MEMORANDUM DECISION AND ORDER
Bеfore the Court in the above entitled matter are Plaintiffs Motion for Summary Judgment and Defendants’ Cross-motions for Summary Judgment. The parties have submitted their briefing on the motions and the matters are now ripe for the Court’s review.
Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and be= cause the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the motions shall be decided on the record before this Court without oral argument.
Introduction
Plaintiff Western Watersheds Project (“Plaintiff’) filed the instant action challenging the September 30, 2010 Listing Decision (“Listing Decision”) issued, by Defendants United States Fish and Wildlife Service and United States Fish and Wildlife Service Director Daniel Ashe (collectively referred to as “the Service”). (Dkt. 1.) The Listing Decision determined protection of the pygmy rabbit (Brachylagus idahoensis) as an endangered or threatened species was not warranted under the Endangered Species Act (“ESA”). 16 U.S.C. §§ 1531 et seq. Plaintiff seeks judicial review of the “not warranted” finding, and asks the Court to reverse and remand the Listing Decision to the Service for a new listing determination consistent with the requirements of the ESA. (Dkt. 31, p.
I. BACKGROUND
1. Legal Background
The ESA was enacted in 1973 “to provide a means whereby the ecosystems upon which endangered species and threatenеd species depend may be conserved, [and] to provide a program for the conservation of such endangered and threatened species.” ESA § 2(b), 16 U.S.C. § 1531(b). 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.” 16 U.S.C. § 1532(20). If a species is listed as endangered or threatened, various statutory prohibitions help to protect and allow for the survival and recovery of the species.
Whether a particular species should be listed as either “endangered” or “threatened” is determined by the process set forth in Section 4 of the ESA.
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreation, scientific, or education 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)(A)-(E).
Although the Service considered all five of the above factors in the Listing Decision, Plaintiffs Complaint challenges only certain aspects of the Service’s assessment of Factor A-“the present or threatened destruction, modification, or curtailment of [the species’] habitat or range.” (Dkt. 1, pp. 12-15, ¶¶ 44-55.) The parties’ dispute on review accordingly centers on the Service’s assessment of Factor A.
If the Service finds that listing is warranted, it must publish a proposed listing regulation in the Federal Register. Id. at § 1533(b)(3)(B)(ii). The Service must either publish in the Federal Register a final regulation listing the species, or withdraw the proposed listing, within one year of publishing a warranted finding. Id. at § 1533(b)(6)(A). Designation of critical habitat for the listed species must accompany or soon follow a final listing regulation. Id. at § 1533(b)(6)(C). The ultimate goal of the ESA is to recover listed species to the point where they no longer need ESA protection. Id. at § 1531(b)-(c); § 1532(3).
2. The Pygmy Rabbit
The following facts are taken from the Listing Decision and do not appear to be disputed by the parties. The pygmy rabbit is the smallest member of the family Leporidae (rabbits and hares) in North America. (Administrative Record (“AR”) p. 2.) The weight of an adult pygmy rabbit ranges from 0.54 to 1.2 pounds, and the length ranges from 9.1 to 12.1 inches. (Id.) The species can be distinguished from other rabbits by its small size, gray color, short rounded ears, small hind legs, and by the absence of white on its tail. (Id.)
Pygmy rabbits are typically found in areas of tall, dense sagebrush cover and are considered a sagebrush obligate species because they are highly dependent on sagebrush to provide both food and shelter throughout the year. (Id.) The winter diet of a pygmy rabbit is composed of up to 99 percent sagebrush, which is unique among leporids. (Id.) In Idaho, the pygmy rabbit’s spring and summer diet was found to consist of approximately 51 percent sagebrush, 39 percent grasses, and 10 percent forbs. (Id.)
The pygmy rabbit is one of two rabbits in North America that digs its own burrows. (Id.) These burrows are typically found in relatively deep, loose soils of wind-borne or water-borne origin. (Id.) Pygmy rabbits, especially juveniles, likely use burrows for protection from predators and inclement weather. (Id.) Pygmy rabbits are relatively slow and vulnerable in more open areas, and evade predators by maneuvering through the dense shrub cover of their preferred habitat or by escaping to their burrows. (Id.) Due to their specialized habitat requirements, pygmy rabbits are not evenly distributed across their range. (Id. at 4.) They are found in areas within their broader distribution where sagebrush cover is sufficiently tall and dense, and where soils are sufficiently deep and loose to allow burrowing. (Id.)
After initial declines, pygmy rabbits may not have the same capacity for rapid increases in numbers that characterize other species. (Id.) This may be due to then-close association with specific components of sagebrush ecosystems, and the relatively limited availability of their preferred habitats. (Id.) No study has documented rapid increases in pygmy rabbit numbers in response to environmental conditions. (Id.) Nor are long term population moni
The general historical and current geographic range of the pygmy rabbit includes portions of eight states, including Idaho, Nevada, Utah, Wyoming, Oregon, and sections of Washington (the Columbia Basin area), Northeastern California, and Southwestern Montana. (Id. at 4-5.) To determine the historical and current distribution of pygmy rabbits in these areas (excluding the Columbia Basin area in Washington, where the pygmy rabbit is already listed as endangered), the Service reviewed published scientific peer-reviewed literature; unpublished agency documents; dissertations; theses; databases maintained by State heritage programs, State wildlife agencies, and Federal agencies; survey data sheets; museum records; electronic mail records; and agency notes to the files. (Id.)
The Service also undertook a large-scale, range-wide analysis of Service databases documenting surveying records of pygmy rabbits across its traditional habitat. (Id. at 8.) The Service ultimately concluded pygmy rabbit activity continues to occur in Oregon, Idaho, Montana, Wyoming, Nevada, and Utah, in a similar distributional pattern as compared with historical information. (Id. at 8-15.) Although it found the pygmy rabbit may have suffered range contraction in portions of its historicаl range in Northeastern California, the Service ultimately determined pygmy rabbits continue to occur throughout their historical range, as well as in newly discovered sites in all seven states where pygmy rabbit activity has been detected. (Id. at 4, 16, 32, 43-44.)
3. Procedural Background
This case represents the fourth round of litigation before this Court regarding the Service’s consideration of whether the pygmy rabbit should be listed as an endangered or threatened species under the ESA. In November 2001, the Service issued an emergency rule protecting the pygmy rabbit as an endangered species in the Columbia Basin Distinct Population Segment (“DPS”), located in the Columbia Valley region of Washington.
