Humane Soc'y of the U.S. v. Zinke

• Decision Date: 01 August 2017
• Docket Number: No. 15-5041,C/w 15-5043, 15-5060, 15-5061,15-5041
• Parties: HUMANE SOCIETY OF the UNITED STATES, et al., Appellees v. Ryan ZINKE, Secretary of the Interior, et al., Appellees U.S. Sportsmen's Alliance Foundation, et al., Appellants State of Wisconsin, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

865 F.3d 585

HUMANE SOCIETY OF the UNITED STATES, et al., Appellees

v. Ryan ZINKE, Secretary of the Interior, et al., AppelleesU.S. Sportsmen's Alliance Foundation, et al., AppellantsState of Wisconsin, et al., Appellees

No. 15-5041

C/w 15-5043, 15-5060, 15-5061

United States Court of Appeals, District of Columbia Circuit.

Argued October 18, 2016

Decided August 1, 2017

Joan M. Pepin, Attorney, U.S. Department of Justice, argued the cause for federal appellants Zinke, et al. With her on the briefs were John C. Cruden, Assistant Attorney General at the time the brief was filed, and David C. Shilton, Attorney.

Nathan Gambill, Assistant Attorney General, Office of the Attorney General for the State of Michigan, argued the cause for appellants State of Michigan, et al. With him on the briefs were Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Pamela J. Stevenson, Assistant Attorney General.

James H. Lister, Washington, DC, argued the cause for appellant-defendant-intervenors Hunter Conservation Coalition, et al. With him on the briefs were Anna M. Seidman, Douglas S. Burdin, Washington, DC, John I. Kittel, Farmington Hills, MI, and Michael T. Jean, Fairfax, VA. Jeremy E. Clare and William P. Horn, Washington, DC, entered appearances.

Brad Schimel, Attorney General, Office of the Attorney General of the State of Wisconsin, Ryan J. Walsh, Chief Deputy Solicitor General, Daniel P. Lennington, Deputy Solicitor General at the time the briefs were filed, Jennifer L. Vandermeuse, Assistant Attorney General, and Thomas J. Dawson, Assistant Attorney General at the time the brief was filed, were on the brief for State of Wisconsin and Wisconsin Department of Natural Resources.

Kathryn Landrum, Assistant Attorney General, Office of the Attorney General for the State of Minnesota, was on the brief for amicus curiae the State of Minnesota in support of appellants.

Peter K. Michael, Attorney General, Office of the Attorney General for the State of Wyoming, James Kaste and D. David DeWald, Assistant Attorneys General, and Michael J. McGrady, Assistant Attorney General at the time the brief was filed, Joseph A. Foster, Attorney General, Office of the Attorney General for the State of New Hampshire, Douglas A. Bahr, Solicitor General, Office of the Attorney General for the State of North Dakota at the time the brief was filed, Sean D. Reyes, Attorney General, Office of the Attorney General for the State of Utah, Cynthia Coffman, Attorney General, Office of the Attorney General for the State of Colorado, Lawrence G. Wasden, Attorney General, Office of the Attorney General for the State of Idaho, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, and Timothy C. Fox, Attorney General, Office of the Attorney General for the State of Montana, were on the brief for amici curiae the States of Wyoming, et al. in support of defendants-appellants and intervenor-defendants-appellants.

Ralph E. Henry, Washington, DC, argued the cause for appellees The Humane Society of the United States, et al. With him on the brief was Elizabeth Runyan Geise, Washington, DC.

Amy R. Atwood and Collette L. Adkins were on the brief for amicus curiae Center for Biological Diversity in support of plaintiffs-appellees The Humane Society of the United States.

Before: Griffith, Millett, and Pillard, Circuit Judges.

Millett, Circuit Judge:

The gray wolf once roamed in large numbers across the contiguous forty-eight States. But by the 1960s, hunting, depredation, and habitat loss drove the gray wolf to the brink of extinction, and the federal government declared the gray wolf an endangered species. After a portion of the gray wolf population rebounded, the government promulgated the rule at issue here, which removes from federal protection a sub-population of gray wolves inhabiting all or portions of nine states in the Western Great Lakes region of the United States. The Humane Society of the United States challenges that rule as a violation of the Endangered Species Act of 1973 ("Act"), 16 U.S.C. § 1531 et seq. , and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq . Because the government failed to reasonably analyze or consider two significant aspects of the rule—the impacts of partial delisting and of historical range loss on the already-listed species—we affirm the judgment of the district court vacating the 2011 Rule.

