Center For Biological Diversity et al v. Jewell et al

MOTION for Summary Judgment

D. Colo.August 11, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric R. Glitzenstein (D.C. Bar No. 358287) (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 4115 Wisconsin Avenue, N.W., Suite 210 Washington, DC 20016 Telephone: (202) 588-5206 Facsimile: (202) 588-5049 eglitzenstein@meyerglitz.com William S. Eubanks II (D.C. Bar No. 987036 (admitted pro hac vice_ MEYER GLITZENSTEIN & EUBANKS LLP 245 Cajetan Street Fort Collins, CO 80524 Telephone: (970) 703-6060 Facsimile: (202) 588-5049 beubanks@meyerglitz.com Attorneys for Plaintiffs IN THE UNITED STATES DISRICT COURT FOR THE DISTRICT OF ARIZONA _____________________________________________ ) CENTER FOR BIOLOGICAL DIVERSITY, ) DEFENDERS OF WILDLIFE, ) ) Plaintiffs, ) No. 4:14-cv-02506-RM ) v. ) PLAINTIFFS’ MOTION ) FOR SUMMARY ) JUDGMENT Sally JEWELL, Secretary, U.S. Department of the ) Interior, Daniel M. ASHE, Director, U.S. Fish & ) Wildlife Service, ) ) Defendants. ) ) Plaintiffs hereby move for summary judgment with regard to the two interrelated agency actions that have been challenged by Plaintiffs on the grounds that they violate the Endangered Species Act, 16 U.S.C. § 1532 et seq. (“ESA”), and are otherwise arbitrary and capricious, in contravention of the Administrative Procedure Act, 5 U.S.C. § 706(2). As set forth in the accompanying memorandum, Plaintiffs are entitled to judgment that Federal Defendants’ refusal to list the cactus ferruginous pygmy-owl (“pygmy-owl”) as a threatened or endangered species, notwithstanding the FWS’s finding that the species is in fact gravely imperiled in an “important portion” of its Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 1 of 46 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 remaining habitat in Arizona and Sonora, Mexico, is unlawful, and otherwise arbitrary and capricious. See 12-Month Finding on a Petition to List the Cactus Ferruginous Pygmy Owl as Threatened or Endangered with Critical Habitat, 76 Fed. Reg. 61,856 (October 5, 2011). In addition, Plaintiffs are entitled to judgment that the “Final Policy” issued by the U.S. Fish and Wildlife Service construing the phrase “significant portion of its range” in the ESA’s definitions of endangered and threatened species, which provide that a species must be listed if it is “in danger of extinction” or “likely to become” endangered “throughout all or a significant portion of its range,” 16 U.S.C. §§ 532(6), (20) (emphasis added), is unlawful, and otherwise arbitrary and capricious, including because the Policy effectively reads the phrase “significant portion of its range” out of the statute in the manner that the Ninth Circuit held to be unlawful in Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001); see 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,’ 79 Fed. Reg. 37,578 (July 1, 2014). In support of this motion, Plaintiffs are filing the accompanying memorandum of law, which is based on the administrative records underlying the two agency actions under review, several standing Declarations (Exhibits A-D), a Statement of Material Facts, and a Proposed Order. Respectfully submitted, /s/ Eric R. Glitzenstein Eric R. Glitzenstein D.C. Bar No. 358287 (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 4115 Wisconsin Avenue, N.W., Suite 210 Washington, DC 20016 Telephone: (202) 588-5206 Facsimile: (202) 588-5049 eglitzenstein@meyerglitz.com /s/ William S. Eubanks II William S. Eubanks II D.C. Bar No. 987036 (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 2 of 46 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 245 Cajetan Street, Fort Collins, CO 80524 Telephone: (970) 703-6060 Facsimile: (202) 588-5049 beubanks@meyerglitz.com Attorneys for Plaintiffs Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 3 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric R. Glitzenstein (D.C. Bar No. 358287) (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 4115 Wisconsin Avenue, N.W., Suite 210 Washington, DC 20016 Telephone: (202) 588-5206 Facsimile: (202) 588-5049 eglitzenstein@meyerglitz.com William S. Eubanks II (D.C. Bar No. 987036 (admitted pro hac vice_ MEYER GLITZENSTEIN & EUBANKS LLP 245 Cajetan Street Fort Collins, CO 80524 Telephone: (970) 703-6060 Facsimile: (202) 588-5049 beubanks@meyerglitz.com Attorneys for Plaintiffs IN THE UNITED STATES DISRICT COURT FOR THE DISTRICT OF ARIZONA _____________________________________________ ) CENTER FOR BIOLOGICAL DIVERSITY, ) DEFENDERS OF WILDLIFE, ) ) Plaintiffs, ) No. 4:14-cv-02506-RM ) v. ) MEMORANDUM IN ) SUPPORT OF PLAINTIFFS’ ) MOTION FOR ) SUMMARY JUDGMENT Sally JEWELL, Secretary, U.S. Department of the ) Interior, Daniel M. ASHE, Director, U.S. Fish & ) Wildlife Service, ) ) Defendants. ) ) Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 4 of 46 i TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................................. iii INTRODUCTION ............................................................................................................... 1 BACKGROUND ................................................................................................................. 2 I. STATUTORY AND REGULATORY FRAMEWORK .................................... 2 II. FACTS GIVING RISE TO PLAINTIFFS’ CLAIMS ........................................ 4 A. The FWS’s Refusal To List The Pygmy-Owl ............................................... 4 1. Plaintiffs’ Petition To List The Pygmy-Owl ................................ 4 2. The FWS’s Draft Finding Listing The Pygmy-Owl ..................... 6 3. The FWS’s Reversal Of Position On Listing The Pygmy-Owl Based On Defendants’ New Interpretation of SPR ...................... 9 B. Defendants’ “Final Policy” Reads The SPR Phrase Out Of The ESA In The Same Manner As The FWS’s Refusal To List The Pygmy-Owl ......... 14 1. The Ninth Circuit’s Analysis And The 2007 “M-Opinion” ....... 14 2. The FWS’s Final Policy Defining SPR In A Manner That Deprives The Phrase Of Any Independent Meaning .................. 17 ARGUMENT ..................................................................................................................... 22 I. STANDARD OF REVIEW .............................................................................. 