Colorado River Cutthroat Trout v. Dirk Kempthorne

• Citation: 448 F.Supp.2d 170
• Decision Date: 07 September 2006
• Docket Number: Civil Action No. 00-2497(PLF).
• Parties: COLORADO RIVER CUTTHROAT TROUT, et al., Plaintiffs, v. DIRK KEMPTHORNE, et al., Defendants.<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. District Court — District of Columbia

448 F.Supp.2d 170

COLORADO RIVER CUTTHROAT TROUT, et al., Plaintiffs, v. DIRK KEMPTHORNE, et al., Defendants.¹

Civil Action No. 00-2497(PLF).

United States District Court, District of Columbia.

September 7, 2006.

James B. Dougherty, Law Office of J.B. Dougherty, Washington, DC, Neil Levine, Law Offices of Neil Levine, McCrystie Adams, Earthjustice, Denver, CO, for Plaintiffs.

Jean Eva Williams, U.S. Department of Justice, Environment & Natural Resources Division, Ben Franklin Station, Kristen Byrnes Floom, U.S. Department of Justice, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

This case is before the Court on plaintiffs' motion for summary judgment. It arises from the decision of the United States Fish and Wildlife Service ("FWS") to reject plaintiffs' December 9, 1999 petition to list the Colorado River cutthroat trout under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Specifically, plaintiffs assert that the FWS's April 20, 2004 Finding on the Petition violated mandatory ESA procedures and standards specific to 90-day findings and failed to consider applicable ESA substantive requirements for listing species. Plaintiffs also argue that the Finding's reliance on certain trout populations and its assessment of threats to the trout was arbitrary and capricious.

Upon careful consideration of the arguments of the parties and the entire record in the case, the Court grants plaintiffs' motion for summary judgment, and directs defendants to conduct a full status review of the trout within nine months.

I. BACKGROUND

A. Statutory and Regulatory Framework

The ESA "provide[s] a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. § 1531(b). To achieve its objectives, the ESA directs the Secretary of the Interior to determine which species of plants and animals are "threatened" or "endangered." 16 U.S.C. § 1533.² An "endangered species" is "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A "threatened species" is "any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20).

Any interested person may file a petition with the Secretary of the Interior to list a species as threatened or endangered under the ESA. 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14(a). Upon receipt, the Secretary must review the petition and, "to the maximum extent practicable," within 90 days make a finding as to whether the petition presents "substantial scientific or commercial information indicating that the petitioned action may be warranted." 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14(b)(1). "Substantial information" is the "amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted." 50 C.F.R. § 424.14(b).

FWS regulations dictate that in making the 90-day finding, the Secretary must consider whether the petition:

(i) Clearly indicates the administrative measure recommended and gives scientific and common name of the species involved;

(ii) Contains detailed narrative justification for the recommended measure, describing, based upon available information, past and present numbers and distribution of the species involved and any threats faced by the species;

(iii) Provides information on the status of the species over all or a significant portion of its range; and

(iv) Is accompanied by appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps.

40 C.F.R. § 424.14(b)(2). If the Secretary concludes in its 90-day finding that the petition does not present substantial information indicating that a listing may be warranted, the Secretary publishes this finding in the Federal Register, and the administrative listing process concludes. 16 U.S.C. § 1533(b)(3)(A). The ESA expressly provides, however, that a negative 90—day finding may be challenged in federal court. 16 U.S.C. § 1533(b)(3)(C)(ii).

If the Secretary concludes instead that the petition does present substantial information indicating that a listing may be warranted, he publishes a notice of that finding in the Federal Register, and commences a status review of the species. 16 U.S.C. § 1533(b)(3)(A)-(B); 50 C.F.R. § 424.14(b)(3). After the status review and within twelve months of the receipt of the petition, the Secretary must determine whether listing of the species is "warranted," "not warranted," or warranted but precluded by other listing priorities. 16 U.S.C. § 1533(b)(3)(B)(ii); see 50 C.F.R. § 424.14(b)(3).

