Emmet G. Sullivan, United States District Judge.
In April 2015, the United States Fish and Wildlife Service ("FWS" or "the Service") issued its final rule listing the northern long-eared bat ("Bat") as a "threatened" species under the Endangered Species Act of 1973. See Threatened Species Status for the Northern Long-Eared Bat With 4(d) Rule, 80 Fed. Reg. 17,974 (Apr. 2, 2015) ("Listing Rule"). FWS found that while the Bat "resides firmly in th[e] category where no distinct determination exists to differentiate between endangered and threatened," the Bat "is appropriately categorized as a threatened species" as the Bat "is likely to become an endangered species in the foreseeable future." Id. at 18,020-21.
Plaintiffs—the Center for Biological Diversity, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Sierra Club, and Defenders of Wildlife—challenge two separate decisions by FWS pertaining to the Bat that they claim fail to comply with mandates for the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347. These decisions are: (1) the decision to list the Bat as threatened rather than endangered, with an interim final species-specific 4(d) rule, Listing Rule, 80 Fed. Reg. 17,974; and (2) the final species-specific section 4(d) rule, 81 Fed. Reg. 1900 (Jan. 14, 2016). The Court bifurcated briefing on these two challenges, Min. Order of Jan. 13, 2017, and pending before the Court are the parties' cross-motions for summary judgment on plaintiffs' Listing Rule claim.
Upon careful consideration of the plaintiffs' motion, the Federal defendants' and defendant-intervenors' cross-motions, the oppositions and replies thereto, the arguments of amicus curiae,
The ESA has been described as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Congress enacted the ESA "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost."
The ESA's protections are triggered when a species is designated as either "threatened" or "endangered." A designation of "endangered" triggers a broad scope of protections, including a prohibition on "taking" individual members of the species. See 16 U.S.C. § 1538(a)(1)(B); see also id. § 1532(19) ("The term take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."). A designation of "threatened" requires the Secretary to "issue such regulations as he deems necessary and advisable to provide for the conservation of such species." Id. § 1533(d).
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 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" is defined in the Act to include species, subspecies, and "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16).
The ESA requires the Secretary of the Interior to publish and maintain a list of all species that have been designated as threatened or endangered. Id. § 1533(c). Species are added to and removed from this list after notice and an opportunity for public comment, either on the initiative of the Secretary or as a result of a petition submitted by an "interested person." Id. § 1533(b)(1), (3), (5). The Secretary of the Interior and the Secretary of Commerce are responsible for making listing decisions. Id. §§ 1532(15), 1533(a)(2). The Secretary of the Interior is responsible for making listing determinations for the Bat. See 50 C.F.R. § 402.01(b).
A listing determination is made on the basis of one or more of five statutorily prescribed 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; and (E) other natural or manmade factors affecting a species' continued existence." 16 U.S.C § 1533(a)(1)(A)-(E); see also 50 C.F.R. § 424.11(c). The agency must list a species as long as "any one or a combination" of these factors demonstrates that the species is threatened or endangered. 50 C.F.R. § 424.11(c).
The decision to list a species must be made
16 U.S.C. § 1533(b)(1)(A).
The Bat is a medium-sized bat species with relatively long ears whose range extends "across much of the eastern and north-central United States ... [including] 37 states, the District of Columbia," and "all Canadian Provinces." 80 Fed. Reg. at 17,975. The Bat has different winter and summer habitats. In winter, the Bat hibernates in hibernacula, typically caves and abandoned mines. Id. at 17,984. In summer, the Bat typically roosts alone or in colonies "underneath bark or in cavities or crevices of both live trees and snags," with
A number of bat species are susceptible to White-nose syndrome ("WNS"), caused by a fungus known as "Pd," which has been "responsible for unprecedented mortality of insectivorous bats in eastern North America." Id. at 17,993-94. First documented in 2006, it "has spread rapidly." Id. at 17,994. The Bat has been found to be highly-susceptible to WNS. Id. at 17,998. As stated in the Listing Rule,
Id. at 18,000. Once a bat becomes infected with WNS, there is no cure. Id. at 18,021.
In 2010, the Center for Biological Diversity petitioned FWS to list the Bat as endangered or threatened and to designate critical habitat for the species, and in October 2013, FWS proposed to list the Bat as an endangered species. See 12-Month Finding on a Petition to List the Eastern Small-Footed Bat and the Northern Long-eared Bat as Endangered or Threatened Species; Listing the Northern Long-Eared Bat as an Endangered Species, 78 Fed. Reg. 61,046 (Oct. 23, 2013) ("Proposed Rule"). Thereafter, in April 2015, FWS issued its final rule listing the Bat as a threatened rather than an endangered species. See generally 80 Fed. Reg. 17,974.
In describing the Bat's range, FWS divided the range into four geographical sections, and explained that WNS has affected three of the four sections, with WNS being undetected in the section where the Bat is generally "uncommon" or "rare." The eastern section of the range includes the District of Columbia, Delaware, Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, Pennsylvania, Vermont, Virginia, West Virginia, New York, and Rhode Island. Id. at 17,976. As explained by FWS,
Id. at 17,976-77. The midwestern section includes Missouri, Illinois, Iowa, Indiana, Ohio, Michigan, Wisconsin, and Minnesota,
FWS considers the portions of the range affected by WNS likely to be the core of the Bat's range:
Id. at 17,998.
FWS noted that "[t]he Act defines an endangered species as any species that is `in danger of extinction throughout all or a significant portion of its range' and a threatened species as any species `that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.'" Id. at 18,020. FWS explained "that the phrase `in danger of extinction' can be most simply expressed as meaning that a species is `on the brink of extinction in the wild.'" Id. (quoting Dec. 21, 2011, Memorandum from Acting FWS Director Dan Ashe Re: Determination of Threatened Status for Polar Bears [hereinafter the "Polar Bear Memo."]. FWS explained:
Id. FWS stated that the Bat "resides firmly in this category where no distinct determination exists to differentiate between endangered and threatened. Therefore, our determination that this species is threatened is guided by the best available data on the biology of the species, and the threat posed by [WNS]." Id.
FWS stated that "[n]o one factor alone conclusively establishes whether the species is `on the brink' of extinction. Taken together, however, the data indicate a current condition where the species, while likely to become in danger of extinction at some point in the foreseeable future, is not on the brink of extinction at this time." Id. In explaining why the Bat is appropriately categorized as a threatened species, FWS stated that
Id. at 18,021.