22 II. THE FWS’S DETERMINATION THAT A CONCEDEDLY “IMPORTANT” PORTION OF THE PYGMY OWL’S RANGE IS NOT A “SIGNIFICANT” PORTION VIOLATES THE PLAIN LANGUAGE OF THE ESA, UNDERMINES THE CONSERVATION PURPOSES OF THE ACT, AND IS OTHERWISE ARBITRARY AND CAPRICIOUS .................................... 23 A. The Definition Of SPR In The Pygmy-Owl Finding Is Not Entitled To Chevron Deference ..................................................................................... 24 B. Irrespective Of Any Application Of Chevron Deference, The SPR Interpretation Applied To The Pygmy-Owl Cannot Be Sustained ............. 26 Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 5 of 46 ii III. AS WITH THE PYGMY-OWL FINDING, THE APPROACH ADOPTED IN THE FINAL POLICY RENDERS THE SPR LANGUAGE SUPERFLUOUS, CONTRAVENES NINTH CIRCUIT PRECEDENT, AND IS OTHERWISE CONTRARY TO LAW AND ARBITRARY AND CAPRICIOUS ................ 30 CONCLUSION ................................................................................................................. 35 Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 6 of 46 iii TABLE OF AUTHORITIES CASES Brown v. United States, 327 F.3d 1198 (D.C. Cir. 2003) .................................................................................... 26 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ......................................................................................... 22, 23, 31 Cuevas-Gasper v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) ...................................................................................... 26 Defenders of Wildlife v. Babbitt, 958 F. Supp. 670 (D.D.C. 1997) ................................................................................... 34 Defenders of Wildlife v. Norton, 239 F. Supp. 2d 9 (D.D.C. 2002) .................................................................................. 33 Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001) .................................................... 2, 13, 14, 18, 31, 32, 33 Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010) ........................................................................ 17 Defenders of Wildlife v. U.S. Dep’t of Interior, 354 F. Supp. 2d 1156 (D. Or. 2005) ............................................................................. 32 Encino Motors, LLC v. Navarro, 579 U.S. ___, 136 S. Ct. 2117 (2016) .............................................................. 23, 24, 25 Envtl. Def. Ctr., Inc v. U.S EPA, 344 F.3d 832 (9th Cir. 2001) ........................................................................................ 30 Natural Resources Def. Council v. EPA, 526 F.3d 591 (9th Cir. 2008) .................................................................................. 23, 24 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ............................................................................................... 22, 35 Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) ...................................................................................... 27 Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 7 of 46 iv INS v. Cardozo-Fonseca, 480 U.S. 421 (1987) ..................................................................................................... 23 Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ................................................................................................. 22, 35 Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835 (9th Cir. 2003) .................................................................................. 26, 30 Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Serv., 545 U.S. 967 (2005) ..................................................................................................... 31 Na. Res. Def. Council v. Nat’l Marine Fisheries Serv., 421 F.3d 872 (9th Cir. 2005) ............................................................................ 26, 27, 28 Nat. Res. Def. Council, Inc. v. Pritzker, No. 14-16375, 2016 WL 3854207 (9th Cir. July 15, 2016) ......................................... 30 Nat’l Wildlife Fed’n v. Norton, 386 F. Supp. 2d 553 (D. Vt. 2005) ............................................................................... 32 Occidental Eng’g Co. v. INS, 753 F.2d 766 (9th Cir. 1985) .......................................................................................... 4 Pac. N.W. Generating Coop. v. Dep’t of Energy, 580 F.3d 792 (9th Cir. 2009) .................................................................................. 23, 25 Skidmore v. Swift & Co., 323 U.S. 134 (1944) ..................................................................................................... 26 State of Hawaii v. FEMA, 294 F.3d 1152 (9th Cir. 2002) ...................................................................................... 27 Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) ............................................................................................... 27, 28 United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544 (1966) ............................................................................................... 14, 15 Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 8 of 46 v Valenzuala Gallardo v. Lynch, 818 F.3d 808 (9th Cir. 2016) ........................................................................................ 22 Whitman v. Am. Trucking Ass’n, Inc., 531 U.S. 457 (2001) ..................................................................................................... 22 WildEarth Guardians v. Jewell, 134 F. Supp. 3d 1182 (D. Ariz. 2015) .......................................................................... 25 WildEarth Guardians v. Salazar, 2010 U.S. Dist. Lexis 105253 (D. Ariz. Sept. 30, 2010) ............................................... 17 STATUTES 5 U.S.C. § 706(2) ........................................................................................................... 1, 21 16 U.S.C. § 1531 ................................................................................................................. 4 16 U.S.C. § 1531(a)(5) ...................................................................................................... 