O 1 JS-6 2 3 4 5 6 7
8 United States District Court 9 Central District of California
11 WILDEARTH GUARDIANS, Case № 2:19-cv-09473-ODW (KSx)
12 Plaintiff, ORDER GRANTING PLAINTIFF’S
13 v. MOTION FOR SUMMARY JUDGMENT [42]; DENYING 14 DEB HAALAND1 & U.S. FISH & DEFENDANTS’ MOTION FOR WILDLIFE SERVICE, 15 SUMMARY JUDGMENT [46]; and Defendants. GRANTING MOTION FOR LEAVE 16 TO FILE AMICUS BRIEF [47] 17 18 I. INTRODUCTION 19 This Endangered Species Act (“ESA”) case concerns the Joshua tree, an iconic 20 succulent plant occurring almost exclusively in the Mojave Desert. Environmental 21 non-profit WildEarth Guardians challenges the United States Fish and Wildlife 22 Service’s (the “Service”) decision not to list the Joshua tree as threatened under the 23 ESA (“12-Month Finding”). Guardians contends the decision is arbitrary, capricious, 24 contrary to the best scientific and commercial data available, and otherwise not in 25 accordance with the ESA. Guardians asks this Court to set aside and remand the 26 12-Month Finding for the Service to reconsider. (Guardians Mot. Summ. J. 27
28 1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary of the Interior Deb Haaland is automatically substituted for former Secretary David Bernhardt. 1 (“GMSJ”), ECF No. 42.) The Service asks the Court to find that the record fully 2 supports the 12-Month Finding and that Guardians has failed to show the decision was 3 arbitrary, capricious, or improper. (Serv. Mot. Summ. J. (“SMSJ”), ECF No. 46.) 4 QuadState Local Governments Authority (“QuadState”) moves for leave to file an 5 amicus curiae brief in support of the Service’s motion. (Mot., ECF No. 47.) 6 On August 2, 2021, the Court heard argument from the parties. Having 7 considered the parties’ papers and arguments, for the reasons below, the Court 8 GRANTS Guardians’s Motion for Summary Judgment (ECF No. 42), DENIES the 9 Service’s Motion for Summary Judgment (ECF No. 46), and GRANTS QuadState’s 10 Motion for Leave to File an Amicus Brief (ECF No. 47). 11 II. THE ENDANGERED SPECIES ACT 12 The ESA “provide[s] a means whereby the ecosystems upon which endangered 13 species and threatened species depend may be conserved.” 16 U.S.C. § 1531(b). The 14 statute was designed to prioritize imperiled species to help them recover until federal 15 protection is no longer needed. See Tenn. Valley Auth. v. Hill, 437 U.S. 153, 16 174 (1978). “It represents a commitment to halt and reverse the trend toward species 17 extinction, whatever the cost.” Id. at 184 (internal quotation marks omitted). 18 The Secretary of the Interior is charged with protecting any “threatened” or 19 “endangered” species, on her own initiative or in response to a petition from any 20 “interested person.” 16 U.S.C. § 1533(b)(3). “A species is endangered if it is ‘in 21 danger of extinction throughout all or a significant portion of its range,’ and threatened 22 if it is ‘likely to become an endangered species within the foreseeable future 23 throughout all or a significant portion of its range.’” Ctr. for Biological Diversity 24 (“CBD”) v. Haaland, 998 F.3d 1061, 1063 (9th Cir. 2021) (citing 16 U.S.C. 25 § 1532(6), (20)) (“Haaland”). The Service generally interprets “foreseeable future” to 26 mean “the period through which it can reliably determine the threats to a species and 27 the likely consequences.” Id. 28 1 When the Secretary receives a petition, she must initially determine “whether it 2 presents sufficient information to suggest that [an endangered or threatened] listing 3 may be warranted.” Id. at 1064 (citing 16 U.S.C. § 1533(b)(3)(A)). “If so, the 4 Secretary must review the species’ status and issue a ‘12-month finding’ that listing is 5 either (1) warranted, (2) not warranted, or (3) warranted but precluded by higher 6 priority listing actions.” Id. (citing 16 U.S.C. § 1533(b)(3)(B)). Listing a species as 7 threatened or endangered triggers substantive and procedural protections under the 8 ESA. See 16 U.S.C. §§ 1536, 1538. The Secretary has delegated authority to 9 administer the Act to the Service. Haaland, 998 F.3d at 1064 (citing 50 C.F.R. 10 § 402.01(b)). 11 III. BACKGROUND 12 Guardians is a non-profit 501(c)(3) conservation organization focused on 13 protecting and restoring the “wildlife, wild places, wild rivers, and health of the 14 American West.” (Compl. ¶ 13, ECF No. 1.) Guardians alleges that recent scientific 15 studies show climate change and its associated effects, including drought, increasing 16 wildfire, and habitat loss, pose a serious threat to Joshua trees’ continued survival, and 17 that these threats “are poised to eradicate Joshua trees from much of their current 18 range by century’s end.” (See id. ¶ 4.) Accordingly, on September 28, 2015, 19 Guardians filed a petition under the ESA requesting that the Service list the Joshua 20 tree as a threatened species. (Id. ¶ 5.) 21 Joshua trees (Yucca brevifolia (“YBR”) and Yucca jaegeriana (“YJA”)) are 22 long-lived succulent plants endemic to the Mojave Desert. (Id. ¶¶ 2, 25.) Their 23 current range comprises approximately 12 million acres and extends from 24 northwestern Arizona to southwestern Utah west to southern Nevada and southeastern 25 California. (Admin. R. (“AR”) 6927–53 (“Species Status Review Form” or “SSR”) 26 6931–32, ECF No. 39.2) The Service recently determined that YBR and YJA are two 27
