Survivors v. U.S. Dep't of the Interior
Opinion
JOSEPH C. SPERO, Chief Magistrate Judge
I. INTRODUCTION
In this case, Plaintiffs Desert Survivors, Center for Biological Diversity, WildEarth Guardians, and Western Watersheds Project challenge: 1) the decision of the U.S. Fish and Wildlife Service ("Service" or "FWS") to withdraw the proposed listing of the Bi-State Sage-Grouse as "threatened" under the Endangered Species Act ("ESA"),
II. BACKGROUND
A. Legal Framework
1. The Endangered Species Act
The ESA was enacted for the purpose of "provid[ing] a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and "provid[ing] a program for the conservation of such endangered species and threatened species."
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JOSEPH C. SPERO, Chief Magistrate Judge
I. INTRODUCTION
In this case, Plaintiffs Desert Survivors, Center for Biological Diversity, WildEarth Guardians, and Western Watersheds Project challenge: 1) the decision of the U.S. Fish and Wildlife Service ("Service" or "FWS") to withdraw the proposed listing of the Bi-State Sage-Grouse as "threatened" under the Endangered Species Act ("ESA"),
II. BACKGROUND
A. Legal Framework
1. The Endangered Species Act
The ESA was enacted for the purpose of "provid[ing] a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and "provid[ing] a program for the conservation of such endangered species and threatened species."
"The ESA requires the Service to identify and list species that are 'endangered' or 'threatened.' " Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv. ,
The Service considers five factors in determining whether a species or distinct population segment should be listed: "(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."
2. The SPR Policy
As noted above, the ESA defines "endangered species" as "any species which is in danger of extinction throughout all or a significant portion of its range...."
(1) if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is "significant" if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time FWS or NMFS makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout an SPR, and the population in that significant portion is a valid [Distinct Population Segment ("DPS") ], we will list the DPS rather than the entire taxonomic species or subspecies.
" Final Policy on Interpretation of the Phrase 'Significant Portion of Its Range' in the Endangered Species Act's Definitions of 'Endangered Species' and 'Threatened Species,' "
With respect to its interpretation of the word "range" in the phrase "significant portion of its range," the Service acknowledged that the ESA is ambiguous as to whether this word refers to a species' current range or its historical range.
3. PECE
In 2003, the Service announced a "final policy for the evaluation of conservation efforts when making listing decisions" under the ESA. " Policy for Evaluation of Conservation Efforts When Making Listing Decisions" ("PECE"),
The Service explains, "[a]s part of our assessment of future conditions, we will determine whether a formalized conservation effort that has yet to be implemented or has recently been implemented but has yet to show effectiveness provides a high level of certainty that the effort will be implemented and/or effective and results in the elimination or adequate reduction of the threats."
In the PECE, the Service sets forth criteria that it will consider in evaluating: 1) the certainty that a conservation effort will be implemented (for those efforts that have not yet been implemented); and 2) certainty that conservation efforts will be effective (for those efforts that have not yet demonstrated effectiveness).
1. The conservation effort, the party(ies) to the agreement or plan that will implement the effort, and the staffing, funding level, funding source, and other resources necessary to implement the effort are identified. 2. The legal authority of the party(ies) to the agreement or plan to implement the formalized conservation effort, and the commitment to proceed with the conservation effort are described. 3. The legal procedural requirements (e.g. environmental review) necessary to implement the effort are described, and information is provided indicating that fulfillment of these requirements does not preclude commitment to the effort. 4. Authorizations (e.g., permits, landowner permission) necessary to implement the conservation effort are identified, and a high level of certainty is provided that the party(ies) to the agreement or plan that will implement the effort will obtain these authorizations. 5. The type and level of voluntary participation (e.g., number of landowners allowing entry to their land, or number of participants agreeing to change timber management practices and acreage involved) necessary to implement the conservation effort is identified, and a high level of certainty is provided that the party(ies) to the agreement or plan that will implement the conservation effort will obtain that level of voluntary participation (e.g., an explanation of how incentives to be provided will result in the necessary level of voluntary participation). 6. Regulatory mechanisms (e.g., laws, regulations, ordinances) necessary to implement the conservation effort are in place. 7. A high level of certainty is provided that the party(ies) to the agreement or plan that will implement the conservation effort will obtain the necessary funding. 8. An implementation schedule (including incremental completion dates) for the conservation effort is provided. 9. The conservation agreement or plan that includes the conservation effort is approved by all parties to the agreement or plan.
With respect to certainty that conservation efforts will be effective, the Service considers whether:
1. The nature and extent of threats being addressed by the conservation effort are described, and how the conservation effort reduces the threats is described. 2. Explicit incremental objectives for the conservation effort and dates for achieving them are stated. 3. The steps necessary to implement the conservation effort are identified in detail. 4. Quantifiable, scientifically valid parameters that will demonstrate achievement of objectives, and standards for these parameters by which progress will be measured, are identified. 5. Provisions for monitoring and reporting progress on implementation (based on compliance with the implementation schedule) and effectiveness (based on evaluation of quantifiable parameters) of the conservation effort are provided. 6. Principles of adaptive management are incorporated.
If the Service finds that a conservation effort is "sufficiently certain to be implemented and effective so as to have contributed to the elimination or adequate reduction of one or more threats to the species,"
*1022it may find that a species need not be listed or that a species is threatened rather than endangered.
Even where a listing is avoided based on formal conservation efforts, PECE provides that the Service will "track the status of the effort including the progress of implementation and effectiveness of the conservation effort."
B. Factual Background
1. The Bi-State Sage Grouse
The Bi-State Sage Grouse is a distinct population segment ("DPS") of the greater sage-grouse species that live in the "far southwestern reach of the greater sage-grouse's range" in the central border region of eastern California and western Nevada.
In 2001, the Service designated six population management units ("PMUs") "as management tools for defining and monitoring sage-grouse distribution in the [B]i-State area," drawing boundaries based on aggregations of leks,2 known seasonal habitats, and telemetry data."
*1023
The Service estimates that all of the PMUs combined have a total of 43 active leks, as compared to as many as 122 leks3 reported in the Bi-State DPS in the past.
2. Conservation Efforts by Governmental and Non-Governmental Actors
In August 2000, the Nevada Governor's Sage Grouse Conservation Team ("Governor's Team") was created "to provide the primary forum for coordinating sage-grouse conservation efforts for the State of Nevada, including the Bi-State area." Final PECE Analysis (AR Doc. 5716, BSSG 79486). The Governor's Team completed the Nevada Sage-Grouse Conservation Strategy ("Strategy") in October of 2001.
In 2011, the Governor's Team created the Bi-State Executive Oversight Committee ("EOC"), which includes federal and state agency directors from FWS, Bureau of Land Management, U.S. Forest Service, the Natural Resources Conservation Service ("NRCS"), U.S. Geological Survey, Nevada Department of Wildlife, and California Department of Fish and Game. 2012 BSAP (AR Doc. 5870, BSSG 90789). The EOC, in turn, assigned biologists from each of the participating agencies to form the Technical Advisory Committee ("TAC"), which is "responsible for providing technical expertise and guidance, and identifying and prioritizing actions necessary for conservation of the Bi-State DPS." 2012 BSAP (AR Doc. 5870, BSSG 90800). On March 15, 2015, the conservation recommendations of the TAC were issued as the updated Bi-State Action Plan ("2012 BSAP").
The goals of the 2012 BSAP were: 1) to summarize "conservation actions that have been completed to mitigate threats to the Bi-State DPS since 2004;" and 2) "to develop a comprehensive set of strategies, objectives, and actions to accomplish specific goals and objectives for effective long-term conservation of the Bi-State sage-grouse and their habitats." 2012 BSAP (AR Doc. 5870, BSSG 90791-90792). The 2012 BSAP was described as a "living document" that would be "updated at a minimum of every three years with monitoring, inventory, and research results" and that would "incorporate[ ] a strategic, science-based adaptive management approach for future project planning based on development of a Conservation Planning Tool ['CPT'] for evaluation of the effectiveness of completed actions and updated analyses of specific risks to each life stage of the population."
In the meantime, in the spring of 2010, NRCS, which is an agency within the U.S. Department of Agriculture, launched its Sage Grouse Initiative ("SGI"). March 25, 2011 letter by NRCS re Annual Status Review for Greater Sage Grouse (Doc. No. 6904, BSSG 109128). "NRCS is the principal federal agency for providing conservation technical assistance to private landowners, conservation districts, tribes, and other organizations." 2012 BSAP (AR Doc. 5870, BSSG 90900). "SGI was structured to be a collaborative effort with its conservation partners across the West for conservation of greater sage-grouse."
Another conservation group, the Conservation Objectives Team ("COT") was formed in 2013, at the direction of the Service. March 22, 2013 Cover Letter, Greater Sage Grouse Conservation Objectives: Final Report ("COT Report") (AR
*1025Doc. 5829, BSSG 103823). COT included members of the Service and representatives of state wildlife agencies.
3. Efforts by Environmental Groups to Obtain Protection of the Bi-State Sage Grouse under the Endangered Species Act
Environmental groups have been petitioning the Service for the protection of the Bi-State Sage Grouse for more than a decade. In December 2001, the Institute for Wildlife Protection brought a petition ("the 2001 Petition") to emergency list sage grouse found in Mono County, California and Lyon County, Nevada as an endangered distinct population segment of the greater sage-grouse.
Also in November 2005, a new petition ("the 2005 Petition") to list the Mono Basin area greater sage grouse as threatened or endangered was brought by the Center for Biological Diversity, the Western Watersheds Project, the Sagebrush Sea Campaign, and Christians Caring for Conservation.4
The Service settled both of these lawsuits in an April 2006 settlement agreement in which it agreed to evaluate the 2005 Petition, re-evaluate the 2001 Petition, and publish a 90-day finding on the petitions in December 2006.
In 2007, the Center for Biological Diversity, the Sagebrush Sea Campaign, Western Watersheds Project, and Desert Survivors brought an action in this Court challenging the 2006 90-day finding. See Ctr. for Biological Diversity v. U.S. Fish and Wildlife Serv. , Case 3:07-cv-04347(JCS) (N.D. Cal.). The parties reached a settlement in 2008, when the Service agreed to review the petitions again and issue a new *102690-day finding.
In 2011, the Service entered into a settlement agreement with WildEarth Guardians and other groups in a consolidated case in the District of Columbia, whereby the Service agreed to publish proposed rules for protection or findings that protection was not warranted for the 251 species that were candidates for protection under the ESA in 2010, which included the Bi-State DPS. 78 Fed. Reg. at 64,361.
4. 2013 Species Report
On July 26, 2013, the Service issued a species status assessment for the Bi-State DPS. 2013 Species Report (AR Doc. 1671, BSSG 23827-24028). In it, the Service summarized the status of the Bi-State DPS as follows:
• There has been a reduction from historical range and habitat of greater than 50 percent; the current trend is a slow, continued reduction in range and habitat.
• There has been a reduction from historical abundance of greater than 50 percent. The current trend in abundance is unknown, but it is expected to gradually decrease for at least five of the six Population Management Units (PMUs). This is of critical concern to the species because fluctuations in the four small, less secure PMUs are likely to result in extirpations and loss of population redundancy within the Bi-State DPS.
• All six PMUs of the Bi-State DPS include poor connectivity within and among PMUs; the current trend in connectivity is slowly deteriorating, and this is of critical concern to the species because it increases the risk of loss of individual PMUs via stochastic events.
• Remaining habitat is increasingly fragmented within all six PMUs; the current trend in habitat fragmentation is a slow increase.
