In re United States District Court for District of Colorado Center for Biological Diversity v. Jewell

          OPINION AND ORDER VACATING IN PART AND REMANDING DECISION

          Marcia S. Krieger, Senior United States District Judge.

         THIS MATTER comes before the Court for a determination on the merits, based on the Plaintiffs’ Complaint (# 1), the Plaintiffs’ Opening Brief (# 76), the Defendants’ Response (# 77), the Intervening Defendants’ Responses (## 78, 79), and the Plaintiffs’ Reply (# 80). Upon consideration of the arguments presented in light of the Administrative Record (## 21, 22, 67, 75), the Fish and Wildlife Service’s decision is vacated, in part, and remanded.

         I. JURISDICTION

         The Court exercises jurisdiction under 5 U.S.C. § 702 and 28 U.S.C. § 1331.

         II. BACKGROUND^[1]

         The Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., provides a mechanism for the protection of plant and animal species that are determined to be “endangered” or “threatened” due to habitat loss, predation, and other events. A species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). A species is “threatened” if it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20). The Secretary of the Interior, through delegation to various agencies within that Department, makes a determination of whether a given species is threatened or endangered. 16 U.S.C. § 1533(a)–(b). If the species is found to be threatened or endangered, that status is noted on a list kept by the Secretaries of the Interior and Commerce, and the species is described as “listed, ” with various consequences flowing from that status. 16 U.S.C. § 1533(c)(1).

         The Rio Grande Cutthroat Trout (“Trout”) is native to and lives in high-altitude streams in southern Colorado and New Mexico. Maintaining suitable populations of Trout requires long, continuous, suitable stream habitats and isolation from other species of non-native trout, who have a tendency to mate with the Trout, producing hybridized offspring that dilute genetically-pure Trout populations. Due to habitat loss, invasive species, and other effects, Trout currently occupy only about 10% of their total historical range. Roughly 100 current populations of Trout are spread across four different geographic management units, although due to the loss of connecting waterways, most existing populations of Trout are effectively geographically isolated from each other.

         The Trout’s status under the ESA has been considered by the U.S. Fish and Wildlife Service (“the Service”) on several occasions. In 2002, the Service considered the Trout and concluded that its status did not warrant listing. In 2008, the Service reversed course, finding that the Trout should be listed. Status Review for Rio Grande Cutthroat Trout, 73 Fed. Reg. 27, 900–26 (May 14, 2008) (“the 2008 Determination”). As required by law, the Service revisited the decision to list the Trout five years later, and in 2014, the Service changed its mind again, finding that the Trout no longer warranted listing. 12-Month Finding on a Petition to List Rio Grande Cutthroat Trout as an Endangered or Threatened Species, 79 Fed. Reg. 59, 140–50 (“the 2014 Determination”).

         Dissatisfied with the Service’s 2014 Determination delisting the Trout, the Plaintiffs commenced this action pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). After resolution of the appropriate scope of the administrative record, the parties filed briefs on the merits of the Plaintiffs’ claims. The Plaintiffs’ brief (# 76) argues: (1) the factual records before the Service in the 2008 and 2014 determinations were effectively the same, and the Service did not meaningfully explain why its analysis of those facts changed in the 2014 determination; (2) the Service’s conclusion that the Trout was not threatened because a reduced number of populations would remain in 2080 misapplied the appropriate standard under the ESA for assessing a threat to the species; (3) the Service did not evaluate the five factors required by 16 U.S.C. § 1533(a)(1)(A); and (4) the Service erroneously failed to consider the impact of the loss of the Trout’s historical range.

         III. STANDARD OF REVIEW

         The APA permits persons harmed by a federal agency’s action to seek judicial review of that action. 5 U.S.C. § 702. Once an agency action is challenged, a district court reviews the action as if it were an appellate court. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994). The Court can set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

         The Court may affirm an agency’s decision only “on the grounds articulated by the agency itself.” Olenhouse, 42 F.3d at 1565, 1575. “After-the-fact rationalization by counsel in briefs or argument will not cure noncompliance by the agency”. Id. at 1575. When the challenge is that the agency’s decision is arbitrary and capricious, the Court must determine whether the agency examined the relevant data and factors, and whether it articulated a rational connection between the facts and its decision. Id. at 1574. Typically, an “agency’s action is entitled to a presumption of validity, and the burden is upon the petitioner to establish the action is arbitrary or capricious.” Sorenson Commc’ns Inc. v. FCC, 567 F.3d 1215, 1221 (10th Cir. 2009). Deference to the agency “is especially strong where the challenged decisions involve technical or scientific matters within the agency’s area of expertise.” Utah Envt’l Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). If the agency’s exercise of discretion is truly informed, then the Court defers to it. Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir. 2002).

