Friends of Blackwater v. Salazar ( 2011 )


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  •                                                       UNITED STATES DISTRICT COURT
                                                          FOR THE DISTRICT OF COLUMBIA
    
    ________________________________
                                                                           )
    FRIENDS OF BLACKWATER, et al.,                                         )
                                                                           )
                           Plaintiffs,                                     )
                                                                           )
                  v.                                                       )   Civ. Action No. 09-2122 (EGS)
                                                                           )
    KENNETH SALAZAR, et al.,                                               )
                                                                           )
                           Defendants.                                     )
                                                                           )
    
                                                                   MEMORANDUM OPINION
    
                  In 1985, the Virginia Northern Flying Squirrel, Glaucomys
    
    sabrinus fuscus, (the “Squirrel”) was listed as an endangered
    
    species under the Endangered Species Act (“ESA”) by the U.S.
    
    Fish and Wildlife Service (“FWS”).                                         Over two decades later, in
    
    2008, the FWS delisted the Squirrel pursuant to the Final Rule
    
    Removing the Virginia Northern Flying Squirrel From the Federal
    
    List of Endangered and Threatened Wildlife (“Delisting Rule”),
    
    73 Fed. Reg. 50,226 (Aug. 26, 2008).                                         Plaintiffs brought this
    
    suit challenging the delisting.1
    
    
    
                                                                
    1
      There are six plaintiffs, including five non-profit
    organizations and one individual. Defendants are Kenneth
    Salazar, the Secretary of the U.S. Department of the Interior
    (“Secretary”), and Rowan Gould, Acting Director of the U.S. Fish
    and Wildlife Service. (Pursuant to Fed. R. Civ. P. 25(d), Mr.
    Gould has been automatically substituted as a defendant for his
    predecessor, Sam D. Hamilton, who was sued in his official
    capacity.)
    
    
                                                                           1
     
         Pending before the Court are plaintiffs’ motion for summary
    
    judgment and defendants’ cross-motion for summary judgment.
    
    Upon consideration of the motions, the responses and replies
    
    thereto, the applicable law, the administrative record, the
    
    arguments by counsel at the November 17, 2010 motions hearing,
    
    and for the reasons set forth below, plaintiffs’ motion for
    
    summary judgment is hereby GRANTED, and defendants’ cross-motion
    
    for summary judgment is hereby DENIED.    The Court concludes that
    
    the agency violated Section 4(f) of the ESA, 16 U.S.C.
    
    § 1533(f), when it effectively revised its recovery plan for the
    
    Squirrel without employing notice-and-comment rulemaking.
    
    Accordingly, the Court hereby VACATES the Delisting Rule and
    
    REMANDS to the agency for further proceedings consistent with
    
    this Opinion.
    
    I.   BACKGROUND
    
         A.   The Endangered Species Act
    
         By 1973 when the Endangered Species Act was enacted,
    
    Congress had concluded that “various species of fish, wildlife,
    
    and plants in the United States have been rendered extinct as a
    
    consequence of economic growth and development untempered by
    
    adequate concern and conservation[.]”    16 U.S.C. § 1531(a)(1).
    
    In addition, Congress found that “other species of fish,
    
    wildlife, and plants have been so depleted in numbers that they
    
    are in danger of or threatened with extinction,” and “these
    
                                    2
     
    species of fish, wildlife, and plants are of esthetic,
    
    ecological, educational, historical, recreational, and
    
    scientific value to the Nation and its people[.]”                                Id.
    
    § 1531(a).                         The ESA was therefore enacted in order “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[.]”                                         Id. § 1531(b).2
    
                  On his own initiative or in response to the petition of an
    
    “interested person,” the Secretary of the Interior determines
    
    whether a species is an endangered species or a threatened
    
    species3 based on the evaluation of five factors, “(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
                                                                
    2
      The ESA states that “‘conserve,’ ‘conserving,’ and
    ‘conservation’ mean to use and the use of all methods and
    procedures which are necessary to bring any endangered species
    or threatened species to the point at which the measures
    provided pursuant to this Act are no longer necessary.” 16
    U.S.C. § 1532(3).
    3
      The ESA defines “endangered species” as “any species which is
    in danger of extinction throughout all or a significant portion
    of its range[.]” 16 U.S.C. § 1532(6). A “threatened species”
    is defined as “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
    Secretary is required to maintain and publish lists in the
    Federal Register of all species which have been determined to be
    endangered or threatened. Id. § 1533(c)(1).
    
    
                                                                           3
     
    or predation; (D) the inadequacy of existing regulatory
    
    mechanisms; or (E) other natural or manmade factors affecting
    
    its continued existence.”   Id. § 1533(a)(1).   The Secretary is
    
    required to make this determination “solely on the basis of the
    
    best scientific and commercial data available[.]”    Id.
    
    § 1533(b)(1).
    
         Once a species is designated an endangered or threatened
    
    species, certain legal protections are triggered.   Among other
    
    things, the ESA directs the Secretary to develop and implement
    
    “[recovery] plans . . . for the conservation and survival of
    
    endangered species and threatened species . . . unless he finds
    
    that such a plan will not promote the conservation of the
    
    species.”   Id. § 1533(f)(1).   Prior to the final approval of a
    
    new or revised recovery plan, the Secretary is required to
    
    “provide public notice and an opportunity for public review and
    
    comment on such plan.”   Id. § 1533(f)(4).   Furthermore, each
    
    recovery plan “shall, to the maximum extent practicable, . . .
    
    incorporate in each plan -- (i) a description of such site-
    
    specific management actions as may be necessary to achieve the
    
    plan’s goal for the conservation and survival of the species;
    
    (ii) objective, measurable criteria which, when met, would
    
    result in a determination, in accordance with the provisions of
    
    this section, that the species be removed from the list; and
    
    (iii) estimates of the time required and the cost to carry out
    
                                      4
     
    those measures needed to achieve the plan’s goal and to achieve
    
    intermediate steps toward that goal.”                                          Id. § 1533(f)(1)(B).
    
