Wildearth Guardians v. Kempthorne

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WILDEARTH GUARDIANS,

Plaintiff,

v. Civil Action No. 08–1596 (CKK)
KEN SALAZAR, Secretary of the Interior,

Defendant.

MEMORANDUM OPINION
(September 28, 2010)

Plaintiff, WildEarth Guardians, brings this action against Defendant, Ken Salazar,

Secretary of the Interior,1 pursuant to the Administrative Procedure Act (“APA”). 5 U.S.C. § 701

et. seq. Plaintiff seeks judicial review of the Fish and Wildlife Service’s (“FWS”) final agency

actions denying Plaintiff’s petition to reclassify the Utah prairie dog as an endangered species

under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et. seq., as well as Plaintiff’s

petition to initiate rulemaking to repeal a regulation allowing for the limited extermination of

Utah prairie dogs. Currently before the Court are Plaintiff’s [33] Motion for Summary Judgment

(“Pl.’s Mot.”), Defendant’s [34] Cross-Motion for Summary Judgment (“Def.’s Cross-Mot.”),

and Plaintiff’s [36] Reply in Support of Plaintiff’s Motion for Summary Judgment (“Pl.’s

Reply”). The Court has thoroughly reviewed the parties’ submissions, the administrative record,

applicable case law, the relevant statutory and regulatory authority, as well as the record of the

case as a whole. For the reasons set forth below, the Court shall GRANT-IN-PART and DENY-

1
Pursuant to Federal Rule of Civil Procedure 25(d), the current Secretary of the Interior,
Ken Salazar, has been automatically substituted as defendant.
IN-PART Plaintiff’s [33] Motion for Summary Judgment, shall GRANT-IN-PART and DENY-

IN-PART Defendant’s [34] Cross-Motion for Summary Judgment, and shall remand this matter

to the agency for further consideration consistent with this Memorandum Opinion. Specifically,

the Court shall GRANT Plaintiff’s Motion for Summary Judgment and DENY Defendant’s

Cross-Motion for Summary Judgment with respect to Plaintiff’s petition to reclassify the Utah

prairie dog because (1) FWS failed to explain why the reduction in the species’ historical range

did not indicate that reclassification may be warranted and (2) FWS failed to consider the

cumulative effect of the ESA’s listing factors as required under 50 C.F.R. § 424.11(c). In

addition, the Court shall DENY Plaintiff’s Motion for Summary Judgment and GRANT

Defendant’s Cross-Motion for Summary Judgment insofar as Plaintiff asserts that FWS’ refusal

to initiate rulemaking was arbitrary, capricious, and not in accordance with the ESA.

I. BACKGROUND

A. Statutory and Regulatory Background

Congress enacted the ESA in 1973 “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 and threatened species.” 16 U.S.C. § 1531(b).

An endangered species is “any species which is in danger of extinction throughout all or a

significant portion of its range . . . .” Id. § 1532(6). In contrast, a threatened species is one that

“is likely to become an endangered species within the foreseeable future . . . .” Id. § 1532(20).

To be protected under the ESA, a species must be “listed” as either an endangered or

threatened species by the Secretary of the Interior.2 See id. § 1531(b). Although the Secretary

2
The Secretary has delegated his duties for terrestrial (i.e., non-marine) species to the
FWS. See 50 C.F.R. § 402.01(b). The Court shall use the term “FWS” and “Secretary”
interchangeably throughout this Memorandum Opinion.
may list species himself, see id. § 1533(a), individual citizens may also petition the Secretary to

list, delist, or reclassify a species, see id. § 1533(b)(3)(A). To the extent possible, within 90-days

of receiving such a petition, “the Secretary shall make a finding as to whether the petition

presents substantial scientific or commercial information indicating that the petitioned action

may be warranted.” Id.; see also 50 C.F.R. § 424.14(b)(1) (providing that, “to the maximum

extent possible,” the Secretary is to make this finding within 90-days).

A petition contains “substantial information” when it has an “amount of information that

would lead a reasonable person to believe that the measure proposed in the petition may be

warranted.” Id.3 When determining whether the petitioned action “may be warranted,” the

Secretary examines the following five listing factors’ individual and cumulative effect on the

species:

(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

3
In particular, when evaluating if the petition has presented “substantial information,” the
Secretary must consider whether the petition: “(i) Clearly indicates the administrative measure
recommended and gives the scientific and any common name of the species involved; (ii)
Contains detailed narrative justification for the recommended measure, describing, based on
available information, past and present numbers and distribution of the species involved and any
threats faced by the species;(iii) Provides information regarding the status of the species over all
or a significant portion of its range; and (iv) Is accompanied by appropriate supporting
documentation in the form of bibliographic references, reprints of pertinent publications, copies
of reports or letters from authorities, and maps.” Id. § 424.14(b)(2).

3
 (E) other natural or manmade factors affecting its continued
existence.

16 U.S.C. § 1533(a)(1); see also 50 C.F.R. § 424.11(c) (providing that species are to be listed

based on “any one or a combination” of the abovementioned factors). In making this

determination, the Secretary may only consider “the best available scientific and commercial

information regarding a species’ status, without reference to possible economic or other impacts

of such determination.” Id. § 424.11(b); 16 U.S.C. § 1533(b)(1)(A). The Secretary’s finding in

regards to a petition, referred to as a “90-day finding,” is published in the Federal Register. See

id. § 1533(b)(3)(A).

If the Secretary’s 90-day finding concludes that the petition presents substantial

information in support of the petitioned action, the Secretary then must “promptly commence a

review of the status of the species concerned.” Id. This review culminates in another finding

issued within 12-months of receipt of the petition that concludes whether the petitioned action is:

(a) warranted; (b) not warranted; or (c) warranted but precluded by other listing activity. Id. §

1533(b)(3)(B).

The ESA extends certain protections to listed species, including, most pertinent to this

case, a prohibition on the “take” of an endangered species. Id. § 1538(a)(1)(B). The term “take”

is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to

attempt to engage in any such conduct.” Id. § 1532(19). Although the ESA does not

automatically extend the take prohibition to threatened species, the Secretary has the discretion,

under ESA subsection 4(d), to “issue such regulations as he deems necessary and advisable to

provide for the conservation of [threatened] species.” Id. § 1533(d). The Secretary has exercised

this discretion to generally extend the take prohibition to threatened species. See 50 C.F.R. §

4
17.31.

B. Factual Background 4

The Utah prairie dog (Cynomys parvidens) is one of five prairie dogs species, all of which

are native to North America and have non-overlapping geographic ranges. AR 1 at 263 (72 Fed.

