Survivors v. U.S. Dep't of the Interior

• Decision Date: 15 May 2018
• Docket Number: Case No. 16-cv-01165-JCS
• Citation: 321 F.Supp.3d 1011
• Court: U.S. District Court — Northern District of California
• Parties: DESERT SURVIVORS, et al., Plaintiffs, v. U.S. DEPARTMENT OF the INTERIOR, et al., Defendants.

321 F.Supp.3d 1011

DESERT SURVIVORS, et al., Plaintiffs,

v.U.S. DEPARTMENT OF the INTERIOR, et al., Defendants.

Case No. 16-cv-01165-JCS

United States District Court, N.D. California.

Signed May 15, 2018

Deborah Ann Sivas, Alicia Ellen Thesing, Environmental Law Clinic Mills Legal Clinic at Stanford Law School, Stanford, CA, Jeng-Daw Yu, Office of the District Attorney, Reno, NV, Lisa T. Belenky, Center for Biological Diversity, Oakland, CA, for Plaintiffs.

H. Hubert Yang, U.S. Dept. of Justice, Washington, DC, for Defendants.

ORDER RE SUMMARY JUDGMENT MOTIONS

Re: Dkt. Nos. 130, 133, 135

JOSEPH C. SPERO, Chief Magistrate Judge

I. INTRODUCTION

In this case, Plaintiffs Desert Survivors, Center for Biological Diversity, WildEarth Guardians, and Western Watersheds Project challenge: 1) the decision of the U.S. Fish and Wildlife Service ("Service" or "FWS") to withdraw the proposed listing of the Bi-State Sage-Grouse as "threatened" under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 - 1544 ; and 2) the Service's "Final Policy on Interpretation of the Phrase ‘Significant Portion of its Range’ in the Endangered Species Act" (the "SPR Policy"). Presently before the Court are motions for summary judgment by Plaintiffs, Defendant United States Department of the Interior ("DOI") and Defendant-Intervenors Nevada, Nevada Association of Counties and County of Mono, California (collectively, "Intervenors"). A hearing on the motions was held on April 6, 2018. For the reasons stated below, Plaintiffs' summary judgment motion is GRANTED. The motions of DOI and the Intervenors are DENIED.¹

II. BACKGROUND

A. Legal Framework

1. The Endangered Species Act

The ESA was enacted for the purpose of "provid[ing] a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and "provid[ing] a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). It affords a range of protections for species that are listed as endangered or threatened. See 16 U.S.C. § 1533. "The term ‘endangered species’ means any species which is in danger of extinction throughout all or a significant portion of its range...." 16 U.S.C. § 1532(6). "The term ‘threatened species’ means any species which 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). "The term ‘species’ includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16).

"The ESA requires the Service to identify and list species that are ‘endangered’ or ‘threatened.’ " Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv. , 475 F.3d 1136, 1137–38 (9th Cir. 2007) (citing 16 U.S.C. § 1533 ). The Service may list a species on its own initiative through "notice-and-comment rule-making." Id. (citing 16 U.S.C. § 1533(b)(5) ). In the alternative, any interested person may petition the Service to list a species under the Administrative Procedure Act ("APA"). Id. (citing 5 U.S.C. § 553(e) ; 16 U.S.C. § 1533(b)(3)(A) ). The Service then must determine within 90 days, "[t]o the maximum extent practicable," whether the petition is supported by "substantial scientific or commercial information." 16 U.S.C. § 1533(b)(3)(A). If the Service finds that it is, it must "commence a review of the status of the species concerned." Id. The Service must make a finding on the status of the species within twelve months and publish its finding ("the 12-month finding") in the Federal Register. 16 U.S.C. § 1533(b)(3)(B). The Service is required to make its decision "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A). In the 12-month finding, the Service must determine whether listing is: 1) "warranted"; 2) "not warranted"; or 3) "warranted but precluded by pending proposals to determine whether any species is an endangered species or a threatened species." 16 U.S.C. § 1533(b)(3)(A)-(B). If the Service finds that a petitioned action is warranted, it must promptly publish a proposed regulation to implement its finding. 16 U.S.C. § 1533(b)(3)(B)(ii).

The Service considers five factors in determining whether a species or distinct population segment should be listed: "(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). The ESA requires that the Service "shall make determinations required by subsection (a)(1) of this section solely on the basis of the best scientific and commercial data available ... 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, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas." 16 U.S.C.A. § 1533(b)(1)(A). Where a species is found to be threatened or endangered, it is included in a list published in the Federal Register that specifies "over what portion of its range it is endangered or threatened, and ... any critical habitat within such range." 16 U.S.C. § 1533(c)(1).

2. The SPR Policy

As noted above, 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). Likewise, 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." 16 U.S.C. § 1532(20). The ESA does not define the phrase "significant portion of its range"; nor does it define the words "significant" or "range" as they are used in that phrase. In July 2014, the Service adopted a final policy on the interpretation of this phrase ("SPR Policy"). 79 Fed. Reg. 37,578. Its interpretation is as follows:

(1) if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is "significant" if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time FWS or NMFS makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout an SPR, and the population in that significant portion is a valid [Distinct Population Segment ("DPS") ], we will list the DPS rather than the entire taxonomic species or subspecies.

" Final Policy on Interpretation of the Phrase ‘Significant Portion of Its Range’ in the Endangered Species Act's Definitions of ‘Endangered Species’ and ‘Threatened Species,’ " 79 Fed. Reg. 37,579. The Service explained that this interpretation is intended to adhere to the Ninth Circuit's ruling in Defenders of Wildlife v. Norton , 258 F.3d 1136 (9th Cir. 2001), which "indicates that, with respect to the statutory language ‘throughout all or a significant portion of its range,’ we should give the words on either side of the ‘or’ operational meaning." 79 Fed. Reg. 37,579-37,580. In other words, "under the SPR Policy, a species will be able to qualify as an ‘endangered species’ in two different situations: (1) If it is in danger of extinction throughout all of its range, or (2) if it is in danger of extinction throughout a significant portion of its range." Id. The SPR Policy further provides that "[t]he same is true for ‘threatened species.’ " Id.

With respect to its interpretation of the word "range" in the phrase "significant portion of its range," the Service acknowledged that the ESA is ambiguous as to whether this word refers to a species' current range or its historical range. Id. at 37583. Reviewing the handful of uses of the word "range" in the ESA, the Service concluded that it is "used primarily in determining whether a species qualifies as an endangered ... or threatened species" and not to determine where the species is protected. Id. (emphasis added). The Service went on to find, based on the text of the ESA, that "range" refers to current range because the ESA defines a species as endangered if it "is in danger of extinction." Id. (emphasis added). Use of the present tense, the Service found, "denotes a present-tense condition of being at risk of a current or future undesired event." Id. The Service continues, "[t]o say a species ‘is in danger’ in an area where it no longer exists – i.e. , in its historical range where it has been extirpated – is inconsistent with common usage." Id. Addressing those who "have questioned whether lost historical range may constitute a significant portion of the range of a species, such that the Service must list the species rangewide because of the extirpation in that portion of the historical range," the Service explains, "[w]e already take into account in our determinations the effects that loss of historical range may have on the current and future viability of the species." Id.

3. PECE

In 2003, the Service announced a "final policy for the evaluation of conservation efforts when making...