                  At least once every five years, the Secretary must conduct
    
    a review of all listed species to determine whether any species
    
    should be delisted, or whether the status of any species should
    
    be changed from threatened to endangered or vice versa.                                          See id.
    
    § 1533(c)(2).                               A determination to delist or change the status of
    
    an endangered or threatened species is made on the basis of the
    
    same five factors in § 1533(a)(1) that govern the initial
    
    listing of a species.                                          See id. § 1533(c)(2); 50 C.F.R.
    
    § 424.11(d).
    
                  B.             Factual Background
    
                               i.                   The Virginia Northern Flying Squirrel and Its
                                                    Listing as an Endangered Species
    
                  At stake in the instant action is a subspecies of the
    
    northern flying squirrel: the Virginia Northern Flying Squirrel,
    
    also known as the West Virginia Northern Flying Squirrel
    
    (Glaucomys sabrinus fuscus) (the “Squirrel”).4                                         The Squirrel is a
    
    “small, nocturnal, gliding mammal” with “distinctive patagia
    
    
                                                                
    4
      Two species of flying squirrel exist in North America, the
    southern flying squirrel (Glaucomys volans) and the northern
    flying squirrel (Glaucomys sabrinus). 50 Fed. Reg. 26,999. The
    northern flying squirrel is found mainly in Canada, Alaska, and
    the western and northern parts of the conterminous United
    States. However, certain subspecies of the northern flying
    squirrel, including the one at issue in the instant case, exist
    in the Appalachian Mountains of North Carolina, Tennessee,
    Virginia and West Virginia. Id.
                                                                            5
     
    (folds of skin between the wrists and ankles) . . . supported by
    
    slender cartilages extending from the wrist bones; these plus
    
    the broad tail create a large gliding surface area and are the
    
    structural basis for the squirrel’s characteristic gliding
    
    locomotion.                           Adults are dorsally gray with a brownish, tan, or
    
    reddish wash, and grayish white or buffy white ventrally.”
    
    AR at 15075 (internal citations omitted).5
    
                  The historic range of the Squirrel is believed to
    
    correspond roughly to the distribution of old-growth red spruce
    
    and northern hardwood forests that existed prior to the
    
    extensive logging and accompanying fires that occurred at the
    
    turn of the 20th century in the Allegheny Highlands, a section
    
    of the Appalachian Mountains extending into West Virginia and
    
    Virginia.                       This historic range encompassed an estimated 500,000
    
    to 600,000 acres of old-growth red spruce forests.                           AR at 172.
    
                  In 1985, the FWS determined that the Virginia Northern
    
    Flying Squirrel and the Carolina Northern Flying Squirrel6 were
    
    endangered subspecies within the meaning of the ESA.
    
    Determination of Endangered Status for Two Kinds of Northern
    
    Flying Squirrel (“1985 Listing Rule”), 50 Fed. Reg. 26,999.                          In
    
                                                                
    5
        Citations to the Administrative Record are abbreviated “AR”.
     
    6
      Although the Carolina Northern Flying Squirrel was listed as
    endangered simultaneously with the Virginia Northern Flying
    Squirrel, only the Virginia Northern Flying Squirrel has been
    delisted and accordingly is the subject of this litigation.
    
    
                                                                   6
     
    particular, the 1985 Listing Rule stated that “[a]vailable
    
    evidence indicates that [the two subspecies] are rare and that
    
    their historical decline is continuing.”                                            Id.   Efforts to
    
    capture and identify individual squirrels, for the purpose of
    
    evaluating the population, had resulted in the capture of very
    
    few squirrels.                                 Id.             Considering the first of the five factors
    
    outlined by the ESA under § 1533(a)(1), the FWS explained in the
    
    1985 Listing Rule that:
    
                  [The two subspecies] now have a relictual
                  distribution, restricted to isolated areas at high
                  elevations, separated by vast stretches of unsuitable
                  habitat. In these last occupied zones, the squirrels
                  and their habitat may be coming under increasing
                  pressure from human disturbance, such as logging and
                  development of skiing and other recreational
                  facilities.
    
    50 Fed. Reg. 26,999, 27,000.7
    
                                   ii. The Recovery Plan
    
                  In 1990, in accordance with the requirements of § 1533(f),
    
    the FWS issued an Appalachian Northern Flying Squirrels Recovery
    
    Plan (“Recovery Plan”).                                           Ultimately, the objective of the
    
    
                                                                
    7
      The agency also concluded that the northern flying squirrel
    (including the subspecies at issue in the present litigation)
    was losing ground to the southern flying squirrel. In
    particular, the agency pointed out that “logging and other
    clearing activity has not only reduced the original habitat of
    the northern flying squirrel, but resulted in an invasion of
    this zone by the southern flying squirrel. . . . Regrowth in the
    cleared areas, if any, tended to be deciduous forest favored by
    [the southern flying squirrel], and hence the way was open for
    the spread of that species.” 50 Fed. Reg. 26,999, 27,000.
    
    
                                                                              7
     
    Recovery Plan was to set forth a plan that, if accomplished,
    
    would “remove [the Squirrel] from the list of endangered and
    
    threatened species.”                                           AR at 15092.   The agency envisioned that
    
    this would occur in two stages.                                          The Squirrel would first be
    
    “downlisted” from endangered status to threatened status and
    
    then later delisted altogether.                                          AR at 15092.   Accordingly, the
    
    agency first outlined three criteria necessary for downlisting
    
    the species from endangered to threatened status, stating that:
    
                  Downlisting from endangered to threatened status will
                  be possible when it can be documented that:
                  [1] squirrel populations are stable or expanding
                  (based on biennial sampling over a 10-year period) in
                  a minimum of 80% of all Geographic Recovery Areas
                  designated for the subspecies, [2] sufficient
                  ecological data and timber management data have been
                  accumulated to assure future protection and
                  management, and [3] [Geographic Recovery Areas] are
                  managed in perpetuity to ensure: (a) sufficient
                  habitat for population maintenance/expansion and
                  (b) habitat corridors, where appropriate elevations
                  exist, to permit migration among [Geographic Recovery
                  Areas].
    
