Center for Biological Diversity v. Ashe ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR BIOLOGICAL
DIVERSITY, et al.,
Plaintiffs,
Civil Action No. 15-477 (EGS)
v.
MARGARET EVERSON, et al.,
Defendants
and
AMERICAN FOREST & PAPER
ASSOCIATION, et al.,
Defendant-Intervenors.
DEFENDERS OF WILDLIFE,
Plaintiff,
v. Civil Action No. 16-910 (EGS)
(Consolidated with 15-cv-477)
MARGARET EVERSON, et al.,
Defendants
and
AMERICAN FOREST & PAPER
ASSOCIATION, et al.,
Defendant-Intervenors.
MEMORANDUM OPINION
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.
2
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, 1 the relevant law, the full administrative record, and
for the reasons set forth below, the Court finds that FWS’s
decision to list the Bat as threatened under the ESA was
arbitrary and capricious. Accordingly, the Court GRANTS IN PART
AND DENIES IN PART plaintiffs’ motion for summary judgment and
GRANTS IN PART AND DENIES IN PART Federal defendants’ and the
defendant-intervenors’ motions for summary judgment.
I. Background
A. Statutory and Regulatory Background
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 (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
1 The Court appreciates the analysis provided by amicus curiae.
3
Congress in enacting this statute was to halt and reverse the
trend toward species extinction, whatever the cost.” Tennessee
Valley Auth., 437 U.S. at 184.
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
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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
solely on the basis of the best scientific and
commercial data available ... after conducting
a review of the status of the species and after
5
taking into account those efforts, if any,
being made by any State or foreign nation, or
any political subdivision of a State or
foreign nation, to protect such species . . .
.
16 U.S.C. § 1533(b)(1)(A).
B. Factual and Procedural Background
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 no apparent
preference for tree species. Id. The maximum lifespan of the Bat
is estimated at 18.5 years, and adult females give birth to a
single pup each year. Id. at 17,988.
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,
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A recent study revealed that the northern
long-eared bat has experienced a precipitous
population decline, estimated at
approximately 96 percent (from hibernacula
data) in the northeastern portion of its
range, due to the emergence of WNS. WNS has
spread to approximately 60 percent of the
northern long-eared bat’s range in the United
States, and if the observed average rate of
spread of Pd continues, the fungus will be
found in hibernacula throughout the entire
species’ range within 8 to 13 years based on
the calculated rate of spread observed to date
(by both the Service and COSEWIC[ 2]). We expect
that similar declines as seen in the East and
portions of the Midwest will be experienced in
the future throughout the rest of the species’
range.
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
2 COSEWIC stands for Committee on the Status of Endangered
Wildlife in Canada.
7
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,
Historically, the [Bat] was widely distributed
in the eastern part of its range,” but due to
the arrival of WNS, while the Bat “continue[s]
to be distributed across much of the
historical range, . . . there are many gaps
within the range where bats are no longer
detected or captured, and in other areas,
their occurrence is sparse. . . . Since WNS
has been documented, multiple hibernacula now
have zero reported northern long-eared bats.
Frick et al. (2015, p. 6) documented the local
extinction of northern long-eared bats from 69
percent of sites included in their analyses
(468 sites where WNS has been present for at
least 4 years in Vermont, New York,
Pennsylvania, Maryland, West Virginia, and
Virginia).
Id. at 17,976-77. The midwestern section includes Missouri,
Illinois, Iowa, Indiana, Ohio, Michigan, Wisconsin, and
Minnesota, with WNS documented in all but Iowa and Minnesota,
8
where the fungus that causes WNS has been confirmed. Id. at
17,979. “[H]istorically, [the Bat] was considered one of the
more frequently encountered bat species in the region,” id., and
“clear declines in winter populations of [the Bat] have been
observed in Ohio and Illinois,” id. The southern section
includes Alabama, Arkansas, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, Oklahoma, South Carolina, and
Tennessee. Id. at 17,980. The Bat is considered more common in
Kentucky and Tennessee and less common in the other states. Id.
