UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
FRIENDS OF BLACKWATER, et al., )
)
Plaintiffs, )
)
v. ) Civ. Action No. 09-2122 (EGS)
)
KENNETH SALAZAR, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
In 1985, the Virginia Northern Flying Squirrel, Glaucomys
sabrinus fuscus, (the “Squirrel”) was listed as an endangered
species under the Endangered Species Act (“ESA”) by the U.S.
Fish and Wildlife Service (“FWS”). Over two decades later, in
2008, the FWS delisted the Squirrel pursuant to the Final Rule
Removing the Virginia Northern Flying Squirrel From the Federal
List of Endangered and Threatened Wildlife (“Delisting Rule”),
73 Fed. Reg. 50,226 (Aug. 26, 2008). Plaintiffs brought this
suit challenging the delisting.1
1
There are six plaintiffs, including five non-profit
organizations and one individual. Defendants are Kenneth
Salazar, the Secretary of the U.S. Department of the Interior
(“Secretary”), and Rowan Gould, Acting Director of the U.S. Fish
and Wildlife Service. (Pursuant to Fed. R. Civ. P. 25(d), Mr.
Gould has been automatically substituted as a defendant for his
predecessor, Sam D. Hamilton, who was sued in his official
capacity.)
1
Pending before the Court are plaintiffs’ motion for summary
judgment and defendants’ cross-motion for summary judgment.
Upon consideration of the motions, the responses and replies
thereto, the applicable law, the administrative record, the
arguments by counsel at the November 17, 2010 motions hearing,
and for the reasons set forth below, plaintiffs’ motion for
summary judgment is hereby GRANTED, and defendants’ cross-motion
for summary judgment is hereby DENIED. The Court concludes that
the agency violated Section 4(f) of the ESA, 16 U.S.C.
§ 1533(f), when it effectively revised its recovery plan for the
Squirrel without employing notice-and-comment rulemaking.
Accordingly, the Court hereby VACATES the Delisting Rule and
REMANDS to the agency for further proceedings consistent with
this Opinion.
I. BACKGROUND
A. The Endangered Species Act
By 1973 when the Endangered Species Act was enacted,
Congress had concluded that “various species of fish, wildlife,
and plants in the United States have been rendered extinct as a
consequence of economic growth and development untempered by
adequate concern and conservation[.]” 16 U.S.C. § 1531(a)(1).
In addition, Congress found that “other species of fish,
wildlife, and plants have been so depleted in numbers that they
are in danger of or threatened with extinction,” and “these
2
species of fish, wildlife, and plants are of esthetic,
ecological, educational, historical, recreational, and
scientific value to the Nation and its people[.]” Id.
§ 1531(a). The ESA was therefore enacted in order “to provide a
means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved [and] to provide a
program for the conservation of such endangered species and
threatened species[.]” Id. § 1531(b).2
On his own initiative or in response to the petition of an
“interested person,” the Secretary of the Interior determines
whether a species is an endangered species or a threatened
species3 based on the evaluation of five factors, “(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
2
The ESA states that “‘conserve,’ ‘conserving,’ and
‘conservation’ mean to use and the use of all methods and
procedures which are necessary to bring any endangered species
or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary.” 16
U.S.C. § 1532(3).
3
The ESA defines “endangered species” as “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 defined as “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). The
Secretary is required to maintain and publish lists in the
Federal Register of all species which have been determined to be
endangered or threatened. Id. § 1533(c)(1).
3
or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting
its continued existence.” Id. § 1533(a)(1). The Secretary is
required to make this determination “solely on the basis of the
best scientific and commercial data available[.]” Id.
§ 1533(b)(1).
Once a species is designated an endangered or threatened
species, certain legal protections are triggered. Among other
things, the ESA directs the Secretary to develop and implement
“[recovery] plans . . . for the conservation and survival of
endangered species and threatened species . . . unless he finds
that such a plan will not promote the conservation of the
species.” Id. § 1533(f)(1). Prior to the final approval of a
new or revised recovery plan, the Secretary is required to
“provide public notice and an opportunity for public review and
comment on such plan.” Id. § 1533(f)(4). Furthermore, each
recovery plan “shall, to the maximum extent practicable, . . .
incorporate in each plan -- (i) a description of such site-
specific management actions as may be necessary to achieve the
plan’s goal for the conservation and survival of the species;
(ii) objective, measurable criteria which, when met, would
result in a determination, in accordance with the provisions of
this section, that the species be removed from the list; and
(iii) estimates of the time required and the cost to carry out
4
those measures needed to achieve the plan’s goal and to achieve
intermediate steps toward that goal.” Id. § 1533(f)(1)(B).
At least once every five years, the Secretary must conduct
a review of all listed species to determine whether any species
should be delisted, or whether the status of any species should
be changed from threatened to endangered or vice versa. See id.
§ 1533(c)(2). A determination to delist or change the status of
an endangered or threatened species is made on the basis of the
same five factors in § 1533(a)(1) that govern the initial
listing of a species. See id. § 1533(c)(2); 50 C.F.R.
§ 424.11(d).