In March, 2003, the Service issue a new, final rule protecting only the Columbia Basin DPS pygmy rabbits as endangered. (Id., ¶ 34.) On April 21, 2003, Plaintiff submitted a “Listing Petition” to the Service, requesting that the Service list the pygmy rabbit as endangered or threatened in all remaining populations outside of the Columbia Basin DPS. (Id., p. 10, ¶ 36.) The Service initially failed to respond to Plaintiffs Listing Petition within the time-lines required under the ESA. (Id., ¶ 38.) Plaintiff accordingly sued the Service on August 31, 2004 to enforce compliance with the ESA. See Western Watersheds Project et al. v. U.S. Fish and Wildlife Service, No. 04-cv-440-BLW (D.Idaho). (Id.) The
The Service’s requisite 90-day Finding, published on May 20, 2005, concluded that Plаintiffs Listing Petition failed to provide substantial scientific or commercial information to demonstrate that listing the pygmy rabbit under the ESA may be warranted. (Id., ¶ 40.) Plaintiff again sued the Service, seeking judicial review of the Service’s determination. See Western Watersheds Project v. Norton, No. 06-cv-0127-EJL (D.Idaho). This Court held that the Service’s 90-day Finding improperly imposed a higher standard for scientific and commercial information than that required under the ESA when it denied Plaintiffs Listing Petition.
In January 2007, the Service issued a new 90-day Finding concluding that protection of the pygmy rabbit under the ESA may be warranted. 73 Fed.Reg. 1312 (January 8, 2007). Rather than issuing a 12-month Finding within one year as required under the ESA, the Service had failed to issue any finding by February of 2010. Plaintiff again sued the Service for violating the ESA. See Western Watersheds Project v. U.S. Fish and Wildlife Service, No. 10-cv-000544-REB (D.Idaho). The parties reached a settlement requiring the Service to issue a mandatory 12-month Finding no later than September 24, 2010. (Dkt. 1, p. 11, ¶ 43.)
On September 30, 2010, the Service published the Listing Decision at issue in this ease. 75 Fed.Reg. 60516-561. In the Listing Decision, the Service concluded that listing the pygmy rabbit as an endangered or threatened species under the ESA was not warranted. Plaintiff filed the instant action to seek judicial review of the Service’s “not warranted” finding.
II. STANDARD OF REVIEW
Summary judgment may be granted “if the movant shows 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). However, in a case involving review of a final agency action under the Administrative Procedures Act (“APA”), the court’s role is limitеd to reviewing the administrative record, and the standard set forth in Rule 56 does not apply. Colorado River Cutthroat Trout v. Salazar,
The party challenging an agency’s action as arbitrary and capricious bears the burden of proof. WildEarth Guardians v. Salazar,
To decide if an agency action is arbitrary and capricious, the court must determine whether the agency “considered the relevant factors and articulated a rational connection between the facts found and the choices made.” Selkirk Conservation Alliance v. Forsgren,
Review of agency actions is “highly deferential,” “presume[es] the agency action to be valid,” and requires that the Court affirm the agency action “if a reasonable basis exists for its decision.” Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Sen.,
III. ANALYSIS
Plaintiff claims the Listing Decision is arbitrary and capricious for four reasons. First, Plaintiff argues that, under the ESA, a species must be designated as “threatened” if it “is likely to become an endangered species within the foreseeable future,” and that the Service failed to define the “foreseeable future” with respect to the pygmy rabbit. Second, the Service is required to list a species as endangered or threatened if it warrants protection “throughout all or a significant portion of its range.” 16 U.S.C. §§ 1532(6), (20). Plaintiff argues the Service adopted an entirely new test for determining whether the pygmy rabbit was threatened or endangered across a “significant portion of its range” than that used by the Service traditionally, and that the Service, in violation of the APA, failed to articulate any explanation for deviating from its prior methodology. Third, Plaintiff argues that the Service failed to consider whether areas the pygmy rabbit no longer occupies within its historic range constitute a significant portion of its range. Finally, Plaintiff claims the Service violated the ESA by failing to assess or consider the combined or cumulative effect of the recоgnized threats to pygmy rabbits, and instead only considered such threats in isolation. Plaintiff requests that the Court reverse and remand the Listing Decision to the Service, and that the Court require the Service to issue a new Listing Decision within a maximum of twelve months.
The Service and the State argue that the Service considered the relevant factors and applied the appropriate tests when rendering the Listing Decision. With respect to the aforementioned four areas to which Plaintiff assigns error, Defendants argue; (1) the best available science did not allow the Service to reliably predict the foreseeable future and, therefore, the Service
Having carefully considered each of Plaintiffs arguments, the Court is not persuaded that the Service’s decision not to list the pygmy rabbit as endangered or threatened under the ESA was arbitrary and capricious. As the Supreme Court has stated, “[t]he task of defining and listing endangered and threatened species requires an expertise and attention to detail that exceeds the normal province of Congress,” as well as that of the courts. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,
1. Jurisdiction
As a preliminary matter, the Service contends that this Court only has jurisdiction over Plaintiffs arguments with respect to the Service’s significant portion of the range analysis, and not over Plaintiffs challenge to the Service’s failure to define foreseeable future or to consider cumulative threats to the pygmy rabbit. (Dkt. 39, pp. 1-2, n. 1.) The Service claims the Court lacks jurisdiction to review the latter two challenges because Plaintiffs Notice of Intent to Sue (“NOI”) did not assert that the Service violated the ESA by failing to define the foreseeable future or by failing to conduct a cumulative threats analysis. (Id.) Because Plaintiffs NOI (Dkt. 39-1) allegedly claims only that the Service failed to consider the best available science and used the wrong test for analyzing the significant portion of the range, the Service argues this Court’s analysis should accordingly be limited to Plaintiffs significant portion of range argument.
