Ctr. for Biological Diversity v. Zinke

• Decision Date: 17 August 2018
• Docket Number: No. 16-35866,16-35866
• Citation: Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053 (9th Cir. 2018)
• Parties: CENTER FOR BIOLOGICAL DIVERSITY; Western Watersheds Project ; George Wuerthner; Pat Munday, Plaintiffs-Appellants, v. Ryan K. ZINKE, Secretary, U.S. Department of the Interior, in his official capacity; Dan Ashe, Director, U.S. Fish and Wildlife Service, in his official capacity; U.S. Fish & Wildlife Service, Defendants-Appellees, and State Of Montana; Montana Department Of Fish, Wildlife And Parks, Intervenor-Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

900 F.3d 1053

CENTER FOR BIOLOGICAL DIVERSITY; Western Watersheds Project ; George Wuerthner; Pat Munday, Plaintiffs-Appellants,

v. Ryan K. ZINKE, Secretary, U.S. Department of the Interior, in his official capacity; Dan Ashe, Director, U.S. Fish and Wildlife Service, in his official capacity; U.S. Fish & Wildlife Service, Defendants-Appellees,andState Of Montana; Montana Department Of Fish, Wildlife And Parks, Intervenor-Defendants-Appellees.

No. 16-35866

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2018—Seattle, Washington

Filed August 17, 2018

Jenny K. Harbine (argued), Aurora R. Janke, and Timothy J. Preso, Earthjustice, Bozeman, Montana, for Plaintiffs-Appellants.

Thekla Hansen-Young (argued), Nicole M. Smith, Allen M. Brabender, and Andrew C. Mergen, Attorneys; Jeffrey H. Wood, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Kate Williams-Shuck, Office of the Solicitor, United States Department of the Interior, Denver, Colorado; for Defendants-Appellees.

William A. Schenk (argued) and Zachary C. Zipfel, Special Assistant Attorneys General, Montana Department of Fish, Wildlife and Parks, Helena, Montana; Jeremiah Weiner, Assistant Attorney General, Office of the Attorney General, Helena, Montana; for Intervenor-Defendants-Appellees.

Deborah A. Sivas, Alicia Thesing, and Isaac Cheng, Environmental Law Clinic, Mills Legal Clinic, Stanford, California, for Amici Curiae Law Professors and Scientists.

Before: Raymond C. Fisher, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

PAEZ, Circuit Judge

This Endangered Species Act ("ESA") case concerns the Upper Missouri River Valley Distinct Population Segment of Arctic Grayling ("arctic grayling"), a cold-water fish in the Salmonidae family. Before us is a challenge to the Fish and Wildlife Service ("FWS")'s decision not to list the arctic grayling as an endangered or threatened species under the ESA. Plaintiffs-Appellants Center for Biological Diversity, Western Watersheds Project, George Wuerthner, and Pat Mundy (collectively "CBD") argue that FWS erred in using an incorrect definition of "range" in determining whether the arctic grayling is extinct or in threat of becoming extinct "in a significant portion of its range." Additionally, CBD challenges several aspects of the listing decision as arbitrary and capricious.

The district court granted summary judgment in favor of FWS. We have jurisdiction under 28 U.S.C. § 1291. Because we conclude that in certain respects FWS acted in an arbitrary and capricious manner, we reverse the district court's order granting summary judgment with instructions to remand the arctic grayling listing decision to FWS for further consideration.

I.

We begin by describing characteristics of the arctic grayling population, as relevant to the challenged listing decision. The arctic grayling is a cold-water fish belonging to the Salmonidae family. It has a trout-like body with a deeply forked tail and a sail-like dorsal fin. There are two types of arctic grayling: fluvial, which dwell in rivers and streams, and adfluvial, which dwell in lakes and migrate to streams to spawn. Historically, fluvial populations predominated in the Upper Missouri River. The two types of arctic grayling are genetically distinct, although experiments have shown some plasticity in the characteristics between adfluvial and fluvial populations. Although fluvial arctic grayling have been shown to adapt to lake environments, all attempts to introduce adfluvial arctic grayling to streams have failed. Given its adaptability, the fluvial population of arctic grayling is considered to be especially important to the survival of the species.

