Natural Res. Def. Council, Inc. v. Rauch

• Decision Date: 25 March 2017
• Docket Number: Civil Action No. 15–198 (RDM)
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. Samuel D. RAUCH, III, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service, et al., Defendants.
• Court: U.S. District Court — District of Columbia

244 F.Supp.3d 66

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs,

v.Samuel D. RAUCH, III, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service,¹ et al., Defendants.

Civil Action No. 15–198 (RDM)

United States District Court, District of Columbia.

Signed March 25, 2017

Erica A. Fuller, Earthjustice, Ipswich, MA, Aaron S. Colangelo, Natural Resources Defense Council, Roger M. Fleming, Earthjustice, Washington, DC, Bradford H. Sewell, Natural Resources Defense Council, New York, NY, Seth L. Atkinson, Natural Resources Defense Council, San Francisco, CA, Kristen L. Boyles, Earthjustice, Seattle, WA, for Plaintiffs.

Jeremy Hessler, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

Blueback herring (alosa aestivalis ) are silver-colored fish, roughly a foot in length, that inhabit much of North America's Atlantic coast. The species is "anadromous," meaning the fish are born in inland rivers, then spend most of their adult lives at sea, while still returning to their natal rivers for six to eight weeks each spring to spawn.

In 2011, the Natural Resources Defense Council ("NRDC") petitioned the National Marine Fisheries Service ("Service") to list blueback herring as "threatened" under the Endangered Species Act of 1973. The Service undertook a lengthy review in response, but ultimately found that listing the species "[wa]s not warranted." See Endangered Species Act Listing Determination for Alewife and Blueback Herring, 78 Fed. Reg. 48,944 (Aug. 12, 2013) ("Listing Decision"). The NRDC and others now challenge that determination. Because the Court agrees that the Service failed to offer a rational connection between the facts and two of its essential conclusions, and because the Service entirely failed to consider other important aspects of the problem, the Court will VACATE the Listing Decision and will REMAND the matter to the Service for further proceedings consistent with this opinion.

I. BACKGROUND

A. The Endangered Species Act

The Endangered Species Act exists to conserve endangered and threatened species and "the ecosystems upon which [they] depend." 16 U.S.C. § 1531(b). As amended, the Act defines "species" to include not just "any subspecies of fish or wildlife," but also any "distinct population segment" of any species of vertebrate fish or wildlife which interbreeds when mature. Id. § 1532(16). A species is "endangered" if it "is in danger of extinction" either throughout "all ... of its range" or throughout "a significant portion of its range." Id. § 1532(6). And a species is "threatened" if it "is likely to become ... endangered ... within the foreseeable future" throughout "all or a significant portion of its range." Id. § 1532(20) (emphasis added).

The Act directs the Service, along with its counterpart in the Department of the Interior,² to "determine whether any species is ... endangered ... or ... threatened," id. § 1533(a), and to publish lists of species designated as such, id. § 1533(c)(1). Listed species then receive heightened protections under the Act. See generally id. §§ 1533–1538. Any "interested person" may petition the Service to change a species's status, see 5 U.S.C. § 553(e) ; 16 U.S.C. § 1533(b)(3) ; 50 C.F.R. § 424.14, and, if the petition "presents substantial scientific or commercial information indicating that the petitioned action may be warranted," the Service must "promptly" conduct a species status review, 16 U.S.C. § 1533(b)(3)(A). The Service must then publish its findings in a listing determination, id. , which must rest on any one or a combination of the following factors:

(A) the present or threatened destruction, modification, or curtailment of [the species's] 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's] continued existence.

16 U.S.C. § 1533(a)(1) ; see also 50 C.F.R. § 424.11(c). In addition, the Service must make its listing determination "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A).

B. Factual Background

Blueback herring "use many different habits" throughout their life cycle, "including the ocean, estuaries, rivers, and freshwater lakes and ponds." Listing Decision , 78 Fed. Reg. at 48,945. They spend the first few months of their life in freshwaters. They then migrate to the open sea, where they mature and spend most of their adult life (in what is called their "ocean phase"), before returning "to estuarine and freshwater rivers, ponds, and lake habitats to spawn." Id . ; see also Dkt. 40–1 at 104–06 (AR 2048–50) (describing blueback herring lifecycle). Adult blueback herring "frequently return[ ] to their natal rivers for spawning," but may, on occasion, "stray[ ] ... between rivers." Listing Decision , 778 Fed. Reg. at 48,945. Evidence also suggests, but has not conclusively determined, that blueback herring migrate large distances even during their ocean phase, moving en masse with the seasons up and down the Atlantic coast. See, e.g. , id. at 48,949 –50; Dkt. 40–5 at 146 (AR 66,934). The species's range reaches south to the St. John's River in Florida, north to the Miramichi River in New Brunswick, Canada, and east into oceanic waters along the continental shelf. Listing Decision , 78 Fed. Reg. at 48,945, 48,948.