B. Factual Background
i. The Virginia Northern Flying Squirrel and Its
Listing as an Endangered Species
At stake in the instant action is a subspecies of the
northern flying squirrel: the Virginia Northern Flying Squirrel,
also known as the West Virginia Northern Flying Squirrel
(Glaucomys sabrinus fuscus) (the “Squirrel”).4 The Squirrel is a
“small, nocturnal, gliding mammal” with “distinctive patagia
4
Two species of flying squirrel exist in North America, the
southern flying squirrel (Glaucomys volans) and the northern
flying squirrel (Glaucomys sabrinus). 50 Fed. Reg. 26,999. The
northern flying squirrel is found mainly in Canada, Alaska, and
the western and northern parts of the conterminous United
States. However, certain subspecies of the northern flying
squirrel, including the one at issue in the instant case, exist
in the Appalachian Mountains of North Carolina, Tennessee,
Virginia and West Virginia. Id.
5
(folds of skin between the wrists and ankles) . . . supported by
slender cartilages extending from the wrist bones; these plus
the broad tail create a large gliding surface area and are the
structural basis for the squirrel’s characteristic gliding
locomotion. Adults are dorsally gray with a brownish, tan, or
reddish wash, and grayish white or buffy white ventrally.”
AR at 15075 (internal citations omitted).5
The historic range of the Squirrel is believed to
correspond roughly to the distribution of old-growth red spruce
and northern hardwood forests that existed prior to the
extensive logging and accompanying fires that occurred at the
turn of the 20th century in the Allegheny Highlands, a section
of the Appalachian Mountains extending into West Virginia and
Virginia. This historic range encompassed an estimated 500,000
to 600,000 acres of old-growth red spruce forests. AR at 172.
In 1985, the FWS determined that the Virginia Northern
Flying Squirrel and the Carolina Northern Flying Squirrel6 were
endangered subspecies within the meaning of the ESA.
Determination of Endangered Status for Two Kinds of Northern
Flying Squirrel (“1985 Listing Rule”), 50 Fed. Reg. 26,999. In
5
Citations to the Administrative Record are abbreviated “AR”.
6
Although the Carolina Northern Flying Squirrel was listed as
endangered simultaneously with the Virginia Northern Flying
Squirrel, only the Virginia Northern Flying Squirrel has been
delisted and accordingly is the subject of this litigation.
6
particular, the 1985 Listing Rule stated that “[a]vailable
evidence indicates that [the two subspecies] are rare and that
their historical decline is continuing.” Id. Efforts to
capture and identify individual squirrels, for the purpose of
evaluating the population, had resulted in the capture of very
few squirrels. Id. Considering the first of the five factors
outlined by the ESA under § 1533(a)(1), the FWS explained in the
1985 Listing Rule that:
[The two subspecies] now have a relictual
distribution, restricted to isolated areas at high
elevations, separated by vast stretches of unsuitable
habitat. In these last occupied zones, the squirrels
and their habitat may be coming under increasing
pressure from human disturbance, such as logging and
development of skiing and other recreational
facilities.
50 Fed. Reg. 26,999, 27,000.7
ii. The Recovery Plan
In 1990, in accordance with the requirements of § 1533(f),
the FWS issued an Appalachian Northern Flying Squirrels Recovery
Plan (“Recovery Plan”). Ultimately, the objective of the
7
The agency also concluded that the northern flying squirrel
(including the subspecies at issue in the present litigation)
was losing ground to the southern flying squirrel. In
particular, the agency pointed out that “logging and other
clearing activity has not only reduced the original habitat of
the northern flying squirrel, but resulted in an invasion of
this zone by the southern flying squirrel. . . . Regrowth in the
cleared areas, if any, tended to be deciduous forest favored by
[the southern flying squirrel], and hence the way was open for
the spread of that species.” 50 Fed. Reg. 26,999, 27,000.
7
Recovery Plan was to set forth a plan that, if accomplished,
would “remove [the Squirrel] from the list of endangered and
threatened species.” AR at 15092. The agency envisioned that
this would occur in two stages. The Squirrel would first be
“downlisted” from endangered status to threatened status and
then later delisted altogether. AR at 15092. Accordingly, the
agency first outlined three criteria necessary for downlisting
the species from endangered to threatened status, stating that:
Downlisting from endangered to threatened status will
be possible when it can be documented that:
[1] squirrel populations are stable or expanding
(based on biennial sampling over a 10-year period) in
a minimum of 80% of all Geographic Recovery Areas
designated for the subspecies, [2] sufficient
ecological data and timber management data have been
accumulated to assure future protection and
management, and [3] [Geographic Recovery Areas] are
managed in perpetuity to ensure: (a) sufficient
habitat for population maintenance/expansion and
(b) habitat corridors, where appropriate elevations
exist, to permit migration among [Geographic Recovery
Areas].
AR at 15092.8
In addition to the three factors necessary for downlisting,
the agency identified a fourth factor that would need to be met
to warrant delisting the Squirrel completely. Specifically, the
agency stated in the Recovery Plan that:
8
The Recovery Plan identified five Geographic Recovery Areas
(“GRAs”) that corresponded with the known distribution of the
Squirrel at the time. The GRAs encompassed terrain in 10
counties in West Virginia and one county in Virginia. AR at
15090.