    AR at 15092.8
    
                  In addition to the three factors necessary for downlisting,
    
    the agency identified a fourth factor that would need to be met
    
    to warrant delisting the Squirrel completely.                                           Specifically, the
    
    agency stated in the Recovery Plan that:
                                                                
    8
      The Recovery Plan identified five Geographic Recovery Areas
    (“GRAs”) that corresponded with the known distribution of the
    Squirrel at the time. The GRAs encompassed terrain in 10
    counties in West Virginia and one county in Virginia. AR at
    15090.
    
    
                                                                             8
     
                  De-listing will be possible when, in addition to the
                  above factors, it can be demonstrated that . . . the
                  existence of the high elevation forests on which the
                  squirrels depend is not itself threatened by
                  introduced pests, such as the balsam wooly adelgid or
                  by environmental pollutants, such as acid
                  precipitation or toxic substance contamination.
    
    AR at 15092.
    
                  Accompanying the criteria necessary for downlisting and
    
    ultimately delisting the species, the Recovery Plan also
    
    contained a detailed narrative describing numerous recovery
    
    tasks identified by the agency.9                                              A detailed implementation
    
    schedule was also included in the Recovery Plan, as well as
    
    guidelines for the identification and management of the
    
    Squirrels’ habitat.                                            AR at 15112-15118.10
    
    
                                                                
    9
      The scope of these tasks was quite ambitious. Tasks included,
    among others, establishing a recovery advisory committee,
    determining the Squirrels’ distribution, identifying and
    surveying potential habitats, monitoring known populations,
    conducting in-depth studies of the Squirrels’ habitat
    requirements, studying the relationship among population size,
    habitat size and habitat quality, studying the effects of timber
    harvest and other developments on Squirrels’ habitat, studying
    the diet of the species, investigating the potential
    accumulation of toxins – particularly pesticides and heavy
    metals – in the Squirrels’ food supply, studying the interaction
    of the endangered species with other species of squirrels,
    determining the genetic variability within the species,
    developing guidelines for private landowners and other
    individuals, implementing protection procedures and policies,
    and implementing educational programs. AR at 15093-15105.
    10
      In 2001, the FWS issued a relatively brief Appalachian
    Northern Flying Squirrels Recovery Plan Update (“Recovery Plan
    Update”). The primary purpose of the Recovery Plan Update was
    to amend the habitat identification guidelines that were
    contained in Appendix A of the original Recovery Plan. In
                                                                              9
     
                                iii. The 5-Year Review
    
                  The five-year review of the Squirrel began in 2003, despite
    
    the ESA’s requirement that “[t]he Secretary shall . . . conduct,
    
    at least once every five years, a review of all species [listed
    
    as endangered or threatened] and . . . determine on the basis of
    
    such review whether any such species should (i) be removed from
    
    such list; (ii) be changed in status from an endangered species
    
    to a threatened species; or (iii) be changed in status from a
    
    threatened species to an endangered species.”                                                                                            16 U.S.C.
    
    § 1533(c)(2).                              Early drafts of the report did not recommend
    
    delisting the Squirrel.11                                                   However, after internal editing, the
    
    
                                                                                                                                                                                                   
                                                                                                                                                                                                   
    particular, the agency noted that it may have placed too much
    emphasis on the use of live trapping and/or the placement and
    monitoring of manmade nest boxes to determine the presence of
    the Squirrel in a particular area. AR at 15212. The FWS stated
    that it now believed that the Squirrel was “less likely to use
    nest boxes or enter traps in good quality habitat due to the
    natural presence of numerous den sites and an abundance of
    preferred foods.” AR at 15212. Based on the additional
    information obtained since the 1990 Recovery Plan, the FWS
    concluded that “[r]ecovery of [the Squirrel] must go beyond
    protecting only those areas where the squirrel can be located
    through trapping and nest box placement and monitoring.” AR at
    15212. The amendments made no changes to any of the criteria
    contained in the 1990 Recovery Plan relating to downlisting or
    delisting the Squirrel.
    11
      For example, in a 2003 draft of the report, it states that
    “[a] change in classification is not warranted at this time.
    Additional information on population trends and ecosystem health
    would allow a more thorough and reliable review of the
    subspecies’ status.” AR at 6132.    The same 2003 draft states
    that “habitat loss has continued since listing on public and
    private lands,” and that “[h]abitat loss, alteration, and
    fragmentation . . . are still primary threats to the [Squirrel].
                                                                                                10
     
    final version of the five-year review document, the West
    
    Virginia Northern Flying Squirrel 5-Year Review: Summary and
    
    Evaluation (the “5-Year Review Summary”), altered course and
    
    recommended that the Squirrel be delisted in April of 2006.
    
                  Significantly, in the final version, the FWS decided not to
    
    evaluate the status of the Squirrel based on the parameters of
    
    the agency’s 1990 Recovery Plan.                                                                   In so doing, the FWS explained
    
    that, “[a]lthough the recovery criteria as they apply to [the
    
    Squirrel] were deemed objective, measurable, and adequate when
    
    the plan was approved in 1990 and updated in 2001, they do not
    
    meet current standards for adequacy. . . . [T]he plan is not
    
    actively used to guide recovery for two reasons: first, it was
    
    developed over 15 years ago and needs updating, and, second, its
    
    recovery criteria and actions are, for the most part, combined
    
    and generalized for both [the Carolina Northern Flying Squirrel]
    
    and [the Virginia Northern Flying Squirrel].”                                                                                            AR at 166.
    
