Case 9:05-cv-00099-DWM Document 52 Filed 09/29/2006 Page 1 of 21 FILED MISSOULA, MT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION DEFENDERS OR WILDLIFE, FRIENDS OF I CV 05-99-M-DWM THE CLEARWATER, KLAMATH-SISKIYOU ) WILDLANDS CENTER, and NORTHWEST 1 ECOSYSTEM ALLIANCE, 1 1 Plaintiffs, 1 1 ) ORDER ) DIRK KEMPTHORNE, in his official 1 capacity as Secretary of the 1 Interior; and H. DALE HALL,in his 1 official capacity as Director, 1 U.S. Fish and Wildlife Service, ) 1 Defendants. 1 I. Introduction Plaintiffs Defenders of Wildlife, Friends of the Clearwater, Klamath-Siskiyou Wildlands Center, and Northwest Ecosystem Alliance challenge the decision of Defendants Dirk Kempthorne and H. Dale Hall, acting through the U.S. Fish and Wildlife service ("FWS"), to deny Plaintiffs' petition to list the wolverine and the concomitant decision not to conduct a status review of whether the wolverine should be designated as an endangered or Case 9:05-cv-00099-DWM Document 52 Filed 09/29/2006 Page 2 of 21 threatened species under Section 4 of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq. (2000). The Parties have filed cross-motions for summary judgment. In my view the FWS did not comply with the law in its negative 90-day finding on Plaintiff's petition. 11. Factual and Procedural Background A. The Wolverine. The North American wolverine (subspecies Gulo gulo 1 uscus) is the largest terrestrial member of the weasel family. Adult males typically weigh 26 to 40 pounds while adult females weigh 17 to 26 pounds. AR 801. They average three to four feet in length. Id. Wolverines are primarily scavengers but will prey on rodents and occasionally larger mammals. AR 46, 94, 801. The wolverine's low reproductive rate is an obstacle to its prosperity. One study indicates that wolverines reproduce at a rate of less than one kit per female per year. AR 859-60. They breed from late spring to early fall and the litters are born between February and April. AR 801-02. The typical wolverine requires large tracts of wilderness for its home range. They forage widely to find carrion, the mainstay of its diet. AR 801, 854-55. Depending on the terrain, a wolverine's home range may encompass over 500 square miles. Id. Historically, wolverines inhabited the northern tier of the contiguous United States from Maine to Washington with populations in Utah, Arizona, New Mexico, and California as well. -2- Case 9:05-cv-00099-DWM Document 52 Filed 09/29/2006 Page 3 of 21 AR 381, 801, 825-26. Currently the wolverine inhabits Montana, Idaho, Wyoming, Washington, and Oregon. Id. B. Attempts to List the Wolverine. In 1994, the Biodiversity Legal Foundation and the Predator Project petitioned the FWS to list the North American wolverine across its entire historic range in the contiguous United States. The ensuing 90-day finding explained that there was not "substantial information" available to indicate that the wolverine warranted listing as an endangered or threatened species. 60 Fed. Reg. 19567, 19568 (Apr. 19, 1995). The finding stated that both the North American wolverine and the California wolverine would retain their place as a candidate Category 2 species .' Id. The FWS dropped the wolverine as a candidate species in 1996 when it redefined "candidate species." Under the new definition a "candidate species" was one where the FWS had sufficient information to issue a proposed rule to list the species due to its biological vulnerability, but the action was precluded by higher priority listing actions. 61 Fed. Reg. 7596 (Feb 28, 1996). Plaintiffs Defenders of Wildlife and Friends of the Clearwater, among others, filed a petition in July 2000 seeking cl his classification meant "information now in possession of the Service indicates that proposing to list as endangered or threatened is possibly appropriate, but for which conclusive data on biological vulnerability and threat are not currently available to support proposed rules." 50 Fed. Reg. 37958 (Sept. 18, 1985), AR 62. Case 9:05-cv-00099-DWM Document 52 Filed 09/29/2006 Page 4 of 21 to list the wolverine and to designate critical habitat for the species. AR 804. One month later the FWS responded explaining that it did not have the resources to conduct the review but would address it as soon as practicable. In October 2002, the petitioners filed suit, Defenders of Wildlife v. Norton CV 02- 165, and in the subsequent settlement agreement the FWS agreed to submit a 90-day finding on the 2000 petition. The FWS submitted the negative 90-day finding on October 21, 2003. 