ORDER
Plaintiff Alliance for the Wild Rockies (“Alliance”) moves for summary judgment arguing that Defendants Secretary Ryan Zinke and Director Daniel Ashe (collectively “Defendants”)
BACKGROUND
In 1975, the grizzly bear (Ursus arctos horribilis) was listed as a “threatened” species in the lower 48 states. This designation was implemented after the dire decline of the species over the course of the last century where total grizzly bear numbers dropped from 50,000 in 1880 to fewer than 1,000 in the mid-1970s. The great bear’s historic range had also shrunk from populations in the Midwest and California and into' Mexico, to just four states today.
A. The Cabinet-Yaak
The Cabinet-Yaak recovery zone is located on the border between Montana and Idaho, with 90% of the zone on three national forests: the Kootenai National Forest, the Idaho Panhandle National Forest, and the Lolo National Forest. Estimates of the total number of grizzlies in the Cabi-netYaak. vary, but it is undisputed that less than 50 individual bears can be found in the recovery zone. The population of bears in the Cabinet-Yaak can be geographically divided into two areas: a population in the south of the zone in the Cabinet Mountains (“Cabinet population”), and a population in the north located near the Yaak River (“Yaak population”).
The population trends for the bears in these two areas is disputed by the parties. Nevertheless, in 1988, the Cabinet population was estimated to be 15 bears or fewer. The Yaak population at the time was unknown. As of 2014, the total population for Cabinet-Yaak was estimated to be be
The parties dispute whether the Cabinet-Yaak grizzly is currently experiencing improving population trends. Nevertheless, it is undisputed that as of 2013, the total grizzly • bear population in the Cabinet-Yaak was not stable. Indeed, at a minimum, 100 bears are necessary for the recovery of the Cabinet-Yaak grizzly and the current number of bears is less than half that number. However, though the total number of bears is less than ideal, the FWS contends that current figures show an improving trend since 2006 and a stable trend since 2013. As a result, the FWS asserts that the Cabinet-Yaak is no longer warranted for listing as an endangered species. Specifically, the FWS has found that the Cabinet-Yaak population is “no longer on the brink, of extinction.” 79 Fed. Reg. 72460, 72488 (December 5, 2014).
In contrast, Alliance contends that these numbers demonstrate that the Cabinet-Yaak population is warranted-for. listing because it is currently not viable or close to -recovery. Alliance states that various factors are hindering the recovery of this population, including natural and human-caused threats. For example, grizzly bears have a limited, reproductive capacity which precludes a rapid increase in population. Pue to the relatively late age when grizzles first reproduce, their small litter size, and long intervals between litters, even in optimum conditions a single female grizzly is likely to produce less .than four other females in her lifetime. Combined with other factors such as population isolation and displacement from human caused activities, such as mining and logging, Alliance contends that the Cabinet-Yaak grizzly faces a unique set of challenges which warrant their listing. Alliance also argues that the human-caused mortality rate for the Cabinet-Yaak grizzly is significantly contributing to the bear’s lack of stability. For example, front 1999 to 2006, 18 bear deaths were known to be directly caused by humans. Further, from 2007 to 2014, at least 17 bears were killed by humans. Alliance contends that this mortality rate, among the other factors mentioned, warrants listing of the Cabinet-Yaak grizzly.
B. The ESA and the Listing Process
The ESA requires the Secretary of the Interior to determine, “solely on the basis of the best scientific and commercial data available,” whether any species should be listed as “endangered”,or as “threatened.” 16 U.S.C. § 1533(a)(1), (b)(1)(A). The ESA defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range ....” 16 U.S.C. § 1532(6). A “threatened species” is “any species which is -likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. at § 1532(20). The Secretary, through the FWS, is statutorily required to consider various factors in its listing decision, including: (1) “the present or threatened destruction, modification, or curtailment of its habitat or range; (2) “overutilization for commercial, recreational, scientific, or educational purposes”; (3) “disease- or predation”; (4) “the inadequacy of existing regulatory mechanisms”; or (5) “other natural or manmade factors affecting its continued existence.” 16 U.S.C. § 1533(a)(1)(A)-(E).
A species’ listing determination is- resolved through a petition process. Essentially, any “interested person” may petition to add or" remove a species from the endangered species list. 16 U.S.C.