         The Court does not substitute its judgment for that of the agency. Colo. Wild v. U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir. 2006). It is not the Court’s role to weigh conflicting evidence or evaluate credibility. See Pennaco Energy Inc. v. Dep’t of the Interior, 377 F.3d 1147, 1159 (10th Cir. 2004). Indeed, even when the administrative record contains evidence that arguably conflicts with the agency’s findings, it does not necessarily render the agency’s decision arbitrary and capricious. See id. Nor is it the Court’s function to decide the propriety of competing methodologies. See Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 782 (10th Cir. 2006). In other words, the focus is on the rationality of the decisionmaking process, not on the decision itself. Olenhouse, 42 F.3d at 1575.

         IV. DISCUSSION

         A. Summary of the 2008 and 2014 Determinations

         Because the Plaintiffs contend that the 2008 and 2014 Determinations are predicated on the same basic facts, it is necessary for the Court to discuss those two analyses, as well as an intervening event, in some detail.

         1. The 2008 Determination

         The 2008 Determination began with an acknowledgement that the Service has previously considered the status of the Trout in 2002, and had determined that the listing of the Trout was not warranted at that time. But it noted that, since then, “several of the original core populations has subsequently declined and we believe those populations alone are not sufficient to conserve” the Trout. 73 Fed. Reg. at 27, 901. Like the 2002 review, the 2008 Determination focused on “core populations” of Trout, defined based on their “genetic integrity, population stability, and security from invasion by nonnative [trout and salmon], ” plus “conservation populations” that “retain the ecological, behavioral, and phenotypic characteristics” of the Trout; by all appearances, all substantial Trout populations fall into either the “core population” or “conservation population” categories. Id. at 27, 901–02. At that time, the Service estimated that there were currently about 120 total populations, and it expected that conservation efforts underway in two streams would eventually produce two more viable populations of Trout.

         The 2008 Determination primarily addressed five factors: (1) present or threatened destruction or curtailment of habitat; (2) overutilization for commercial and recreational purposes; (3) disease or predation; (4) the adequacy of existing regulatory mechanisms, and (5) other natural and man-made factors affecting the Trout.^[2] The second factor (overutilization) was largely dismissed as insignificant, and the third factor (disease) was noted as an abstract concern that had yet to substantially materialize in the field. The bulk of the analysis instead focused on the other three factors.

         As to habitat loss, the 2008 analysis explained that population loss among Trout was often due to “water diversions, stream drying, dams, habitat degradation, changes in hydrology, hybridization with rainbow trout, or competition with” other species. It adopted scientists’ estimate that only about 10% of the Trout’s habitat remained and that most populations were now isolated from one another due to the loss of connecting streams. This lack of connection caused “habitat fragmentation, ” which reduces the total area of habitat available, reduces habitat complexity, prevents gene flow, and ultimately “accelerates extinction” when isolated populations are harmed or destroyed by random events. The Service also found that many of the habitat fragments that remained were short lengths of streams, reducing the habitat’s suitability to support large numbers of fish and increasing the likelihood that areas required for completion of the Trout’s life cycle might be affected or destroyed. Id. at 27, 903.

         The Service noted that habitat fragmentation “can be partially alleviated by management activities, ” and it cited “three major watershed-scale projects [that] have been initiated on both private and [Forest Service] lands and are in various phases of implementation.” Among others, the conservation projects included the Vermejo Park Ranch project that began in 2002, which removed non-native species and reintroduced the Trout to several creeks and lakes on the ranch’s property. The Service was cautious about assuming that restoration projects would substantially slow the loss of Trout populations (much less increase the number of such populations), noting that such projects “face many challenges, ” including public opposition, sabotage, barrier failures, and inadvertent mistakes. Id. at 27, 906.

         Surveying a variety of reference sources, the Service stood by its prior estimates that at least 2, 500 fish would be needed in a given population in order to “ensure long-term persistence” of that population, and that populations with fewer Trout would be at greater risk of loss and would not “be contributing to the long-term persistence of the subspecies.” Of the 120 conservation populations that had been identified in 2002, the Service believed identified only 13 populations were “secure, ” in that they contained sufficient Trout, harbored no non-native trout, and were protected from invasion by non-native fish via a barrier. By 2007, 8 of those 13 populations had fallen below 2, 500 fish (including one that had gone from 13, 000 fish to “extirpated” - completely destroyed - due to low water conditions). Id. at 27, 904.

         Turning to the other risks affecting the Trout, the Service found that it had insufficient data to determine whether habitat quality was a significant threat to the Trout range-wide. The Service then discussed the introduction of non-native species as “one of the leading causes of range reduction” in the Trout, either through competition for food and habitat or through interbreeding and hybridization. It cited droughts in the early 2000s as damaging or eliminating as many as 15 populations, and noted “the possibility of more widespread drought accompanying climate change” as an active threat to the Trout. It also noted ...