Pursuant to 16 U.S.C. § 1540(g) of the ESA, a citizen must give written notice of an alleged violation to the Secretary and to the alleged violator sixty days prior to bringing suit. The sixty-day notice requirement is jurisdictional. Save the Yaak Comm. v. Block,
In this case, however, Plaintiffs claims each relate to the overall Listing Decision, and, as such, are challenges to the Service’s exercise of discretion. Claims relating to the Service’s discretionary duties are subject to judicial review under the APA—not the ESA. Federation of Fly Fishers v. Daley,
To the extent Plaintiffs foreseeable future and cumulative threats arguments relate to the Service’s discretionary duty to consider such factors, such claims are brought under the APA and do not require advance notice. As a result, Plaintiffs alleged failure to identify such challenges in its NOI does not deprive the Court of jurisdiction over such claims. Western Watersheds Project v. Fish and Wildlife Service,
Further, even if the Service’s consideration of foreseeable future and cumulative threats was considered non-discretionary under the ESA, the Court finds Plaintiffs NOI adequately identifies such claims. Although Plaintiffs NOI does not specifically reference the Service’s failure to define foreseeable future or to consider cumulative threats, an NOI is sufficient where the notice letter identifies the agency action at issue, the species at issue, the provisions of the ESA at issue, and the location of the asserted violation. Southwest Ctr. for Biological Diversity,
Plaintiffs NOI identifies the Service’s September 30, 2010 Listing Decision as the agency action at issue and cites to the publication of the Listing Decision in the Federal Register, 75 Fed.Reg. 60516. (Dkt. 39-1, p. 1.) Plaintiffs NOI also specifically identifies the pygmy rabbit as the species at issue, as well as 16 U.S.C. § 1532(6) and (20) (definition of endangered and threatened species), 16 U.S.C. § 1533(a)(1) (criteria for making listing decisions), and 16 U.S.C. § 1533(b)(1)(A) (best available science requirement), as the provisions of the ESA at issue. By referencing the Listing Decision, Plaintiffs NOI also includes the location of the asserted violation by implication, аs the September 30, 2010 Listing Decision is specifically limited to the seven-state pygmy rabbit range (excluding the Columbia Basin DPS) of California, Idaho, Montana, Nevada, Oregon, Utah and Wyoming.
Moreover, in addition to identifying the required elements of the agency action, species, and provisions of the ESA at issue, as well as the location of the violation, Plaintiffs NOI also references its foreseeable future argument by specifically challenging the Service’s conclusion that the “pygmy rabbit does not meet the definition of ... threatened under Section 4 of the Endangered Species Act.” (Dkt. 39-1, p. 1.)
2. Foreseeable Future
Plaintiffs first challenge to the Listing Decision involves the Service’s determinаtion that the pygmy rabbit is not threatened. As noted, the ESA defines “threatened” as “likely to become an endangered species within the foreseeable future throughout all or a significant portion its range.” 16 U.S.C. § 1532(20) (emphasis added). Because the Service did not define the “foreseeable future” with respect to the pygmy rabbit, Plaintiff eon-tends the Service’s conclusion that the pygmy rabbit is “not likely to become endangered within the foreseeable future” is arbitrary and capricious.
Judicial review of an agency’s interpretation of a statute is governed by the two-part formula announced by the Supreme Court in Chevron USA, Inc. v. Natural Resources Defense Council, Inc.,
Neither the ESA nor the applicable regulations define the term “foreseeable future.” As such, the statute is ambiguous and the court must defer to the Service’s interpretation unless that interpretation is unreasonable. Id. The Chevron test established a “presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.”
Here, Defendants do not dispute that the Service failed to define “foreseeable future” within the pygmy rabbit Listing Decision. See, e.g., Service’s Response to Plaintiff’s Cross-Motion for Summary Judgment (Dkt. 39, p. 21) (stating, “FWS did not ‘define’ the foreseeable future in the Finding”); State’s Response to Plaintiff’s Cross-Motion for Summary Judgment (Dkt. 41, pp. 15-16) (noting “[i]n the end, the Service did not provide a definition of the term ‘foreseeable future’ in its published finding.”). Both the Service and the State instead argue the Service could not define “foreseeable future” because the Service lacked sufficient data (such as population data or data establishing a link between population trends and potential threats) to develop reliable predictions about the future. (Dkt. 39, pp. 16-23; Dkt. 41, pp. 13-17.) Thus, Defendants contend the Service could not define “foreseeable future” because any definition would be based on an arbitrary “timeframe that lacked a scientific basis.” (Dkt. 39, p. 16; Dkt. 41, p. 16.) Plaintiff counters that there is no authority that permits the Service to sidestep its obligation to define “foreseeable future in a listing decision merely because there is uncertainty about a species’ population trends.” (Dkt. 46, p. 6.) Plaintiff argues the Service’s failure to define foreseeable future constitutes reversible error. (Id.) (citing W. Watersheds Project v. Foss,
In support of their arguments with respect to “foreseeable future,” Plaintiff and the Defendants rely upon an opinion drafted by the Solicitor for the Department of the Interior regarding the appropriate interpretation of the term. See Solicitor’s Memorandum on the Meaning of Foreseeable Future’ in Section 3(20) of the ESA, M-37021 (Jan. 16, 2009) (“M-Opinion”). In that opinion, the Sоlicitor explained the inherent difficulties in reliably predicting “foreseeable future” for each species and stressed that “the foreseeable future extends only so far as the Secretary can explain reliance on the data to formulate a reliable prediction. What must be avoided is reliance on assumption, speculation, or preconception.” Id., at 8. Defendants’ suggest the M-Opinion supports their position because the Service avoided speculating or arbitrarily defining “foreseeable future” where it lacked the population and threat trend data required to reliably predict the “foreseeable future” for the pygmy rabbit. Plaintiff counters that the M-Opinion approved alternate, qualitative techniques to interpret “foreseeable future” where the available data does not allow for precise quantification, and that the Service arbitrarily and capriciously failed to use such qualitative methods to define “foreseeable future.”
The M-Opinion supports the Service’s approach to “foreseeable future.” For instance, the Service initially utilized a method for determining the status of a species published by the International Union for Conservation of Nature (“IUCN”) in its Red List of Threatened Species. (AR 4678.) The IUCN uses the time frame of three generations of the species, or ten years (whichever is greater) to determine whether a species is likely to become endangered in the future. (Id.) The Service initially evaluated the “foreseeable future” for the pygmy rabbit as ten years, because ten years is slightly longer than three pygmy rabbit generations. (Id.) However, the M-Opinion, issued five months beforе the Service conducted its analysis, coun
The Service thus concluded the ten year time frame represented solely a “default” period lacking scientific basis and changed its analysis to consider historical data on the pygmy rabbit in attempt to identify relevant trends that would generate reliable future predictions. (AR 2957-8.) However, the Service determined that it lacked scientific data “to predict the direction of trends into the future.” (AR 2958.) The Service also attempted to consider “the ongoing effects of current risk factors and threats at comparable levels to current threats.” (Id.) Because it lacked “sufficient scientific data to identify a clear timeframe for specific threats,” the Service ultimately found it could not make reliable predictions regarding “foreseeable future.” (Id.; see also AR 76334) (“Our ability to assess current threats is limited, and we have no empirical basis with which to predict the direction of trends into the future.”).