16 16 U.S.C. § 1531(a) ................................................................................................. 2, 28, 29 16 U.S.C. § 1532 ................................................................................................................. 3 16 U.S.C. § 1532(6) ......................................................................................................... 1, 3 16 U.S.C. § 1532(16) ........................................................................................................... 3 16 U.S.C. § 1532(19) ........................................................................................................... 4 16 U.S.C. § 1533(b)(1)(A) .................................................................................................. 3 REGULATIONS 50 C.F.R. § 17.32 ................................................................................................................. 4 Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 9 of 46 vi FEDERAL REGISTER NOTICES 61 Fed. Reg. 4722 (Feb. 7, 1996) .................................................................................. 3, 30 62 Fed. Reg. 10740 (Mar. 10, 1997) ................................................................................... 5 71 Fed. Reg. 19,452 (Apr. 14, 2006) ................................................................................... 5 73 Fed. Reg. 31,418 (June 2, 2008) ..................................................................................... 5 73 Fed. Reg. 6675 (Feb. 8, 2008) ...................................................................................... 35 74 Fed. Reg. 56,766 (Nov. 3, 2009) .................................................................................. 34 76 Fed. Reg. 61,856 (October 5, 2011) .................................. 1, 4, 11-13, 18, 24, 26-31, 33 Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 10 of 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION This case concerns one of Arizona’s most extraordinary and extraordinarily vulnerable animals – the cactus ferruginous pygmy-owl (“pygmy-owl”) – and Federal Defendants’ unlawful and arbitrary decision to allow the species to be extinguished in Arizona and adjoining habitat in Mexico, notwithstanding the overriding policy of the Endangered Species Act (“ESA” or “Act”), 16 U.S.C. §§ 1531-44, that species such as the pygmy-owl “are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people,” id. § 1531(a)(3), and hence should be conserved rather than consigned to the scrap heap of history. The ESA provides that the U.S. Department of the Interior (“DOI”) and the U.S. Fish and Wildlife Service (“FWS” or “Service”) must list and afford federal protection to a “species” if it is found to be either “endangered” or threatened throughout “all or a significant portion of its range.” Id. §§ 1532(6) (definition of “endangered species”) (emphasis added), 1532(20) (definition of “threatened species”) (emphasis added). Yet despite finding that the pygmy-owl is at grave risk from multiple threats in an “important portion” of its range – the “Sonoran Desert Ecoregion” – and that the species’ overall ability to “adapt to impacts from climate change may be substantially reduced” if this crucial portion of the range is lost, the FWS has nonetheless determined that the area in which the pygmy-owl is imperiled does not constitute a “significant portion of its range,” and hence that the species is entitled to no protection whatsoever under the ESA. See 76 Fed. Reg. 61,856, 61,878, 61,893 (October 5, 2011). As explained below, the Service’s counterintuitive finding that an admittedly “important portion” of the pygmy-owl’s range is nevertheless not a “significant portion” for purposes of an ESA listing determination violates the plain language and patent purpose of the ESA, and is “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law,” in contravention of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2). In addition to challenging the Service’s refusal to list the pygmy-owl, Plaintiffs are also challenging Defendants’ recently adopted “Policy,” which construes the phrase Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 11 of 46 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “significant portion of its range” (hereafter sometimes referred to as “SPR”) in a manner that flagrantly violates the ESA and that, as illustrated by the pygmy-owl decision, invariably leads to bizarre results in which admittedly “important” portions of a species’ range are somehow deemed non-“significant,” and in which species that Congress has determined to be of incalculable “value to the Nation and its people,” 16 U.S.C. § 1531(a)(3), are afforded no value whatsoever merely because they may exist elsewhere. See 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,” 79 Fed. Reg. 37,578 (July 1, 2014) (“Final Policy”). As discussed below, the Final Policy adopts an interpretation that is not only contrary to the plain language and conservation purposes of the ESA, but effectively reads the SPR phrase out of the Act entirely, in derogation of basic precepts of statutory construction and the Ninth Circuit’s application of them to the very statutory phrase at issue here. See Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001) (“Defenders”). Accordingly, the Court must vacate the “Final Policy,” as well as the decision refusing to list the pygmy-owl. BACKGROUND I. STATUTORY AND REGULATORY FRAMEWORK In enacting the ESA, Congress found that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation,” that other such species “have been so depleted in numbers that they are in danger of or threatened with extinction,” and that these species “are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” 16 U.S.C. §§ 1531(a)(1)-(3) (emphasis added). Congress further found that “develop[ing] and maintain[ing] conservation programs which meet national and international standards is a key to meeting the Nation’s international commitments” to protect “migratory bird[s]” and other wildlife, and to “better safeguarding, for the benefit of all citizens, the Nation’s heritage in fish, wildlife, and plants.” Id. §§ 1531(a)(4), (5) (emphasis added). In light of Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 12 of 46 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 these Congressional findings, the purposes of the Act are to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved” and to “provide a program for the conservation of such endangered species and threatened species . . . .” Id. § 1531(b). The ESA defines a “species” to “include[] any subspecies of fish or wildlife or plants, and any distinct population segment [“DPS”] of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16). In evaluating whether a “DPS” qualifies as a “species,” the FWS has adopted a policy that analyzes the “[d]iscreteness of the population segment in relation to the remainder of the species to which it belongs,” and the “significance of the population segment to the species to which it belongs.” 