Center for Biological Diversity; Maricopa Audubon Society, Plaintiffs-Appellants,
Ryan Zinke, in his official capacity as Secretary of the U.S. Dept. of the Interior; Greg Sheehan, in his official capacity as Acting Director, U.S. Fish and Wildlife Service, Defendants-Appellees.
and Submitted February 13, 2017 San Francisco, California
from the United States District Court for the District of
Arizona, D.C. No. 2:12-cv-02296-DGC David G. Campbell,
District Judge, Presiding
J. Rohlf (argued), Earthrise Law Center, Portland, Oregon;
Justin Augustine, Center for Biological Diversity, Oakland,
California; for Plaintiffs-Appellants.
R. Haag (argued), David C. Shilton, H. Hubert Yang, and
Kristen L. Gustafson, Attorneys; John C. Cruden, Assistant
Attorney General; Environment & Natural Resources
Division, United States Department of Justice, Washington,
D.C.; Frank Lupo, Office of the Solicitor, Southwest Region,
United States Department of the Interior, Albuquerque, New
Mexico; for Defendants-Appellees.
Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit
Judges, and Robert W. Pratt, [*] District Judge.
panel affirmed the district court's summary judgment in
favor of the U.S. Fish and Wildlife Service ("FWS")
in an action brought by plaintiff environmental groups
challenging the FWS's determination that the Sonoran
Desert Area bald eagle was not a distinct population segment
eligible for listing under the Endangered Species Act.
order to qualify as "distinct, " the population
segment must be both discrete and significant. The parties
agreed that the desert eagle population was discrete, and
disputed whether the population was significant.
panel rejected plaintiffs' contention that the FWS acted
arbitrarily and capriciously in concluding in 2012 that the
desert eagle population segment was not significant within
the meaning of the distinct population segment policy.
Specifically, the panel held that FWS reasonably concluded
that, while the combination of unusual characteristics in a
discrete population was sufficient to satisfy the persistence
factor, those characteristics did not by themselves
necessarily require a conclusion that the desert eagle
population segment was ecologically or biologically
significant for the bald eagle taxon as a whole. The panel
further held that the FWS reasonably concluded that if the
desert eagle population segment were "extirpated, "
this could not create a significant gap in the range of the
taxon. Finally, the panel held, contra to plaintiffs'
contention, that the FWS directly addressed climate change in
its 2012 decision.
FLETCHER, Circuit Judge.
Center for Biological Diversity and Maricopa Audubon Society
(collectively "CBD") challenge the determination of
the U.S. Fish and Wildlife Service ("FWS") that the
Sonoran Desert Area bald eagle ("desert eagle") is
not a distinct population segment ("DPS") eligible
for listing under the Endangered Species Act. FWS and the
National Marine Fisheries Service have promulgated a policy
statement to guide determinations whether a particular
population segment qualifies as distinct. In order to qualify
as distinct, the DPS must be both discrete and significant.
Inter alia, the policy statement provides a
non-exhaustive list of criteria for determining whether a
population segment is "significant." CBD argues
that if one of the criteria is satisfied, FWS is compelled to
conclude that the population segment is significant. CBD
argues, further, that FWS improperly ignored the desert
eagle's status as a peripheral population, and that FWS
failed to evaluate the significance of climate change. We
disagree with these arguments and affirm the decision of the
bald eagle was first listed as an endangered species in 1967,
under a predecessor to the Endangered Species Act
("ESA"). See Endangered Species
Preservation Act of 1966, Pub. L. 89-669, 80 Stat. 926. In
1978, after the passage of the ESA, the bald eagle was listed
as endangered in forty-three states and listed as threatened
in an additional five states. 43 Fed. Reg. 6230, 6230 (Feb.
14, 1978). In 1995, the bald eagle was listed as threatened
in the lower forty-eight states. 60 Fed. Reg. 36000, 36000
(July 12, 1995).
1963, there had been an estimated 487 breeding pairs of bald
eagles in the United States. 72 Fed. Reg. 37346 (July 9,
2007). In 2007, there were an estimated 9, 789 breeding
pairs. Id. As a result of this remarkable recovery,
FWS removed the bald eagle from the list of threatened
species in 2007. Id. The delisting does not affect
the protection that continues to be provided under the Bald
and Golden Eagle Protection Act, 16 U.S.C. § 668, and
the Migratory Bird Treaty Act, 16 U.S.C. § 703. In 2004,
while delisting of the bald eagle was being considered, CBD
filed a petition asking FWS to list the Sonoran Desert Area
bald eagle as a DPS. FWS denied the petition. This litigation
desert eagle population includes "all bald eagle
territories within Arizona, the Copper Basin breeding area in
California near the Colorado River, and the territories of
interior Sonora, Mexico, that occur within the Sonoran Desert
and adjacent transitional communities." 77 Fed. Reg.
25792, 25792 (May 1, 2012). In its initial response to
CBD's petition, FWS found in 2006 that the desert eagle
did not "constitute[ ] a valid DPS." 71 Fed. Reg.
51549, 51556 (Aug. 30, 2006). CBD challenged this finding in
the district court, and the court set it aside as arbitrary
and capricious. Ctr. for Biological Diversity v.
Kempthorne, 2008 WL 659822 (D. Ariz. Mar. 6, 2008). The
court concluded that there was evidence that FWS officials in
Washington, D.C. had given "marching orders" to FWS
field personnel to deny the petition. Id. at *12.
The court remanded the petition to FWS with directions to
conduct a full status review. Id. at *15-16.
2010, FWS again found that the desert eagle population did
not constitute a DPS. 75 Fed. Reg. 8601, 8620 (Feb. 25,
2010). CBD again challenged the finding, and the district
court again remanded to FWS. See Ctr. for Biological
Diversity v. Salazar, 2011 WL 6000497, at *14 (D. Ariz
Nov. 30, 2011). The court found that FWS's 2007 delisting
procedure "failed to comport with the notice, comment,
and consultation requirements of the law." Id.