Nonetheless, FWS concluded "that while the species is likely to become an endangered species within the foreseeable future, it is not ... currently `on the brink' of extinction" based on several factors taken together. Id. The four factors which, in the aggregate, led FWS to this conclusion are:
Id. Because FWS determined that the Bat was threatened throughout all of its range, it did not consider whether the Bat was endangered in a significant portion of its range. Id. at 18,022 (citing 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 FR 37,577 (July 1, 2014) ("Final SPR Policy")).
FWS's listing decisions are subject to review under the APA. See, e.g., Am. Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C. Cir. 2008). Under APA review, federal agency actions are to be held unlawful and set aside where they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). To make this finding, a court must determine whether the agency "considered the factors relevant to its decision and articulated a rational connection between the facts found and the choice made." Keating v. FERC, 569 F.3d 427, 433 (D.C. Cir. 2009) (citing Baltimore Gas and Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)).
The standard of review under the APA is a narrow one. Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136, (1971). The court is not empowered to substitute its judgment for that of the agency. Id. Deference to the agency's judgment is particularly appropriate where the decision at issue "requires a high level of technical expertise." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 375-77, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) ("[The court] must look at the decision not as the chemist, biologist or statistician that [it is] qualified neither by training nor experience to be, but as a reviewing court exercising [its] narrowly defined duty of holding agencies to certain minimal standards of rationality."). Specifically, with regard to FWS decisions, this Court has previously recognized that "[g]iven the expertise of the [FWS] in the area of wildlife conservation and management and the deferential standard of review, the Court begins with a strong presumption in favor of upholding decisions of the [FWS]." Am. Wildlands, 478 F. Supp. 2d at 96 (citing Carlton v. Babbitt, 900 F.Supp. 526, 530 (D.D.C. 1995)).
"If an agency fails to articulate a rational basis for its decision, it is appropriate for a court to remand for reasoned decision-making." Defenders of Wildlife v. Babbitt, 958 F.Supp. 670, 679 (D.D.C. 1997) (citing Carlton, 900 F. Supp. at 533 ("remanding FWS'[s] 12-month finding that the grizzly bear should not be reclassified because the FWS `failed to sufficiently explain how it exercised its discretion with respect to certain of the statutory listing factors'").
Here, in addition to challenging FWS's listing decision, plaintiffs also challenge FWS's interpretation of the ESA's statutory language. The framework for reviewing an agency's interpretation of a statute that the agency is charged with administering is set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first step in this review process is for the court to determine "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. In determining whether the statute unambiguously expresses the intent of Congress, the court should use all the "traditional tools of statutory construction," including looking to the text and structure of the statute, as well as its legislative history, if appropriate. See id. at
"If the agency enunciates its interpretation through notice-and-comment rule-making or formal adjudication, [courts] give the agency's interpretation Chevron deference." Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 754 (D.C. Cir. 2007). "On the other hand, if the agency enunciates its interpretation through informal action that lacks the force of law, [courts] accept the agency's interpretation only if it is persuasive." Id. at 754 (citing United States v. Mead Corp., 533 U.S. 218, 235, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); see also Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (explaining that if Chevron deference is not appropriate, courts may still accord an informal agency determination some deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 S.Ct. 124 (1944) and noting that Skidmore deference, however, is appropriate "only to the extent that those interpretations have the `power to persuade'" (quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161)); Power v. Barnhart, 292 F.3d 781, 786 (D.C. Cir. 2002). The "power to persuade" is determined by "the thoroughness evident in [the agency's] consideration, the validity of its reasoning, [and] its consistency with earlier pronouncements." Skidmore, 323 U.S. at 140, 65 S.Ct. 161. An agency's interpretation "may merit some deference whatever its form, given the specialized experience and broader investigations and information available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires[.]" Mead, 533 U.S. at 234, 121 S.Ct. 2164 (internal quotation marks and citations omitted).
Plaintiffs ask the Court to remand the threatened listing decision, arguing that the rationales FWS relied on are contradicted by the best available scientific data because: (1) the timeframe for the rangewide spread of WNS does not justify the threatened determination; (2) the "40% of the total geographic range" rationale ignores the fact that the Bat is uncommon to rare in the periphery of its range; (3) to the extent "potentially millions of bats" existed, they were in areas already affected by WNS by April 2015; and (4) there is no credible evidence that "some bats persist" in WNS-infected areas. The Court agrees that the second rationale invoked by FWS is contradicted by the best available scientific data. Since these four rationales are interdependent, 80 Fed. Reg. at 18,021, the Court will remand the listing decision to FWS "for reasoned decision-making." Defenders of Wildlife, 958 F. Supp. at 679. The Court does not consider and expresses no opinion regarding plaintiffs' challenges to the other three rationales. Cf. Friends of Animals v. Ross, 396 F.Supp.3d 1, 9 (D.D.C. 2019) (accepting one of six challenges to a listing determination
FWS's second rationale for listing the Bat as threatened rather than endangered based on the species' current status is that "in the area not yet affected by WNS (about 40 percent of the species' total geographic range), the species has not yet suffered declines and appears stable." 80 Fed. Reg. at 18,021.
Plaintiffs argue that this characterization is misleading because "the Bat's abundance is not equal over all of its range ... [and] the more distant portions of the range, where WNS has not yet spread, have always had low bat density," Pls.' Partial Mot. for Summ. J. on their Listing Claims ("Pls.' Mot."), ECF No. 52 at 41; and that "[a]t the time of the final rule, those portions of the Bat's range where the species had previously been most abundant had already experienced massive mortality or were on the brink of imminent declines from WNS," id. Thus, according to plaintiffs, "the `40 percent of total geographic range' metric is not based on the best available scientific data on the Bat's varying distribution within its range." Id. Plaintiffs point out that the proposed and final rules are consistent in that they both state that the pre-WNS populations were concentrated in the northeastern and midwestern ranges, and less dense in the northwestern, western, and midwestern ranges. Id. at 42. Plaintiffs conclude that FWS did not make the listing determination based on the best available scientific data, the record does not support this rationale, and therefore FWS arbitrarily and unlawfully relied on this rationale to justify the threatened determination. Id. at 44.