The only state in this section with survey data is Kentucky, and
in Kentucky, WNS has been documented “with mortality confirmed
at many sites.” Id. The western portion includes South Dakota,
North Dakota, Nebraska, Wyoming, Montana, and Kansas. Id. at
17,983. Historically, the Bat is less common in this portion
than in the northern portion of its range. Id. In particular,
the Bat “is considered common in only small portions of the
western part of its range (e.g., Black Hills of South Dakota)
and uncommon or rare in the western extremes of the range (e.g.,
Wyoming, Kansas, Nebraska)” although “there has been limited
survey effort throughout much of this part of the [Bat’s]
range.” Id. As of the publication of the Listing Rule, WNS had
not been detected in the western portion of the range. Id.
FWS considers the portions of the range affected by WNS
likely to be the core of the Bat’s range:
9
Information provided to the Service by a
number of State agencies demonstrates that the
area currently (as of 2015) affected by WNS
likely constitutes the core of the species’
range, where densities of northern long-eared
bats were highest prior to WNS. Further, it
has been suggested that the species was
considered less common or rare in the extreme
southern, western, and northwestern parts of
its range (Caceres and Barclay 2000, p. 2;
Harvey 1992, p. 35), areas where WNS has not
yet been detected. The northern long-eared bat
has been extirpated from hibernacula where
WNS, has been present for a significant number
of years (e.g., 5 years), and has declined
significantly in other hibernacula where WNS
has been present for only a few years. A
corresponding decline on the summer landscape
has also been witnessed. As WNS expands to
currently uninfected areas within the range of
northern long-eared bat, there is the
expectation that the disease, wherever found,
will continue to negatively affect the
species. WNS is the predominant threat to the
northern long-eared bat rangewide, and it is
likely to spread to the entirety of the
species’ 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
10
Ashe Re: Determination of Threatened Status for Polar Bears
[hereinafter the “Polar Bear Memo.”]. FWS explained:
In at least one type of situation, where a
species still has relatively widespread
distribution, but has nevertheless suffered
ongoing major reductions in numbers, range or
both as a result of factors that have not been
abated, the Service acknowledges that no
distinct determination exists between
“endangered” and “threatened.” In such cases:
“Whether a species . . . is ultimately an
endangered species or a threatened species
depends on the specific lift history and
ecology of the species, the nature of the
threats, and population numbers and trends.
Even species that have suffered fairly
substantial declines in numbers or range are
sometimes listed as threatened rather than
endangered. (Polar Bear Memo, p. 6).”
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
11
Bat is appropriately categorized as a threatened species, FWS
stated that
WNS has impacted the species throughout much
of its range, and can be expected to . . .
within 8 to 13 years . . . spread and impact
the species throughout its entire range. Once
WNS becomes established in new areas, we can
expect similar, substantial losses of bats
beginning in the first few years following
infection (Factor C). There is currently no
effective means to stop the spread of the
disease, or to minimize bat mortalities
associated with the disease. The spread of WNS
and its expected impact on the [Bat] are
reasonably foreseeable, and thus the species
is likely to become an endangered species
within the foreseeable future.
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:
1. “WNS has not yet been detected throughout
the entire range of the species, and will not
likely affect the entire range for . . . most
likely 8 to 13 years.”
2. “[I]n 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.”
3. “[T]he species still persists in some
areas impacted by WNS, thus creating at least
some uncertainty as to the timing of the
extinction risk posed by WNS. Even in New
York, where WNS was first detected in 2007,
12
small numbers of [Bats] persist . . . despite
the passage of approximately 8 years.”
4. “[C]oarse population estimates where
they exist for this species indicate a
population of potentially several million
[Bats] still on the landscape across the range
of the species.”
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”)).
II. Standard of Review
A. Review of FWS’s Listing Decisions
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
13
Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105,
(1983)).
The standard of review under the APA is a narrow one.
Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416,
(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 (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
14
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’”).
B. Review of FWS’s Statutory Interpretations
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 (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. “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. 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 843 n.9; see
also Bell Atlantic Tel. Co. v. FCC, 131 F.3d 1044, 1047 (D.C.
Cir. 1997). If the court concludes that the statute is either
15
silent or ambiguous with respect to the precise question at
issue, the second step of the court’s review process is to
determine whether the interpretation proffered by the agency is
“based on a permissible construction of the statute.” Chevron,
467 U.S. at 843. The court must defer to agency interpretations
that are not “arbitrary, capricious, or manifestly contrary to
the statute.” Id. at 844.
