The opinion of the court was delivered by: Illston, District Judge.
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, DENYING
DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT, AND REMANDING TO
DEFENDANT SECRETARY FOR FURTHER CONSIDERATION AND DECISION
On October 13, 2000, the Court heard argument on the parties'
cross-motions for summary judgment. Having carefully considered
the arguments of the parties and the papers submitted, the Court
GRANTS plaintiffs' motion for summary judgment and DENIES
defendants' cross-motion for summary judgment for the reasons set
Plaintiffs Federation of Fly Fishers, et al. ("Fly
Fishers")challenge a March 19, 1998 Final Rule by the Secretary
of Commerce, acting through the National Marine Fisheries Service
("NMFS"), not to list the Klamath Mountains Province
Evolutionarily Significant Unit ("ESU")of steelhead as a
threatened species under the Endangered Species Act ("ESA"),
16 U.S.C. § 1531 et seq. For purposes of listing under the ESA, a
"species" is defined by geographical population segments called
ESUs. Administrative Record ("AR")Ex. 15 at 3. The Klamath
Mountains Province ESU of steelhead occupies river basins in the
Elk River in southern Oregon through the Klamath River in
Northern California. AR Ex. 1 at 13352. Steelhead (Oncorhynchus
mykiss)are a salmonid species that occur on the west coast in
two distinct genetic groups — coastal and inland. AR Ex. 1 at
13347. Steelhead can also be classified as winter-run or
summer-run depending on their sexual maturity and spawning
patterns. AR Ex. 1 at 13348, 13352. The Klamath Mountains
Province ESU steelhead are coastal and include both winter-run
and summer-run steelhead. AR Ex. 1 at 133352.
In February 1994, a second petition was submitted to NMFS
requesting listing of all west coast steelhead populations.
Plaintiffs' Motion 7. NMFS again determined that the request to
list "may be warranted." AR Ex. 230. NMFS stated that the
petition would be incorporated into the on-going review of west
coast steelhead populations it was already conducting.*fn1
Plaintiffs' Motion 7. The on-going review produced a
comprehensive report issued in August 1996 assessing the
biological status of steelhead populations in Washington, Idaho,
Oregon, and California ("1996 Status Report"). AR Ex. 15.
The 1996 Status Report identified five ESUs of steelhead that
were presently in danger of extinction and five ESUs that were
likely to become endangered in the foreseeable future. AR Ex. 15
at vii. The Klamath Mountains Province ESU was identified among
the ESUs likely to become endangered. Id. The BRT's
determination was based on scientific conclusions and did not
consider whether any then existing federal or state conservation
efforts could ameliorate the decline in steelhead population. AR
Ex. 15 at 4. Hence, the BRT did not give a recommendation as to
whether the Klamath Mountains Province ESU should be listed as
On August 9, 1996, based on the 1996 Status Report, NMFS
proposed to list the Klamath Mountains Province ESU as
threatened, in addition to the nine other ESUs identified in the
status report as endangered or threatened. NMFS based its
Proposed Rule on the recognition that numerous efforts to halt
the decline of the steelhead population were inadequate. AR Ex.
13 at 41556. On August 18, 1997, NMFS issued the Final Rule to
list five of the ESUs in the proposed listing. AR Ex. 8 at 43974.
The Klamath Mountains Province ESU was not among those listed.
Id. Instead, final determination on the Klamath Mountains
Province ESU along with the other ESUs not listed was postponed.
NMFS invoked a six-month extension period because it found that a
scientific disagreement existed regarding the proposed listing of
these ESUs. AR Ex. 8 at 43974. The extension period allowed NMFS
to collect and review new information received from California
and Oregon since the 1996 status review. Plaintiff's Motion 8.
NMFS additionally held public hearings and considered comments
from a number of peer reviewers. Id.
Plaintiffs brought this action under the Administrative
Procedure Act, 5 U.S.C. § 706(2), challenging NMFS's Final Rule
of 1998 as arbitrary and capricious.*fn2 Before the Court is
plaintiffs' motion for summary judgment and defendants'
cross-motion for summary judgment.
The Federal Rules of Civil Procedure provide for summary
adjudication when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed.R.Civ.P. 56(c).
In a motion for summary judgment, "[if] the moving party for
summary judgment meets its initial burden of identifying for the
court those portions of the materials on file that it believes
demonstrate the absence of any genuine issues of material fact,
the burden of production then shifts so that the non-moving party
must set forth, by affidavit or as otherwise provided in Rule 56,
`specific facts showing that there is a genuine issue for
trial.'" See T.W. Elec. Service, Inc. v. Pacific Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986)).
In judging evidence at the summary judgment stage, the Court
does not make credibility determinations or weigh conflicting
evidence, and draws all inferences in the light most favorable to
the nonmoving party. See T.W. Electric, 809 F.2d at 630-31
(citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986));
Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991). The
evidence presented by the parties must be admissible. Fed.
R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits
and moving papers is insufficient to raise genuine issues of fact
and defeat summary judgment. See Falls Riverway Realty, Inc. v.
City of Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill
Publ'g Co., Inc. v. GT & E Corp., 594 F.2d 730, 738 (9th Cir.
