Colorado River cutthroat trout “not warranted” finding upheld

A federal judge has upheld a Fish and Wildlife Service decision not to list the Colorado River cutthroat trout as threatened or endangered under the ESA (Colorado River Cutthroat Trout v. Salazar, 09-2233 PLF, D.D.C.).

U.S. District Judge Paul Friedman said FWS did not act in an “arbitrary and capricious” manner in interpreting the law’s requirement to consider whether a species is “in danger of extinction throughout all or a significant portion of its range” (the standard for an endangered species) or likely to get to that state “in the foreseeable future” (the standard for a species considered threatened).

Opinion: www.eswr.com/docs/cts/dc/CRCT_dcd_op_10162012.pdf

Excerpt:

b. Failure to Consider Unoccupied Portions of the Trout’s Current Range

Even if “range” is restricted to the Trout’s current range of 3,022 miles, plaintiffs take issue with the FWS’s conclusion that the Trout are not threatened within a “significant portion” of this area. Where a species or  subspecies is unlikely to survive in a sizeable portion of its current habitat, the agency must provide some explanation as to why this portion is not “a significant portion of its range[.]” Defenders of Wildlife v. Norton, 239 F. Supp. 2d at 21 (citing Defenders of Wildlife v. Norton, 258 F.3d at 1145); see Southwest Center for Biological Diversity v. Norton, 98-cv-0934 (D.D.C. May 24, 2004) (instructing FWS to reconsider and explain whether an island constituting one-third of species’ range was “significant”). Plaintiffs point to the 1,226 miles throughout the current range that lack populations of genetically pure (or close-to-pure) Trout and argue that the FWS “failed to evaluate the significance of the fact that almost half of its remaining range is unoccupied.” Pls.’ Mot. Summ. at 1.

Although the FWS did not state explicitly that it found these 1,226 miles not to be a “significant portion” of the range, the FWS clearly articulated how it evaluated significance throughout the Finding and in a subsection entitled “significant portion of the range”. The FWS explained that it had identified fish populations that met a 90 percent threshold of Trout genetic

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content, such that the populations were unquestionably Trout on a genetic and morphological le el. Not Warranted Finding, 72 Fed. Reg. at 32,591.[4] The 285 Trout populations that met this standard were considered “Conservation Populations”. Id.[5] The FWS then evaluated the threats facing these Conservation Populations in each of the eight major watershed-based regions within the range, otherwise known as Geographical Management Units, or “GMUs”. Finding that at least some number of Conservation Populations were likely to survive in each GMU, the agency concluded that the Trout was not endangered or threatened within “a significant portion of the range[.]” Id. at 32,600.

Each GMU contains large areas – in the aggregate, approximately 1,226 miles or 41 percent of the total range – occupied by cutthroat trout sport fish populations. These sport fish populations have the morphological characteristics of the Trout, but they generally contain greater than 10 percent genetic material from other subspecies. Not Warranted Finding, 72 Fed. Reg. at 32,591. The FWS noted that several state agencies include these sport fish populations in their conservation and management plans for the Trout. Id. at 32,598. Because of their relatively high level of nonnative genetic material, however, the FWS does not consider the sport fish populations to be predictive of the survival of the Trout in its genetically pure form. Id. (“Sport fish populations . . . conform morphologically . . . to the scientific taxonomic description of [the Trout], but do not meet the additional criteria of “conservation” or “core” populations and hence

FN 4 Morphology “refers to the general aspects of biological form and arrangement of the parts of a plant or an animal.” Encyclopoedia Britannica Online Academic Edition. (Oct. 12, 2012), http://www.britannica.com/EBchecked/topic/392797/morphology.

FN 5 A subset of Conservation Populations were “Core Conservation Populations”, which had greater than 99 percent Trout genes.

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are managed for their value as a sport fish population rather than their value to the conservation of the subspecies.”).

Plaintiffs argue that the FWS failed to explain why these regions containing sport fish populations do not constitute “a significant portion of its range[.]” The Court agrees that the FWS was often unclear as to whether it considered these sport fish populations to constitute Trout at all.[6] It is established, however, that a court should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” as it may be here. Building Industry Assn of Superior Cal. v. Babbitt, 979 F. Supp. 893, 898 (D.D.C. 1997) (citing Motor Vehicles Mfrs. Assn v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983)). This Court finds that the FWS’s explicit discussion of how it evaluated significance, accompanied by its explanation of those areas of the range occupied by Trout sport fish populations, renders discernible the FWS’s reasoning with respect to its evaluation of a significant portion of the Trout’s range.