28 2 The AR certification and index are filed at ECF No. 39 and the AR was lodged separately with the Court. (See AR00001–23731.) 1 distinct species, though they have long been known as a single species with two 2 varieties and continue to be referred to together as “Joshua trees.” (SSR6930.) 3 Joshua trees date back to the Pleistocene era, 2.5 million years ago. (Compl. 4 ¶ 4.) They are characterized by infrequent germination, slow growth, and long 5 lifespans (200–300 years). (Id. ¶ 31; SSR6934.) They reproduce sexually through 6 pollination and seed production and asexually through rhizome growth, and take up to 7 thirty years to reach sexual maturity. (Compl. ¶¶ 31–32.) Seeds go to Joshua trees’ 8 obligate pollinator, Yucca moths, and to seed scatter-hoarding rodents; seed dispersal 9 is considered quite limited. (Id. ¶¶ 34, 35.) Seedlings are likely to emerge under 10 shrub cover, or “nurse plants,” and need periods of cool temperatures, yearly 11 precipitation, and low herbivory to survive. (Id. ¶ 37.) Recent scientific studies 12 indicate that these conditions align for successful new seedlings only a few times in a 13 century. (Id. ¶ 40.) 14 On September 14, 2016, the Service issued a positive 90-day finding on 15 Guardians’s petition. 81 Fed. Reg. 63160–65 (Sept. 14, 2016) (“90-Day Finding”). 16 The Service concluded that the petition presented substantial scientific and 17 commercial information indicating that listing the Joshua tree as threatened may be 18 warranted, based on ESA Factors A and E. (Id. at 63162; Compl. ¶ 54.) Factor A 19 considers “[t]he present or threatened destruction, modification, or curtailment of its 20 habitat or range,” and Factor E considers “[o]ther natural or manmade factors 21 affecting [the species’] continued existence.” 16 U.S.C. § 1533(a)(1)(A), (E). The 22 Service was to consider all five threat factors3 in completing the Species Status 23 Assessment Report (“SSA”) and 12-Month Finding. 90-Day Finding at 63162. 24 Although the ESA requires that the 12-Month Finding “shall” be completed 25 within 12 months of a petition, 16 U.S.C. § 1533(b)(3)(B), the Service published the 26 Joshua tree SSA nearly two years later, in July 2018, (see AR6957–7084 (“SSA”)) and 27 3 The other three threat factors are: “(B) overutilization for commercial, recreational, scientific, or 28 educational purposes; (C) disease or predation; [and] (D) the inadequacy of existing regulatory mechanisms.” 16 U.S.C. § 1533(a)(1)(B)–(D). 1 issued the 12-Month Finding nearly three years later, in August 2019, 84 Fed. 2 Reg. 41694-01. In four short paragraphs, the Service determined that listing the 3 Joshua tree as threatened or endangered under the ESA was not warranted due to the 4 species’ long lifespan, large ranges and distributions, and ability to occupy numerous 5 ecological settings. 12-Month Finding at 41697. The 12-Month Finding did not 6 discuss the statutory factors. See id. It incorporated the SSA by reference as 7 providing a “detailed discussion of the basis for this finding.” Id. In October 2018, 8 the Service summarized the SSA in the SSR. (See SSR.) 9 In the SSA, the Service considered eighty years as the timeframe for the 10 “foreseeable future” and analyzed potential current and future threats, such as 11 wildfires, invasive plants, habitat loss, and climate change (including prolonged 12 drought). (See SSR6949; SSA7032, 7053–54 (YBR), 7054, 7066–68 (YJA).) The 13 Service recognized that Joshua trees’ southern range suffered a greater concentration 14 of biologically meaningful threats, (SSR6951–52), but concluded that areas existed 15 within the predicted southern range contraction where the Joshua tree would persist, 16 (SSA7050–52), and found that potential expansion to the north and west could 17 compensate for the southern contraction, (id.). Although the Service found increased 18 fire risks from invasive grasses, and increased mortality and reduced survivorship of 19 individual Joshua trees from fire over time, it concluded that wildfires did not pose a 20 significant threat to the species. (SSA7000–01, 7012–13, 7032–35, 7055–57.) The 21 Service also noted that some studies indicated recent recruitment (new tree growth) 22 within the Mojave Desert. (See SSA7022, 7027.) 23 Specifically regarding the YBR, the Service found that the western edge of its 24 southern population would face “biologically significant threats from wildfire and 25 habitat loss from development,” (SMSJ 7), but concluded this area was not a 26 “significant portion of its range,” and thus did not warrant listing, (SSR6951–52). As 27 to the YJA, the Service found that individual trees could be impacted by threats from 28 wildfire, climate change, and habitat loss, but concluded the species would not likely 1 be affected at the population or species level. (SSR6951.) Thus, the Service 2 concluded that Joshua trees were “not in danger of extinction nor likely to become 3 endangered within the foreseeable future throughout all or a significant portion of” 4 their range and, therefore, listing was not warranted. (SSR6953). 