    Instead of applying the criteria set forth in the Recovery Plan,
    
    the FWS conducted an analysis based on the five listing factors
    
    contained in § 1533(a)(1) of the ESA.12
    
    
                                                                                                                                                                                                   
                                                                                                                                                                                                   
    Acid deposition (industrial discharge), mineral extraction,
    private land development, highway construction, and exotic pests
    – instead of logging – are the leading sources of these
    stresses.” AR at 006125; AR at 6129.
    12
      With respect to § 1533(a)(1)(A) (“Factor A”), the agency
    concluded that the habitat occupied by the Squirrel was much
    more extensive than previously understood, and the Squirrel was
                                                                                                11
     
                  In light of the results of its 5-Year Review Summary, the
    
    agency concluded that “the species is persisting throughout its
    
    historic range . . . . Habitat loss is localized, and a
    
    substantial amount of habitat is now considered secure and
    
    improving in quality.                                              Therefore . . . it is evident that [the
    
    Squirrel] does not meet the definition of endangered or
                                                                                                                                                                                                   
                                                                                                                                                                                                   
    “more resilient in its habitat use than formerly thought[.]” AR
    at 173. FWS explained that the conclusions in 1985 were based
    on an underestimation of the ability of the Squirrel to utilize
    ecosystems other than the red spruce and spruce-hardwood
    ecosystem. AR at 181. With respect to § 1533(a)(1)(B) (“Factor
    B”), the agency noted that, contrary to its findings in 1985,
    “in the 21 years since listing the Service has not received any
    evidence that overutilization is a threat” and that “there is no
    evidence of commercial use in the pet trade or of recreational
    use of [the Squirrel].” AR at 176. Similarly, in the 5-Year
    Review Summary, the agency found no threats based on “disease
    and predation” under § 1533(a)(1)(C) (“Factor C”). Regarding
    § 1533(a)(1)(D)(“Factor D”), requiring the agency to consider
    “the inadequacy of existing regulatory mechanisms,” the agency
    came to the conclusion that “[o]verall, existing regulatory
    mechanisms in conjunction with continuing forest management
    provisions and landowner agreements make it highly likely that
    [the Squirrel] will be protected and managed for the long term
    across most of its range, irrespective of the subspecies’
    listing status under the federal ESA.”   AR at 178. Finally,
    regarding § 1533(a)(1)(E) (“Factor E”), addressing the “other
    natural or manmade factors” affecting a species, the FWS
    concluded that no serious threat to the Squirrel could be
    identified. Addressing the concern from 1985 that a parasite
    carried by the southern flying squirrel threatened the northern
    flying squirrels, the agency determined that the evidence had
    not been accurately interpreted and further concluded that
    “observations of [the Squirrel] capture[d] in the last 20 years
    . . . have shown no signs of sickness, debilitation, or death
    due to parasite infection.” AR at 178. The agency also
    analyzed a handful of potential threats that had arisen since
    the 1985 listing, including two forest pests (the hemlock woolly
    adelgid and the balsam woolly adelgid), beech bark disease, acid
    precipitation, and climate change. AR at 179-180.
    
    
                                                                                                12
     
    threatened.”      AR at 182.   The agency indicated that it would
    
    initiate the process to delist the species.
    
                iv.      Delisting of the Squirrel
    
         After the requisite notice and comment period, the FWS
    
    promulgated the Delisting Rule on August 26, 2008.      73 Fed. Reg.
    
    50,226.     The Delisting Rule largely reflects the conclusions
    
    drawn in the 5-Year Review Summary issued in 2006.      In
    
    particular, the decision to delist the Squirrel in 2008 appears
    
    to have been prompted principally by a conclusion that the
    
    Squirrel was not as rare as was previously believed.      As the
    
    agency explained in the Delisting Rule:
    
         At the time of listing, the [Squirrel] was thought to
         be an extremely rare and declining taxon that had
         disappeared from most of its historical range. We now
         know that occupancy of available habitat has increased
         and is much more widespread and well connected than
         formerly thought, and the geographic extent of the
         [Squirrel’s] range approximates historical range
         boundaries . . . . Additionally, we have learned that
         the [Squirrel] has adapted to changes in the spruce
         ecosystem over the past hundred years, and can
         successfully exploit the existing habitat conditions
         throughout the landscape.
    
    AR at 20.
    
         As the agency had done in the 5-Year Review, it assessed
    
    the species based upon the five factors contained in
    
    § 1533(a)(1) and did not apply all of the criteria in the
    
    Recovery Plan.     (In its analysis of the five factors, the agency
    
    reached substantially the same conclusions as the 5-Year Review
    
    
                                        13
     
    Summary.)    In so doing, the agency explained in the Delisting
    
    Rule its position that “[r]ecovery plans are not regulatory
    
    documents and are instead intended to provide guidance to the
    
    Service, States, and other partners on methods of minimizing
    
    threats to listed species and on criteria that may be used to
    
    determine when recovery is achieved.”   AR at 1.   The agency went
    
    on to further explain that:
    
         There are many paths to accomplishing recovery of a
         species, and recovery may be achieved without all
         criteria being fully met. For example, one or more
         criteria may have been exceeded while other criteria
         may not have been accomplished. . . . In other cases,
         recovery opportunities may have been recognized that
         were not known at the time the recovery plan was
         finalized. These opportunities may be used instead of
         methods identified in the recovery plan. Likewise,
         information on the species may be learned that was not
         known at the time the recovery plan was finalized.
         This new information may change the extent to which
         criteria need to be met for recognizing recovery of
         the species. Overall, recovery of species is a
         dynamic process requiring adaptive management, and
         judging the degree of recovery of a species is also an
         adaptive management process that may, or may not,
         fully follow the guidance provided in a recovery plan.
    
    AR at 1-2.
    
         Using this approach to recovery plans, the agency then
    
    determined that “[n]ew information on the [Squirrel] has been
    
    learned that was not known at the time the recovery plan and the
    
    amendment were finalized. . . . This new information changes the
    
    extent to which two of the four Recovery Plan criteria need to
    
    be met for recognizing recovery of the subspecies.”   AR at 2.
    
    
                                     14
     
    The two criteria affected were the first and the third criteria
    
    of the Recovery Plan, relating to the Squirrel population and
    
    the management of the GRAs, respectively.
    
                  As noted above, the first criterion set out in the Recovery
    
    Plan required that downlisting or delisting would be
    
    possible “when it can be documented that: . . .                                squirrel
    
    populations are stable or expanding (based on biennial sampling
    
    over a 10-year period) in a minimum of 80% of all Geographic
    
    Recovery Areas designated for the subspecies.”                                AR at 15092.
    
