Desert Survivors v. United States Dep't of the Interior

DESERT SURVIVORS, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

No. 20-cv-06787-JSC

United States District Court, N.D. California

May 16, 2022

ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT

RE: DKT. NOS. 33, 36

JACQUELINE SCOTT CORLEY, UNITED STATES DISTRICT JUDGE

This lawsuit challenges the federal government's withdrawal of its proposal to list the bistate sage grouse as “threatened” under the Endangered Species Act (“ESA”). (See Dkt. No. 1.)^[1]Before the Court are the parties' cross-motions for summary judgment. (Dkt. Nos. 33, 36.) Having carefully considered the briefing and having had the benefit of oral argument on April 21 2022, the Court GRANTS Plaintiffs' motion, DENIES Defendants' motion, and REMANDS for a new final listing decision, as explained below.

BACKGROUND

The bi-state sage grouse, a bird, is a type of greater sage grouse that lives around parts of the California-Nevada border. (See Administrative Record (“AR”) 35, 283 (map)); see also 85 Fed.Reg. 18, 057 (Mar. 31, 2020) (map). The clearing areas where bi-state sage grouse court and breed are known as leks. 85 Fed.Reg. 18, 056-57. The U.S. Fish and Wildlife Service (“the Service”) monitors bi-state sage grouse using six “population management units” (“PMUs”), “delineated based on aggregations of leks, known seasonal habitats, and telemetry data.” Id. at 18, 057. Proceeding from north to south, the PMUs are Pine Nut, Desert Creek-Fales, Bodie, Mount Grant, South Mono, and White Mountains. Id.; (see AR 16, 805-08 (explaining that some PMUs contain more than one subpopulation or grouping of bi-state sage grouse)). Bi-state sage grouse in some PMUs “appear to be isolated to varying degrees from one another.” 85 Fed.Reg. 18, 059. The bi-state sage grouse's population and habitat have each declined by about 50% since 1850. (AR 16, 805.) Based on data from 2018, the Service estimates a current population of 3, 305. 85 Fed.Reg. 18, 080; (see AR 35, 304).

In 2013, the Service published a proposal to list the bi-state sage grouse as threatened under the ESA. 78 Fed.Reg. 64, 358 (Oct. 28, 2013). Two years later, the Service withdrew its proposal. 80 Fed.Reg. 22, 828 (Apr. 23, 2015). After Plaintiffs filed suit, a court of this district vacated the 2015 Withdrawal and reinstated the 2013 Proposal. See Desert Survivors v. U.S. Dep't of Interior (“Desert Survivors I”), 321 F.Supp.3d 1011 (N.D. Cal. 2018); see also Desert Survivors v. U.S. Dep't of the Interior, 336 F.Supp.3d 1131 (N.D. Cal. 2018) (remedy order).

The Desert Survivors I court held that the 2015 Withdrawal was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”) and the ESA, because: (1) a study on which the Service relied, Coates 2014, did not provide a rational basis to conclude that the bi-state sage grouse population was stable, Desert Survivors I, 321 F.Supp.3d at 1040-45; (2) the Service erroneously concluded that conservation measures were sufficiently certain to be effective, id. at 1052-66; (3) the Service used a facially impermissible interpretation of “significant, ” id. at 107074; and (4) the Service's conclusion regarding the “significant portion of its range” (“SPR”) policy was not rationally supported, id. at 1074-76. The court rejected Plaintiffs' other arguments, including that: (1) the Service drew unsupported conclusions about the resiliency of the bi-state sage grouse from the Oyler-McCance 2014 and Tebbenkamp 2014 studies, id. at 1045-48; (2) the Service did not adequately consider the impact of cumulative threats, id. at 1048-50; (3) the Service considered not only existing conservation measures but also merely proposed measures, id. at 1050-52; (4) the Service erroneously concluded that conservation measures were sufficiently certain to be implemented, id. at 1059-60; and (5) the Service used a facially impermissible interpretation of “range, ” id. at 1066-68.