“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 (2001); see also Christensen v. Harris County, 529 U.S. 576,
587 (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 (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));
Power v. Barnhart, 292 F.3d 781, 786 (D.C. Cir. 2002). The
“power to persuade” is determined by “the thoroughness evident
16
in [the agency's] consideration, the validity of its reasoning,
[and] its consistency with earlier pronouncements.” Skidmore,
323 U.S. at 140. 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 (internal quotation marks and citations
omitted).
III. Analysis
A. The Threatened Determination is Arbitrary and Capricious
1. The “40% of Total Geographic Range” Rationale is not
Supported by the Best Available Scientific Data
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
17
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 and not considering or expressing a view about the
five remaining challenges).
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,”
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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
19
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
20
areas was unlikely to be hastened by any migratory behavior.
Fed. Defs.’ Reply, ECF No. 63 at 20-21.
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
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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.
2. FWS Did Not Consider the Cumulative Effects of
Threats in Explaining the Basis for the Listing
Determination
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
22
“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 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.
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.
23
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:
There are several factors that affect the
northern long-eared bat; however, no other
threat is as severe and immediate to the
species persistence as WNS (Factor C). This
disease is the prevailing threat to the
species, and there is currently no known cure.
While we have received some information
concerning localized impacts or concerns
(unrelated to WNS) regarding the status of the
northern long-eared bat, it is likely true
that many North American wildlife species have
suffered some localized, isolated impacts in
the face of human population growth and the
continuing development of the continent.
Despite this, based upon available evidence,
the species as a whole appears to have been
doing well prior to WNS.
Id. at 18,021.
With this rationale, however, FWS ignored its own analysis.
Specifically, with regard to Factor A, FWS concluded that
24
“[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 (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, it failed to
articulate a rational connection between its own analysis and
25
its determination. Accordingly, the listing determination is
arbitrary and capricious. WildEarth Guardians v. Salazar, 741 F.
Supp. 2d 89, 103 (D.D.C. 2010) (finding that the Service’s
failure to consider cumulative impact of listing factors
rendered the agency’s decision not to reclassify the Utah
prairie dog arbitrary and capricious).
B. FWS’s Interpretation of “In Danger of Extinction”
Articulated in the Polar Bear Memo is Persuasive
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.
26
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:
27
As a supplemental explanation of the listing
decision that was made previously for the
Court to consider along with the
administrative record in evaluating the
Listing Rule, this explanation does not set
forth a new statement of agency policy, nor is
it a “rule” as defined in the Administrative
Procedure Act. Indeed, given the narrow scope
of the remand, the Court determined that
notice-and-comment procedures were not
required. As the Court explained in ordering
this remand, it was not “require[ing] the
agency to adopt independent, broad-based
criteria for defining the statutory term “in
danger of extinction.” Mem. Op. at 24 n.18.
Thus, 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.
Furthermore, consistent with the Court’s
remand order, the Service did not conduct
additional fact-finding in the development of
this supplemental explanation. The
interpretation used in the Listing Rule is
supported by the administrative record already
lodged with the Court, as demonstrated more
fully in this memorandum.
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. 3 Federal
3 Plaintiffs also argue that the Service’s interpretation of ‘in
danger of extinction’ deserves no deference because it
represents a litigation position. Pls.’ Mot., ECF No. 52 at 35.
Federal defendants respond—and the Court agrees—that just
because the memo was created in response to the Court’s order,
that does not make the long-standing interpretations explained
28
defendants respond that the ESA “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 29-30, and that “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,” id. at 30. Federal defendants further argue
that the agency’s definition of “in danger of extinction” as
articulated in the Polar Bear Memo is entitled to deference
under Chevron for two reasons: (1) because FWS is charged with
administering the ESA, the Court must apply the Chevron
framework to FWS’s interpretation of the phrase “in danger of
extinction”; 4 and (2) this Court has already determined that the
phrase “in danger of extinction” is ambiguous and upheld the
agency’s interpretation of the phrase at Chevron step two in In
re Polar Bear Endangered Species Act Listing and 4(d) Rule
in the memo to be a litigation position. Fed. Defs.’ Opp’n, ECF
No. 53 at 28-29. The agency clearly states that the memo
explains the consistent application of the phrase over the
agency’s 37-plus years of administering the ESA rather than
being a “litigation position.” NLEB Listing 23,084.
