Ctr. for Biological Diversity v. Haaland

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CENTER FOR BIOLOGICAL DIVERSITY, WESTERN WATERSHED PROJECT, and PAT MUNDAY, Plaintiffs, v. DEBRA A. HAALAND, Secretary of the U.S. Department of the Interior; MARTHA WILLIAMS, Director of the U.S. Fish and Wildlife Service; and the U.S. FISH AND WILDLIFE SERVICE, Defendants, and STATE OF MONTANA and MONTANA DEPARTMENT OF FISH, WILDLIFE, AND PARKS, Defendant-Intervenors.

No. CV 23-02-BU-DLC

United States District Court, D. Montana, Butte Division

August 6, 2024

ORDER

Dana L. Christensen, District Judge United States District Court

Before the Court are the parties' cross-motions for summary judgment. (Docs. 29, 32, 34.) Plaintiffs challenge the United States Fish and Wildlife Service's (“FWS”) Revised 12-Month Finding on a Petition to List the Upper Missouri River Distinct Population Segment (“DPS”) of Arctic Grayling published in the Federal Register on July 23, 2020, (the “2020 Finding”) under the Endangered Species Act (“ESA”). The Court held a hearing on the summary judgment motions on July 12, 2024. For the reasons discussed below, the parties' motions are granted in part and denied in part, the 2020 Finding is vacated and remanded for further analysis, and FWS is directed to make a new finding as to the status of the upper Missouri River basin DPS of Arctic grayling within twelve months of the date of this order.

Background

I. Arctic Grayling

The Arctic grayling (Thymallus arcticus) is a salmonid native to Arctic Ocean drainages of Alaska and northwestern Canada. FWS10963-64. Arctic grayling occupy a variety of habitats, including small streams, large rivers, lakes, and bogs. FWS10981. As is typical among salmonids, Arctic grayling follow cyclic patterns of movement between refuge rearing-feeding, and spawning habitats, both as part of a regular seasonal migration and in response to episodic stressors. FWS10984.

Arctic grayling have defined thermal tolerances. At 21°C (70°F) adult Arctic grayling begin to experience sublethal physiological stress that can manifest as increased metabolism, reduced growth, and other effects. FWS11045. Fifty percent of juvenile Arctic grayling are expected to die if exposed to water temperatures of 25°C (77°F) constantly for seven days. FWS11046. And, at 26.9°C (80.4°F), adult Arctic grayling lose equilibrium and cannot escape conditions that will promptly lead to death. FWS11046. Arctic grayling exhibit a spectrum of fluvial (spending their entire lives history in flowing water) and adfluvial (primarily residing in ponds/lakes/bogs and only using flowing water for spawning) life histories. FWS10986. In general, Arctic grayling are capable of occupying varying sizes of ponds/lakes/bogs, as long as water temperatures are within tolerable limits and there is an inlet or outlet stream for spawning. FWS10983.

FWS recognizes two distinct groups of Arctic grayling that were native to the conterminous United States: one in the upper Missouri River basin in Montana and Wyoming and another in Michigan that was extirpated in the late 1930s. FWS10964. Historically, Arctic grayling were widely but irregularly distributed in the upper Missouri River system above Great Falls in Montana and in northwest Wyoming within the present-day boundaries of Yellowstone National Park. FWS10965. The distribution of Arctic grayling in the upper Missouri River basin has been reduced and the populations that formerly resided in the Smith, Sun, Jefferson, Beaverhead, Gallatin, and mainstem Missouri Rivers are considered extirpated. FWS10966.

Today, FWS has identified nineteen Arctic grayling populations that collectively make up the upper Missouri River basin DPS. FWS11009. To be included in the upper Missouri River basin DPS, a population must: “(1) occupy natural habitat; (2) reproduce naturally[;] and (3) not be part of the captive brood (genetic) reserve program.” FWS10969. These populations occur in the Big Hole River and its tributaries, the Centennial Valley, the Madison River, the Ruby River, and fifteen high elevation mountain lakes and reservoirs. FWS11010. In total, Arctic grayling occupy an estimated 314 miles of rivers and streams and 6,045 hectares of lakes and reservoirs. FWS11009. Fifteen of these nineteen populations occur solely on Federal land, two mostly on Federal land (~70% of the Ruby River and ~90% of the Centennial Valley), and two occur primarily (>90%) on private land (Big Hole River and Ennis Reservoir/Madison River). FWS11009.