Although Plaintiff suggests the M-Opinion outlined alternative, qualitative methods the Service could have used for estimating “foreseeable future,” such methods require an “extrapolation of population or threat trends, analysis of how threats will affect the status of the species, or assessment of. future events that will have a significant new impact on the species.” M-Opinion, at 1. However, as the record illustrates, the Service did not have data to allow it to identify “threat trends” or to extrapolate such trends into the future. (AR 2957-58.) The Service could not use the alternative methods suggested by the Solicitor where it lacked the scientific information required to employ such methods.
Under the ESA, the Service is required to base its listing decision “solely on the basis of the best scientific and commercial data available.”16 U.S.C. § 1533(b)(1)(A). The best available data requirement of 16 U.S.C. § 1533(b)(1)(A) requires “not only that data be attainable, but that researchers have in fact conducted the tests.” American Wildlands v. Kempthome,
In Southwest Cntr. for Biological Diversity v. Babbitt,
In this case, both the record and the Listing Decision demonstrate that the Service could not define “foreseeable future” in light of the best available data. The Service’s assessment of the “foreseeable future” is “typically based on the time-frames over which the best available scientific data allow [the Service] to reliably assess threats and the species’ response to those threats, and is supported by species-specific factors, including the species’ life history characteristics and population dynamics.” (AR 2956; AR 4678). An important aspect in assessing “foreseeable future” is the consideration of trends, which are “normally assessed in terms of distribution, abundance, or habitat.” (AR 2957.).
The Listing Decision makes clear that рopulation trend data typically used to assess foreseeable future was simply not available for the pygmy rabbit. For instance, the Listing Decision notes that “[population cycles are not known in pygmy rabbits,” and that “[l]ong-term population monitoring studies are not available indicating whether population fluctuations or cycles occur for pygmy rabbits or if seasonal or other habitat shifts or movements have been misinterpreted as declines.” (AR 4). The Listing Decision also explains:
Survey efforts have focused on location of pygmy rabbit signs rather than on documenting known or perceived threats to the species at these sites. Rarely has revisiting of sites occurred with the purpose of monitoring populations over time. While we consider this information of limited use to our finding due to its local, short-term nature, it is the best scientific information to conduct our analysis.
(Id. at 5).
The Listing Decision also states that the Service “was unaware of any historical or current population estimates being made for the pygmy rabbit by individual States or for the range considered in this finding.” (Id. at 15.) And, although it considered reports collected by individuals on pygmy rabbit abundance throughout the rabbit’s range, the Listing Decision emphasizes:
... next to actual sightings of pygmy rabbits, burrow systems and pellets are the most reliable evidence of pygmy rabbit presence in an area; together they may provide an indirect index of population trend but depend on the objectives of the investigator as multiple factors can affect changes in pellets and burrows over time. Therefore, reliably estimating the abundance of pygmy rabbits on a statewide or range wide basis is not currently possible.
Id.
The Listing Decision further explains:
Population trends are normally defined in terms of distribution or abundance. In the case of the pygmy rabbit, the available scientific information does not allow for an analysis of abundance over time. Abundance trends for the pygmyrabbit in each State and throughout its range are unknown and how impacts to the sagebrush habitat from various events or actions have affected the pygmy rabbit remain unclear.
Id.
The Listing Decision thus illustrates the shortcomings of available population data. Although the Listing Decision does not specifically state that the Service could not adequately define “foreseeable future” in light of such shortcomings, the Court finds this conclusion is apparent from the record. Specifically, the record demonstrates that the Service had incomplete data for the pygmy rabbit with respect to distribution, abundance, and habitat, to adequately define “foreseeable future.” (See, e.g., AR 2957, “[a]bundance trends for the pygmy rabbit by State and throughout its range considered in this finding are unknown.”; AR 11624, Idaho researcher noting that “[insufficient species distribution, population abundance, and population trend data are available to assess [the rabbit’s] true conservation status at range and region-wide scales”; AR 40185, researcher commenting on the scarcity of baseline distribution data for the rabbit). Most significantly, the Service notes in several draft pygmy rabbit findings, a “more complete and accurate understanding of the species’ distribution, abundance, population trends and cycles, if any, and habitat preferences and responses to changing environmental conditions is needed to conduct population trend analysis and to reasonably predict foreseeable future.” (AR 2957; AR 3086.) Although its conclusion regarding “foreseeable future” could have been more clear, the court must “uphold a decision of less than ideal clarity” where, as here, “the agency’s path may be reasonably discerned.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
Plaintiff also relies on two cases to support its position that failing to define “foreseeable future” constitutes reversible error. (Dkt. 31, pp. 7-8.) In Otter v. Salazar,
In Foss, Western Watersheds sought judicial review of the Service’s decision to withdraw its proposed rule to list the slick-spot peppergrass as endangered or threatened. Western Watersheds challenged the Service’s withdrawal as arbitrary and capricious in several respects, including the Service’s failure to define “foreseeable future.” Id. at *14. In the listing decision at issue in Foss, the Service had determined that the slickspot peppergrass had an 82 percent chance of extinction within 100 years or less, but had only a 64 percent chance of extinction within 100 years or less with full implementation of an intended conservation agreement. Id. Based on this information, the Service concluded that “conservation efforts ‘would reduce the expected decline in [slickspot peppergrass] over the next few decades to the extent that the species is not likely to become endangered in the foreseeable future.’ ” Id. The Court found the Service’s consideration of “foreseeable future” untenable, explaining:
Federal Defendants suggest that a prudent person would not reasonably expect that extinction of the slickspot pepper-grass would be complete within 100 years when the evidence suggests that a64 percent chance exists that it will occur even assuming the full and effective implementation of the [conservation agreement]. This conclusion defies ■common sense and the [Service’s] own experts’ conclusions and recommendations. Simply because some conservation efforts prolong the inevitable by a mere twenty years does not reasonably push the ‘projected time when the species has a high risk of extinction to beyond the foreseeable future’ as the [Service] suggests.