Reg. 7843, 7843 (Feb. 21, 2007) (FWS’ 90-day finding) (hereinafter “Finding”)).5 The Utah

prairie dog’s range is confined to five southwestern Utah counties, rendering it currently the most

geographically restricted of all prairie dog species. Id. at 263-64. The Utah prairie dog lives in

aggregations called colonies, towns, or villages. Id. at 903 (John L. Hoogland, Black-tailed

Prairie Dog in Wild Mammals of North America: Biology, Management, and Conservation 232,

237 (George A. Feldhamer, Bruce C. Thompson & Joseph A. Chapman eds., 2nd ed. 2003)). Its

preferred habitat consists of swale formations with moist herbage and well-drained soil

conducive for burrowing. Id. at 264 (Finding). Utah prairie dogs are also predominately

herbivores, preferring alfalfa and grasses, and are true hibernators that cease most surface activity

during the harsher winter months. Id.

4
The Court’s review in this case is “confined to the full administrative record before the
agency at the time the decision was made.” Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284
(D.C. Cir. 1981). “The focal point for judicial review should be the administrative record already
in existence, not some new record completed initially in the reviewing court.” Id. Accordingly,
although both parties at times refer to information outside the administrative record, the Court
does not consider such information in discussing the relevant factual and procedural background
of this case or in evaluating the parties’ arguments.
5
There are two administrative records in this case. The Court adopts the parties’
convention of citing to the administrative record for FWS’ denial of Plaintiff’s petition to
reclassify the prairie dog as endangered as “Administrative Record 1,” or “AR 1,” and the
administrative record for FWS’ denial to initiate rulemaking as “Administrative Record 2,” or
“AR 2.” Supplements to both administrative records were filed. To the extent the supplements
are not consecutively paginated with their respective administrative records, the Court adopts the
following convention for a citation to the first page of the fourth document in a supplement to the
second administrative record filed as docket number 27: AR 2 Supp. Dkt. # 27-4, at 1.
5
 Although the first Utah prairie dog census was not conducted until 1976, historical

estimates have placed the species’ population in the 1920s at 95,000 animals across a range of

713 square miles.6 Id. Since then, the species has declined due to drought, habitat alteration,

disease (predominately sylvatic plague, known as bubonic plague in humans), and targeted

eradication by humans. See id. at 264, 268; id. at 1104 (Rodney L. Player & Philip J. Urness,

Habitat Manipulation for Reestablishment of Utah Prairie Dog in Capitol Reef National Park,

42 Great Basin Naturalist 517, 517 (1982)).

In 1973, the species declined to approximately 3300 animals across thirty-seven colonies

and, consequently, FWS listed the Utah prairie dog as an endangered species under the ESA.

Complaint ¶ 26, Docket No. [1]; Answer ¶ 26, Docket No. [9]; see also AR 1 at 251 (38 Fed.

Reg. 14678 (June 4, 1973)). Six years later, in 1979, the Utah Division of Wildlife and

Resources (“UDWR”) petitioned FWS to remove the species from the List of Endangered and

Threatened Wildlife. AR 1 at 265 (Finding). In 1984, FWS responded to UDWR’s petition by

reclassifying the species as threatened and concluded that although “the Utah prairie dog is still

threatened over much of its range,” because the species’ population has increased since 1972, it

is not longer in danger of extinction. Id. at 252 (49 Fed. Reg. 22,330, 22330 (May 29, 1984)).

The 1984 reclassification decision was accompanied by a rule promulgated under ESA

subsection 4(d) that abrogated the general prohibition on the take of threatened species in regards

6
The Court notes that the parties disagree on the accuracy of these estimates. For
example, FWS argues that because no formal census was conducted until 1976, “[i]t is probably
not possible to obtain accurate figures of past populations.” Def.’s Cross-Mot. at 7 (quoting AR
1 at 1204 (1991 Utah Prairie Dog Recovery Plan)). Plaintiff, in turn, argues that even if the
estimation is imperfect, it is the best information available and FWS itself has previously relied
on this estimation. See Pl.’s Mot. at 30. The Court recognizes the parties disagreement and its
citation to the 1920 estimate should not be construed as an endorsement of either parties’ view of
the estimate’s veracity.
6
to the Utah prairie dog and permitted a maximum take of 5000 animals per year under a

permitting scheme administered by UDWR. Id. at 252, 255. In 1991, FWS, citing increased

population counts, increased the allowed take for Utah prairie dogs to 6000 animals per year

(hereinafter “1991 Rule”). AR 1 at 257, 259 (56 Fed. Reg. 27,438, 27,440 (June 14, 1991)).

When the pending motions were filed, the 1991 Rule was still in effect. See Pl.’s Reply at 21-22.

Under the 1991 Rule, the UDWR issues take permits on a case-by-case basis after considering

whether the proposed take “is necessary for the conservation and management of the species and

the effect on overall population status.” AR 1 at 255 (49 Fed. Reg. at 22,333). Permits are

granted only for those Utah prairie dogs causing damage to the land, id. at 259 (56 Fed. Reg. at

27,440), and for no more than ten percent of the animals in a given colony, id. at 269 (72 Fed.

Reg. at 7849). From the inception of the permitted take program in 1985 until 2008, a total of

49,204 takes have been permitted, resulting in 21,054 reported takes, and the average yearly

reported take has been approximately 960 animals. See AR 2 Supp. Dkt. # 27-4, at 1 (Summary

of Utah Prairie Dog Control Program (1985-2008)).

C. Procedural Background

On February 3, 2003, Plaintiff7 filed a petition with FWS requesting that the Utah prairie

dog be reclassified as endangered (hereinafter “Reclassification Petition”). See AR 1 at 1-213.

In the Reclassification Petition’s 189 pages of discussion and analysis, Plaintiff cited to over 200

sources and described why it believes that the ESA’s listing factors indicate that reclassifying the

Utah prairie dog as endangered may be warranted. See Pl.’s Mot. at 18, 32. FWS acknowledged

7
Note, when the Reclassification Petition was filed Plaintiff was called “Forest
Guardians.” See AR 1 at 1 (Reclassification Petition). Plaintiff has since changed its name to
“WildEarth Guardians.” See Pl.’s Mot. at 24 n.3.
7
receipt of the Reclassification Petition in a letter dated November 21, 2003, in which it advised

Plaintiff that funding restrictions prevented FWS from initiating a 90-day finding during the 2003

and 2004 fiscal years. AR 1 at 214 (Letter from John A. Blankenship, Deputy Regional Dir.,

FWS, Dep’t of the Interior, to Dr. Nicole Rosemarino, Endangered Species Dir., Forest

Guardians (Nov. 21, 2003)).

On February 2, 2005, while Plaintiff awaited FWS’ reply to the Reclassification Petition,

Plaintiff petitioned FWS to repeal the 1991 Rule, as well as to promulgate a new rule restricting

the translocation of Utah prairie dogs from private to public lands (hereinafter “APA Petition”).