8
De-listing will be possible when, in addition to the
above factors, it can be demonstrated that . . . the
existence of the high elevation forests on which the
squirrels depend is not itself threatened by
introduced pests, such as the balsam wooly adelgid or
by environmental pollutants, such as acid
precipitation or toxic substance contamination.
AR at 15092.
Accompanying the criteria necessary for downlisting and
ultimately delisting the species, the Recovery Plan also
contained a detailed narrative describing numerous recovery
tasks identified by the agency.9 A detailed implementation
schedule was also included in the Recovery Plan, as well as
guidelines for the identification and management of the
Squirrels’ habitat. AR at 15112-15118.10
9
The scope of these tasks was quite ambitious. Tasks included,
among others, establishing a recovery advisory committee,
determining the Squirrels’ distribution, identifying and
surveying potential habitats, monitoring known populations,
conducting in-depth studies of the Squirrels’ habitat
requirements, studying the relationship among population size,
habitat size and habitat quality, studying the effects of timber
harvest and other developments on Squirrels’ habitat, studying
the diet of the species, investigating the potential
accumulation of toxins – particularly pesticides and heavy
metals – in the Squirrels’ food supply, studying the interaction
of the endangered species with other species of squirrels,
determining the genetic variability within the species,
developing guidelines for private landowners and other
individuals, implementing protection procedures and policies,
and implementing educational programs. AR at 15093-15105.
10
In 2001, the FWS issued a relatively brief Appalachian
Northern Flying Squirrels Recovery Plan Update (“Recovery Plan
Update”). The primary purpose of the Recovery Plan Update was
to amend the habitat identification guidelines that were
contained in Appendix A of the original Recovery Plan. In
9
iii. The 5-Year Review
The five-year review of the Squirrel began in 2003, despite
the ESA’s requirement that “[t]he Secretary shall . . . conduct,
at least once every five years, a review of all species [listed
as endangered or threatened] and . . . determine on the basis of
such review whether any such species should (i) be removed from
such list; (ii) be changed in status from an endangered species
to a threatened species; or (iii) be changed in status from a
threatened species to an endangered species.” 16 U.S.C.
§ 1533(c)(2). Early drafts of the report did not recommend
delisting the Squirrel.11 However, after internal editing, the
particular, the agency noted that it may have placed too much
emphasis on the use of live trapping and/or the placement and
monitoring of manmade nest boxes to determine the presence of
the Squirrel in a particular area. AR at 15212. The FWS stated
that it now believed that the Squirrel was “less likely to use
nest boxes or enter traps in good quality habitat due to the
natural presence of numerous den sites and an abundance of
preferred foods.” AR at 15212. Based on the additional
information obtained since the 1990 Recovery Plan, the FWS
concluded that “[r]ecovery of [the Squirrel] must go beyond
protecting only those areas where the squirrel can be located
through trapping and nest box placement and monitoring.” AR at
15212. The amendments made no changes to any of the criteria
contained in the 1990 Recovery Plan relating to downlisting or
delisting the Squirrel.
11
For example, in a 2003 draft of the report, it states that
“[a] change in classification is not warranted at this time.
Additional information on population trends and ecosystem health
would allow a more thorough and reliable review of the
subspecies’ status.” AR at 6132. The same 2003 draft states
that “habitat loss has continued since listing on public and
private lands,” and that “[h]abitat loss, alteration, and
fragmentation . . . are still primary threats to the [Squirrel].
10
final version of the five-year review document, the West
Virginia Northern Flying Squirrel 5-Year Review: Summary and
Evaluation (the “5-Year Review Summary”), altered course and
recommended that the Squirrel be delisted in April of 2006.
Significantly, in the final version, the FWS decided not to
evaluate the status of the Squirrel based on the parameters of
the agency’s 1990 Recovery Plan. In so doing, the FWS explained
that, “[a]lthough the recovery criteria as they apply to [the
Squirrel] were deemed objective, measurable, and adequate when
the plan was approved in 1990 and updated in 2001, they do not
meet current standards for adequacy. . . . [T]he plan is not
actively used to guide recovery for two reasons: first, it was
developed over 15 years ago and needs updating, and, second, its
recovery criteria and actions are, for the most part, combined
and generalized for both [the Carolina Northern Flying Squirrel]
and [the Virginia Northern Flying Squirrel].” AR at 166.
Instead of applying the criteria set forth in the Recovery Plan,
the FWS conducted an analysis based on the five listing factors
contained in § 1533(a)(1) of the ESA.12
Acid deposition (industrial discharge), mineral extraction,
private land development, highway construction, and exotic pests
– instead of logging – are the leading sources of these
stresses.” AR at 006125; AR at 6129.
