Ctr. for Biological Diversity v. Haaland

530 F.Supp.3d 853

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,

v.Deb HAALAND,¹ et al., Defendants.

No. CV-18-00404-TUC-JGZ

United States District Court, D. Arizona.

Signed March 31, 2021

Brian Segee, Pro Hac Vice, Center for Biological Diversity, Los Angeles, CA, Ryan Adair Shannon, Pro Hac Vice, Center for Biological Diversity, Portland, OR, for Plaintiff.

Meredith Lisa Flax, Sarah Jane Sheffield, Taylor Anne Mayhall, US Dept. of Justice Environment and Natural Resources Division, Washington, DC, for Defendants.

ORDER

Jennifer G. Zipps, United States District Judge

Over seventeen years ago, Plaintiff Center for Biological Diversity (CBD) petitioned the Fish and Wildlife Service (FWS or the Service) to list the distinct population segment (DPS) of the lower Colorado River basin roundtail chub as an endangered or threatened species under the Endangered Species Act (ESA), 16 U.S.C. § 1531 et. seq. In 2015, after two court actions initiated by CBD concerning FWS's delays acting on the petition, FWS ultimately proposed to extend the protections of the ESA to the lower Colorado River basin roundtail chub DPS as a threatened species. However, in 2017, FWS withdrew the rule based on FWS's adoption of a taxonomic revision concerning the fish. According to FWS, withdrawal of the proposed rule was necessary because, after the taxonomic revision, the lower Colorado River basin roundtail chub DPS no longer met ESA's definition of a species. FWS also stated that under ESA's deadlines, it was required to make a listing decision at that time.

CBD filed the instant action against the Secretary of the Interior and FWS, challenging FWS's withdrawal of the proposed rule. CBD claims that even after the taxonomic revision, the Colorado River basin roundtail chub is a listable entity and FWS's decision not to list it as a DPS was arbitrary and capricious in violation of the Administrative Procedure Act and ESA. (Doc. 1.) CBD requests that the Court order FWS to vacate the withdrawal of the proposed rule and to make a final determination regarding the Lower Colorado River basin roundtail chub's status.

Pending before the Court are the parties’ Cross-Motions for Summary Judgment, which are fully briefed. (Docs. 25, 26, 28, 29, 32, 34.) The parties also filed supplemental briefing based on the Supreme Court's recent decision in Dep't of Homeland Sec. v. Regents of the Univ. of Cal. , ––– U.S. ––––, 140 S. Ct. 1891, 207 L.Ed.2d 353 (2020). (Docs. 35, 36.) Upon consideration of the parties’ filings, the Court will grant CBD's Motion for Summary Judgment and deny Defendants’ Cross-Motion for Summary Judgment.²

I. Applicable Standards

A. Summary Judgment

Summary judgment is appropriate if the pleadings and supporting documents "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A court presented with cross-motions for summary judgment should review each motion separately, giving the nonmoving party for each motion the benefit of all reasonable inferences from the record. Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dep't , 533 F.3d 780, 786 (9th Cir. 2008). "Summary judgment is a particularly appropriate tool for resolving claims challenging agency action." Defenders of Wildlife v. Salazar , 729 F. Supp. 2d 1207, 1215 (D. Mont. 2010). In such cases the Court's role is not to resolve facts, but to "determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Eng'g Co. v. INS , 753 F.2d 766, 769 (9th Cir. 1985).

B. The Administrative Procedure Act

Judicial review of agency actions under the ESA is governed by the Administrative Procedure Act (APA). Native Ecosystems Council v. Dombeck , 304 F.3d 886, 891 (9th Cir. 2002). Under the APA, the court may set aside agency action where it is found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with applicable law. 5 U.S.C. § 706(2)(A). "Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

In order to determine whether an agency action is arbitrary and capricious, a reviewing court looks to the evidence the agency has provided to support its conclusions, along with other materials in the record, to ensure the agency made no clear error of judgment. See Judulang v. Holder , 565 U.S. 42, 52–53, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011) ; Lands Council v. McNair , 537 F.3d 981, 993 (9th Cir. 2008), overruled on other grounds by Am. Trucking Assns., Inc. v. City of Los Angeles , 559 F.3d 1046, 1052 (9th Cir. 2009). That task involves examining the reasons for agency decisions, which must be based on non-arbitrary, relevant factors that are tied to the purpose of the underlying statute. See Judulang , 565 U.S. at 53, 55, 132 S.Ct. 476. The agency must articulate a rational connection between the facts found and the choice made. Forest Guardians v. United States Forest Serv. , 329 F.3d 1089, 1099 (9th Cir. 2003).