• Well known leks in the center of the species' range that have remained protected over time have long-term monitoring data suggesting stable population trends.
• Trends for most leks are unknown, especially on periphery of the species' range. This is of critical concern to the species because there is a pattern of historical extirpations of peripheral leks and populations for the Bi-State DPS.
*1027• Recent extensive and intensive surveys for the Bi-State DPS rangewide did not significantly increase the known number of leks or individuals.
• The size of the Bi-State population is generally below theoretical minimums for long-term persistence reported in scientific literature; populations are especially small and increasingly isolated outside the two largest (core) PMUs of South Mono and Bodie.
2013 Species Report (AR Doc. 1671, BSSG 23831).
The Service went on to summarize its findings as to "impacts" to the Bi-State DPS as follows:
• There are multiple impacts to habitat interacting in the Bi-State DPS, and no one impact stands out.
• Sage-grouse are long-lived, habitat specialists with low reproductive rates and particularly sensitive to habitat fragmentation caused by multiple, interacting impacts.
• Pinus edulis (pinyon pine) and various Juniperus (juniper) species encroachment has caused significant habitat reduction; the current trend in woodland encroachment is increasing, but mitigated partially by ongoing woodland removal projects.
• Urbanization has caused significant habitat reduction; the current trend in urbanization is increasing, but slowly.
• Infrastructure development (e.g., roads) has caused significant habitat fragmentation; the current trend in this impact is increasing, but slowly.
• The fire-invasive species cycle destroys native plant communities and sage-grouse habitat; the current trend in habitat loss from fire and invasive species is increasing.
• Small population size and meta-population isolation increases risk to sage-grouse; the current trend in small, isolated populations is gradually increasing. This is of critical concern to the species because fluctuations in the four small, less secure PMUs are likely to result in extirpations and loss of population redundancy within the Bi-State DPS.
• Predation is locally impacting sage-grouse, such as that occurring in the South Mono PMU near a landfill; the current trend in predation for the Bi-State DPS rangewide is unknown.
• There is uncertainty over long-term impacts from climate change and its effects on other factors like invasive species; however, change is anticipated.
2013 Species Report (AR Doc. 1671, BSSG 23832).
The Service recognized that "[h]abitat restoration and protection efforts are actively occurring" and that "[p]artnerships are strong and conservation interest currently high." 2013 Species Report (AR Doc. 1671, BSSG 23832). It noted that the area "has maintained an active Bi-State Local Planning Group since the early 2000s, and the Group is active in Nevada and California." Id. It also pointed to the BLM Bishop Field Office's "demonstrated track record of avoiding substantial development impacts in the Bodie and South Mono PMUs, which is in part why those two PMUs have the largest remaining populations." Id. Finally, it acknowledged that the BSAP was updated in 2012 and that the updated BSAP provided "a general roadmap toward species conservation." The Service found, however, that the 2012 BSAP "lack[ed] specificity in key areas" and "lack[ed] assurances of funding or implementation." Id. As an example of the *1028lack of specificity of the 2012 BSAP, the Service pointed out that it "identifies the importance of pinyon-juniper removal, but does not specify how much and where removal is necessary." Id. With respect to the lack of assurances of funding, the Service noted that the 2012 BSAP "includes many measures similar to those in the 2004 Bi-State Plan that were never funded or implemented." Id.
5. Issuance of Proposed Rule to List Bi-State Sage Grouse as Threatened Under the ESA
Three months later, on October 28, 2013, the Service issued a proposed rule to list the Bi-State DPS as threatened under the ESA and a proposed special rule under section 4(d) of the ESA to provide for the conservation of the Bi-State DPS. 78 Fed. Reg. at 64,358 (AR Doc. 6764, BSSG 87898). In conjunction with the proposed rules ("Proposed Listing"), the Service proposed designating critical habitat for the Bi-State DPS. Id. In the Proposed Listing, the Service echoed the concerns set forth in the 2013 Species Report with respect to the status of the Bi-State DPS and threatened impacts to it. Id. The Service concluded that the severity of these impacts was "high." 78 Fed. Reg. at 64,364 (AR Doc. 6764, BSSG 87904).
In determining whether the Bi-State DPS was threatened or endangered, the Service considered the following five factors that may give rise to a finding that a species is threatened or endangered: "(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." 78 Fed. Reg. at 64,358 (AR Doc. 6764, BSSG 87898).
With respect to Factor D, the inadequacy of the existing regulatory mechanisms, the Service found that some local, state and federal regulatory mechanisms exist "that either provide or have the potential to provide a conservation benefit to the Bi-State DPS," but that "supporting documents for some of these are many years old and have not been updated, calling into question their consistency with our current understanding of the DPS's life history requirements, reaction to disturbances, and the DPS's conservation needs." 78 Fed. Reg. at 64,372 (AR Doc. 6764, BSSG 87912). The Service further noted that implementation of conservation actions pursuant to these existing regulatory mechanisms varies depending on the availability of staff and funding. Id. With respect to land planning mechanisms for federally managed lands (of which the Bi-State area is "largely comprised"), the Service noted that "[e]xisting land use plans, as they pertain to sage grouse, are typically general in nature and afford relatively broad latitude to land managers," which "can result in land use decisions that negatively affect the Bi-State DPS." Id. The Service found regulations in some counties "identify the need for natural resource conservation and attempt to minimize impacts of development through zoning restrictions" but that they "neither preclude development nor do they provide for monitoring of the loss of sage-grouse habitats." Id. Likewise, the Service concluded that "State laws and regulations are general in nature and provide flexibility in implementation, and do not provide specific direction to State wildlife agencies." Id.
With respect to the proposed special rule under Section 4(d) of the ESA to provide for the conservation of the Bi-State DPS, the Service recognized the ongoing voluntary conservation efforts discussed above, stating as follows:
*1029The Service proposes this 4(d) special rule in recognition of the significant conservation planning efforts occurring throughout the range of the Bi-State DPS for the purpose of reducing or eliminating threats affecting the DPS. Multiple partners (including private citizens, nongovernmental organizations, and Federal and State agencies) are engaged in conservation efforts across the entire range of the DPS on public and private lands, and these efforts have provided and will continue to provide a conservation benefit to the DPS. Two recent examples of conservation programs in the Bi-State area are the Bi-State Action Plan, which was finalized on March 15, 2012, and addresses the entire range of the DPS on public and private lands; and the NRCS's Sage-Grouse Initiative (SGI). Efforts associated with both programs will facilitate conservation benefits in the Bi-State area, and these programs will continue to provide conservation benefits to the DPS into the future. Currently, existing programs do not yet fully address the suite of factors contributing to cumulative habitat loss and fragmentation, which is our primary concern across the Bi-State DPS's range. However, the Bi-State Action Plan, if completely refined and fully implemented, may result in the removal of threats to the Bi-State DPS so that the protections of the Act may no longer be warranted, especially in combination with other actions, including Federal land management agencies' ongoing efforts to ensure regulatory mechanisms are adequate for the DPS.
October 28, 2013 Proposed Listing,
6. Public Comment in Response to Proposed Listing
The Service received extensive public comments in response to the proposed listing of the Bi-State DPS as threatened. See Index of Public Comments (AR Doc. 3042);
On June 8, 2014, the EOC (which had drafted the 2012 BSAP) submitted a packet of comments and documents in opposition to listing the Bi-State DPS as threatened. EOC Comment Package re Listing of Bi-State DPS (AR Doc. 4099, BSSG 80368-80422). This package included a memorandum of understanding to facilitate interagency cooperation and six letters of commitment ("Commitment Letters") with regard to conservation efforts aimed at the Bi-State DPS.
7. 2015 Species Report
On March 1, 2015, the Service issued an updated species report. 2015 Species Report (AR Doc. 5508, BSSG 425-636). While the Status and Impacts set forth in the Executive Summary were described in largely the same terms as in the 2013 Species Report, the emphasis on voluntary conservation efforts was greater. 2015 Species Report (AR Doc. 5508, BSSG 429-430). With respect to the 2012 BSAP, the Service recognized that it "initially lacked specificity in key areas" but stated that "[s]ince our proposed listing in 2013, participating agencies have made significant progress to further refine the conservation actions identified in the 2012 Bi-State Action Plan." 2015 Species Report (AR Doc. 5508, BSSG 430). The Service went on to note that "through the leadership of the Bi-State Executive Oversight Committee (EOC), commitments to implement ... the BSAP have been provided, including funding totaling more than 45,000,000 dollars (EOC 2014, p. 2)." 2015 Species Report (AR Doc. 5508, BSSG 431).
The first section of the 2015 Species Report, entitled "Biological Information," describes the geographical range of the Bi-State DPS as a whole and the six PMUs, and addresses populations trends. 2015 Species Report (AR Doc. 5508, BSSG 431-458). It summarizes the results of a 2014 analysis of population trends in the Bi-State area spanning the years 2003 to 2012, by Coates et al. ("Coates Study"). See A Hierarchical Integrated Population Model for Greater Sage-Grouse (Centrocercus urophasianus) in the Bi-State Distinct Population Segment, California and Nevada, Peter S. Coates, et al. , published by United States Department of the Interior and United States Geological Survey, 2014 (AR Doc. 4480, BSSG 84307-84348). The Service recognized that the Coates Study "did not evaluate the populations in the Mount Grant or White Mountains PMUs due to data limitations" but found that the Coates Study "suggest[ed] a stable trend in population growth across the entire Bi-State area between 2003 and 2012." 2015 Species Report (AR Doc. 5508, BSSG 445).
The "Biological Information" section of the species report also described "[t]wo recent and independent genetic evaluations ... conducted in the Bi-State area," by Oyler-McCance et al. and Tebbenkamp. 2015 Species Report (AR Doc. 5508, BSSG 445). According to the Service:
Oyler-McCance et al. (2014, p. 8) concluded there are between three and four unique genetic clusters within the Bi-State area, while Teb[b]enkamp (2014, p. 18) concluded there were five unique genetic clusters. In addition, Teb[b]enkamp (2014, p. 12) did not evaluate the Pine Nut population, which Oyler-McCance et al. (2014, p. 8) found to be unique. Thus, presumably Teb[b]enkamp (2014, entire) would have differentiated six populations had these data been available. Based on this information, we presume that there are likely three to six populations or groups of birds in the *1031Bi-State area that largely operate demographically independent of one another.
The 2015 Species Report also includes an updated description of past and ongoing conservation efforts, describing the efforts made to address the specific threats posed by urbanization, infrastructure (including fences and roads), grazing (by livestock and wild horses), invasive species, pinyon and juniper encroachment, wildfire fuel reduction and rehabilitation, meadow and sagebrush habitat condition, and disease or predation. 2015 Species Report (AR Doc. 5508, BSSG 460-466). The report goes on to conduct an Impact Analysis of these threats, providing a detailed evaluation of the nature and severity of the threats and the efforts to address them. 2015 Species Report (AR Doc. 5508, BSSG 469-567).
8. The October 31, 2014 Decision of the Regional Director of the Service's Pacific Southwest Region and the Conclusions of the Recommendation Team
On October 29, 2014, the Service convened a meeting of the Bi-State DPS Recommendation Team ("Recommendation Team"). October 31, 2014 Memorandum of Regional Director, Pacific Southwest Region (AR Doc. 4932, BSSG 58596). Thirteen agency biologists "familiar with greater sage grouse issues" participated in the meeting, along with three regional directors ("the Regional Directors").