5 On November 4, 2019, Guardians filed this action challenging the 12-Month 6 Finding. (See Compl.) Guardians challenges the Service’s non-listing determination 7 as violating the ESA in three ways: (1) the finding that Joshua trees are not threatened 8 under the five threat factors is arbitrary and capricious; (2) the finding that Joshua 9 trees are not threatened throughout a significant portion of their range is arbitrary and 10 capricious; and (3) the Service failed to use the best available science. (Id. ¶¶ 81–97.) 11 The parties each move for summary judgment on these issues. (See GMSJ; SMSJ; 12 Guardians Opp’n to SMSJ & Reply (“G.Opp’n”), ECF No. 51; Serv. Opp’n to GMSJ 13 & Reply (“S.Opp’n”), ECF No. 52.) 14 IV. LEGAL STANDARD 15 The Service’s decision not to list a species under the ESA is reviewed under the 16 Administrative Procedure Act (“APA”). Native Ecosystems Council v. Dombeck, 17 304 F.3d 886, 901 (9th Cir. 2002). Courts “shall” set aside agency action, findings, or 18 conclusions under the APA that are “arbitrary, capricious, an abuse of discretion, or 19 otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Although this is a 20 deferential standard and courts should not “substitute [their] judgment for that of the 21 agency,” they must nonetheless engage in a “thorough, probing, in-depth review.” 22 Citizens of Overton Park v. Volpe, 401 U.S. 402, 415–16 (1971). Courts should 23 “ensure that the agency considered the relevant factors and articulated a rational 24 connection between the facts found and the choices made.” Greater Yellowstone 25 Coal., Inc. v. Servheen, 665 F.3d 1015, 1023 (9th Cir. 2011). 26 [A]n agency rule would be arbitrary and capricious if the agency has 27 relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an 28 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 1 view or the product of agency expertise. 2 3 Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 4 43 (1983)). “Agency decisions deserve the highest deference when the agency is 5 making predictions, within its area of special expertise.” CBD v. Zinke, 900 F.3d 6 1053, 1067 (9th Cir. 2018) (internal quotation marks omitted) (“Zinke”). But even 7 when an agency is operating in a field of its expertise, courts must disapprove agency 8 decisions that lack a “substantial basis in fact,” or in which its “reasoning is irrational, 9 unclear, or not supported by the data it purports to interpret.” Id.; Nw. Coal. for Alts. 10 to Pesticides v. EPA, 544 F.3d 1043, 1052 n.7 (9th Cir. 2008). 11 An agency’s “explanation must be evidenced from the listing decision itself,” 12 although an agency may incorporate a separate, fully-reasoned document by reference. 13 See Haaland, 998 F.3d at 1068 (quoting Zinke, 900 F.3d at 1069). However, an 14 agency may not raise new reasoning or provide new explanations in subsequent 15 briefing; “an agency’s action must be upheld, if at all, on the basis articulated by the 16 agency itself, not post-hoc rationalizations.” Zinke, 900 F.3d at 1069 (quoting 17 Greater Yellowstone, 665 F.3d at 1027 n.4). 18 V. MOTIONS FOR SUMMARY JUDGMENT 19 Guardians moves for summary judgment challenging the 12-Month Finding as 20 arbitrary and capricious and violating the ESA. (GMSJ 1.) It requests that the Court 21 set aside the Service’s finding that the Joshua tree does not warrant listing as 22 threatened under the ESA, and remand to the Service with directions to prepare a new 23 finding that addresses these deficiencies. (Id.) The Service also moves for summary 24 judgment on the basis that the record supports its determination that listing the Joshua 25 tree as threatened is “not warranted.” (SMSJ 1.) 26 Guardians contends the Service did not utilize the best available science as 27 required by the ESA in making its determination because it irrationally disregarded 28 relevant climate models and ignored key scientific findings. More specifically, 1 Guardians argues: (A) the best available science shows the Joshua tree is threatened 2 by climate change, wildfire, habitat loss, low germination, slow growth, and limited 3 capacity to migrate, and the Service disregarded these threats and their cumulative 4 impact; (B) the Service’s finding that YBR is not threatened throughout a “significant 5 portion of its range” is inconsistent with the best available science and therefore 6 contrary to law; and (C) the Service failed to evaluate threat Factor D, which 7 considers whether the lack of existing regulatory mechanisms for addressing climate 8 change threatens the Joshua tree. (See GMSJ.) The Service argues it considered the 9 best available data and concluded none of the threats, individually or in combination, 10 rendered the Joshua tree likely to become in danger of extinction in the foreseeable 11 future, throughout all or a significant portion of its range. (SMSJ 1.) 