4 In the alternative, Federal defendants argue that FWS’s
interpretation of “in danger of extinction” is entitled to
Skidmore deference. Fed. Defs.’ Reply, ECF No. 63 at 13 n.1.
29
Litigation (“Polar Bear II”), 794 F. Supp. 2d 65, 90 (D.D.C.
2010) (Sullivan, J.). Id. at 30-31.
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, “[t]he weight of [an agency
interpretation] will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors
30
which give it power to persuade, if lacking power to control.”
Skidmore, 323 U.S. at 140.
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
31
danger of extinction” to mean “on the brink of extinction in the
wild” is persuasive. Skidmore, 323 U.S. at 140.
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
32
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
public notice and an opportunity to comment on its
interpretation of “in danger of extinction” as applied to the
Bat.
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
33
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).
C. The Threatened Determination Violated ESA and APA Notice
and Comment Requirements
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
34
period. 5 Id. In support of this argument, plaintiffs point to the
two-day “NLEB Decision Maker Meeting,” which began on December
16, 2014, and at which they claim the decision to list the Bat
as threatened was made. LAR 58,577-93; NLEB Listing 03571-80.
Plaintiffs also point to an October 6, 2014 email in which FWS
staff raised a concern regarding how to “balance . . . being
predecisional vs the appearance of a forgone decision,” NLEB
Listing 30,409; and to a January 5, 2015 email stating “We’d
like to make sure everyone knows about the preliminary decision
to list as threatened,” NLEB Listing 43,029. Finally, plaintiffs
note that FWS staff was in the process of reviewing existing
comments and gathering more comments following the December 16,
2014 “NLEB Decision Maker Meeting.” Pls.’ Mot., ECF No. 52 at 54
(citing LAR 43080) (January 2015 spreadsheet addressing comments
from the comment period Nov. 18-Dec. 18, 2014). Plaintiffs point
out in their reply brief that Federal defendants do not respond
to plaintiffs’ characterization of these procedural failures.
Pls.’ Reply, ECF No. 59 at 33-34; see also Fed. Defs.’ Opp’n,
ECF No. 53 at 67-69. Nor do Federal defendants, in their own
5 Following the publication of the proposed rule on October 2,
2013, FWS extended the public comment period on the proposed
endangered determination four times. See 78 Fed. Reg. 72,058-01
(Dec. 2, 2013) (comment period to close January 2, 2014); 79
Fed. Reg. 36,698-01 (June 30, 2014) (comment period to close
August 29, 2014); 79 Fed. Reg. 68,657-02 (Nov. 18, 2014)
(comment period to close December 18, 2014); 80 Fed. Reg. 2371-
01 (Jan. 16, 2015) (comment period to close March 17, 2015).
35
reply brief, respond to plaintiffs having pointed out this
failure to respond. See Fed. Defs.’ Reply, ECF No. 63 at 47-49.
Since Federal defendants did not respond to this argument, they
have conceded it. See Hopkins, 284 F. Supp. 2d at 25 (“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). 6
“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
6 Defendant-intervenors do dispute plaintiffs’ characterization,
Def.-Intervenors’ Br. in Opp’n, ECF No. 56 at 9-13, but the
Court finds it to be significant that Federal defendants, those
with first-hand knowledge of the process, do not.
36
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
37
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:
To satisfy the APA's notice requirement, the
NPRM and the final rule need not be identical:
“[a]n agency's final rule need only be a
‘logical outgrowth’ of its notice.” Covad
Commc'ns Co. v. FCC, 450 F.3d 528, 548 (D.C.
Cir. 2006). A final rule qualifies as a
logical outgrowth “if interested parties
‘should have anticipated’ that the change was
possible, and thus reasonably should have
filed their comments on the subject during the
notice-and-comment period.” Ne. Md. Waste
Disposal Auth. v. EPA, 358 F.3d 936, 952 (D.C.
Cir. 2004) (citations omitted). By contrast,
a final rule fails the logical outgrowth test
and thus violates the APA's notice requirement
where “interested parties would have had to
‘divine [the agency's] unspoken thoughts,’
because the final rule was surprisingly
distant from the proposed rule.” Int'l Union,
United Mine Workers of Am. v. Mine Safety &
Health Admin., 407 F.3d 1250, 1259–60 (D.C.
