an endangered species, and issued a finding that the listing
was warranted but precluded by work on other species having a higher priority for
listing. This finding was repeatedly reaffirmed by the FWS over the course of the
next two decades.
In 2007, the FWS initiated its "5-year review" to evaluate the status of
grizzly bears in the lower 48 States, and in particular, the population in the
Cabinet-Yaak ecosystem. This review, published in 2011, concluded that the
Cabinet-Yaak population was warranted but precluded for uplisting and assigned
the bear a LPN of 3, the highest priority number available for a subspecies or
distinct population segment of a species. This number was assigned as a result of
the bear' s "small population size, isolation, and excessive human-caused
mortality." (Doc. 27 at 19.) The report highlighted that, due to the population's
small numbers, Cabinet-Yaak bears are particularly "vulnerable to stochastic (i.e.,
random) events." (Id. at 17.) Specifically, fatalities caused by human hands-2.3
per year between 1999 and 2008-represented a primary threat to the bear' s
recovery. The 5-year review also highlighted the isolation of the Cabinet-Yaak
population, both within the region and within the ecosystem itself. For example,
"though bears in the northern Yaak section showed signs of intermingling with
grizzly populations in Canada, there was no known movement of bears between
the Yaak and Cabinet sections.
In November of2013, the FWS again concluded that listing the
Cabinet-Yaak grizzly as endangered was warranted but precluded by work on
other species. Reiterating the threats made in its 5-year review, the FWS found
that the population was still subject to "high magnitude threats that are ongoing,
thus imminent." 78 Fed. Reg. 70104, 70151(November22, 2013). As a result of
these ongoing threats, FWS continued to assign a LPN of 3 to the Cabinet-Yaak
population. The FWS would change its assessment of the bear the following year.
In early 2014, discussions within the FWS indicted that it was considering
revising the Cabinet-Yaak population's LPN to a higher number. In an email from
January 2014, Chris Servheen, a FWS's Grizzly Bear Recovery Coordinator in
Montana, said: "I don't think we are as yet justified in making a statement about
the [Cabinet-Yaak] not being warranted for endangered status but we are making
progress in that direction." (Doc. 27 at 39-40.) This assessment was echoed by
FWS Biologist Wayne Kasworm in another January 2014 email:
I just ran the trend numbers for 2013 in the [Cabinet-Yaak] and it
appears we have climbed out of the hole we were in and reached a
stable point estimate of 1.0002 (CI 0.90621.0754). This is good
news, but may not rise to the level of declaring victory. We will need
to continue ... reducing unnecessary forms of human caused
mortality. If this were the Selkirks I would unequivocally say we do
not need to go to endangered status. In the [Cabinet-Yaak] I am not
sure the data allows us to make a good argument to support it."
(Id. at 40-41.) Another FWS Biologist, Rebecca Shoemaker, clarified that these
improvements should lead to a higher LPN for the population:
After a call w/ Wayne this morning and in light of recent
improvements in the imminence of threats, we think the
[Cabinet-Yaak ecosystem] would probably not meet the definition of
LPN 3 anymore. I've incorporated language from Wayne into the
attached draft response letter saying this and we expect to hash this
out more formally in the annual [Candidate Notice of Review].
(Id. at 41.) Indeed, in an internal assessment dated April 1, 2014, the FWS found
that it would change the Cabinet-Yaak's LPN from 3 to 6:
The up listing of the Cabinet-Yaak grizzly bear population from
threatened to endangered now has a listing priority number of 6. This
priority number indicates the magnitude of threat is high but those
threats are not imminent .... Magnitude: The magnitude of threats is
considered high because these populations have not experienced the
same increases in numbers and distribution as other, healthier grizzly
bear populations in the lower 48 States, even though similar
management actions have been implemented.
(Id. at 39.) This determination was again reaffirmed in a June 2014 assessment,
Despite ... improvements, the [Cabinet-Yaak ecosystem] still faces
threats that put the population at significant risk. The extremely small
population size(< 50 individuals) makes this population very
vulnerable to human-caused mortality. While the population trend has
changed from declining to stable, it will take several years of a
positive trend to provide us with assurance the population is truly
recovering. Additionally, until the Record of Decision for motorized
access management is more fully implemented, habitat destruction
and modification remains a threat.
(Id. at 43.) This June 2014 assessment thus concluded, albeit preliminarily, that
the Cabinet-Yaak "population is still warranted for uplisting to endangered status
but the LPN shall be reduced from 3 to 6." (Id. at 44.)