B. Facts

The Colorado River cutthroat trout is the only indigenous trout of the upper Colorado River system. Supplemental Complaint for Declaratory and Injunctive Relief ("Supp.Compl.") ¶ 19. During its breeding season, the trout displays radiant colors of crimson, orange and golden yellow laid over a brilliant brassy background color. Id. ¶ 18. The trout lives and thrives in clean, cool mountain streams. Id. ¶ 20. The trout requires water with a high dissolved oxygen content, low water temperatures in the summer, and clean gravel for spawnng. Id. 11 20. In addition, the trout need pools for summer rest and for surviving winter. Id. ¶ 20. The trout primarily feed on insects, which rely on the presence of streamside vegetation. Id. ¶ 20. In addition to providing a food supply, streamside vegetation also provides shade and cover for the trout. Id. ¶ 20.

Plaintiffs maintain that the trout, which historically inhabited areas west of the Continental Divide in Colorado, southern Wyoming, eastern Utah, extreme northwestern New Mexico, and northeastern Arizona, currently occupies approximately five percent of its historic range. Supp. Compl. ¶¶ 19, 21. This figure includes trout populations that have been hybridized with introduced, non-native species. Id. ¶ 21. Genetically pure trout populations, as defined by state and federal agencies, are estimated to occupy slightly more than two percent of their historic range. Id.

According to plaintiffs, existing trout populations are relegated primarily to small and isolated headwater streams in habitat areas over 7,000 feet in elevation. Supp. Compl. ¶ 22. Isolated populations prevent genetic exchange among populations, leading to loss of genetic diversity, and reduce population fitness to adapt to natural environments. Id. In addition, trout populations in small, isolated streams are at greater risk from droughts, floods, freezes, debris flows and other types of stochastic and catastrophic events. Id. Plaintiffs claim that when populations are lost to such events, their isolation ensures that the habitat will not be recolonized. Id.

Plaintiffs identify several other factors that have contributed to the range reduction and isolation of the trout. Supp. Compl. ¶ 23. Livestock grazing, water diversions, logging, road building, mining, and oil and gas development all contribute to the destruction of the trout's habitat because such activities adversely affect riparian vegetation, stream hydrology, and water quality. Id. ¶ 23. Plaintiffs aver, and defendants deny, that in addition to these threats, the continued stocking and spread of non-native trout presents one of the single greatest threats to the trout population. Id. ¶ 24; Answer to Supplemental Complaint for Declaratory and Injunctive Relief ("Answer") ¶ 24. Plaintiffs assert that federal regulations and management and state management activities are inadequate to prevent these threats to the trout population. Supp. Compl. ¶ 25.

C. Procedural History

On December 9, 1999, plaintiffs filed with the FWS a Petition to list the Colorado River cutthroat trout as an endangered or threatened species. Supp. Compl. ¶ 26. Defendants received the Petition to list the trout on December 16, 1999. Id. In October 2000, plaintiffs brought this action, alleging that defendants violated Section 4(b)(3)(A) of the Endangered Species Act, 16 U.S.C. § 1533(b)(3)(A), by failing to make a 90-day Finding on the Petition. Supp. Compl. ¶ 27.

Coss-motions for summary judgment were fully briefed, but were mooted when, on April 20, 2004, the FWS finally issued the required 90-day finding. See 69 Fed. Reg. 21,151 (Apr. 20, 2004). The Finding concluded that the Petition did not present substantial information that listing the trout may be warranted. Id. at 21,157-58. Before issuing the April 29, 2004 Finding, the FWS had solicited information on various threats to the trout from wildlife regulatory agencies in Utah, Wyoming, and Colorado; the United States Forest Service; the National Park Service; and the United States Bureau of Land Management. Supp. Compl. ¶ 29. The FWS did not seek public comment or request information from independent scientists or other interested parties. Memorandum in Support of Plaintiffs' Motion for Summary Judgment ("Pl.'s Mem.") at 17.³ Based on the information acquired from outside agencies, the FWS concluded that state management programs are "improving the status of [the Colorado River cutthroat trout] and continued improvement is anticipated in the future." 69 Fed.Reg. at 21,158.

After the April 20, 2004 Finding was issued, plaintiffs amended their complaint to allege that defendants violated ESA requirements and the Administrative Procedure Act when conducting the 90-day review by failing to solicit public comments, by going beyond "the four corners of the Petition" and soliciting information from selected state and federal agencies, and by not conducting a "full status review" of the Colorado River cutthroat trout. Supp. Compl. ¶¶ 30-45. On April 7, 2005, plaintiff filed a motion for summary judgment.

II. DISCUSSION

A. Standard of Review

Judicial review of agency decisions under the ESA is...