1979). Hearsay statements found in affidavits are inadmissible.
See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759,
762-63 (9th Cir. 1980).
B. Review of Administrative Action
1. The Administrative Procedure Act Applies
This Court's review of NMFS's decision not to list the Klamath
Mountains Province ESU is governed by the Administrative
Procedure Act ("APA"), 5 U.S.C. § 706(2). Pyramid Lake Paiute
Tribe v. U.S. Dep't of the Navy, 898 F.2d 1410, 1413 (9th Cir.
1990). The Court "shall" set aside any agency decision that the
Court finds is "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The
APA restricts the trial court reviewing an agency action from
considering any evidence outside of the administrative record
available to the agency at the time of the challenged decision.
See 5 U.S.C. § 706(2)(E); Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643
(1985); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.
1991), cert. denied, 503 U.S. 959, 112 S.Ct. 1559, 118 L.Ed.2d
The Court must determine whether the agency decision "was based
on a consideration of the relevant factors and whether there has
been a clear error of judgment." Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136
(1971). The Supreme Court has explained that an agency action
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, [or]
offered an explanation for its decision that runs counter to the
evidence before the agency. . . ." Motor Vehicle Mfrs. Ass'n v.
State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103
S.Ct. 2856, 77 L.Ed.2d 443 (1983). Although the arbitrary and
capricious standard "is narrow and presumes the agency action is
valid, . . . it does not shield agency action from a `thorough,
probing, indepth review.'" Northern Spotted Owl v. Hodel,
716 F. Supp. 479, 481-82 (W.D.Wash. 1988) (citations omitted). The
Court cannot, however, substitute its judgment for that of the
agency and should not determine whether it would have decided an
issue differently. Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
2. Applicability of Motor Vehicles Mfrs. Ass'n v. State Farm
The parties dispute to what extent Motor Vehicle Mfrs. Ass'n
is applicable to the present action. The Supreme Court in that
case found arbitrary and capricious a decision by the National
Highway Traffic Safety Administration to rescind an existing
regulation requiring air bags and passive seat restraints in
passenger automobiles. The Supreme Court held, "an agency
changing its course by rescinding a rule is obligated to supply a
reasoned analysis for the change beyond that which may be
required when an agency does not act in the first instance."
Motor Vehicle Mfrs. Ass'n, 463 U.S. at 41-42, 103 S.Ct. 2856.
Plaintiffs argue that this language should be read to mean that
an "agency's change of position can be taken as evidence of
arbitrariness unless adequately explained, and that the agency
has the burden of explaining the change." Plaintiffs' Reply and
Opposition to Defendants' Cross-Motion 8.
Defendants, on the other hand, argue that Motor Vehicle Mfrs.
Ass'n is not applicable because "[t]here was no previous rule in
our case, merely a proposal." Defendants' Opposition 12.
Defendants further argue that a change in position from a
proposed rule is not the same as the rescission of an issued rule
because "[a] paramount purpose of the APA is to make an agency
publish its preliminary rule and then to rethink that position,
in light of the comments and additional information received."
Id. (emphasis in original).
In support of their position, plaintiffs cite General Elec.
Co. v. United States Dep't of Commerce, 128 F.3d 767, 775
(D.C.Cir. 1997), and Oregon Natural Resources Council v. Daley,
6 F. Supp.2d 1139, 1152 (D.Or. 1998). General Electric involved
a challenge to a final rule issued by the National Oceanic and
Atmospheric Association ("NOAA") pursuant to the Oil Pollution
Act of 1990, passed in response to the Exxon Valdez oil spill.
128 F.3d at 769. Applying the APA's arbitrary and capricious
standard, the Court vacated one provision of the final rule for
"lack of reasoned decision-making" because the NOAA failed to
explain a change in position from the proposed rule to the final
rule. The final rule gave trustees the power to "remove
conditions that would prevent or limit the effectiveness of any
restoration action (e.g., residual sources of contamination)."
Id. at 774. The proposed rule had only directed the trustee to
"consider" whether conditions exist that would impede the primary
of an oil spill. Id. at 775. The NOAA's lack of explanation for
the change in position was fatal to the final rule because it
created ambiguity over "the interrelationship between trustees'
residual removal authority and the primary removal authority of
the EPA and the Coast Guard," whereas the proposed rule did not.
General Electric is distinguishable from this case because
the change in position there involved an affirmative grant of
authority that altered existing relationships between agencies
who shared duties in a restoration action. It was thus critical
that the agency explain how the new division of power operates.
The present case does not involve an alteration of agency
functions. The Court thus finds General Electric inapplicable
to the present case.
Oregon Natural Resources Council v. Daley involved facts
identical to the present matter. NMFS in that case issued a final
rule not listing the Oregon Coast ESU of coho salmon as a
threatened species after its proposed rule indicated that the ESU
should be listed. 6 F. Supp.2d at 1152. The district court held,
"Although it is certainly permissible for the NMFS to change its
position after considering public comments and soliciting
additional data, the issue is why it changed its position. . . ."
Id. Nothing in this statement indicates that NMFS has the
burden or obligation to explain why it changed its position. ...