Federal defendants respond that its characterization is not misleading because as Plaintiffs acknowledge, "`[t]he proposed and final rules are consistent in stating that the species' pre-WNS populations were concentrated in its northeastern and Midwestern ranges, with much lower population densities in the northwestern, western and extreme southern range.'" Fed. Defs.' Opp'n and Partial Mot. for Summ. J. on the Listing Claims ("Fed. Defs.' Opp'n"), ECF No. 53 at 36 (quoting Pls.' Mot., ECF No. 52 at 42 (comparing 78 Fed. Reg. at 61,051-54 with 80 Fed. Reg. at 17,976)).
Plaintiffs respond that "[i]n relying on this rationale to support [] its threatened determination, FWS arbitrarily ignored": (1) "the explicit findings stated in the final rule that the Bat has always been uncommon to rare in the as-yet-infected areas"; and (2) "evidence ... that Bats in the far-flung parts of the range might primarily be summer residents, with the core of the species' hibernating entirely in the WNS-infected range." Pls.' Reply, ECF No. 59 at 26. Plaintiffs dispute that the threatened determination was "guided by the best available biology of this species," 80 Fed. Reg. 18,020, because there is no discussion of how the high population densities in the WNS-infected areas and low population the uninfected areas support the determination, Pls.' Reply, ECF No. 59 at 26-27. Plaintiffs conclude that FWS "should provide a rational explanation for why the same data can support two opposing conclusions" —the proposed endangered determination and the final threatened determination. Id. at 27.
Plaintiffs also argue that Federal defendants do not explain why FWS disregarded the expert advice "that any Bats in the westward and southern periphery of the species' range are likely primarily summer residents only, and that the core of the species' hibernating distribution was in areas already infected or imminently facing WNS infection." Id. at 27-28. On this point, Federal defendants respond that since "Bats are not long-distance migrants," the spread of WNS to currently uninfected
The Court is not persuaded that, as stated by FWS, it "reasonably concluded at the time of the listing determination— when 40 percent of the species' range was WNS-free—that Bats are a threatened species as defined by the ESA." Fed. Defs.' Reply, ECF No. 63 at 18. FWS did acknowledge the disparate population densities between the WNS-infected range and the 40 percent of the range that is WNS-free in its determination. See supra Section I.B. In making the threatened determination, FWS specifically relied on the rationale that "in the area not yet affected by WNS (about 40 percent of the species' total geographic range), the species has not yet suffered declines and appears stable." 80 Fed. Reg. at 18,021. But FWS does not provide a rational explanation for why the significant disparity in population density between the 60 percent of the range that is WNS-infected and the 40 percent that is not supports a threatened rather than endangered determination. Such an explanation is necessary in view of the significant population disparities between the WNS-infected areas and those areas not yet infected, id. at 17,976-83; the evidence that WNS "is responsible for unprecedented mortality" and "has spread rapidly," resulting in population declines of the Bat of 96 to 99%," id. at 17,994, 18,012; and that there are "no known examples of [Bats] that have survived" a WNS infection, NLEB Listing 03573. Accordingly, FWS failed to "articulate a rational connection between the facts found and the choice made." Keating, 569 F.3d at 433.
A listing determination is made on the basis of one or more of five statutorily prescribed 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; and (E) other natural or manmade factors affecting a species' continued existence." 16 U.S.C § 1533(a)(1)(A)-(E); see also 50 C.F.R. § 424.11(c). The agency must list a species as long as "any one or a combination" of these factors demonstrates that the species is threatened or endangered. 50 C.F.R. § 424.11(c). Accordingly, in making the listing determination, the ESA requires FWS to consider each of the listing factors both individually and in combination.
FWS focused on Factors A, C, and E. With regard to Factor A, FWS concluded that "[c]urrent and future forest conversion may have negative additive impacts where the species has been impacted by WNS." 80 Fed. Reg. at 17,991. FWS also stated that "in areas with WNS, we believe [the Bats] are likely less resilient to stressors and maternity colonies are smaller. Given the low inherent reproductive potential of [the Bat] (max of one pup per female), death of adult females or pups or both during tree felling reduces the long-term viability of those colonies." Id. at 17,993. FWS concluded that "[w]hile, these activities alone were unlikely to have significant, population-level effects, there is now likely a cumulative effect on the species in portions of range that have been impacted by WNS." Id.
With regard to Factor E, FWS concluded that "[t]here is currently no evidence that these natural or manmade factors would have significant population-level effects on the northern long-eared bat when
FWS analyzed the cumulative effects as follows: "although the effects on the northern long-eared bat from Factors A, [D], and E, individually or in combination, do not have significant effects on the species, when combined with the significant population reductions due to white-nose syndrome (Factor C), they may have a cumulative effect on this species at a local population scale." Id. at 18,006.
Plaintiffs argue—and the Court agrees—that despite this analysis, FWS disregarded the cumulative effects that factors other than WNS may have on the species when explaining the rationale for the threatened determination. The Court does not dispute that, as Federal defendants point out, "FWS considered the impacts of the threats to the species in almost 20 pages of analysis." Fed. Defs.' Reply, ECF No. 63 at 28; see also Def.-Intervenors' Br. in Opp'n, ECF No. 56 at 30. However, in explaining the rationale for the listing determination, FWS relied solely on WNS, and failed to take into consideration the other factors and the cumulative effect of the other factors that FWS itself analyzed. The listing determination states:
Id. at 18,021.
With this rationale, however, FWS ignored its own analysis. Specifically, with regard to Factor A, FWS concluded that "[w]hile, these activities alone were unlikely to have significant, population-level effects, there is now likely a cumulative effect on the species in portions of range that have been impacted by WNS." Id. at 17,993. And with regard to Factor E, FWS concluded that "[t]here is currently no evidence that these natural or manmade factors would have significant population-level effects on the northern long-eared bat when considered alone. However, these factors may have a cumulative effect on this species when considered in concert with WNS, as this disease has led to dramatic northern long-eared bat population declines." Id. at 18,005-06. Defendant-Intervenors argue that FWS's analysis is adequate because the "observed population trends" necessarily include any cumulative impacts. Def.-Intervenors' Br. in Opp'n, ECF No. 56 at 30. But as plaintiffs point out, Pls.' Reply, ECF No. 59 at 32, this explanation was not relied on by FWS and so is irrelevant. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ("the focal point for judicial review [of agency action] should be the administrative record already in existence, not some new record made initially in the reviewing court").