II. Historical Agency Action and Management

A. Listing decisions

Arctic grayling have a long history of being petitioned for listing under the ESA. In 1982, FWS published its first status review for the Montana Arctic grayling (then thought to be a subspecies of the Arctic grayling). FWS10956. In that review, the agency designated the species a “Category 2 species,” which meant that listing the species as endangered or threatened was possibly appropriate, but the agency did not have enough data to support a proposed rule to list the species. FWS10956.

Nearly a decade later, in 1991, the agency was petitioned to list the fluvial populations of Arctic grayling in the upper Missouri River basin as an endangered species throughout its historical range in the conterminous United States. FWS10956. In 1993, FWS published its notice of a 90-day finding, which concluded that the petitioners had presented substantial information indicating that listing may be warranted. FWS10956-57. In 1994, the agency published its notice of a 12-month finding (the “1994 Finding”), which concluded that listing the fluvial Arctic grayling of the upper Missouri River basin was warranted but precluded by other higher priority listing actions. FWS10957. The 1994 Finding placed the species on the candidate list and assigned it a listing priority of nine, indicating that threats were imminent but of moderate to low magnitude. FWS10957. In 2003, environmental plaintiffs challenged the 1994 Finding. FWS10957. In response, FWS elevated the listing priority from nine to three, indicating threats that were imminent and of a high magnitude. FWS10957. The parties settled the dispute in August 2005, with FWS agreeing to submit a revised finding by April 2007.

In April 2007, FWS published a revised 12-month finding (the “2007 Finding”), which concluded that the fluvial Arctic Grayling of the upper Missouri River basin do not constitute a species, subspecies, or DPS under the ESA, and, therefore, the upper Missouri River basin population of fluvial Arctic grayling was not a listable entity under the ESA. FWS10958. The Arctic grayling was thereby removed from the candidate list. FWS10958. Environmental plaintiffs subsequently challenged the 2007 Finding. FWS10958. The parties again reached a settlement, with FWS agreeing to solicit, via publication in the Federal Register, information on the status of the upper Missouri River Arctic grayling and to submit a new 12-month finding by the end of August 2010. FWS10958.

In September 2010, FWS published a revised 12-month finding (the “2010 Finding”), which concluded that fluvial and adfluvial Arctic grayling of the upper Missouri River basin do constitute a DPS under the ESA. FWS10959. The agency further concluded that the DPS was warranted for listing under the ESA but precluded by other higher priority listing actions. FWS10959. In 2011, as part of a settlement agreement in In Re Endangered Species Act Section 4 Deadline Litigation, Misc. Action No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C 2011), FWS agreed to submit in the Federal Register either a proposed listing rule for the upper Missouri River DPS of Arctic grayling or a not-warranted finding no later than the end of fiscal year 2014. FWS10959.

In August 2014, FWS published a revised 12-month finding (the “2014 Finding”), which concluded that listing the DPS was not warranted and removed the DPS from the candidate list. FWS10960. The agency found that the habitat-related threats it had previously identified, including habitat fragmentation, dewatering, thermal stress, entrainment, riparian habitat loss, and effects from climate change, had been sufficiently ameliorated and that nineteen of twenty populations of Arctic grayling were either stable or increasing. FWS10960. Environmental plaintiffs challenged the 2014 Finding in this Court. FWS10961; Ctr. for Biological Diversity v. Jewell, No. CV 15-4-BU-SHE, 2016 WL 4592199 (D. Mont. Sept. 2, 2016). The Court ruled in favor of the government on all claims and plaintiffs appealed to the Ninth Circuit Court of Appeals.

In August 2018, the Ninth Circuit issued a decision affirming in part and reversing in part this Court's order. Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1075 (9th Cir. 2018) (hereinafter “Zinke”). The Ninth Circuit identified four errors in the 2014 Finding: (1) FWS should not have concluded that the Big Hole River grayling population was increasing when available biological information showed that the population was declining; (2) FWS should not have relied on cold water refugia in the Big Hole River because the agency failed to consider information showing that the river will experience low stream flows and high water temperatures; (3) FWS did not adequately explain why the uncertainty presented by climate change, specifically regarding low stream flows and higher water temperatures, did not weigh in favor of listing; and (4) FWS arbitrarily determined that the Ruby River grayling population was viable. Id. at 1068-75. The Ninth Circuit vacated the 2014 Finding and remanded to FWS for reconsideration. Id. at 1074-75.

In July 2020, FWS published the 2020 Finding, which is the focus of the current litigation. Endangered and Threatened Wildlife and Plants; Four Species Not Warranted for Listing as...