CHRISTOPHER R. COOPER, United States District Judge.
While millions of bison once roamed the entire North American plains, most of the few thousand left in the wild today live in or near Yellowstone National Park. Hoping to protect these remaining bison, Buffalo Field Campaign and other environmental groups petitioned the Fish and Wildlife Service to add the Yellowstone bison population to the federal endangered species list. After the Service made a threshold "90-day" determination that their petition failed to present sufficient scientific evidence that listing the bison may be warranted, they brought suit under the Administrative Procedure Act, alleging that the Service's determination was arbitrary and capricious. Because the Court agrees that the Service applied an improper standard when evaluating Buffalo Field's petition, it will grant Buffalo Field's motion for summary judgment, deny the Service's cross-motion, and remand the case for the agency to conduct a new 90-day finding using the proper standard.
The Endangered Species Act serves to protect threatened or endangered species. Under the Act, an "endangered" species is one that is "in danger of extinction throughout all or a significant portion of its range" and a "threatened" species is one that 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(6), (20). A
Individuals may petition the Secretary "to add a species to, or to remove a species from" the list of endangered and threatened species.
The "substantial evidence" standard applied at the 90-day finding period is not a rigorous one. A petitioner need not present "conclusive evidence regarding" threats to a species.
Before European settlers arrived, bison occupied millions of square kilometers across North America. A.R. 376. By 1889, however, they had been driven near extinction, with less than 1,000 still alive in the wild. A.R. 371. Many of the few hundred remaining bison were captured and sent to zoos or private ranches.
The bison population resides principally, but not wholly, within the boundaries of Yellowstone National Park. A.R. 5. During the winter, bison can range outside the Park onto public and private lands. A.R. 376. Within its territory, the bison population is organized into two separate herds, known as the "Central" and "Northern" herds. A.R. 385. Some scientific literature has suggested that these herds are in fact genetically distinct populations of bison, each of which should be preserved.
At present, the bison population in Yellowstone is listed neither as endangered nor threatened. Instead, it is managed by the Interagency Bison Management Plan for the State of Montana and Yellowstone National Park (the "IBMP" or "Management Plan"). The IBMP was adopted in 2000 after a decade of negotiation and planning among the National Park Service, the U.S. Department of Agriculture, and the State of Montana. A.R. 4064. The Plan sought "to continue research and take conservative but protective steps toward cooperative management of the bison while protecting Montana's brucellosis class-free status." A.R. 4066. (Brucellosis is a disease that can be transmitted from bison to cattle and that causes reproductive failure in infected animals. A.R. 404.)
The IBMP sets a target of 3,000 for the entire population of bison in Yellowstone, covering both the Central and Northern herds. A.R. 4093. It also establishes boundaries for the population's territory. A.R. 4072. During the spring, pursuant to the Plan, bison are hazed back into the boundaries of Yellowstone National Park and off of public and private lands outside the Park. A.R. 4072. In addition, the Plan provides for the capture and testing of bison for brucellosis when they leave the Park during the winter migration.
On November 13, 2014, Western Watersheds Project and Buffalo Field Campaign filed a citizen petition (the "First Petition") to list the population of bison in and around Yellowstone National Park as an endangered or threatened species. A.R. 370. A second petition was filed on March 2, 2015 by James Horsley (the "Second Petition"). A.R. 39. Two previous petitions, one submitted in 1999 and the other in 2011, had been denied by the U.S. Fish and Wildlife Service. A.R. 372.
Both petitions contended that the Yellowstone bison population should be listed as threatened or endangered. A.R. 390 (First Petition); A.R. 85 (Second Petition). The First Petition argued that the bison population was threatened or endangered because of restrictions in its range due to historical loss, livestock grazing, infrastructure and development, and invasive species. A.R. 398-400. The First Petition cited overutilization from hunting, disease, and climate change as threats to the bison's
On December 15, 2015 — over six months after the Second Petition was filed and a year following the First — the U.S. Fish and Wildlife Service denied the two petitions. A.R. 16. The Service ultimately held that the petitions had failed to present substantial scientific or commercial evidence indicating that listing the Yellowstone bison may be warranted. A.R. 2. The Service noted that, in light of the current stable-to-increasing bison population, the petitions failed to present substantial evidence of a threat from loss of historic range or disease. A.R. 3, 11. With respect to livestock grazing, development and infrastructure, and invasive species — threats identified in the First Petition — the Service stated that that petition did not provide evidence of how these issues affected the Yellowstone bison. A.R. 5-6. The Service also dismissed concerns over genomic extinction or climate change as threats. A.R. 14-15. Finally, with respect to the contentions regarding the IBMP and its population target, the Service stated that the IBMP already set separate population targets for the two herds and that maintenance of the two distinct populations might not be crucial for the survival of the species. A.R. 9.