A “warranted but precluded” finding recognizes that a species qualifies for protection under the ESA, but whose listing is “precluded by pending proposals and expeditious progress must be being made to list qualified species and delist those for whom ESA’s protections are no longer necessary.” Wildwest Inst. v. Kurth,
Implementation of this system requires the FWS to fashion “a ranking system to assist in the identification of species that should receive priority review.” 16 U.S.C. § 1533(h)(3). This system assigns a Listing Priority Number “LPN” between 1 (highest priority, i.e., an “emergency”) and 12 (lowest priority) based on three criteria: (1) magnitude of threats; (2) immediacy of threats; and (3) taxonomic status. Wildwest Inst.,
C. Listing of the Cabinet-Yaak Grizzly
Following the grizzly bear’s initial listing as a “threatened species” subsequent to the passage of the ESA, from 1986 to 2007 the FWS received and reviewed 10 petitions requesting a change in the status of the bear. In 1993, the 'FWS determined that the grizzly population in the Cabinet-Yaak ecosystem warranted listing as an endangered species, and-issued a finding that the listing was warranted but precluded by work on other species having a higher priority for listing. This finding was repeatedly reaffirmed by the FWS over the course of the next two decades.
In 2007, the FWS initiated its “5-year review” to evaluate the status of grizzly bears in the lower 48 States, and in particular, the population in the Cabinef>-Yaak ecosystem. This review, published in 2011,
In November of 2013, the FWS again concluded that listing the Cabinet-Yaak grizzly as endangered was warranted but precluded by work on other species. Reiterating the threats made in its 5-year review, the FWS found that the population was still subject to “high magnitude threats that are ongoing, thus imminent.” 78 Fed. Reg. 70104, 70151 (November 22, 2013). As a result of these ongoing threats, FWS continued to assign a LPN of 3 to the Cabinet-Yaak population. The FWS would change its assessment of the bear the following year.
In early 2014, discussions within the FWS indicted that it was considering revising the Cabinet-Yaak population’s LPN to a higher number. In an email from January 2014, Chris Servheen, a FWS’s Grizzly Bear Recovery Coordinator in Montana, said: “I don’t think we are as yet justified in making a statement about the [Cabinet-Yaak] not being warranted for endangered status but we are making progress in that direction.” (Doc. 27 at 39-40.) This assessment was echoed by FWS Biologist Wayne Kasworm in another January 2014 email:
I just ran the trend numbers for 2013 in the [Cabinet-Yaak] and it appears we have climbed out of the hole we were in and reached a stable point estimate of 1.0002 (Cl 0.90621.0754). This is good news, but may not rise to the level of declaring victory. We will need to continue ... reducing unnecessary forms of human caused mortality. If this were the Selkirks I would unequivocally say we do not need to go to endangered status. In the [Cabinet-Yaak] I am not sure the data allows us to make a good argument to support it.”
(Id. at 40-11.) Another FWS Biologist, Rebecca Shoemaker, clarified that these improvements should lead to a higher LPN for .the population:
After a call w/ Wayne this morning and in light of recent improvements in the imminence of threats, we think the [Cabinet-Yaak ecosystem] would probably not meet the definition of LPN 3 anymore. I’ve incorporated language from Wayne into the attached' draft response letter saying this and we expect to hash this out more formally in the annual [Candidate Notice of Review].
(Id. at 41.) Indeed, in an internal assessment dated April 1, 2014, the FWS found that it would change the Cabinet-Yaak’s LPN from 3 to 6:
The uplisting of the Cabinet-Yaak grizzly bear population from threatened to endangered now has a listing priority number of 6. This priority number indicates the magnitude of threat is high but those threats are not imminent .... Magnitude: The magnitude of threats is considered high because these popula*1170 tions have not experienced the samé increases in numbers and distribution as other, healthier, grizzly bear populations in the lower 48 States, even though similar management actions have been implemented.
(Id. at 39.) This determination was again reaffirmed in a June 2014 assessment, which found:
Despite ... improvements, the [Cabinet-Yaak ecosystem] still faces threats that put the population at significant risk. The extremely small population size (< 50 individuals) makes this population very vulnerable to human-caused mortality. While the population trend has changed from declining to stable, it will take several years of a positive trend to provide us with assurance the population is truly recovering. Additionally, until the Record of Decision for motorized access management is more fully implemented, habitat destruction and modification remains a threat.