61 Fed. Reg. 4722, 4725 (Feb. 7, 1996). An “endangered species” is any species as defined by the Act – i.e., whether a full species, subspecies, or DPS – “which is in danger of extinction throughout all or a significant portion of its range,” 16 U.S.C. § 1532(6) (emphasis added), and a “threatened species” is one that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20) (emphasis added). The FWS must determine, based “solely” on the “best scientific and commercial data available,” 16 U.S.C. § 1533(b)(1)(A), “whether any species is an endangered species or a threatened species because of any of” five factors, including the “present or threatened destruction, modification, or curtailment of its range,” the “inadequacy of existing regulatory mechanisms,” or “other natural or manmade factors affecting its continued existence.” Id. § 1533(a)(1). Any “interested person” may petition for listing of a species and, in response to such a petition that “present[s] substantial information indicating that the petitioned action may be warranted,” id. § 1533(b)(3)(A), the Service must, within twelve months, make a final determination of whether listing is “warranted.” Id. § 1533(b)(3)(B). Any “negative finding” is “subject to judicial review” under the Act’s citizen suit provision. Id. § 1533(b)(3)(C)(ii); id. § 1540(g). Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 13 of 46 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A species that is listed as endangered or threatened receives substantial protections under the ESA. The species’ “critical habitat” – the habitat needed for its “conservation,” i.e., recovery – must be designated, see 16 U.S.C. §§ 1532(3), (5)(A); id. § 1533(a)(3)(A), and all federal agencies must, in consultation with the FWS, “insure that any action authorized, funded, or carried out by such agency [] is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined . . . to be critical . . . .” Id. § 1536(a)(2). In addition, the Act and implementing regulations broadly prohibit the “take” of any species that has been listed as endangered or threatened. Id. § 1538(a); 50 C.F.R. § 17.32; see also 16 U.S.C. § 1532(19) (defining “take” to include “harass,” “harm,” “kill,” and “wound”). II. FACTS GIVING RISE TO PLAINTIFFS’ CLAIMS1 A. The FWS’s Refusal To List The Pygmy-Owl 1. Plaintiffs’ Petition To List The Pygmy-Owl The pygmy-owl is a tiny diurnal owl, approximately 6.75 inches long, which is generally reddish brown with a cream-colored belly streaked with reddish brown. The crown is streaked and a pair of dark brown or black spots outlined in white appear on its nape suggesting “eyes,” leading to the name “Cuatro Ojos” or four eyes as it is sometimes called in Mexico. Pygmy-owls have large feet and talons relative to their body size. In Arizona and northern Sonora, pygmy-owls are found in Sonoran desertscrub, but were historically found in riparian habitats. 76 Fed. Reg. at 61,862. 1 In a case applying the APA standard of review, a court’s role is not to resolve disputed facts and make de novo factual determinations but, rather, to “determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985). Consequently, such cases are typically decided on cross-motions for summary judgment, which are used to resolve the purely legal question of whether the agency acted lawfully and reasonably in light of the facts in the record. Id. In this case, Defendants have prepared two administrative records – one pertaining to the refusal to list the pygmy-owl, and one relating to the Final Policy. Documents in the former will be cited as “PO” followed by the pertinent page number, and documents in the latter will be cited as “SPR” followed by the page number. Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 14 of 46 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The plaintiff Center for Biological Diversity (“Center”) first petitioned for protection of the pygmy-owl under the ESA in 1992. In response, FWS listed the pygmy-owl as an endangered species in Arizona on the grounds that the Arizona population constituted a DPS that was at risk of extinction and that the pygmy-owl had “declined throughout Arizona to the degree that it is now extremely limited in distribution in the State.” 62 Fed. Reg. 10740 (Mar. 10, 1997). Litigation brought by the intervenor National Association of Homebuilders challenging the listing resulted in a remand of the listing decision on the grounds that the Service had not adequately explained why the Arizona population standing alone constituted a DPS under the FWS’s policy delineating the criteria for DPS designation. The Service subsequently published a final rule removing the pygmy-owl in Arizona from the list of protected species on the sole grounds that it did not qualify as a DPS – a matter that is not at issue in this case. 71 Fed. Reg. 19,452 (Apr. 14, 2006). In 2007, on the basis of new evidence, the Center and Plaintiff Defenders of Wildlife submitted a petition to list the pygmy-owl as endangered or threatened, and requested that the FWS consider not only the gravely imperiled Arizona population but also the greater Sonoran desert population which, the petition explained, is declining due to myriad threats. See PO-89-145. In 2008, the FWS found that the “petition presents substantial scientific or commercial information indicating that listing the pygmy-owl may be warranted.” 