Northwest Ecosystem al. v. U.S. Fish & Wildlife

• Decision Date: 02 February 2007
• Docket Number: No. 04-35860.,04-35860.
• Citation: 475 F.3d 1136
• Parties: NORTHWEST ECOSYSTEM ALLIANCE; Center for Biological Diversity; Tahoma Audubon Society, Plaintiffs-Appellants, v. UNITED STATES FISH AND WILDLIFE SERVICE; Dave Allen, Regional director of U.S. Fish and Wildlife Service; Steve Williams, Director of U.S. Fish and Wildlife Service; Gale Norton, Secretary of the Department of the Interior, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

475 F.3d 1136

NORTHWEST ECOSYSTEM ALLIANCE; Center for Biological Diversity; Tahoma Audubon Society, Plaintiffs-Appellants, v. UNITED STATES FISH AND WILDLIFE SERVICE; Dave Allen, Regional director of U.S. Fish and Wildlife Service; Steve Williams, Director of U.S. Fish and Wildlife Service; Gale Norton, Secretary of the Department of the Interior, Defendants-Appellees.

No. 04-35860.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 15, 2006.

Filed February 2, 2007.

Brent Plater, Center for Biological Diversity, San Francisco, CA, Stephanie M. Parent, Pacific Environmental Advocacy Center, Portland, Oregon, for the plaintiffs-appellants.

M. Alice Thurston, U.S. Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Owen M. Panner, Senior Judge, Presiding. D.C. No. CV-03-01505-PA.

Before GOODWIN, O'SCANNLAIN, and FISHER, Circuit Judges.

GOODWIN, Circuit Judge.

The United States Fish and Wildlife Service (the "Service") denied a petition to classify western gray squirrels in Washington state as an endangered "distinct population segment" ("DPS") under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Plaintiff-appellants Northwest Ecosystem Alliance, Center for Biological Diversity, and Tahoma Audubon Society (collectively, the "Alliance") sought review of the Service's decision in the district court, which entered summary judgment upholding the Service's determination. The Alliance filed a timely notice of appeal. We affirm.

I. BACKGROUND

A. The Endangered Species Act

Congress enacted the ESA 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 species and threatened species." 16 U.S.C. § 1531(b). The ESA requires the Service to identify and list species that are "endangered" or "threatened." 16 U.S.C. § 1533. The Service may list a species, on its own initiative, through notice-and-comment rule-making. 16 U.S.C. § 1533(b)(5). Alternatively, a species may become listed through the petition process provided by the Administrative Procedure Act ("APA"), 5 U.S.C. § 553(e). Any interested person may petition the Service to add or remove a species from the list. Id.; 16 U.S.C. § 1533(b)(3)(A). Upon receiving such a petition, the Service must promptly determine whether the petition is supported by "substantial scientific or commercial information." 16 U.S.C. § 1533(b)(3)(A). If so, the Service is to "commence a review of the status of the species concerned." Id. The Service is required to make a finding on the status of the species within twelve months and publish its finding in the Federal Register. 16 U.S.C. § 1533(b)(3)(B). The Service must make its decision "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A). If the Service finds that a petitioned action is warranted, it must promptly publish a proposed regulation to implement its finding. 16 U.S.C. § 1533(b)(3)(B)(ii). A decision by the Service to deny a petitioned action is subject to judicial review. 16 U.S.C. § 1533(b)(3)(C)(ii).

The definition of the term "species" is at the heart of the instant appeal. The ESA defines "species" to include "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16) (emphasis added). Thus, a population of wildlife that does not constitute a taxonomic species may nevertheless qualify for listing as a DPS. The statute does not expressly define the term "distinct population segment." The Service and the National Marine Fisheries Service ("NMFS") have jointly adopted a policy statement to guide their evaluation of whether a population group should be treated as a DPS. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed.Reg. 4722 (Feb. 7, 1996) ("DPS Policy"). The DPS Policy sets forth two factors for consideration: the "[d]iscreteness of the population segment in relation to the remainder of the species to which it belongs," and the "significance of the population segment to the species to which it belongs." Id. at 4725. Discreteness is satisfied if a population segment is "separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors," or if a population's boundaries are marked by international borders. Id. Significance, in turn, is analyzed under four non-exclusive factors: (1) whether the population persists in a unique or unusual ecological setting; (2) whether the loss of the population would cause a "significant gap" in the taxon's range; (3) whether the population is the only surviving natural occurrence of a taxon; and (4) whether the population's genetic characteristics are "markedly" different from the rest of the taxon. Id. A population qualifies as a DPS if it is both discrete and significant. Id. If a population is deemed to be a DPS, the inquiry then proceeds to whether it is endangered or threatened. Id.