However, in July of 2014, internal documents within the FWS indicate that
the agency decided that the Cabinet-Yaak grizzly was no longer warranted for
listing. It appears that the agency came to this conclusion after applying the
"Polar Bear rule" 5 to the question of whether the species should be listed as a
threatened or endangered species. For example, FWS Biologist Wayne Kasworm
states that: "After my discussion with [Assistant ESA Chief] Seth [Willey] about
the Polar bear Rule I have reconsidered and offer the following draft as a proposal
for the Cabinet-Yaak." (Id. at 45.) This proposal stated:
In a December 22, 2010 memorandum, FWS provided supplemental
information for the determination of Threatened or Endangered status
under the Endangered Species Act (FWS 2010). The document
clarifies Service policy in regards to the statutory phrase "in danger of
extinction" as used in a listing with Endangered status. This policy
recognizes this phrase as meaning "currently on the brink of
extinction in the wild". We are now applying this new policy to
Endangered listing determinations . . . . In applying this policy to the
best available biological data, we conclude that the Cabinet-Yaak
grizzly bear population is not currently on the brink of extinction and
is no longer warranted for Endangered status and should continue to
be listed as Threatened.
(Id. at 46.)
FWS' s discussion of the "Polar Bear Rule" is an apparent reference to "Polar Bear
Memorandum," a document discussed infra.
This proposal found that the Cabinet-Yaak grizzly is not currently "on the
brink of extinction" for several reasons, including (1) an improving population
trend between 2006 and 2013; (2) the population had reached a stable trend for the
period between 1983 and 2013; (3) human caused mortality of female bears had
declined; and (4) a successful bear transplant augmentation plan for the Cabinet
population. Under this augmentation plan, 15 bears were introduced into this
section between 1990 and 2013. It was also noted that two of these transplant
bears had successfully reproduced and yielded offspring which had also
In response to this revised proposal, Assistant ESA Chief Seth Willey
replied, "I very much appreciate that you gave this is a hard look. The only change
I would propose is that we not refer to this as a new policy or new interpretation."
(Id. at 47.) As discussed in greater detail, the FWS maintains that application of
"on the brink of extinction in the wild" standard, the so-called "new policy"
referred to by Mr. Kasworm, is merely the agency's longstanding interpretation of
the statutory phrase "in danger of extinction." See 16 U.S.C. § 1532(6).
On December 5, 2015, the FWS officially6 reversed its decades long listing
Defendants state that the decision to remove the warranted-but-precluded designation
was agreed upon by agency staff in July of2014, approved at the regional level in August of
2014, and approved in Washington, D.C. in November of2014.
trend and published its finding that listing the Cabinet-Yaak population as an
endangered species was no longer warranted. The agency found that:
Since 1992, we have received and reviewed six petitions requesting a
change in status for the Cabinet-Yaak grizzly bear population . . . . In
response to these petitions, we previously determined that grizzly
bears in the Cabinet-Yaak ecosystem warranted a change to
endangered status. However, for several years, this population's
status has been improving. The population trend has now changed
from declining to stable. The U.S. Forest Service has established
regulatory mechanisms for motorized access management and
attractant storage, and researchers have documented some movement
between the Cabinet-Yaak and other populations in Canada.
Together, these improvements have reduced the threats to this
population. Until the Record of Decision for motorized access
management is more fully implemented and we have several more
years of a positive population trend, we remain cautious in our
interpretation. We conclude that the Cabinet- Yaak ecosystem
population continues to face several threats, and retain this
populations' s threatened status, but we no longer find that the
population is warranted for uplisting to endangered status (i.e., "on
the brink of extinction").
79 Fed. Reg. at 72488.
Following publication of this finding, Alliance filed suit in this Court
requesting judicial review. Alliance asserts that the FWS acted arbitrarily and
abused its discretion when it concluded that the Cabinet-Yaak grizzly bear is not
warranted for listing as an endangered species. Alliance seeks a declaration that
FWS 's determination was unlawful under the ESA and requests that the Court
reverse and remand this decision for further agency review.
Defendants contend that Alliance misrepresents the agency's reasoned
determinations with cherry-picked statements and misapplication of the FWS' s
longstanding positions on listing decisions. Essentially, Defendants counter that
Alliance's lawsuit is nothing more than a disagreement with the FWS's listing
decision-which does not invalidate a reasonable agency decision under federal
law. Defendants contend that the FWS' s listing determination was reasoned and
supported by the record. Accordingly, Defendants request that the Court reject
Alliance's arguments and defer to the agency's findings.
Subsequent to the initiation of the Complaint, Defendant-Intervenors
Bonner County, Idaho, Boundary County, Idaho, and Lincoln County, Montana
(collectively, the "Counties") jointly moved for intervener status in this matter. 7
The Counties, all located within the Cabinet-Yaak ecosystem, contend that
reversing the FWS's decision would have a direct impact on their interests. After
hearing the arguments of the parties, the Court determined that the Counties would
be granted intervener status and allowed them to participate in summary judgment
briefing. To that end, the parties, including the Counties, have filed cross-motions
for summary judgment. Because the Counties' motion implicates the Court's
The Cabinet-Yaak ecosystem encompasses 1,200,000 acres in Lincoln County, 260,000
acres in Boundary County, and 250,000 acres in Bonner County.
jurisdiction to hear this matter, it will be addressed first.