Detailed meeting notes reflect that the Recommendation Team began by reviewing the status of and threats to the Bi-State DPS at the time of the Proposed Listing, in 2013. October 29, 2014 Recommendation Team Meeting Notes (AR Doc. 4907, BSSG 58533-58535). The team then went on to address the following "2014 issues," which were "informed from peer review:" 1) "our perception of historic baseline did not change from 2013; 2) new information on habitat, population trends and threats; and 3) some threats were reduced in 2014 due to conservation actions." October 29, 2014 Recommendation Team Meeting Notes (AR Doc. 4907, BSSG 58535). Finally, the team addressed conservation efforts that had occurred since 2013 and future conservation efforts to be conducted under the 2012 BSAP. October 29, 2014 Recommendation Team Meeting Notes (AR Doc. 4907, BSSG 58536-58537).
In the "Pulse Check" discussion that followed, the biologists were asked to make recommendations as to two issues: 1) "the proposed status that should be applied today (threatened/endangered/not warranted);" and 2) "Given the information provided since 2013 and the anticipated future conservation efforts, what is the proposed status for the future (threatened/endangered/not warranted)?" October 29, 2014 Recommendation Team Meeting Notes (AR Doc. 4907, BSSG 58538). In response to the first question, twelve of the thirteen biologists found that the Bi-State DPS was threatened. October 29, 2014 Recommendation Team Meeting Notes (AR Doc. 4907, BSSG 58538-58539). In response to the second question, eight *1032of the biologists found that the listing was "not warranted," with virtually all of them pointing to the commitment to future conservation efforts under the BSAP as the basis of their opinion.
Of the remaining biologists, three found that the future status of the Bi-State DPS was threatened.
Finally, two biologists were "uncertain" as to the future status of the Bi-State DPS. One expressed concern that "fire will continue to persist and amelioration cannot really effectively address the future threat."
In a formal memorandum ("Memorandum") issued on October 31, 2014, signed by all three regional directors who participated in the Recommendation Team meeting, the Regional Directors summarized the conclusions of the Recommendation Team on a number of subjects relevant to the listing status of the Bi-State DPS. First, on the subject of "Abundance, Trends and Persistence," they stated, "[n]ot surprisingly, little has changed since the 2013 finding," but noted that "[t]here are new findings that suggest we may have slightly underestimated the Bi-State trend and persistence in our 2013 finding." October 31, 2014 Memorandum of Regional Director, Pacific Southwest Region (AR Doc. 4932, BSSG 58596). Next, they addressed "Threats." October 31, 2014 Memorandum of Regional Director, Pacific Southwest Region (AR Doc. 4932, BSSG 58597). Here too, the Memorandum does not suggest that the Recommendation Team found significant reduction in threats since 2013, stating that "threats to the Bi-State [DPS] have declined since 2013, but not in a major way."
Next, the Memorandum addressed "Future Conservation Benefits," stating that "[t]his is the area where greatest change has occurred since 2013 and greatest potential for beneficial change exists."
9. Withdrawal of Proposed Listing of Bi-State DPS
On April 23, 2015, the Service withdrew the proposed rule to list the Bi-State DPS as threatened, as well as the proposed special rule under section 4(d) and the proposed designation of critical habitat.
The Service explained that it was withdrawing the Proposed Listing because it had "determine[d] that threats have been reduced such that listing is not necessary for this DPS."
Based on our analyses of the potential threats to the species, and our consideration of partially completed, ongoing and future conservation efforts (as outlined in the Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) section of this document), we have determined that the [B]i-State DPS should not be listed as a threatened species. Specifically, we have determined that conservation efforts (as outlined in the [Bi-State Action Plan ("BSAP") ], Agency commitment letters, and our detailed PECE analysis ... as well as the [Bi-State Technical Advisory Committee ("TAC") ] comprehensive project database) will continue to be implemented because (to date) we have a documented track record of active participation and implementation by the signatory agencies, and commitments to continue implementation into the future.
In the Withdrawal Decision, the Service also relied on the Coates Study in support of the conclusion that the population of the Bi-State DPS is stable.
In its discussion of "Resiliency, Redundancy, and Representation," the Service relied on the 2014 Oyler-McCance genetic study in support of the conclusion that "while resiliency of the [B]i-State DPS may be reduced to some degree as a result of relatively small total population size, the genetic diversity in the [B]i-State area improves the capacity of the DPS to recover from disturbance, or adapt to changes or effects caused by a disturbance or a combination of disturbances."
The Service also conducted an "SPR" analysis in its Withdrawal Decision.
Ultimately, the Service acknowledged that there is "information available that may lead some to believe that the populations in these three PMUs are at risk of becoming endangered in the foreseeable future" but concluded, based on its PECE analysis, that ongoing conservation efforts would "change[ ] the trajectory from a point where the DPS was previously considered to be a threatened species, to a point where the best available information related to current and future conservation efforts indicates the entire range of the DPS, including the specific portion of the DPS's range in the Pine Nut, Mount Grant, and White Mountains PMUs, does not meet the definition of a threatened species or an endangered species."
C. The Complaint
Plaintiffs bring this action under the ESA,
Second, Plaintiffs bring both a facial and an as-applied challenge to the SPR Policy, asserting that the Service's adoption of the SPR Policy and its application of that policy in connection with its decision to withdraw the Proposed Listing of the Bi-State DPS were arbitrary and capricious and an abuse of discretion under the APA,
Plaintiffs' as-applied challenge is based on the allegation that the Service violated the ESA "by misapplying the [SPR] Policy in the [Withdrawal Decision] when it concluded that a bird species living on a highly fragmented area consisting of less than 50 percent of its original habitat could lose three of its six remaining populations and still not be at any foreseeable risk of extinction, and in concluding that there were no portions of the Bi-State Sage-Grouse DPS that may be significant."
Third, Plaintiffs claim the Service violated the ESA and the APA by misapplying the PECE with respect to the evaluation of certainty of implementation and effectiveness of the conservation efforts described in the 2012 BSAP.
D. Contentions of the Parties
1. Plaintiffs' Contentions
Plaintiffs ask the Court to enter summary judgment in their favor on all three of their claims and to enter an order vacating and remanding the Withdrawal Decision and SPR Policy and enjoining Defendants from relying on or applying that policy. Plaintiffs argue that the Withdrawal Decision is unlawful on numerous grounds. First, they contend it is not based on the best available science, focusing in particular on: 1) the Service's reliance on the 2014 Coates Study to show that the population of the Bi-State DPS is stable; and 2) the Service's reliance on recent genetic studies to support their revised analysis of species resiliency, redundancy and representation. They also contend the Service addressed threats to the Bi-State DPS only in isolation and failed to consider the cumulative impacts of these threats.
Second, they argue that the Service improperly relied on updates to various land use plans that had not yet been adopted whereas the Service may consider only existing regulatory mechanisms in making listing determinations.
Third, Plaintiffs challenge the Service's PECE analysis, which concluded that the future conservation efforts described in the 2012 BSAP justified withdrawing the listing of the Bi-State DPS. In particular, Plaintiffs argue that PECE does not allow the Service to rely on "speculative promises" of future action but instead requires that it rely on "formalized conservation efforts" where there is a "high level of certainty" that the measures will be implemented and effective. According to Plaintiffs, the Service did not adhere to this requirement in conducting its PECE analysis. With respect to the level of certainty that the conservation measures in the 2012 BSAP will be implemented, Plaintiffs argue that the letters of commitment by federal agencies to funding and staffing, upon which the Service relied in its Withdrawal Decision, cannot provide the requisite certainty where they purport to commit to efforts that will occur over the next ten years. Such commitments, no matter how well-intentioned, cannot be "highly certain" when agency budgets are subject to annual Congressional budget appropriations and executive branch prerogatives, Plaintiffs assert. Plaintiffs also contend there is not a high level of certainty that the conservation efforts envisioned in the 2012 BSAP will be effective. Rather, they argue, the Service provides a "laundry list" of proposed future actions without explaining why they would be sufficiently effective to withdraw the Proposed Listing of the Bi-State DPS.
Plaintiffs also argue the PECE analysis is flawed because the ESA permits the Service to consider conservation efforts by "any State or foreign nation, or any political subdivision of a State or foreign nation" in determining whether listing is warranted. See
Finally, Plaintiffs challenge the 2014 SPR Policy on its face and as applied. Plaintiffs' facial challenge is based on the definitions of "significant" and "range" in the SPR Policy. As to the former, Plaintiffs contend the SPR Policy gives the "significant portion of its range" language of the ESA no independent meaning because a portion of a species' range is "significant" under the SPR Policy only if its contribution to the viability of the species is so important that without the members of that portion the species would be threatened or endangered throughout all of its range. Plaintiffs argue that approach is inconsistent with the Ninth Circuit's holding in Defenders of Wildlife v. Norton ,
Plaintiffs also contend the Service misapplied the SPR Policy when it considered whether the listing of the Bi-State DPS should be withdrawn. In particular, they argue that the Service failed to explain why the acknowledged challenges to the smaller PMUs, which are at significant risk of extirpation, are not sufficient to show that the entire species is threatened under the SPR Policy.
2. Defendants' Contentions
Defendants contend they have violated neither the ESA nor the APA and ask the Court to enter summary judgment in their favor on all of Plaintiffs' claims. First, they reject Plaintiffs' assertion that the Service's PECE analysis was flawed, arguing that it was based on an extensive analysis of the 2012 BSAP, including the new information that was submitted during the public comment period for the proposed listing by the local, state and federal agencies involved in the implementation of the plan. According to Defendants, this included consideration of refined conservation priorities and specific and concrete conservation measures, as well as letters of commitment totaling $45 million in funding for these measures. Because this new information addressed the shortcomings identified in the Proposed Listing, Defendants assert, the Service's conclusion that the PECE criteria were satisfied was reasonable.
Defendants reject Plaintiffs' argument that the conservation plans outlined in the 2012 BSAP are too speculative to satisfy PECE, arguing that PECE is a predictive tool that allows the Service to consider even incomplete and unproven actions, so long as they are "sufficiently certain" to be implemented and effective. Likewise, Defendants accuse Plaintiffs of adopting a "cramped" reading of language in the PECE policy that states that the Service "must determine at the time of the listing decision that the conservation effort has improved the status of the species."
Defendants argue that Plaintiffs' reliance on the vagaries of Congressional funding and changing executive priorities to show that implementation of the BSAP conservation measures is not "sufficiently certain" is a "novel argument" that is unsupported by case law. Further, they assert, the possibility of budget cuts is speculative and should not be considered. And even if appropriations were reduced in future budgets, they contend, this does not automatically result in cuts to particular *1038programs given that agencies retain the discretion to set priorities.
Defendants also argue that the Service reasonably concluded that the actions in the 2012 BSAP are "sufficiently certain" to be effective, rejecting Plaintiffs' contention that the Service did not provide specific reasons in support of that conclusion. To the contrary, Defendants assert, the Service provided an extensive evaluation of the threats to the Bi-State DPS, the efficacy of past and ongoing conservation efforts and the likely efficacy of future conservation measures in addressing these threats. The Service also compared planned conservation measures in the 2012 BSAP to the guidance provided in the COT report, which provided peer-reviewed conservation objectives and recommended measures to achieve them. According to Defendants, the main example cited by Plaintiffs - conservation efforts to remove pinyon and juniper trees from sagebrush habitat - actually shows that the Service conducted a thorough analysis of how the conservation efforts described in the 2012 BSAP were likely to reduce this threat.