Plaintiffs also allege that the FWS failed to explain adequately its use of “GMUs” as the analytic tool for determining whether the Trout is threatened in a significant portion of its range. Pls.’ Mot. Summ. at 21. The FWS, however, provided a reasonable basis for its selected methodology, explaining that the eight GMUs correspond to the major watersheds within the range, and that “standardized fish monitoring methods are watershed based.” Not Warranted Finding, 72 Fed. Reg. at 32,600; see also id. at 32,593 (noting that under Wyoming agency plan, biologists manipulate habitat on a watershed scale). The FWS noted that the eight GMUs encompass the entire current and historical range, and Conservation Populations are located in

FN 6 Defendants concede that the inclusion of sport fish populations in the current range leads to analytic confusion when evaluating Trout sustainability within the range. See Defs.’ Reply Mot. at 12.

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every GMU. Id. at 32,600. The FWS also explained that “[n]o significant ecological differences exist at levels smaller than the GMUs to affect representation of the subspecies.” Id. The FWS concluded that a sufficient number of GMUs existed in order to ensure Trout redundancy and resiliency. Id. Although the plaintiffs raise plausible criticisms of the methodology chosen by the FWS, an agency’s choice of methodology need only be reasonable to be upheld. See Nat’l Envtl. Dev. Assn’s Clean Air Project v. E.P.A., 686 F.3d 803, 810 (D.C. Cir. 2012) (“[W]e do not look at the decisions as would a scientist, but ‘as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.’”). This Court concludes that the FWS’s use of GMUs, and its explanation for their use, pass this test.

2. Failure to Address Threats in Combination

Under its regulations, the FWS must consider threats posed by “any one or a combination” of the five factors listed in the ESA. 16 U.S.C. § 1533(a)(1)(A)-(E); see 50 C.F.R. § 424.11(c); Carlton v. Babbitt, 900 F. Supp. 526, 530 (D.D.C. 1995). These factors are:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.

16 U.S.C. § 1533(a)(1).

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Plaintiffs claim that the FWS violated the ESA’s requirement to consider the listing factors in combination. Indeed, in most of its Finding, the FWS considers each of the listing factors one by one and determines that the threats do not rise to the level requiring listing. See, e.g., Not Warranted Finding, 72 Fed. Reg. at 32,594 (“[W]e conclude . . . that present or threatened destruction, modification, or curtailment of habitat or range has not affected the status of [Trout] to the extent that listing under the Act as a threatened or endangered species is warranted at this time.”); id. at 32,594 (“[I]t does not appear that predation affects the status of [the Trout] to the extent that listing under the Act as threatened or endangered is warranted at this time.”); id. at 32,596 (“[W]e conclude . . . that any identified inadequacies of existing regulatory mechanisms have not affected the status of [the Trout] to the extent that listing under the Act as a threatened or endangered species is warranted.”). Plaintiffs assert that the Finding resembles the finding vacated and remanded by Judge Kollar-Kotelly in WildEarth Guardians v. Salazar,741 F. Supp. 2d at 102, because, as in that case, the finding here does not “explicitly indicate that [the FWS] analyzed the listing factors’ cumulative effect.” Pls.’ Mot. Summ. at 28-29. Defendants maintain, by contrast, that in this case the FWS did in fact consider threats in combination, but did so in its discussion of the individual factors, rather than in a separate cumulative effects section. Defs.’ Mot. Summ. at 31-32.

The FWS’s analysis of how the listing factors interact is cited throughout the Finding in a somewhat haphazard fashion, but the analysis of how they combine together nevertheless is apparent. For example, under the subsection discussing Factor E (other natural or manmade factors affecting the Trout’s continued existence), the FWS considered a general population health evaluation for each Conservation Population. Not Warranted Finding, 72 Fed.

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Reg. at 32,596-97. This population health evaluation considered population size, temporal variability, population connectivity and production potential, which was based on estimates of habitat quality, presence of nonnative fishes, disease, and land-use impacts[.]” Id.; see also Christine L. Hirsch, Shannon E. Albeke, and Thomas P. Nesler, Range-Wide Status of Colorado River Cutthroat Trout (March 2006) (“2006 Range-Wide Status Report” or “Report”), A.R. at 1429 (discussing formulation of population health evaluation). This metric thus considers Factor A (present or threatened destruction of habitat or range) in combination with Factor C (disease or predation) and Factor E (other factors, such as connectivity issues). In addition, the FWS considered the interaction of habitat fragmentation (Factor A) with the exchange of genetic information (Factor E). 72 Fed. Reg. at 32,596. The FWS also discussed how the Trout’s widespread populations (Factor A) are more vulnerable to threats like fire, flood, and drought (Factor E), as well as how this fragmentation protects the Trout from such threats as disease and overfishing (Factors B and C). 72 Fed. Reg. at 32,593-94, 32,596.