AR 2 at 1344-66 (APA Petition). The APA Petition incorporated by reference the

Reclassification Petition’s claims and argued, inter alia, the 1991 Rule hinders the recovery of

the Utah prairie dog. Id. at 1346, 1351-56. FWS acknowledged receipt of the APA Petition in a

letter dated April 6, 2005. AR 2 at 1368 (Letter from Acting Mountain-Prairie Region Dir.,

FWS, Dep’t of the Interior, to Dr. Nicole Rosemarino, Endangered Species Dir., Forest

Guardians (Apr. 6, 2005)).

On February 2, 2006, nearly three years after Plaintiff filed the Reclassification Petition,

FWS had not initiated a 90-day finding and so Plaintiff filed suit to compel FWS to do so.

Compl. ¶ 35; Answer ¶ 35.8 In accordance with the court-approved settlement agreement in that

case, FWS was required to publish a 90-day finding by February 17, 2007. See Dkt. # 11, Forest

Guardians v. Kempthorne, Civ. No. 06-183(RBW).

On February 21, 2007, FWS published its 90-day finding in regards to the

Reclassification Petition (hereinafter “Finding”). See AR 1 at 263-72 (72 Fed. Reg. at 7849-51).

8
See Forest Guardians v. Kempthorne, Civ. No. 06-183(RBW).
8
The Finding concluded that “substantial scientific or commercial information has not been

presented by [Plaintiff] indicating that reclassification of the Utah prairie dog . . . from threatened

to endangered may be warranted.” Id. at 271 (noting also that the Reclassification Petition “did

not identify or present substantial new information indicating that the level of threats to the

species has changed significantly since its reclassification to threatened in 1984.”). The Finding

was influenced by the most recent population Utah prairie dog census, which indicated that the

species’ population was twice as high as when the species was reclassified as threatened in 1984.

Compare id. (noting spring 2005 count was 5,381), with AR 1 Supp. Dkt. #27-3, at 3 (Spring

Counts of Adult Utah Prairie Dogs) (listing the spring 1984 count at 2,522).9 On September

16, 2008, Plaintiff filed its complaint in this case. Count I alleges that FWS violated the ESA

and APA when it denied the Reclassification Petition. Compl. ¶ 39 Count II alleges that FWS

violated the APA by failing to rule on the APA Petition. Compl. ¶ 41. Over five months later,

on February 23, 2009, FWS issued its response to Plaintiff’s APA Petition (hereinafter

“Response”). AR 2 Supp. Dkt. #27-2. In the Response, FWS denied Plaintiff’s request to

promulgate a new rule because Plaintiff did not include the text of the proposed rule as required

under 43 C.F.R. § 14.2. Id. at 2. As for Plaintiff’s request to repeal the 1991 Rule, FWS found

that the most recent Utah prairie dog census data “does not appear to support [Plaintiff’s]

9
The parties disagree on the methodology employed in the 1984 census and,
consequently, the extent to which the 1984 census reflected the actual Utah prairie dog
population at that time. Compare Pl.’s Mot. at 15 (arguing that the methodology employed in
1984 counted 80% of the population), with Def.’s Cross-Mot. at 10 n.3 (arguing that UDWR
employed a method in 1984 that only counted 50% of the population). Regardless, the parties do
not appear to disagree that the 2005 census, which FWS relied upon in the Finding, counted
approximately 50% of the actual population. See Pl.’s Mot. at 31, 31 n.53-54; Def.’s Cross-Mot.
at 21, 21 n.7. This indicated a spring 2005 population of about 10,762 animals. See Pl.’s Mot. at
31. Additionally, because the census occurs in the spring, it only includes those animals that
have survived the winter and no juveniles. See AR 1 at 259 (56 Fed. Reg. at 27,440).
9
assertion that the species is in danger of extinction”10 and invited Plaintiff to comment on a

forthcoming amended version of the 1991 Rule.11 Id. at 1 (Response). The Response constituted

FWS’ “final decision” on Plaintiff’s APA Petition. Id. at 3.

In light of the Response, the parties filed [15] Stipulation to Permit the Filing of a

Supplemental Complaint and Joint Motion to Reset Deadlines. The Court granted Plaintiff’s

request, pursuant to Federal Rule of Civil Procedure 15(d), to file a supplemental complaint. See

[17] Am. Scheduling and Procedures Order (Apr. 14, 2009). On April 23, 2009, Plaintiff filed its

[18] First Supplement Complaint in which it amended Count II to allege that FWS’ denial of the

APA Petition violated the APA. Suppl. Compl. ¶ 43. FWS then filed the administrative record

for the Reclassification Petition on March 27, 2009, [13] Notice of Lodging Admin. Record, and

the administrative record for the APA Petition on June 11, 2009, [20] Notice of Lodging Admin.

Record. Plaintiff moved to supplement the Reclassification Petition’s administrative record, [23]

Mot. to Suppl. the Admin. Record, which FWS opposed, [24] Opp’n to Pl.’s Mot. to Suppl. the

Admin. Record. The Court ultimately denied the motion. See Wildearth Guardians v. Salazar,

670 F. Supp. 2d 1 (D.D.C. 2009).

Subsequently, the Court adopted the parties’ proposed summary judgment briefing

schedule, Min. Order (Dec. 11, 2009), pursuant to which Plaintiff filed its [33] Motion for

Summary Judgment on January 29, 2010, Defendant filed its [34] Cross-Motion for Summary

10
The most recent census data was from the spring of 2007 and indicated a total
population of nearly 12,000 animals. See AR 2 Supp. Dkt. #27-2, at 1 (Response).
11
Both parties acknowledge that this amended version of the 1991 Rule remains
forthcoming. See Pl.’s Mot. at 26 n.49; Def.’s Cross-Mot. at 34 n.8.
10
Judgment on March 5, 2010,12 and Plaintiff filed its [36] Reply in Support of Plaintiff’s Motion

for Summary Judgment on March 19, 2010. The briefing on the parties’ motions for summary

judgment is now complete and the matter is ripe for the Court’s review and resolution.

II. LEGAL STANDARD

“Courts must defer to an agency’s interpretation of a statute that it implements ‘so long as

it is reasonable, consistent with the statutory purpose, and not in conflict with the statute’s plain

language.’” Davis v. Latscher, 202 F.3d 359, 364 (D.C. Cir. 2000) (quoting OSG Bulk Ships v.

United States, 132 F.3d 808, 814 (D.C. Cir. 1998)); see Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, 467 U.S. 837, 845 (1984). “Similarly, provided it does not violate the Constitution

or a federal statute, an agency’s interpretation of its own regulations ‘will prevail unless it is

plainly erroneous or inconsistent with the plain terms of the disputed regulations.’” Id. (quoting

Everett v. United States, 158 F.3d 1364, 1367 (D.C. Cir. 1998) (internal quotation marks

omitted).

