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Humane Society of United States v. Zinke

United States Court of Appeals, District of Columbia Circuit

August 1, 2017

Humane Society of the United States, et al., Appellees
v.
Ryan Zinke, Secretary of the Interior, et al., Appellees U.S. Sportsmen's Alliance Foundation, et al., Appellants State of Wisconsin, et al., Appellees

          Argued October 18, 2016

         Appeals from the United States District Court for the District of Columbia (No. 1:13-cv-00186)

          Joan M. Pepin, Attorney, U.S. Department of Justice, argued the cause for federal appellants Zinke, et al. With her on the briefs were John C. Cruden, Assistant Attorney General at the time the brief was filed, and David C. Shilton, Attorney.

          Nathan Gambill, Assistant Attorney General, Office of the Attorney General for the State of Michigan, argued the cause for appellants State of Michigan, et al. With him on the briefs were Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Pamela J. Stevenson, Assistant Attorney General.

          James H. Lister argued the cause for appellant-defendant-intervenors Hunter Conservation Coalition, et al. With him on the briefs were Anna M. Seidman, Douglas S. Burdin, John I. Kittel, and Michael T. Jean. Jeremy E. Clare and William P. Horn entered appearances.

          Brad Schimel, Attorney General, Office of the Attorney General of the State of Wisconsin, Ryan J. Walsh, Chief Deputy Solicitor General, Daniel P. Lennington, Deputy Solicitor General at the time the briefs were filed, Jennifer L. Vandermeuse, Assistant Attorney General, and Thomas J. Dawson, Assistant Attorney General at the time the brief was filed, were on the brief for State of Wisconsin and Wisconsin Department of Natural Resources.

          Kathryn Landrum, Assistant Attorney General, Office of the Attorney General for the State of Minnesota, was on the brief for amicus curiae the State of Minnesota in support of appellants.

          Peter K. Michael, Attorney General, Office of the Attorney General for the State of Wyoming, James Kaste and D. David DeWald, Assistant Attorneys General, and Michael J. McGrady, Assistant Attorney General at the time the brief was filed, Joseph A. Foster, Attorney General, Office of the Attorney General for the State of New Hampshire, Douglas A. Bahr, Solicitor General, Office of the Attorney General for the State of North Dakota at the time the brief was filed, Sean D. Reyes, Attorney General, Office of the Attorney General for the State of Utah, Cynthia Coffman, Attorney General, Office of the Attorney General for the State of Colorado, Lawrence G. Wasden, Attorney General, Office of the Attorney General for the State of Idaho, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, and Timothy C. Fox, Attorney General, Office of the Attorney General for the State of Montana, were on the brief for amici curiae the States of Wyoming, et al. in support of defendants-appellants and intervenor-defendants-appellants.

          Ralph E. Henry argued the cause for appellees The Humane Society of the United States, et al. With him on the brief was Elizabeth Runyan Geise.

          Amy R. Atwood and Collette L. Adkins were on the brief for amicus curiae Center for Biological Diversity in support of plaintiffs-appellees The Humane Society of the United States.

          Before: Griffith, Millett, and Pillard, Circuit Judges.

          OPINION

          MILLETT, CIRCUIT JUDGE.

         The gray wolf once roamed in large numbers across the contiguous forty-eight States. But by the 1960s, hunting, depredation, and habitat loss drove the gray wolf to the brink of extinction, and the federal government declared the gray wolf an endangered species. After a portion of the gray wolf population rebounded, the government promulgated the rule at issue here, which removes from federal protection a sub-population of gray wolves inhabiting all or portions of nine states in the Western Great Lakes region of the United States. The Humane Society of the United States challenges that rule as a violation of the Endangered Species Act of 1973 ("Act"), 16 U.S.C. § 1531 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. Because the government failed to reasonably analyze or consider two significant aspects of the rule-the impacts of partial delisting and of historical range loss on the already-listed species-we affirm the judgment of the district court vacating the 2011 Rule.

         I

         A

         Congress enacted the Endangered Species Act "to halt and reverse the trend toward species extinction, " and to do so "whatever the cost." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 (1978). As relevant here, a species is "endangered" if it "is in danger of extinction throughout all or a significant portion of its range[.]" 16 U.S.C. § 1532(6). A species is "threatened" if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20).