Id. at *15.
The Foss Court thus reversed the listing decision not because the Service failed to define “foreseeable future,” but because the Service’s definition of “foreseeable future,” given the best scientific information from the Service’s own experts, suggested that the slickspot peppergrass was likely to become endangered "within the next 100 years. Id. Moreover, the Foss Court noted that the Service had specifically instructed the risk analysis science panel the Service consulted regarding probability of extinction, “not to reach a conclusion as to whether they believed slickspot pepper-grass would likely become extinct within the foresеeable future.” Id. at *16 (emphasis in original). Further, although the Service claimed its risk management science panel had applied “general and qualitative terms” to conclude that conservation efforts postponed extinction beyond the foreseeable future, the Service could not identify what sort of “general and qualitative terms” upon which the risk management panel had relied. Id. at *17. The Court thus lacked any means to review the Service’s unsupported conclusions regarding the “foreseeable future.” Id. The Foss Court concluded:
A mere statement that the conservation agreement ‘will postpone the projected time when the species has a high risk of extinction to beyond the foreseeable future,’ without first delineating how the [Service] managers defined foreseeable future, does not suffice-especially when the conclusion contradicts the recommendation of its own expert ...[.]
Id.
This case is distinguishable from Foss because here the Service lacked expert opinions, or other reliable scientific information, to reasonably define “foreseeable future.” In addition, unlike in the listing decision at issue in Foss, here the record delineates the information and evidence the Service would need, but did not have, in order to define foreseeable future. And, rather than ignoring the “best available science” in favor of a vague and nonscientific definition, as the court found it had in Foss, here the Service has instead made every attempt to scientifically interpret the “foreseeable future.” Given the facts of this case, the Service’s conclusion that the best available science did not allow it to reliably predict the foreseeable future for the pygmy rabbit was within its discretion.
Plaintiff also relies upon the Court’s recent decision in Otter,
In finding the Service was required to define “foreseeable future,” however, the Otter Court stressed that the Service was “not without guidance” on the issue. Id. at *19. For instance, the Service’s experts had recommended that the “foreseeable future” timeframe for the slickspot pep-pergrass should be 60 to 100 years. Id. (citing Foss, at *6). Similarly, in a subsequent case involving the slickspot pepper-grass, the Service’s panel defined the foreseeable future as “not greater than 40 years based on the species’ biology, habitat threats, and other factors.” Id. As the Otter Court noted, the Service had “been provided multiple definitions of ‘foreseeable future’ by multiple scientists and groups of scientists throughout the listing process involving the slickspot pepper-grass.” Id. In light of the еxtensive scientific information available in Otter, the Service’s vague and arbitrary definition of “foreseeable future” constituted reversible error.
Rather than relying on a vague and generic definition of “foreseeable future” in this case, the Service instead attempted to delineate a species-specific and scientific definition of the foreseeable future for the pygmy rabbit. Unlike in Otter, here the record illustrates that the Service considered potential species-specific definitions of foreseeable future, such as ten years (roughly three pygmy rabbit generations), but determined that such definitions represented only a default time period, not grounded in science. (AR 2957-8.)
Further, unlike in Otter, the Service did not here ignore a bevy of scientific evidence in favor of a vague definition of “foreseeable future,” but instead concluded an appropriate species-specific definition of “foreseeable future” was not possible given the available evidence. Because Congress has mandated that the Service must base its listing decision “solely on the basis of the best scientific and commercial data available,” this Court finds the Service’s reasoned conclusion with respect to “foreseeable future” cannot be considered reversible error. 16 U.S.C. § 1533(b)(1)(A); see also Trout Unlimited v. Lohn,
Finally, Plaintiff argues the Service has acknowledged “substantial geogrаphic overlap” between the habitat for the pygmy rabbit and that for the Greater sage grouse, that many of the same threats thus impact the continued existence of both species, and that the Service could have extrapolated threat trends for the pygmy rabbit as it had no difficulty extrapolating threat trends to define “foreseeable future” in its
As the Service notes, an evaluation of threats depends on habitat preferences and species-specific characteristics. (Dkt. 39, p. 25, n. 8.) Both the sage grouse’s habitat range and its response to threats are different from that of the pygmy rabbit, and thus the Service could not simply define “foreseeable future” for the pygmy rabbit based on its assessment of “foreseeable future” for the sage grouse. (Dkt. 40, p. 4, ¶ 8.)
The Service considered the best scientific evidence available to it and determined that such evidence does not show the pygmy rabbit is likely to become endangered within the foreseeable future. In reaching this conclusion, the Service determined that the pygmy rabbit not only continues to occur generally throughout its historical range, but that it also occurs in previously unknown or undocumentеd areas. (AR 16.) The Service also determined that, despite the various threats to the pygmy rabbit habitat, the rabbit continues to persist. (AR 43-4.) The Service’s reasoned determination the pygmy rabbit is not likely to become endangered in light of such findings is entitled to deference. And, although the best information available did not allow the Service to define “foreseeable future,” the Service was not required to conduct further tests. American Wildlands v. Kempthorne,
3. Significant Portion of Range Analysis
a. The Service’s Interpretation of Significant Portion of Range
Under the ESA, a species must be listed as endangered or threatened if it warrants protection “throughout all or a significant portion of its range[.]” 16 U.S.C. § 1532(6), (20) (emphasis added). “The ESA does not define what constitutes a species’ ‘range,’ nor what is considered ‘significant.’ ” Colorado River Cutthroat Trout v. Salazar,
Plaintiff argues the Service abandoned its “historic, science-basеd test” for interpreting significant portion of range in the Listing Decision, and that the Service instead employed a novel and, ultimately deficient, new test. (Dkt. 31, pp. 1, 8-9.)
