Colorado v. United States Fish & Wildlife Service
362 F. Supp. 3d 951 (2018)
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Rule of Law:
A federal agency's decision to list a species as 'threatened' under the Endangered Species Act and designate critical habitat will be upheld under the Administrative Procedures Act if it is not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law, provided the agency considered the best available scientific data and articulated a rational connection between facts and decision.
Facts:
- The Gunnison sage-grouse, a native North American bird, is an obligate user of sagebrush landscapes, historically found across southwestern Colorado, southeastern Utah, northwestern New Mexico, and northeastern Arizona.
- By the time of the Final Rule, the species' range was confined to southwestern Colorado and southeastern Utah, with an estimated population of 4,705 birds, primarily concentrated in the Gunnison Basin (nearly 4,000 birds) and six smaller, isolated 'satellite' populations.
- In January 2013, the Service published a Proposed Rule to list the Gunnison sage-grouse as 'endangered' throughout its range and proposed designating 1,704,227 acres as critical habitat.
- Over the subsequent year, the Service engaged in extensive public outreach, including four public comment periods, three public hearings, and evaluation by five peer reviewers.
- The Service considered various biological threats to the species, including habitat loss, degradation, and fragmentation, climate change, drought, potential West Nile virus susceptibility, and the genetic risks associated with small, isolated populations.
- Existing conservation efforts such as the Colorado Gunnison sage-grouse Candidate Conservation Agreement with Assurances (CCAA), a Candidate Conservation Agreement (CCA) for federal lands in the Gunnison Basin, and Gunnison County's local land-use regulations were in place to protect the sage-grouse.
- The Service incorporated multiple population viability analyses (PVAs), including a 2005 PVA and a more recent 2012 study by Amy Davis, to assess the species' survival and viability rates, noting that the Davis 2012 Study indicated the Gunnison Basin population was not as stable as previously thought.
- On November 14, 2014, after reviewing all input, the Service issued Final Rules modifying the listing to 'threatened' and designating 1,429,551 acres as critical habitat.
Procedural Posture:
- In January 2013, the United States Fish and Wildlife Service (the Service) published a Proposed Rule to list the Gunnison sage-grouse as 'endangered' and designate critical habitat.
- Following public comment periods, public hearings, and peer reviews, the Service issued a Final Rule on November 14, 2014, listing the Gunnison sage-grouse as 'threatened' and designating critical habitat.
- The State of Colorado, the Board of County Commissioners for the County of Gunnison, Colorado, the Gunnison County Stockgrowers' Association, Inc., the State of Utah, and San Juan County, Utah (collectively, Plaintiffs) challenged the Final Rule in the United States District Court for the District of Colorado.
- The Center for Biological Diversity, Western Watersheds Project, WildEarth Guardians, and Clait E. Braun (collectively, Defendant-Intervenors) intervened in the litigation, generally supporting the Service's rule.
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Issue:
Did the United States Fish and Wildlife Service act arbitrarily, capriciously, or contrary to law when it issued a Final Rule listing the Gunnison sage-grouse as a 'threatened' species under the Endangered Species Act and designated critical habitat, by allegedly failing to follow procedural requirements, relying on insufficient science, or inadequately considering conservation efforts and economic impacts?
Opinions:
Majority - CHRISTINE M. ARGUELLO
No, the United States Fish and Wildlife Service did not act arbitrarily, capriciously, or contrary to law in listing the Gunnison sage-grouse as 'threatened' and designating critical habitat because its decisions were supported by the best available scientific data, adhered to procedural requirements, and reasonably considered existing conservation efforts and economic impacts. The court found no procedural violation regarding the Davis 2012 Study because it permissibly supplemented existing data, was not the sole critical basis for the listing, and the Plaintiffs failed to demonstrate prejudice from its non-disclosure as they had access to and commented on the study. Under the APA, agencies can use supplementary data that expands on and confirms prior information if no prejudice is shown, and the final rule is a 'logical outgrowth' of the proposed rule. The Service's listing determination was not arbitrary and capricious, as substantial evidence supported the conclusion that the decline of satellite populations and threats to the Gunnison Basin population made the entire species face extinction in the foreseeable future. The Service considered five statutory factors (habitat, overutilization, disease, regulatory inadequacy, other factors), concluding that habitat decline, climate change/drought, West Nile virus susceptibility, and small population sizes posed significant threats. The court deferred to the agency's scientific expertise, noting that contradictory evidence does not invalidate an agency's action unless it lacks reasonable and substantial support. The Service properly evaluated existing and prospective conservation efforts under the Policy for Evaluation of Conservation Efforts (PECE), concluding they were insufficient to prevent listing. The voluntary nature, limited scope, and failure to address all identified threats rendered agreements like the CCAA and CCA inadequate for rangewide species protection. The critical habitat designation was also affirmed. The Service reasonably designated both occupied and unoccupied areas as critical, based on scientific data, primary constituent elements (PCEs) essential for conservation, and the inadequacy of occupied areas alone. The court rejected the argument that unoccupied lands must be currently 'habitable,' finding that 'essential to the conservation of the species' does not equate to 'habitable,' aligning with Fifth Circuit precedent. The NEPA analysis was found sufficient, as the Service considered three reasonable alternatives and provided thorough explanations for their rejection; Plaintiffs failed to meet the high standard for proving predetermination. Finally, the Service's economic impact analysis, using an 'incremental impacts' approach, was deemed appropriate, especially since the Service also applied a 'co-extensive impacts' approach out of caution, addressing a prior Tenth Circuit concern.
Analysis:
This case significantly reinforces the broad deference afforded to federal agencies in their scientific and technical determinations under the ESA, especially when reviewed under the APA's 'arbitrary and capricious' standard. It clarifies that for procedural challenges, plaintiffs must show actual prejudice from an alleged lack of public comment, and that supplemental data that logically grows from previously disclosed information does not necessarily require a new comment period. Crucially, the decision validates the designation of currently uninhabitable unoccupied areas as 'critical habitat,' interpreting 'essential to the conservation' broadly to include future recovery and connectivity needs, which could streamline future critical habitat designations for species requiring extensive restoration. It also provides guidance on the evolving methodology for assessing economic impacts, acknowledging changes in regulatory landscape.
