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Environmental Law

: ESA Blawg

Ninth Circuit opinion (unpublished) tackles analysis of troublesome ESA provisions in cutthroat trout case

By Keith Rizzardi

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Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 06-35080, D.C. No. CV-05-00165-KI (9th Cir. April 18, 2008)

In an unpublished opinion, the Ninth Circuit affirmed in part, reversed in part, and remanded a District Court order upholding a decision by the U.S Fish and Wildlife Service not to designate the Southwestern Washington/Columbia River (“SWW/CR”) Distinct Population Segment (“DPS”) of the Coastal Cutthroat Trout (“CCT”) as threatened under the Endangered Species Act (“ESA”), 16 U.S.C. зз1531–1544.

EXCERPTS:

Distinct Population Segment analysis upheld

Upon review of the record, we are satisfied that FWS’s determination that this DPS of the CCT is not threatened in the LCR was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. з 706(2)(A); see also Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007)... while FWS’s decision lacks perfect clarity at some points, overall it did consider the evidence before it and the required factors and determined that the DPS is not threatened in the LCR as such. A mere lack of “‘ideal clarity’” is not sufficient to cause us to overturn FWS’s actions where, as here, “‘the agency’s path may reasonably be discerned.’” Beno v. Shalala, 30 F.3d 1057, 1073–74 (9th Cir. 1994)

Significant Portion of the Range analysis remanded

In contrast, the FWS did not properly consider whether the estuary and other marine areas constitute a significant portion of the range of this DPS... because the agency’s own reasoning recognizes the danger to the estuary and marine areas and the importance of those areas, FWS was required to consider whether those areas constituted a significant portion of the range. See Defenders of Wildlife v. Norton, 258 F.3d 1136, 1145 (9th Cir. 2001). Although the agency now argues that the areas are not a significant portion, we can only consider what the agency did, not what it could have done. Thus, the appropriate analysis had to be made in the agency’s decision. Its absence makes the ultimate decision arbitrary, and requires us to remand.

COMMENTARY:

ESA can allow listing of the distinct population segment of a subspecies

In a footnote, the Ninth Circuit also addressed an issue repeatedly raised by intervenors from the building industry association. Specifically, the Court held that "We have not overlooked BIAW’s assertion that the ESA does not authorize listing of a DPS of a subspecies. However, FWS has interpreted the ambiguous language of 16 U.S.C. з 1532(16) to allow just such a listing. See Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722, 4724 (Feb. 7, 1996). Because that is a permissible construction of the statute, we must accord it deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–45 (1984); Nw. Ecosystem Alliance, 475 F.3d at 1143. Thus, we reject BIAW’s attack."

Also disappointing, this important Ninth Circuit holding is not even acknowledged on the Court's own webpages. Some parties continue to get less justice than others. See also, ESAblawg re: unpublished caselaw.