The APA governs judicial review of agency action under the ESA. Cabinet Mountains

Wilderness v. Peterson, 685 F.2d 678, 685 (D.C. Cir. 1982) (“Since the ESA does not specify a

standard of review, judicial review is governed by section 706 of the [APA].”). Judicial review

of agency decisions “is normally confined to the full administrative record before the agency at

the time the decision was made.” Envt’l Def. Fund., 657 F.2d at 284; see also Richards v.

Immigration & Naturalization Serv., 554 F.2d 1173, 1177 (D.C. Cir. 1977) (“Summary judgment

is an appropriate procedure for resolving a challenge to a federal agency’s administrative

decision when review is based upon the administrative record.”). Under the APA, a court must

12
This filing also includes Defendant’ opposition to Plaintiff’s motion for summary
judgment.
11
set aside agency decisions that are “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A). “‘The party challenging an agency’s action as

arbitrary and capricious bears the burden of proof.’” City of Olmsted Falls v. Fed. Aviation

Admin., 292 F.3d 261, 271 (D.C. Cir. 2002) (quoting Lomak Petroleum, Inc. v. Fed. Energy

Regulatory Comm’n, 206 F.3d 1193, 1198 (D.C. Cir. 2000)).

A court’s “scope of review under the ‘arbitrary and capricious’ standard is narrow and a

court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “To survive review under the ‘arbitrary and

capricious’ standard, an agency must ‘examine the relevant data and articulate a satisfactory

explanation for its action including a rational connection between the facts found and the choice

made.’” PPL Wallingford Energy LLC v. Fed. Energy Regulatory Comm’n, 419 F.3d 1194, 1198

(D.C. Cir. 2005) (quoting State Farm, 463 U.S. at 43) (internal quotation marks omitted). A

reviewing court “will uphold [an agency’s] findings, though of less than ideal clarity, if the

agency’s path may be reasonably discerned . . . .” Hall v. McLaughlin, 864 F.2d 868, 872 (D.C.

Cir. 1989) (internal quotation marks and citations omitted). However,

an agency [decision] 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 would not be ascribed to
a difference in view or the product of agency expertise. The
reviewing court should not attempt itself to make up for such
deficiencies: “We may not supply a reasoned basis for the agency’s
action that the agency itself has not given.”

State Farm, 463 U.S. at 43 (quoting Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196

(1947)); see also McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1187

12
(D.C. Cir. 2004) (holding that the “Court will not defer to the agency’s conclusory or

unsupported allegations”).

Furthermore, reviewing courts are to “give an extreme degree of deference to the agency

when it ‘is evaluating scientific data within its expertise.’” Huls Am. Inc. v. Browner, 83 F.3d

445, 452 (D.C. Cir. 1996) (quoting Int’l Fabricare Inst. v. E.P.A., 972 F.2d 384, 389 (D.C. Cir.

1992)). This includes “an agency’s predictive judgments about areas that are within the agency’s

field of discretion and expertise . . . .” BNSF Ry. Co. v. Surface Transp. Bd., 526 F.3d 770, 781

(D.C. Cir. 2008) (internal quotation marks omitted); see also Colo. River Cutthroat Trout v.

Kempthorne, 448 F. Supp. 2d 170, 174 (D.D.C. 2006) (“There is a strong presumption in favor of

upholding decision of the FWS in view of its expertise in the area of wildlife conservation and

management and the deferential standard of review.”).

III. DISCUSSION

A. The 90-Day Finding

As a threshold matter, the Court notes the limited nature of it review in this case. In

reviewing the Finding, the Court is not asked to determine whether the Utah prairie dog should

ultimately be reclassified as endangered, or even whether the Court thinks reclassification may be

warranted. See Am. Paper Inst., Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 402, 422 (1983)

(explaining that under the arbitrary and capricious standard of review a court “need not find that

[the agency’s decision] is the only reasonable one, or even that it is the result [the Court] would

have reached had the question arise in the first instance in judicial proceedings.”). Rather, the

issue before this Court is whether, when issuing the Finding, FWS properly applied the ESA and

“examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including

13
a rational connection between the facts found and the choice made.” PPL Wallingford Energy,

419 F.3d at 1198 (D.C. Cir. 2005) (quoting State Farm, 463 U.S. at 43) (internal quotation marks

omitted).

In light of the aforementioned legal standard, the Court now turns to the merits of

Plaintiff’s arguments. Plaintiff has alleged that the Finding was arbitrary, capricious and/or

contrary to law for several reasons. For two reasons, the Court agrees that the Finding must be

vacated and remanded to FWS for further consideration.

1. FWS Failed to Explain Why the Reduction in the Utah Prairie Dog’s
Historical Range Did Not Constitute a “Significant Portion of Its Range”

Plaintiff argues that the Finding is arbitrary, capricious, and not in accordance with the

ESA because FWS did not analyze how the reduction in the Utah prairie dog’s historical range

does not indicate that reclassifying the species as endangered may be warranted. See Pl.’s Mot.

at 28-32. Plaintiff argues that the Utah prairie dog’s current range has been reduced by nearly

eighty-seven percent from its historical estimations, thereby indicating the species is “in danger

of extinction throughout . . . a significant portion of its range” such that reclassification to

endangered may be warranted. See id. at 29 (quoting 16 U.S.C. § 1532(6) (defining “endangered

species” )).

In support of this argument, Plaintiff principally relies on the Ninth Circuit’s holding in

Defenders of Wildlife v. Norton that “where . . . it is on the record apparent that the area in which

the [species] is expected to survive is much smaller than its historical range, the Secretary must

at least explain her conclusion that the area in which the species can no longer live is not a

‘significant portion of its range.’” 258 F.3d 1136, 1145 (9th Cir. 2001) (hereinafter Defenders

(Lizard)); see also Pl.’s Reply at 6-8. In reaching this conclusion, the Ninth Circuit rejected the

14
parties’ definitions of the phrase “significant portion of its range” and, after consulting the ESA’s

legislative history and the Secretary’s historical practice, concluded that “a species can be extinct

‘throughout . . . a significant portion of its range’ if there are major geographical areas in which it

is no longer viable but once was.” Id.; see also id. at 1138, 1145-46 (vacating and remanding the

Secretary’s decision because the Secretary failed to expressly explain how a thirty-four percent

reduction in a species’ historical range was not a significant portion of the species’ range).

Courts in this Circuit have found the Ninth Circuit’s reasoning in Defenders of Wildlife v.