12 A. Best Available Science 13 The ESA requires the Service to make its listing determinations “solely on the 14 basis of the best scientific and commercial data available” because of any one or a 15 combination of the following five factors: 16 (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, 17 scientific, or educational purposes; (C) disease or predation; (D) the 18 inadequacy of existing regulatory mechanisms; or (E) other natural or 19 manmade factors affecting its continued existence. 20 16 U.S.C. § 1533(a)(1), (b)(1)(A); 50 C.F.R. § 424.11(c). 21 To comply with the ESA’s “best available science” standard, the agency 22 “cannot ignore available biological information [or] studies, even if it disagrees with 23 or discredits them.” Zinke, 900 F.3d at 1060 (quoting San Luis & Delta-Mendota 24 Water Auth. v. Locke, 776 F.3d 971, 995 (9th Cir. 2014)). The agency must 25 “thoroughly evaluate[] and incorporate[] the data” from contrary studies in “making 26 its listing decision.” Kern Cnty. Farm Bur. v. Allen, 450 F.3d 1072, 1081 (9th Cir. 27 2006). The ESA does not require that the data be conclusive or ironclad, Alaska Oil & 28 Gas Ass’n v. Pritzker, 840 F.3d 671, 681 (9th Cir. 2016), and “[e]ven if the available 1 scientific and commercial data were quite inconclusive, [the agency] may—indeed 2 must—still rely on it,” Sw. CBD v. Babbit, 215 F.3d 58, 60 (D.C. Cir. 2000). To the 3 extent there are uncertainties, the agency must “explain why the uncertainty . . . favors 4 not listing” the species. See Zinke, 900 F.3d at 1073. 5 1. Best Available Science—Climate Change 6 The Service found that Joshua trees are not adversely affected by climate 7 change to warrant listing them as threatened. (See SSR6939–40.) Guardians contends 8 this conclusion is contrary to the best available science because every peer-reviewed 9 Species Distribution Model (“SDM”) predicts that climate change will cause 10 substantial, widespread losses of suitable habitat for the Joshua tree. (GMSJ 11–14 11 (discussing five recent, available, sophisticated SDMs showing widespread loss of 12 suitable Joshua tree habitat by the end of the century due to climate change, which the 13 Service did not address).4) Guardians argues the Service disregarded these SDMs and 14 other best available science and commercial data without a rational basis. 15 The Service admits it did not consider these SDMs but claims this was because 16 the cited studies focus on specific portions of Joshua trees’ range and could not be 17 reliably extrapolated to the whole range. (SMSJ 9.) The Service argues the lack of 18 range-wide demographic data for Joshua trees prevents it from validating such an 19 extrapolation, making any resulting prediction unreliable. (Id.) The Service also 20 claims it did not use these SDMs because they are based on short-term demographic 21 monitoring, which does not capture the necessary long-term timeframe. (Id. at 9–10.) 22 The Service has discretion to determine what studies and models constitute the 23 best available data. See Zinke, 900 F.3d at 1068. However, these post hoc 24 rationalizations for disregarding the SDMs are not evidenced in the 12-Month 25 Finding, as required. Id. at 1068–69 (explaining that an agency’s reasoning must be 26 evidenced in decision document itself). And although the 12-Month Finding 27 4 The five SDMs discussed are Shafer 2001, Dole 2003, Cole 2011, Barrows 2012, and Sweet 2019. 28 (See GMSJ 11–14; SSA7069–78 (References cited); Compl. ¶ 4 n.2 (citing Sweet 2019); see also AR7509–16 (Barrows 2012), 7965–77 (Cole 2011), 8201–10 (Dole 2003), 16634–48 (Sweet 2019).) 1 incorporates the SSA, the Service’s explanations for disregarding these SDMs are not 2 found there either. In its motion, the Service supports its explanations with citation to 3 various studies found in the AR but does not identify anywhere in the 12-Month 4 Finding or SSA where it considered the SDMs’ contrary data. Indeed, a review of the 5 SSA reveals the Service did not evaluate the SDMs, acknowledge their contrary data, 6 or explain why the Service disregarded this apparently material data. See id. (stating 7 that an agency cannot ignore available material studies, even if it disagrees with them, 8 and must address contrary data). 9 Furthermore, the SSA appears to selectively rely on portions of these studies to 10 support its non-listing determination despite failing to address their contrary findings. 11 For instance, the Service relies on Cole 2011 for its data on historical distribution, 12 seedling survival, and demographics, (SSA6972, 6981, 6989–90), but ignores the rest 13 of that study, including the study’s predictions regarding significant climate-change- 14 driven habitat loss, (see AR7971 (Cole 2011, projecting “severe decline” in 15 climactically suitable habitat by 2070 to 2099, “perhaps to as little as 10% of its 16 current range”)). The Service also appears to rely on Barrows 2012 for its conclusion 17 that potential “climate-change refugia,” or suitable future habitat, will be available, 18 but merely notes without discussion the study’s prediction of a 90% loss in habitat due 19 to climate change. (See SSA7051 (explaining that “finer-scale modelling . . . 