In Defenders, the Ninth Circuit determined a species can be threatened or extinct “ ‘throughout ... a significant portion of its range’ if there are major geographical areas in which it is no longer viable but once was.” Defenders,
The Service’s traditional test for determining significant portion of range first considers whether there are any areas within a species’ range where threats are “geographically concentrated,” thus warranting further review to determine whether these areas are significant. (AR 45); see also (Dkt. 46, p. 10, Plaintiffs Combined Reply Brief in Support of its Motion for Summary Judgment, stating “[t]he elements of the Service’s historic approach to determining [significant portion of range] are not in dispute. Under the historic approach, the Service first assesses whether any threats are ‘geographically concentrated’ in some areas, thus warranting further review to determine whether these areas constitute a ‘significant portion of range.’ ”). If threats are uniform throughout the range and are signifiсant enough to warrant listing, then a significant portion of range analysis is not required because the Service would have already determined that the species is endangered or threatened throughout its range.
Plaintiff and Defendants also agree that the Service’s traditional significant portion of range analysis has considered whether a particular area where threats are concentrated “is important to the conservation of the species because it contributes meaningfully to the representation, resiliency, or redundancy of the species.” See, e.g., (Dkt. 31, p. 9; Dkt. 39, pp. 3-4; Dkt. 41, pp. 4-5). These factors represent “three principles of conservation biology that are generally recognized as being necessary to conserve the biodiversity of the area.” See Final Rule to Reclassify and Remove the Gray Wolf from the Endangered and Threatened Wildlife in Portions of the Conterminous United States, 68 Fed.Reg. 15804, 15809 (Apr. 1, 2003); see also (AR 4680.) In general:
Adequate representation ensures conserving the breadth of the genetic makeup of the species needed to conserve its adaptive capabilities.... Resilience refers to the ability of a species to recover from periodic disturbances or environmental variability ... a species is usually most resilient in highest quality habitat. Redundancy of populations is needed to provide a margin of safety for the species to withstand catastrophic events.
Proposed Rule to List the British Columbia Distinct Population Segment of the Queen Charlotte Goshawk Under the Endangered Species Act, 74 Fed.Reg. 56757, 56766 (November 3, 2009).
The Service has relied upon the representation, resilience and redundancy analysis (“3-R Test”) to determine whether an area is a significant portion of a species’ range in listing decisions since 2003. See, e.g., 68 Fed.Reg. 15804, 15809 (Apr. 1, 2003) (Gray Wolf); 73 Fed.Reg. 12929, 12940-41 (March 11, 2008) (N. American wolverine); 74 Fed.Reg. 63343, 63365 (Dec. 3, 2009) (Black-tailed prairie dog); 75 Fed.Reg. 6438, 6468-70 (Feb. 9, 2010) (American pika); 75 Fed.Reg. 54822, 54837 (Sept. 9, 2010) (Jemez Mountains Salamander). However, the 3-R Test is not derived from the ESA, an ESA implementing regulation, or any Service or Department of Interior policy. (Dkt. 39, p. 3; Dkt. 41, pp. 5-6.)
Although Plaintiff notes that the Service utilized the 3-R Test in at least 17 drafts of the pygmy rabbit Listing Decision, Plaintiff claims the Service abruptly abandoned the 3-R Test and applied an entirely new significant portion of range analysis in the Listing Decision itself. (Dkt. 31, p. 10.) Defendants counter that the Service considered the substance of the 3-R Test factors when analyzing whether certain areas constituted a significant portion of the pygmy rabbit’s range, but simply removed the signpost terms “resiliency,” “redundancy,” and “representation” from the Listing Decision. (Dkt. 39, p. 4; Dkt. 41, p. 7.)
The Court finds that although the Listing Decision omitted the terms “resiliency,” “redundancy,” and “representation,” it did not substantively alter the significant portion of range analysis. For instance, the Service determined the Mono County, California population warranted further consideration to determine whether it was a significant portion of the pygmy rabbit range due to the possible lack of connectivity to pygmy rabbit populations in Nevada, which would increase the threat of population isolation. (AR 45.) Thе Service se
To assess whether Mono County and Wyoming were significant portions of the pygmy rabbit’s range, the Service evaluated:
[WJhether these two areas occupy relatively large or particularly high-quality, unique habitat that could be affected, or if their locations or characteristics make them less susceptible to certain threats than other portions of the species’ range such that they could provide important population refugia in the event of extir-pations elsewhere in the species’ range.
(Id.)
The Service determined that “the Mono County populations occupy less than 1 percent of the species range, and the available information does not suggest that the habitat occupied by pygmy rabbits is particularly high quality or unique when compared to the remainder of the range.” (Id.) The Service found that the Wyoming “populations occupy about 11.5 percent of the species range, and available information does not suggest that the habitat occupied by pygmy rabbits is particularly high quality or unique when compared to the remainder of the range.” (Id. at 46.) In addition, the Service did not find that the Mono County or Wyoming populations “are less susсeptible to certain threats than other portions of the range.” (Id. at 45-46.) Finally, the Service also evaluated “the historical value” of the Mono County and Wyoming portions of the pygmy rabbit’s range, the “frequency” of use of these portions by the rabbit, and whether these portions “eontain[ed] important concentrations of certain types of habitat that are necessary for the species to carry out its life-history functions, such as breeding, feeding, migration, dispersal, or wintering.” (AR 46.) The Service determined these necessary habitats were not concentrated in either Mono County or Wyoming. (Id.)
As the Service explained in its listing decision for the Morelet Crocodile:
Resiliency of a species allows the species to recover from periodic disturbance. A species will likely be more resilient if large populations exist in high-quality habitat distributed throughout the range of the species in such a way as to capture the environmental variability found within the range of the species. It is likely that the larger size of a population will help contribute to the viability of the species overall. Thus, a portion of a range of a species may make a meaningful contribution to the resiliency of the species if the area is relatively large and contains particularly high-quality habitat or if its location or characteristics make it less susceptible to certain threats than other portions of the range. When evaluating whether or how a portion of the range contributes to the resiliency of the species, it may help to evaluate the historical value of the pоrtion of the range and how frequently the portion is used by the species. In addition, the range may contribute to the resiliency for other reasons — for instance, it may contain an important concentration of certain types of habitat that are necessary for the species to carry out its life history functions, such as breeding, feeding, migration, dispersal or wintering.
