Ctr. for Biological Diversity v. Debra Haaland

• Decision Date: 26 May 2022
• Docket Number: CV 20-181-M-DWM,CV 20-183-M-DWM
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. DEBRA HAALAND, et al., Federal Defendants, and WILDEARTH GUARDIANS, et al., Consolidated Plaintiffs, STATE OF IDAHO, by and through the Office of Species Conservation and the Idaho Fish and Game Commission, Defendant-Intervenor.
• Court: U.S. District Court — District of Montana

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, and WILDEARTH GUARDIANS, et al., Consolidated Plaintiffs,
v.
DEBRA HAALAND, et al., Federal Defendants,

STATE OF IDAHO, by and through the Office of Species Conservation and the Idaho Fish and Game Commission, Defendant-Intervenor.

Nos. CV 20-181-M-DWM, CV 20-183-M-DWM

United States District Court, D. Montana, Missoula Division

May 26, 2022

OPINION AND ORDER

Donald W. Molloy, District Judge

This case challenges the United States Fish and Wildlife Service's (the “Service”) October 13, 2020 decision to withdraw the 2013 proposed rule to list wolverine as a threatened distinct population segment in the contiguous United States under the Endangered Species Act (“ESA”). For the reasons discussed below, the Service's motion for voluntary remand is granted, but with vacatur.

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Background^[1]

I. The ESA Framework

To be protected by the ESA, a species must first be listed as endangered or threatened. The ESA defines “endangered species” as “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 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 ESA defines “species” to include “any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Id. § 1532(16). Thus, the ESA authorizes the Service to list as endangered or threatened a distinct population segment of vertebrate species. While “distinct population segment” is not defined in the ESA and the term lacks a generally accepted scientific meaning, see Nat'l Ass 'n of Home Builders v. Norton, 340 F.3d 835, 842 & n.8 (9th Cir. 2003), the Service issued a policy interpretation that requires consideration of discreteness of the population in relation to the remainder of the species, the significance of the population segment to the species, and the population segment's conservation status in relation to the ESA's standards for listing, 61 Fed.Reg. 4, 722, 4, 725 (Feb. 7, 1996). The Service must make its segment and other ESA determinations “solely on the basis of the

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best scientific and commercial data available . .. after conducting a review of the status of the species.” 16 U.S.C. § 1533(b)(1)(A).

To start the listing process, any “interested person” may petition “to add a species to, or remove a species from” the list of endangered or threatened species. Id. § 1533(b)(3)(A). Upon receipt of such a petition, the Service must generally make a finding within 90 days (“90-day finding”) as to whether the petition presents “substantial scientific or commercial information indicating that the petition action may be warranted.” Id. “If such a petition is found to present such information, ” the Service must commence a status review. Id. Following that review, the Service must, within 12 months, issue one of the following findings (“12-month finding”): (a) the petitioned action is not warranted; (b) the petitioned action is warranted; or (c) the petitioned action is warranted but precluded by higher-priority pending proposals. Id. § 1533(b)(3)(B); 50 C.F.R. § 424.14(h)(2). If the Service determines listing is warranted it must publish “a general notice and the complete text of a proposed regulation to implement” the listing. 16 U.S.C. § 1533(b)(3)(B)(ii), (b)(5)(A)(i). Within one year of that publication, the Service must publish either a final regulation, a notice of withdrawal with a finding on which the withdrawal is based, or a notice of a six-month extension. Id. § 1533(b)(6)(A)(i), (b)(6)(B).

II. The Proposed Rule

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The Service's approach to the wolverine's status under the ESA has been inconsistent. In 2008, the Service concluded that the lower-48 wolverine population did not qualify as a distinct population segment and therefore did not warrant listing. 73 Fed.Reg. 12, 929, 12, 941 (Mar. 11, 2008). In 2010, the Service reversed course on the segment issue, but deemed further progress toward listing “precluded by higher priority listing actions.” 75 Fed.Reg. 78, 030, 78, 037-40, 78, 054 (Dec. 14, 2010). In 2013, the Service reaffirmed its conclusion that the lower-48 wolverine population was a distinct population segment and proposed to list the species as threatened. 78 Fed.Reg. 7, 864, 7, 873 (Feb. 4, 2013). But the Service withdrew the proposed listing in 2014. 79 Fed.Reg. 47, 522, 47, 523 (Aug. 13, 2014). Plaintiffs challenged the Service's 2014 decision under the ESA, and Judge Christensen vacated the withdrawal and remanded the decision for further agency consideration. See Defs. of Wildlife v. Jewell, 176 F.Supp.3d 975 (D. Mont. 2016). Specifically, Judge Christensen remanded the matter to the Service to reevaluate its determination that climate change and small population size and low genetic diversity do not pose a threat to...