I

A

Congress enacted the Endangered Species Act "to halt and reverse the trend toward species extinction," and to do so "whatever the cost." Tennessee Valley Auth. v. Hill , 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). As relevant here, a species is "endangered" if it "is in danger of extinction throughout all or a significant portion of its range [.]" 16 U.S.C. § 1532(6). A species is "threatened" if 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 Endangered Species Act directs the Secretary of the Interior to apply five factors in determining whether a "species" is endangered or threatened: (i) "the present or threatened destruction, modification, or curtailment of [the species'] habitat or range"; (ii) "overutilization [of the species] for commercial, recreational, scientific, or educational purposes"; (iii) "disease or predation"; (iv) "the inadequacy of existing regulatory mechanisms"; and (v) "other natural or manmade factors affecting [the species'] continued existence." 16 U.S.C. § 1533(a)(1). In making that determination, the Secretary must rely on "the best scientific and commercial data available [.]" Id. § 1533(b)(1)(A). The Secretary of the Interior has delegated the authority to determine whether a species is "endangered" or "threatened" to the Fish and Wildlife Service ("Service"). 50 C.F.R. § 402.01(b).

The "species" that the Endangered Species Act protects are defined to include "any subspecies of fish or wildlife or plants, and," of most relevance here, "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16).¹ The Act does not define "distinct population segment." Nor do agency regulations. The Service, however, has issued policy guidance stating that the existence of a "distinct population segment" turns upon the discreteness and significance of a sub-population as compared to the larger species population. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4,722, 4,725 (Feb. 7, 1996) ("Segment Policy"). The Segment Policy emphasizes that the Service's authority to recognize distinct population segments should be "exercised sparingly." Id. at 4,724.

To qualify as "discrete" under the Segment Policy, a domestic animal population must be "markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors [.]" Segment Policy, 61 Fed. Reg. at 4,725. The "significance" of a potential segment turns on such factors as: (i) the "[p]ersistence of the discrete population segment in an ecological setting unusual or unique for the taxon"; (ii) "[e]vidence that loss of the discrete population segment would result in a significant gap in the range of a taxon"; (iii) "[e]vidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range"; or (iv) "[e]vidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics." Id.

Another key term in analyzing a species' need for protection—"range"—is also left undefined by the Act. In 2014, the Service adopted a policy statement defining "range" as a species' " ‘current range,’ not [its] ‘historical range.’ " Final Policy on Interpretation of the Phrase "Significant Portion of its Range" in the Endangered Species Act's Definitions of "Endangered Species" and "Threatened Species," 79 Fed. Reg. 37,578, 37,583 (July 1, 2014)("Range Policy"). The Range Policy further explains that a portion of a species' range will be considered "significant" if the species would be in danger of extinction or likely to become so in the foreseeable future without that portion of its range. Id. at 37,581.

Once the Service determines that a species is endangered or threatened, it must add the species to a list of protected species in the Federal Register. 16 U.S.C. § 1533(c)(1). A listed species receives robust federal protections, including prohibitions on possessing, killing, selling, importing, or exporting its members. Id. § 1538(a). Any person that knowingly violates those prohibitions faces criminal sanctions, including fines of up to $50,000 or a year of imprisonment. Id. § 1540(b)(1).

The Act further requires the Service "from time to time [to] revise" its lists of endangered and threatened species "to reflect recent determinations, designations, and revisions." 16 U.S.C. § 1533(c)(1). Every five years, the Service must "review * * * and determine * * * whether any such species should * * * (i) be removed from such list; (ii) be changed in status from an endangered species to a threatened species; or (iii) be changed in status from a threatened species to an endangered species." Id. § 1533(c)(2)(A), (B).

B

Regional subspecies of the taxonomic species "gray wolf" (Canis lupis ) were declared endangered by the federal government between 1966 and 1976. The timber wolf (Canis lupus lycaon ) was first designated as endangered and afforded protection in 1967, 32 Fed. Reg. 4,001, 4,001 (March 11, 1967), followed by the Northern Rocky Mountain wolf (Canis lupus irremotus ) in 1973, 38 Fed. Reg. 14,678, 14,678 (June 4, 1973). Both the Mexican wolf (Canis lupus baileyi ) and the Texas wolf (Canis lupus monstrabilis ) were added to the list in 1976. ...