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
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. ofSan Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997)
Claims brought pursuant to the ESA are reviewed 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 US., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Defendant-Intervenors contend that Alliance lacks standing to seek judicial
review of the FWS' s listing decision. The Counties bring two arguments in
support: (1) Alliance did not actually file any of the petitions requesting that the
Cabinet-Yaak grizzly be listed as an endangered species; and (2) Alliance has
failed to present a justiciable controversy because it was not injured by a change in
the bear's status.
1. Non-Petitioner Standing
The Counties first argue that Alliance lacks standing because it did not
file any of the petitions requesting that the population be listed as endangered.
These petitions spurred the FWS' s review of the species and ultimately resulted in
the agency's "not warranted" determination. The Counties contend that because
Alliance was not one of the actual petitioners in these requests, the Court should
find that the organization cannot participate in this matter. The Court disagrees.
The ESA provides that following the FWS 's determination as to a species'
endangered or threatened status, "[a]ny negative finding ... shall be subject to
judicial review." 16 U.S.C. § 1533(b)(3)(C)(ii). Specifically, "any person may
commence a civil suit on his own behalf ... to enjoin ... the United States and
any other governmental instrumentality or agency (to the extent permitted by the
eleventh amendment to the Constitution), who is alleged to be in violation of any
provision of [the ESA]." 16 U.S.C. 540(g)(l)(A). 8 The government must be given
60 days written notice of the suit prior to its commencement. 16 U.S.C.
Here, it is undisputed that Alliance provided the FWS with 60 days notice
before bringing this suit. Further, the organization's Complaint alleges that the
Secretary violated the ESA when it determined that the Cabinet-Yaak grizzly was
not warranted for listing. Thus, under a plain reading of the ESA, the statutory
requirements for bringing a citizen suit have been met. Alliance's non-petitioner
status is irrelevant.
The Counties also contend that Alliance has failed to invoke this Court's
Article III jurisdiction because the organization was not harmed by the FWS' s
This provision also allows any person to file a civil suit "against the Secretary [of the
Interior] where there is alleged a failure of the Secretary to perform any act or duty under section
1533 of this title which is not discretionary with the Secretary." 16 U.S.C. § 1540(g)(l)(C).
determination that the bear was not warranted for listing as an endangered species.
Principally, the Counties assert that the change in the species' designation from
"warranted but precluded" to "not warranted" merely altered the administrative
status of the species and did not reduce or change the protections the population
receives under the ESA. Thus, any injury suffered by Alliance, the Countries
argue, is speculative and hypothetical, and fails to articulate an actual and concrete
Alliance, as an environmental organization litigating on behalf of its
members, has Article III standing to sue if its members have suffered an injury-infact as a result of the FWS 's not warranted for listing determination. See Hunt v.
Washington State Apple Advertising Com 'n, 432 U.S. 333, 343 (1977). This
injury must be "(a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical." Friends of the Earth, Inc. v. Laidlaw Envtl. Services
(TDC), Inc., 528 U.S. 167, 180-181 (2000) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-561 (1992)). The injury must also be "fairly traceable to the
challenged action of the defendant," and "likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision." Id. In environmental
cases, the injury-in-fact prong "is satisfied if an individual adequately shows that
she has an aesthetic or recreational interest in a particular place, or animal, or plant
species and that ... interest is impaired by a defendant's conduct. Ecological
Rights Found. v. P. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000).
Here, Alliance has submitted an affidavit from Michael Garrity, Executive
Director of Alliance, which states that he and Alliance's other members either live
in the Cabinet-Yaak ecosystem, or visit it frequently, to pursue their shared
interest "in looking for, viewing, and studying a healthy viable population of
Cabinet-Yaak grizzly bears in both the Cabinet Mountains portion of the range, as
well as the Yaak River portion of the range." (Doc. 21-9 at 3.) The affidavit
further affirms that the FWS' s determination to not list the Cabinet-Yaak grizzly
harms its members' interests in the survival and recovery of Cabinet-Yaak grizzly
because the bear would not be eligible for increased protections available for
endangered species, instead of the limited protections afforded to threatened
Despite this affidavit, the Counties maintain that Alliance and its members
have not suffered an cognizable injury as a result of the FWS 's listing decision
because the Cabinet-Yaak grizzly was never actually listed as endangered and,
thus, was never afforded the protections available under this designation. Instead,
the species' designation of"warranted but precluded" provided no protections to
the bear. See Wildwest Inst., 855 F.3d at 1005 ("A 'warranted but precluded'
finding recognizes that a species qualifies for protection under the ESA, but does
not actually give any protection to the species.") (citation omitted). Consequently,
because no actual protections exist under this designation, the Counties assert,
none were lost when the FWS determined that the bear was not warranted for
listing as an endangered species. See also Wildwest Inst., 855 F.3d at 1011-1012
("In many ways, a 'warranted but precluded' determination is a 'toothless
finding."') (quoting W Watersheds Project v. US. Fish and Wildlife Serv.,
4:10-CV-229-BLW, 2012 WL 369168, at *1 (D. Idaho Feb. 2, 2012)).