68 Fed. Reg. 60112 (Oct. 21, 2003). In response Plaintiffs filed their Complaint on June 8, 2005. C. The Contested 90-Day Finding. The FWS found the petition to list the wolverine did not "present substantial scientific or commercial information indicating that listing the wolverine in the contiguous United States may be warranted." Id.; AR 800. The FWS stated that "little new information" had been presented since it denied the 1995 petition for a lack of substantial information. AR 800. It did allow that new research was underway that should provide better information. Id. at 800-01. Throughout the finding the FWS returns to the point that the wolverine is "not well understood." Id. The FWS faults the petition for a lack of information about, among other things, the wolverine's historical and present range, the impact of trapping on wolverine populations, the impacts of human disturbances on wolverine reproduction, the impacts of landscape fragmentation, the wolverine's low fertility rate, and the inherent and problems -4- Case 9:05-cv-00099-DWM Document 52 Filed 09/29/2006 Page 5 of 21 associated with lack of Federal protection. Id. at 801-803. At the same time, the EWS acknowledges the wolverine is "difficult and expensive to study." Id. at 801. The finding concludes, "[tlhe paucity of data on wolverine life history and habitat requirements leads us to conclude that there is insufficient evidence." It also added that the FWS "anticipate[d] that ongoing studies of wolverines . will improve our understanding of this species." Id. at 803. D. Plaintiffsf Complaint. The Complaint alleges that the wolverine deserves protection because of numerous threats to its survival. Plaintiffs state that legal trapping in Montana, the loss of wolverine habitat through fragmentation and development, increased human intrusions into wolverine habitat due to advances in snowmobile technology and the increase in helicopter skiing, and the failure of state and local governments to protect the wolverine have all contributed to the decline of the wolverine population. Plaintiffs state two causes of action in the Complaint. First, they allege that the FWS violated section 4 (b)(3) (A) of the ESA, 16 U.S.C. section 1533(b) (3)(A), and its implementing regulation, 50 C.F.R. section 424.14 (b)(1) (2005) when the Agency issued it negative 90-day finding on the petition to list the wolverine under the ESA. The Plaintiffsf second cause of action alleges that the EWS violated the ESA and its implementing regulations through the application of different standards to petitions to delist species in comparison to petitions to list -5- Case 9:05-cv-00099-DWM Document 52 Filed 09/29/2006 Page 6 of 21 species. In their request for relief, Plaintiffs request the Court 1) find the FWS violated the ESA and its implementing regulations through its negative 90-day finding; 2) set aside the finding; 3) issue a permanent injunction requiring the FWS to proceed with a 12-month status review on the wolverine; 4) award Plaintiffs costs, expenses, and attorney fees pursuant to ESA, 16 U.S.C. section 1540(g) (4); and 5) grant other relief as deemed appropriate. 111. Analysis A. Legal Standards. 1. Standard of Review for Agency Actions. The parties have moved for summary judgment on all counts under the ESA. Because the ESA does not provide an independent basis for review, the action is governed by the Administrative Procedure Act ("APA"), which permits judicial review of final agency action. 5 U.S.C. § 706. Judicial review under the APA is limited to the question of whether the FWS acted arbitrarily, capriciously, or otherwise not in accordance with the law. 5 U.S.C. § 706. Agency action can be set aside "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 Case 9:05-cv-00099-DWM Document 52 Filed 09/29/2006 Page 7 of 21 expertise." Motor Vehicle Mfrs. Assfn of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983); Alvarado Community Hospital v. Shalala, 155 F.3d 1115, 1122 (9th Cir. 1998). Courts must ask "whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment ... [courts] also must determine whether the [agency] articulated a rational connection between the facts found and the choice made. [The] review must not rubber-stamp ... administrative decisions that [courts deem] inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute." Ocean Advocates v. U. S. Army Corps of Engineers, 361 F.3d 1108, 1119 (9th Cir. 2004) (internal citations and quotations omitted).