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Western Watersheds Project v. Ashe

United States District Court, D. Idaho

June 4, 2013

DANIEL ASHE, Director, and UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the United States, Defendants

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[Copyrighted Material Omitted]

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For Western Watersheds Project, Plaintiff: Todd C Tucci, ADVOCATES FOR THE WEST, Boise, ID.

For Daniel Ashe, Director of United States Fish and Wildlife Service, United States Fish and Wildlife Service, an agency of the United States, Defendants: Mary Elisabeth Hollingsworth, LEAD ATTORNEY, United States Department of Justice, Washington, DC; Syrena Case Hargrove, LEAD ATTORNEY, U.S. Attorney's Office, Boise, ID.

For State of Wyoming, Intervenor Defendant: David Isaacs Stanish, LEAD ATTORNEY, Holland & Hart LLP, Boise, ID; Michael James McGrady, PRO HAC VICE, Wyoming Attorney General's Office, Assistant Attorney General, Cheyenne, WY; William Gerry Myers, III, HOLLAND & HART, Boise, ID.


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Edward J. Lodge, United States District Judge.

Before the Court in the above entitled matter are Plaintiff's Motion for Summary Judgment and Defendants' Cross-motions for Summary Judgment. The parties have submitted their briefing on the motions and the matters are now ripe for the Court's review.

Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the motions shall be decided on the record before this Court without oral argument.


Plaintiff Western Watersheds Project (" Plaintiff" ) filed the instant action challenging the September 30, 2010 Listing Decision (" Listing Decision" ) issued by Defendants United States Fish and Wildlife Service and United States Fish and Wildlife Service Director Daniel Ashe (collectively referred to as " the Service" ). (Dkt. 1.) The Listing Decision determined protection of the pygmy rabbit ( Brachylagus idahoensis ) as an endangered or threatened species was not warranted under the Endangered Species Act (" ESA" ). 16 U.S.C. § § 1531 et. seq. Plaintiff seeks judicial review of the " not warranted" finding, and asks the Court to reverse and remand the Listing Decision to the Service for a new listing determination consistent with the requirements of the ESA. (Dkt. 31, p.

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2.) The State of Wyoming (the " State" ) successfully intervened in this case as a Defendant-Intervenor in order to defend the Service's " not warranted" determination. (Dkt. 13.) Plaintiff, the Service and the State have each filed cross-motions for summary judgment, which the Court now considers. (Dkts. 30, 33, 27.)


1. Legal Background

The ESA was enacted in 1973 " to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered and threatened species." ESA § 2(b), 16 U.S.C. § 1531(b). 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." 16 U.S.C. § 1532(20). If a species is listed as endangered or threatened, various statutory prohibitions help to protect and allow for the survival and recovery of the species.[1] See, e.g., 16 U.S.C. § 1533(d); 16 U.S.C. § 1536(a)(2); 16 U.S.C. § 1538.

Whether a particular species should be listed as either " endangered" or " threatened" is determined by the process set forth in Section 4 of the ESA.[2] 16 U.S.C. § 1533. Under this section, the Service is required to determine whether a species is endangered or threatened " because of any" of the following five factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreation, scientific, or education 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)(1)(A)-(E).

Although the Service considered all five of the above factors in the Listing Decision, Plaintiff's Complaint challenges only certain aspects of the Service's assessment of Factor A-" the present or threatened destruction, modification, or curtailment of [the species'] habitat or range." (Dkt. 1, pp. 12-15, ¶ ¶ 44-55.) The parties' dispute on review accordingly centers on the Service's assessment of Factor A.

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The ESA requires that the decision of whether to list a species must be founded " solely on the basis of the best scientific and commercial data available to [the Service] after conducting a review of the status of the species...[.]" 16 U.S.C. § 1533(b)(1)(A). An agency's determination of what constitutes the " best available science" is accorded substantial deference. San Luis & Delta-Mendota Water Auth. v. Salazar, 760 F.Supp.2d 855, 871 (E.D. Cal. 2010). The Service is also required to consult with affected states when considering whether to list a species as endangered or threatened, and to " tak[e] into account those efforts...being made by any protect such species" under existing " conservation practices." 16 U.S.C. § 1533(b)(1)(A).

If the Service finds that listing is warranted, it must publish a proposed listing regulation in the Federal Register. Id. at § 1533(b)(3)(B)(ii). The Service must either publish in the Federal Register a final regulation listing the species, or withdraw the proposed listing, within one year of publishing a warranted finding. Id. at § 1533(b)(6)(A). Designation of critical habitat for the listed species must accompany or soon follow a final listing regulation. Id. at § 1533(b)(6)(C). The ultimate goal of the ESA is to recover listed species to the point where they no longer need ESA protection. Id. at § 1531(b)-(c); § 1532(3).