73 Fed. Reg. 31,418 (June 2, 2008) (reproduced at PO-78-84). The Service found that the “current distribution of pygmy-owls within Arizona is much reduced when compared to its historical distribution,” and that “[r]ecent data indicate that there are fewer than 50 adult pygmy-owls and fewer than 10 nest sites in Arizona in any given year.” Id. at 31,421. In addition, the Service found that there was “substantial and reliable evidence” that “pygmy-owl populations in Arizona and Sonora, Mexico are declining” and that there are a host of threats to the species and its habitat in that portion of its range. Id. at 31,422-23. As a result, the Service “initiat[ed] a status review to determine whether listing the pygmy-owl under the Act is warranted.” Id. at 31,424. Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 15 of 46 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The FWS’s Draft Finding Listing The Pygmy-Owl In April 2009, after conducting an extensive review of the best available scientific information, and based on the agency-wide listing policy then in effect – which consisted of a March 2007 Interior Department Solicitor’s Memorandum “and associated guidelines,” PO-395; see also SPR-427-62 (M-Opinion); SPR-521-555 (“FWS Draft Guidance Identifying Significant Portions of a Species’ Range Under the [ESA]”) – the FWS Regional Office with jurisdiction over the pygmy-owl prepared a “briefing” for the Director of the FWS stating that FWS’s pygmy-owl experts had “found that the pygmy- owl is threatened within a significant portion of its range . . . defined as the Sonoran Desert Ecoregion, which includes portions of Arizona (U.S.) and the State of Sonora (Mexico).” PO-395 (Briefing for Director from FWS Regional Director, Region 2) (emphasis added). The briefing explained that “[t]hreats impacting the status of the pygmy-owl in this portion of its range include: habitat loss and fragmentation (due to agriculture, invasive species, improper grazing, woodcutting, urbanization, and climate change); lack of adequate management and regulation; and the effects of extremely small population size.” Id. The regional office thus recommended that the pygmy-owl “warrants listing under the Act within a significant portion of its range, the Sonoran Desert Ecoregion.” Id.2 Accordingly, in July 2009, the FWS’s pygmy-owl experts drafted a detailed finding that “listing the pygmy-owl as threatened or endangered within a significant portion of its range in the United States and Mexico (the Sonoran Desert Ecoregion) is warranted under the Act . . . .” PO-580 (emphasis added) (“Warranted Finding”). The Warranted Finding analyzed the threats facing the pygmy-owl throughout its range and concluded that, while the species is neither endangered nor threatened throughout the entirety of its range, the species is in fact endangered or threatened within a “significant 2 As discussed further below, under the FWS listing policy then in effect, a species deemed to be endangered or threatened in a “significant portion” of its range was only afforded ESA protection within that specific portion rather than the entirety of its range. In response to several judicial rulings rejecting that limitation, the FWS has subsequently acknowledged its inconsistency with the ESA, and it is not at issue here. See infra at 16. Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 16 of 46 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 portion of its range” PO-635-48. The Warranted Finding explained that a “significant portion of a species’ range is an area that is important to the conservation of the species because it contributes meaningfully to the representation, resiliency, or redundancy of the species,” and that the “contribution must be at a level such that its loss would result in a decrease in the ability to conserve the species.” PO-635 (emphasis added).3 Applying this standard, the Service biologists focused their analysis on the Sonoran Desert Ecoregion, which has the “greatest diversity and vegetative growth of any desert worldwide” and “shows a concentration and imminency of threats [to the pygmy-owl] that is not being experienced in the remainder of its range.” PO-638; see also PO-343-44, 1454 (maps reflecting the Ecoregion). The Warranted Finding set forth in detail how the Sonoran Desert Ecoregion is extremely important to the conservation of the pygmy-owl, and contributes meaningfully to the resiliency, redundancy, and representation of the species as a whole, including findings by the Service’s pygmy-owl experts that: the “unique characteristics and diversity of the Sonoran Desert Ecoregion provide for diverse, high-quality habitat unique within the overall range of the pygmy- owl,” PO-642; suitable “patches of habitat” within this area “are important in maintaining the metapopulation structure and function within the range of the pygmy-owl,” id.; and 3 The Warranted Finding explained that, in accordance with widely accepted principles of conservation biology, the “terms ‘resiliency,’ ‘redundancy,’ and ‘representation’ are intended to be indicators of the conservation value of portions of the range.” PO-58. Thus, “resiliency of a species allows the species to recover from periodic disturbances,” and a portion of a species’ range may contribute to resiliency because it is important to the “environmental variability found within the range of the species” or because it “contain[s] an important concentration of certain types of habitat that are necessary to for the species to carry out its life-history functions, such as breeding, feeding, migration, dispersal, or wintering.” SPR-636. “Redundancy of populations may be needed to provide a margin of safety for the species to withstand catastrophic events” – such as extreme storms – and the “idea is to conserve enough areas of the range such that random perturbations in the system act on only a few populations” rather than most or even all of them. PO-59. Finally, “[a]dequate representation ensures that the species’ adaptive capabilities are conserved” by maintaining sufficient “genetic diversity of the species” throughout its range, including in a “peripheral population . . . if there is evidence that it provides genetic diversity due to its location at the margin of the species’ habitat requirements.” Id.; see also SPR-521-55 (5/2/08 FWS “Draft Guidance” document explaining how the “significance of an SPR is based on its contribution to the conservation (resiliency, redundancy, and representation) of the listable entity being considered”). Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 17 of 46 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the “population groups of pygmy-owls found in the Sonoran Desert Ecoregion are already adapted to the hotter, drier climate that is likely to become more widespread under current climate change scenarios and, therefore, are likely to become more significant contributors to the long-term viability of this species,” id. (emphasis added).4 Hence, the Warranted Finding concluded that, “[b]ased on the unique characteristics of pygmy-owls within” the Sonoran Desert Ecoregion, “we believe that the loss of this portion would result in a decrease in our ability to conserve the subspecies as a whole,” and that the “pygmy-owl population in this portion of the range is important for long-term survival of the subspecies as a whole due to its substantial contributions to the resiliency, redundancy, and representation” of the species. PO-646- 47 (emphasis added). The FWS pygmy-owl experts further found that the “loss of this portion of the range (15-20 percent of the range geographically, and [with] significant ecological, morphological, and genetic diversity) would move the subspecies towards extinction, decrease the ability to conserve the subspecies, and the status of the subspecies is likely to change in the future as the identified threats throughout the range of the pygmy-owl continue.” PO-647 (emphasis added). In addition to finding the Sonoran Desert Ecosystem “significant,” the FWS biologists found that listing was warranted because much of the Ecosystem has already been “lost or degraded due to urban development, agriculture, woodcutting, invasive species and associated fire, improper grazing drought, OHV use, or border activities” and, in the absence of ESA protection, such “threats and population declines will 4 See also PO-643 (the “demographic characteristics of this population may be important for the species to recover from predicted changes in the ecosystem due to climate change” (emphasis added); id. (when “climate change results in a reduction of the wetter, more tropical habitats to the south, this area, which already provides habitat under hot, dry conditions, may become a refugium for the subspecies” and this “portion of the range is more likely to become a refugium as climate change progresses") (emphasis added); PO-644 (the Sonoran Desert Ecoregion “provide[s] population support for the entire western portion of the range”); PO-645 (the area “supports a large enough proportion of the overall pygmy-owl population to provide support for population recovery in the face of catastrophic events”) (emphasis added); PO-646 (this “portion of the range contributes substantially to the genetic diversity of the entire species” as well as the pygmy-owl’s “adaptive capabilities”) (emphasis added). Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 18 of 46 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 continue into the foreseeable future.” PO-648; PO-649 (the “subspecies faces imminent and high magnitude threats from the present or threatened destruction, modification, or curtailments of its habitat and the inadequacy of existing regulatory mechanisms . . . [t]hese threats are ongoing and, in some cases (e.g., loss of habitat through urban development) considered irreversible”). The Warranted Finding concluded that “the best scientific and commercial information available, as discussed throughout this finding, demonstrate that the Sonoran Desert Ecoregion is a significant portion of the pygmy- owl’s range within which the pygmy-owl is declining, and is affected by ongoing threats . . . . Therefore, we find that listing the pygmy-owl in the Sonoran Desert Ecoregion, a significant portion of its range, is warranted.” PO-648 (emphasis added). In September 2009, the Acting Director of the FWS prepared an “Information Memorandum for the Secretary of the Interior” entitled “Recommended 12-month finding on a petition to relist the cactus ferruginous pygmy-owl,” stating that “[o]ur recommended 12-month finding is that the pygmy-owl warrants threatened status under the [ESA] within a significant portion of its range (Sonoran Desert Ecoregion).” PO-691 (emphasis added). The Acting Director explained that the FWS “found that the pygmy- owl is threatened within a significant portion of its range, defined as the Sonoran Desert Ecoregion,” from “habitat loss and fragmentation” and the “lack of adequate management and regulation.” PO-691 (emphasis added). 3. The FWS’s Reversal of Position On Listing The Pygmy-Owl Based On Defendants’ New Interpretation of SPR Rather than proceed with listing the pygmy-owl, the FWS abruptly reversed course. It did so not on the basis of any new science undercutting the importance of the Sonoran Desert Ecosystem or the dire nature of the threats in that portion of the pygmy- owl’s range, but, rather, because in 2011 the Service devised a new interpretation of the SPR phrase. The new interpretation initially took the form of a “draft SPR policy” that was relied on to deny species such as the pygmy-owl any ESA protection, although the draft policy had yet to be subjected to public notice and comment. PO-765 (4/26/11 Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 19 of 46 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 internal memorandum stating that “we need to use the latest draft SPR policy” in deciding on the pygmy-owl’s listing status); PO-1433 (7/29/11 e-mail stating that “until a final SPR policy is published, we should include the concepts from the draft SPR policy to independently justify our definition of ‘significant’” in all listing decisions). As explained by one of the agency’s pygmy-owl biologists, the “decision question” under the new policy was dramatically different from the one previously posed, i.e., In the current version of the [pygmy-owl finding], we show that the Sonoran Desert Ecoregion meets the criteria for significance based on redundancy, resilience, and representation. I still believe that to be the