American Wildlands v. Kempthorne

• Decision Date: 08 July 2008
• Docket Number: No. 07-5179.,07-5179.
• Citation: 530 F.3d 991
• Parties: AMERICAN WILDLANDS, et al., Appellants v. Dirk KEMPTHORNE, Secretary, U.S. Department of the Interior and Dale Hall, Director, U.S. Fish and Wildlife Service, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

530 F.3d 991

AMERICAN WILDLANDS, et al., Appellants v. Dirk KEMPTHORNE, Secretary, U.S. Department of the Interior and Dale Hall, Director, U.S. Fish and Wildlife Service, Appellees.

No. 07-5179.

United States Court of Appeals, District of Columbia Circuit.

Argued April 4, 2008.

Decided July 8, 2008.

Appeal from the United States District Court for the District of Columbia (No. 05cv01043).

Abigail M. Dillen argued the cause for appellants. With her on the briefs was Timothy J. Preso. Douglas L. Honnold entered an appearance.

Lane M. McFadden, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the briefs were Andrew C. Mergen and Jennifer L. Scheller, Attorneys.

Before: SENTELLE, Chief Judge, and GARLAND and GRIFFITH, Circuit Judges.

Opinion for the court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

The westslope cutthroat trout has historically inhabited rivers and streams across parts of Montana, Wyoming, Idaho, Oregon, and Washington. Its scientific name, Oncorhynchus clarki lewisi, pays homage to Lewis and Clark, the storied explorers who encountered the fish in 1805 at the Great Falls of the Missouri River. Plaintiffs maintain that interbreeding with other members of the trout family — a phenomenon called hybridization — has so imperiled the continued existence of the fish that the government should list it as threatened under the Endangered Species Act.

On appeal, plaintiffs argue that the government's decision not to do so was arbitrary and capricious because the agency included in its count of westslope cutthroat trout hybridized fish, which embodied the menace at issue. Plaintiffs also appeal the district court's denial of their motion to supplement the record with letters supporting their case. Although new data might require a future listing of the fish as threatened, we conclude the agency engaged in reasoned decisionmaking based on the best available science, and the district court did not abuse its discretion in refusing to supplement the record.

I.

A.

The Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., requires the Secretary of the Interior to determine whether any species is "threatened" or "endangered," id. § 1533(a)(1), a responsibility he has delegated to the Department of the Interior's Fish and Wildlife Service ("Service"), 50 C.F.R. § 402.01(b). In determining whether to list a species as threatened or endangered, the Service must first define the species so the agency can estimate its population. The ESA treats subspecies of fish as distinct species for listing purposes. 16 U.S.C. § 1532(16).

A species is endangered when it is "in danger of extinction throughout all or a significant portion of its range," id. § 1532(6), and threatened when it is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range," id. § 1532(20). The ESA requires the Secretary to determine whether any species is threatened or endangered as a result of one or more identified factors, including the catch-all, "other natural or manmade factors affecting [the species'] continued existence." Id. § 1533(a). The Secretary must make this decision "solely on the basis of the best scientific and commercial data available to him." Id. § 1533(b)(1)(A). Furthermore, the ESA recognizes the right of "interested person[s]" to petition the agency to add or remove a species from the list, id. § 1533(b)(3)(A), and sets forth a procedure for the agency to act on the petition and explain its decision, id. § 1533(b)(3)-(6).

B.

In 1997 a fisherman and several environmental groups (collectively, "American Wildlands") petitioned the Service to list the westslope cutthroat trout ("WCT") as a threatened species. See Am. Wildlands v. Norton, 193 F.Supp.2d 244, 249 (D.D.C. 2002) (recounting procedural history). According to plaintiffs, the chief threat to the fish comes from hybridization: interbreeding between WCT and other members of the trout family, primarily the rainbow trout. Plaintiffs contend that hybridization puts at risk the genetic heritage that defines WCT as a subspecies and that equips it to survive harsh conditions.

After various delays, the Service determined not to list the species. 65 Fed.Reg. 20,120 (Apr. 14, 2000). American Wildlands subsequently filed suit under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), claiming this decision was arbitrary and capricious because the Service included hybridized fish in the WCT population considered for listing. This accounting, plaintiffs argue, not only inflated the number of WCT, but did so with the hybridized fish that represented the very threat the proposed listing was intended to address.