Defendants also reject Plaintiffs' argument that the Service should not have considered the future voluntary conservation efforts of federal agencies, arguing that under PECE and the ESA, the Service may consider "the pertinent laws, regulations, programs, and other specific actions of any entity that either positively or negatively affects the species." To the extent that Plaintiffs rely on
With respect to Plaintiffs' assertion that the Service did not rely on the best available science, Defendants argue that the Service's reliance on the Coates Study and the Oyler-McCance and Tebbenkamp genetic studies in support of the Withdrawal Decision was not arbitrary and capricious. With respect to the Coates Study, Defendants reject Plaintiffs' assertion that the study: 1) did not support the conclusion that the population of the Bi-State DPS is stable; and 2) did not provide a sufficient basis for analyzing the general direction of the population trend for the Bi-State DPS because it did not study the Mount Grant or White Mountains PMUs. As to the genetic studies, Defendants argue that the Service's reliance on them in support of its findings as to species resiliency, representation and redundancy was only one piece of its analysis and that it actually addressed Plaintiffs' concerns about connectivity and minimum sustainable population size, noting that the 5,000 individual minimum population was theoretical and not statistically proven, and that observations showed that the populations "have continued to persist despite relatively small numbers of birds and annual fluctuations." Defendants also reject Plaintiffs' assertion that the Service did not consider threats to the Bi-State DPS cumulatively, asserting that the Service did, in fact, consider specific threats both individually and cumulatively.
Addressing Plaintiffs' challenges to the SPR Policy and its application to the Bi-State DPS, Defendants argue that the policy is a permissible construction of the ESA and is entitled to deference. They further contend the policy reasonably defines the words "significant" and "range." As to the term "significant" Defendants contend Plaintiffs' challenge is not ripe for judicial review because the Service's conclusion that the Bi-State DPS was not threatened under the SPR Policy was based on its finding that no portion of the Bi-State *1039DPS was threatened and therefore, it did not address whether any portion was "significant." Defendants also argue that the Service's application of the SPR Policy in the Withdrawal Decision was reasonable.5
III. ANALYSIS
A. General Legal Standards Governing Judicial Review Under the APA's "Arbitrary and Capricious" Standard
Judicial review of agency action under the ESA is governed by the "arbitrary or capricious" standard set forth in the APA, which provides that "a reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
The Supreme Court has explained that "[n]ormally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. ,
Where an agency takes action under the ESA, it is required to "use the best scientific and commercial data available."
*1040from disregarding available scientific evidence that is in some way better than the evidence [it] relies on.' " San Luis & Delta-Mendota Water Auth. v. Jewell ,
"The [APA] makes no distinction ... between initial agency action and subsequent agency action undoing or revising that action." F.C.C. v. Fox Television Stations, Inc. ,
Finally, when a court reviews an agency's construction of a statute that is "silent or ambiguous with respect to [a] specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. ,
B. Whether the Decision to Withdraw the Proposed Listing was Arbitrary and Capricious
1. The Service's Reliance on the Coates Study
a. Background
The Coates Study was completed during the comment period following the Proposed Listing of the Bi-State DPS and was aimed at providing "a thorough examination of population dynamics and persistence that includes multiple subpopulations and represents the majority of the DPS," which was "largely lacking" at that time. Coates Study (AR Doc. 4480, BSSG 84313). In particular, the authors noted that previous "[r]ange-wide population analyses for sage-grouse" had relied on "underlying data [that] only represent[ed] a portion of the DPS and [were] comprised of lek count observations only."
The data used to develop the IPM was drawn from six sage-grouse subpopulations (Pine Nut, Desert Creek, Fales, Bodie Hills, Parker Meadows and Long Valley) located in four PMUs (Pine Nut PMU, Desert Creek-Fales PMU, Bodie PMU and South Mono PMU).
The conclusion of the Coates Study was that "[t]he preponderance of evidence suggests that sage-grouse populations are stable ... within Bi-State DPS in its entirety over the period of 2003-2012."
The authors of the Coates Study studied only a ten-year period because: 1) "the lek data across the Bi-State DPS did not meet high enough quality standards to allow for reliable inferences for this specific analysis prior to this 10-year period"; and 2) "demographic data was not available for any subpopulation during years prior to 2003, which [were] fundamental modeling components of [the] study."
Plaintiffs challenge the Service's reliance on the Coates Study to support its conclusion that the overall population trend of the Bi-State DPS is stable, asserting that this conclusion is problematic on several grounds. First, they point to the estimated *1042probabilities that the population would increase, decline or stay the same (described above), arguing that a 15.8 percent chance that the population will remain unchanged indicates the population is not stable. Plaintiff's Motion at 23. Rather, Plaintiffs assert, the high probability that the population will either increase (42.5%) or decrease (41.6%) supports the conclusion that populations are fluctuating widely from year to year - "a concerning trait for subpopulations below their minimum threshold for viability" - and therefore are unstable. Plaintiffs' Reply at 7.
Next, Plaintiffs point out that the Coates Study predicted positive growth for the Pine Nut PMU but that actual observation revealed only one lek in this PMU in 2013 and 2014, with zero males strutting in 2013 and only one strutting in 2014. See Plaintiff's Motion at 23-24; Delta Table (AR Doc. 4835, BSSG 5790);
Third, Plaintiffs argue that the ten-year framework used in the Coates Study was not long enough to draw "robust, reliable conclusions given the longer cycles of population variations in sage grouse populations." Plaintiffs' Motion at 24; see also Plaintiffs' Reply at 6 ("The Coates Analysis ventures that its conclusions are ... valid, but relies on one study which shows six-to-nine-year oscillations in population while disregarding three other studies that show long-term (i.e. decadal) declines in population sizes range-wide") (citing Coates Study (AR Doc. 4480, BSSG 84336) ) ("Several studies have indicated that sage-grouse populations have experienced long-term (i.e., decadal) declines in population sizes range-wide (Connelly and others, 2004; Sage and Columbian Sharp-tailed Grouse Technical Committee 2008; Garton and others, 2011).").
Finally, Plaintiffs argue the Service cannot draw reliable conclusions from the Coates Study about the Bi-State DPS as a whole because the authors did not have any data from the Mount Grant or White Mountains PMUs, which are two of the largest PMUs by geographical size.
Plaintiffs contend these concerns also were articulated by the biologists who attended the Recommendation Team meeting on October 29, 2014. Plaintiff's Motion at 24 (citing October 29, 2014 Recommendation Team Meeting Notes (AR Doc. 4907, BSSG 58535) ).
Defendants argue that the Service's reliance on the Coates Study in its Withdrawal Decision was reasonable and that Plaintiffs' arguments regarding the shortcomings of the study do not withstand scrutiny. Defendants' Cross-Motion for Summary Judgment and Memorandum in Support Thereof and in Opposition to Plaintiffs' Motion for Summary Judgment ("Defendants' Opposition/Cross-Motion") at 25. With respect to the probabilities that populations would increase, decrease, or stay the same, Defendants argue that Plaintiffs overstate their case in pointing to the low probability that the population will stay the same, ignoring the fact that over time, the probabilities of increase and decrease will balance each other out.
Defendants also challenge Plaintiffs' argument that the scope of the Coates Study was inadequate because it did not rely on any data from the Mount Grant or White Mountains PMUs.
Likewise, Defendants assert, Plaintiffs' criticism of the ten-year interval in the Coates Study confuses the best available science with the best possible science. Id. They note that the authors of the Coates Study chose this interval based, in part, on a lack of high quality data that would allow them to use a longer interval. Id. They also point out that the authors explained why the interval they used was reasonable. Id.
Finally, as to Plaintiffs' criticism of the IPM's predictions for the Pine Nut PMU, which did not match actual observations, Defendants contend this does not establish that the Service acted unreasonably because it expressly recognized this shortcoming in the Withdrawal Decision and did not rely on the model for that PMU. Id. at 27.
With respect to comments made by the Recommendation Team regarding the Coates Study, Defendants contend Plaintiffs' reliance on these comments is misplaced because they represent only preliminary statements whereas the Court's task is to evaluate the agency's final decision. Id. at 9 n. 3 (citing Nat'l Ass'n of Home Builders v. Defenders of Wildlife ,
b. Discussion
As a preliminary matter, the Court finds that it may consider the comments made by agency biologists who were involved in the internal process of evaluating the available science and conservation efforts in order to make recommendations as to the proposed listing of the Bi-State DPS. In Nat'l Ass'n of Home Builders v. Defenders of Wildlife , cited by Defendants, the Supreme Court held that "federal courts ordinarily are empowered to review only an agency's final action, see
Turning to Plaintiffs' specific challenges, the Court finds that the Service did not violate the requirement that it use the "best available science" by relying on the Coates Study to gain an understanding of overall population trends for the Bi- State DPS. See San Luis & Delta-Mendota Water Auth. v. Jewell ,
It is a separate question, however, whether there was a "rational connection between the facts found and the determinations made." See Arizona Cattle Growers' Ass'n v. Salazar ,
The Court rejects Plaintiffs' challenge based on the ten-year period that was used in the Coates Study to evaluate population trends. In order to assess the appropriateness of that period, the Court would be required to weigh competing scientific analyses, which exceeds the scope of its review under the arbitrary and capricious standard. See Ecology Ctr. v. Castaneda ,
Similarly, the Court concludes that it is beyond the scope of its arbitrary and capricious review to determine whether the authors of the Coates Study could properly use the IPM to make predictions about the overall population of the Bi-State DPS without data from the Mount Grant and White Mountains PMUs. The authors of the study opined that the subpopulations that they did study provided a "reliable representation of demography" for the entire DPS and the Service found that conclusion to be reasonable. The Court defers to the expertise of the Service on this issue as well.
On the other hand, the Service's adoption of the main conclusion of the Coates Study - that the overall population of the Bi-State DPS is stable - is inconsistent with its own finding, set forth in the Withdrawal Decision, that the results of the Integrated Population Model (IPM) that was developed by Coates must be interpreted "with caution" because the IPM incorrectly predicted the population trend in the Pine Nut PMU.
Defendants contend the Service "acknowledged and accounted for the limitations of the Coates [S]tudy with respect to the Pine Nut subpopulation, but there was no reason to discount the Coates [S]tudy in its entirety," citing cases that hold that even if plaintiffs can "poke some holes" in a model, that does not mean reliance upon that model is arbitrary and capricious. Defendants' Opposition/Cross-Motion at 27 (citing San Luis & Delta-Mendota Water Auth. v. Jewell ,
2. The Service's Reliance on New Genetic Studies
a. Background
In the Withdrawal Decision, the service addresses "Resiliency, Redundancy, and Representation." It describes "resiliency" as follows:
Resiliency refers to the capacity of an ecosystem, population, or organism to recover quickly from disturbance by tolerating or adapting to changes or effects *1046caused by a disturbance or a combination of disturbances.
The degree of resiliency of a species is influenced by both the degree of genetic diversity across the species, and the number of individuals. Resiliency increases with increasing genetic diversity and/or a higher number of individuals; it decreases when the species has less genetic diversity and/or fewer individuals.
This information suggests that while resiliency of the [B]i-State DPS may be reduced to some degree as a result of relatively small total population size, the genetic diversity in the [B]i-State area improves the capacity of the DPS to recover from disturbance, or adapt to changes or effects caused by a disturbance or a combination of disturbances.
Next, the Service states that the Oyler-McCance Study and Tebbenkamp 2014 ("the Tebbenkamp Study") support its conclusion that there are "between three and six populations ... in the [B]i-State area that largely operate demographically independent of each other."
