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Center for Biological Diversity v. U.S. Fish & Wildlife Service

United States District Court, N.D. California

March 28, 2017

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,
v.
U.S. FISH & WILDLIFE Service, et al., Defendants.

          ORDER RE: SUMMARY JUDGMENT RE: ECF NOS. 54, 57, 59

          JON S. TIGAR, UNITED STATES DISTRICT JUDGE

         Before the Court are Plaintiffs‘ Motion for Summary Judgment, ECF No. 54, Federal Defendants‘ Cross Motion for Summary Judgment, ECF No. 57, and Defendant Intervenors‘ Cross Motion for Summary Judgment, ECF No. 59. For the reasons set forth below, the Court denies Defendants‘ and Intervenors‘ motions, and denies in part and grants in part Plaintiffs‘ motion.

         I. FACTUAL BACKROUND

         This case concerns the coastal marten. The marten is a small mammal in the weasel family with distinctive orange and yellow chest fur and a large bushy tail. MAR[1] 20983. Coastal martens[2] inhabit old-growth forests west of the Rocky Mountains in Northern California, Southern Oregon, and Central Oregon. MAR 20985. Historically, the coastal marten lived "in all coastal Oregon counties and the coastal northern counties of California within late-successional coniferous forests." MAR 22029. Fur trapping and logging in the mid to late 1900s, among other things, seriously impacted the coastal marten. MAR 13210, 31871. Today, the coastal marten population is comparatively small and reduced in distribution; only three populations of coastal marten remain: one in northern California, one in southern Oregon, and one in central Oregon. MAR 20999; MAR 20919 (explaining that the coastal marten population in California occupies "less than five percent of the historical range" of the marten in California); MAR 20989 (finding that the two coastal marten populations in Oregon "occupy approximately 15% of the historical range" of the marten in Oregon). The precise extent of that decline is the subject of this lawsuit.

         On September 28, 2010, the Center for Biological Diversity ("CBD") and the Environmental Protection Information Center ("EPIC") submitted a petition to the United States Fish and Wildlife Service (the "Service"), requesting that the coastal marten be listed as an endangered or threatened species. MAR 22022.[3] On January 12, 2012, the Service published its initial 90-day finding. Id. (referred to as the "90-day finding" or "initial finding"). The Service concluded that Plaintiffs‘ petition "presented substantial information indicating that listing [of the coastal marten] may be warranted." Id. The initial finding briefly described the three known coastal marten populations. First, the report identified a coastal Northern California marten population that was "estimated to have undergone a 42 percent decline in occupancy" between 2001 and 2008 and "likely consists of fewer than 100 individuals." MAR 1945. Second, the initial finding described "two disjunct" Oregon populations - "one in central coastal Oregon and one in southern coastal Oregon-both of which are believed to be in decline based mainly on a reduction in the number of martens trapped and anecdotal observations over time." Id.

         As a result of the 90-day finding, the Service initiated a comprehensive status review of the coastal marten. A draft report was first circulated on November 4, 2014, MAR 9242, and discussed in a team meeting on November 14, 2014, MAR 9567. According to minutes taken during the meeting, the majority of those in attendance preliminarily recommended listing the marten as endangered. MAR 10150-52 (nine recommended listing, one recommended listing only the California population, and two recommended against listing). One biologist, however, later sent a follow-up email objecting that the minutes made her "‗preliminary recommendation‘ sound far more definitive than it was." MAR 10165.[4] Discussion among the team continued throughout 2014 and early 2015, with at least two Oregon biologists expressing doubts about whether sufficient data existed to support listing. MAR 13354. By January 20, 2015, several members of the marten team agreed that another meeting was needed to "iron out the differences" within the core team. MAR 13330. Nevertheless, on January 23, 2015, the Pacific Southwest Regional Director issued a memorandum that recommended against listing the coastal marten. MAR 13522.

         Consistent with this recommendation, the Service posted its 12-month finding on March 31, 2015, MAR 21030, and simultaneously released its underlying Species Report, MAR 20887. The Service stated that both the 12-month finding and the Species Report were based on the "best available scientific and commercial information" about the coastal marten. MAR 22023.[5] The 12 month finding, which found that the coastal marten was "not warranted for listing at this time, " was published in the Federal Register on April 7, 2015. MAR 22022. The 12-month finding first confirmed that the northern California, southern Oregon, and central Oregon marten populations comprise a single, listable entity, also known as a discrete population segment ("DPS"). MAR 22024. As required by DPS Policy, the Service determined that the coastal marten is both discrete ("separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors") and significant (of "biological and ecological importance . . . to the taxon to which it belongs"). MAR 22026. The 12-month finding began by acknowledging that the coastal marten "were once considered relatively abundant, " but that "historical fur trapping is thought to have resulted in a significant contraction of coastal marten distribution and the extirpation of coastal marten from large portions of its historical range." MAR 22029. Moreover, the Service stated that "much of the coastal marten‘s historical habitat has been lost." Id.