    Nonetheless, the agency did not rely upon population trend data
    
    when delisting the species, as was contemplated by the first
    
    criterion in the Recovery Plan.                                 Instead, the agency relied upon
    
    evidence of “persistence” of the species.                                AR at 2, 14.   The
    
    agency defined persistence as “continuing captures of [the
    
    Squirrel] over multiple generations at previously documented
    
    sites throughout the historical range.”                                AR at 2.13
    
                  Using the persistence data, the agency concluded that the
    
    intent of the first criterion, namely a “robust” population, had
    
    been met.                       As the agency explained in an analysis appended to
    
    the Delisting Rule:
    
    
    
                                                                
    13
      The agency further explained that, “[b]ecause [the Squirrel]
    first reproduces at 1-2 years, and has a relatively short life
    span, averaging approximately 3 years, persistence at a single
    monitoring site over 5 years indicates successful reproduction
    across multiple (three to five) generations.” AR at 2.
                                                                   15
     
          The intent of [the first] criterion was to document
          that populations are robust; i.e., stable or expanding
          trends across most of the core areas of [the Squirrel]
          distribution. Based upon use of the best available
          scientific data, we conclude that the intent of this
          criterion has been met, considering that there has
          been no extirpation documented at any site in over 20
          years of monitoring (13-20 generations), and existing
          populations appear to be stable (persisting for
          multiple generations) across all seven core areas of
          [the Squirrel] distribution. In addition, the
          [Squirrel] is much more widespread than the five GRAs
          originally designated in the recovery plan. The
          number and size of the GRAs has increased, and the
          current range of the [Squirrel] approximates 85% of
          its historic range.
    
    Analysis of Recovery Plan Criteria for the West Virginia
    
    Northern Flying Squirrel, AR at 39.
    
          Similarly, the agency asserted that the “intent” had been
    
    met with respect to the third criterion of the Recovery Plan,
    
    which provided that downlisting or delisting would be possible
    
    when it could be documented that the five GRAs identified in the
    
    Recovery Plan “are managed in perpetuity.”   AR at 15092.   The
    
    agency concluded that the intent of this criterion had been met
    
    because “79% of the [Squirrel] habitat (189,785 acres) is likely
    
    to remain protected from logging and other disturbances for the
    
    foreseeable future,” and “[a]ll of the five original GRAs in the
    
    recovery plan are predominantly in public ownership[.]”     AR at
    
    46.
    
          Plaintiffs initiated this lawsuit challenging, among other
    
    things, the agency’s conclusion that it need not do more than
    
    
                                    16
     
    meet the “intent” of the criteria laid out in the Recovery Plan.
    
    Plaintiffs’ motion for summary judgment and defendants’ cross
    
    motion are now ripe for consideration by the Court.
    
    II.   STANDARD OF REVIEW
    
          “Since the ESA does not specify a standard of review,
    
    judicial review is governed by Section 706 of the Administrative
    
    Procedure Act.”   Gerber v. Norton, 
    294 F.3d 173
    , 178 n.4 (D.C.
    
    Cir. 2002) (quoting Cabinet Mountains Wilderness v. Peterson,
    
    
    685 F.2d 678
    , 685 (D.C. Cir. 1982)).   The Administrative
    
    Procedure Act (“APA”), 5 U.S.C. §§ 701-706, provides a right to
    
    judicial review of final agency actions.   Under the APA, 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, the court must determine whether the agency
    
    “considered the relevant factors and articulated a rational
    
    connection between the facts found and the choice made.” Keating
    
    v. FERC, 
    569 F.3d 427
    , 432 (D.C. Cir. 2009) (quoting Balt. Gas &
    
    Elec. Co. v. Natural Res. Def. Council, Inc., 
    462 U.S. 87
    , 105
    
    (1983)).
    
          Where a court is reviewing an agency’s interpretation of a
    
    statute that the agency is charged with administering, the
    
    appropriate standard of review is the framework set forth in
    
    Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
    
                                    17
     
    U.S. 837 (1984).   In particular, “[u]nder step one of Chevron,
    
    [the court] ask[s] whether Congress has directly spoken to the
    
    precise question at issue, in which case [the court] must give
    
    effect to the unambiguously expressed intent of Congress.” Sec’y
    
    of Labor, Mine Safety & Health Admin. v. Nat'l Cement Co. of
    
    California, Inc., 
    494 F.3d 1066
    , 1073 (D.C. Cir. 2007)(internal
    
    quotations omitted).   If the court concludes that the “‘statute
    
    is silent or ambiguous with respect to the specific issue’. . .
    
    [the court] move[s] to the second step and defer[s] to the
    
    agency’s interpretation as long as it is ‘based on a permissible
    
    construction of the statute.’”   Nat'l Cement Co., Inc., 494 F.3d
    
    at 1074 (quoting Chevron, 467 U.S. at 843).
    
    III. ANALYSIS
    
         Plaintiffs’ principal argument in this lawsuit is that
    
    Section 4(f) of the ESA, which covers the use of recovery plans
    
    by the agency, imposes obligations on the FWS that were not
    
    fulfilled in connection with the delisting of the Squirrel.    In
    
    particular, plaintiffs argue that “when FWS establishes recovery
    
    criteria for a species or subspecies in a formal recovery plan,
    
    the agency is required to abide by those criteria in making
    
    status determinations unless it amends the recovery plan in the
    
    manner ordained by the ESA.”   Pls.’ Mem. at 25.
    
         In response to plaintiffs’ position, defendants argue that
    
    because the ESA “is clear on its face that the [agency’s]
    
                                     18
     
    delisting analysis is based on the threats found under the five
    
    factors provided by [16 U.S.C. §1533(a)],” the decision to
    
    delist a species is not “governed by . . . the ‘objective,
    
    measurable criteria’ specified in a recovery plan.”                                         Defs.’
    
    Reply at 6-7.                               Defendants argue that the purpose of recovery
    
    plans is merely to “establish guidance and direction that can be
    
    meaningfully utilized and implemented to recover a species.”
    