Plaintiffs challenge the Service's characterization of the "resiliency, redundancy and representation" of the Bi-State DPS, arguing that the "Service erroneously suggested that two recent genetic reports may lessen concerns about persistence over time because they indicate that [there is] moderate to high genetic diversity across the DPS range." Plaintiffs' Motion at 26. Plaintiffs point to the Service's own recognition that "[m]ultiple, interacting populations across a broad geographic area provide insurance against the risk of extinction caused by catastrophic events (redundancy)," arguing that here, the evidence shows that the populations that make up the Bi-State DPS are isolated and do not interact.
Plaintiffs also point to a draft version of the Withdrawal Decision in which the Service used much more dire language in its discussion of this issue, stating as follows:
[W]e find that resiliency, redundancy, and representation in the Bi-State DPS are a concern for the DPS's long-term persistence given current and future conditions. The best available information indicates resiliency overall is low, with four of six populations being small. Trends for some of the smaller populations (e.g., Pine Nut, Fales, and Parker Meadows) remain of concern at the DPS level because fluctuations in these small, less secure populations are likely to result in extirpations and loss of population redundancy within the DPS. Representation is not of concern at this time but may be in the future if smaller populations become extirpated. When considered together, the low level of resiliency and redundancy, current and future threats to the Bi-State populations (in particular, see Drought (Factor E discussion below) ), the potential loss of one or more small populations outside of the two core populations, the overall reduction of range, and future risk to representation indicate the long-term persistence of the Bi-State DPS may be at risk.
Draft Withdrawal Decision (AR Doc. 5158, BSSG 64536). According to Plaintiffs, this grim picture is based on the fact that the populations within the Bi-State DPS are "below the theoretical minimum threshold" for persistence and are isolated from one another. Plaintiffs' Motion at 25;
Defendants counter that there is nothing arbitrary and capricious about the Service's reliance on these studies, the validity of which Plaintiffs do not challenge, and that Plaintiffs are merely criticizing the Service's weighing of the evidence. Defendants' Opposition/Cross-Motion at 27. Such weighing is entitled to deference, they contend.
b. Discussion
While Plaintiffs challenge the Service's reliance on the Oyler-McCance and Tebbenkamp Studies in support of its conclusions related to resiliency, redundancy and representation, they do not challenge the validity of these studies, or the specific findings about the genetic diversity of the Bi-State DPS that the Service attributes to them. Rather, Plaintiffs disagree with the Service's conclusions as to the implications of these studies, which they contend do not justify the somewhat rosier picture in the final Withdrawal Decision than was painted in an earlier draft. Yet the Service acknowledges in the Withdrawal Decision that the individual populations are "relatively small and may be below the theoretical minimum threshold ... for long-term persistence, as is the entire DPS, on average...."
3. The Service's Consideration of Cumulative Threats
a. Background
In the Withdrawal Decision, the Service considered the following threats to the Bi-State DPS: "Invasive nonnative and native plants," "wildfires and altered fire regime;" "infrastructure, including roads, power lines, fences, communication towers, and landfills;" "grazing and rangeland management;" "small population size and population structure;" "urbanization and habitat conversion;" "mining;" "renewable energy development and associated infrastructure;" "disease or predation;" "climate change, including drought;" "recreation;" "overutilization (including commercial and recreational hunting);" "scientific and educational uses;" "pesticides and herbicides;" and "contaminants."
Many of the impacts described here and in the accompanying Species Report may cumulatively or synergistically affect the bi-State DPS beyond the scope of each individual stressor. For example, the future loss of additional significant sagebrush habitat due to wildfire in the [B]i-State DPS ... could occur because of the synergistic interactions among fire, people and infrastructure, invasive species, and climate change. Predation may also increase as a result of the increase in human disturbance and development.
The 2015 Species Report contains lengthier descriptions of the individual threats, as well as a slightly expanded discussion of "synergistic impacts," stating as follows:
Many of the impacts described in this report may cumulatively or synergistically affect the Bi-State DPS beyond the scope of each individual stressor. For example, the future loss of additional significant sagebrush habitat due to wildfire in the Bi-State DPS is anticipated because of the intensifying synergistic interactions among fire, people and infrastructure, invasive species, and climate change. As another example, improper livestock grazing management alone may only affect a small portion of the Bi-State DPS, but when combined with invasive species, drought, and wildfire, it could collectively result in substantial habitat loss, degradation, or fragmentation across large portions of the species' range. Predation may also increase as a result of increases in human disturbance and development. These are just a few scenarios of the numerous impacts that are likely acting cumulatively to further contribute to the challenges faced by many Bi-State DPS populations now and into the future.
2015 Species Report (AR Doc. 5508, BSSG 578-579).
Plaintiffs contend the Service failed to analyze the cumulative impact of the threats to the Bi-State DPS, asserting that while it acknowledged the "synergistic interactions among fire, people and infrastructure, invasive species, and climate change" in the Withdrawal Decision, it "did not discuss their potential impact on *1049loss of sagebrush habitat and/or loss of sage grouse population." Plaintiffs' Motion at 26-27. They further assert that the Service did not "treat cumulative or synergistic threats in the context of the species' small population sizes" and therefore, that they violated the ESA.
Defendants assert that the Service "examined threats - both individually and cumulatively - at every turn." Defendants' Opposition/Cross-Motion at 29 (citing
b. Discussion
Under
On the other hand, in cases were the Service has provided even a brief discussion of the cumulative threats, courts have generally found that the Service has met this requirement and deferred to the agency even if it did not consider every possible combination of threats. For example, in Rocky Mountain Wild v. U.S. Fish & Wildlife Serv., the court found that the following discussion of cumulative impacts was sufficient:
We believe that collectively, these activities have resulted in the presumed reduced abundance of white-tailed prairie dog from historical levels.... Many of these factors (grazing, urbanization, fire suppression, agricultural land conversion, and poisonings) were at much greater magnitude in the past and are not currently impacting the species with the same intensity. Other threats (oil and gas development, climate change, shooting, plague, and invasive plant species) can be expected to continue into the future. Of these, we consider plague and oil and gas development to have the greatest potential for cumulative impacts.
No. CV 13-42-M-DWM,
The Court finds that this case is distinguishable from WildEarth Guardians (and more like Rocky Mountain Wild and Colorado River Cutthroat Trout ) in that the Service offered sufficient explanation of its consideration of cumulative threats. It has identified the threats that may interact and provided some explanation of the implications of the interactions. The Court therefore rejects Plaintiffs' assertion that the Withdrawal Decision is arbitrary and capricious because the Service did not consider cumulative threats.
4. Whether the Service Improperly Relied Upon Proposed Amendments to Land Management Plans
a. Background
In the Withdrawal Decision, the Service addresses "Existing Regulatory Mechanisms," one of the five factors that must be considered under the ESA to determine whether a species is endangered or threatened. See
With respect to federally managed lands, of which the Bi-State DPS is "largely composed," the Service observes that "[h]istorically, land use plans, as they pertain to sage grouse, have been general in nature and afforded relatively broad latitude to land managers."7
*1051provide a conservation benefit for the [B]i-State DPS and its habitat."
Plaintiffs contend the Service's consideration of existing regulatory mechanisms in the Withdrawal Decision was flawed because the Service found in the Proposed Listing that "federal land management plans, which cover the vast majority of the Bi-State Sage Grouse habitat, were inadequate regulatory mechanisms to protect the species from listing because they were dated, non-specific, and discretionary, and because funding was uncertain." Plaintiffs' Motion at 27-28 (citing
Defendants dismiss this argument on the basis that the Service expressly stated in the Withdrawal Decision that it was not relying on the proposed amendments to land management plans in its consideration of existing regulatory mechanisms. Defendants' Opposition/Cross-Motion at 13 n. 7. It does not dispute, however, that reliance on regulatory mechanisms that have not yet been adopted would violate the ESA.
b. Discussion
As the parties are in agreement that the ESA limits the Service to consideration of "existing" regulatory mechanisms and does not extend to planned regulatory mechanisms that have not yet been adopted, the only remaining question is whether the Service has violated this requirement by reaching the conclusion - based in part on its PECE analysis of the conservation efforts envisioned in the 2012 BSAP - that listing of the Bi-State DPS as threatened is not warranted. If the Service based its finding under PECE upon the *1052proposed land management plan amendments (even if only in part), this would appear to allow through the back door consideration of regulatory measures that are not "existing" and would potentially run afoul of the case law prohibiting the consideration of regulatory mechanisms that have not yet been enacted. The record reflects, however, that the Service did not do so.
Although the final PECE analysis does acknowledge that BLM was in the process of preparing amendments to RMPs and LMRPs for Carson City District, Tonopah and Humboldt-Toiyabe National Forest, it also describes the RMPs and Activity Plans that already existed and that contained "detailed, site-specific management actions outlined in livestock allotment management plans, wildlife habitat management plans, wild horse herd area management plans, wilderness management plans. etc." Final PECE Analysis (AR Doc. 5716, BSSG 79507-79608). Further, the Service states in the Withdrawal Decision that it did not rely on the proposed amendments when "analyzing the BSAP" under PECE. Withdrawal Decision (AR Doc. 6771, BSSG 88002) (citing Final PECE Analysis). Therefore, the Court rejects Plaintiffs' assertion that the Withdrawal Decision was arbitrary and capricious because the Service impermissibly relied on amendments to land use plans that had not yet been enacted in support of its conclusion that planned conservation measures under the 2012 BSAP justified withdrawal of the proposed listing.
5. The Service's PECE Analysis
a. Background
The primary basis for the Service's Withdrawal Decision was its conclusion under PECE that the conservation efforts outlined in the 2012 BSAP were sufficiently certain to be implemented and effective to justify the withdrawal of the Proposed Listing as "not warranted." As discussed above, this conclusion was based on Commitment Letters submitted to the Service by various state and federal agencies and one California county. In particular, Commitment Letters were submitted by: 1) State of Nevada Department of Wildlife; 2) State of California Department of Fish and Wildlife; 3) U.S. Department of Agriculture: U.S. Forest Service and NRCS; 4) United States Department of the Interior Bureau of Land Management (BLM); 5) United States Geological Survey; and 6) Mono County. EOC Comment Package re Listing of Bi-State DPS (AR Doc. 4100, BSSG 80372-80408).
As the EOC cover letter accompanying the Commitment Letters explains, total funds committed to conservation efforts under the 2012 BSAP amounted to $45,233,333, coming from the following sources: 1) Bureau of Land Management ($6,500,000); 2) Natural Resources Conservation Service ($12,000,000); 3) USDA Forest Service ($13,900,000); 4) California Department of Fish and Wildlife ($2,500,000); 5) Nevada Department of Wildlife ($3,400,000); 6) U.S. Geological Service ($400,000); 7) Mono County ($2,200,000); 8) U.S. Fish and Wildlife Service ($1,000,000); and 9) Private Contributions (e.g., landowners, NGOs) ( $3,333,333). EOC Comment Package re Listing of Bi-State DPS (AR Doc. 4100, BSSG 80368-80370).
The letters submitted by the Nevada Department of Wildlife, the California Department of Fish and Wildlife and the U.S. Geological Survey were relatively brief. The Nevada Department of Wildlife describes in its letter "unprecedented" "collaborative, multi-partnered efforts ... to fund, implement, and monitor the effects of science-based, prioritized conservation actions outlined in the Action Plan, in an adaptive management framework." EOC
*1053Comment Package re Listing of Bi-State DPS (AR Doc. 4100, BSSG 80372). It also notes that it has "expended over $1.4 million specifically towards implementation of the revised Action Plan" and that it is committed to devoting at least $3.6 million to such efforts over the next ten years.
