Friends of Wild Swan v. U.S. Fish and Wildlife, Civil No. 94-1318-JO.

• Decision Date: 13 November 1996
• Docket Number: Civil No. 94-1318-JO.
• Citation: 945 F.Supp. 1388
• Parties: FRIENDS OF the WILD SWAN, INC., and Alliance for the Wild Rockies, Inc., Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the United States Department of the Interior, and Michael J. Spear, Director, Region One of the United States Fish and Wildlife Service, Defendants.
• Court: U.S. District Court — District of Oregon

945 F.Supp. 1388

FRIENDS OF the WILD SWAN, INC., and Alliance for the Wild Rockies, Inc., Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the United States Department of the Interior, and Michael J. Spear, Director, Region One of the United States Fish and Wildlife Service, Defendants.

Civil No. 94-1318-JO.

United States District Court, D. Oregon.

November 13, 1996.

COPYRIGHT MATERIAL OMITTED

Gary Keith Kahn, Reeves Kahn & Eder, Portland, OR, Jack R. Tuholske, Missoula, MT, for Plaintiffs.

Kristine Olson, United States Attorney, District of Oregon, Thomas C. Lee, Assistant United States Attorney, United States Attorney's Office, Portland, OR, Ellen J. Kohler, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, Scott W. Horngren, Michael E. Haglund, Shay S. Scott, Haglund & Kirtley, Portland, OR, for Defendants and Intervenor-Defendants.

OPINION AND ORDER

ROBERT E. JONES, District Judge:

Plaintiffs Friends of the Wild Swan, Inc. and Alliance for the Wild Rockies, Inc. challenge the United States Fish and Wildlife Service's (FWS's) 1994 FINDING that listing of the bull trout as endangered or threatened under the federal Endangered Species Act (ESA) was warranted but precluded. This case is now before this court on plaintiffs' and defendants' cross motions (112, 124) for summary judgment. For the reasons discussed below, I hereby GRANT plaintiffs' motions and DENY defendants' motions. This case is remanded to FWS for further procedures in accordance with this opinion.

FACTUAL, LEGAL, and PROCEDURAL BACKGROUND

A. The Endangered Species Act

In 1973, Congress enacted the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 to 1543, "to provide a program for the conservation of * * * endangered and threatened species." 16 U.S.C. § 1531(b). In order to receive the Act's protections, a species must be "listed" as endangered or threatened by the Secretary of the Interior, who has delegated his duties for terrestrial species to the federal Fish and Wildlife Service (FWS).¹

In determining whether to list a species, FWS determines whether the species "is a threatened or endangered species because of any of the following factors:"

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence.

16 U.S.C. § 1533(a)(1). In addition, the Secretary of the Interior, through FWS, must make listing determinations "solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation * * * to protect such species * * *." 16 U.S.C. § 1533(b)(1)(A).

Citizens can also petition FWS to list a species. 16 U.S.C. § 1533(b)(3)(A). In general, FWS must make a finding within 90 days of the petition's submission "as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted." Id. If the action is warranted, FWS commences "a review of the status of the species concerned," id., and within 12 months must find either that: (1) the petitioned action is not warranted; (2) the petitioned action is warranted; or (3) "[t]he petitioned action is warranted, but"

(I) the immediate proposal and timely promulgation of a final regulation implementing the petitioned action * * * is precluded by pending proposals to determine whether any species is an endangered species or a threatened species, and

(II) expeditious progress is being made to add qualified species to either of the lists * * * and to remove from such lists species for which the protections of this chapter are no longer necessary * * *.

16 U.S.C. § 1533(b)(3)(B).

The ESA requires FWS to establish as published agency guidelines "a ranking system to assist in the identification of species that should receive priority review under subsection (a)(1) of this section * * *." 16 U.S.C. § 1533(g). In compliance, FWS has published a 12-level ranking system based on three criteria. 48 Fed.Reg. 43098, 43102 (Sept. 21, 1983). First, FWS determines whether the magnitude of the threat to the species is "high," on the one hand, or "medium to low," on the other. Id. Second, it determines whether the immediacy of the threat is "imminent" or "non-imminent." Finally, it looks to the taxonomic level of the species at issue — monotypic genus,² species, or subspecies. Id. A monotypic genus facing a high magnitude and imminent threat receives a rank of "1"; a subspecies facing a moderate-to-low magnitude and non-imminent threat receives a rank of "12." Id. In effect, the lower the ranking number, the more important it is for the species to be listed and receive the Act's protections.