Contrary to the Counties' argument, however, the interests of Alliance and
its members in seeing and studying the bear were harmed because the
Cabinet-Yaak grizzly is no longer eligible to receive the protections afforded to
species listed as endangered. Stated another way, under a designation of
warranted but precluded, the Cabinet-Yaak grizzly was set to be listed as
endangered species and receive the protections afforded under this
designation-as soon as the necessary financial resources were available to the
FWS. As a result of the not warranted determination, the Cabinet-Yaak grizzly is
currently no longer on the list to receive the enhanced protections and benefits
provided to an endangered species. To apply a crude analogy, the Counties'
argument is akin to the contention that a person on the organ transplant list has not
suffered an injury merely because she was kicked off the list.
Accordingly, the Court disagrees with the Counties' argument and finds that
the Cabinet-Yaak grizzly' s removal from the warranted but precluded list has
caused a concrete and particularized injury to the interests of Alliance and its
members. Further, this injury is not speculative because a favorable outcome in
this matter would result in the vacatur of the not warranted determination and the
reinstatement of the FWS 's 2013 warranted but precluded finding. Under a
warranted but precluded finding, as discussed, the Cabinet-Yaak grizzly would
again be eligible to receive enhanced protections under the ESA once the funding
or resources become available. The Court thus concludes that Alliance has
standing in this matter.
II. The FWS's Not Warranted Determination
The Court will next address the merits of the parties arguments, i.e., whether
the FWS violated the ESA when it determined that the Cabinet-Yaak grizzly bear
was not warranted for listing as an endangered species. However, before
examining the parties' cross-motions for summary judgment in detail, the Court
must first rule on Alliance's motion to supplement and/or complete the
A. Motion to Supplement the Record
Alliance moves to supplement and complete the administrative record with
eight exhibits. These exhibits are: (Exhibit 1) a 2014 Cabinet-Yaak grizzly bear
monitoring report; (Exhibit 2) a 2016 scientific article, "Density, Distribution, and
Genetic Structure of Grizzly Bears in the Cabinet-Yaak Ecosystem"; (Exhibit 3) a
summer 2015 Cabinet-Yaak grizzly bear monitoring report; (Exhibit 4) a 2015
"Accomplishment Report" concerning the Cabinet-Yaak grizzly bear; (Exhibit 5)
a 2015 report on Cabinet-Yaak grizzly bear mortalities; (Exhibit 6) a paragraph
from the 2014 Federal Register with track changes; (Exhibit 7) a May 2015
response from the FWS concerning Alliance's 60 day notice under the ESA; and
(Exhibit 8) a February 2015 response from the FWS concerning Alliance's 60 day
notice under the ESA. The Court first notes that it will grant the motion with
respect to Exhibit 6 (2014 Federal Register Paragraph with track changes) because
Defendants do not oppose the motion as it pertains to this exhibit.
Generally, "courts reviewing an agency decision are limited to the
administrative record." Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir.
2005) (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-744 (1985)).
Nevertheless, there are four exceptions to this general rule: "(1) if admission is
necessary to determine whether the agency has considered all relevant factors and
has explained its decision[;] (2) if the agency has relied on documents not in the
record[;] (3) when supplementing the record is necessary to explain technical
terms or complex subject matter[;] or (4) when plaintiffs make a showing of
agency bad faith." Lands Council, 395 F.3d at 1030 (citing Southwest Ctr.for
Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir.
1996) (internal quotation and punctuation marks omitted).
Alliance asserts that exhibits 1, 2, 3, 4, 5, 7, and 8 are admissible under the
first exception described in Lands Council, i.e., "if admission is necessary to
determine whether the agency has considered all relevant factors and has
explained its decision." 395 F.3d at 1030. However, this exception is only
permitted for "information available at the time, not post-decisional information."
Tri-Valley CAREs v. US. Dept. ofEnergy, 671F.3d1113, 1130 (9th Cir. 2012)
(quoting Rock Creek Alliance v. US. Fish & Wildlife Serv., 390 F.Supp.2d 993,
1002 (D. Mont. 2005)). Because these exhibits were created after the FWS's
December 5, 2014 "not warranted" finding, supplementation under this exception
is not permitted. Thus, the motion to supplement exhibits 1, 2, 3, 4, 5, 7, and 8 is
denied as to the first exception.
Alliance also contends that supplementation of exhibits 1 and 2 is permitted
under the third exception, "when supplementing the record is necessary to explain
technical terms or complex subject matter." Lands Council, 395 F.3d at 1030.
Specifically, Alliance contends that supplementation of exhibit 1, a 2014
monitoring report, "will provide context for-and explain the reasoning
behind-the agency's statements that the population is increasing." (Doc. 17 at
6.) However, as argued by Defendants, numerous documents in the record already
address the reasoning behind the FWS 's determination that the population is
increasing. (See Doc. 18 at 14 (listing numerous documents in the administrative
record which discuss bear mortalities and population trends).) Further, Alliance
argues that exhibit 2, a scientific article discussing a DNA based estimate of the
bear' s population, should also be supplemented into the record to help explain the
bear' s numbers. Nevertheless, as noted by Defendants, a draft of this study is
already in the record and supplementation is not necessary. The Court agrees.