Norton persuasive. See, e.g., Defenders of Wildlife v. Kempthorne, Civ. No. 04-1230(GK), 2006

WL 2844232, at *5 (D.D.C. Sept. 29, 2006) (hereinafter Defenders (Lynx II)) (finding the Ninth

Circuit’s reasoning “persuasive” and applying its definition of “significant portion of its range”);

Sw. Ctr. for Biological Diversity v. Norton, Civ. No. 98-934 (RMU/JMF), 2002 WL 1733618, at

*14 (D.D.C. July 29, 2002) (applying the Ninth Circuit’s definition of “significant portion of its

range”). Moreover, Judge Gladys Kessler has twice relied on the Ninth Circuit’s holding to

vacate and remand as arbitrary, capricious, and contrary to the ESA’s purpose, FWS decisions

that have failed to explain how a loss of three of a species’ four population regions did not

constitute a significant portion of the species’ range. See Defenders of Wildlife v. Norton, 239 F.

Supp. 2d 9, 21 (D.D.C. 2002) (hereinafter Defenders (Lynx I)), vacated in part on other grounds,

89 F. App’x 273 (D.C. Cir. 2004) (vacating as moot the district court’s enjoinment of FWS from

concurring in ESA § 7 determinations and remanding the case for further consideration);

Defenders Lynx II, 2006 WL 2844232, at *5-6, 11, 13 (vacating and again remanding the

decision to FWS because the agency failed to address how three of four population regions do

not constitute a significant portion of the species’ range). This Court joins the other courts in this

15
Circuit who have found the Ninth Circuit’s holding persuasive and shall apply the Ninth Circuit’s

standard that “where . . . it is on the record apparent that the area in which the [species] is

expected to survive is much smaller than its historical range, the Secretary must at least explain

[his] conclusion that the area in which the species can no longer live is not a ‘significant portion

of its range.’” Defenders (Lizard), 258 F.3d at 1145.

In this case, FWS does not argue that it conducted a significant portion of the range

analysis. See Def.’s Cross-Mot. at 16-19. Rather, FWS argues that the phrase is ambiguous,

FWS’ reasonable interpretation is entitled to deference, and, in any event, Plaintiff is barred from

raising the significant portion of the range issue because the Reclassification Petition failed to do

so. See id. The Court rejects these arguments and vacates and remands the Finding to FWS to

explain in the first instance how the Utah prairie dog’s reduction of its historical range does not

indicate that reclassifying the species as endangered may be warranted.

First, Plaintiff is not barred from raising the significant portion of the range issue. As

Plaintiff points out, the phrase “significant portion of its range” is part of the ESA’s definition of

“endangered species.” Pl.’s Reply at 10-11 (quoting 16 U.S.C. § 1532(6) (defining “endangered

species”)). Thus, the Reclassification Petition’s request to reclassify the Utah prairie dog as

endangered sufficiently raised the significant portion of the range issue. See Tex Tin Corp. v.

E.P.A., 935 F.2d 1321, 1323 (D.C. Cir. 1991) (per curiam) (“An objection must be made with

sufficient specificity reasonably to alert the agency.”). Additionally, the concern of fairness

underlining the exhaustion doctrine is absent in this case. See Found. on Educ. Trends v.

Heckler, 756 F.2d 143, 156 (D.C. Cir. 1985) (“[W]e note that the exhaustion doctrine is premised

on a view of fairness to the agency and to the litigants.”). FWS’ obligation to explain how the

16
reduction from the Utah prairie dog’s historical range does not constitute a significant portion of

the species’ range derives from the ESA’s definition of “endangered species.” Therefore, FWS

should not be surprised that it needed to conduct such an analysis in this case. Accordingly, the

Court finds that the exhaustion doctrine does not bar Plaintiff from raising the significant portion

of the range issue in this appeal.

Second, although the phrase “significant portion of its range” is ambiguous, see

Defenders (Lizard), 258 F.3d at 1145, the interpretation FWS now urges this Court to adopt is

not entitled to deference as it is conspicuously absent from FWS’ consideration of the

Reclassification Petition. Most importantly, the Finding itself does not indicate that FWS

defined, let alone applied, “significant portion of its range” in the manner FWS now advances in

this case. Equally telling, FWS’ briefing does not cite to this case’s administrative record to

establish how FWS interpreted the phrase when it was considering the Reclassification Petition.

See Def.’s Cross-Mot. at 18 (quoting Greater Yellowstone Coalition, Inc. v. Servheen, 672 F.

Supp. 2d 1105, 1124 (D. Mont. 2009)). The Court owes no deference to FWS’ interpretation of a

statutory phrase that first appears on appeal. See Bowen v. Georgetown Univ. Hosp., 488 U.S.

204, 212 (1988) (granting no deference to “agency litigating positions that are wholly

unsupported by regulations, rulings, or administrative practice. To the contrary, we have

declined to give deference to an agency counsel’s interpretation of a statute where the agency

itself has articulated no position on the question . . . .”).

17
 Third, even if the Court were to defer to FWS’ interpretation of “significant portion of its

range,”13 the Court would nonetheless have to vacate and remand the Finding because there is no

indication that FWS in fact applied this definition in this case, see Hall, 864 F.2d at 873 (holding

that an agency’s decision must “be sufficient to permit the court to discern the path [the agency]

has taken”).14 In fact, FWS implicitly concedes as much when it failed to argue that it conducted

such an analysis and instead argues that Plaintiff waived this issue. See Def.’s Cross-Mot. at 18-

19.

The Utah prairie dog’s range has declined at least fifty percent from 1925 to 1975. AR 1

at 264 (Finding). The Finding also indicates that in 1971 the Utah prairie dog was present in an

area comprising 61,440 acres, while the species’ estimated range in 1920 was an area comprising

456,320 acres. See id. at 264-65. The difference between the 1971 range and the 1920 estimated

range amounts to a nearly eighty-seven percent reduction in the Utah prairie dog’s historical

range. See Pl.’s Mot. at 10. The Finding does not explain, however, how this reduction, or even

13
FWS argues that it interpreted “range” to mean “current range, not historical range” and
“significant” to mean “based on a variety of factors that indicate the importance of the range to
the species survival and the preservation of the species’ ecosystem” and “is not based on any
present or quantitative measurement of range.” Def.’s Cross-Mot. at 18 (quoting Greater
Yellowstone Coalition, 672 F. Supp. 2d at 1124).
14
Similarly, although the parties have advanced a total of three different definitions of
“significant portion of its range,” the Court does not address which should be applied in this case
because FWS failed to apply any of them in the Finding. See Palisades Gen Hosp. Inc. v.
Leavitt, 426 F.3d 400, 403 (D.C. Cir. 2005) (“[U]nder settled principles of administrative law,
when a court reviewing agency action determines that an agency made an error of law, the court’s
inquiry is at an end: the case must be remanded to the agency for further action consistent with
the correct legal standards.”) (quoting County of Los Angeles v. Shalala, 192 F.3d 1005, 1011
(D.C. Cir. 1999)).
18
the fifty percent reduction, is not “a significant portion of [of the species’] range.”15 It may very

well be that these reductions do not amount to a significant portion of the species range.16

