Ctr. for Biological Diversity v. Ryan Zinke
900 F.3d 1053
9th Cir.2018Background
- Arctic grayling (Upper Missouri River DPS) historically ranged in MT, WY, MI; now only in Upper Missouri Basin, MT with 26 populations (6 native; most adfluvial; only two fully fluvial: Big Hole and Ruby).
- FWS made repeated ESA listing reviews (1982, 1994 warranted-but-precluded, 2007 not a DPS, 2010 warranted-but-precluded (DPS), and 2014 concluded listing not warranted).
- The 2010 Finding identified low abundance, small effective population sizes, high stream temperatures, low flows, and climate change as threats; 2014 Finding reversed some conclusions, finding population increases, effectiveness of conservation measures (CCAA), and thermal refugia.
- CBD challenged the 2014 Finding in district court arguing FWS: (1) used wrong definition of “range” (current vs historical) for the ‘‘significant portion of its range’’ analysis and (2) acted arbitrarily and capriciously on population trends, thermal refugia, climate-change synergistic effects, and genetic/stochastic-risk analyses.
- The Ninth Circuit (Paez, J.) upheld FWS’s definition of “range” (deferential Chevron analysis to FWS SPR policy treating “range” as current range) but held parts of the 2014 Finding arbitrary and capricious and remanded for further consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper meaning of “range” in "significant portion of its range" | "Range" means historical range; FWS must consider lost historical range when assessing significance | FWS SPR policy reasonably defines “range” as the species’ current range for status determinations | Court: "range" is ambiguous; Chevron deference applies; FWS’s current-range interpretation is reasonable and upheld |
| Credibility/weight of population data (Big Hole River) | FWS ignored DeHaan genetic study showing declining effective breeders and improperly relied on Leary study to find population increases | FWS relied on more current monitoring (Leary) and state data; declines were explained as survey artifacts | Court: FWS acted arbitrarily and capriciously by failing to acknowledge and explain contrary DeHaan evidence; remand required |
| Reliance on thermal refugia / low-flow conclusions (Big Hole and other tributaries) | Evidence does not support existence/effectiveness of cold-water refugia; CCAA measures and fish ladders insufficiently shown to mitigate thermal stress | FWS relied on studies (Vatland, Jaeger email) and CCAA monitoring showing improved flows/targets met more often | Court: FWS’s reliance on thermal refugia in the Big Hole was arbitrary and capricious (insufficient explanation/evidence); Centennial Valley decision upheld; Madison River error harmless |
| Consideration of climate-change synergistic effects | FWS improperly dismissed cumulative climate-change impacts by invoking uncertainty without explaining why uncertainty favors delisting | FWS emphasized uncertainty in projecting synergistic effects | Court: FWS could not dismiss additive climate-change risks solely for uncertainty; that approach is arbitrary and capricious |
| Small-population/genetic viability and stochastic risk (Ruby River redundancy) | Small populations remain a genetic/stochastic threat; Ruby River data insufficient to establish a viable fluvial replicate | FWS pointed to updated genetic info and recent increases in Ruby River as alleviating genetic/stochastic concerns | Court: FWS reasonably addressed long-term genetic viability but arbitrarily relied on Ruby River as a viable fluvial replicate given limited monitoring and its own prior viability criteria; remand required |
Key Cases Cited
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (Supreme Court 1978) (describing the ESA’s strong preservation purpose)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (Supreme Court 1984) (agency deference framework)
- Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001) (SPR / "significant portion of its range" ambiguity and need to explain disregarding lost range)
- Tucson Herpetological Soc. v. Salazar, 566 F.3d 870 (9th Cir. 2009) (agency must rationally explain why lost/threatened portions of range are insignificant)
- Humane Soc’y of the United States v. Zinke, 865 F.3d 585 (D.C. Cir. 2017) (upholding FWS SPR policy that interprets "range" as current range)
- Greater Yellowstone Coal. v. Servheen, 665 F.3d 1015 (9th Cir. 2011) (arbitrary-and-capricious review standard in ESA context)
- FCC v. Fox Television Stations, Inc., 556 U.S. 502 (Supreme Court 2009) (agency must explain changes from prior positions)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (Supreme Court 1983) (arbitrary and capricious standard elements)
- Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) (need for reasoned explanation when agency reverses course)
- Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) (agency must not ignore available biological information)