United States District Court, D. Colorado
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CENTER FOR BIOLOGICAL DIVERSITY, and TAYLOR MCKINNON, Plaintiffs,
v.
SALLY JEWELL, Secretary of the Interior, and U.S. FISH & WILDLIFE SERVICE, Defendants, and STATE OF COLORADO, COLORADO DIVISION OF PARKS & WILDLIFE, COLORADO PARKS & WILDLIFE COMMISSION, and NEW MEXICO DEPARTMENT OF GAME & FISH, Intervening Defendants.
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 ...