12
With respect to § 1533(a)(1)(A) (“Factor A”), the agency
concluded that the habitat occupied by the Squirrel was much
more extensive than previously understood, and the Squirrel was
11
In light of the results of its 5-Year Review Summary, the
agency concluded that “the species is persisting throughout its
historic range . . . . Habitat loss is localized, and a
substantial amount of habitat is now considered secure and
improving in quality. Therefore . . . it is evident that [the
Squirrel] does not meet the definition of endangered or
“more resilient in its habitat use than formerly thought[.]” AR
at 173. FWS explained that the conclusions in 1985 were based
on an underestimation of the ability of the Squirrel to utilize
ecosystems other than the red spruce and spruce-hardwood
ecosystem. AR at 181. With respect to § 1533(a)(1)(B) (“Factor
B”), the agency noted that, contrary to its findings in 1985,
“in the 21 years since listing the Service has not received any
evidence that overutilization is a threat” and that “there is no
evidence of commercial use in the pet trade or of recreational
use of [the Squirrel].” AR at 176. Similarly, in the 5-Year
Review Summary, the agency found no threats based on “disease
and predation” under § 1533(a)(1)(C) (“Factor C”). Regarding
§ 1533(a)(1)(D)(“Factor D”), requiring the agency to consider
“the inadequacy of existing regulatory mechanisms,” the agency
came to the conclusion that “[o]verall, existing regulatory
mechanisms in conjunction with continuing forest management
provisions and landowner agreements make it highly likely that
[the Squirrel] will be protected and managed for the long term
across most of its range, irrespective of the subspecies’
listing status under the federal ESA.” AR at 178. Finally,
regarding § 1533(a)(1)(E) (“Factor E”), addressing the “other
natural or manmade factors” affecting a species, the FWS
concluded that no serious threat to the Squirrel could be
identified. Addressing the concern from 1985 that a parasite
carried by the southern flying squirrel threatened the northern
flying squirrels, the agency determined that the evidence had
not been accurately interpreted and further concluded that
“observations of [the Squirrel] capture[d] in the last 20 years
. . . have shown no signs of sickness, debilitation, or death
due to parasite infection.” AR at 178. The agency also
analyzed a handful of potential threats that had arisen since
the 1985 listing, including two forest pests (the hemlock woolly
adelgid and the balsam woolly adelgid), beech bark disease, acid
precipitation, and climate change. AR at 179-180.
12
threatened.” AR at 182. The agency indicated that it would
initiate the process to delist the species.
iv. Delisting of the Squirrel
After the requisite notice and comment period, the FWS
promulgated the Delisting Rule on August 26, 2008. 73 Fed. Reg.
50,226. The Delisting Rule largely reflects the conclusions
drawn in the 5-Year Review Summary issued in 2006. In
particular, the decision to delist the Squirrel in 2008 appears
to have been prompted principally by a conclusion that the
Squirrel was not as rare as was previously believed. As the
agency explained in the Delisting Rule:
At the time of listing, the [Squirrel] was thought to
be an extremely rare and declining taxon that had
disappeared from most of its historical range. We now
know that occupancy of available habitat has increased
and is much more widespread and well connected than
formerly thought, and the geographic extent of the
[Squirrel’s] range approximates historical range
boundaries . . . . Additionally, we have learned that
the [Squirrel] has adapted to changes in the spruce
ecosystem over the past hundred years, and can
successfully exploit the existing habitat conditions
throughout the landscape.
AR at 20.
As the agency had done in the 5-Year Review, it assessed
the species based upon the five factors contained in
§ 1533(a)(1) and did not apply all of the criteria in the
Recovery Plan. (In its analysis of the five factors, the agency
reached substantially the same conclusions as the 5-Year Review
13
Summary.) In so doing, the agency explained in the Delisting
Rule its position that “[r]ecovery plans are not regulatory
documents and are instead intended to provide guidance to the
Service, States, and other partners on methods of minimizing
threats to listed species and on criteria that may be used to
determine when recovery is achieved.” AR at 1. The agency went
on to further explain that:
There are many paths to accomplishing recovery of a
species, and recovery may be achieved without all
criteria being fully met. For example, one or more
criteria may have been exceeded while other criteria
may not have been accomplished. . . . In other cases,
recovery opportunities may have been recognized that
were not known at the time the recovery plan was
finalized. These opportunities may be used instead of
methods identified in the recovery plan. Likewise,
information on the species may be learned that was not
known at the time the recovery plan was finalized.
This new information may change the extent to which
criteria need to be met for recognizing recovery of
the species. Overall, recovery of species is a
dynamic process requiring adaptive management, and
judging the degree of recovery of a species is also an
adaptive management process that may, or may not,
fully follow the guidance provided in a recovery plan.
AR at 1-2.
Using this approach to recovery plans, the agency then
determined that “[n]ew information on the [Squirrel] has been
learned that was not known at the time the recovery plan and the
amendment were finalized. . . . This new information changes the
extent to which two of the four Recovery Plan criteria need to
be met for recognizing recovery of the subspecies.” AR at 2.
14
The two criteria affected were the first and the third criteria
of the Recovery Plan, relating to the Squirrel population and
the management of the GRAs, respectively.
As noted above, the first criterion set out in the Recovery
Plan required that downlisting or delisting would be
possible “when it can be documented that: . . . squirrel
populations are stable or expanding (based on biennial sampling
over a 10-year period) in a minimum of 80% of all Geographic
Recovery Areas designated for the subspecies.” AR at 15092.