Because FWS disregarded the cumulative effects that factors other than WNS may have on the species when explaining the rationale for the threatened determination,
Plaintiffs argue that the threatened determination "is arbitrary and capricious because it improperly pairs an unreasonably narrow interpretation of `in danger of extinction' and an amorphous, overly broad conception of the `foreseeable future' that fails to articulate any coherent rationale on the Bat's `future conservation status' in the face of WNS' inexorable spread." Pls.' Mot., ECF No. 52 at 35. Federal defendants respond that its interpretation of "in danger of extinction" is entitled to deference. Fed. Defs.' Opp'n, ECF No. 53 at 30-31. Defendant-Intervenors argue that FWS's interpretation of "in danger of extinction" cannot be "[a] one-size-fits-all interpretation," noting that nonetheless, FWS "has identified four typical fact patterns meeting the `endangered' standard of a species `on the brink of extinction in the wild.'" Def.-Intervenors' Br. in Opp'n, ECF No. 56 at 14.
As discussed supra Section I.B., the listing determination relied on FWS's interpretation of "in danger of extinction" to be "on the brink of extinction in the wild" as articulated in the Polar Bear Memo. 80 Fed. Reg. at 18,020. As an initial matter, the parties dispute whether this interpretation is entitled to Chevron deference. To analyze this issue, it is necessary to explain the genesis and purpose of the Polar Bear Memo. The Polar Bear Memo was drafted in response to this Court's Memorandum Opinion in In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation ("Polar Bear I"), 748 F.Supp.2d 19 (D.D.C. 2010) (Sullivan, J.), in which this Court found that the term "endangered species" is ambiguous and "remand[ed] the [Polar Bear] Listing Rule to the agency for the limited purpose of providing additional explanation for the legal basis of its listing determination, and for such further action as it may wish to take in light of the Court's finding that the definition of an `endangered species' under the ESA is ambiguous." Polar Bear I at 29-30.
In response, the Federal defendants submitted FWS's Polar Bear Memo to the Court. The agency stated that its submission was a "supplemental explanation of the meaning of the statutory phrase `in danger of extinction' as applied in the Polar Bear Listing Rule," and explained the scope of the memo:
NLEB Listing 23,067-68.
Plaintiffs argue that FWS's "interpretation of `in danger of extinction' to mean `currently on the brink of extinction in the wild' deserves no deference because it ... has never been appropriately promulgated through the rulemaking requirements of section 4(h) of the ESA." Pls.' Mot., ECF No. 52 at 35.
The Court disagrees with Federal defendants that Chevron is the appropriate standard for determining the level of deference to accord FWS's interpretation of "in danger of extinction" as articulated in the Polar Bear Memo. Rather, given the context, Skidmore is the appropriate standard. There is no dispute that FWS's interpretation of "in danger of extinction" set forth in the Polar Bear Memo did not undergo notice and comment. Furthermore, in the Polar Bear Memo, the agency specifically stated that the Memo "does not set forth a new statement of agency policy, nor is it a `rule' as defined in the Administrative Procedure Act." NLEB Listing 23,067. The agency also stated that "the explanation set forth in this memorandum does not represent a new interpretation of the statute and is not a prospective statement of agency policy." Id. at 23,068. Because "the agency [has] enunciate[d] its interpretation through informal action that lacks the force of law, [the Court will] accept the agency's interpretation only if it is persuasive." Mount Royal Joint Venture, 477 F.3d at 754. In making this determination,
Plaintiffs argue that FWS's interpretation of "in danger of extinction" set forth in the Polar Bear Memo is "unlawfully stringent." The Court disagrees and finds FWS's interpretation of "in danger of extinction," as a general matter, to mean "on the brink of extinction in the wild" to be persuasive. As explained in the Polar Bear Memo, the agency considered the legislative history of the ESA in articulating its "general understanding" of the phrase "in danger of extinction." NLEB Listing 23,069. Senator Tunney, as designee of the majority leader, explained that "[t]he goal of the [ESA] is to conserve, protect, restore, and propagate species of fish and wildlife, that are in imminent danger of extinction or are likely to become endangered within the foreseeable future." 119 CONG. REC. 25,668 (daily ed. July 24, 1973) (statement of Sen. Tunney). He went on to state that the ESA provides a basis for listing species which "are likely in the foreseeable future to become extinct, as well as those which are presently threatened with extinction." Id. He also stated that Congress intended "maximum protection" for endangered species, which are those that are "on the brink of extinction." Id. at 25,669. FWS's interpretation of the phrase, as a general matter, is therefore consistent with congressional intent. Accordingly, FWS's interpretation of "in danger of extinction" to mean "on the brink of extinction in the wild" is persuasive. Skidmore, 323 U.S. at 140, 65 S.Ct. 161.
The Court, however, rejects Federal defendants' argument that because this Court has already upheld FWS's interpretation of "in danger of extinction" as articulated in the Polar Bear Memo—as a general matter—at Chevron step two in Polar Bear II, it must do so here as well. The Court's ruling in Polar Bear II was limited to the application of the interpretation of the phrase to the polar bear: "the Court concludes that the [Polar Bear Memo] sufficiently demonstrates that the Service's definition of an endangered species, as applied to the polar bear, represents a permissible construction of the ESA and must be upheld under step two of the Chevron framework." 794 F. Supp. 2d at 90 (emphasis added).