20 indicated there may be some areas of climate-change refugia . . . so we assume . . . 21 Joshua trees will continue to persist in these areas”); SSA7001–02, 7014 (noting 22 90% habitat loss without analysis).) Selective reliance like this, without explanation, 23 is arbitrary and capricious. See Zinke, 900 F.3d at 1069 (“By failing to consider the 24 [study’s contrary evidence], [the Service] acted in an arbitrary and capricious 25 manner.”). 26 To support its omission of these studies’ data, the Service also cites one 27 paragraph in the SSA that mentions general criticisms of SDMs. (SMSJ 9 (citing 28 SSA7036 (discussing criticisms of studies from 2003 and 2009)).) As Guardians note, 1 these criticisms mostly predate the studies at issue here. (See GMSJ 14 n.6 (“[T]hese 2 purported critiques pre-date the most sophisticated SDMs by [Cole 2011, 3 Barrows 2012, and Sweet 2019].”).) Regardless, the Service fails to direct the Court 4 to any section of the SSA that discusses the above newly-raised concerns regarding 5 extrapolation or validation and it fails to explain its selective reliance on these studies. 6 (See SMSJ 9–15.) Consequently, the Court finds that the Service selectively relied on 7 beneficial data and failed to consider and evaluate the contrary data in the SDMs or 8 adequately explain, in the SSA or 12-Month Finding, why they were disregarded. In 9 this failure, the Service acted in an arbitrary and capricious manner. See Zinke, 10 900 F.3d at 1069. 11 This is not the Service’s only weakness concerning climate change impacts. In 12 concluding that climate change will not affect Joshua trees at a population- or species- 13 level, the Service relies on speculation and unsupported assumptions. For instance, 14 the Service states as fact that 138ºF is the upper “appropriate temperature range” for 15 the species to survive, (SSA6992), and notes it cannot determine a maximum 16 temperature in an environmental setting, (SSA7037), but still appears to reason, based 17 on the upper temperature range of 138ºF, that the species as a whole will tolerate 18 increased environmental temperatures from climate change, (see SSR6939). To 19 support the 138ºF tolerance level, the Service cites a carbon dioxide laboratory study 20 from 1983 in which detached Joshua tree leaves were placed in hot water for an hour 21 and then examined for heat damage. (SSA6992 (citing Smith 1983, available in the 22 record at AR12833, 12838).) The Service does not explain how leaf cell damage from 23 hot water supports species tolerance at increased environmental temperatures in 24 drought conditions, or how an isolated leaf can be extrapolated to the trees’ or the 25 species’ responses. As the Service fails to articulate a rational connection between the 26 facts and the Service’s conclusion that Joshua trees will be able to survive, reproduce, 27 and persist at 138ºF, the Court finds this conclusion unsupported and, therefore, 28 arbitrary and capricious. See Greater Yellowstone, 665 F.3d at 1023. 1 Another example is the Service’s contention that Joshua trees will be able to 2 migrate to climate refugia when its current habitat contracts. (SMSJ 10–13.) But the 3 study on which the Service relies for its historical distribution also provides that the 4 species has an “extremely limited” capacity to migrate. (AR7973 (Cole 2011).) This 5 study reveals that Joshua trees have migrated, at most, approximately 2m or 6.5ft5 per 6 year over the last 11,700 years, making meaningful migration unlikely. (See id.) 7 Further, the Service fails to acknowledge or consider reports that much of the 8 identified “refugia” has already burned. (See GMSJ 17 (citing AR5127 (National 9 Park Service’s Partner-Review of SSA, which notes “50% of . . . suitable habitat has 10 already been impacted by wildfire”)).) The Service contends its conclusion regarding 11 migration is supported by studies showing: (i) pollinator moths have moved with the 12 trees in the past, (ii) strong seedling recruitment has been found in Joshua Tree 13 National Park, and (iii) increased atmospheric carbon dioxide from climate change 14 may benefit the species’ survival. (See SMSJ 11 (citing AR16058 (moths), AR7515 15 (seedlings), AR19635–44 (carbon dioxide).) None of this explains how a species that 16 is historically “extremely limited” in its ability to migrate will somehow save itself 17 from the projected “massive declines” in suitable habitat before the turn of the 18 century. (See AR5127.) 19 Ultimately, the Service’s conclusion that the Joshua tree will be able to migrate 20 to climate refugia and survive beyond its contracting habitat appears inadequately 21 supported and counter to the data on which it relies. See Zinke, 900 F.3d at 1067 22 (finding arbitrary and capricious the conclusion that a species would be able to 23 migrate to more suitable habitats when it had historically been incapable); Greater 24 Yellowstone, 665 F.3d at 1023 (stating that an agency must articulate a rational 25 connection between the facts found and the conclusions made). 