Accordingly, Alliance's motion to supplement exhibits 1 and 2 under the third
exception is denied.
Next, Alliance requests that exhibits 7 and 8 should be placed into the
record under the second exception noted in Lands Council, i.e., "ifthe agency has
relied on documents not in the record." 395 F.3d at 1030. Alliance argues that
exhibits 7 and 8, the May 2015 and February 2015 responses from the FWS
concerning Alliance's 60 day notice of intent to sue, provide insight into the
FWS's rationale for issuing its not warranted decision. However, Alliance fails to
explain how the FWS relied on these documents for its December 2014 decision.
Further, the administrative record sufficiently explains the reasoning behind the
FWS' s not warranted decision. The Court will thus deny the motion to
supplement exhibits 7 and 8 under the third exception.
Lastly, Alliance argues that the Court should take judicial notice of exhibits
1, 2, 3, 4, 5, 7, and 8 because they are publically available government documents.
Under the Federal Rules of Evidence, a court may take judicial notice of a fact if
"is not subject to reasonable dispute because it ... can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned." Fed.
R. Evid. 201 (b)(2); see also Daniels-Hall v. Natl. Educ. Ass 'n, 629 F .3d 992,
998-999 (9th Cir. 2010) (a court may take judicial notice under Rule 201 of
publically available government documents). Because Defendants do not dispute
the accuracy of these exhibits, the Court will take judicial notice of the
government documents. However, the Court is mindful that it cannot use the facts
contained in these exhibits to second guess the FWS' s 2014 listing decision. See
Ocean Advocates v. US. Army Corps ofEngineers, 402 F.3d 846, 858 (9th Cir.
2005) (under APA review, a court "cannot substitute" its judgment for that of the
agency) (citation omitted).
B. Five Factor Test Under the ESA
Alliance first argues that Defendants violated the ESA by failing to address
its "Five Factor test" for listing determinations. As mentioned above, the ESA
requires the FWS to "determine whether any species is an endangered species or a
threatened species because of any of the following factors: (A) the present or
threatened destruction, modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence." 16 U.S.C.
§ 1533(a)(l). Alliance maintains that because the FWS's December 2014 not
warranted determination failed to address these factors, both the public and the
Court do not have a meaningful basis to review the agency's determination.
Alliance further argues that the listing determination provides no citation to any
scientific evidence supporting the agency's conclusion. This lack of citation,
Alliance asserts, thus violates the ESA's requirement that all listing decisions be
based on "the best scientific and commercial data available." 16 U.S.C.
§1533(b)(l)(A); see also 50 C.F.R. § 424.1 l(b) (the FWS shall make all listing
determinations "solely on the basis of the best available scientific and commercial
information regarding a species' status"). The Court disagrees.
Under the ESA, when the FWS issues a warranted but precluded finding, it
"shall promptly publish such finding in the Federal Register, together with a
description and evaluation of the reasons and data on which the finding is based."
16 U.S.C. §1533(b)(3)(B)(iii). However, as is here, when the FWS issues a "not
warranted" decision, it is only required to "promptly publish such finding in the
Federal Register." 16 U.S.C. §1533(b)(3)(B)(i). Under the plain language of the
statute, the FWS complied with the ESA's publishing requirements for issuing a
not warranted determination. Further, as noted by Defendants, the FWS
conducted its five factor analysis in the species assessment form and included it in
the administrative record. AROOOOS0-73. This analysis satisfies the ESA's
mandate that all listing decisions may undergo judicial review to ensure that the
decision is based on "the best scientific and commercial data available." 16
U.S.C. § 1533(b)(1 )(A). Thus, the Court rejects Alliance's first argument that
Defendants violated the ESA.
C. "On the Brink of Extinction" Interpretation
As discussed, the FWS determined that the Cabinet-Yaak grizzly was not
warranted for listing as an endangered species because it was not "on the brink of
extinction." 79 Fed. Reg. at 72488. Alliance asserts that application of"on the
brink of extinction" standard is a new policy interpreting the ESA's definition of
"endangered," i.e., "any species which is danger of extinction throughout all or a
significant portion of its range ...." 16 U.S.C. § 1532(6). Alliance asserts that
this policy was first promulgated as a result of litigation surrounding a 2008 FWS
decision to not list the polar bear as an endangered species. See Jn re Polar Bear
Endangered Species Act Listing & 4(d) Rule Litig., 748 F.Supp.2d 19 (D.D.C.
2010) (hereafter "In re Polar Bear F').
There, the FWS interpreted the term "endangered species" to mean the
species "must be in imminent danger of extinction" to be listed as endangered. Jn
re Polar Bear I, 748 F. Supp. 2d at 22. The district court determined that the FWS
failed to adequately explain the legal basis for this interpretation and remanded to
allow the service to provide a supplemental explanation for its interpretation of
"endangered." Id. Following remand, the FWS issued a supplemental explanation
("Polar Bear Memorandum") stating that the phrase "in danger of extinction"
generally "describes a species that is currently on the brink of extinction in the
wild." In re Polar Bear Endangered Species Act Listing and 4(d) R. Litig., 794 F.