(Id. at 43.) This June 2014 assessment thus concluded, albeit preliminarily, that the Cabinet-Yaak “population is still warranted for uplisting to endangered status but the LPN shall be reduced from 3 to 6.” (Id. at 44.)
However, in July of 2014, internal documents within the FWS indicate that -the agency decided that the Cabinet-Yaak grizzly was no longer warranted for listing. It appears that the agency came-to this conclusion after applying the “Polar Bear rule”
In a December 22, 2010 memorandum, FWS provided supplemental information for the determination of Threatened or Endangered status under the Endangered Species Act (FWS 2010). The document clarifies Service policy in regards to the statutory phrase “in- danger of extinction” as used in a listing with Endangered status. This -policy recognizes this phrase as meaning “currently on the brink bf extinction in the wild”. We are now applying this new policy to Endangered listing determinations .... In applying this policy to the best available biological data, we conclude that the Cabinet-Yaak grizzly bear population is not currently on the brink of extinction and is no longer warranted for Endangered status and should continue to be listed as Threatened.
(Id. at 46.)
This proposal found that the Cabinet-Yaak grizzly is not currently “on the brink of extinction” for several reasons, including (1) an improving population trend between 2006 and 2013; (2) the population had reached a stable trend for the period between 1983 and 2013; (3) human caused mortality of female bears had declined; and (4) a successful bear transplant augmentation plan for the Cabinet population. Under this augmentation plan, 15 bears were introduced into this section between 1990 and 2013. It was also noted that two of these transplant bears had successfully reproduced and yielded offspring which had also successfully procreated.
In response to this revised proposal, Assistant ESA Chief Seth Willey replied, “I very much appreciate that you gave this is a hard look. The' only change I would
On December 5, 2015, the FWS officially
Since 1992, we have received and reviewed six petitions requesting a change in status for the Cabineh-Yaak grizzly bear population .... In response to these petitions, we previously determined that grizzly bears in the Cabinet-Yaak ecosystem warranted a change to endangered status. However, for several years, this population’s status has been improving. The population trend' has now changed from declining to stable. The U.S. Forest Service has established regulatory mechanisms for motorized access management and attractant storage, and researchers have documented some movement between the Cabinet-Yaak and other populations in Canada. Together, these improvements have reduced the threats to this population. Urn til the Record of Decision for motorized access management is more fully implemented and we have several more years of a positive population trend, we remain cautious in our interpretation. We conclude that the Cabinet-Yaak ecosystem population continues to face several threats, and retain this populations’s threatened status, but we no longer -find that the population is warranted. for uplisting to endangered status (i.e., “on the brink of extinction”).
Following publication of this, finding, Alliance filed suit in this Court requesting judicial review. Alliance asserts that the FWS acted arbitrarily and abused its discretion when it concluded that the Cabinet-Yaak grizzly bear is not warranted for listing as an endangered species. Alliance seeks a declaration that FWS’s determination was unlawful under the ESA and requests that the Court reverse and remand this decision for further agency review.
Defendants contend that Alliance misrepresents the agency’s reasoned determinations with cherry-picked statements and misapplication of the FWS’s longstanding positions on listing decisions. Essentially, Defendants counter that Alliance’s lawsuit is nothing more than a disagreement with the FWS’s listing decision — which does not invalidate a reasonable agency decision under federal law. Defendants contend that the. FWS’s listing determination was reasoned and supported by the record. Accordingly, Defendants request that the Court reject Alliance’s arguments and defer to the.agency’s findings.
Subsequent to the initiation of the Complaint, Defendant-Intervenors Bonner County, Idaho, Boundary County, Idaho, and. Lincoln County,‘Montana (collectively, the “Counties”) jointly moved for intervener status in this matter.
LEGAL STANDARD
A party is entitled to summary judgment if it can demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc.,
Claims brought pursuant to the ESA are reviewed under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. See Native Ecosystems Council v. Dombeck,
ANALYSIS
I. Standing
Defendant-Intervenors contend that Alliance lacks standing to seek judicial review of the FWS’s listing decision. The Counties bring two arguments in support: (1) Alliance did not actually file any of the petitions requesting that the Cabinet-Yaak grizzly be listed as an endangered species; and (2) Alliance has failed to present a justiciable controversy because it was not injured by a change in the bear’s status.
1. Non-Petitioner Standing
The Counties first argue that Alliance lacks standing because it did not file any of the petitions requesting that the population be listed as endangered. These petitions spurred the FWS’s review of the species and ultimately resulted in the agency’s “not warranted” determination. The Counties contend that because Alliance was not one of the actual petitioners in these requests, the Court should find that the organization cannot participate in this matter. The Court disagrees.