         The Endangered Species Act directs the Secretary of the Interior to apply five factors in determining whether a "species" is endangered or threatened: (i) "the present or threatened destruction, modification, or curtailment of [the species'] habitat or range"; (ii) "overutilization [of the species] for commercial, recreational, scientific, or educational purposes"; (iii) "disease or predation"; (iv) "the inadequacy of existing regulatory mechanisms"; and (v) "other natural or manmade factors affecting [the species'] continued existence." 16 U.S.C. § 1533(a)(1). In making that determination, the Secretary must rely on "the best scientific and commercial data available[.]" Id. § 1533(b)(1)(A). The Secretary of the Interior has delegated the authority to determine whether a species is "endangered" or "threatened" to the Fish and Wildlife Service ("Service"). 50 C.F.R. § 402.01(b).

         The "species" that the Endangered Species Act protects are defined to include "any subspecies of fish or wildlife or plants, and, " of most relevance here, "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16).[1] The Act does not define "distinct population segment." Nor do agency regulations. The Service, however, has issued policy guidance stating that the existence of a "distinct population segment" turns upon the discreteness and significance of a sub-population as compared to the larger species population. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4, 722, 4, 725 (Feb. 7, 1996) ("Segment Policy"). The Segment Policy emphasizes that the Service's authority to recognize distinct population segments should be "exercised sparingly." Id. at 4, 724.

         To qualify as "discrete" under the Segment Policy, a domestic animal population must be "markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors[.]" Segment Policy, 61 Fed. Reg. at 4, 725. The "significance" of a potential segment turns on such factors as: (i) the "[p]ersistence of the discrete population segment in an ecological setting unusual or unique for the taxon"; (ii) "[e]vidence that loss of the discrete population segment would result in a significant gap in the range of a taxon"; (iii) "[e]vidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range"; or (iv) "[e]vidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics." Id.

         Another key term in analyzing a species' need for protection-"range"-is also left undefined by the Act. In 2014, the Service adopted a policy statement defining "range" as a species' "'current range, ' not [its] 'historical range.'" Final Policy on Interpretation of the Phrase "Significant Portion of its Range" in the Endangered Species Act's Definitions of "Endangered Species" and "Threatened Species, " 79 Fed. Reg. 37, 578, 37, 583 (July 1, 2014) ("Range Policy"). The Range Policy further explains that a portion of a species' range will be considered "significant" if the species would be in danger of extinction or likely to become so in the foreseeable future without that portion of its range. Id. at 37, 581.

         Once the Service determines that a species is endangered or threatened, it must add the species to a list of protected species in the Federal Register. 16 U.S.C. § 1533(c)(1). A listed species receives robust federal protections, including prohibitions on possessing, killing, selling, importing, or exporting its members. Id. § 1538(a). Any person that knowingly violates those prohibitions faces criminal sanctions, including fines of up to $50, 000 or a year of imprisonment. Id. § 1540(b)(1).

         The Act further requires the Service "from time to time [to] revise" its lists of endangered and threatened species "to reflect recent determinations, designations, and revisions." 16 U.S.C. § 1533(c)(1). Every five years, the Service must "review * * * and determine * * * 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." Id. § 1533(c)(2)(A), (B).

         B

         1

         Regional subspecies of the taxonomic species "gray wolf" (Canis lupis) were declared endangered by the federal government between 1966 and 1976. The timber wolf (Canis lupus lycaon) was first designated as endangered and afforded protection in 1967, 32 Fed. Reg. 4, 001, 4, 001 (March 11, 1967), followed by the Northern Rocky Mountain wolf (Canis lupus irremotus) in 1973, 38 Fed. Reg. 14, 678, 14, 678 (June 4, 1973). Both the Mexican wolf (Canis lupus baileyi) and the Texas wolf (Canis lupus monstrabilis) were added to the list in 1976. 41 Fed. Reg. 17, 736, 17, 737 (April 28, 1976); 41 Fed. Reg. 24, 062, 24, 066 (June 14, 1976).