         With this background in mind, the Service analyzed the five factors enumerated in section 4 of the Endangered Species Act ("ESA" or "the Act"), 16 U.S.C. 1533, for deciding whether to add a species to the Federal Lists of Endangered and Threatened Wildlife and Plants:

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

         At bottom, the Service concluded that none of the stressors individually or together rose to the level of a threat to the coastal marten. MAR 22045.

         The Service did not stop there, however, because under the ESA and the Service‘s implementing regulations, a species may warrant listing if it is an endangered or a threatened species throughout all or a significant portion of its range." MAR 22049 (emphasis added) (referred to as the "SPR analysis"). In other words, once it found that the coastal marten population as a whole did not warrant listing, the Service was still required to consider whether one of the three regional marten sub-populations (northern California, southern Oregon, or central Oregon) was uniquely vulnerable to extinction. The Service answered this question in the negative, after it concluded that "the overall level of stressors is not geographically concentrated in one portion of the coastal marten‘s range." MAR 22051.

         II. PROCEDURAL BACKGROUND

         Plaintiffs filed their Complaint challenging the "not warranted" finding on December 15, 2015. ECF No. 1. On February 18, 2016, Siskiyou County, California, Douglas County, Oregon, the American Forest Resource Council, the National Association of Home Builders, the California Forestry Association, the Oregon Forest Industries Council, and Douglas Timber Operators ("the Intervenors"), moved to intervene. ECF No. 13. Plaintiffs did not oppose and the Court granted the Intervenors‘ motion on March 7, 2016. ECF No. 49.

         On August 17, 2016, Plaintiffs moved for summary judgment. ECF No. 54. Plaintiffs argue that two main components of the Service‘s 12-month finding are not supported, as required, by the "best scientific and commercial data available." First, Plaintiffs claim that the Service erred in its analysis of the fifth ESA factor when it concluded that "small and isolated population effects" did not rise to the level of a threat to the coastal marten. MAR 22043. Plaintiffs argue that the best available evidence demonstrates that the coastal marten populations are "small and declining" and that they are "functionally isolated." ECF No. 54 at 17-20. Second, Plaintiffs challenge the Service‘s conclusion that the coastal marten is not threatened or endangered throughout any significant population of its range. Id. at 21; MAR 22051. They claim that the best available evidence shows that the overall level of stressors is "concentrated in the California potion of the coastal marten‘s range." Id.

         In October 2016, Defendants and Intervenors each filed cross motions for summary judgment. ECF Nos. 57, 59. Both motions argue that the Service properly analyzed the five ESA factors, that the not warranted finding is supported by the best available evidence, and that this Court must therefore defer to the Service‘s decision.[6]

         III. LEGAL STANDARD[7]

         This Court‘s review of an agency‘s compliance with the ESA is governed by the Administrative Procedure Act ("APA"). Native Ecosystems Council v. Dombeck, 304 F.3d 886, 901 (9th Cir. 2002). Under the APA, a court may invalidate only those agency actions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This is a "deferential standard, " and the court‘s job "is simply to ensure that the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made." Nw. Ecosystem Alliance, 475 F.3d at 1140 (internal quotation marks omitted); see also Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("[A]n agency rule 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 it could not be ascribed to a difference in view or the product of agency expertise.").

         IV. ANALYSIS

         A. The Service's Not Warranted Finding

         Plaintiffs do not appear to challenge the Service‘s analysis of the first four ESA listing factors, instead limiting their arguments to factor five. The Court agrees with Defendants that the Service‘s conclusions regarding the first four factors of the 12-month finding are supported by the best available evidence and are entitled to deference.

         For the first factor, "the present or threatened destruction, modification, or curtailment of its habitat or range, " the Service examined the risk from wildfire, climate change, vegetation management, and development. MAR 22035-38. Particularly because much of the marten‘s suitable habitat within the three population areas is on federal lands and protected under the Northwest Forest Plan ("NWFP"), the Service concluded that factor one did not rise to the level of a threat. As for the second factor, "[o]verutilization for commercial, recreational, scientific, or educational purposes, " the Service noted that, historically, unregulated fur trapping presented the main threat to the coastal marten, but concluded that trapping had been eliminated in California and reduced in Oregon. MAR 22038. Third, the Service analyzed the risk to the marten from disease or predation and found no evidence that either rose to the level of a threat. MAR 22048. Looking to the fourth factor, the "inadequacy of existing regulatory mechanisms, " the Service determined that, far from posing a threat, multiple federal land use plans and state regulations may help "abate the large-scale loss of forested habitat-types deemed essential for coastal martens." Id. The Court agrees with Defendants that, at least as to these four factors, the Service "considered the relevant factors and articulated a rational connection between the facts found and the choices made." Nw. Ecosystem Alliance, 475 F.3d at 1140.

         The parties dispute, however, whether the best available evidence supports the Service‘s analysis of factor five: "Other natural or manmade factors affecting [the marten‘s] continued existence." Specifically, the Service concluded that the coastal marten population is not small enough or ...


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