The Commitment Letter submitted by the California Department of Fish and Wildlife is somewhat more detailed. It describes specific past conservation efforts involving the Bi-State DPS, including the acquisition of 1,235 acres in the Fales-Desert Creek PMU "to protect critical sage-grouse breeding and nesting habitat on Burcham and Wheeler Flats in northern Mono County" and the construction and/or funding of conservation easements on approximately 180 acres of private lands in southern Mono County and 1,200 acres at Sinnimon Meadow, in the Bodie PMU.
The Commitment Letter of the U.S. Geological Survey describes the support it has provided in the past, primarily with respect to the development of the Conservation Planning Tool (CPT) and the IPM, and commits to continuing to provide research and technical assistance.
The Commitment Letters of BLM, USDA (on behalf of NRCS and USFS) and Mono County include more detailed descriptions of planned conservation efforts, with both BLM and USDA including ten-year plans.
Similarly, the BLM Commitment Letter states that BLM "has been working with the U.S. Fish and Wildlife Service ... and other Federal, State, local and private partners for several years to conserve the Bi-State [DPS] of Greater Sage-Grouse" and that it has been involved in developing the 2012 BSAP, which it describes an "unprecedented cooperative conservation effort." Id . at BSSG 80389. In addition to *1054providing a ten-year strategy plan and committing to continued funding of conservation efforts, the BLM Commitment Letter commits to "finaliz[ing] and implement[ing] plan amendments for the Carson City and Tonopah Resource Management Plans (RMPs)," as noted above. Id . at BSSG 80390.
Plaintiffs assert in their summary judgment motion that the Service's PECE analysis was flawed, and thus arbitrary and capricious, because PECE allows the Service to consider only conservation efforts that are already "in place" at the time of the listing decision and that have improved the status of the species. Plaintiffs' Motion at 28-30 (citing Oregon Nat. Res. Council v. Daley ,
Plaintiffs further contend the Commitment Letters and the 2012 BSAP do not provide sufficient certainty that the measures described in them will be either effective or implemented and therefore, that the determination on the part of the Service that these PECE requirements were met was arbitrary and capricious. Plaintiffs' Motion at 31-33. With respect to implementation, Plaintiffs note that the Service cited in support of its finding of sufficient certainty in the Withdrawal Decision: 1) "agency commitments to staffing and significant funding;" and 2) "continued participation" by those who created the BSAP. Id. at 31 (quoting
With respect to whether there was sufficient certainty of effectiveness, Plaintiffs contend, the Service pointed to a variety of "effective methodologies"8 for addressing *1055threats identified as impacting the Bi-State DPS, but did not explain how any of them would be effective enough to change the status of the Bi-State DPS such that withdrawal of the Proposed Listing was justified. Id. at 32-33 (quoting 80 Fed. Reg. at 22,847 ). Nor did the Service offer any specific information or scientific evidence in support of such a conclusion, Plaintiffs assert. Id. at 33.
To illustrate this shortcoming, Plaintiffs offer the example of conservation efforts to remove pinyon-juniper woodlands, which is a significant component of the promised conservation activity on federal lands under the 2012 BSAP. Id. According to Plaintiffs, the "Withdrawal Decision record does not provide science to support a conclusion that such measures are or will be effective in enhancing sage grouse survival."Id. Moreover, they contend, "the Service did not articulate how many acres of remaining habitat would actually be addressed by these measures or whether that amount of effort would be sufficient to actually improve the status of the Bi-State sage grouse populations." Id. They note that although the PECE analysis "suggested that up to 203,329 acres would be examined for potential removal of encroaching pinyon-juniper," Final PECE Analysis (AR Doc. 5716, BSSG 79525), "[t]he Forest Service implementation plan identified environmental review it would undertake for eight pinyon-juniper removal projects covering roughly 95,000 acres over the next ten years.... BSSG080385-87 (Doc. 4100)" and the "proposed BLM's ten-year implementation plan was even less comprehensible, showing a single pinyon-juniper removal project - 301 acres in Mill Canyon for a cost of $65,000 - repeated over and over for each fiscal year from 2015 through 2022." Id. (citing EOC Comment Package re Listing of Bi-State DPS (AR Doc. 4100, BSSG 80392-95 (BLM 10-year plan) ) ). Finally, Plaintiffs note, "NRCS listed $2,000,000 in EQIP funding over the next five fiscal years to finance 'PJ Removal' on private property, but did not identify any particular project(s) or provide acreage numbers and conceded that it is 'difficult to precisely predict the specific projects landowners will offer for enrollment each [fiscal year].' " Id. (quoting EOC Comment Package re Listing of Bi-State DPS (AR Doc. 4100, BSSG 80384) ).
Plaintiffs point to cheatgrass removal as another example. Id. at 33 n. 7. According to Plaintiffs, "the Service fails to explain why cheatgrass removal efforts at such a low rate - a bare 1,634 acres of the next ten years out of 1.3 million acres of habitat, or 0.1 percent - would be effective, given that the Service identifies the spread of cheatgrass of 'greatest concern' and has indicated that '44 percent of existing sagebrush habitat in Nevada is at moderate or high risk of displacement by cheatgrass.' " Id. (citing Final PECE Analysis (AR Doc. 5716, BSSG 79539) (stating that "[s]ix BLM and USFS projects are either partially completed or planned for the future that target invasive, nonnative plants on more than [634 acres] in the Desert Creek-Fales, Mount Grant, and Pine Nut PMUs" and that "[t]he USFS will also control at least [100 acres] of cheatgrass each year over the next ten years in the Pine Nut PMU") and 2015 Species Report (AR Doc. 5508, BSSG 503) (stating that "[a] variety of nonnative invasive plants are present in all PMUs within the B-State area, although cheatgrass is of greatest concern because it is dispersed across all the PMUs" and noting that a study by Wisdom et al. (2003) "reported that 44 percent of the existing sagebrush habitat in Nevada *1056is at moderate or high risk of displacement by cheatgrass") ).
Plaintiffs also argue that the Service's PECE analysis was flawed because it relied on voluntary conservation efforts by federal agencies. In particular, Plaintiffs contend that because PECE implements
Defendants argue that the Service's analysis and findings under PECE were reasonable because the additional materials submitted by the EOC - and particularly the Commitment Letters - addressed the shortcomings identified by the Service in the Proposed Listing with respect to the 2012 BSAP, establishing that it was now "completely refined" and supported by specific funding commitments. Defendants' Opposition/Cross-Motion at 10-13. First, they assert, the agencies involved in carrying out conservation efforts under the 2012 BSAP further "refined priorities and geographic placement of conservation actions to maximize conservation gains" to the Bi-State DPS using the BSAP's "adaptive management approach and CPT."
Second, Defendants point to the Service's finding that over 200 conservation projects under the 2012 BSAP had been either implemented and completed or implemented and were ongoing at the time of the Withdrawal Decision.
Defendants reject Plaintiffs' assertion that the Service impermissibly relied on "speculative" promises about future conservation efforts, arguing that PECE is meant to be a predictive tool and allows the Service to consider future conservation efforts so long as they are "sufficiently certain."
Defendants also challenge Plaintiffs' assertion that because the 2012 BSAP is a voluntary strategy, it does not satisfy PECE.
Defendants reject Plaintiffs' reliance on the uncertainty of budget appropriations in support of their argument that implementation of the 2012 BSAP is not "sufficiently certain."
Defendants also contend the Service reasonably concluded that there was sufficient certainty as to the effectiveness of the conservation measures envisioned in the 2012 BSAP. Defendants' Opposition/Cross-Motion at 19-23. They assert that the Service conducted an extensive review of both threats to the Bi-State DPS and the efficacy of past and ongoing efforts to address these threats.
Defendants contend the example of pinyon-juniper removal efforts supports its position.
Finally, Defendants reject Plaintiffs' argument that the ESA and PECE do not allow the Service to consider the conservation efforts of federal agencies.
b. Whether Conservation Measures Must Already Have Been "in Place" Under PECE
Plaintiffs contend that under PECE, conservation efforts must already be in place and have enjoyed some measure of success - and conversely, that future conservation efforts do not satisfy this policy. They further assert that standard is not met here. The Court concludes that while PECE does not allow the Service to rely on speculative future efforts, it does not preclude the Service from considering future efforts that are sufficiently certain to be implemented and effective.
Plaintiffs rely on Oregon Nat. Res. Council v. Daley ,
These cases, however, were decided before the Service adopted the PECE, in 2003. In that policy, the Service interpreted the ESA differently, finding that it is appropriate to "consider both current actions that affect a species' status and sufficiently certain future actions - either positive or negative - that affect a species' status."
The Court also finds that Plaintiffs place too much reliance on a single sentence in Alaska v. Lubchenco , in which the court states that "it is not enough for the State to identify conservation efforts that may be beneficial to a species' preservation; those efforts must actually be in place and have achieved some measure of success in order to count under the Service's policy."
Other cases cited by Plaintiffs on this issue are also distinguishable. For example, in W. Watersheds Project v. Fish & Wildlife Serv. ,
c. Whether Voluntary Efforts of Federal Agencies May be Considered
Relying on the plain language of
The Service reached a different conclusion, however, when it adopted PECE, finding that "the analysis outlined in section 4 of the Act requires us to consider the conservation efforts of not only State and foreign governments but also Federal agencies, Tribal governments, businesses, organizations, or individuals that positively affect the species' status."
The Court therefore concludes that the Service did not violate the ESA by considering planned conservation efforts by federal agencies that were described in the Commitment Letters.
d. Certainty of Implementation
Plaintiffs contend the Service has not demonstrated sufficient certainty of implementation, notwithstanding the commitments with respect to funding and staffing contained in the Commitment Letters, because there can be no certainty as to Congressional *1060funding and executive priorities going forward and in particular, over the ten-year period addressed in the plans submitted by USDA and BLM along with their Commitment Letters. Plaintiffs' concerns are not frivolous or speculative. Budget cuts and changes in executive priorities are a fact of life. Nonetheless, Plaintiffs have not cited any case in which a court has held that specific funding or staffing commitments by a federal agency (or any agency) should not be considered under PECE because they might later be withdrawn. The only case Plaintiffs cite in support of this argument, Western Watersheds Project v. Foss , No. CV 04-168-MHW,
In its PECE analysis, the Service found that the commitments of the federal (and state) agencies as to funding and staffing were sufficiently certain because these same agencies had a history of involvement in the conservations efforts under the 2012 BSAP. This is a permissible basis to find that there is a high level of certainty that they will continue to be involved in this effort and to abide by the commitments in their Commitment Letters. See, e.g., Defenders II ,
e. Certainty of Effectiveness
While the Court finds that there is sufficient certainty that the conservation efforts set forth in the 2012 BSAP will be implemented, the Service's finding that these efforts are "sufficiently certain" to be effective was arbitrary, capricious and unsupported by the record.
The degree of certainty required under PECE is measured with reference to the status of the species at issue, that is, whether the conservation efforts will reduce the threats enough that it is no longer "threatened" under the ESA (or is threatened rather than endangered). See *1061
Alternatively, where a conservation program has been shown to be effective in one portion of a species' habitat, this may be sufficient to show that a similar program is likely to be effective in another part of the species' habitat. See, e.g., Defenders III ,
Here, the Service pointed to "past project effectiveness within the [B]i-State Area ... and documented effective methodologies for addressing the threats identified as impacting the [B]i-State DPS."
There is no doubt that a great deal of effort has been devoted to assessing threats and determining what measures are necessary to ameliorate these threats. What is missing from the PECE analysis, however, is any evidence that establishes the likely impact of the planned conservation measures and whether they will actually improve the status of the Bi-State DPS enough to justify withdrawal of the Proposed Listing. Below, the Court examines certainty of effectiveness with respect to the two examples addressed in-depth by the parties: 1) removal of pinyon-juniper; and 2) removal of cheatgrass.