         With the wolves' numbers rebounding in certain areas, the federal government in 1978 reclassified the gray wolf from its regional listings into a single species listing divided into two groups: Minnesota gray wolves, which the Service determined had recovered to the point of only being threatened, and the gray wolf in the remaining forty-seven States, which remained endangered. See Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9, 607, 9, 608, 9612 (March 9, 1978) ("1978 Rule").[2]

         In 2003, the Service subdivided the gray wolf listing into three "distinct population segments": an Eastern segment, a Western segment, and a Southwestern segment. Final Rule to Reclassify and Remove the Gray Wolf From the List of Endangered and Threatened Wildlife in Portions of the Conterminous United States; Establishment of Two Special Regulations for Threatened Gray Wolves, 68 Fed. Reg. 15, 804, 15, 818 (April 1, 2003) ("2003 Rule"). Included in the Eastern segment were the Minnesota gray wolf population and any gray wolf population that existed in the Northeast region of the United States. Id. at 15, 859. The Service then designated the wolves in the Eastern and Western segments as threatened rather than endangered. Id. at 15, 857-15, 858, 15, 862. The wolves within the Southwestern segment continued to be listed as endangered. Id.

         Two district courts struck down the 2003 Rule's attempted designation of those three distinct population segments. First, a district court in Oregon ruled that, by downlisting the species based solely on the viability of a small population within that segment, the Service was effectively ignoring the species' status in its full range, as the Endangered Species Act requires. See Defenders of Wildlife v. Secretary, U.S. Dep't of the Interior, 354 F.Supp.2d 1156, 1168-1169 (D. Or. 2005). The 2003 Rule thus had the "effect of rendering the phrase [significant portion of its range] superfluous." Id. at 1168 (alteration in original; internal quotation marks and citation omitted).

         Second, a district court in Vermont concluded that the Service impermissibly designated and downlisted the Eastern segment of gray wolves. National Wildlife Fed'n v. Norton, 386 F.Supp.2d 553, 564-565 (D. Vt. 2005). Fatal to the Service's determination, the court concluded, was the Service's decision to "lump" into the Eastern segment any gray wolves in the Northeast region of the United States, without ascertaining whether a gray wolf population even existed in the Northeast. See id. In so holding, the court rejected the Service's argument that the Endangered Species Act required it to include any Northeast region wolves in the segment to avoid turning them into an impermissible "non-DPS remnant" of gray wolves that neither fell within a recognized segment nor had independent species or subspecies status of its own. Id. at 564-565. In the district court's view, the Service instead could have continued the remnant's endangered-species status. See id. at 565.

         2

         The government did not appeal either the Oregon or the Vermont decision. Instead, in what turned out to be the first round in successive attempts to delist the gray wolves in the Western Great Lakes area, the Service promulgated a new rule in 2007 that created a "Western Great Lakes gray wolf distinct population segment" and simultaneously delisted that segment, removing it completely from the Endangered Species Act's protections. See Final Rule Designating the Western Great Lakes Populations of Gray Wolves as a Distinct Population Segment; Removing the Western Great Lakes Distinct Population Segment of the Gray Wolf From the List of Endangered and Threatened Wildlife, 72 Fed. Reg. 6, 052, 6, 052 (Feb. 8, 2007) ("2007 Rule"). That rule soon met the same fate as its two predecessors. A district court in this circuit vacated it for "fail[ing] to acknowledge and address crucial statutory ambiguities" concerning the creation of distinct population segments for the purpose of delisting. Humane Society of the U.S. v. Kempthorne, 579 F.Supp.2d 7, 9 (D.D.C. 2008); id. at 15. Again, the government did not appeal.

         In December 2008, the Solicitor of the Department of the Interior issued a memorandum analyzing the statutory authority for designating distinct population segments for the specific purpose of delisting them. See U.S. Fish and Wildlife Service Authority under Section 4(c)(1) of the Endangered Species Act to Revise Lists of Endangered Species and Threatened Species to "Reflect Recent Determinations, " Office of the Solicitor, U.S. Dep't of Interior (Dec. 12, 2008) ("Solicitor's Opinion"). The Solicitor concluded that the Act unambiguously allows the Service to identify a segment and then delist it. Id. at 3-5.