FWS's guidelines do not specify factors for FWS to rely upon when it classifies a proposed species into each of the three criteria, nor has FWS delineated general factors besides its ranking scale that it will consider. Finally, FWS has emphasized that it sets only relative, not absolute, priorities. 48 Fed.Reg. at 43099.

Despite this obscurity and indeterminacy in the ranking process, a species' priority level effectively determines whether or not it is listed under the ESA: in 1994, for example, "[b]ecause of limited staff and funding, the Service must give priority to the listing of species with a listing priority of 1 through 6." WARRANTED, BUT PRECLUDED ADMINISTRATIVE 12-MONTH FINDING ON A PETITION TO LIST THE BULL TROUT UNDER THE ENDANGERED SPECIES ACT 25 (June 6, 1994) (A.R. I.B) (hereinafter 1994 FINDING). Because of the way FWS's ranking system is structured, this policy meant that in 1994 only species facing a "high" magnitude of threat receive the Act's protections. See 48 Fed.Reg. at 43102.

FWS can also issue emergency regulations when a situation poses "a significant risk to the well-being of any species of fish or wild-life or plants" if it gives proper notice. 16 U.S.C. § 1533(b)(7). Such emergency regulations remain in effect for 240 days. Id.

B. The Bull Trout

Bull trout (Salvelinus confluentus) is a freshwater fish found in the western United States,³ Canada, and Alaska. The species was recognized in 1978, but two general factors have contributed to a significant reduction in its numbers. First, the steady elimination of its migratory form has threatened the species's continued existence in the continental United States. As FWS has found:

Extensive migrations are characteristic of this species. Persistence of migratory life history forms and maintenance or reestablishment of stream migration corridors is crucial to the viability of bull trout populations. Migratory bull trout facilitate the interchange of genetic material between populations, ensuring sufficient viability within populations. Migratory forms also provide a mechanism for recolonizing local populations extirpated due to natural or human-caused events. Migratory bull trout have been restricted and/or eliminated due to stream habitat alterations, including seasonal or permanent obstructions, detrimental changes in water quality, increased temperatures, and the alteration of natural stream flow patterns.

1994 FINDING 2-3 (emphasis added; citations omitted). Moreover,

Bull trout distribution has been significantly reduced since pre-settlement times. River basins once supported larger, migratory forms and numerous local populations distributed throughout tributary streams. Highly migratory fluvial populations have been eliminated from the largest, most productive river systems across the range. Most river systems now contain only isolated, remnant populations of resident fish restricted to the headwater areas of a few remaining suitable tributaries. These remnant populations have lost their migratory life-history forms, exist in isolation, and are likely to be at extreme risk of extinction.

Id. at 3 (citations omitted).

The second set of general factors affecting the bull trout is land and water management. As FWS has concluded, "Virtually every bull trout population within the coterminus United States is threatened by a wide variety of land and water management practices." Id. at 23. These practices, which degrade the bull trout's habitat, combine with the loss of the migratory form to increase the threat to the species:

The interrelated effects of habitat degradation, hybridization, isolation, and overutilization have significantly impaired meta-population function and made it impossible for many populations to recover from natural or manmade perturbations. Even without additional habitat losses, most isolated populations are not likely to persist. Even the few remaining "healthy" bull trout populations are at risk as habitat fragmentation and degradation continues.

Id. at 24.

C. Procedural History of Plaintiffs' Petition to List the Bull Trout

As allowed under the ESA and FWS's regulations,⁴ on October 27, 1992, plaintiffs petitioned FWS to list the bull trout as an endangered species. They also requested emergency listings for certain bull trout populations.

On May 17, 1993, over six months after plaintiffs' petitioned FWS, FWS issued a 90-day finding concluding that plaintiffs' petition presented substantial information that listing of the bull trout might be warranted. 58 Fed.Reg. 28,849 (1993). When FWS had not issued its 12-month finding by February 8, 1994, plaintiffs filed suit in federal court to compel that finding. Alliance for the Wild Rockies v. Babbitt, No. 94-0246-JLG (D.D.C. 1994). FWS issued the 1994 FINDING on June 6, 1994, and the case was dismissed.

The 1994 FINDING concluded that listing of the bull trout was warranted but precluded. 1994...