However, FWS’ failure to explain why this might be so renders the Finding arbitrary, capricious,

and not in accordance with the ESA. See State Farm, 463 U.S. at 43 (holding that an agency

decision is arbitrary and capricious when it “entirely failed to consider an important aspect of the

problem”). Accordingly, this Court vacates and remands the Finding to FWS to explain in the

first instance how the reduction in the Utah prairie dog’s historical range does not constitute a

significant portion of the species’ range.17

2. FWS Failed to Consider the Listing Factors’ Cumulative Effect

Plaintiff also argues that FWS acted arbitrarily and capriciously when it failed to consider

the listing factor’s cumulative effect on the species. See Pl.’s Mot. at 39; see also 50 C.F.R. §

15
The Finding, however, does question the reliability of the historical estimate and
indicates that a forthcoming study may produce more reliable results. AR 1 at 264 (Finding)
(“We believe the best information concerning actual Utah prairie dog habitat is from ongoing
mapping efforts . . . however, current occupancy has not been verified for this mapped habitat
area, or for other areas of historical habitat.”). Forthcoming studies, however, cannot contradict
the only available evidence regarding the Utah Prairie dog’s range. See 50 C.F.R. § 424.11(b)
(allowing FWS to rely on “the best available scientific and commercial information regarding a
species’ status”) (emphasis added).
16
See Defenders (Lizard), 258 F.2d at 1143 (“[I]t simply does not make sense to assume
that the loss of a predetermined percentage of habitat or range would necessarily qualify a species
for listing. A species with an exceptionally large historical range may continue to enjoy healthy
population levels despite the loss of a substantial amount of suitable habitat.”).
17
In so holding, the Court makes no finding as to the reasonableness of the interpretation
of “significant portion of its range” FWS advance in this appeal or this interpretation’s
application in this case. Although such arguments may ultimately be successful, the
agency––and not this Court––must make that determination in the first instance. See State Farm,
463 U.S. at 43 (a review court may not supply “a reasoned basis for the agency’s action the
agency itself has not given”) (internal quotation marks and citations omitted).

19
424.11(c) (requiring listing decisions to be based on “any one or a combination of the [listing]

factors”) (emphasis added); Carlton v. Babbitt, 900 F. Supp. 526, 530 (D.D.C. 1995) (“FWS

must consider each of the listing factors singularly and in combination with the other factors”)

(emphasis added). FWS argues that it did consider the listing factors’ cumulative effect and cites

to three documents in the administrative record in support of this assertion. Def.’s Cross-Mot. at

29-30. These citations, however, do not support FWS’ claim.

First, two of the documents are a draft and revised version of a table prepared by the

Utah Ecological Services Field Office in a briefing to the FWS’ Mountain-Prairie Range

Regional Director regarding the Reclassification Petition. See Def.’s Cross-Mot. at 30 (citing

AR 1 at 1665 (Nov. 9, 2006 Briefing); AR 1 at 1780 (Dec. 14, 2006 Briefing)). In both the

versions, FWS’ analysis of the listing factors’ cumulative effect is limited to the following:

“Although we agree that these factors are hindering recovery of the species, we disagree that the

level of threat is significant enough to warrant endangered status.” AR 1 at 1665 (Nov. 9, 2006

Briefing); AR 1 at 1780 (Dec. 14, 2006 Briefing). This statement, however, is merely conclusory

and does not explain why FWS believes that the listing factors’ cumulative effect does not

indicate that reclassifying the Utah prairie dog as endangered may be warranted. PPL

Wallingford Energy, 419 F.3d at 1198 (quoting State Farm, 463 U.S. at 43) (“[A]n agency must

‘examine the relevant data and articulate a satisfactory explanation for its action including a

rational connection between the facts found and the choice made’”) (internal quotation marks

omitted); see also McDonnell Douglas Corp., 375 F.3d at 1187 (holding that the “Court will not

defer to the agency’s conclusory or unsupported allegations”). Accordingly, the table entries do

not allow FWS to survive the arbitrary and capricious standard of review.

20
 Lastly, FWS cites to the Finding itself and argues that within it FWS “determined that

[the factors] collectively did not constitute substantial scientific information.” Def.’s Cross-Mot.

at 29-30. Notably, however, FWS does not quote an excerpt of the Finding that purportedly

supports this assertion. See id. Nor does the Finding itself explicitly indicate that FWS analyzed

the listing factors’ cumulative effect. See AR 1 at 271(Finding); see also Hall, 864 F.2d at 873

(holding that an agency’s decision must “be sufficient to permit the court to discern the path [the

agency] has taken”).

The Finding page cited by FWS does, however, contain a conclusion of the agency’s

analysis of the listing factors’ individual impacts on the Utah prairie dog. See AR 1 at 271

(Finding). But such a conclusion does not constitute an analysis of the listing factors’ cumulative

effect because it does not explain how the individual factors combine to affect the Utah prairie

dog. See PPL Wallingford Energy, 419 F.3d at 1198 (quoting State Farm, 463 U.S. at 43) (“[A]n

agency must ‘examine the relevant data and articulate a satisfactory explanation for its action

including a rational connection between the facts found and the choice made’”) (internal

quotation marks omitted). In essence, by failing to analyze the listing factors’ cumulative impact,

FWS has required Plaintiff to prove by one factor alone that reclassifying the Utah prairie dog

may be warranted. This transformation ignores a clear mandate from the ESA’s regulations, as

well as the Finding’s articulation of FWS’ responsibility in a 90-day finding. See 50 C.F.R. §

424.11(c) (requiring listing decisions to be based on “any one or a combination of the [listing]

factors”); AR 1 at 265 (Finding) (“Listing actions may be warranted based on any of the above

threat factors, either singly or in combination.”). Accordingly, the Court finds that FWS’ failure

to consider the cumulative effect of the listing factors renders the Finding arbitrary and

21
capricious. See State Farm, 463 U.S. at 43 (“an agency [decision] would be arbitrary and

capricious if the agency . . . entirely failed to consider an important aspect of the problem”).

FWS attempts to avoid this conclusion by seeking refuge under the APA’s deferential

standard of review and arguing that this Court must “uphold a decision of less than ideal clarity if

the agency’s path may reasonably be discerned.” Def.’s Cross-Mot. at 30 (quoting Frizelle v.