Cir. 2005) (internal citations omitted).
CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1079-80
(D.C. Cir. 2009).
38
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
39
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 flawed on these two grounds, the Court need not
reach plaintiffs’ argument that the four rationales supporting
the threatened determination were “entirely new” and
consequently, they did not have the opportunity to make the
40
arguments to FWS that they have made to this Court. Pls.’ Mot.,
ECF No. 52 at 55. As to plaintiffs’ argument that “FWS relied on
a key change to the Final SPR Policy to justify its decision not
to analyze whether the Bat is endangered in a significant
portion of its range,” a change that plaintiffs and the public
have never had the opportunity to comment on, Pls.’ Mot., ECF
No. 52 at 56, as explained below, the Court agrees that the
Final SPR Policy was procedurally flawed. See infra Section
III.B.4.d.
D. The Challenged Aspect of the Manner in Which the Final
SPR Policy is Applied is Unlawful 7
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).
7 Plaintiffs allege a number of procedural irregularities
regarding the decision-making process that resulted in the
Listing Rule. Pls.’ Mot., ECF No. 52 at 54. Defendant-
Intervenors respond that the agency’s decision-making process is
“entitled to a presumption of regularity and good faith.” Def.-
Intervenors’ Br. in Opp’n, ECF No. 56 at 15-16 (internal
quotations and citation omitted). Given that the Court has
determined that the Listing Rule is unlawful on various grounds,
the Court need not reach whether or not there were procedural
irregularities.
41
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:
The first step in our analysis of the status
of a species is to determine its status
throughout all of its range. If 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. If the
species is neither endangered nor threatened
42
throughout all of its range, we will determine
whether the species is endangered or
threatened throughout a significant portion of
its range. If it is, we will list the species
as endangered or threatened, respectively; if
it is not, we will conclude that listing the
species is not warranted.
Id. at 37,585. Plaintiffs challenge one aspect of this
procedure: that the Services will not analyze whether a species
is endangered in a significant portion of its range if the
Services have determined that the species is threatened
throughout all of its range. Plaintiffs argue that this
procedure is “facially irreconcilable with the ESA’s unambiguous
command to list any species as endangered if it is ‘in danger of
extinction . . . [in] a significant portion of its range.’”
Pls.’ Reply, ECF No. 59 at 36-37.
1. Plaintiffs’ Challenges to the Final SPR Policy are
Properly Analyzed Under the Chevron Standard
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.
43
Salerno, 481 U.S. 739, 745 (1987); Reno v. Flores, 507 U.S. 292,
301 (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. 8 Other courts in this District have acknowledged that
there is some confusion in this Circuit and others regarding
when a court should apply the “no set of circumstances” test
articulated in Salerno and Flores rather than Chevron. See
Chamber of Commerce of the United States of America v. Nat’l
Labor Relations Bd., 118 F. Supp. 3d, 171, 184-85 & n.8 (D.D.C.
2015) (applying the “no set of circumstances” test to a “‘pre-
implementation challenge’ to the discretionary aspects of [a]
Final Rule” based on “an agency’s purely legal interpretation of
a statute” and acknowledging Am. Petroleum Inst. v. Johnson, 541
F. Supp. 2d 165, 188 (D.D.C. 2008) (“noting that the Chevron
approach ‘seem[ed] especially sound,’ but deciding case on
procedural grounds under the APA”) and Mineral Policy Ctr. v.
Norton, 292 F. Supp. 2d 30, 38–40 (D.D.C. 2003) (“noting that
‘confusion in this Circuit remains’ regarding the application of
the Flores test to facial challenges to agency regulations, and
analyzing the challenge in that case under Chevron”)); see also
8 Because the Court has determined that the “no set of
circumstances” test does not apply, the Court need not consider
whether or not the Final SPR Policy satisfies the test.
44
Ctr. for Biological Diversity v. Jewell, 248 F. Supp. 3d 946,
955 n.9 (D. Ariz. 2017) (noting that “[t]he Court is not
convinced that the ‘no set of circumstances’ test is applicable
here . . .”).
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
a facial challenge to INS regulation 242.24.