Supp. 2d 65, 83 (D.D.C. 2011) (hereafter "In re Polar Bear JI") (emphasis in
original). Based upon the FWS' s thorough explanation for its listing decision in
the Polar Bear Memorandum, the district court afforded Chevron 9 deference to the
Chevron, US.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
decision and found that the service "articulated a rational basis for its
determination that the polar bear was not in danger of extinction at the time of
listing .... " In re Polar Bear II, 794 F. Supp. 2d at 112. However, the district
court noted that the FWS' s Polar Bear Memorandum emphasized that it was "not
intended to set forth a new statement of agency policy or a new 'rule' pursuant to
the APA, nor does the agency intend to adopt independent, broad-based criteria
for defining the statutory term 'in danger of extinction."' Id. at 82-83.
Despite the FWS' s assertion in the Polar Bear Memorandum that it was not
promulgating a new policy of interpreting "in danger of extinction" to mean "on
the brink of extinction," Alliance contends that the FWS's 2014 determination that
the Cabinet-Yaak grizzly bear was not warranted for listing turned on this
interpretation. Consequently, Alliance maintains that this interpretation now
represents a change in FWS policy and the 2014 determination should only be
afforded Skidmore 10 deference, a less deferential standard.
In response, Defendants stress that the FWS' s application of the "on the
brink of extinction" standard as discussed in the Polar Bear Memorandum did not
represent a new policy or regulation by the FWS. Instead, Defendants argue that
application of the standard announced in the Polar Bear Memorandum "is merely a
Skidmore v. Swift & Co., 323 U.S. 134 (1944).
summary of the agency's long-standing interpretation of the statutory phrase 'in
danger of extinction' as meaning 'on the brink of extinction' and how it has
analyzed and applied this interpretation over the last 40 years." (Doc. 29 at 19.)
Accordingly, Defendants argue, because this interpretation of endangered is a
permissible construction of"in danger of extinction," as recognized by the Jn re
Polar Bear II court, this Court should apply Chevron deference and defer to the
FWS 's interpretation of the term.
1. Level of Deference
There are no hard or fast rules for determining the level of deference a court
should apply to an agency's construction of a statute. Rather, the Court's first step
is to determine if Congress has clearly spoken to the issue. N. W. Ecosystem All. v.
U.S. Fish and Wildlife Serv., 475 F.3d 1136, 1141 (9th Cir. 2007) (citing Chevron,
467 U.S. at 842-844)). If the statute is unambiguous, the Court "'must give effect
to the unambiguously expressed intent of Congress' regardless of the agency's
view." NW. Ecosystem All., 475 F.3d at 1141 (quoting Chevron, 467 U.S. at
843)). However, ifthe statute is ambiguous, the Court "must determine how much
deference to give to the administrative interpretation." Id. Here, the parties do not
dispute that "on the brink of extinction" is an ambiguous phrase. Thus, the Court
must decide whether the FWS' s interpretation of this phrase is entitled to the
deference applied in Chevron or Skidmore. Id.
"Chevron deference applies 'when it appears that Congress delegated
authority to the agency generally to make rules carrying the force of law, and that
the agency interpretation claiming deference was promulgated in the exercise of
that authority."' Id. (quoting United States v. Mead Corp., 533 U.S. 218, 226-227
(2001) ). Generally, "Congress contemplates administrative action with the effect
of law when it provides for a relatively formal administrative procedure tending to
foster the fairness and deliberation that should underlie a pronouncement of such
force." Mead Corp., 533 U.S. at 230 (citation omitted). Consequently, the vast
majority of cases which have applied Chevron deference have done so on the heels
of agency notice-and-comment rulemaking or following some formal adjudication
process. Id.; see also N. W. Ecosystem All., 475 F.3d at 1142 (FWS's construction
of the term "distinct population segment" was entitled to Chevron deference
following "robust" adjudication process). Nevertheless, just because an agency's
interpretation of statute did not undergo public notice-and-comment does not
mean the interpretation should not be afforded Chevron deference. Mead Corp.,
533 U.S. at 230; see also N. W. Ecosystem All., 475 F.3d at 1142. Thus, as is the
situation here, the fact that the FWS's "on the brink of extinction" interpretation
did not undergo a notice-and-comment period does not automatically rule out the
application of Chevron deference. I I
However, an agencies' interpretation of a statute should only be afforded
Chevron deference ifthe administrative action is intended to have the force of law.
N. W. Ecosystem All., 475 F.3d at 1142 (FWS policy reviewed under Chevron
deference because there was no evidence that the agency treated the policy "as
anything other than legally binding"). Here, both the Polar Bear Memorandum
and the FWS have represented that this interpretation is not to be treated as a
formal binding interpretation of the ESA and, thus, does not have the force of law.
