United States Court of Appeals, District of Columbia Circuit
October 18, 2016
from the United States District Court for the District of
Columbia (No. 1:13-cv-00186)
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.
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
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
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
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
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.
E. Henry argued the cause for appellees The Humane Society of
the United States, et al. With him on the brief was Elizabeth
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.
MILLETT, CIRCUIT JUDGE.
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.
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.
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).
"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). 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.
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."
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.
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. §
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).
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).
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").
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.
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).
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.
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
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.
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.
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.
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).
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).
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."
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.
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
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.
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.
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.
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.
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.
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.
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).
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,
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