Plaintiffs also argue that the Listing Rule's reliance on the Polar Bear Memo was unjustified because that memo did not go through notice and comment as required by 16 U.S.C. § 1533(h) (providing that the "Secretary shall establish, and publish in the Federal Register, agency guidelines to insure that the purposes of this section are achieved efficiently and effectively."). Pls.' Mot., ECF No. 52 at 35 n.10. The Court is persuaded by Federal defendants' argument that 16 U.S.C. § 1533(h) does not require FWS "to provide the public with notice and an opportunity to comment on FWS's synthesis of how the agency has historically interpreted `in danger of extinction' that is reflected in the Polar Bear Memo." Fed. Defs.' Opp'n, ECF No. 53 at 29. But Federal defendants concede—as they must—that each time FWS applies its interpretation of `in danger of extinction' to a specific listing determination, it must provide notice and opportunity to comment. As stated by Federal defendants, "because FWS applies its interpretation of `in danger of extinction' on a species-by-species basis, the public has in fact notice and opportunities to comment on FWS's application of its interpretation." Id. at 30. Here, however, and as explained infra Section III.C., FWS failed to provide
Plaintiffs point out in their reply brief that Federal defendants do not respond to plaintiffs' argument "that the determination also unlawfully failed to define rationally the Bat's `foreseeable future,'" Pls.' Reply, ECF No. 59 at 18, and Federal defendants do not dispute this in their own reply brief, See generally Fed. Defs.' Reply, ECF No. 63. Accordingly, Federal defendants have conceded this argument. See Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003) ("It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded."), aff'd, 98 Fed. App'x 8 (D.C. Cir. 2004). Defendant-Intervenors do respond, arguing that FWS "appropriately focused its foreseeability analysis on the impact of [WNS]—how quickly it would spread, the rate of impact within an affected community, and the susceptibility and potential for resistance to the disease within the population," Def.-Intervenors' Br. in Opp'n, ECF No. 56 at 24 (internal citations omitted), as well as the Bat's life cycle relevant to the impact of WNS, id. Plaintiffs argue—and the Court agrees—that FWS policy requires FWS to "look not only at the foreseeability of threats, but also at the foreseeability of the impact of the threats on the species," Pls.' Reply, ECF No. 59 at 18 (quoting M-Opinion at 10).
Plaintiffs also challenge the threatened determination on procedural grounds, arguing that it was "the product of a procedurally flawed process that violated the ESA's and the APA's requirements." Pls.' Mot., ECF No. 52 at 53. Plaintiffs first argue that the record demonstrates that FWS decided to list the Bat as threatened rather than endangered before the close of the November 18, 2014 to December 18, 2014 comment period.
"An agency is required to provide a meaningful opportunity for comments, which means that the agency's mind must be open to considering them." Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 467-68 (D.C. Cir. 1998). "Consideration of comments as a matter of grace is not enough" where the record "suggest[s] too closed a mind" on the part of the agency. McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317, 1323 (D.C. Cir. 1988). Here, Federal defendants have conceded that the decision to list the Bat as threatened was made prior to the close of the comment period ending December 18, 2014, and prior to the opening of the final comment period on January 16, 2015. Despite this, in the January 16, 2015 proposed rule and reopening of the comment period, FWS stated that "[it] has not yet made a final listing decision regarding the status of the northern long-eared bat (e.g., not warranted, threatened, or endangered); however, in our review of public comments we did determine that if threatened status is warranted, a species-specific rule under section 4(d) of the Act rule may be advisable." 80 Fed. Reg. 2372. Accordingly, the record here "suggest[s] too closed a mind" on the part of the agency, McLouth Steel Products Corp., 838 F.2d at 1323, to provide plaintiffs a "meaningful opportunity [to] comment[]," Grand Canyon Air Tour Coal., 154 F.3d at 467-68.
Plaintiffs next argue that because FWS relied on the Polar Bear Memo in the Listing Rule, but not in the Proposed Rule, the Listing Rule was not a logical outgrowth of the Proposed Rule. Pls.' Mot., ECF No. 52 at 55-56. Federal defendants and defendant-intervenors respond that the decision in the Listing Rule was a logical outgrowth because it is one of "the three possible scenarios for a species' categorization at any given time" and point out that plaintiffs had numerous opportunities to comment on the Proposed Rule. Fed. Defs.' Opp'n, ECF No. 53 at 67-69; Def.-Intervenors' Br. in Opp'n, ECF No. 56 at 13-15; Fed. Defs.' Reply, ECF No. 63 at 46-49. Federal defendants also respond that, as discussed above, FWS is not required to provide notice and opportunity to comment on the Polar Bear Memo and that because it applies its interpretation of "in danger of extinction" as articulated in the Polar Bear Memo on a species-by-species basis, there have been "numerous opportunities to comment on FWS'[s] application of its interpretation, including as to the Bat." Fed. Defs.' Reply, ECF No. 63 at 47; see also Def.-Intervenors' Br. in Opp'n, ECF No. 56 at 13-15.
The Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") has established the following test to determine whether a final rule is a "logical outgrowth" of a proposed rule:
CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1079-80 (D.C. Cir. 2009).
Although Federal defendants assert that plaintiffs and the public had the opportunity to comment on FWS's application of its interpretation of "in danger of extinction" articulated in the Polar Bear Memo as applied to the Bat, the record does not support that assertion. As an initial matter, Federal defendants provide no citation to the record to support this statement, instead citing their own opposition and partial motion for summary judgment's discussion of the deference due the Polar Bear Memo. Fed. Defs.' Reply, ECF No. 63 at 47 (citing Fed. Defs.' Opp'n, ECF No. 53 at 30). Furthermore, the proposed rule contains no reference to the Polar Bear Memo, nor does it state that the agency intends to apply its interpretation of "in danger of extinction" to be "on the brink of extinction in the wild" to the Bat. See generally 78 Fed. Reg. 61,046-01. Neither do any of the four extensions of comment period or reopening of the comment period for the proposed rule provide such notice. See generally 78 Fed. Reg. 72,058-01 (Dec. 2, 2013); 79 Fed. Reg. 36,698-01 (June 30, 2014); 79 Fed. Reg. 68,657-02 (Nov. 18, 2014); 80 Fed. Reg. 2371-01 (Jan. 16, 2015). Rather, the first and only time FWS applied its interpretation of "in danger of extinction" as articulated in the Polar Bear Memo to the Bat was in the Listing Rule. 80 Fed. Reg. 17,974-01, 18,020-21 (Apr. 2, 2015). Federal defendants represented to this Court that the public has had opportunities to comment both specifically as to the Bat, Fed. Defs.' Reply, ECF No. 63 at 47 ("because FWS applies its interpretation of `in danger of extinction' on a species-by-species basis, the public has in fact had notice and numerous opportunities to comment on FWS's application of its interpretation, including as to the Bat."), and as a general matter, Fed. Defs.' Opp'n, ECF No. 53 at 30 ("because FWS applies its interpretation of `in danger of extinction' on a species-by-species basis, the public has in fact had notice and numerous opportunities to comment on FWS's application of its interpretation"). However, the record here demonstrates that FWS did not provide plaintiffs nor the public with an opportunity to comment on FWS's application of its interpretation of "in danger of extinction" as applied to the Bat. For this reason alone, the final rule is not a logical outgrowth of the notice in the proposed rule. The Court also notes that in none of the four extensions and reopenings of the comment period over more than a year, did FWS put the public on notice of how it was applying is interpretation of "in danger of extinction" specifically to the Bat.