2. The Pygmy Rabbit

The following facts are taken from the Listing Decision and do not appear to be disputed by the parties. The pygmy rabbit is the smallest member of the family Leporidae (rabbits and hares) in North America. (Administrative Record (" AR" ) p. 2.) The weight of an adult pygmy rabbit ranges from 0.54 to 1.2 pounds, and the length ranges from 9.1 to 12.1 inches. ( Id. ) The species can be distinguished from other rabbits by its small size, gray color, short rounded ears, small hind legs, and by the absence of white on its tail. ( Id. )

Pygmy rabbits are typically found in areas of tall, dense sagebrush cover and are considered a sagebrush obligate species because they are highly dependent on sagebrush to provide both food and shelter throughout the year. ( Id. ) The winter diet of a pygmy rabbit is composed of up to 99 percent sagebrush, which is unique among leporids. ( Id. ) In Idaho, the pygmy rabbit's spring and summer diet was found to consist of approximately 51 percent sagebrush, 39 percent grasses, and 10 percent forbs. ( Id. )

The pygmy rabbit is one of two rabbits in North America that digs its own burrows. ( Id. ) These burrows are typically found in relatively deep, loose soils of wind-borne or water-borne origin. ( Id. ) Pygmy rabbits, especially juveniles, likely use burrows for protection from predators and inclement weather. ( Id. ) Pygmy rabbits are relatively slow and vulnerable in more open areas, and evade predators by maneuvering through the dense shrub cover of their preferred habitat or by escaping to their burrows. ( Id. ) Due to their specialized habitat requirements, pygmy rabbits are not evenly distributed across their range. ( Id. at 4.) They are found in areas within their broader distribution where sagebrush cover is sufficiently tall and dense, and where soils are sufficiently deep and loose to allow burrowing. ( Id. )

After initial declines, pygmy rabbits may not have the same capacity for rapid increases in numbers that characterize other species. ( Id. ) This may be due to their close association with specific components of sagebrush ecosystems, and the relatively limited availability of their preferred habitats. ( Id. ) No study has documented rapid increases in pygmy rabbit numbers in response to environmental conditions. ( Id. ) Nor are long term population monitoring

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studies available to indicate whether population fluctuations or cycles occur for pygmy rabbits or if seasonal or other habitat shifts or movements have been misinterpreted as declines. ( Id. ) The annual mortality rate of adult pygmy rabbits may be as high as 88 percent, and more than 50 percent of juveniles can die within roughly 5 weeks of birth. ( Id. ) Predation is the main cause of pygmy rabbit mortality. ( Id. )

The general historical and current geographic range of the pygmy rabbit includes portions of eight states, including Idaho, Nevada, Utah, Wyoming, Oregon, and sections of Washington (the Columbia Basin area), Northeastern California, and Southwestern Montana. ( Id. at 4-5.) To determine the historical and current distribution of pygmy rabbits in these areas (excluding the Columbia Basin area in Washington, where the pygmy rabbit is already listed as endangered), the Service reviewed published scientific peer-reviewed literature; unpublished agency documents; dissertations; theses; databases maintained by State heritage programs, State wildlife agencies, and Federal agencies; survey data sheets; museum records; electronic mail records; and agency notes to the files. ( Id. )

The Service also undertook a large-scale, range-wide analysis of Service databases documenting surveying records of pygmy rabbits across its traditional habitat. ( Id. at 8.) The Service ultimately concluded pygmy rabbit activity continues to occur in Oregon, Idaho, Montana, Wyoming, Nevada, and Utah, in a similar distributional pattern as compared with historical information. ( Id. at 8-15.) Although it found the pygmy rabbit may have suffered range contraction in portions of its historical range in Northeastern California, the Service ultimately determined pygmy rabbits continue to occur throughout their historical range, as well as in newly discovered sites in all seven states where pygmy rabbit activity has been detected. ( Id. at 4, 16, 32, 43-44.)