Figure 1: Approximate Blueback Herring Range in U.S. Waters (2007)³ In August 2011, the NRDC petitioned the Service to list blueback herring as "threatened."⁴ See Dkt. 40–1 at 86–192 (AR 2030–136) (Petition). Citing numerous studies, the NRDC argued that blueback herring had "suffered dramatic population declines" from their nineteenth-century peak and that those declines had continued over the past four decades. Id. at 87, 110 (AR 2031, 2054). The causes, the NRDC argued, were primarily "fishing-related mortality, dams, dredging and blasting, water pollution, and global warming." Id. at 88–89 (AR 2032–33). The Service deemed the petition supported by substantial scientific evidence, see 90–Day Finding on a Petition To List Alewife and Blueback Herring as Threatened Under the Endangered Species Act, 76 Fed. Reg. 67,652, 67,656 (Nov. 2, 2011), and, pursuant to its statutory mandate, embarked on a blueback herring status review.

As a launching point for its analysis, the Service relied on the May 2012 River Herring Benchmark Stock Assessment prepared by the Atlantic States Marine Fisheries Commission ("ASMFC").⁵ Listing Decision , 78 Fed. Reg. at 48,944. The ASMFC study analyzed data from 52 in-river United States "stocks," i.e. , discrete "part[s] of a fish population" with "particular migration pattern[s]" and "specific spawning grounds." Dkt. 40–3 at 146, 151 (AR 52,745, 52,750). Of those 52 stocks, 22 displayed evidence of declining river herring populations, 1 displayed evidence of an increasing population, and the remaining 28 lacked data to support definitive quantitative conclusions about population trends. Id. at 151 (AR 52,750). On the whole, the ASMFC determined that "[t]he coastwide meta-complex of river herring stocks on the US Atlantic coast is depleted to near historic lows."⁶ Id.

The Service also "worked cooperatively with [the] ASMFC" to "identify information not in the stock assessment that [would be] needed for [the] listing determination." Listing Decision , 78 Fed. Reg. at 48,944. At the outset of the status review, they convened three sets of workshops and working groups with experts in the field. Listing Decision , 78 Fed. Reg. at 48,944; see Dkt. 40–1 at 11 (AR 1). Two of those working group reports received peer review from the Center for Independent Experts. Listing Decision , 78 Fed. Reg. at 48,944.

C. The Listing Decision

On August 12, 2013, the Service published its fifty-page Listing Decision "determin[ing] that listing blueback herring as threatened or endangered" was "not warranted at th[at] time." Listing Decision , 78 Fed. Reg. at 48,944. The decision turned on three central conclusions. First, the Service found that it lacked sufficient data to deem any subset of blueback herring a "distinct population segment." Id. at 48,950, 48,993. Second, "as a result of [its] extinction risk analysis," the Service determined that the blueback herring "[was] not in danger of extinction [throughout all of its range] or likely to become so in the foreseeable future." Id. at 48,993. And, third, without addressing whether the blueback herring was threatened or endangered throughout the "Mid–Atlantic" region, the Service concluded that the Mid–Atlantic region was "not ... a significant portion of the blueback herring's range."⁷ Id.

The grounds for those conclusions appear to have been as follows.

1. The Service's "Distinct Population Segment" ("DPS") Analysis

The Service first sought to identify any "distinct population segments" of blueback herring. Because the Act's definition of "species" includes "distinct population segment[s]" of any species of vertebrate fish, 16 U.S.C. § 1532(16), each "distinct population segment" of blueback herring requires its own status determination. The threshold issue for the Service, therefore, was delineating exactly which "species" were the subjects of its review. See Listing Decision , 78 Fed. Reg. at 48,948 –50.

a. The 1996 DPS Policy

To make this threshold determination, the Service applied its Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722 (Feb. 7, 1996) (the "1996 DPS Policy"). Under the 1996 DPS Policy, a group of animals of the same taxon (i.e. , biological species) is a "distinct population segment" only if two conditions are met. First, the group must be "discrete[ ]." Id. at 4725. A group is discrete under the 1996...