26 For these reasons, the Service’s determination that climate change does not 27 threaten Joshua trees so as to warrant listing is arbitrary and capricious. 28 5 A migration rate of 6.5ft per year permits Joshua trees to migrate about 500 feet by the year 2200. 1 2. Best Available Science—Wildfire 2 The Service concluded that the current and future risk of wildfire does not pose 3 a significant threat to Joshua trees. (See SSR6937–39.) Guardians contends the 4 Service arbitrarily dismissed and downplayed the fire threat from invasive grasses. 5 (See GMSJ 18–21.) Guardians argues the Service underrepresented the threat from 6 fire and that the record contradicts the Service’s conclusion that “more frequent, larger 7 fires will only affect” an insignificant portion of the population. (Id. (citing 8 AR14840–41, 14845–50 (Service experts’ findings), AR0956–59 (2017 Rapid 9 Assessment on fire risk), and AR5100–01, 5126–28, 5430–31 (peer- and partner- 10 review reports criticizing the Service’s underrepresentation of fire risk)).) The 11 Service’s conclusions regarding fire threat appear disconnected from the data on 12 which they rely, and therefore underrepresent the threat from fire in several ways. 13 First, regarding invasive grasses, the Service relies on Bureau of Land 14 Management (“BLM”) invasive grass models to evaluate Joshua trees’ future 15 vulnerability to fire. (SSA7033, 7055.) The BLM found that “even trace amounts of 16 invasive grasses can effectively alter the historical fire regime. (AR8070–71 (BLM 17 study) (emphasis added).) Despite this, the Service concluded that invasive grasses 18 would need to be a much higher amount of ground cover—at least 15–25% or even 19 25–45%—to alter the fire regime and create vulnerabilities in Joshua trees. (See 20 SSA7033–35, 7056–57.) The Service also discusses how invasive grasses are 21 accelerating and fueling larger and more severe wildfires. (See SSA7049, 7055.) Yet, 22 it then concludes the fire threat is limited because the Service expects the historical 23 trend of infrequent fire recurrence to continue in the coming century. (See 24 SSA7055–57 (discussing a 300–500 year fire frequency historical trend).) The Court 25 recognizes that acceleration of fire threat is not necessarily inconsistent with 26 maintenance of historical fire frequency, but the Service fails to explain how the fire 27 threat can be both accelerating and maintaining its return frequency. These 28 conclusions do not follow from the data on which they purport to rely and the 1 Service’s failure to explain its reasoning on these points precludes “meaningful 2 judicial review.” See Zinke, 900 F.3d at 1069. 3 Another apparent contradiction concerns the Service’s conclusions of Joshua 4 trees’ fire resiliency. The Service expressly finds that Joshua trees “are generally not 5 well adapted to fires, with resulting high mortality rates, particularly those plants in 6 smaller size classes.” (See SSA6999–7000 (“[T]he high mortality recorded in this 7 study is consistent with high mortality documented in other studies, including 8 90 percent mortality 6 years after a fire in Joshua Tree National Park and 9 64–95 percent mortality . . . between 1–47 years after” other California fires).) At the 10 same time, the Service contends that Joshua trees have shown “fire resiliency” by 11 resprouting in burned areas and that adult trees can “quickly re-establish” after a fire. 12 (DMSJ 15.) The study on which the Services relies does not actually go this far; 13 rather, in considering adult trees “that sprout after burn injury,” it finds those trees 14 “are able to quickly reestablish as reproductive adults.” (See AR8197 15 (DeFalco 2010).)6) The Service does not discuss what ratio of adult trees are likely to 16 sprout after burn injury compared to those that will not, nor does it explain how the 17 documented high mortality rate figures into that ratio. Thus, the “reasoning is . . . not 18 supported by the data it purports to interpret.” See Nw. Coal., 544 F.3d at 1052 n.7. 19 The Service contends that fire threat studies are complex and often conflicting 20 so the Court should defer to the Service. (S.Opp’n 16–17.) The Court acknowledges 21 that numerous complex studies inform the Service’s non-listing decision and the Court 22 does not substitute its own judgment for the Service’s. However, the Court may not 23 defer to the Service when, as is the case here, its conclusion does not follow from the 24 cited facts, nor may the Court supply a reasoned explanation when the Service has not 25 provided one. See Nw. Coal., 544 F.3d at 1048, 1052 n.7. 26 27