The ESA provides that following the FWS’s determination as to a species’ endangered or threatened status, “[a]ny negative finding ... shall be subject to judicial review.” 16 U.S.C. § 1533(b)(3)(C)(ii). Specifically, “any person may commence a civil suit on his own behalf ... to enjoin ... the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of [the ESA].” 16 U.S.C. 1540(g)(1)(A).
Here, it is undisputed that Alliance provided the FWS with 60 days notice before bringing this suit. Further, the organization’s Complaint alleges that the Secretary violated the ESA when it determined that the Cabinet-Yaak grizzly was not warranted for listing. Thus, under a plain reading of the ESA, the statutory requirements for bringing a citizen suit have been met. Alliance’s non-petitioner status is irrelevant.
2. Injury-in-Fact
The Counties also contend that Alliance has failed to invoke this Court’s Article III jurisdiction because the organization was not harmed by the FWS’s determination that the bear was not warranted for listing as an endangered species. Principally, the Counties assert that the change in the species’ designation from “warranted but precluded” to “not warranted” merely altered the administrative status of the species and did not reduce or change the protections the population receives under the ESA. Thus, any injury suffered by Alliance, the Countries argue, is speculative and hypothetical, and fails to articulate an actual and concrete injury.
Alliance, as an environmental organization litigating on behalf of its members, has Article III standing to sue if its members have suffered an injury-in-fact as a result of the FWS’s not warranted for listing determination. See Hunt v. Washington State Apple Advertising Com’n,
Here, Alliance has submitted an affidavit from Michael Garrity, Executive Director of Alliance, which states that he and Alliance’s other members either live in the Cabinet-Yaak: ecosystem, or visit it frequently, to pursue their shared interest “in looking for, viewing, and studying a healthy viable population of Cabinet-Yaak grizzly bears in both the Cabinet Mountains portion of the range, as well as the Yaak River portion of the range.” (Doc. 21-9 at 3.) The affidavit' further affirms that the FWS’s determination to not list the Cabinet-Yaak grizzly harms its members’ interests in the survival and recovery of Cabinet-Yaak grizzly because the bear would not be eligible for increased protections available for endangered species, instead of the limited protections afforded’to threatened species.
Despite this affidavit, . the Counties maintain that Alliance and its members have not suffered an cognizable injury as a result of the FWS’s listing decision because the Cabinet-Yaak grizzly was never actually listed as endangered and, thus,
Contrary to the Counties’ argument, however, the interests of Alliance and its menibers in seeing and studying the bear were harmed because the Cabinet-Yaak grizzly is no longer eligible to receive the protections afforded to species listed as endangered. Stated another way, under a designation of warranted but precluded, the Cabinet-Yaak grizzly was set to be listed as endangered species and receive the protections afforded under this designation — ras soon as the necessary financial resources were available to the FWS. As a result of the not warranted determination, the Cabinet-Yaak grizzly is currently no longer on the list to receive the enhanced protections and benefits provided to an endangered species. To apply a crude analogy, the Counties’ argument is akin to the contention that a person on the organ transplant list has not suffered an injury merely because she was kicked off the list.
Accordingly, the Court disagrees with the Counties’ argument and finds that the Cabinet-Yaak grizzly’s removal from the warranted but precluded list has caused a concrete and particularized injury to the interests'of Alliance and its members. Further, this injury is not speculative because a favorable- outcome in this matter would result in the vacatur of the not warranted determination and the reinstatement of the FWS’s 2013 warranted but precluded finding. Under a warranted • but precluded finding, as discussed, the Cabinet-Yaak grizzly would again be eligible to receive enhanced protections under the ESA once the funding or resources become available. The Court thus concludes that .Alliance has standing in this matter.
II. The FWS’s Not Warranted Determination
The Court will next address the merits of the parties arguments, i.e., whether the FWS violated the ESA when it determined that the Cabinet-Yaak grizzly' bear was not warranted for listing as an endangered species. However, before examining the parties’ cross-motions for summary judgment in detail, the Court must first rule on Alliance’s motion to supplement and/or complete the administrative record.