         The Solicitor started by noting that, once the Service lists a species as threatened or endangered, it is obligated to periodically revise its list of endangered or threatened species in light of any changes in the conservation status of a species. Solicitor's Opinion 3 (citing 16 U.S.C. § 1533(a), (c)(1)). The Solicitor then reasoned that the Endangered Species Act imposes no textual limit on the Service's authority to revise its list of endangered or threatened species based on intervening information and determinations. Id. at 4. On that basis, the Solicitor determined that the Act unambiguously permits the Service to designate a segment within a listed species, determine that the segment is no longer endangered or threatened, and delist it. Id. at 3-5.

         The Solicitor further opined that, even were the statutory text ambiguous, his interpretation was a reasonable construction of the statute and its purposes. Solicitor's Opinion 5-6. The Solicitor reasoned that, because subspecies and segments are parts of taxonomic species, any listing of a taxonomic species necessarily includes a listing of its constituent segments or subspecies. Id. at 7. On that basis, the Solicitor concluded that, even if the Service could only delist an already-listed segment, that requirement would be satisfied by the listing of the species that encompassed the segment. Id. The Solicitor also reasoned that delisting a recovered segment is consistent with the express statutory policies of the Act, including fostering federal-state cooperation and focusing resources where they are most needed. Id. at 13-19.

         3

         Based on the Solicitor's Opinion, the Service in 2009 republished the 2007 rule without notice and comment, adding a discussion of "Issues on Remand." Final Rule To Identify the Western Great Lakes Populations of Gray Wolves as a Distinct Population Segment and to Revise the List of Endangered and Threatened Wildlife, 74 Fed. Reg. 15, 070, 15, 075 (April 2, 2009) ("2009 Rule"). The Service relied on the Solicitor's determination that the Endangered Species Act permits the Service to "remove an already-listed entity from the appropriate list in its entirety, or to reduce the geographic or taxonomic scope of a listing to exclude a group of organisms previously included as part of an already-listed entity." Id. at 15, 083 (quoting Solicitor's Opinion 5 n.8).

         Round Two of the Service's attempt to delist the gray wolves in the Western Great Lakes area ended in the same manner as Round One: the 2009 Rule was challenged and vacated after the Service acknowledged that it had impermissibly promulgated the rule without notice and comment, and agreed to settle the case. Humane Society of the U.S. v. Salazar, No. 09-1092, Docket Entry No. 27 (D.D.C. July 2, 2009).

         As a consequence of all those regulatory missteps, the status of gray wolves remained in 2009 what it had been in 1978: Gray wolves in Minnesota were listed as "threatened, " while the wolves in the forty-seven other contiguous States were listed as "endangered."

         C

         1

         This case is Round Three in the Service's effort to divide and delist gray wolves in the broader Western Great Lakes region. In 2011, the Service issued a final rule that, in reliance on the Solicitor's Opinion, purported to "revise the boundaries of the Minnesota" gray wolf population to include the wolves in all or portions of eight other states. Revising the Listing of the Gray Wolf (Canis lupus) in the Western Great Lakes, 76 Fed. Reg. 81, 666, 81, 666, 81, 670 (Dec. 28, 2011) ("2011 Rule"). Specifically, the 2011 Rule designated the gray wolf population in Minnesota, Wisconsin, and Michigan, as well as portions of North Dakota, South Dakota, Iowa, Illinois, Indiana, and Ohio, as the Western Great Lakes Distinct Population Segment. Id. at 81, 666, 81, 670. In its next breath, the Service delisted that segment. Id. at 81, 723.

         In doing so, the Service again expressly adopted the legal analysis in the Solicitor's Opinion regarding its authority to delist a segment. See 2011 Rule, 76 Fed. Reg. at 81, 670, 81, 683. The Service then reasoned that, because more than 400 miles existed between the gray wolf population in the Western Great Lakes region and other gray wolf packs, the population qualified as "discrete." Id. at 81, 671. The Service further found that the loss of the Western Great Lakes population of gray wolves, which contained "70 percent of North American gray wolves known to occur south of Canada, " would constitute a "significant gap in the range" of the "gray wolves in the United States[.]" Id. at 81, 672. The Service thus concluded that the population qualified as "significant." Id. Accordingly, the Service determined that the Western Great Lakes population of gray wolves constituted a "distinct population segment." Id.