Because the Court agrees that the threatened determination was procedurally
The ESA defines an "endangered species" in relevant part as "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). The phrase "significant portion of its range" is not defined in the ESA, and courts faced with the question have concluded that the phrase is ambiguous for Chevron purposes. Humane Soc'y of the United States v. Jewell, 76 F.Supp.3d 69, 128 (D.D.C. 2014). Accordingly, FWS "has a wide degree of discretion in determining whether the [species] is in danger `throughout a significant portion of its range.'" W. Watersheds Project v. Ashe, 948 F. Supp. 2d. 1166, 1184 (D. Idaho 2013) (citation omitted).
In 2014, FWS and the National Marine Fisheries Service (collectively, "the Services") promulgated the Final SPR Policy, which both interprets the phrase "significant portion of its range" and explains how the Services will implement their interpretation of the phrase. See 79 Fed. Reg. 37,578; 37,579. The Final SPR Policy defines "significant portion of its range" as follows: "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." Id. at 37,579. The Services explained that the following procedure would be used to implement the policy:
Plaintiffs challenge this aspect of the policy as "facially unlawful ... contrary to the ESA's language and goals and fails at [Chevron] step one." Pls.' Mot., ECF No. 52 at 57. As an initial matter, the parties dispute the appropriate test for plaintiffs' facial challenge to the Final SPR Policy. Federal defendants argue that since plaintiffs have brought a facial challenge, they have the burden of establishing that "no set of circumstances exists" under which the policy would be valid. Fed. Defs.' Opp'n, ECF No. 53 at 42 (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)). The Court is not persuaded that the "no set of circumstances" test applies to plaintiffs' challenge, however, because plaintiffs do not bring a pre-application challenge to the policy.
Here, however, the Final SPR Policy has been in effect since 2014, has been applied, and aspects of it have been vacated both with and without geographical limitation. See infra Section III.D.2. This situation is therefore distinguishable from that in Flores where the Supreme Court applied the "no set of circumstances" test to
Flores, 507 U.S. at 300-01, 113 S.Ct. 1439. Nor is this situation similar to that in Cellco P'ship v. FCC, 700 F.3d 534 (D.C. Cir. 2012), where the D.C. Circuit applied the "no set of circumstances" test to decide a facial challenge to an agency rule. Although the court did not explicitly state that it was applying that test because it was considering a pre-implementation challenge to the rule, the context indicates that it was. The challenged rule was adopted on April 7, 2011, Cellco P'ship, 700 F.3d at 540, 549; and challenged on May 13, 2011, see generally Court of Appeals Docket # 11-1135, a few weeks before the rule became effective on June 6, 2011, 76 Fed. Reg. 26,199.
Furthermore, plaintiffs do not challenge a "discretionary aspect" of the rule, see Chamber of Commerce, 118 F. Supp. 3d at 184-85, but rather an aspect of the policy over which it has no discretion, specifically, "[i]f we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we will list the species as endangered (or threatened) and no SPR analysis will be required." 79 Fed. Reg. at 37,585. And as plaintiffs point out, "FWS has already applied the Policy to foreclose all consideration of whether the Bat is endangered in any significant portion of its range after it first determined that the species is threatened throughout its range." Pls.' Reply, ECF No. 59 at 38 (citing 80 Fed. Reg. at 18,022; Pls.' Mot., ECF No. 52 at 67-69). Plaintiffs also note that the Services applied the policy in a similar manner in at least 13 other listing decisions. Id. Accordingly, the Court the will analyze plaintiffs' challenge under the Chevron standard.
Applying the Chevron standard, the parties dispute what exactly is "the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. 2778. Plaintiffs argue that the Final SPR Policy fails at Chevron step one because there is no ambiguity in the ESA regarding the two circumstances under which a species must be listed as endangered. Specifically, a species must be considered endangered (1) when it is "in danger of extinction throughout all ... of its range"; or (2) when it is "in danger of extinction throughout ... a significant portion of its range." 16 U.S.C. § 1532(6). Plaintiffs argue that the Final SPR Policy is inconsistent with this statutory language because it "renders the entire clause `or a significant portion of its range' in the definition of an `endangered species' completely superfluous." Pls.' Mot., ECF No. 52 at 57, 59.
Federal defendants argue that the Final SPR Policy is properly analyzed under Chevron step two rather than step one because "the specific issue addressed by the" policy is how FWS should interpret "significant portion of its range" and there is no dispute that the phrase "significant portion of its range" is ambiguous for Chevron purposes. Fed. Defs.' Opp'n, ECF No. 53 at 45-48. Plaintiffs disagree, responding that "[t]he issue presented by [p]laintiffs' claim is not whether the phrase `significant portion of its range' is ambiguous... [but] whether the Service must consider a species' status in a `significant portion of its range'—however defined—at all, in situations where that species is also
The Court is persuaded that the precise question at issue is whether this aspect of the procedures implementing the Final SPR Policy is consistent with the plain language of the ESA. Plaintiffs do not challenge the Services' interpretation of what "significant portion of its range" means. If they had, plaintiffs' challenge would arguably be moot because the Final SPR Policy's definition of "significant" in "significant portion of its range" has been deemed inconsistent with the ESA and has been vacated nationwide. Friends of Animals, 396 F. Supp. 3d at *10 (citing Desert Survivors v. United States Dep't of Interior, 321 F. Supp. 3d. 1011 (N.D. Cal. 2018) and Desert Survivors v. United States Dep't of Interior, 336 F.Supp.3d 1131 (N.D. Cal. 2018)). Moreover, Federal defendants assert that the fact that its interpretation of "significant portion of its range" has been vacated has no impact on this case. See Fed. Defs.' Resp. to Notice of Suppl. Auth., ECF No. 77 at 2. Specifically, Federal defendants state that "[p]laintiffs do not challenge the Final SPR Policy's definition of `significant' or determinations that relied on that definition.... Instead, [p]laintiffs challenge the first part of the Final SPR Policy, which says that if [FWS] has already determined that the species is threatened or endangered throughout all of its range, the agency will not analyze whether the species is also threatened or endangered in a significant portion of its range." Id. at 3. Furthermore, the procedures implementing the Final SPR Policy are significantly broader than the meaning of the phrase "significant portion of its range." See generally Final SPR Policy. Accordingly, the Court will analyze the challenged procedure implementing the Final SPR Policy at Chevron step one.