Nonetheless, the agency did not rely upon population trend data
when delisting the species, as was contemplated by the first
criterion in the Recovery Plan. Instead, the agency relied upon
evidence of “persistence” of the species. AR at 2, 14. The
agency defined persistence as “continuing captures of [the
Squirrel] over multiple generations at previously documented
sites throughout the historical range.” AR at 2.13
Using the persistence data, the agency concluded that the
intent of the first criterion, namely a “robust” population, had
been met. As the agency explained in an analysis appended to
the Delisting Rule:
13
The agency further explained that, “[b]ecause [the Squirrel]
first reproduces at 1-2 years, and has a relatively short life
span, averaging approximately 3 years, persistence at a single
monitoring site over 5 years indicates successful reproduction
across multiple (three to five) generations.” AR at 2.
15
The intent of [the first] criterion was to document
that populations are robust; i.e., stable or expanding
trends across most of the core areas of [the Squirrel]
distribution. Based upon use of the best available
scientific data, we conclude that the intent of this
criterion has been met, considering that there has
been no extirpation documented at any site in over 20
years of monitoring (13-20 generations), and existing
populations appear to be stable (persisting for
multiple generations) across all seven core areas of
[the Squirrel] distribution. In addition, the
[Squirrel] is much more widespread than the five GRAs
originally designated in the recovery plan. The
number and size of the GRAs has increased, and the
current range of the [Squirrel] approximates 85% of
its historic range.
Analysis of Recovery Plan Criteria for the West Virginia
Northern Flying Squirrel, AR at 39.
Similarly, the agency asserted that the “intent” had been
met with respect to the third criterion of the Recovery Plan,
which provided that downlisting or delisting would be possible
when it could be documented that the five GRAs identified in the
Recovery Plan “are managed in perpetuity.” AR at 15092. The
agency concluded that the intent of this criterion had been met
because “79% of the [Squirrel] habitat (189,785 acres) is likely
to remain protected from logging and other disturbances for the
foreseeable future,” and “[a]ll of the five original GRAs in the
recovery plan are predominantly in public ownership[.]” AR at
46.
Plaintiffs initiated this lawsuit challenging, among other
things, the agency’s conclusion that it need not do more than
16
meet the “intent” of the criteria laid out in the Recovery Plan.
Plaintiffs’ motion for summary judgment and defendants’ cross
motion are now ripe for consideration by the Court.
II. STANDARD OF REVIEW
“Since the ESA does not specify a standard of review,
judicial review is governed by Section 706 of the Administrative
Procedure Act.” Gerber v. Norton, 294 F.3d 173, 178 n.4 (D.C.
Cir. 2002) (quoting Cabinet Mountains Wilderness v. Peterson,
685 F.2d 678, 685 (D.C. Cir. 1982)). The Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 701-706, provides a right to
judicial review of final agency actions. Under the APA, federal
agency actions are to be held unlawful and set aside where they
are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law[.]” 5 U.S.C. § 706(2)(A). To make
this finding, the court must determine whether the agency
“considered the relevant factors and articulated a rational
connection between the facts found and the choice made.” Keating
v. FERC, 569 F.3d 427, 432 (D.C. Cir. 2009) (quoting Balt. Gas &
Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105
(1983)).
Where a court is reviewing an agency’s interpretation of a
statute that the agency is charged with administering, the
appropriate standard of review is the framework set forth in
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
17
U.S. 837 (1984). In particular, “[u]nder step one of Chevron,
[the court] ask[s] whether Congress has directly spoken to the
precise question at issue, in which case [the court] must give
effect to the unambiguously expressed intent of Congress.” Sec’y
of Labor, Mine Safety & Health Admin. v. Nat'l Cement Co. of
California, Inc., 494 F.3d 1066, 1073 (D.C. Cir. 2007)(internal
quotations omitted). If the court concludes that the “‘statute
is silent or ambiguous with respect to the specific issue’. . .
[the court] move[s] to the second step and defer[s] to the
agency’s interpretation as long as it is ‘based on a permissible
construction of the statute.’” Nat'l Cement Co., Inc., 494 F.3d
at 1074 (quoting Chevron, 467 U.S. at 843).
III. ANALYSIS
Plaintiffs’ principal argument in this lawsuit is that
Section 4(f) of the ESA, which covers the use of recovery plans
by the agency, imposes obligations on the FWS that were not
fulfilled in connection with the delisting of the Squirrel. In
particular, plaintiffs argue that “when FWS establishes recovery
criteria for a species or subspecies in a formal recovery plan,
the agency is required to abide by those criteria in making
status determinations unless it amends the recovery plan in the
manner ordained by the ESA.” Pls.’ Mem. at 25.
In response to plaintiffs’ position, defendants argue that
because the ESA “is clear on its face that the [agency’s]
18
delisting analysis is based on the threats found under the five
factors provided by [16 U.S.C. §1533(a)],” the decision to
delist a species is not “governed by . . . the ‘objective,
measurable criteria’ specified in a recovery plan.” Defs.’
Reply at 6-7. Defendants argue that the purpose of recovery
plans is merely to “establish guidance and direction that can be
meaningfully utilized and implemented to recover a species.”