    Defs.’ Mem. at 35; see also AR at 1 (“Recovery plans are not
    
    regulatory documents and are instead intended to provide
    
    guidance . . . on methods of minimizing threats to listed
    
    species and on criteria that may be used to determine when
    
    recovery is achieved.                                          There are many paths to accomplishing
    
    recovery of a species, and recovery may be achieved without all
    
    criteria being fully met.”).14
    
                  Defendants’ arguments and the position taken by the agency
    
    in the Delisting Rule raise two questions for the Court.                                         The
    
    first issue is whether the agency’s decision to set aside two of
                                                                
    14
      Defendants also argue that “Congress did not impose a mandate
    to the [agency] to ‘revise’ recovery plans based on new or
    emerging information, belying Plaintiffs’ claims that the
    [agency] must revise a recovery plan prior to conducting an
    inquiry under [16 U.S.C. § 1533(a)].” Defs.’ Mem. at 34; see
    also Defs.’ Reply at 7 (“the ESA imposes no obligation to
    continually update or revise a recovery plan.”) However, as is
    discussed below, the Court finds that the agency did in fact
    revise the Recovery Plan for the Squirrel when it essentially
    abandoned two of the four criteria contained in its own Recovery
    Plan. Accordingly, whether or not the ESA requires the agency
    to revise a recovery plan under certain circumstances is not
    determinative. 
                                                                           19
     
    the four criteria in its Recovery Plan constituted a revision to
    
    the Recovery Plan.   The second question is whether the agency’s
    
    position that it met the “intent” of the Recovery Plan criteria
    
    satisfies the requirements of the ESA.   Each of these topics is
    
    discussed in turn.
    
         A.   The Agency’s Decision to Set Aside the Criteria
              Contained in the Recovery Plan
    
         Defendants’ arguments rely on the position that recovery
    
    plans merely provide guidance, which may be set aside without
    
    such an action constituting a revision to the Recovery Plan,
    
    because the ESA only requires the agency to consider the five
    
    factors of § 1553(a)(1), using the best available science, when
    
    delisting a species.   Defs.’ Mem. at 36; Defs.’ Reply at 9
    
    (“[W]hile the criteria [of a recovery plan] help to inform a
    
    delising analysis, the criteria do not control a delisting
    
    analysis.”).
    
         There are two flaws in the approach taken by the agency and
    
    the defendants’ arguments in this litigation.   First, the
    
    statutory language of the ESA makes it clear that the obligation
    
    to “develop and implement” recovery plans and to include
    
    objective and measurable criteria in those recovery plans are
    
    mandatory aspects of the ESA.   As noted above, the ESA mandates
    
    that “[t]he Secretary shall develop and implement [recovery]
    
    plans . . . for the conservation and survival of endangered
    
    
                                    20
     
    species and threatened species[.]”                                         16 U.S.C. § 1533(f)(1)
    
    (emphasis added).15                                        Recovery plans fulfill one of the purposes
    
    of the ESA that the FSW “do far more than merely avoid the
    
    elimination of protected species. It must bring these species
    
    back from the brink so that they may be removed from the
    
    protected class, and it must use all methods necessary to do
    
    so.”             Defenders of Wildlife v. Andrus, 
    428 F. Supp. 167
    , 170
    
    (D.D.C. 1977).
    
                  Furthermore, Congress did not stop with a simple
    
    requirement to develop and implement a recovery plan.                                        The ESA
    
    requires that each recovery plan shall, among other things, “to
    
    the maximum extent practicable . . . incorporate in each
    
    plan . . . objective, measurable criteria which, when met, would
    
    result in a determination, in accordance with the provisions of
    
    this section, that the species be removed from the list[.]”                                         16
    
    U.S.C. § 1533(f)(1)(B).16                                        In the event the agency finds it
    
    necessary to revise a recovery plan, Congress expressly provides
    
    a vehicle for doing so: the statute states that “[t]he Secretary
                                                                
    15
      The statute does provide an exception. A recovery plan is not
    required if the Secretary “finds that such a plan will not
    promote the conservation of the species.” 16 U.S.C.
    § 1533(f)(1). However, defendants have not taken the position
    that a recovery plan would not have “promoted the conservation”
    of the Squirrel, and, in any event, the agency did indeed create
    a recovery plan for the Squirrel. The exception therefore
    appears inapplicable in the instant case.
    16
      In the instant case, four objective, measurable criteria were
    clearly laid out on page 18 of the Recovery Plan. AR at 15092.
                                                                          21
     
    shall, prior to final approval of a new or revised recovery
    
    plan, provide public notice and an opportunity for public review
    
    and comment on such plan.”   16 U.S.C. § 1533(f)(4)(emphasis
    
    added).
    
         The legislative history reinforces the unambiguous meaning
    
    of the statute.   In conjunction with the 1988 amendment to the
    
    ESA, which added the “objective, measurable criteria”
    
    requirement, Congress explained that:
    
         Section 4(f) of the Act is amended to require that
         each recovery plan incorporate descriptions of site-
         specific management actions to achieve recovery,
         criteria by which to judge success of the plan, and
         time frames and estimates of costs to carry out the
         planned recovery. . . . These descriptions, criteria,
         and estimates currently are not provided uniformly in
         recovery plans. Incorporation of this information
         will ensure that plans are as explicit as possible in
         describing the steps to be taken in the recovery of a
         species. . . . The requirement that plans contain
         objective, measurable criteria for removal of a
         species from the Act’s lists and timeframes and cost
         estimates for intermediate steps toward that goal will
         provide a means by which to judge the progress being
         made toward recovery.
    
    S. Rep. No. 240, 100th Cong., 2d. Sess. 111-32 (1988), reprinted
    
    in 1988 U.S.C.C.A.N. 2700, 2708-2709.
    
         In light of the above statutory language and accompanying
    
    legislative history, the Court concludes that the agency’s
    
    decision to set aside two of the criteria in its Recovery Plan
    
    constituted a revision to the Recovery Plan within the meaning
    
    
    
    
                                    22
     
    of the ESA.   Accordingly, the agency was required to employ
    
    notice-and-comment rulemaking.
    