The parties agree that the ESA sets forth four separate bases for listing a species as endangered or threatened: (1) the species is "in danger of extinction throughout all of its range"; (2) the species is "in danger of extinction throughout ... a significant portion of its range"; (3) the species "is likely to become an endangered species within the foreseeable future throughout all ... of its range; and (4) the species "is likely to become an endangered species within the foreseeable future throughout ... a significant portion of its range." 16 U.S.C. § 1532(6), (20). The Final SPR policy acknowledges these four independent bases for listing a species, 79 Fed. Reg. 37,582, but in implementing the policy, FWS states that "[i]f we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we will list the species as endangered (or threatened) and no SPR analysis will be required." 79 Fed. Reg. at 37,585. As a result, if FWS determines that a species is threatened throughout all of its range, it will not determine whether the species is endangered in a significant portion of its range. This is precisely what occurred with the Bat.
"In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole." K Mart Corp. v. Cartier, 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). The ESA defines an "endangered species," in relevant part, as "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). The ESA requires FWS to determine whether a species is endangered, and if it is, to list
The plain language of the statute unambiguously requires FWS to determine whether a species should be listed as endangered by determining whether it is: (1) "in danger of extinction throughout all of its range"; or (2) "in danger of extinction throughout ... a significant portion of its range." 16 U.S.C. § 1532(6); see also United States v. Woods, 571 U.S. 31, 45, 134 S.Ct. 557, 187 L.Ed.2d 472 (2013) (when Congress uses "or" in a statute, "its ordinary use is almost always disjunctive, that is, the words it connects are to be given separate meanings") (internal citation omitted)). Federal defendants do not dispute that under the procedures implementing the Final SPR Policy, if the Services determine that a species is threatened throughout all of its range, it will not determine whether the species is endangered in a significant portion of its range. Fed. Defs.' Opp'n, ECF No. 53 at 55. They argue that the policy "complies with the plain language of the ESA because it does not render any of the bases for listing superfluous." Fed. Defs.' Reply, ECF No. 63 at 32. However, FWS acknowledges that in implementing the policy, it will not determine whether a species is endangered in a significant portion of its range if it has determined that a species is threatened throughout all of its range. In so doing, the policy renders the "endangered in a significant portion of its range" basis for listing superfluous when FWS has determined that a species is threatened throughout all of its range. Accordingly, this aspect of the procedures implementing the Final SPR Policy fail to give meaning to one of the two bases for listing a species as endangered—whether the species is endangered in a significant portion of its range. Second, the policy is inconsistent with the design of the statute, pursuant to which endangered species are entitled to more legal protection than threatened species, because the Services will not analyze whether a species that is threatened throughout all of its range is endangered in a significant portion of its range. In so doing, the Services fail to determine whether a species is entitled to the greater legal protection provided for in the ESA. See Defenders of Wildlife, 239 F. Supp. 2d at 19 ("[W]hen Congress enacted the ESA in 1973, it expressly extended protection to a species endangered in only a `significant portion of its range.' The two earlier statutes enacted to protect and preserve endangered species narrowly defined endangered species as including only those species facing total extinction.").
For these reasons, the challenged aspect of the Final SPR Policy fails at Chevron step one.
Even if it were appropriate for the Court to consider the Final SPR Policy at Chevron step two because "the precise question at issue" is the meaning of the ambiguous phrase "significant portion of its range," it would also fail at that step because, despite the "substantial deference" due to the interpretation of such a provision, the implementation of the Final SPR Policy interprets the statute in a manner "that does not effectuate Congress' intent." Ctr. for Biological Diversity
Plaintiffs argue that the policy is an unreasonable interpretation under Chevron step two for three reasons: (1) it "directly subverts the ESA's conservation goal by foreclosing any consideration of whether a species threatened throughout its range should be listed as endangered because of the threats it faces in a significant portion of its range"; (2) it impermissibly "relies on its concerns over its heavy workload and limited `resources' to justify restricting the SPR analysis"; and (3) it is procedurally deficient because the "180 degree course change" in the final policy is not a logical outgrowth of the draft policy. Pls.' Mot., ECF No. 52 at 64-66.
Federal defendants respond that the Final SPR Policy is a reasonable interpretation of "significant portion of its range" because it: (1) does not render any basis for listing superfluous; (2) complies with the ESA principles; (3) is consistent with the ESA's conservation goals; and (4) does not require the Services to consider improper listing factors. Fed. Defs.' Opp'n, ECF No. 53 at 49-62. The Court considers each argument in turn.
Federal defendants argue that the policy does not render any basis for listing superfluous because "`there is at least one set of facts that falls uniquely within each of the four bases [] without simultaneously filling the standard of another basis[].'" Fed. Defs.' Opp'n, ECF No. 53 at 49 (quoting 79 Fed. Reg. 37,582). However, as explained above, the policy renders the "endangered in a significant portion of its range" basis for listing superfluous because the Services will not determine whether a species is endangered in a significant portion of its range if it has determined that a species is threatened throughout all of its range.
Federal defendants also assert that "Congress's placement of the `throughout all' language before the `significant portion of its range' language in the definitions of endangered species and threatened species indicates that Congress intended the Services to focus their analysis on a species' status throughout all of its range." Id. at 54. However, Federal defendants have neither pointed to a canon of statutory construction to support this argument nor provided any legal support for it. See generally, Fed. Defs.' Opp'n, ECF No. 53; Fed. Defs.' Reply, ECF No. 63.
Federal defendants argue that "there is no language in the ESA that requires the Services to analyze and make a determination on each of the remaining bases for listing after the Services determine that one of the bases for listing is applicable to the species ... [n]or is there any language in the ESA that dictates in what order the Services should analyze the four bases for listing." Fed. Defs.' Opp'n, ECF No. 53 at 53-54. They also argue that it would "be illogical for the Services to continue analyzing whether a species fits within the three remaining bases for listing after they determine that a particular basis for listing is applicable to a species," stating that "if the Services did perform this analysis, it would lead to confusing results ..." Id. at 54 & n.11.