Buffalo Field Campaign and Western Watershed Project, both of whom filed the First Petition, as well as Friends of Animals (collectively "Buffalo Field"), subsequently filed suit against Secretary of the Interior Ryan Zinke as well as the U.S. Fish and Wildlife Service and its Acting Director Jim Kurth (collectively "the Service") challenging the Service's 90-day finding. Compl. ¶ 1. They alleged that the Service's conclusion was arbitrary and capricious under the Administrative Procedure Act ("APA") because the Service ignored the plain language of the Endangered Species Act, failed to follow the requirement to make decisions based on the best scientific and commercial data available, and applied an improper evidentiary standard.
"Summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review."
Under the APA, a court shall hold unlawful and set aside agency action that is arbitrary and capricious, an abuse
The scope of review under the arbitrary and capricious standard is "narrow," and the Court "is not to substitute its judgment for that of the agency."
Buffalo Field contends that the Service's 90-day finding is arbitrary and capricious because the Service (1) applied the incorrect evidentiary standard for a 90-day finding, (2) did not apply the best available science standard, and (3) failed to consider or otherwise ignored evidence indicating that the bison are threatened or endangered.
Buffalo Field argues that the Service's determination is arbitrary and capricious because the Service applied an improperly heightened evidentiary standard to its petition. As evidence of this, Buffalo Field points to the 90-day finding's reliance on the study on the two distinct subpopulations of bison by Patrick J. White and Richard L. Wallen — which argued that the distinct populations were artificially created and thus should not be maintained separately — over that by Natalie D. Halbert et al. — which argued for a change in management based on the existence of two separate genetic herds. Buffalo Field MSJ at 1. Additionally, it points to internal Service documents from the reviewing and drafting process that it argues further illustrate an improper standard was applied.
As other district courts have explained, "[a]t the 90-day stage, the question is not whether the designation is warranted, only whether it may be."
It naturally follows that the 90-day standard does not allow the Service to simply discount scientific studies that support the petition or to resolve reasonable extant scientific disputes against the petition. Unless the Service explains why the scientific studies that the petition cites are unreliable, irrelevant, or otherwise unreasonable to credit, the Service must credit the evidence presented.
This case presents a relatively straightforward example of such a scientific dispute. In their paper, Halbert et al. argue that there are two genetically distinct subpopulations of bison in Yellowstone and that this conclusion undermines the current management practices (and population levels) for the bison.
In its 90-day finding, the Service had two responses to the Halbert study. First, it stated that the IBMP already sets population management targets for the two herds separately. A.R. 9. While that may be the case, the Service's position ignores the inference from the Halbert study that the overall population target is either too low in light of other studies indicating 3,000 bison are needed for each herd to ensure survival, or inaccurate because it was set before recognizing that the two herds need to be maintained individually. Second, the Service simply adopted White and Wallen's conclusion that "maintenance of subpopulation genetic differentiation and overall genetic diversity may not be crucial for preserving genes" and that the Service therefore need not maintain the two subpopulations. A.R. 9-10. The Service offered no explanation for why Halbert et al.'s conclusion was irrelevant, unreliable, or unsubstantiated, nor any discussion why a reasonable person could not rely on the Halbert study over the White and Wallen study. In so doing, the Service appears to have taken it upon itself to resolve a disagreement among reasonable scientists, an observation echoed by arguments made in its brief defending the side it picked.
The Service responds that the Court should defer to the Service's expertise in evaluating the evidence presented in citizen petitions. That is certainly true with respect to the Service's conclusion that a
Finally, the Service contended at the hearing that by not allowing it to resolve scientific discrepancies or disputes, the Court will collapse any distinction between the 90-day finding and the 12-month review. This concern is overstated. The Court is not requiring the Service to accept any and all positions that a petition advances. Nor is it requiring the Service to credit scientific studies it knows to be obsolete, wholly unreliable, or irrelevant.
In sum, by resolving an outstanding scientific dispute, the Service applied an improperly heightened standard in making its 90-day determination. This renders the Service's decision arbitrary and capricious, and entitles Buffalo Field to summary judgment in its favor.
Buffalo Field argues that if the Service's decision is arbitrary and capricious, the Court should direct the Service to begin a 12-month review rather than simply remand the case to the Service. The Court, however, agrees with the Service that remand is the appropriate remedy.
As the D.C. Circuit has repeatedly explained, a "district court reviewing a final agency action `does not perform its normal role but instead sits as an appellate tribunal.'"
The cases that Buffalo Field cites where a court did direct the Service to begin a 12 month review rather than simply remand — including one from this District — do not persuade the Court otherwise. In most of them, including the case from this District, the Service's error resulted from its reliance on third-party data or information.
The Service argues that ultimately, Buffalo Field's concern over the two subpopulations is irrelevant because the bison population is growing. The Service may have a point, and on remand the Service may well be able to reach the same outcome after applying the proper standard. But to do so, the Service must explain why the evidence supporting the petition is unreliable, irrelevant, or otherwise unreasonable to credit rather than simply pick and choose between contradictory scientific studies.
For the foregoing reasons, the Court grants Buffalo Field's motion for summary judgment and denies the Service's cross-motion for summary judgment. A separate Order will accompany this Memorandum Opinion.