         The second flaw in defendants’ position is that it would
    
    render an explicit provision of the ESA meaningless, violating
    
    the “cardinal principle of statutory construction” that Courts
    
    shall “give effect, if possible, to every clause and word of a
    
    statute . . . rather than to emasculate an entire section.”
    
    Bennett v. Spear, 
    520 U.S. 154
    , 173 (1997)(internal quotations
    
    omitted).   Defendants have taken the position that because
    
    § 1533(a)(1), containing the five factors discussed above, fails
    
    to mention recovery plans, Congress intended these factors to be
    
    the only restrictions on the agency’s ability to delist a
    
    species.    However, § 1533(f) must be understood as imposing
    
    separate, distinct obligations on the agency.   Merely because
    
    § 1533(a) imposes one set of requirements on the agency does not
    
    mean that § 1533(f), imposing separate obligations on the
    
    agency, may be disregarded.   Permitting the FWS to set aside two
    
    of the four criteria in its own Recovery Plan while taking the
    
    position that such an action was not a revision to the Recovery
    
    Plan, would render the provision requiring the agency to subject
    
    its revisions to public notice and comment meaningless.
    
         Even assuming that defendants correctly assert that the
    
    Recovery Plan for the Squirrel was outdated and contained
    
    “criteria [that] did not relate directly to threats to the
    
                                     23
     
    Squirrel under the five factors that formed the basis of the
    
    listing decision,” Defs.’ Mem. at 6, such a conclusion merely
    
    supports a revision of the Recovery Plan.   Congress clearly
    
    contemplated that revisions to recovery plans might become
    
    necessary, and the Secretary is plainly required to employ
    
    notice-and-comment rulemaking and “consider all information
    
    presented during the public comment period prior to approval of
    
    the plan.”   16 U.S.C. § 1533(f)(4).   Similarly, defendants’
    
    argument that “should the provisions of a recovery plan no
    
    longer constitute the best available scientific data, the
    
    [agency] cannot ignore recent and credible scientific data
    
    simply to defer to the contents of a recovery plan,”   Defs.’
    
    Mem. at 31-32, again does not explain the agency’s failure to
    
    comply with the procedures laid out in § 1533(f)(4) for the
    
    revision of recovery plans.
    
         Defendants also point to the ESA’s directive that the
    
    agency “shall, to the maximum extent practicable . . .
    
    incorporate in each plan . . . objective, measurable criteria
    
    which, when met, would result in a determination . . . that the
    
    species be removed from the list[.]”   16 U.S.C. § 1533(f)(1).
    
    Defendants focus on the use of the word “would” in support of
    
    their argument that “the text expressly recognizes a
    
    hypothetical and contingent possibility.”   Defs.’ Mem. at 33.
    
    However, the language cited by defendants does not give the
    
                                    24
     
    agency discretion to revise its recovery plan without
    
    consideration of the procedural requirements set forth in
    
    § 1533(f)(4); rather, it imposes on the agency an additional
    
    requirement that the recovery plan criteria reflect certain
    
    goals, i.e., that the criteria enable the eventual delisting of
    
    the species.   As this District has already held, “the word
    
    ‘would’ . . . is used in the conclusion of a conditional
    
    sentence to express a contingency or possibility.   Therefore,
    
    ‘would result in a determination . . . that the species be
    
    removed from the list’ sets a target to be aimed at by meeting
    
    the recovery goals set forth in the Plan.”    Fund for Animals v.
    
    Babbit, 
    903 F. Supp. 96
    , 103 (D.D.C. 1995)(internal citations
    
    omitted).
    
         B.     Whether the Agency Complied with the ESA by
                Considering the “Intent” of the Recovery Plan Criteria
    
         In the Delisting Rule, the agency conceded that neither the
    
    first criterion, “stable or expanding populations (based on
    
    biennial sampling over a ten-year period) in a minimum of 80% of
    
    the Geographic Recovery Areas,” nor the third criterion, “the
    
    management of the Geographic Recovery Areas in perpetuity,” were
    
    actually met at the time of delisting.   However, the agency
    
    takes the position that the consideration of other data met the
    
    “intent” of these two criteria such that the agency’s actions
    
    did not constitute a revision to the recovery plan.   Defs.’ Mem.
    
    
                                     25
     
    at 14-15; AR at 37 (Delisting Rule states that “it is not
    
    practicable or necessary to measure actual [Squirrel] population
    
    numbers.”).
    
          The agency argues that the intent of the first criterion
    
    was met because the data collected showed a “robust population.”
    
    Defs.’ Mem. at 15; AR at 39.   In particular, defendants cite the
    
    fact that, whereas in 1981 only one individual Squirrel at one
    
    individual survey site had been identified, by 2006 the number
    
    of survey sites had risen to 109 and the number of captured
    
    Squirrels to 1,198.   Defs.’ Mem. at 14-15; AR at 37-39.
    
          Similarly, the defendants argue that the agency properly
    
    concluded that the intent of the third criterion had been met
    
    because “the present circumstances are significantly improved,”
    
    Defs.’ Mem. at 15, and “the original goal of permanent habitat
    
    protection of a few small areas is no longer necessary.”    AR at
    
    41.   Essentially, at the time of the listing and at the time the
    
    recovery plan was written, both the number of individual
    
    Squirrels and the number of occupied sites were believed to be
    
    extremely limited.    According to the defendants, “[i]n such
    
    circumstances, prudency required permanent protection of those
    
    few remaining Squirrel individuals[.]”   Defs.’ Mem. at 15.
    
    However, once the agency determined that the present
    
    circumstances were significantly improved, such protections were
    
    no longer needed.    In support of this position, defendants cite
    
                                     26
     
    four factors relating to the recovery of the Squirrel: (1) the
    
    Squirrel spans roughly 85% of its former range; (2) all five of
    
    the GRAs identified in the 1985 Listing Rule are sufficiently
    
    interconnected to permit migration; (3) all five of the original
    
    Geographical Recovery Areas are now “predominantly” in public
    
    ownership; and (4) nearly 80% of all potential Squirrel habitat
    
    is protected from logging through various measures.    Defs.’ Mem.
    
    at 15.
    