case. However, under the current draft of the SPR policy, that is not sufficient. We must now look at the remainder of the [pygmy-owl’s] range, outside of the Sonoran Desert Ecoregion, and determine whether, should the Sonoran Desert Ecoregion portion of the [pygmy-owl range] become hypothetically extirpated, the remaining portion be in danger of extinction? PO-767 (emphases added); see also PO-772, 784 (4/11/11 “Draft Policy” explaining that “[i]n making the SPR determination, the [FWS] would conduct a theoretical evaluation of the species’ status without the portion at issue to determine if the species would be endangered range-wide without that portion”) (emphasis added). As set forth in a July 2011 Memorandum from the FWS to the Interior Department Secretary, applying this new “hypothetical extirpation” test resulted in a complete reversal of position from the prior finding that the Sonoran Desert Ecosystem is a “significant portion” of the pygmy-owl’s range for listing purposes. PO-1298.5 The Director explained that “[w]e found that the pygmy-owl is not threatened within a significant portion of its range using the draft significant portion of the range (SPOR) policy currently under review . . . No portion of the pygmy-owl’s range was threatened such that extirpation of that portion of the range would lead to the extinction of the remaining portion of the range.” PO-1299 (emphasis added). 5 The Memorandum is dated July 11, 2010 but, as Defendants’ administrative record index makes clear, the reference to 2010 is a typo. See SPR Index at Doc. 186. Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 20 of 46 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, on October 5, 2011, the FWS published a final determination refusing to list the pygmy-owl as endangered or threatened. See 76 Fed. Reg. 61,856 (PO-2233). In doing so, the Service did not reject the scientific findings by the agency’s pygmy-owl experts that the pygmy-owl is in fact endangered or threatened in the Sonoran Desert Ecoregion. Rather, the final determination reaffirmed the biologists’ determination that “in the Arizona and Sonoran Desert Ecoregion, pygmy-owl habitat loss and fragmentation resulting from urbanization, changing fire regimes due to the invasion of bufflegrass, agricultural development and woodcutting, overgrazing, and border issues have had significant negative impacts on pygmy-owl habitat in these areas and will likely continue to do so in the foreseeable future.” Id. at 61,878. Accordingly, the FWS’s final determination specifically found that the pygmy-owl “may be threatened or endangered” in this portion of the species’ range, id. at 61,891, and, indeed, the determination is replete with dire assessments of the pygmy-owl’s fate in the Sonoran Desert Ecoregion in the absence of ESA protection.6 Nor did the FWS’s final determination refusing to list the pygmy-owl reverse the agency’s biologists’ prior findings that the Sonoran Desert Ecoregion is in fact important to the long-term conservation of the pygmy-owl. To the contrary, the final determination 6 See, e.g., 76 Fed. Reg. at 61,866 (the “best available scientific and commercial information indicates that the impacts to pygmy-owls in the northern portion of their range are severe”); id. at 61,870 (“This elimination of trees, shrubs, and columnar cacti from these areas is a significant negative impact and potentially a threat to the survival of the pygmy-owl in the northern portion of its range, as these vegetation components are necessary for roosting, nesting, protection from predators, and thermal regulation”); id. at 61,871-72 (“conversion of Sonoran desertscrub to nonnative plant pastures composed of bufflegrass and the subsequent change in the fire regime, has resulted in the loss of large areas of pygmy-owl habitat in the northern range of the pygmy-owl, is negatively impacting the remaining areas of pygmy-owl habitat in the Sonoran desert and tropical thornscrub/dry deciduous forest communities of Arizona, Sonora, and northern Sinaloa, and is expected to continue to do so in the foreseeable future”); id. at 61,874 (“In the Sonoyta region of Sonora, an area occupied by pygmy-owls, more than 193,000 ha (478,000 ac) have been affected by deforestation related to charcoal production, brick foundries, tourist crafts, and pasture conversion”); id. at 61,877 (“Within the Sonoran desert, over grazing can result in loss of structural habitat components important to pygmy-owls, as well as reducing prey availability and diversity.”); id. at 61,877 (“Areas occupied by pygmy-owls in Organ Pipe Cactus National Monument [in Arizona] have been abandoned by the owls, likely due, at least in part, to heavy illegal immigrant traffic and associated enforcement actions.”). Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 21 of 46 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 found that the “Sonoran Desert Ecoregion represents an important portion . . . of the taxon as a whole,” 76 Fed. Reg. 61,893 (emphasis added) – i.e., the entire species – as well as an “important portion” of a Western Distinct Population Segment of pygmy-owls (“Western DPS”) that the FWS found could independently qualify for ESA protection as a “species” under the Service’s policy delineating criteria for designating DPSs. Id; see also id. at 61,887-88 (explaining that the western portion of the species’ range qualifies as a DPS because it is “discrete” and “comprises approximately 68 percent of the entire range of the taxon”). In determining that the Sonoran Desert Ecoregion is “important to the conservation” status of the pygmy-owl “as a whole,” as well as in the Western DPS, the FWS’s final determination applied the same principles of “redundancy, resiliency, and representation” that the Service’s pygmy-owl experts applied in the Warranted Finding. In applying those principles, the final determination again stressed the potential importance of the pygmy-owl population in the Sonoran Desert Ecoregion, especially in the face of foreseeable climate change adversely affecting other portions of the species’ range. See 76 Fed. Reg. at 61,891 (“The habitat found in this portion of the range may become increasingly important if the predictions about climate change prove correct. As