*1062i. Pinyon-Juniper Removal
The 2015 Species Report states that over the last 150 years, "approximately 40 percent of the historically available sagebrush habitat [of the Bi-State DPS] has been usurped by woodland succession." 2015 Species Report (AR. Doc. 5508, BSSG 506). The Service further estimates that "the rate of woodland expansion currently outpaces treatment efforts on the order of two to seven times."
The 2012 BASP sets forth thirteen "actions" to "Minimize and Eliminate Risks" in the area of pinyon-juniper encroachment (hereinafter, "MER 4"). 2012 BSAP (AR Doc. 4100, BSSG 80522-80523). MER 4 provides for "[e]valuat[ion] [of] pinyon-juniper encroachment and potential connectivity issues" in specific geographical locations within the Bi-State DPS and for the [d]esign and implement[ation] [of] site-specific tree removal projects based on the results."
The COT Report, in turn, lists as the "Conservation Objective" for pinyon-juniper encroachment, "[r]emove pinyon-juniper from areas of sage-brush that are most likely to support sage-grouse (post-removal) at a rate that is at least equal to the rate of pinyon-juniper incursion." COT Report (AR Doc. 5829, BSSG 103876). It further sets forth "Conservation Options"10 related to pinyon-juniper removal, including prioritizing use of "mechanical treatments" in order to allow understory habitats to remain intact, using caution at higher elevations if removing pinyon-juniper by prescribed fire, reducing juniper cover in sage grouse habitats to less than 5%, and employing "all necessary management actions to maintain the benefit of pinyon and/or juniper removal for sage-grouse habitats, including long-term monitoring with appropriate management responses."
While the Court has no reason to question the soundness of the process the Service *1063describes for evaluating the problem of pinyon-juniper encroachment and developing projects to address the problem, it also finds no evidence in the record that allows it to conclude that the efforts envisioned in the 2012 BSAP are sufficiently certain to be effective. As Plaintiffs point out, the ten-year plan offered by the Forest Service identifies eight pinyon-juniper removal projects covering roughly 95,000 acres over the next ten years, while the BLM's proposed plan identifies only one pinyon-juniper removal project aimed at removing pinyon-juniper from 301 acres in Mill Canyon over a period of many years. It is not clear how these projects were selected or what percentage of habitat threatened by woodland encroachment they will cover; nor is there evidence in the record that allows the Court to determine the likelihood that these projects will be sufficient to accomplish the goal described in the Final PECE Analysis of "halting losses of sagebrush habitat."
Even more importantly, it is not sufficiently certain that the planned pinyon-juniper removal efforts will actually have a beneficial impact on the Bi-State DPS. In the 2015 Species Report, the Service noted that "[a] variety of techniques (e.g., mechanical, herbicide, cutting, burning) are being implemented to remove conifers in sage-grouse habitat" and that "[t]reatment effectiveness varies with the technique used and proximity to invasive plant infestations, among other factors." 2015 Species Report (AR Doc. 5508, BSSG 507). It continues, "[w]e are not aware of any study documenting a direct correlation between these treatments and sage-grouse population response[.]"
Finally, while the Final PECE Analysis states that the ongoing conservation efforts in the area of pinyon-juniper removal were "consistent" with the general objective of the COT Report, that is, to "remove pinyon-juniper from areas of sagebrush that are most likely to support sage-grouse (postremoval) habitat at a rate that is at least equal to the rate of pinyon-juniper incursion," it does not state that future conservation efforts will be sufficient to achieve that goal, much less explain the basis for such a conclusion. Final PECE Analysis (AR Doc. 5508, BSSG 79524-79525) (citing COT Report).11
*1064ii. Cheatgrass Removal
The 2015 Species Report explains that nonnative invasive plants are "abundant within sagebrush habitat," and that they have a negative impact on the Bi-State DPS both because they displace brush and forb species that are important for sage grouse chick survival and because they cause displacement and habitat fragmentation over the long term. 2015 Species Report (AR Doc, 5508, BSSG 503). While a variety of nonnative species are present in the Bi-State DPS, "cheatgrass is of greatest concern because it is widely dispersed across all PMUs."
The 2015 Species Report states that cheatgrass removal and restoration efforts are "hindered by cost and the inability to procure the necessary equipment and seeds." Id . at BSSG 504. Further, the Service states, while different approaches are being "investigated," "determining the effectiveness is challenging because it will take time for sagebrush to establish and mature in areas that were dominated by annual grasses."
The Final PECE Analysis states that there are six projects underway that target nonnative invasive plants on 634 acres in the Desert Creek-Fales, Mount Grant and Pine Nut PMUs and plans for another 100 acres of cheatgrass removal annually in the Pine Nut PMU. Final PECE Analysis (AR Doc. 5716, BSSG 79525). It further states that two brood-rearing/meadow habitat restoration projects are underway and six more, of "undetermined acreage" are proposed for the future.
The COT Report objective with respect to nonnative invasive species is, as stated in the Final PECE Analysis, to "[m]aintain and restore healthy, native sagebrush plant communities." COT Report (AR Doc. 5289, BSSG 103871). The COT Report lists five "Conservation Measures" to achieve this objective:
1. Retain all remaining large intact sagebrush patches, particularly at low elevations.
2. Reduce or eliminate disturbances that promote the spread of these invasive species, such as reducing fires to a "normal range" of fire activity for the local ecosystem, employing grazing management that maintains the perennial native grass and shrub community appropriate to the local site, reducing impacts from any source that allows for the invasion by these species into undisturbed sagebrush habitats, and precluding the use of treatments intended to remove sagebrush.
3. Monitor and control invasive vegetation post-wildfire for at least three years.
*10654. Require best management practices for construction projects in and adjacent to sagebrush habitats to prevent invasion.
5. Restore altered ecosystems such that non-native invasive plants are reduced to levels that do not put the area at risk of conversion if a catastrophic event were to occur....
The Final PECE Analysis fails to explain why what appear to be meager efforts (based on acreage alone) at cheatgrass removal are likely to have a meaningful impact on the status of the Bi-State DPS. The fact that the projects that are planned for the future are "consistent" with the general objective of the COT Report to "[m]aintain and restore healthy, native sagebrush plant communities," could be said of any level of cheatgrass removal. What is notably missing from the Final PECE Analysis is any discussion of whether the future conservation efforts for cheatgrass removal will be sufficient to result in a beneficial impact on the Bi-State DPS and the expected magnitude and timing of such an impact. Nor does the Service address whether the Conservation Measures recommended in the COT Report will be employed under the 2012 BSAP. Given that the effectiveness of cheatgrass removal is, by the Service's own admission, "mostly unproven and experimental," the efforts described in the Final PECE analysis do not support a finding that there is a sufficient certainty of effectiveness.
iii. Conclusion
PECE requires that future conservation efforts must be "sufficiently certain" to be effective. This inquiry requires that the Service consider not only whether the planned conservation measures are the type of measures that are likely, in the abstract, to be beneficial to the species. Rather, the Service must also consider the magnitude of the impact on the species that the measures can be expected to achieve, and "the estimated length of time that it will take for a formalized conservation effort to produce a positive effect on the species."
6. Whether Errors Were Harmless
The APA instructs that in reviewing agency action, "the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error."
As discussed above, the Service erred in concluding on the basis of the Coates Study that the population of the Bi-State DPS is stable. It also erred in concluding under PECE that there was sufficient certainty of effectiveness of planned conservation measures to support the conclusion that listing the Bi-State DPS as threatened is no longer warranted. There is no real dispute that the Service's PECE analysis was critical to its Withdrawal Decision. The Service acknowledges in the Withdrawal Decision that "[w]ithout the conservation measures being implemented now and planned for the future as described in the BSAP, the stressors that rise to the level of being a threat as identified in the proposed rule to the [B]i-State DPS would remain at a level that would warrant listing of the DPS as a threatened species." Withdrawal Decision (AR Doc. 6771, BSSG 88007). Likewise, the erroneous reliance on the Coates Study to conclude that the population of the Bi-State DPS was stable also likely played an important role in the Service's decision to withdraw the Proposed Listing. This finding clearly informed the Service's understanding of the urgency of the situation, which must be taken into account when deciding under PECE whether future conservation efforts are likely to produce positive results quickly enough to change the status of a species. Consequently, the Court concludes that both errors go to the heart of the agency's action and are not harmless.
In sum, the Court concludes that the Service's Withdrawal Decision was arbitrary and capricious and unsupported by the record for the reasons discussed above.
C. Whether the SPR Policy is Facially Deficient or Was Misapplied in the Withdrawal Decision
As discussed above, the Service concluded in the Withdrawal Decision that the Bi-State DPS should not be listed as threatened under the SPR Policy. Plaintiffs challenge that conclusion, asserting that the SPR Policy is invalid on its face because of its definitions of "range" and "significant" and that the Service erred in its application of the SPR Policy in the Withdrawal Decision.
1. Facial Challenges to the SPR Policy
a. "Range"
In the SPR Policy, the Service interprets the word "range" as used in
The term "range" as used in the phrase "significant portion of its range" is not defined in the ESA. See Defs. of Wildlife v. Norton ,
In Defenders of Wildlife v. Norton , the Ninth Circuit "made clear that the Secretary must develop some rational explanation for why the lost and threatened portions of a species' range are insignificant before deciding not to designate the species for protection." Tucson Herpetological Society v. Salazar ,
The D.C. Circuit addressed the same question in Humane Society v. Zinke ,
That is because the placement of "is" in the definitions seems most naturally to require that the species currently be endangered or threatened within its range, not to dictate the temporal scope of geographical evidence the Service is to consider. A species can be found to be endangered now-"is in danger of extinction,"16 U.S.C. § 1532 (6) (emphasis added)-based just as easily on threats to the species throughout its historical range as on threats throughout its contemporary range.
The Court finds the reasoning in Humane Society v. Zinke ,
b. "Significant"
i. Whether Challenge to Definition of "Significant" Under SPR Policy is Ripe for Review
"Ripeness is a justiciability doctrine designed 'to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.' "
*1069Nat'l Park Hosp. Ass'n v. Dep't of Interior ,
Before addressing Defendants' ripeness argument, the Court reviews the process described in the SPR Policy for determining whether a species is threatened or endangered under the ESA. See 79 C.F.R. 37585-37587 (Figures 1 & 2). First, the Service determines whether the species is threatened or endangered "throughout all of its range." Id. at 37585. If the answer is yes, the inquiry ends and the species is listed as threatened or endangered. Id. If the answer is no, the Service proceeds to the second question, namely, whether listing is justified on the basis that the species is threatened or endangered throughout a portion of its range. Id. at 37586. To answer that question, the Service begins by considering whether there is "substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future."15 Id. If there is, the Service conducts a more "detailed analysis to determine whether these standards are indeed met." Id. at 37587. In conducting the more detailed analysis, the Service explains, it may be "more efficient to address the 'significant' question first, or the status question first." Id. If the Service finds in answer to the status question that the species is not threatened or endangered in the portion of its range that is under consideration, the Service need not address whether the portion is "significant." Id. Likewise, if the Service concludes that the portion is not "significant" it need not address whether it is endangered or threatened there. Id.