Respondents do not challenge its application
in a particular instance; it had not yet been
applied in a particular instance—because it
was not yet in existence—when their suit was
brought ... and it had been in effect only a
week when the District Court issued the
judgment invalidating it. We have before us no
findings of fact, indeed no record, concerning
the INS’s interpretation of the regulation or
the history of its enforcement. We have only
the regulation itself and the statement of
basis and purpose that accompanied its
promulgation.
Flores, 507 U.S. at 300-01. 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
45
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.
46
2. The Precise Question at Issue is Whether the
Challenged Aspect of the Procedures Implementing
the Final SPR Policy Is Consistent With the Plain
Language of the ESA
Applying the Chevron standard, the parties dispute what
exactly is “the precise question at issue.” Chevron, 467 U.S. at
842. 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
47
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 threatened throughout its
range.” Pls.’ Reply, ECF No. 59 at 43.
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
48
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.
3. The Challenged Aspect of the Final SPR Policy Fails
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,
49
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 (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 it as such. 16 U.S.C. § 1533(a). And if a
species is listed as endangered, it is entitled to greater legal
protections than a species that is listed as threatened. 16
U.S.C. § 1538(a)(1); see also Defenders of Wildlife v. Norton,
239 F. Supp. 2d 9, 13 (D.D.C. 2001), vacated in part on other
grounds, 89 F. App’x 273 (D.C. Cir. 2004) (“Endangered species
50
are entitled to greater legal protection under the ESA than
threatened species.”).
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 (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
51
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.
52
4. Alternatively, the Challenged Aspect of the Final
SPR Policy Fails at Chevron Step Two
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
v. United States Dep’t of Interior, 563 F.3d 466, 484 (D.C. Cir.
2009).
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.
53
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.
a. The Challenged Aspect of the Final SPR Policy
Renders the “Endangered in a Significant
Portion of its Range” Basis for Listing
Superfluous
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
54
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.”
55
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 the ecosystems upon which
endangered species and threatened species depend may be
conserved, [and] to provide a program for the conservation of
such endangered and threatened species.”). As explained above,
if a species is listed as endangered, it is entitled to greater
legal protections than a species that is listed as threatened.
In 1973, Congress enacted the ESA to provide “broadened
protection for species in danger of extinction throughout ‘a
significant portion of [their] range’ . . . a significant
change” from then-existing laws protecting endangered species.
Defenders of Wildlife, 258 F.3d at 1144. Accordingly, there is
nothing illogical or wasteful of agency resources for the
Services to analyze whether a species that is threatened
throughout all of its range is also endangered in a significant
portion of its range. Rather, not to do so is an unreasonable
interpretation of the statute and inconsistent with Congress’s
intent in enacting the ESA. As stated above, Senator Tunney
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). With regard to
56
whether Congress intended that a species could be listed
simultaneously as endangered and threatened, it is clear that
Congress intended that a species could:
Under [the ESA] . . . the Secretary may list
an animal as “endangered” throughout all or a
portion of its range. An animal might be
“endangered” in most States but overpopulated
in some. In a State in which a species is
overpopulated, the Secretary would have the
discretion to list that animal as merely
threatened or to remove it from the endangered
species listing entirely while still providing
protection in areas where it was threatened
with extinction.
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.
b. The Challenged Aspect of the Final SPR Policy
is Inconsistent with ESA Principles
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; 9 Def.-Intervenors’ Br. in Opp’n, ECF No. 56 at 26.
9 The Court is not persuaded by Federal defendants’ argument
that a simultaneous listing for a species would be inconsistent
with two opinions in other district courts because, as explained
by plaintiffs, “[t]hese cases stand for the proposition that if
a species is (biologically) endangered in a significant portion
of its range, it must be protected as (legally) endangered
throughout its range” and “say nothing about whether the Service
57
Federal defendants state that under the Draft SPR Policy, it
would have been “possible that a single ‘species’ could meet the
definition of both ‘endangered species’ and ‘threatened
species’—it would be threatened throughout all of its range
while simultaneously being endangered in a significant portion
of its range,” which would lead to confusion. Fed. Defs.’ Opp’n,
ECF No. 53 at 58. FWS also noted that the final policy
eliminates the possibility of a species being simultaneously
“threatened throughout all of its range and endangered
throughout a significant portion of its range” so as to not
confuse “the public.” 79 Fed. Reg. at 37,581.