         The Service next considered whether the segment was endangered or threatened throughout all or a significant portion of its range. 2011 Rule, 76 Fed. Reg. at 81, 721-81, 723. In making that determination, the Service explained that it would interpret "range" to mean "current range." Id. at 81, 722. The Service also clarified that it would consider a portion of a species' range to be "significant" if that portion is "important to the conservation of the species because it contributes meaningfully to the representation, resiliency, or redundancy of the species." Id.

         Finally, the Service concluded, after analyzing the five statutory endangerment factors, that the Western Great Lakes segment was neither endangered nor threatened throughout all or a significant portion of its range. 2011 Rule, 76 Fed. Reg. at 81, 721-81, 723. The Service explained that existing rates of mortality from disease and human causes had been insufficient to prevent growth of the population, and that state plans provided adequate monitoring of and protection for the wolf segment. See, e.g., id. at 81, 694; id. at 81, 700.

         2

         The Humane Society filed suit alleging that the 2011 Rule violated both the Endangered Species Act and the APA. The district court agreed with the Humane Society and vacated the 2011 Rule, concluding that the Endangered Species Act does not permit the Service to designate a segment only to immediately delist it. See Humane Society of the U.S. v. Jewell, 76 F.Supp.3d 69, 110 (D.D.C. 2014). While the district court agreed that the statutory text was ambiguous, the court concluded that the Service's interpretation was unreasonable given the structure, history, and purpose of the Act. Id. at 110- 113. In the district court's view, the distinct population segment designation could only function as a "one-way ratchet, " allowing the Service to provide more, but not less, protection for a species. Id. at 112.

         The district court also rejected the Service's argument that it was simply revising the prior Minnesota wolf listing when it created the Western Great Lakes segment. The court explained that the Minnesota wolves had never been listed as a segment, and that the newly created segment altered the original geographic boundaries of the Minnesota wolf population. Humane Society, 76 F.Supp.3d at 114-115.

         The district court further concluded that the rule was arbitrary and capricious because the Service failed to address how large losses in the gray wolf's historical range affected the determination that the Western Great Lakes segment was not endangered or threatened. Humane Society, 76 F.Supp.3d at 128-132.

         Finally, the district court held that the rule was invalid because the Service failed to adequately consider the threat to wolves from disease and human-caused mortality and the insufficiency of state regulatory measures to protect the wolves after delisting. Humane Society, 76 F.Supp.3d at 132-134. The district court accordingly vacated the rule. Id. at 136-137.

         II

         The Service's listing determinations are subject to review under Section 706 of the APA, 5 U.S.C. § 706. See American Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C. Cir. 2008). Under that standard, we must overturn an agency decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

         We review the Service's interpretation of the Endangered Species Act under the familiar two-step Chevron framework. See Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984). First, we apply the "traditional tools of statutory construction" to determine whether Congress has directly spoken to the question at issue. Id. at 842-843 & n.9; Central United Life Ins. v. Burwell, 827 F.3d 70, 73 (D.C. Cir. 2016). If the statute's meaning is clear, the inquiry ends and "we must give effect to the unambiguously expressed intent of Congress." Secretary of Labor, Mine Safety & Health Admin. v. National Cement Co. of Cal., 494 F.3d 1066, 1073 (D.C. Cir. 2007) (internal quotation marks and citation omitted). If, however, "the statute is silent or ambiguous with respect to the specific issue, " then we will defer to the agency's considered interpretation of the statute if it is "reasonable." Abington Crest Nursing & Rehab. Ctr. v. Sebelius, 575 F.3d 717, 719 (D.C. Cir. 2009) (internal quotation marks and citation omitted); see also United States v. Mead Corp., 533 U.S. 218, 227-229 (2001).

         The central dispute in this case is whether the Endangered Species Act permits the Service to carve out of an already-listed species a "distinct population segment" for the purpose of delisting that segment and withdrawing it from the Act's aegis. We hold that the Act permits ...


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