A. Motion to Supplement the Record
Alliance moves to supplement and complete the administrative record with eight exhibits. These exhibits are: (Exhibit 1) a 2014 Cabinet-Yaak grizzly bear monitoring report; (Exhibit 2) a 2016 scientific article, “Density, Distribution, and Genetic Structure of Grizzly Bears in the Cabinet-Yaak Ecosystem”; (Exhibit 3) a summer 2015 Cabinet-Yaak grizzly bear monitoring report; (Exhibit 4) a 2015 “Accomplishment Report” concerning the Cabinet-Yaak grizzly bear; (Exhibit 5) a 2015 report on Cabinet-Yaak grizzly bear Mor-talities; (Exhibit 6) a paragraph from the 2014 Federal Register with track changes; (Exhibit 7) a May 2015 response from the FWS concerning Alliance’s 60 day notice under the ESA; and (Exhibit 8) a Febru
Generally, “courts reviewing an agency decision are limited to the administrative record.” Lands Council v. Powell,
Alliance asserts that exhibits 1, 2, 3, 4, 5, 7, and 8 are admissible under the first exception described in Lands Council, i.e., “if admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision.”
Alliance also contends that supplementation of exhibits 1 and 2 is permitted under the third exception, “when supplementing the record is necessary to explain technical terms or complex subject matter.” Lands Council,
Next, Alliance requests that exhibits 7 and 8 should be placed into the record under the second exception noted in Lands Council, i.e., “if the agency has relied on documents not in the record.”
Lastly, Alliance argues that the Court should take judicial notice of exhibits 1, 2, 3, 4, 5, 7, and 8 because they are publically available government documents. Under the Federal Rules of Evidence, a court may take judicial notice of a fact if “is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); see also Daniels-Hall v. Natl. Educ. Ass’n,
B. Five Factor Test Under the ESA
Alliance first argues that Defendants violated the ESA by failing to address its “Five Factor test” for listing determinations. As mentioned above, the ESA requires the FWS to “determine whether any species is an endangered species or a threatened species because of any of the following factors: (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.” 16 U.S.C. § 1533(a)(1). Alliance maintains that because the FWS’s December 2014 not warranted determination failed to address these factors, both the public and the Court do not have a meaningful basis to review the agency’s determination. Alli-ancé further argues that the listing determination provides no citation to any scientific evidence supporting the agency’s conclusion. This lack of citation, Alliance asserts, thus violates the ESA’s requirement that all listing decisions be based on “the best scientific and commercial data available.” 16 U.S.C. § 1533(b)(1)(A); see also 50 C.F.R. § 424.11(b) (the FWS shall make all listing determinations “solely on the 'basis of the best available scientific and commercial information regarding a species’ status”). The Court disagrees.
Under the ESA, when the FWS issues a warranted but precluded finding, it “shall promptly publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based.” 16 U.S.C. § 1533(b)(3)(B)(iii). However, as is here, when the FWS issues a “not warranted” decision, it is only required to “promptly publish such finding in the Federal Register.” 16 U.S.C. § 1533(b)(3)(B)(i). Under the plain language of the statute, the FWS complied with the ESA’s publishing requirements for issuing a not warranted determination. Further, as noted by Defendants, the FWS conducted its five factor analysis in the species assessment form and included it in the administrative record. AR000050-73. This analysis satisfies the ESA’s mandate that all listing decisions may undergo judicial review to ensure that the decision is based on “the best scientific and commercial data available.” 16 U.S.C.
C. “On the Brink of Extinction” Interpretation
As discussed, the FWS determined that the Cabinet-Yaak grizzly was not warranted for listing as an endangered, species because it was not “on the brink of extinction.”