Within the contiguous United States, arctic grayling historically existed in Montana, Wyoming, and Michigan. Today, it exists only in the Upper Missouri River Basin in Montana. Due to a host of threats to the arctic grayling's habitat, it presently occupies only a small fraction of its historical range. Fluvial arctic grayling, for example, currently occupy less than ten percent of their historical range in the Missouri River system. There are presently twenty-six populations of arctic grayling in the Upper Missouri River Basin. Six of these—the Big Hole River, Ennis Reservoir/Madison River, Centennial Valley's lakes and tributaries, Mussigbrod Lake, Miner Lake, and Ruby River populations—are native populations.¹ The other twenty populations have been introduced into habitat that was not part of the arctic grayling's historical range. Six of these introduced populations have no significant conservation value, as they have not yet become fully established. The other twenty populations—both native and introduced—have conservation value.² Two of the populations—the Big Hole River and Ennis Reservoir/Madison River populations—are located primarily on private land, whereas the remaining eighteen are found either entirely or primarily on federal land.

Arctic grayling prefer cooler water temperatures; temperatures over 20 degrees Celsius (approximately 70 degrees Fahrenheit) can cause physiological stress and impair biological functions such as breeding. The upper incipient lethal temperature ("UILT") is 25 degrees Celsius (77 degrees Fahrenheit).³ The twenty-six arctic grayling populations in the Upper Missouri River Basin are "biogeographically important to the species" because they have adapted to warmer water temperatures in contrast to populations of arctic grayling outside of the Upper Missouri River Basin. Despite this adaptation, climate change threatens the arctic grayling. Less water in streams poses a threat to the arctic grayling. Droughts and warmer-than-normal air temperatures can reduce water levels and, consequently, raise water temperatures higher than the range of temperatures that the arctic grayling can tolerate.

II.

FWS must follow certain ESA requirements when deciding whether to list a species as endangered or threatened. We briefly review those requirements. We next discuss the decades-long history of FWS listing decisions involving the arctic grayling. We then briefly review the procedural history of this case.

A.

The ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill , 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). It represents a commitment "to halt and reverse the trend toward species extinction, whatever the cost." Id. at 184, 98 S.Ct. 2279 ; see also 16 U.S.C. § 1531(a)(1) (2012).

Under the ESA, the Secretary of the Interior ("Secretary") is charged with determining whether particular species should be listed as "threatened" or "endangered." 16 U.S.C. § 1533.⁴ An endangered species is "any species which is in danger of extinction throughout all or a significant portion of its range." Id. § 1532(6). A threatened species is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). The term "species" includes subspecies and "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16). Under this definition, a distinct population segment of a species can be listed as an endangered or threatened species.

FWS must base its listing decision on "the best scientific and commercial data available." Id. § 1533(b)(1)(A). To comply with this requirement, FWS "cannot ignore available biological information." Conner v. Burford , 848 F.2d 1441, 1454 (9th Cir. 1988) ; see also San Luis & Delta-Mendota Water Auth. v. Locke , 776 F.3d 971, 995 (9th Cir. 2014) ("An agency complies with the best available science standard so long as it does not ignore available studies, even if it disagrees with or discredits them."). In making a listing decision, FWS must evaluate five factors: "(a) the present or threatened destruction, modification, or curtailment of [a species'] 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 [the species'] continued existence." 16 U.S.C. § 1533(a)(1).

Anyone may petition FWS to list a species. Id. § 1533(b)(3)(A). "To the maximum extent practicable," within ninety days of the petition FWS must determine whether the petition presents "substantial scientific or commercial information indicating that the petitioned action may be warranted." Id. If it does, FWS reviews the status of the species and makes a "12-month finding" that listing the species is either (a) not warranted; (b) warranted; or (c) warranted but precluded by higher priority pending proposals. Id. § 1533(b)(3)(B) ; 50 C.F.R. § 424.14. Species in the third category become "candidates" for listing, and FWS continues to review their status until it makes a "warranted" or "not warranted" finding. 16 U.S.C. § 1533(b)(3)(C)(i). Additionally, FWS assigns these species a listing-priority number. See Endangered Species Listing and Recovery Priority Guidelines, 48 Fed. Reg. 43,098, 43,098 (Sept. 21, 1983). A 12-month finding that listing is "not warranted" is subject to judicial review. 16 U.S.C. § 1533(b)(3)(C)(ii).

B.

FWS initially considered whether to list the arctic grayling as endangered or threatened in 1982. Endangered and Threatened Wildlife and Plants; Review of Vertebrate Wildlife for Listing as Endangered or Threatened Species, 47 Fed. Reg. 58,454 (Dec. 30, 1982). FWS determined that listing the arctic grayling was "possibly appropriate" but chose not to list it due to a lack of sufficient data. Id. at 58,454 –55. Two of the plaintiffs in the current case—George Wuerthner and the Center for Biological Diversity⁵ —then petitioned FWS to list the fluvial arctic grayling as an endangered...