            Finally, the defendants argue that it would be illogical to
    
    require the agency to meet the criteria of an outdated recovery
    
    plan.    Regarding the Squirrel’s Recovery Plan in particular,
    
    defendants assert that “[o]lder recovery plans, such as this,
    
    typically focused on demographic parameters (e.g., population
    
    numbers, trends, and distribution), which are valid and useful
    
    sources of information, but alone do not determine a species’
    
    status.”    Defs.’ Mem. at 6.
    
            The court is not persuaded that the agency’s decision to
    
    meet only the “intent” of its Recovery Plan criteria for the
    
    Squirrel complied with the ESA.    The statute unambiguously
    
    requires that criteria must be “objective” and “measurable.”       16
    
    U.S.C. § 1533(f)(1)(B)(ii).     Here, no one contests that the
    
    original criteria were objective and measurable when they were
    
    adopted as part of the Recovery Plan.    The first criterion, for
    
    example, called for the agency to downlist or delist only when
    
                                      27
     
    it could be documented that “squirrel populations are stable or
    
    expanding (based on biennial sampling over a 10-year period) in
    
    a minimum of 80% of all Geographic Recovery Areas designated for
    
    the subspecies.”   AR at 15092.   Instead of applying this
    
    Recovery Plan criterion, however, the agency now takes the
    
    position that the intent of this criterion can be met with
    
    persistence data rather than population data because, according
    
    to the agency, the “intent of this recovery criterion was to
    
    document that populations are robust.”   AR at 37.   Using
    
    “robust population” as a criterion does not satisfy the
    
    statutory requirement that the recovery plan criteria be
    
    “measurable” and “objective”.
    
         At the very least, the alteration of the first and third
    
    criteria in this manner is a revision to the recovery plan that
    
    ought to have been subjected to public notice and comment, as
    
    required by § 1533(f)(4).   Defendants’ attempts to persuade the
    
    Court that subjecting a revised recovery plan to notice-and-
    
    comment rulemaking would be “illogical” and a “make-work
    
    exercise” ignore Congress’ explicit instruction that the public
    
    be given an opportunity to comment on revisions to recovery
    
    plans. The statutory language is plain, and the Court therefore
    
    “must give effect to the unambiguously expressed intent of
    
    Congress.”   Nat'l Cement Co. of California, 494 F.3d at 1073.
    
    
    
                                      28
     
    IV.           REMEDY
    
                  The Court concludes that vacating the Delisting Rule is the
    
    appropriate course of action in light of the agency’s failure to
    
    comply with Section 4(f) of the ESA.17                                  In deciding whether to
    
    vacate an agency’s rule, this Circuit has focused on two
    
    factors, namely the “seriousness of the order’s deficiencies
    
    (and thus the extent of doubt whether the agency chose
    
    correctly) and the disruptive consequences of an interim change
    
    that may itself be changed.”                                   Int’l Union, United Mine Workers
    
                                                                
    17
      The Court finds sufficient basis to remand to the agency on
    this ground alone; therefore, other arguments advanced by
    plaintiffs are not addressed. However, the Court does note that
    the agency appears to have taken the position that Factor D,
    requiring the agency to consider the “inadequacy of existing
    regulatory mechanisms,” need not be separately analyzed if no
    threats are identified under Factors A, B, C or E. In
    particular, the agency stated in its Delisting Rule that
    “[c]urrently, all threats under Factors A-C, and E have been
    eliminated or abated, and no regulatory mechanisms are needed to
    delist the [Squirrel]. Therefore, the inadequacy of regulatory
    mechanisms is not considered a threat to the subspecies.” AR at
    19. As plaintiffs correctly state, and defendants themselves
    seem to acknowledge, the ESA mandates that a species be listed
    as endangered or threatened if any one of the five factors
    contained in § 1533(a)(1) is implicated. 16 U.S.C.
    § 1533(a)(1); AR at 13 (“Species are listed or delisted under
    the Act based on whether they are threatened or endangered by
    one or more Factors[.]”); see also Am. Wildlands v. Kempthorne,
    
    530 F.3d 991
    , 994 (D.C. Cir. 2008). Accordingly, to the extent
    the agency’s decision was based on an analysis that did not
    separately assess the adequacy of existing regulatory
    mechanisms, the agency is directed to do so on remand.
    
     
    
                                                                    29
     
    of Am. v. Federal Mine Safety & Health Admin., 
    920 F.2d 960
    , 967
    
    (D.C. Cir. 1990); see also Milk Train v. Veneman, 
    310 F.3d 747
    ,
    
    755-756 (D.C. Cir. 2002).
    
         Here, FWS failed to comply with unambiguous provisions of
    
    the ESA, and the Court is not inclined to speculate what the
    
    consequence of a properly revised recovery plan will be on the
    
    status of this species.     Furthermore, as this Court previously
    
    held in Humane Society v. Kempthorne 
    579 F. Supp. 2d 7
    , 21
    
    (D.D.C. 2008) “the ESA's preference for protecting endangered
    
    species counsels strongly in favor of vacating the [Delisting]
    
    Rule while FWS revisits its statutory interpretation.” Id.
    
    (citing NRDC v. U.S. Dep't of the Interior, 
    275 F. Supp. 2d 1136
    , 1145 (C.D. Cal. 2002)).    The Court therefore will vacate
    
    the Delisting Rule and remand it to the agency for further
    
    proceedings.
    
    V.   CONCLUSION
    
         For the foregoing reasons, plaintiffs’ motion for summary
    
    judgment is hereby GRANTED, and defendants’ cross-motion for
    
    summary judgment is DENIED.     The Delisting Rule is VACATED, and
    
    this matter is REMANDED to the Fish and Wildlife Service for
    
    further proceedings consistent with the Court’s ruling.    An
    
    appropriate Order accompanies this Memorandum Opinion.
    
    SIGNED:   Emmet G. Sullivan
              United States District Court Judge
              March 25, 2011
    
                                      30