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 (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
may lawfully choose to list a species as ‘threatened’ when it is
‘endangered’ in a significant portion of its range.” Pls.’
Reply, ECF No. 59 at 45-46.
58
challenged aspect of the Final SPR Policy is inconsistent with
ESA principles.
c. The Challenged Aspect of the Final SPR Policy
Subverts the Conservation Goals of the ESA
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
59
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
60
congressional mandates for budgetary reasons”). As plaintiffs
point out, the ESA does not require FWS to spend its resources
conducting redundant analyses, such as considering whether a
species is threatened throughout its range or in a significant
portion of its range where it has already determined that the
species is endangered throughout its range or in a significant
portion of its range. Pls.’ Reply, ECF No. 59 at 50. Defendant-
intervenors argue that plaintiffs seek to “strip[] the Service’s
discretion to tailor protections for threatened species.” Def.-
Intervenors’ Br. in Opp’n, ECF No. 56 at 27. But as plaintiffs
point out, requiring FWS to properly determine a species’
listing is separate from FWS’s section 4(d) authority to tailor
protections. Pls.’ Reply, ECF No. 59 at 51.
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.
d. The Challenged Aspect of the Final SPR Policy
Violated ESA and APA Notice and Comment
Requirements
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
61
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:
We recognize that under the draft policy, a
species can be threatened throughout all of
its range while also being endangered in an
SPR. For the reasons discussed in this
document, in such situations we would list the
entire species as endangered throughout all of
its range. However, we recognize that this
approach may raise concerns that the Services
would be applying a higher level of protection
where a lesser level of protection may also be
appropriate, with the consequences that the
Services would have less flexibility to manage
the species and that scarce conservation
resources would be diverted to species that
might arguably better fit a lesser standard if
viewed solely across its range. The Services
are particularly interested in public comment
on this issue.
76 Fed. Reg. at 77,004. The Court is not persuaded, however, by
Federal defendants’ argument that seeking comment on this aspect
62
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] draft policy because it is consistent with
Court decisions and FWS’[s] interpretation of the statutory
definitions.” Id. at 76,996. Accordingly, the draft policy did
not provide “public notice of [FWS’s] intent to adopt, much less
an opportunity to comment on” its decision to not analyze
whether a species is endangered in a significant portion of its
range after it determined that the species is threatened
throughout all of its range. Envtl. Integrity Project, 425 F.3d
at 997. The Court acknowledges that commenters responded to
FWS’s solicitation of comments, 79 Fed. Reg. at 37,599, but that
does not change the fact that FWS did not provide notice and
opportunity to comment on its “solution.” For these reasons,
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this aspect of the Final SPR Policy was not a logical outgrowth
of the draft policy.
e. The Application of the Final SPR Policy to the
Bat was Unlawful
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. 10 Federal defendants respond that the Final SPR
Policy is a reasonable interpretation under Chevron step two,
and that since FWS did not misapply the Final SPR Policy to the
Bat, nor do plaintiffs contend otherwise, plaintiffs’ argument
is without merit. Fed. Defs.’ Opp’n, ECF No. 53 at 63.
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,
10As part of this argument, plaintiffs reiterate their arguments
that the Final SPR Policy and the final threatened determination
violated the procedural requirements of the ESA and APA. Pls.’
Mot., ECF No. 52 at 67. The Court has addressed those arguments.
See supra Sections III.C, III.D.4.d.
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since the Final SPR Policy is unlawful, the application of the
policy to support the threatened determination as to the Bat was
unlawful.
IV. Conclusion
For the reasons set forth above, the Court GRANTS IN PART
AND DENIES IN PART plaintiffs’ motion for summary judgment and
GRANTS IN PART AND DENIES IN PART Federal defendants’ and the
defendant-intervenors’ motions for summary judgment. The Court
REMANDS, but does not vacate the “threatened” listing decision,
to FWS to make a new listing decision consistent with this
Memorandum Opinion. The Court VACATES the provision of the Final
SPR Policy which provides that if the Services determine that a
species is threatened throughout all of its range, the Services
will not analyze whether the species is endangered in a
significant portion of its range. However, the Court declines to
vacate the Polar Bear Memo. An appropriate Order accompanies
this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
1/28/2020
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