There, the FWS interpreted the term “endangered species” to mean the species “must be in imminent danger of extinction” to be listed as endangered. In re Polar Bear I,
Despite the FWS’s assertion in the Polar Bear Memorandum that it was not promulgating a new policy of interpreting “in danger , of extinction” to mean “on the brink of extinction,” Alliance contends that the FWS’s 2014 determination that the Cabinet-Yaak grizzly bear was not warranted for listing turned on this interpretation. Consequently, Alliance maintains that this interpretation now represents a change in FWS policy and the 2014 determination should only be afforded Skid-more
In response, Defendants stress that the FWS’s application of the “on the brink of extinction” standard as discussed in the Polar Bear Memorandum did not represent a new policy or regulation by the FWS. Instead, Defendants argue that application of the standard announced in the Polar Bear Memorandum “is merely a summary of the agency’s long-standing interpretation of the statutory phrase ‘in danger of extinction’ as meaning ‘on the
1. Level of Deference
There are no hard or fast rules for determining the level of deference ¿'court should apply to an agency’s construction of a statute. Rather, the Court’s first step is to determine if Congress has dearly spoken to the issue. N.W. Ecosystem All. v. U.S. Fish and Wildlife Serv.,
“Chevron deference applies ‘when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.’ ” Id. (quoting United States v. Mead Corp.,
However, an agencies’ interpretation of a statute should only be afforded Chevron deference if the administrative action is intended to have the force of law. N.W. Ecosystem All.,
Accordingly, because the FWS only considers this interpretation for guidance and not as a binding formal pronouncement with the force of law, the Court will review this interpretation under Skidmore. See Alaska Oil and Gas Assn. v. Pritzker,
2. Skidmore Deference
Under Skidmore, “[t]he weight of [an agency interpretation] will depend upon the thoroughness evident in its-.consideration, the validity of its.reasoning, its consistency with earlier and later pronouncements, and all of those factors which give it power to persuade, if lacking power to control.” Presidio Historical Ass’n v. Presidio Tr.,
Here, the agency’s interpretation of “in danger of extinction” to mean “on the brink of extinction” is not consistent with the agency’s prior interpretation of “endangered species” under the ESA. Aside from In re Polar Bear II, Defendants fail to cite to any, other case where this interpretation was put forth by the FWS. Indeed, even in that decision, as discussed above, the district court emphasized the limited nature of this interpretation and its narrow applicability. See In re Polar Bear II,
Additionally, the FWS’s December 2014 determination that the Cabinet-Yaak grizzly was not “on the brink of extinction” was announced in a one paragraph decision that contained no reasoning supporting this interpretation of “endangered.” Further, this interpretation was not thorough and failed to reflect any collective deliberation by the agency before it was adopted. Based upon' these factors, the Court finds that the FWS’s “on the brink of extinction” interpretation should be afforded little to no deference. Consequently, the Court will next decide if application of this interpretation violated the APA’s requirement that an agency provide a reasoned explanation for a change in its policy-
3. Change in Policy
The Court first notes that Defendants dispute the fact that its application of the Polar Bear Rule equates to a change in policy. As mentioned above, Defendants suggest that the Polai; Bear Memorandum was merely a document that provided guidance to the FWS and was not meant to be a binding interpretation of the statutory phrase “in danger of extinction.” The evidence before the Court is to the contrary.
As discussed, from January 2014 until June 2014, documents within the administrative record uniformly recognized that the Cabinet-Yaak grizzly was warranted for listing as endangered species; Prior to July 2014, all Montana FWS biologists and employees recognized that, though there was a slight improvement in the bear’s recovery which would warrant a slight revision of the bear’s LPN from 3 to 6, the bear still qualified for uplisting as an endangered species. (Doc. 21 at 29-33 (summarizing the administrative record).) These opinions were also reflected in the draft species assessments which concluded that the bear’s LPN should changed from 3 to 6.
However, in July 2014, following a FWS administrator’s directive to apply the Polar Bear Memorandum’s interpretation of “in danger of extinction” to the Cabinet-Yaak population’s listing designation, the recommendations of FWS staff abruptly changed. Indeed, the.record reflects that following a conversation between a FWS biologist and a FWS administrator, the agency began to implement the interpretation of “in danger of extinction” as announced in the Polar Bear Memorandum. See AR-35:000592-000594 (describing how the Polar Bear Memorandum announced a new agency “policy” in regards to the statutory phrase “in danger of extinction” and how the FWS was now interpreting that phrase to mean “currently on the brink of extinction in the wild”). Even if the Court disregarded the fact that an FWS employee referred to this interpretation as a “new policy,” the agency’s actions reflect that it indeed was implementing a new policy. The Court thus rejects Defendants’ argument that implementation of the Polar Bear Rule was not a change in agency policy. <
As discussed above, the APA directs a court to “hold unlawful and set aside agency action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “‘Unexplained inconsistency’ between agency actions is ‘a reason for holding an interpretation to be an arbitrary and capricious change.’” Organized Village of Kake v. U.S. Dept. of Agric.,
Here, the December 2014 Cabinet-Yaak grizzly listing determination failed to recognize that it was applying the new policy announced in the Polar Bear Memorandum. Even if one were to argue that the agency displayed awareness that it was changing its policy through the emails between the FWS biologist- and FWS administrator, the agency.failed to publieally announce this change. Further, there is no evidence in the administrative record or in the December 2014 listing determination to suggest that the agency found that the change in policy was permissible under the ESA, believed that the new policy was better than the agency’s prior interpretations, or otherwise provided a good reason for the change. Accordingly, due to the failure of the FWS to provide a reasonable explanation for why it modified its interpretation of “in danger of extinction” to mean “on the brink of extinction,” the Court finds that the December 2014 not warranted determination was. an arbitrary and capricious decision in violation of the APA.