In this case, the Service identified Pine Nut, White Mountains and Mount Grant PMUs for further consideration under the SPR Policy. 80 C.F.R. 22853. It chose to address the status question first, analyzing "whether stressors in these three PMUs ... rise to the level such that the sage-grouse is likely to become an endangered species in the foreseeable future (threatened) in these three PMUs combined." Id. The Service concluded that these three PMUs were "more vulnerable than the Bodie, Desert Creek-Fales, and South Mono PMUs, but not to the degree that sage-grouse are in danger of extinction or likely to become so in the foreseeable future in these PMUs." Id. The Service went on to discuss the planned conservation efforts under the 2012 BSAP and their likely impact on these three PMUs and on the DPS as a whole. Id. The Service found that the "[a]pplication of these conservation efforts across the range of the DPS over the next 10 years ... changes the trajectory from a point where the DPS was previously considered to be a threatened species, to a point where the ... entire range of the DPS, including the specific portion of the DPS's range in the Pine Nut, Mount Grant, and White Mountains PMUs, does not meet the definition of a threatened species or an endangered species." Id. The Withdrawal Decision then concludes:
[W]e find that substantial information indicates that: (1) There are no portions of the [B]i-State DPS that may be significant, and (2) the DPS is not likely to become an endangered species in the *1070foreseeable future in the portion of its range that harbors the least number of birds (i.e., the Pine Nut, Mount Grant, and White Mountains PMUs). Therefore, we find that listing the [B]i-State DPS is not warranted.
Defendants contend the Service addressed in the Withdrawal Decision only the status question and not the "significant" question, as it was entitled to do under the SPR Policy, and therefore, the "significant" question is not ripe for judicial review. There are two problems with their argument. First, while the bulk of the discussion in the Service's SPR analysis was aimed at answering the status question, the Service reached final conclusions as to both the status question and the "significant" question. Even if the Service's underlying discussion provides no analysis to support the conclusion on the "significant" question or it did not intend to reach that question, the explicit finding that "[t]here are no portions of the [B]i-State DPS that may be significant" undercuts the Service's argument that Plaintiff's challenge to the definition of "significant" under the SPR Policy is not ripe for review. Furthermore, the Service's finding that there was "substantial information indicating that ... the portion [in the three PMUs] may be significant," see id. at 22852, must necessarily have been informed by the Service's understanding of the meaning of "significant" under the SPR Policy. Under these circumstances, withholding consideration of Plaintiffs' challenge to the definition of "significant" will result in hardship to Plaintiffs.
The Court further notes that Plaintiffs' challenge to this aspect of the policy is primarily legal and does not require further development of the record, supporting the conclusion that the issue is "fit" for review. See Ctr. For Biological Diversity v. Kempthorne ,
Therefore, the Court rejects Defendants' assertion that Plaintiffs' facial challenge to the definition of "significant" under the SPR Policy is not ripe for judicial review.
ii. Whether the Definition of "Significant" under the SPR Policy is Permissible
As discussed above, the SPR Policy provides that a "portion of the range of a species is 'significant' if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range."
Under the previous interpretation of the ESA that was found impermissible by the Ninth Circuit in Defenders of Wildlife v. Norton (commonly referred to as the "clarification interpretation"), the Service "viewed the SPR language as merely clarifying that a portion of the range of a species could be so important to its conservation that threats there could determine the status of the species overall." Draft Policy on Interpretation of the Phrase "Significant Portion of Its Range" in the Endangered Species Acts Definitions of "Endangered Species" and "Threatened Species,"
The second example is offered to illustrate a situation in which a species would be listed under the SPR Policy whereas it would not have been listed under the clarification interpretation.
[A]nother species may have two main populations. The first of those populations (found in Portion Y) currently faces only moderate threats, but that population occurs in an area that is so small or homogeneous that a stochastic (i.e., random, unpredictable, due to chance) event could devastate that entire area and the population inhabiting it. Therefore, if it were the only population, the species would be so vulnerable to stochastic events that it would be in danger of extinction. (With two main populations, it is unlikely that both would be affected by the same stochastic event. The severity of the threats posed by the stochastic event would therefore be smaller because there could be exchange between the populations following the stochastic event-and this exchange could help to stabilize the population that has suffered declines.) Thus, without the portion of the range currently occupied by the second population (Portion X), the species would be in danger of extinction. But, as long as Portion X contained an extant population, the resiliency and redundancy of the two portions combined would be sufficient that the species would not be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, even in the face of severe threats to Portion X. Under these facts, Portion X would not be an SPR according to the clarification interpretation. Under this final policy, we first determine whether the species is endangered or threatened throughout all of its range and, if so, list the species accordingly. If the species is not endangered or threatened throughout all of its range, then we look further to determine *1072whether it is endangered or threatened throughout a significant portion of its range. Under these facts, and in contrast to the clarification interpretation, Portion X would be an SPR under this policy because the species would not currently be endangered or threatened throughout all of its range, but the hypothetical loss of Portion X would cause the species to become endangered. Therefore, we would need to consider whether the species was endangered or threatened in Portion X, and, if so, we would list the species.
Because the word "significant" as used in the phrase "significant portion of its range" is ambiguous, the Court must afford deference to the Service's interpretation under Chevron . See Defenders of Wildlife v. Norton , F.3d at 1141 (finding that phrase "significant portion of its range" in ESA is ambiguous). Thus, the issue before the Court is whether the Service's interpretation of the word "significant" in the SPR Policy is permissible. The Ninth Circuit has already found that the Service's interpretation of the ESA must give independent meaning to the phrase "significant portion of its range," and the Service does not dispute that an interpretation that does not meet this requirement is not permissible. The issue before the Court, then, is whether the definition of "significant" in the SPR Policy gives independent meaning to the phrase "significant portion of its range" in the ESA.
In Center for Biological Diversity v. Jewell , Judge Marquez addressed the same question. See Ctr. for Biological Diversity v. Jewell ,
Under the Final SPR Policy, listing a species based on threats in a significant portion of its range will be considered warranted only if three conditions are satisfied: (1) the species is neither endangered nor threatened throughout all of its range, (2) the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be endangered or threatened throughout all of its range, and (3) the species is endangered or threatened in that portion of its range. See 79 Fed. Reg. at 37,582 -83. All three of these conditions cannot be satisfied at once, because whenever conditions (2) and (3) are satisfied, a species *1073should properly be determined to be endangered or threatened throughout all of its range.
Judge Marquez rejected the defendants' reliance on the proposed listing of the African coelacanth to show that the Final SPR Policy can support a finding that a species' range is significant. Id. (citing Final Rule to List the Tanzanian DPS of African Coelacanth (Latimeria chalumnae) as Threatened Under the Endangered Species Act,
Whereas the Final SPR Policy provides that a portion of a species' range should be considered "significant" only if its "contribution to the viability of the species overall is so important that, without the members in that portion, the species" overall would be endangered or threatened, 79 Fed. Reg. at 37,579, the standard applied by the Service in its listing determination regarding the African coelacanth deems a portion of a species' range "significant" if its contribution to the viability of the species overall is so important that, without the members in that portion, the species overall would be at a significantly increased risk of extinction,81 Fed. Reg. at 17,401 .
The undersigned agrees with Judge Marquez's reasoning. Further, while the Service attempts to differentiate between the results under the clarification policy and the SPR Policy in the example quoted above, see
The Court also rejects the Service's reliance on the example of the proposed listing of the giant manta ray under the SPR Policy in support of its assertion that policy gives independent meaning to the "significant portion of its range" language. See
While we assume that declining populations within the Indo-Pacific and eastern Pacific portions of its range will likely translate to overall declines in the species throughout its entire range, there is very little information on the abundance, spatial structure, or extent of fishery-related mortality of the species within the Atlantic portion of its range. As such, we cannot conclude that the species is at a moderate risk of extinction throughout its entire range.
For these reasons, the Court concludes the definition of "significant" in the SPR Policy is an impermissible interpretation of the "significant portion of its range" language in the ESA.
2. Whether Application of SPR Policy in the Withdrawal Decision was Arbitrary and Capricious
Even assuming the SPR Policy is a permissible interpretation of the ESA, the Court concludes that its application by the Service here was arbitrary and capricious.
As discussed above, in conducting its SPR analysis, the Service addressed whether three of the most vulnerable populations, the Pine Nut, White Mountains and Mount Grant PMUs, "rise to the level such that the sage grouse is likely to become an endangered species in the foreseeable future (threatened) in these three PMUs combined."
There are no rational grounds for the Service's conclusion. First, as discussed above, the model developed in the Coates Study did not generate accurate predictions and was particularly unreliable with respect to the Pine Nut PMU, causing the Service to note in the Withdrawal Decision that the entire model should be treated with caution and especially as to the Pine Nut PMU. The Coates Study also did not analyze the White Mountains and Mount Grant PMUs at all, as the authors of that study had no data for those PMU. Nor does the Service offer any explanation for its reliance on the conclusions of the Coates Study in its SPR analysis in light of these shortcomings.
Second, the Service relies heavily upon its conclusions as to the entire Bi-State DPS under PECE. For the reasons discussed above, however, the Service failed to show that there was "sufficient certainty" of effectiveness of future conservation efforts under PECE. Moreover, the PECE analysis made a finding as to the persistence of the Bi-State DPS over all of its range. It did not address the likelihood of persistence for each individual PMU. The Court notes that the 2015 Species Report concluded that "[w]ithin the next several decades, it is possible that sage-grouse in the Bi-State area will persist in two of the potentially six populations located in the South Mono DPU (Long Valley) and the Bodie PMU (Bodie Hills)" because these PMUs are "larger and more stable and generally have fewer habitat pressures." 2015 Species Report (AR Doc. 5508, BSSG 579). Having failed to address the likely persistence of the species in each PMU in its PECE analysis, the Service had no basis for relying on that analysis in its SPR analysis to reach conclusions about the Pine Nut, White Mountains and Mount Grant PMUs.
Third, the Service offers no rational basis for relying on the fact that "multiple" sage grouse are still observed in these three PMU's, which each have one to eight leks. As the Service recognizes in the Withdrawal Decision, "each population in the [B]i-State DPS is relatively small and may be below the theoretical minimum threshold ... for long-term persistence." While the exact population required to exceed this threshold is not statistically proven, there is nothing in the record to suggest that "multiple" sage grouse (which could mean just two) would be above that threshold. Likewise, the Service has not explained why observation of one to eight leks in these PMUs (which the Service acknowledges are currently isolated) would be sufficient to show that these populations are not threatened and why these numbers do not, in fact, point to the likelihood of extirpation of the species in these smaller PMUs. That is what the Delta Table listing the numbers of birds observed and leks for each PMU in 2014 seems to show as well. Indeed, that chart indicates that the Service found the probability of persistence of the Pine Nut, Mount Grant and White Mountains PMUs to be "questionable." See AR Doc. 4836, BSSG 57940-57941.
Therefore, to the extent the Service found in applying its SPR Policy that the populations of these PMUs were not threatened, that conclusion was arbitrary and capricious. Further, to the extent the Service purportedly also found that these three PMUs combined were not a "significant" portion of the species' range, that *1076conclusion is also arbitrary and capricious because the Service offered no explanation in support of the conclusion in the Withdrawal Decision.
IV. CONCLUSION
For the reasons stated above, Plaintiffs' Motion is GRANTED. The motions of Defendants and Intervenors are DENIED. At the request of the parties, the Court will conduct a further round of briefing to address the appropriate remedy in light of the Court's decision. The parties are requested to meet and confer and submit a proposed briefing schedule to the Court within ten (10) days of this Order.
IT IS SO ORDERED.
Footnotes
321 F. Supp. 3d 1011 (Survivors v. U.S. Dep't of the Interior) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.