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Center for Biological Diversity v. Zinke

United States Court of Appeals, Ninth Circuit

August 28, 2017

Center for Biological Diversity; Maricopa Audubon Society, Plaintiffs-Appellants,
v.
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.

          Argued and Submitted February 13, 2017 San Francisco, California

         Appeal 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

          Daniel J. Rohlf (argued), Earthrise Law Center, Portland, Oregon; Justin Augustine, Center for Biological Diversity, Oakland, California; for Plaintiffs-Appellants.

          Mark 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.

         SUMMARY[**]

         Endangered Species Act

         The 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.

         In 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.

         The 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.

          OPINION

          W. FLETCHER, Circuit Judge.

         Plaintiffs-Appellants 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 district court.

         I. Background

         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).

         In 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 followed.

         The 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.

         In 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. at ...


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