The Court disagrees. Congress's intent in enacting the ESA and creating the two levels of classification was "to provide incremental protection to species in varying degrees of danger." Defenders of Wildlife v. Norton, 258 F.3d 1136, 1143 (9th Cir. 2001); see also 16 U.S.C. § 1531(b) ("The purposes of this chapter are to provide a means whereby
Id. at 25,669. For these reasons, the challenged aspect of the Final SPR Policy renders the "endangered in a significant portion of its range" basis for listing superfluous.
Federal defendants and defendant-intervenors argue that the policy provides a reasonable interpretation of the "significant portion of its range" phrase because logically, "a species cannot simultaneously meet the definitions of `endangered species' and `threatened species.'" Fed. Defs.' Opp'n, ECF No. 53 at 55;
As explained above, however, in enacting the ESA, Congress specifically intended that a species could simultaneously meet both definitions. Furthermore, the Services did not rely on this interpretation of the statute as a basis for its Final SPR Policy. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 S.Ct. 1995 (1947) (the propriety of agency action must be judged "solely by the grounds invoked by the agency"). Rather, the Services found that "[t]he Act ... does not specify the relationship between the two provisions." 79 Fed. Reg. at 37,580. For these reasons, the challenged aspect of the Final SPR Policy is inconsistent with ESA principles.
Federal defendants argue that the policy does not subvert the ESA's conservation goals because species receive protection under either status and therefore "[p]laintiffs' argument that a species listed as threatened under the Final SPR policy are somehow not `conserved' is meritless." Fed. Defs.' Opp'n, ECF No. 53 at 60-61. Federal defendants further argue that "the Final SPR Policy does not mandate or even suggest that the Services should consider factors other than those outlined in 16 U.S.C. § 1533(a)(1) or make decisions that are not based on the best scientific and commercial data available in determining whether or not to list a species." Fed. Defs.' Opp'n, ECF No. 53 at 61. Rather, "the [Final SPR] Policy reflects the Services' `lawful and completely appropriate' effort of `resolving ambiguities in the [ESA] and providing guidance for its implementation... consider[ing] a wide variety of factors' including `both textual and practical reasons.'" Id. (citing 79 Fed. Reg. at 37,580; 37,591-92). Federal defendants state that in the Final SPR Policy, "the Services noted that there is a `related benefit of limiting the applicability of the SPR language" in order to conserve the Services "limited resources." Id. (quoting 79 Fed. Reg. at 37,581 (emphasis added)). But Federal defendants argue that "this practical benefit has no bearing on what factors the Services consider when determining" whether to list a species as threatened or endangered. Id.
Plaintiffs respond that the ESA mandates that FWS "make listing determinations based solely on the best available scientific data" and that FWS's injection of "economic concerns (i.e. `limited resources')" as a justification for not considering whether a species is endangered in a significant portion of its range if the Services have determined that it is threatened throughout its range is inconsistent with that mandate. Pls.' Reply, ECF No. 59 at 49.
The Court is not persuaded by Federal defendants' argument because the Services have decided, for economic reasons and to avoid confusion, to not reach the question of whether a species should be listed as endangered in a significant portion of its range after determining that it is threatened throughout all of its range. This is contrary to the statutory requirement to list a species as endangered if it is "in danger of extinction" in "a significant portion of its range," 16 U.S.C. § 1532(6), and to make that determination based "solely on the basis of the best scientific and commercial data available," 16 U.S.C. § 1533(b)(1)(A). And this mandate cannot be excused for "budgetary reasons." Am. Lands All. v. Norton, 242 F.Supp.2d 1, 18 (D.D.C. 2003) ("it is beyond th[e] Court's authority to excuse congressional mandates for budgetary reasons"). As plaintiffs point out, the ESA does not require FWS
For these reasons, the challenged aspect of the Final SPR Policy subverts the conservation goals of the ESA. Accordingly, the challenged aspect of the Final SPR Policy is an unreasonable interpretation of the ESA under Chevron step two.
Plaintiffs also challenge the Final SPR Policy on procedural grounds, arguing that the final policy was not a logical outgrowth of the draft policy due to "the final policy's 180 degree course change barring consideration of whether a species is endangered in a significant portion of its range when it is threatened throughout its range." Pls.' Mot., ECF No. 52 at 65. "[A]n agency's proposed rule and its final rule may differ only insofar as the latter is a `logical outgrowth' of the former." Envtl. Integrity Project v. E.P.A, 425 F.3d 992, 996 (D.C. Cir. 2005) (citation omitted). The parties do not dispute that the "logical outgrowth" concept properly applies to agency policies. Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225, 1237-38 (D.C. Cir. 1994). As Federal defendants point out, FWS specifically sought comment on the aspect of the draft policy that could result in a species being threatened throughout all of its range while also being endangered in a significant portion of its range:
76 Fed. Reg. at 77,004. The Court is not persuaded, however, by Federal defendants' argument that seeking comment on this aspect of the draft policy put plaintiffs and the public on notice that FWS would decide to address this concern by deciding that it would not analyze whether a species was endangered in a significant portion of its range after it had determined that the species is threatened throughout all of its range. Although FWS solicited comment on this issue, it gave no indication that this would be the "solution" it would choose, nor were plaintiffs and the public given the opportunity to comment on this solution. The Court's conclusion is bolstered by the fact that FWS acknowledged that the draft policy would result in "partial overlap among categories" which though potentially confusing "in practice will ... not be a significant hurdle to implementing [the]
Plaintiffs' final argument is that when it applied the Final SPR Policy to the Bat, "FWS failed to undertake the necessary analysis of whether the species is in danger of extinction throughout a significant portion of its range" thereby "unlawfully rel[ying] on the SPR Policy to justify ignoring the clear and undisputed fact that the Bat has declined most significantly in the core of its range." Pls.' Mot., ECF No. 52 at 67.
The Court agrees with Federal defendants that FWS correctly applied the Final SPR Policy as written to the Bat. However, the Court has determined that the challenged aspect of the Final SPR Policy fails at Chevron step one, and in the alternative at Chevron step two. See supra Section III.B.3-4. Consequently, since the Final SPR Policy is unlawful, the application of the policy to support the threatened determination as to the Bat was unlawful.
For the reasons set forth above, the Court