Defs.’ Mem. at 35; see also AR at 1 (“Recovery plans are not
regulatory documents and are instead intended to provide
guidance . . . on methods of minimizing threats to listed
species and on criteria that may be used to determine when
recovery is achieved. There are many paths to accomplishing
recovery of a species, and recovery may be achieved without all
criteria being fully met.”).14
Defendants’ arguments and the position taken by the agency
in the Delisting Rule raise two questions for the Court. The
first issue is whether the agency’s decision to set aside two of
14
Defendants also argue that “Congress did not impose a mandate
to the [agency] to ‘revise’ recovery plans based on new or
emerging information, belying Plaintiffs’ claims that the
[agency] must revise a recovery plan prior to conducting an
inquiry under [16 U.S.C. § 1533(a)].” Defs.’ Mem. at 34; see
also Defs.’ Reply at 7 (“the ESA imposes no obligation to
continually update or revise a recovery plan.”) However, as is
discussed below, the Court finds that the agency did in fact
revise the Recovery Plan for the Squirrel when it essentially
abandoned two of the four criteria contained in its own Recovery
Plan. Accordingly, whether or not the ESA requires the agency
to revise a recovery plan under certain circumstances is not
determinative.
19
the four criteria in its Recovery Plan constituted a revision to
the Recovery Plan. The second question is whether the agency’s
position that it met the “intent” of the Recovery Plan criteria
satisfies the requirements of the ESA. Each of these topics is
discussed in turn.
A. The Agency’s Decision to Set Aside the Criteria
Contained in the Recovery Plan
Defendants’ arguments rely on the position that recovery
plans merely provide guidance, which may be set aside without
such an action constituting a revision to the Recovery Plan,
because the ESA only requires the agency to consider the five
factors of § 1553(a)(1), using the best available science, when
delisting a species. Defs.’ Mem. at 36; Defs.’ Reply at 9
(“[W]hile the criteria [of a recovery plan] help to inform a
delising analysis, the criteria do not control a delisting
analysis.”).
There are two flaws in the approach taken by the agency and
the defendants’ arguments in this litigation. First, the
statutory language of the ESA makes it clear that the obligation
to “develop and implement” recovery plans and to include
objective and measurable criteria in those recovery plans are
mandatory aspects of the ESA. As noted above, the ESA mandates
that “[t]he Secretary shall develop and implement [recovery]
plans . . . for the conservation and survival of endangered
20
species and threatened species[.]” 16 U.S.C. § 1533(f)(1)
(emphasis added).15 Recovery plans fulfill one of the purposes
of the ESA that the FSW “do far more than merely avoid the
elimination of protected species. It must bring these species
back from the brink so that they may be removed from the
protected class, and it must use all methods necessary to do
so.” Defenders of Wildlife v. Andrus, 428 F. Supp. 167, 170
(D.D.C. 1977).
Furthermore, Congress did not stop with a simple
requirement to develop and implement a recovery plan. The ESA
requires that each recovery plan shall, among other things, “to
the maximum extent practicable . . . incorporate in each
plan . . . objective, measurable criteria which, when met, would
result in a determination, in accordance with the provisions of
this section, that the species be removed from the list[.]” 16
U.S.C. § 1533(f)(1)(B).16 In the event the agency finds it
necessary to revise a recovery plan, Congress expressly provides
a vehicle for doing so: the statute states that “[t]he Secretary
15
The statute does provide an exception. A recovery plan is not
required if the Secretary “finds that such a plan will not
promote the conservation of the species.” 16 U.S.C.
§ 1533(f)(1). However, defendants have not taken the position
that a recovery plan would not have “promoted the conservation”
of the Squirrel, and, in any event, the agency did indeed create
a recovery plan for the Squirrel. The exception therefore
appears inapplicable in the instant case.
16
In the instant case, four objective, measurable criteria were
clearly laid out on page 18 of the Recovery Plan. AR at 15092.
21
shall, prior to final approval of a new or revised recovery
plan, provide public notice and an opportunity for public review
and comment on such plan.” 16 U.S.C. § 1533(f)(4)(emphasis
added).
The legislative history reinforces the unambiguous meaning
of the statute. In conjunction with the 1988 amendment to the
ESA, which added the “objective, measurable criteria”
requirement, Congress explained that:
Section 4(f) of the Act is amended to require that
each recovery plan incorporate descriptions of site-
specific management actions to achieve recovery,
criteria by which to judge success of the plan, and
time frames and estimates of costs to carry out the
planned recovery. . . . These descriptions, criteria,
and estimates currently are not provided uniformly in
recovery plans. Incorporation of this information
will ensure that plans are as explicit as possible in
describing the steps to be taken in the recovery of a
species. . . . The requirement that plans contain
objective, measurable criteria for removal of a
species from the Act’s lists and timeframes and cost
estimates for intermediate steps toward that goal will
provide a means by which to judge the progress being
made toward recovery.
S. Rep. No. 240, 100th Cong., 2d. Sess. 111-32 (1988), reprinted
in 1988 U.S.C.C.A.N. 2700, 2708-2709.
In light of the above statutory language and accompanying
legislative history, the Court concludes that the agency’s
decision to set aside two of the criteria in its Recovery Plan
constituted a revision to the Recovery Plan within the meaning
22
of the ESA. Accordingly, the agency was required to employ
notice-and-comment rulemaking.