28 6 Notably, the Service criticizes Guardians for extending the DeFalco 2010 study beyond its data. (See DMSJ 15–16.) 1 As the Service fails to articulate a rational connection between its fire threat 2 conclusions and the data on which it purports to rely, the Court find its conclusions 3 arbitrary and capricious. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (stating that 4 an agency’s determination is arbitrary and unlawful when it fails to articulate a 5 rational connection between the record and the decision). 6 B. YBR—Significant Portion of Range 7 “A species is . . . threatened if it is ‘likely to become an endangered species 8 within the foreseeable future throughout all or a significant portion of its range.’” 9 Haaland, 998 F.3d at 1063. The Service identified “biologically significant” threats to 10 the western portion of YBR’s southern population7 from wildfire and habitat loss due 11 to urban development. (SMSJ 6–7 (citing SSR6951–52).) However, the Service 12 concluded that this area of concentrated threats “is not significant” and therefore YBR 13 “is not in danger of extinction or likely to become so” in “any significant portion of its 14 range.” (SSR6952.) 15 The Service created two predictive increased-temperature scenarios to 16 determine future threats to the species in a given range. The first scenario (Scenario I) 17 utilized an increase of 1–2ºC, generally, and the second (Scenario II) utilized an 18 increase of 3ºC, generally. (SSA7041.) In YBR’s southern population (“YBR 19 South”), Scenario I resulted in a 21.7% loss of suitable habitat; Scenario II resulted in 20 a 41.6% loss. (SSA7047.) This represents 13.8% and 26.3% of the total range, 21 respectively. (Id.) The Service explains it found this loss insignificant because, 22 although it will occur throughout an area of approximately 3.7 million acres, the 23 biologically significant threat from wildfire and urban development would occur only 24 at the perimeter. (SMSJ 24–25 (citing SSA7001, 7050; SSR6952).) These 25 explanations are rationally connected to the underlying data and found in the SSA. 26 Although the Court finds it difficult to accept that a 41.6% loss of southern range 27
28 7 The Service divided the range into six regions, with YBR classified as either “North” or “South.” (See SSA6975.) 1 habitat can be “insignificant,” the Service has reasonably explained how it reached 2 this conclusion and the Court will not substitute its judgment. 3 However, the Service also asserts this 41.6% loss is “no[t] significant” because 4 it is not a “complete[] loss,” as the species will continue, “albeit at lower densities.” 5 (S.Opp’n 20–21 (citing SSA7050–52).) But listing a species as threatened does not 6 require a complete loss: “The Service need not wait until a species’ habitat is 7 destroyed to determine that habitat loss” may endanger the species. Alaska Oil, 8 840 F.3d at 683. Therefore, to the extent the Service rests its finding on the absence 9 of a “complete loss,” the Court finds its conclusion not in accordance with established 10 law. See id. at 683–84. 11 Finally, and most critically here, when the Service disregarded the SDMs 12 discussed above, it also ignored those studies’ forecasted habitat decline, including 13 projected habitat loss in YBR South. (See GMSJ 23–25.) Several of those studies 14 projected the nearly complete loss of YBR South by the end of the century. (See 15 G.Opp’n 23 (discussing the 90 to 99.8% projected loss of YBR South habitat in 16 Cole 2011, Barrows 2012, and Sweet 2019).) As the Service failed to address the 17 SDMs’ significant projected habitat loss, it also necessarily failed to rationally explain 18 whether that loss constituted a “significant portion of the range.” 19 The Service failed to consider the SDMs or explain why they were disregarded, 20 and this failure renders the Service’s conclusion that YBR is not threatened 21 throughout a significant portion of its range arbitrary and capricious. 22 C. Factor (D)—Existing Regulatory Mechanisms 23 The Service must make its listing determinations based on any one or 24 combination of the five threat factors, the fourth of which is “(D) the inadequacy of 25 existing regulatory mechanisms.” 16 U.S.C. § 1533(a)(1)(D). 26 Guardians argues the Service must evaluate Factor D independently, and that 27 the Service failed to consider the threat posed to Joshua trees from inadequate existing 28 regulatory mechanisms addressing climate change. (GMSJ 25.) The Service contends 1 it considered existing regulatory mechanisms and that “existing regulations can only 2 be inadequate where they are insufficient to militate a species’[s] slide to extinction.” 3 (SMSJ 21–22.) Because the Service concludes Joshua trees are not sliding into 4 extinction, it contends existing regulatory mechanisms necessarily cannot be 5 inadequate. (SMSJ 20–22; S.Opp’n 22.) 6 Regardless of which interpretation of Factor D is correct, the Service did 7 consider existing regulatory mechanisms and protecting Joshua trees. (See 8 SSR6942–43; SSA7006–07.) The regulatory mechanisms include federal, state, and 9 local protections, and nothing suggests the Service’s conclusion that these 10 mechanisms are acting as intended is unreasonable. Still, Guardians is correct that 11 none of the regulations cited pertains specifically to climate change. (See id.) In any 12 event, the Service’s conclusion that existing regulatory mechanisms are adequate is 13 premised on its determination that threats to Joshua trees do not warrant its listing. As 14 discussed above, the Court finds this determination arbitrary and capricious and 15 therefore remands for reconsideration. On remand, the Service should consider the 16 adequacy of existing regulatory mechanisms pertaining to climate change. 