"An agency must defend its actions based on the reasons it gave when it acted." Dep't of Homeland Security , 140 S.Ct. at 1909. An agency seeking to justify its action may not offer a new explanation for the action during the course of litigation, but must be judged on the rationale and record that led to the decision. Ctr. for Biological Diversity v. Lohn, 296 F.Supp.2d 1223, 1231 (W.D. Wash. 2003), vacated on other grounds as moot, 511 F.3d 960 (9th Cir. 2007). Under this standard, post hoc explanations of agency action cannot substitute for the agency's own articulation of the basis for its decision. Arrington v. Daniels , 516 F.3d 1106, 1113 (9th Cir. 2008) (citing Fed. Power Comm'n v. Texaco, Inc. , 417 U.S. 380, 397, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974) ). Similarly, the reviewing court "may not supply a reasoned basis for the agency's action that the agency itself has not given." Motor Vehicle Mfrs. Ass'n , 463 U.S. at 43, 103 S.Ct. 2856. Rather, the court's review is "limited to the explanations offered by the agency in the administrative record." Arrington , 516 F.3d at 1113.

"The arbitrary and capricious standard is ‘highly deferential, presuming the agency action to be valid and [requires] affirming the agency action if a reasonable basis exists for its decision.’ " Kern Cnty. Farm Bureau v. Allen , 450 F.3d 1072, 1076 (9th Cir. 2006) (quoting Indep. Acceptance Co. v. California , 204 F.3d 1247, 1251 (9th Cir. 2000) ). When examining scientific determinations, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc. , 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). This is particularly true when the scientific findings are within the agency's area of expertise. See Ctr. for Biological Diversity v. Zinke , 900 F.3d. 1053, 1067 (9th Cir. 2018) ; Lands Council , 537 F.3d at 993. Moreover, "[w]hen not dictated by statute or regulation, the manner in which an agency resolves conflicting evidence is entitled to deference so long as it is not arbitrary and capricious." Trout Unlimited v. Lohn , 559 F.3d 946, 958 (9th Cir. 2009).

Nevertheless, the APA requires a "substantial inquiry" to determine whether the agency acted within the scope of its authority. Citizens to Pres. Overton Park, Inc. v. Volpe , 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders , 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Thus, although the agency is entitled to a "presumption of regularity," the effect of that presumption is not to shield the agency's action from a "thorough, probing, in-depth review," and the court's inquiry into facts should be "searching and careful." Id.

II. Statutory and regulatory framework: The Endangered Species Act

The Endangered Species Act (ESA or "the Act"), 16 U.S.C. § 1531, et seq. , sets forth a comprehensive scheme for the protection of endangered and threatened species in the United States. Cal. ex rel. Lockyer v. United States Dep't of Agriculture , 575 F.3d 999, 1018 (9th Cir. 2009). To achieve its objectives, the ESA directs the Secretary of the Interior to determine which species of plants and animals are "threatened" or "endangered." 16 U.S.C. § 1533.³ The ESA defines "species" as including "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature."⁴ 16 U.S.C. § 1532(16) (emphasis added). 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." 16 U.S.C. § 1532(20).

Distinct population segment. The ESA permits FWS to "designate a particular population segment of a species as a DPS [distinct population segment] and then consider that DPS as a species for listing purposes."

Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 842 (9th Cir. 2002) (citing 16 U.S.C. §§ 1532(16), 1533(a)(1) ). Because the ESA does not define "distinct population segment," FWS follows a binding policy statement⁵ to guide determinations of whether a DPS warrants...