The second flaw in defendants’ position is that it would
render an explicit provision of the ESA meaningless, violating
the “cardinal principle of statutory construction” that Courts
shall “give effect, if possible, to every clause and word of a
statute . . . rather than to emasculate an entire section.”
Bennett v. Spear, 520 U.S. 154, 173 (1997)(internal quotations
omitted). Defendants have taken the position that because
§ 1533(a)(1), containing the five factors discussed above, fails
to mention recovery plans, Congress intended these factors to be
the only restrictions on the agency’s ability to delist a
species. However, § 1533(f) must be understood as imposing
separate, distinct obligations on the agency. Merely because
§ 1533(a) imposes one set of requirements on the agency does not
mean that § 1533(f), imposing separate obligations on the
agency, may be disregarded. Permitting the FWS to set aside two
of the four criteria in its own Recovery Plan while taking the
position that such an action was not a revision to the Recovery
Plan, would render the provision requiring the agency to subject
its revisions to public notice and comment meaningless.
Even assuming that defendants correctly assert that the
Recovery Plan for the Squirrel was outdated and contained
“criteria [that] did not relate directly to threats to the
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Squirrel under the five factors that formed the basis of the
listing decision,” Defs.’ Mem. at 6, such a conclusion merely
supports a revision of the Recovery Plan. Congress clearly
contemplated that revisions to recovery plans might become
necessary, and the Secretary is plainly required to employ
notice-and-comment rulemaking and “consider all information
presented during the public comment period prior to approval of
the plan.” 16 U.S.C. § 1533(f)(4). Similarly, defendants’
argument that “should the provisions of a recovery plan no
longer constitute the best available scientific data, the
[agency] cannot ignore recent and credible scientific data
simply to defer to the contents of a recovery plan,” Defs.’
Mem. at 31-32, again does not explain the agency’s failure to
comply with the procedures laid out in § 1533(f)(4) for the
revision of recovery plans.
Defendants also point to the ESA’s directive that the
agency “shall, to the maximum extent practicable . . .
incorporate in each plan . . . objective, measurable criteria
which, when met, would result in a determination . . . that the
species be removed from the list[.]” 16 U.S.C. § 1533(f)(1).
Defendants focus on the use of the word “would” in support of
their argument that “the text expressly recognizes a
hypothetical and contingent possibility.” Defs.’ Mem. at 33.
However, the language cited by defendants does not give the
24
agency discretion to revise its recovery plan without
consideration of the procedural requirements set forth in
§ 1533(f)(4); rather, it imposes on the agency an additional
requirement that the recovery plan criteria reflect certain
goals, i.e., that the criteria enable the eventual delisting of
the species. As this District has already held, “the word
‘would’ . . . is used in the conclusion of a conditional
sentence to express a contingency or possibility. Therefore,
‘would result in a determination . . . that the species be
removed from the list’ sets a target to be aimed at by meeting
the recovery goals set forth in the Plan.” Fund for Animals v.
Babbit, 903 F. Supp. 96, 103 (D.D.C. 1995)(internal citations
omitted).
B. Whether the Agency Complied with the ESA by
Considering the “Intent” of the Recovery Plan Criteria
In the Delisting Rule, the agency conceded that neither the
first criterion, “stable or expanding populations (based on
biennial sampling over a ten-year period) in a minimum of 80% of
the Geographic Recovery Areas,” nor the third criterion, “the
management of the Geographic Recovery Areas in perpetuity,” were
actually met at the time of delisting. However, the agency
takes the position that the consideration of other data met the
“intent” of these two criteria such that the agency’s actions
did not constitute a revision to the recovery plan. Defs.’ Mem.
25
at 14-15; AR at 37 (Delisting Rule states that “it is not
practicable or necessary to measure actual [Squirrel] population
numbers.”).
The agency argues that the intent of the first criterion
was met because the data collected showed a “robust population.”
Defs.’ Mem. at 15; AR at 39. In particular, defendants cite the
fact that, whereas in 1981 only one individual Squirrel at one
individual survey site had been identified, by 2006 the number
of survey sites had risen to 109 and the number of captured
Squirrels to 1,198. Defs.’ Mem. at 14-15; AR at 37-39.
Similarly, the defendants argue that the agency properly
concluded that the intent of the third criterion had been met
because “the present circumstances are significantly improved,”
Defs.’ Mem. at 15, and “the original goal of permanent habitat
protection of a few small areas is no longer necessary.” AR at
41. Essentially, at the time of the listing and at the time the
recovery plan was written, both the number of individual
Squirrels and the number of occupied sites were believed to be
extremely limited. According to the defendants, “[i]n such
circumstances, prudency required permanent protection of those
few remaining Squirrel individuals[.]” Defs.’ Mem. at 15.
However, once the agency determined that the present
circumstances were significantly improved, such protections were
no longer needed. In support of this position, defendants cite
26
four factors relating to the recovery of the Squirrel: (1) the
Squirrel spans roughly 85% of its former range; (2) all five of
the GRAs identified in the 1985 Listing Rule are sufficiently
interconnected to permit migration; (3) all five of the original
Geographical Recovery Areas are now “predominantly” in public
ownership; and (4) nearly 80% of all potential Squirrel habitat
is protected from logging through various measures. Defs.’ Mem.
at 15.