17 D. Conclusion—Motions for Summary Judgment 18 In summary, the Court GRANTS Guardians’s Motion for Summary Judgment, 19 DENIES the Service’s Motion for Summary Judgment, sets aside the Service’s 20 12-Month Finding as arbitrary, capricious, and contrary to the ESA, and remands to 21 the Service for reconsideration in light of the foregoing. Specifically, the Court finds: 22 (i) the Service’s climate change conclusions are arbitrary and capricious because the Service disregarded material data (the SDMs) and failed to 23 explain why; 24 (ii) the Service’s findings regarding threats posed by climate change and wildfire are unsupported, speculative, or irrational; and 25 (iii) the Service’s conclusion that Joshua trees are not threatened in a 26 significant portion of their range is arbitrary and capricious. 27 The Court need not and does not determine whether Factor D must be 28 considered independently or may be considered in conjunction with other statutory 1 factors. Nevertheless, on remand, the Service should consider the adequacy of 2 existing regulatory mechanisms regarding climate change. 3 VI. AMICUS MOTION 4 Proposed Amicus QuadState moves for leave to file an amicus brief in support 5 of the Service’s Motion for Summary Judgment. (See Mot.) It attached its proposed 6 brief to its Motion. (See Proposed Amicus Br., ECF No. 47-2.) QuadState is an 7 interstate joint powers organization representing the interests of its seven local 8 government and one city members throughout the range and distribution of the Joshua 9 tree. (Mot. 2). QuadState asserts it has an interest here because setting aside the 10 12-Month Finding—and presumably the potential listing of the Joshua tree as 11 threatened—would impede its members’ ability to provide public services and would 12 require them to expend scarce resources. (Id. at 3.) Quadstate’s Motion is unopposed. 13 “The district court has broad discretion to appoint amici curiae.” Hoptowit v. 14 Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v. 15 Conner, 515 U.S. 472 (1995). “There are no strict prerequisites that must be 16 established prior to qualifying for amicus status; an individual seeking to appear as 17 amicus must merely make a showing that his participation is useful to or otherwise 18 desirable to the court.” In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal. 19 1991) (citation omitted). Courts have granted amicus status “when the amicus has 20 unique information or perspective that can help the court beyond the help that the 21 lawyers for the parties are able to provide.” Cmty. Ass’n for Restoration of Env’t v. 22 DeRuyter Bros. Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999) (citing Miller-Wohl 23 Co. v. Comm’r of Labor & Indus., 694 F.2d 203, 204 (9th Cir. 1982)). Although some 24 courts disfavor amicus participation, this Court has generally found it preferable to err 25 on the side of permitting such briefs. See Duronslet v. County of Los Angeles, 26 No. 2:16-cv-08933-ODW (PLAx), 2017 WL 5643144, at *1 (C.D. Cal. Jan. 23, 2017). 27 The majority of QuadState’s members “own public lands that are within the 28 range of the Joshua tree.” (Mot. 2.) QuadState maintains that the existing parties to 1 || this litigation do not adequately represent the interest of local governments, which is 2 | to ensure local governments “retain authority to continue providing essential services 3 || to [their] constituents.” (/d. at 8.) QuadState members’ interests may be affected by a 4 || decision in this case as local governments often bear the burden of managing natural 5 || resources within their jurisdictions. QuadState members are also responsible for 6 || ensuring compliance within those jurisdictions of any regulations imposed related to 7 || an ESA listing. They therefore have interests that may be affected by the outcome of 8 | the Court’s decision in this case and a unique perspective beyond those of the parties. 9 Accordingly, QuadState’s Motion for Leave to File an Amicus Brief is 10 || GRANTED. (ECF No. 47.) The Court has considered the proposed brief to the 11 || extent found useful. 12 Vil. CONCLUSION 13 For the reasons discussed above, the Court GRANTS Guardians’s Motion for Summary Judgment, (ECF No. 42), DENIES the Service’s Motion for Summary 15 || Judgment, (ECF No. 46), and GRANTS QuadState’s Motion for Leave to File an 16 || Amicus Brief, (ECF No. 47.) The Court SETS ASIDE the Service’s 12-Month 17 || Finding as arbitrary, capricious, and contrary to the ESA, and REMANDS to the 18 || Service for reconsideration pursuant to the above. 19 20 IT IS SO ORDERED. 21 22 September 20, 2021 23 “Sols a 24 GEA. eee 5 OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE
27 28