3. Procedural Background

This case represents the fourth round of litigation before this Court regarding the Service's consideration of whether the pygmy rabbit should be listed as an endangered or threatened species under the ESA. In November 2001, the Service issued an emergency rule protecting the pygmy rabbit as an endangered species in the Columbia Basin Distinct Population Segment (" DPS" ), located in the Columbia Valley region of Washington.[3] (Dkt. 1, p. 9, ¶ 33.) In this rule, the Service acknowledged concerns over the declining populations of pygmy rabbits across its historic range, and planned a status review of the pygmy rabbit to determine whether it required range-wide protection under the ESA. ( Id. )

In March, 2003, the Service issue a new, final rule protecting only the Columbia Basin DPS pygmy rabbits as endangered. ( Id., ¶ 34.) On April 21, 2003, Plaintiff submitted a " Listing Petition" to the Service, requesting that the Service list the pygmy rabbit as endangered or threatened in all remaining populations outside of the Columbia Basin DPS. ( Id., p. 10, ¶ 36.) The Service initially failed to respond to Plaintiff's Listing Petition within the timelines required under the ESA. ( Id., ¶ 38.) Plaintiff accordingly sued the Service on August 31, 2004 to enforce compliance with the ESA. See Western Watersheds Project et. al. v. U.S. Fish and Wildlife Service, No. 04-cv-440-BLW (D. Idaho). ( Id. ) The

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parties reached a settlement requiring the Service to submit for publication in the Federal Register a 90-day Finding on Plaintiff's Listing Petition by May 16, 2005, and, if appropriate, a 12-month Finding by February 15, 2006. ( Id., p. 11, ¶ 39.)

The Service's requisite 90-day Finding, published on May 20, 2005, concluded that Plaintiff's Listing Petition failed to provide substantial scientific or commercial information to demonstrate that listing the pygmy rabbit under the ESA may be warranted. ( Id., ¶ 40.) Plaintiff again sued the Service, seeking judicial review of the Service's determination. See Western Watersheds Project v. Norton, No. 06-cv-0127-EJL (D. Idaho). This Court held that the Service's 90-day Finding improperly imposed a higher standard for scientific and commercial information than that required under the ESA when it denied Plaintiff's Listing Petition. 2007 WL 2827375 (D. Idaho 2007) at *6. As such, this Court reversed the Service's 90-day Finding as arbitrary and capricious, and remanded the decision back to the Service to issue a new decision within 90 days. [WL] at *9.

In January 2007, the Service issued a new 90-day Finding concluding that protection of the pygmy rabbit under the ESA may be warranted. 73 Fed. Reg. 1312 (January 8, 2007). Rather than issuing a 12-month Finding within one year as required under the ESA, the Service had failed to issue any finding by February of 2010. Plaintiff again sued the Service for violating the ESA. See Western Watersheds Project v. U.S. Fish and Wildlife Service, No. 10-cv-000544-REB (D. Idaho). The parties reached a settlement requiring the Service to issue a mandatory 12-month Finding no later than September 24, 2010. (Dkt. 1, p. 11, ¶ 43.)

On September 30, 2010, the Service published the Listing Decision at issue in this case. 75 Fed. Reg. 60516-561. In the Listing Decision, the Service concluded that listing the pygmy rabbit as an endangered or threatened species under the ESA was not warranted. Plaintiff filed the instant action to seek judicial review of the Service's " not warranted" finding.


Summary judgment may be granted " if the movant shows 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). However, in a case involving review of a final agency action under the Administrative Procedures Act (" APA" ), the court's role is limited to reviewing the administrative record, and the standard set forth in Rule 56 does not apply. Colorado River Cutthroat Trout v. Salazar, 898 F.Supp.2d 191, 200 (D.D.C. 2012) (citing Catholic Health Initiatives v. Sebelius, 658 F.Supp.2d 113, 117 (D.D.C. 2009), rev'd on other grounds, 617 F.3d 490, 393 U.S.App. D.C. 1 (D.C. Cir. 2010)). " Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas 'the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'" Id. (citation omitted). Summary judgment is thus " the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Id. (citation omitted); see also Northwest Motorcycle Ass'n v. U.S. Dep't. of Agric. 18 F.3d 1468, 1471-72 (9th Cir. 1994). Compliance with the ESA is reviewed under the APA. 5 U.S.C. § 701 et. seq. ; Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006, 1015 (9th Cir. 2012). Under the APA, an agency action must be upheld unless it is found to be " arbitrary, capricious,

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an abuse of discretion, or otherwise not in accordance with law." Id.; 5 U.S.C. § 706(2)(A).

The party challenging an agency's action as arbitrary and capricious bears the burden of proof. WildEarth Guardians v. Salazar, 741 F.Supp.2d 89, 97 (D.D.C. 2010) (citation omitted).

To decide if an agency action is arbitrary and capricious, the court must determine whether the agency " considered the relevant factors and articulated a rational connection between the facts found and the choices made." Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 954 (9th Cir. 2003) ( citing Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir. 1990). If the agency decision was based on the relevant factors and there is no clear error of judgment, the reviewing court may not overturn the agency's ...

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