B. Western Gray Squirrels in Washington

Sciurus griseus griseus, a subspecies of the western gray squirrel,¹ is the largest native tree squirrel in the Pacific Northwest. Status Review and 12-Month Finding for a Petition To List the Washington Population of the Western Gray Squirrel, 68 Fed.Reg. 34,628, 34,629 (June 10, 2003) ("Final Finding"). Members of the subspecies are "silvery-gray with dark flanks and creamy white underneath." Id. They live in trees, rarely venture into open spaces, and subsist principally on acorn and nuts. Historically, the western gray squirrel was widespread throughout Washington, Oregon, California, and western Nevada. Id. at 34,630. Today, the western gray squirrel is fairly common in California, where it is a regulated game species, with an estimated population of eighteen million. Id. at 34,631. In Oregon, the subspecies is not rare and is legally hunted, but its distribution appears to be much reduced from historical levels. Id. at 34,632. In Nevada, the western gray squirrel is rare and has been classified as a "protected species" under state law. Id. at 34,631.

In Washington, the western gray squirrel once ranged from the Puget Sound to the Columbia River, and from the Cascade Mountains to Lake Chelan. Id. at 34,632. The population has long been separated from the rest of the subspecies by the Columbia River. During the last century, its distribution has been reduced to three geographically isolated populations: the Puget Trough population, the North Cascades population, and the South Cascades population.

The Puget Trough population, which is found near the Puget Sound, lives in a transitional ecological setting. Id. at 34,633. The population's habitat of Oregon white oak woodlands is nestled between upland Douglas-fir forests and prairies. The habitat is wetter, flatter, and contains fewer mast-producing trees than the rest of the subspecies' range. Consequently, the Puget Trough population is more dependent on the Oregon white oak for sustenance than populations in ecologically more diverse habitats. "Although the western squirrel was once common on the partially wooded prairies adjacent to the Puget Sound, the surviving Puget Trough population is now centered on Fort Lewis," a military reservation. Id. "During intensive surveys in 1998 to 1999, only 6 western gray squirrels ... were detected in over 4,000 hours of survey effort." Id. Some researchers have concluded that the Puget Trough population is "at a high risk of extirpation." Id.

The North Cascades population is found in Chelan and Okanogan Counties. Id. at 34,632. Unlike the Puget Trough, the North Cascades habitat lacks oaks, the main source of winter foods for the western gray squirrel in most of its range. Id. at 34,635. Instead, the North Cascades population subsists on seeds and nuts produced by pine trees, big leaf maples, and English walnut trees. A survey in 2000 detected only three remnants out of the eighty-nine nests recorded in a 1996 survey, and found eighteen previously unreported nests. The reduced number of nests suggests a corresponding population decline.

The South Cascades population, which constitutes the largest remaining population of western gray squirrels in Washington, is found in Skamania, Klickitat, and Yakima Counties. Id. at 34,632, 34,634. One study has found western gray squirrels in Klickitat to have substantially larger body measurements than elsewhere in the subspecies' range. Id. at 34,637. The study also concluded that the Klickitat population have substantially larger home range sizes and more nests per squirrel than elsewhere. Surveys in 2000 and 2001 produced population density estimates of 0.08-0.13 squirrel per hectare in the Klickitat Wildlife Area, as compared with 1.37 per hectare in Lake County, California, or with 2.47 per hectare in Yosemite Valley in California. Id. at 34,634.

C. Procedural History

On January 4, 2001, the Service received a petition filed by the Alliance requesting an emergency rule to list the Washington population of the western gray squirrel as an endangered or threatened species. On October 29, 2002, the Service published its initial finding that the petition presented substantial information to indicate that one or more distinct population segments of western gray squirrels may exist in Washington. 90-day Finding for a Petition To List the Washington Population of the Western Gray Squirrel as Threatened or Endangered, 67 Fed.Reg. 65,931. The Service proceeded with a twelve-month status review. An early draft decision prepared by the Service's staff scientists recommended listing the Washington population as an endangered DPS. However, the Service ultimately denied the...