As discussed, the Polar Bear Memorandum expressly states that its
interpretation of"in danger of extinction" to mean "on the brink of extinction"
was limited only to the litigation surrounding the listing of the polar bear and was
"not intended to set forth a new statement of agency policy or a new 'rule'
pursuant to the AP A, nor does the agency intend to adopt independent,
broad-based criteria for defining the statutory term 'in danger of extinction."' In
re Polar Bear II, 794 F. Supp. 2d 65, 82-83 (discussing the limited nature of the
Polar Bear Memorandum). Additionally, Defendants in this case stress that the
interpretation announced in the Polar Bear Memorandum does not create any new
The FWS concedes that its "on the brink of extinction" interpretation did not undergo a
formal notice-and-comment period. (Doc. 26 at 20.)
rules or policies and, instead, summarizes the agency's past practices and is meant
to act as a guide. (Doc. 29 at 20 (describing how the FWS relied on the Polar Bear
Memorandum "in this case for guidance and explanation of how the agency
interpreted endangered and how it has applied this interpretation in the past to
specific facts").) 12
Accordingly, because the FWS only considers this interpretation for
guidance and not as a binding formal pronouncement with the force of law, the
Court will review this interpretation under Skidmore. See Alaska Oil and Gas
Assn. v. Pritzker, 840 F .3d 671, 681 (9th Cir. 2016) ("An internal guidance
document that reflects an agency's 'body of experience and informed judgment,'
but that is not promulgated through rulemaking, is typically afforded Skidmore
2. Skidmore Deference
Under Skidmore, "[t ]he weight of [an agency interpretation] will depend
upon the thoroughness evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all of those factors which
The Court notes that Defendants do not represent that this interpretation is legally
binding. (Doc. 40 at 14 (describing the Polar Bear Memorandum "as a resource containing
helpful analysis and examples (as opposed to a legally binding codification of an agency
give it power to persuade, if lacking power to control." Presidio Historical Ass 'n
v. Presidio Tr., 811F.3d1154, 1166 (9th Cir. 2016) (quoting Skidmore, 323 U.S.
Here, the agency's interpretation of "in danger of extinction" to mean "on
the brink of extinction" is not consistent with the agency's prior interpretation of
"endangered species" under the ESA. Aside from In re Polar Bear JI, Defendants
fail to cite to any other case where this interpretation was put forth by the FWS.
Indeed, even in that decision, as discussed above, the district court emphasized the
limited nature of this interpretation and its narrow applicability. See In re Polar
Bear II, 794 F. Supp. 2d 65, 82-83. Further, though Defendants provide citations
to several Federal Register determinations where the phrase "on the brink of
extinction" was used, none of these decisions state that the agency was adopting a
new interpretation of"in danger of extinction" to mean "on the brink of
extinction." (See Doc. 40 at 10-11 (listing several Federal Register decisions
where the phrase was mentioned).) Additionally, only one of the Federal Register
decisions cited by Defendants found that a species was not warranted for listing
because it was not "on the brink of extinction." 69 Fed. Reg. 21425, 21428 (April
21, 2004) ("Based on the best available scientific information, we do not believe
the species is on the brink of extinction at this time and does not meet the
definition of endangered under the Act."). However, this appears to be an offhand
comment and the decision does not indicate that it is attaching any particular
weight to this phrase. Based upon this authority, the Court finds that the FWS has
failed to consistently apply "on the brink of extinction" to mean "in danger of
extinction." This factor cuts against giving any great weight to the FWS 's "on the
brink of extinction" interpretation.
Additionally, the FWS's December 2014 determination that the CabinetYaak grizzly was not "on the brink of extinction" was announced in a one
paragraph decision that contained no reasoning supporting this interpretation of
"endangered." Further, this interpretation was not thorough and failed to reflect
any collective deliberation by the agency before it was adopted. Based upon these
factors, the Court finds that the FWS' s "on the brink of extinction" interpretation
should be afforded little to no deference. Consequently, the Court will next decide
if application of this interpretation violated the APA's requirement that an agency
provide a reasoned explanation for a change in its policy.
3. Change in Policy
The Court first notes that Defendants dispute the fact that its application of
the Polar Bear Rule equates to a change in policy. As mentioned above,
Defendants suggest that the Polar Bear Memorandum was merely a document that
provided guidance to the FWS and was not meant to be a binding interpretation of
the statutory phrase "in danger of extinction." The evidence before the Court is to
As discussed, from January 2014 until June 2014, documents within the
administrative record uniformly recognized that the Cabinet-Yaak grizzly was
warranted for listing as endangered species. Prior to July 2014, all Montana FWS
biologists and employees recognized that, though there was a slight improvement
in the bear's recovery which would warrant a slight revision of the bear's LPN
from 3 to 6, the bear still qualified for uplisting as an endangered species. (Doc.
21 at 29-33 (summarizing the administrative record).) These opinions were also
reflected in the draft species assessments which concluded that the the bear' s LPN
should changed from 3 to 6.
