Ctr for Biological Diversity v. Ryan Zinke
2017 U.S. App. LEXIS 16401
| 9th Cir. | 2017Background
- CBD petitioned FWS to list the Sonoran Desert Area bald eagle ("desert eagle") as a distinct population segment (DPS) under the Endangered Species Act; FWS repeatedly denied DPS status and CBD litigated those denials.
- The DPS Policy requires a population segment to be both discrete and significant; parties agreed the desert eagle is discrete but disputed significance.
- FWS’s 2012 status review found the desert eagle met the DPS Policy’s "persistence in an ecological setting unusual or unique" factor but concluded the population was not significant overall.
- CBD argued (1) that satisfying any one of the DPS Policy’s listed significance factors compels a finding of significance, (2) FWS ignored the importance of peripheral populations for the "range gap" analysis, and (3) FWS failed to consider climate change’s effects.
- The district court granted summary judgment to FWS; the Ninth Circuit reviewed de novo under the APA standard (arbitrary and capricious review) and affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether satisfying one listed DPS Policy significance factor compels a finding of significance | CBD: If any one factor is met, FWS must declare the segment significant | FWS: Listed factors are indicators, not automatic triggers; agency must weigh overall evidence | Held: No — satisfying a listed factor does not automatically require a significance finding |
| Whether loss of the desert eagle would create a "significant gap" in the taxon’s range, with emphasis on peripheral-population value | CBD: Desert eagle is a peripheral population; loss would create a significant gap and thus warrant DPS protection | FWS: Population is very small, lacks demonstrated distinctive traits/genetic variation; loss would not materially harm taxon | Held: FWS reasonably concluded loss would not create a significant gap given size and lack of distinctive evidence |
| Whether FWS unreasonably ignored or discounted the 2009 draft finding and changed course without reason | CBD: Prior draft found significance; later reversal was arbitrary | FWS: Agencies may change conclusions with reasoned analysis; 2012 decision explained its basis | Held: Change was permissible; court defers to reasoned agency scientific judgment |
| Whether FWS failed to consider climate change in assessing significance | CBD: Climate change should have been considered as increasing significance | FWS: Addressed climate change, found it uncertain but not a significant threat; bald eagle’s adaptability reduces concern | Held: FWS considered climate change and reasonably concluded it did not alter the significance determination |
Key Cases Cited
- Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835 (9th Cir.) (framework for "significant" gap analysis under the DPS Policy)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard for agency action)
- Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136 (9th Cir. 2007) (DPS Policy entitled to Chevron deference; peripheral population significance discussion)
- Stinson v. United States, 508 U.S. 36 (1993) (agency interpretation of ambiguous regulations entitled to deference)
- Defenders of Wildlife v. Zinke, 856 F.3d 1248 (9th Cir.) (requirement that agency supply reasoned explanation when changing course)
- Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015 (9th Cir.) (ESA/APA review principles)