Finally, the defendants argue that it would be illogical to
require the agency to meet the criteria of an outdated recovery
plan. Regarding the Squirrel’s Recovery Plan in particular,
defendants assert that “[o]lder recovery plans, such as this,
typically focused on demographic parameters (e.g., population
numbers, trends, and distribution), which are valid and useful
sources of information, but alone do not determine a species’
status.” Defs.’ Mem. at 6.
The court is not persuaded that the agency’s decision to
meet only the “intent” of its Recovery Plan criteria for the
Squirrel complied with the ESA. The statute unambiguously
requires that criteria must be “objective” and “measurable.” 16
U.S.C. § 1533(f)(1)(B)(ii). Here, no one contests that the
original criteria were objective and measurable when they were
adopted as part of the Recovery Plan. The first criterion, for
example, called for the agency to downlist or delist only when
27
it could be documented that “squirrel populations are stable or
expanding (based on biennial sampling over a 10-year period) in
a minimum of 80% of all Geographic Recovery Areas designated for
the subspecies.” AR at 15092. Instead of applying this
Recovery Plan criterion, however, the agency now takes the
position that the intent of this criterion can be met with
persistence data rather than population data because, according
to the agency, the “intent of this recovery criterion was to
document that populations are robust.” AR at 37. Using
“robust population” as a criterion does not satisfy the
statutory requirement that the recovery plan criteria be
“measurable” and “objective”.
At the very least, the alteration of the first and third
criteria in this manner is a revision to the recovery plan that
ought to have been subjected to public notice and comment, as
required by § 1533(f)(4). Defendants’ attempts to persuade the
Court that subjecting a revised recovery plan to notice-and-
comment rulemaking would be “illogical” and a “make-work
exercise” ignore Congress’ explicit instruction that the public
be given an opportunity to comment on revisions to recovery
plans. The statutory language is plain, and the Court therefore
“must give effect to the unambiguously expressed intent of
Congress.” Nat'l Cement Co. of California, 494 F.3d at 1073.
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IV. REMEDY
The Court concludes that vacating the Delisting Rule is the
appropriate course of action in light of the agency’s failure to
comply with Section 4(f) of the ESA.17 In deciding whether to
vacate an agency’s rule, this Circuit has focused on two
factors, namely the “seriousness of the order’s deficiencies
(and thus the extent of doubt whether the agency chose
correctly) and the disruptive consequences of an interim change
that may itself be changed.” Int’l Union, United Mine Workers
17
The Court finds sufficient basis to remand to the agency on
this ground alone; therefore, other arguments advanced by
plaintiffs are not addressed. However, the Court does note that
the agency appears to have taken the position that Factor D,
requiring the agency to consider the “inadequacy of existing
regulatory mechanisms,” need not be separately analyzed if no
threats are identified under Factors A, B, C or E. In
particular, the agency stated in its Delisting Rule that
“[c]urrently, all threats under Factors A-C, and E have been
eliminated or abated, and no regulatory mechanisms are needed to
delist the [Squirrel]. Therefore, the inadequacy of regulatory
mechanisms is not considered a threat to the subspecies.” AR at
19. As plaintiffs correctly state, and defendants themselves
seem to acknowledge, the ESA mandates that a species be listed
as endangered or threatened if any one of the five factors
contained in § 1533(a)(1) is implicated. 16 U.S.C.
§ 1533(a)(1); AR at 13 (“Species are listed or delisted under
the Act based on whether they are threatened or endangered by
one or more Factors[.]”); see also Am. Wildlands v. Kempthorne,
530 F.3d 991, 994 (D.C. Cir. 2008). Accordingly, to the extent
the agency’s decision was based on an analysis that did not
separately assess the adequacy of existing regulatory
mechanisms, the agency is directed to do so on remand.
29
of Am. v. Federal Mine Safety & Health Admin., 920 F.2d 960, 967
(D.C. Cir. 1990); see also Milk Train v. Veneman, 310 F.3d 747,
755-756 (D.C. Cir. 2002).
Here, FWS failed to comply with unambiguous provisions of
the ESA, and the Court is not inclined to speculate what the
consequence of a properly revised recovery plan will be on the
status of this species. Furthermore, as this Court previously
held in Humane Society v. Kempthorne 579 F. Supp. 2d 7, 21
(D.D.C. 2008) “the ESA's preference for protecting endangered
species counsels strongly in favor of vacating the [Delisting]
Rule while FWS revisits its statutory interpretation.” Id.
(citing NRDC v. U.S. Dep't of the Interior, 275 F. Supp. 2d
1136, 1145 (C.D. Cal. 2002)). The Court therefore will vacate
the Delisting Rule and remand it to the agency for further
proceedings.
V. CONCLUSION
For the foregoing reasons, plaintiffs’ motion for summary
judgment is hereby GRANTED, and defendants’ cross-motion for
summary judgment is DENIED. The Delisting Rule is VACATED, and
this matter is REMANDED to the Fish and Wildlife Service for
further proceedings consistent with the Court’s ruling. An
appropriate Order accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
March 25, 2011
30