76 Fed.Reg. 23650, 23676 (Apr. 27, 2011).
As demonstrated above, the Service’s significant portion of range analysis considered the substantive resiliency factors
Further, in addition to Mono County and Wyoming, the Service determined the “pygmy rabbit ... occurs in sagebrush habitats located in southeastern Oregon, southern Idaho, southwestern Montana, western Utah, and northern and eastern Nevada.” (AR 46.) The Service also determine the pygmy rabbit is distributed throughout its range in new areas where it was not previously located. (Id., pp. 12, 13). The Service’s significant portion of range analysis thus took into account redundancy, or whether having multiple distributions across the landscape may be needed to provide a margin of safety for the species to withstand catastrophic events. As the Service explained in listing decision for the Morelet’s Crocodile:
Redundancy of populations may be needed to provide a margin of safety for the species to withstand catastrophic events. This does not mean that any portion that provides redundancy is a significant portion of the range of the species. The idea is to conserve enough areas of the range such that random perturbations in the system act on only a few poрulations. Therefore, each area must be examined based on whether that area provides an increment of redundancy that is important to the conservation of the species.
76 Fed.Reg. 23650, 23676 (Apr. 27, 2011):
Because the Service determined the pygmy rabbit has multiple distributions throughout its traditional range, it reasonably concluded the Mono County and Wyoming portions of the pygmy rabbit population did not contribute to the redundancy of the species. (AR 45^46). Finally, the Service did not include a discussion of the representation factor in the Listing Decision because there was no evidence that the Mono County or Wyoming populations differed markedly from other pygmy rabbit populations in genetic characteristics, and there was no genetic information to consider.
Thus, the Listing Decision itself illustrates that the Service considered the substance of the 3-R Test when considering whether Mono County and Wyoming represented a significant portion of the pygmy rabbit’s range. The record is also replete with references to the Service’s consideration of resiliency, redundancy and representation. See, e.g., R76344 (June 15, 2010 Draft Pygmy Rabbit Finding) (noting that the 3R’s are “indicators” of an area’s conservation value); R76347 (discussing Service’s analysis of redundancy factor with respect to pygmy rabbit); R76348 (discussing Service’s analysis of representation factor with respect to pygmy rabbit).
Indeed, Plaintiff admits that the Service utilized the 3-R Test in at least 17 drafts of the Listing Decision. (Dkt. 31, p. 10.) Plaintiffs claim that the Listing Decision is arbitrary and capricious because it abandoned the 3-R Test is meritless when it is apparent from both the Listing Decision and the record that the Service evаluated the 3-R Test factors. The Service’s significant portion of range analysis with respect to the pygmy rabbits is thus not “novel,” and the Service did not reverse its policy. As such, Plaintiffs claim that the Service’s decision was arbitrary and capricious because the Service failed to explain its change in policy also fails. The Service
Because the Service has provided a reasoned explanation for its significant portion of range methodology, the Court will not second-guess its conclusion that Mono County and Wyoming did not represent a significant portion of the pygmy rabbit’s range. Colorado River Cutthroat Trout v. Salazar,
Moreover, even if the Service did not adequately perform the 3-R Test, as Plaintiff suggests, a listing decision cannot be overturned based on the Service’s alleged noncompliance with its own, nonbinding policy statements. Building Indus. Ass’n of Superior Caifornia v. Babbitt,
Because the 3-R Test is not derived from the ESA, an ESA implementing regulation, or any Service or Department of Interior policy, the 3-R Test is not substantive rule which can be enforced against the Service. The “touchstone of enforceability [of an agency rule or statement] is agency intent ... [T]he binding quality of a particular rule or statement will depend on whеther the agency intended to establish a substantive rule, one which is not merely interpretive but which creates or modifies rights that can be enforced against the agency.” Babbitt,
Finally, Plaintiff claims the Services “new” significant portion of range test is inconsistent with the ESA because it renders the significant portion of range concept superfluous. (Dkt. 31, p. 15.) The Court need not address this argument because it has determined that the Service did not apply a new test, and that the Service considered the very elements Plaintiff faults it for omitting.
b. Range contraction
Plaintiff also assigns error to the Service’s significant portion of range analysis because the Service “never considered whether the areas where pygmy rabbits no longer occupy constitute a significant portion of its range.” (Dkt. 31, p. 17.) As the Ninth Circuit held in Defenders, “where ... it is on the record apparent that the
Contrary to Plaintiffs contention, the record does not show that the area where the pygmy rabbit is expected to live is “much smaller than its historical range.” Defenders,
The rationale for deference “is partiсularly strong when the [agency] is evaluating scientific data within its technical expertise.” American Wildlands v. Kemptkome,
Finally, Plaintiff suggests the Service failed to comply with this Court’s Order that it consider whether the habitat loss and reduced geographic range of the pygmy rabbit constitute a significant portion of its range under Defenders. (Dkt. 31, p. 19) (citing W. Watersheds Project v. Norton,
4. Combined Threats
Finally, Plaintiff also argues that, though the Service considered the statutorily mandated threat factors set forth in 16 U.S.C. § 1533(a)(1) on an individual basis, the Service failed to consider the cumulative or combined impact of all of the factors as required under 50 C.F.R. § 424.11(c). The Service is required to list a species if it determines that “any one or a combination of’ the listing factors has caused the species to be endangered or threatened.
Defendants contend that the Service considered the effects of potential threats both individually and collectively. Defendants argue that, аlthough the Listing Decision did not contain a separate section discussing the cumulative effect of the
The Listing Decision illustrates that the Service considered the relationship between various threats to the pygmy rabbit’s habitat and population. For instance, the Service noted that livestock grazing is the most widespread use of land across sagebrush communities, and thus ultimately contributes to habitat fragmentation for the pygmy rabbit. (AR 21). The Service determined that proliferation of noninvasive nonnative plant species increases the risk of lost habitat due to fire and corresponding replacement of native grasses and shrubs. (AR 23-25.) The Service also considered how fire, urban and rural development, and mining, among other threats, each overlap and contribute to the loss of sagebrush habitat appropriate for the pygmy rabbit. (AR 19-31).
The Service also considered that various threats, such as fire, inevitably increase the prevalence of other threats, such as the proliferation of eheatgrass. (AR 25). The Service also considered Factor A threats in combination with other potential threats throughout the Listing Decision. For example, the Listing Decision considered fire in combination with predation (Factor C) and climate change (Factor E). (AR 26, 40-41.) The Listing Decision also considered eheatgrass and other invasive plant species in combination with predation (Factor C); federal laws and regulations (Factor D); and climate change (Factor E). (AR 24, 37, 40-41.) Further, the Listing Decision considered energy development in combination with federal laws and regulations (Factor D), as well as habitat fragmentation in combination with agricultural conversion (Factor A). (AR 32, 37.)