The district court granted summary judgment for the plaintiffs, concluding:

[T]he agency wholly fails to reconcile its recognition of hybridization as a threat to WCT's viability with its inclusion of hybrid stock in the population assessed for listing. The administrative record clearly supports a finding that hybridization is a threat to the WCT population.... Therefore, when [the Service] included hybrid stock in the population assessed for listing, it needed to give some reasoned explanation.... Without a scientifically based explanation of the decision, the Court can not but find that the decision ... was not supported by the best available science, 16 U.S.C. § 1533(b)(1)(A)....

Am. Wildlands, 193 F.Supp.2d at 255-56. The court noted that the Service "might have drawn a distinction between hybridization that is a threat to a population, and hybridization that is benign. However, [the Service] made no attempt to draw such a distinction." Id. at 256. The court remanded the listing decision to the agency with instructions to reconsider and issue a new decision within one year. Id. at 258.

Following the court's ruling, the Service announced its intent to conduct a new status review and requested comments from interested parties. Notice of Intent To Prepare a Status Review for the Westslope Cutthroat Trout, 67 Fed.Reg. 56,257 (Sept. 3, 2002). The Service received numerous submissions, including a comprehensive report on WCT populations prepared by the fish and wildlife agencies of Idaho, Montana, Oregon, Washington, and Wyoming, in conjunction with the U.S. Forest Service. BRADLEY B. SHEPARD ET AL., STATUS OF WESTSLOPE CUTTHROAT TROUT IN THE UNITED STATES: 2002 (2003) ("Multistate Assessment"), App. 943-1042.

In August 2003 the Service again denied threatened status to WCT. Reconsidered Finding for an Amended Petition to List the Westslope Cutthroat Trout as Threatened Throughout Its Range, 68 Fed.Reg. 46,989 (Aug. 7, 2003) ("Reconsidered Finding"). The Reconsidered Finding included a general policy statement, in which the Service provided the explanation lacking in its earlier decision for why it included some hybridized fish in its count of WCT, and the actual status review, in which the Service explained its decision not to list WCT. The policy statement began with the claim that the scientific criteria for classifying species of fish "are based almost entirely on morphological characters." Id. at 46,992. "Morphology" is "a branch of biology that deals with the form and structure of animals and plants." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1471 (1981). WCT have a number of morphological characteristics that scientists use to identify the fish, such as a distinctive spotting pattern, coloring, and a typical number of vertebrae, scales, and bony projections called "gill rakers." See ROBERT J. BEHNKE, NATIVE TROUT OF WESTERN NORTH AMERICA 77-79 (1992), App. 181-83. In determining what fish should count as WCT, the Service relied on morphology as the "principal criterion" and did not consider fish that conformed morphologically to WCT to pose a threat of hybridization. 68 Fed.Reg. at 46,994.

The Service recognized, however, that genetic data allows biologists to detect "introgression" — the "entry or introduction of a gene from one gene complex into another," WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1187 (1981) — in fish that otherwise conform morphologically to the subspecies. 68 Fed.Reg. at 46,992. As a result, when genetic data is available, scientists can now detect hybridization in some instances when they previously could not by relying on morphology alone. When using genetic data to classify fish, the Service adopted a rule: "[F]or populations for which molecular genetic data may be the only data available, populations with less than 20 percent introgression will be considered WCT under the [ESA], whereas populations with more than 20 percent introgression will generally be excluded from the WCT subspecies." Id. at 46,995. The Service settled on the 20% threshold after reviewing the scientific evidence and concluding that "a natural population of WCT with less than 20 percent of its genes derived from [foreign subspecies] is, most likely, morphologically indistinguishable from nonintrogressed populations of WCT with no hybrid ancestry." Id. at 46,994. The Service also concluded that low levels of introgression can occur as a result of the natural evolutionary process and that such fish may "remain very valuable to the overall conservation and survival of that species." Id. at 46,992.

In the status review the Service analyzed the threat of hybridization to WCT, relying on the 2002 Multistate Assessment as the best available science. Id. at 46,999. The Multistate Assessment identified populations of WCT within the subspecies' historic range and classified them according to their actual or suspected genetic status, Multistate Assessment at 5 (introduction), 1 (main report), App. 953-54, and then according to the conservation strategy that state agencies employed to manage the fish, id. at 3-4 (main report), 80 (App. D), App. 956-57, 1033. The report had genetic data for approximately 21% of habitat occupied by WCT...