Slater, 111 F.3d 172, 176-77 (D.C. Cir. 1997)).18 However, as discussed above, neither the

Finding nor the table entries provide a non-conclusory, discernable basis for believing that FWS

in fact considered the listing factors’ cumulative effect. Even under the deferential arbitrary and

capricious standard of review, a reviewing court “may not supply a reasoned basis for the

agency’s action that the agency itself has not given.” State Farm, 463 U.S. at 43 (quoting

Chenery Corp., 332 U.S. at 196). Accordingly, as FWS has failed to cite to a document in the

Finding’s over 2000 page administrative record that evidences, in a non-conclusory fashion, that

FWS considered the listing factor’s cumulative effect, the Court concludes that the Finding must

be vacated and this case remanded to the agency. On remand, FWS must explain whether the

listing factor’s cumulative effect indicates that reclassifying the species as endangered may be

warranted.19

18
FWS also argues that Plaintiff did not identify where the Reclassification Petition
addresses the listing factors’ cumulative effect. Def.’s Cross-Mot. at 30. This argument is
quickly dismissed for, as Plaintiff identifies in its reply, not only did the Reclassification Petition
identify how the listing factors combine to threaten the Utah prairie dog, Plaintiff’s motion for
summary judgment cites to these references as well. See Pl.’s Reply at 20 & 20 n.33; see also
Pl.’s Mot. at 19 (citing AR 1 at 95-97 (Reclassification Petition)); id. at 21 (citing AR 1 at 167-
71, 191 (Reclassification Petition)); id. at 22 (citing AR 1 at 193 (Reclassification Petition)).
19
The Court does not agree, however, with Plaintiff’s argument that FWS similarly erred
by failing to consider the threat of predation. Pl.’s Mot. at 39. “It is a hard and fast rule of
administrative law, rooted in simple fairness, that issues not raised before an agency are waived
and will not be considered by a court on review.” Nuclear Energy Inst., Inc. v. E.P.A., 373 F.3d
22
 For the abovementioned reasons, the Court concludes that the Finding must be vacated

and remanded to the agency for further consideration consistent with this opinion. In light of this

case’s current procedural posture, the Court declines to address Plaintiff’s remaining arguments

regarding the Finding.

B. FWS’ Response to the APA Petition

In Count II, Plaintiff argues that the Response is inadequate on its face, arbitrary,

capricious, and contrary to the ESA. Pl. Mot. at 39-40.20 In denying a petition for rulemaking,

an agency shall provide “prompt notice” of the denial and “[e]xcept in affirming a prior denial or

when denial is self-explanatory, the notice shall be accompanied by a brief statement of the

grounds for denial.” 5 U.S.C. § 555(e). Just as with other agency decisions, reviewing courts

must overturn a refusal to initiate rulemaking if it is “arbitrary and capricious, an abuse of

discretion, or otherwise not in accordance with the law.” EMR Network v. Fed. Commc’ns

Comm’n, 391 F.3d 269, 272-73 (D.C. Cir. 2004) (quoting 5 U.S.C. § 706(2)).

However, “an ‘agency’s refusal to institute rulemaking proceedings is at the high end of

the range’ or level of deference [reviewing courts] give to agency action under [their] ‘arbitrary

1251, 1297 (D.C. Cir. 2004). The Reclassification Petition does not address predation in its
section entitled: “Identified Threats to the Petitioned Species: Criteria for Listing.” AR 1 at 59-
187. Notably, although the third ESA listing factor includes disease and predation, 16 U.S.C. §
1533(a)(1)(C), the Reclassification Petition only discussed disease, see AR 1 at 60, 104-06.
Moreover, Plaintiff cannot rely on the Reclassification Petition’s limited background discussion
of predation, see Pl.’s Reply at 20 n.32, in a 189-page document to claim that it sufficiently
raised the predation threat, see Nat’l Ass’n of Mfrs. v. U.S. Dep’t. of Interior, 134 F.3d 1095,
1111 (D.C. Cir. 1998) (“[W]e decline to find that scattered references to [an issue] in a
voluminous record addressing myriad complex technical and policy matters suffices to provide
an agency . . . with a ‘fair opportunity’ to pass on the issue.”).
20
Plaintiff only appeals FWS’ refusal to repeal the 1991 Rule and not the FWS’ refusal to
promulgate a new rule restricting the translocating of Utah prairie dogs. See Pl.’s Mot. at 40.

23
and capricious’ review.” Defenders of Wildlife v. Guiterrez, 532 F.3d 913, 919 (D.C. Cir. 2008)

(quoting Am. Horse Prot. Ass’n v. Lyng, 812 F.2d 1, 4-5 (D.C. Cir. 1987)); see also

Massachusetts v. E.P.A., 549 U.S. 497, 527 (2007) (“Refusals to promulgate rules are []

susceptible to judicial review, though such review is extremely limited and highly deferential”)

(internal quotation marks and citation omitted). “Such a refusal is to be overturned only in the

rarest and most compelling of circumstances . . . which have primarily involved plain errors of

law, suggesting that the agency has been blind to the source of its delegated power.” Am. Horse

Prot. Ass’n, 812 F.2d at 5 (internal quotations and citations omitted); see also Cellnet Commc’ns,

Inc. v. F.C.C., 965 F.2d 1106, 1111 (D.C. Cir. 1992) (explaining that “an agency’s refusal to

initiate rulemaking is evaluated with a deference so broad as to make the process akin to non-

reviewability.”).

The Court finds that Plaintiff has not demonstrated that this case is one of “the rarest and

most compelling of circumstances.” Am. Horse Prot. Ass’n, 812 F.2d at 5. Accordingly, the

Court shall grant FWS’ summary judgment motion in regards to Count II.

1. The Response Is Not Procedurally Inadequate

First, Plaintiff claims that the Response is procedurally inadequate and not in accordance

with the law because the Response does not expressly state that FWS denied Plaintiff’s request to

repeal the 1991 Rule. See Pl.’s Mot. at 40-41. Plaintiff is correct that the Response did not use

the word “denial,” or any variation thereof, when discussing Plaintiff’s request to repeal the 1991

Rule. Nevertheless, while it is clear that FWS must provide a “brief statement of the grounds

for denial,” 5 U.S.C. § 555(e), Plaintiff fails to identify any legal support for its claim that FWS

must expressly indicate it was denying Plaintiff’s request. Moreover, it is difficult to see why

24
such a requirement would even be necessary in this case. The Response indicated that FWS was

not repealing the 1991 Rule and that it was FWS’ “final decision” on the APA Petition, AR 2

Supp., Dkt. # 27-2 at 3, and by every indication Plaintiff understood the response to be a denial,

see, e.g., Suppl. Compl. ¶ 3 (“Through this First Supplemental Complaint [Plaintiff] now

challenges [FWS’] February 23, 2009 denial of its APA petition . . . .”) (emphasis added).