On remand, the Service reopened public comment on the 2013 Proposal. 84 Fed.Reg. 52, 058 (Oct. 1, 2019); see Desert Survivors, 336 F.Supp.3d at 1133 (remedy order). In 2020, the Service again withdrew the proposal. 85 Fed.Reg. 18, 054. Plaintiffs filed this lawsuit challenging the 2020 Withdrawal.

DISCUSSION

The ESA charges the Secretary of the Interior with determining whether particular species should be listed as “threatened” or “endangered.” 16 U.S.C. § 1533(a)(1). The Secretary has delegated authority to the Service. See 50 C.F.R. § 402.01(b). 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). Listing is a key mechanism because the ESA makes it unlawful for any person to “take” a species listed as endangered or threatened. See Babbitt v. Sweet Home Chapter of Cmtys for a Great Or., 515 U.S. 687, 690, 692 n.5 (1995).

Courts review the Service's decision not to list a species or DPS under the APA. See Ctr. for Biological Diversity v. Zinke (“Zinke”), 900 F.3d 1053, 1067 (9th Cir. 2018). A court “‘shall' set aside agency actions, findings, or conclusions under the APA that are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'” Id. (quoting 5 U.S.C. § 706(2)(A)). Under this standard of review, a court “ensure[s] that the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made.” Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1023 (9th Cir. 2011) (cleaned up). A decision is 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.” Id. (cleaned up). Agency decisions deserve the highest deference when “the agency is making predictions[] within its area of special expertise.” Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) (cleaned up). But a court “need not defer to the agency when the agency's decision is without substantial basis in fact.” Ariz. Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010).

I. BEST SCIENTIFIC AND COMMERCIAL DATA AVAILABLE

The Service must base its listing decision on “the best scientific and commercial data available, ” 16 U.S.C. § 1533(b)(1)(A); failure to do so violates the APA. The Service must consider five 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; or (e) other natural or manmade factors affecting [the species'] continued existence.” Id. § 1533(a)(1). The Service must also “tak[e] into account those efforts, if any, being made by any State or foreign nation . . . to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices.” Id. § 1533(b)(1)(A). “Species” includes “any distinct population segment” (“DPS”) of a species, id. § 1532(16), and a DPS may be listed as endangered or threatened. See Zinke, 900 F.3d at 1060. The bi-state sage grouse is a DPS. 85 Fed.Reg. 18, 054.

“An agency complies with the best available science standard so long as it does not ignore available studies, even if it disagrees with or discredits them.” San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 995 (9th Cir. 2014); see Zinke, 900 F.3d at 1060. Additionally, “[e]ven where there is no better science available, ” Desert Survivors I, 321 F.Supp.3d at 1044, an agency action may be arbitrary and capricious if it lacks “a rational connection between the facts found and the determinations made.” Ariz. Cattle Growers, 606 F.3d at 1163.

Plaintiffs contend that the Service violated this standard by: (1) cherry-picking data from the Coates 2020 study to conclude that the bi-state sage grouse population is stable; (2) ignoring evidence that extirpation of smaller PMUs will increase the risk of extirpation for the entire population; and (3) ignoring evidence that the PMU populations are below the threshold for longterm viability. (Dkt. No. 33 at 14-20.) Defendants counter that the Service (1) appropriately concluded that the population is stable; (2) adequately considered the risks of extirpation; and (3) reviewed all the best available science. (Dkt. No. 36 at 14-21.)

A. Coates 2020

1. Background

In Desert Survivors I, the court held that a study on which the Service relied, Coates 2014, did not provide a rational basis to conclude that the bi-state sage grouse population was stable. 321 F.Supp.3d at 1040-45. Coates 2014 analyzed population trends from 2003 to 2012, using data from bi-state sage grouse in the Pine Nut, Desert Creek-Fales, Bodie, and South Mono PMUs, although not the Mount Grant and White Mountains PMUs. See 85 Fed.Reg. 18, 059-61. The 2020 Withdrawal relied in part on an update to Coates 2014, Coates 2020, along with seven other studies representing four different methodologies. Id. In the 2020 Withdrawal, the Service concluded that the bi-state sage grouse population has “fluctuated over the past 40 years (both increased and decreased), but over the entire timeframe has remained relatively stable.” Id. at 18, 060.

Coates 2020 analyzed population trends from 1995 to 20...