However, in July 2014, following a FWS administrator's directive to apply
the Polar Bear Memorandum's interpretation of"in danger of extinction" to the
Cabinet-Yaak population's listing designation, the recommendations ofFWS staff
abruptly changed. Indeed, the record reflects that following a conversation
between a FWS biologist and a FWS administrator, the agency began to
implement the interpretation of "in danger of extinction" as announced in the Polar
Bear Memorandum. See AR-35:000592-000594 (describing how the Polar Bear
Memorandum announced a new agency "policy" in regards to the statutory phrase
"in danger of extinction" and how the FWS was now interpreting that phrase to
mean "currently on the brink of extinction in the wild"). Even if the Court
disregarded the fact that an FWS employee referred to this interpretation as a "new
policy," the agency's actions reflect that it indeed was implementing a new policy.
The Court thus rejects Defendants' argument that implementation of the Polar
Bear Rule was not a change in agency policy.
As discussed above, the APA directs a court to "hold unlawful and set aside
agency action, findings, and conclusions found to be-(A) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §
706(2)(A). "'Unexplained inconsistency' between agency actions is 'a reason for
holding an interpretation to be an arbitrary and capricious change."' Organized
Village ofKake v. US. Dept. ofAgric., 795 F .3d 956, 966 (9th Cir. 2015) (quoting
Nat 'l Cable & Telecomms. Ass 'n v. Brand X Internet Servs., 545 U.S. 967, 981
(2005)). "[A] policy change complies with the APA ifthe agency (1) displays
awareness that it is changing position, (2) shows that the new policy is permissible
under the statute, (3) believes the new policy is better, and (4) provides good
reasons for the new policy, which, ifthe new policy rests upon factual findings
that contradict those which underlay its prior policy, must include a reasoned
explanation for disregarding facts and circumstances that underlay or were
engendered by the prior policy." Organized Village ofKake, 795 F.3d at 966
(citing FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-516 (2009))
(internal punctuation and quotation marks omitted).
Here, the December 2014 Cabinet-Yaak grizzly listing determination failed
to recognize that it was applying the new policy announced in the Polar Bear
Memorandum. Even if one were to argue that the agency displayed awareness that
it was changing its policy through the emails between the FWS biologist and FWS
administrator, the agency failed to publically announce this change. Further, there
is no evidence in the administrative record or in the December 2014 listing
determination to suggest that the agency found that the change in policy was
permissible under the ESA, believed that the new policy was better than the
agency's prior interpretations, or otherwise provided a good reason for the change.
Accordingly, due to the failure of the FWS to provide a reasonable explanation for
why it modified its interpretation of "in danger of extinction" to mean "on the
brink of extinction," the Court finds that the December 2014 not warranted
determination was an arbitrary and capricious decision in violation of the APA. 13
Because the Court will grant Alliance's motion and remand for further proceedings on
this issue, it declines to address Alliance's remaining arguments.
Based upon this finding, the Court will grant Alliance's motion for summary
judgment, and deny the cross-motions for summary judgment of Defendants and
When an agency action is not promulgated in compliance with the APA, the
action is deemed to be invalid. Organized Village ofKake, 795 F .3d at 970; see
also Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) ("The effect of
invalidating an agency rule is to reinstate the rule previously in force."). Further,
upon remand, a court should provide the agency with specific instructions to
address its errors. Friends of Wild Swan v. US. Envtl. Protec. Agency, 74 Fed.
Appx. 718, 722 (9th Cir. 2003) (unpublished) ("We have previously found remand
with specific instructions to be an appropriate remedy for APA violations.").
Here, because the Court's finds that the FWS's December 2014 not
warranted determination was arbitrary and capricious because it failed to explain a
change in agency policy as it relates to the ESA's definition of"endangered," the
Court will vacate this determination and reinstate the FWS's November 2013
warranted but precluded finding. See 78 Fed. Reg. 70104, 70151(November22,
2013). Additionally, ifthe FWS intends to apply the Polar Bear Rule in future
listing decisions, i.e., the "on the brink of extinction" interpretation of "in danger
of extinction," the Court remands with instructions to: (1) display an awareness
that it is now applying this interpretation as applied to the ESA; (2) show that this
new interpretation is permissible under the ESA, (3) explain why this new
interpretation is better; and (4) provide a reasoned explanation for what this
Accordingly, IT IS ORDERED that
(1) Plaintiffs Motion to Supplement the Record (Doc. 16) is GRANTED IN
PART and DENIED IN PART in accordance with the above Order;
(2) Plaintiffs Motion for Summary Judgment (Doc. 19) is GRANTED;
(3) Federal Defendant's Cross-Motion for Summary Judgment (Doc. 28) is
(4) Defendant-Intervenors' Cross-Motion for Summary Judgment (Doc. 33)
(5) The United States Fish & Wildlife Service's December 5, 2014
determination that the Cabinet-Yaak grizzly bear is not warranted for listing as an
endangered species under the Endangered Species Act, 79 Fed. Reg. 72450, 72488
(December 5, 2014), is hereby VACATED; and
( 5) This matter is REMANDED to the United States Fish & Wildlife
Service for further consideration consistent with this order.
DATED this ·22 day of August, 20
Dana L. Christensen, Chief Judge
United States District Court
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