Thus, the Service’s analysis of how the Listing Factors interact and combine together is apparent in the Listing Decision. Unlike in the cases cited by Plaintiff, the Court finds that the Service did consider the Listing Factors both singularly and in combination with other factors. (Dkt. 31, pp. 21-22.) As the District of Columbia District Court determined in Colorado River Cutthroat Trout v. Salazar,
In sum, Plaintiff has not shown that the Service acted in an arbitrary and capricious manner, abused its disсretion, or otherwise acted in violation of the ESA in concluding that listing the pygmy rabbit as “threatened” or “endangered” is not warranted at this time. The Court finds that the Service has adopted a reasonable interpretation of the statute, has provided adequate explanations for its decision, and that the record supports the Service’s factual findings and methodological choices. For the reasons set forth above, the Court GRANTS Defendants’ Motions for Summary Judgment and DENIES Plaintiffs Motion for Summary Judgment.
ORDER
IT IS ORDERED:
1. Plaintiffs Motion for Summary Judgment (Dkt. 30) is DENIED,
2. Defendant’s Daniel Ashe and United States Fish and Wildlife Service’s Motion for Summary Judgment (Dkt. 33) is GRANTED, and
3. Defendanb-Intervenor’s Motion for Summary Judgment (Dkt. 27) is GRANTED.
4. Judgment consistent with this Memorandum Decision and Order shall be entered in favor of Defendants and Defendant-Intervenor.
Notes
. The ESA delegates authority to the Secretary of Commerce (for most marine species) or the Secretary of Interior (for most terrestrial species) to determine whether to list a species as endangered or threatened. (Dkt. 1, p. 5, ¶ 16.) In this case, authority was delegated to the Secretary of Interior, who in turn delegated responsibilities under the ESA to the U.S. Fish and Wildlife Service. 50 C.F.R. § 17.2(a).
. This analysis may occur upon the Secretary's own initiative or, as in this case, in response to a petition filed by an interested person. 16 U.S.C. § 1533(b)(3)(A). Where such a petition is filed, the Service must, "[t]o the maximum extent practicable, within 90 days after receiving the petition of an interested person ... make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petition may be warranted.” Id. If the Service determines the petition may be warranted, the Service must undertake a status review of the species and, within one year, issue a 12-month finding concluding whether the petition is warranted, not warranted, or warranted but precluded. 16 U.S.C. § 1533(b)(3)(B). A finding that a listing is not warranted, like that in this case, is subject to judicial review. 16 U.S.C. § 1533(b) (3) (C) (ii).
. The Service may designate a DPS to avoid listing an entire species as endangered, where only a portion of a species’ population warrants protection Under the ESA. 16 U.S.C. § 1532(16).
. That Congress intended the Service to maintain significant discretion with respect to interpreting “foreseeable future” is buttressed by the legislative history of the ESA. Specifically, in a hearing on the proposed bills that led to the passage of the ESA, Senator Stevens pressed officials from the Department of Interior for criteria that should be used to determine foreseeable future. The officials declined to provide such criteria, maintaining that it would be difficult or impossible to write such criteria into the law. Instead, the officials noted that the Department would have to rely on the best scientific judgment to interpret "foreseeable future.” Endangered Species Act of 1973: Hearings on S. 1592 and S. 1983 Before the Senate Subcomm. on the
. In Trout, the Court further noted that under Section 4 of the ESA, the:
... default position for all species is that they are not protected under the ESA. A species receives the protections of the ESA only when it is added to the list of threatened species after an affirmative determination that it is ‘likely to become endangered within the foreseeable future.’ Although an agency must still use the best available science to make that determination ... [this does not] ... require an agency to 'give the benefit of the doubt to the species' if the data is uncertain or inconclusive. Such a reading would require listing a species as threatened if there is any possibility of it becoming endangered in the foreseeable future. This would result in all or nearly all species being listed as threatened. Instead, Congress vested the [agency] with discretion to make listing decisions based on consideration of the relevant statutory factors using the best scientific information available.
Id.
. As previously mentioned, the term "endangered species” means any species which is "in danger of extinction throughout all or a significant portion of its range,” while a "threatened species means any species which is likely to become an endangered species
. The Service’s inability to further evaluate representation due to a lack of genetic data was not in error where such data did not exist. As previously noted, the Service must consider the best available science, and is not required to conduct independent studies in cases where there are insufficient data. American Wildlands v. Kempthorne,
. Although, if the Service had departed from the 3-R Test, it would be required to explain its change in direction given its history of using the 3-R Test. Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Services,
. “What is required at this stage of the listing process, however, is a review of the Petition for a determination of whether it presents substantial information indicating to a reasonable person that the petitioned action may be warranted. This standard is in 'contrast to the best scientific and commercial data standard’ applied to actually listing a species” and does not require “conclusive evidence.” Id., at *5 (citations omitted).
. Both Plaintiff and Defendants limit their "combined threats” analysis to threats that fall under Factor A of 16 U.S.C. § 1533(a)(1)(A), or the "present or threatened destruction, modification, or curtailment of its habitat or range.” In its Memorandum in Support of its Cross-Motion for Summary Judgment, the Service noted that the Service had evaluated Listing Factors B-E, and determined such factors were insignificant. (Dkt. 33, p. 12.) Defendant also noted that Plaintiff’s Complaint challenged only the Service’s assessment of Factor A, and not any of the remaining Listing Factors. Id. In its summary judgment briefing, Plaintiff does not dispute that its challenges to the Listing Decision are limited to the Service’s conclusion with respect to Factor A, and does not challenge the Service's decision with respect to Factors B-E. The Court’s analysis of “combined threats” is accordingly generally limited to the Service's assessment of Factor A threats.
. Plaintiff also maintains that the Service previously recognized the cumulative effect of threats in the Greater sage grouse listing decision, that the same threats are relevant to the pygmy rabbit given the common habitat shared by both species, and that the Service’s treatment of such threats as distinct is thus not credible in this case. (Dkt. 31, p. 24.) To the extent the sage grouse listing is relevant (see supra, pp. 1182-83), however, the record illustrates that the Service has not treated threats as distinct, and has instead considered