Moreover, Plaintiff does not claim that FWS did not provide a brief statement of the grounds for

denial as required under 5 U.S.C. § 555(e). Accordingly, the Court rejects Plaintiff’s claim that

the Response was procedurally inadequate.

2. The Response Is Not Arbitrary or Capricious

Second, Plaintiff argues that FWS’ refusal to initiate rulemaking is arbitrary and

capricious because the 1991 Rule is biologically infeasible, it deters the species’ recovery, and,

therefore, it ignores the ESA’s mandate. See Pl.’s Mot. at 42-44. In particular, Plaintiff seeks to

compare this case to American Horse Protection Association, in which the D.C. Circuit vacated

and remanded the Secretary of the Agriculture’s refusal to initiate rulemaking under the Horse

Protection Act (“HPA”). 812 F.2d at 2-3, 5-8. The Court rejects Plaintiff’s arguments and holds

instead that the Response was not arbitrary or capricious.

In American Horse Protection Association, the court held that the agency failed to

articulate a reasonable explanation for its refusal in part because the agency’s two conclusory

statements justifying the refusal failed to demonstrate that the refusal was the product of

“reasoned decisionmaking.” Id. at 6 (noting those conclusory statements included the agency’s

deputy administrator’s declaration that: “I have reviewed studies and other materials . . . . On the

basis of this information, I believe that the most effective method of enforcing the [HPA] is to

25
continue the current regulations”). The court also concluded that the agency’s refusal to initiate

rulemaking to prohibit a practice that Congress unambiguously intended the HPA to eliminate

indicated that the agency “has been blind to the nature of his mandate from Congress.” Id. at 7.

In this case, in contrast, FWS articulated a reasonable explanation for its refusal.21 In the

Response, because Plaintiff’s APA Petition incorporated by reference its claims in the

Reclassification Petition, FWS also incorporated by reference its conclusions in the Finding to

support its denial. AR 2 Supp., Dkt. # 27-2 at 1 (Response). Additionally, FWS provided in the

Response itself that

Counts in 2007, the most recent data available, documented 5,991
adult animals indicating a total population of about 12,000 adult Utah
prairie dogs . . . . This is the second highest population count recorded
since survey efforts began in 1975. The available data does not
appear to support your assertion that the species is in danger of
extinction.

Id. Far from the two conclusory statements in American Horse Protection Association, the

passage cited above indicates that FWS applied the most recent Utah prairie dog census when it

denied the APA Petition. Accordingly, the Court finds that this decision was in fact “reasoned,”

thereby satisfying the Court’s highly deferential review of FWS’ refusal to initiate rulemaking.

See Am. Horse Prot. Ass’n, Inc., 812 F.2d at 5 (“[W]e must consider whether the agency’s

decisionmaking was reasoned”) (internal quotation marks and citation omitted); see also Cellnet

21
Contrary to Plaintiff’s intimations, the fact that FWS did not respond to every question
raised in the twenty-three page APA Petition does not render the Response arbitrary and
capricious, so long as the administrative record demonstrates that the Response was the product
of reasoned decisionmaking. See Am. Horse Prot. Ass’n, 812 F.2d at 6; see also 5 U.S.C. §
555(e) (requiring that the notice of denial “be accompanied by a brief statement of the grounds
for denial”) (emphasis added).
26
Commc’ns, 965 F.2d at 1111 (“[A]n agency’s refusal to initiate rulemaking is evaluated with a

deference so broad as to make the process akin to non-reviewability.”).

Additionally, the 1991 Rule’s existence does not demonstrate that FWS is ignoring the

ESA’s mandate because, most importantly, the ESA itself only prohibits the take of

endangered—not threatened—species. See 16 U.S.C. § 1538(a). Moreover, Congress delegated

to the Secretary the authority to determine the extent to which the ESA protects threatened

species. See id. § 1533(d) (“Whenever any species is listed as a threatened species . . . , the

Secretary shall issue such regulations as he deems necessary and advisable to provide for the

conservation of such species.”). In American Horse Protection Association, in contrast, the

agency refused to initiate rulemaking to prohibit a practice that Congress explicitly and

unambiguously intended the HSA to prohibit. See 812 F.2d at 6. Thus, because the ESA does

not explicitly prohibit the take of threatened species, the Court finds that the 1991 Rule is not so

contrary to Congress’s mandate under the ESA such that FWS could be said to be “blind to the

source of its delegated power.” Id. at 7; see also Gutierrez, 532 F.3d at 921(requiring challengers

to an agency’s refusal to initiate rulemaking “to present new evidence strongly suggesting that

the agency was unaware of its congressional mandate . . . .”) (internal quotation marks and

citations omitted).

Finally, although both parties acknowledge that the 1991 Rule’s level of take may not be

biologically sound, Pl.’s Mot. at 43; Def.’s Cross-Mot. at 32, the administrative record reveals

that FWS has relied upon evidence indicating that some permitted take is advantageous to the

Utah prairie dogs’ recovery, see Def.’s Cross-Mot. at 32-33. For example, FWS cites to how

controlled take can stimulate population growth, reduce high density populations prone to

27
decimation by plague, and, consequently, curb the species’ boom-and-bust population cycle. Id.

at 33 (citing AR 2 at 1371; id. at 905-06, 908; id. at 305; id. at 241). The precise level of take

that should be permitted is a matter squarely within FWS’ technical and scientific expertise and

the Court “decline[s] to enter this hyper-technical fray.” BNSF Ry. Co., 526 F.3d at 781 (“It is

well established that an agency’s predictive judgments about areas that are within the agency’s

field of discretion and expertise are entitled to particularly deferential review, so long as they are

reasonable.”).

In conclusion, FWS has presented a rational basis for refusing to repeal the 1991 Rule

that is adequately supported by the record and, consequently, the Court does not overturn this

decision on appeal. Accordingly, the Court shall grant FWS’ motion for summary judgment in

regards to Count II.

IV. CONCLUSION

For the reasons set forth above, the Court shall GRANT-IN-PART Plaintiff’s [33] Motion

for Summary Judgment as to Count I and DENY-IN-PART Plaintiff’s Motion for Summary

Judgment as to Count II. The Court shall GRANT-IN-PART the Secretary’s [34] Cross-Motion

for Summary Judgment as to Count II and DENY-IN-PART the Secretary’s Cross-Motion for

Summary Judgment as to Count I. Accordingly, FWS’ decision denying Plaintiff’s

Reclassification Petition is vacated and remanded to the agency for further consideration

consistent with this Memorandum Opinion. An appropriate Order accompanies this

Memorandum Opinion.

Date: September 28, 2010

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
28