4. Remedy
When an agency action is not promulgated in .compliance with the APA, the action is deemed to be invalid. Organized Village of Kake,
Here, because the Court’s finds that the FWS’s December 2014 not warranted determination was arbitrary and capricious because it failed to explain a change in agency policy as it relates to the ESA’s definition of “endangered,” the Court will vacate this determination and reinstate the FWS’s November 2013 warranted but precluded finding. See 78 Fed. Reg. 70104, 70151 (November 22, 2013). Additionally, if the FWS intends to apply the Polar Bear Rule in future listing decisions, i.e., the “on the brink of extinction” interpretation of “in danger of extinction,” the Court remands with instructions to: (1) display an awareness that it is now applying this interpretation as applied to the ESA; (2) show that this new interpretation is permissible under the ESA, (3) explain why this iiew interpretation is bet
Accordingly, IT IS ORDERED that
(1) Plaintiffs Motion to Supplement the Record (Doc. 16) is GRANTED IN PART and DENIED IN PART in accordance with the above Order;
(2) Plaintiffs Motion for Summary Judgment (Doc. 19) is GRANTED;
(3) Federal Defendant’s Cross-Motipn for Summary Judgment (Doc. 28) is DENIED;
(4) Defendant-Intervenors’ Cross-Motion for Summary Judgment (Doc. 33) is DENIED;
(5) The United States Fish & Wildlife Service’s December 5, 2014 determination that the Cabinet-Yaak grizzly bear is not warranted for listing as an endangered species under the Endangered Species Act, 79 Fed. Reg. 72450, 72488 (December 5,2014), is hereby VACATED; and
(5) This matter is REMANDED to the United States Fish & Wildlife Service for further consideration consistent with this order.
DATED this 22nd day of August, 2017.
Notes
. Defendants Secretary Ryan Zinke and Director Daniel Ashe are being prosecuted in their official capacities as Secretary of the Department of Interior and Director of the U.S. Fish & Wildlife Service, respectively.
. This background section is derived from Alliance’s Amended Complaint, the parties' Statements of Disputed Facts, and the briefs in support of their respective motions.
. These states are Montana, Idaho, Wyoming, and Washington.
. Specifically, this listing determination recognizes that “[t]he petitioned action is warranted, but that — (I) the immediate proposal and timely promulgation of a final regulation implementing the petitioned action ... is precluded by pending proposals to determine whether any species is an endangered species or a threatened species, and (II) expeditious progress is being made to add qualified species to either [the threatened species list or endangered species list] and to remove from such lists species for which the protections of this chapter are no longer necessary.” 16 U.S.C. § 1533(b)(3)(B)(iii).
. FWS’s discussion of the "Polar Bear Rule” is an apparent reference to "Polar Bear Memorandum,”a document discussed infra.
. Defendants state that the decision to remove the warranted-but-precluded designation was agreed upon by agency staff in July of 2014, approved at the regional level in August of 2014, and approved in Washington, D.C. in November of 2014.
. The Cabinet-Yaak ecosystem encompasses 1,200,000 acres in Lincoln County, 260,000 acres in Boundary County, and 250,000 acres in Bonner County.
. This provision also allows any person to file a civil suit "against the Secretary [of the
. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
. Skidmore v. Swift & Co.,
. The FWS concedes that its "on the brink of extinction” interpretation did not undergo a formal notice-and-comment period. (Doc. 26 at 20.)
. The Court notes that Defendants do not represent that this interpretation is legally binding. (Doc. 40 at 14 (describing the Polar Bear Memorandum “as a resource containing helpful analysis and examples (as opposed to a legally binding codification of an agency interpretation”).)
. Because the Court will grant Alliance’s motion and remand for further proceedings on this issue, it declines to address Alliance’s remaining arguments.