The FWS certainly could have been more explicit in articulating the manner in which it considered how factors might combine together to intensify or mitigate threats to the Trout by outlining its analysis of combined effects in a separate section. Nevertheless, the agency’s reasoning can be reasonably discerned here. See Building Industry Assn of Superior Cal. v. Babbitt, 979 F. Supp. at 898. The FWS’s findings – particularly those relating to the
general population health evaluations – adequately demonstrate a consideration of the listing factors in combination, and therefore must be upheld.

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3. Failure to Address Climate Change Effects

Plaintiffs contend that the FWS should have considered the impact of climate change in its assessment. Plaintiffs argue that “climate change will cause significant additional reductions in suitable habitat and will especially impact the majority of the Conservation Populations because of their small size.” Pls.’ Mot. Summ. at 30.

Although the ESA does not expressly require consideration of climate change effects, it does direct the agency to address “natural or manmade factors affecting [a species’] continued existence.” 16 U.S.C. § 1533(a)(1)(E). As scientific assessments increasingly incorporate in-depth analyses of climate change effects, explicit consideration of climate change-related threats may become a necessary component of the status review. The record in this case, however, contains only occasional references to climate change-related threats. There is no statutory requirement that the FWS discuss climate change in its listing decisions, and the Court is reluctant to impose a judicially-created requirement where, as here, climate change is not discussed at length in the record, where the issue was not raised by plaintiffs in their comments to the FWS, and where the record is ambivalent as to its effects. Compare 2006 Range-Wide Status Report at 16 (“If global climate change results in shrinkage of [Trout] habitat to higher elevations . . . there may be opportunity to establish new self-sustaining populations in lakes and streams that were previously too cold for trout recruitment”), with M.K. Young, Colorado River Cutthroat Trout: A Technical Conservation Assessment (2006), A.R. at 9397 (describing climate change as “greatest future threat to the persistence of this species” because of effects on stream movement).

Despite plaintiffs’ contentions, however, the FWS also provided an adequate analysis of the Trout’s historic range and discussed why the historic contraction of its range does not render the
Trout vulnerable in any significant portion of its currently occupied habitat. 72 Fed. Reg. at 32,590. Although the Trout’s current distribution is “approximately 14 percent of probable
historically occupied stream miles” the FWS explained that the Trout are well-distributed throughout this area. Id. The FWS further explained that the loss in population over the last 200
years occurred primarily in the late nineteenth and early twentieth centuries, as a result of nonnative sport fish stocking. Id. at 32,597-99. The FWS did not find evidence of recent
declines in the overall distribution or abundance of the Trout, but rather found evidence that the number of known populations is increasing. Id. at 32,599. Plaintiffs argue that the FWS may not

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simply “point to one area or class of areas where [Trout] populations persist to support a finding that threats to the species elsewhere are not significant; the ESA requires a more thorough explanation.” Pls’ Mot. Summ. at 17 (quoting Tucson Herpetological Soc’y v. Salazar, 566 F.3d at 876). This Court concludes, however, that the FWS, in analyzing the distribution of the
Trout’s current range, identifying recent population trends, and detailing the cessation of the primary cause of past reduction, has provided that more thorough explanation.

Despite plaintiffs’ contentions, however, the FWS also provided an adequate analysis of the Trout’s historic range and discussed why the historic contraction of its range does not render the
Trout vulnerable in any significant portion of its currently occupied habitat. 72 Fed. Reg. at 32,590. Although the Trout’s current distribution is “approximately 14 percent of probable historically occupied stream miles” the FWS explained that the Trout are well-distributed throughout this area. Id. The FWS further explained that the loss in population over the last 200 years occurred primarily in the late nineteenth and early twentieth centuries, as a result of nonnative sport fish stocking. Id. at 32,597-99. The FWS did not find evidence of recent declines in the overall distribution or abundance of the Trout, but rather found evidence that the number of known populations is increasing. Id. at 32,599. Plaintiffs argue that the FWS may not simply “point to one area or class of areas where [Trout] populations persist to support a finding that threats to the species elsewhere are not significant; the ESA requires a more thorough explanation.” Pls’ Mot. Summ. at 17 (quoting Tucson Herpetological Soc’y v. Salazar, 566 F.3d at 876). This Court concludes, however, that the FWS, in analyzing the distribution of the Trout’s current range, identifying recent population trends, and detailing the cessation of the primary cause of past reduction, has provided that more thorough explanation.

The Court acknowledges this tension but finds that the Ninth Circuit’s approach provides an instructive way to address it. In Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th  Cir. 2001), the Ninth Circuit examined the Secretary of the Interior’s decision not to designate the flat-tailed horned lizard as threatened under the ESA, despite a loss of 34 percent of the lizard’s historic range over the twentieth century. Id. at 1141. The court did not rule on whether “range” should be equivalent to historic range or current range, nor did it lay out a definition for the term “significant”. It did find, however, that the FWS was required to explain its reasons for finding that the lost range was not significant: (read entire opinion here)