hotter, drier conditions prevail, this area, which already provides habitat under these conditions, may provide the largest, most contiguous blocks of higher quality habitat if the wetter, more tropical climate habitats [] are reduced due to climate change.”) (emphasis added); id. at 61,892 (“This population group of pygmy-owls is likely to become a more significant contributor to the long-term viability of the species.”).7 7 See also 76 Fed. Reg. at 61,892 (“the Sonoran Desert Ecoregion has unique habitat characteristics and the pygmy-owl in this area possesses some unique behavioral and genetic adaptations to this area”); id. (explaining that the “portion of the Sonoran Desert Ecoregion currently occupied by pygmy-owls represents approximately 33 percent of the Western DPS” and that “this portion of the DPS may provide important contributions to population numbers, genetic diversity, and status of the pygmy-owls within this DPS”); id. at 61,893 (“Loss of this segment of the population might substantially decrease the genetic diversity of the overall DPS to the point that the pygmy-owl may not be able to adapt to what may be the predominant vegetation community under the predicted effects of climate change.”); id. (“The ability of the western DPS to adapt to impacts from climate change may be substantially reduced with Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 22 of 46 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In light of the final determination’s reaffirmation that: (1) the Sonoran Desert Ecoregion is in fact “important” to conservation of the pygmy-owl as a whole, as well as to the Western DPS; and (2) the pygmy-owl is in fact endangered or threatened in the Sonoran Desert Ecoregion, the only justification that the final determination proffered for rejecting listing of the pygmy-owl based on its imperiled status in the Sonoran Desert Ecoregion was that, although admittedly “important,” that portion of the species’ range is not “significant” in view of the FWS’s new, extremely narrow interpretation of the SPR phrase in the ESA’s definitions of endangered and threatened species. The final determination’s paradoxical finding that the Sonoran Desert Ecoregion is “important” and yet not “significant” was based solely on the Service’s finding that the “best available information does not indicate that, under the theoretical removal of the Sonoran Desert Ecoregion from the current range of the pygmy-owl, the remaining portion of the range” for the pygmy-owl as a whole or in the Western DPS “is likely to become extinct” in the foreseeable future. 76 Fed. Reg. at 61,892. While acknowledging that “this definition of ‘significant’ establishes a threshold that is relatively high,” and that the Service could not, in view of the Ninth Circuit’s analysis in Defenders, 258 F.3d at 1152, legally apply a definition that fails to give the “[SPR] phrase independent meaning,” id. at 61,890, the FWS failed to explain exactly how its new approach, either in the abstract or as applied to the pygmy-owl, gives the phrase independent meaning such that a species could be deemed endangered or at least threatened based on its status in a portion of its range without it also being endangered throughout “all” of its range. Nor did the Service explain why the critically endangered status of pygmy-owls in Arizona should not be factored in any manner into the agency’s “significance” determination in light of Congress’s stated desire, in enacting the ESA, to avoid extinctions in the United States because species such as the pygmy-owl are of the theoretical loss of the Sonoran Desert Ecoregion.”); id. (“This loss and fragmentation of habitat, and the influence of climate change on the remaining areas of native habitat, may substantially reduce the availability of pygmy-owl habitat and, consequently, pygmy-owl populations in the foreseeable future.”). Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 23 of 46 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 extraordinary “value to the Nation and its people.” 16 U.S.C. § 1531(a)(3). B. Defendants’ “Final Policy” Reads The SPR Phrase Out of the ESA In The Same Manner As The FWS’s Refusal To List The Pygmy-Owl. 1. The Ninth’s Circuit’s Analysis and the 2007 “M-Opinion” The FWS’s effort to devise a legally sustainable approach to the SPR phrase has had a convoluted history, although one point has remained crystal-clear since the Ninth Circuit’s ruling in Defenders: the FWS may not adopt an approach that has the legally impermissible “effect of rendering the phrase superfluous.” 258 F.3d at 1142. In Defenders, the issue was whether the flat-tailed horned lizard should be listed as endangered or threatened based on the loss and degradation of its habitat on private lands, notwithstanding the fact that the species “remain[ed] viable on public land.” Id. at 1141. The FWS’s position was that listing would only be proper if the lizard’s tenuous status on the private lands was sufficient to find that the “entire species is in danger of extinction, or will be within the foreseeable future.” Id. While recognizing that the SPR phrase is “inherently ambiguous,” the Court of Appeals squarely rejected the FWS’s interpretation as “clash[ing]” with elementary principles of statutory construction, as well as “run[ning] up against the statute’s legislative history.” Defenders, 258 F.3d at 1141-42. As for the statutory language, the Court reasoned that if “the effect of extinction throughout ‘a significant portion of its range’ is the threat of extinction everywhere, then the threat of extinction throughout ‘a significant portion of its range’ is equivalent to the threat of extinction throughout all its range.” Id. at 1142. Because the ESA “already defines ‘endangered species’ as those that are ‘in danger of extinction throughout all . . . of [their] range,’” the Court held that the FWS’s interpretation afforded no independent meaning to the “significant portion of its range language,” and hence violated the fundamental principle of statutory construction that statutory language must be construed in a manner that does not render it “redundant” and that, instead, “‘give[s] effect to all of [the statute’s] provisions.’” Id. (quoting United Food and Commercial Workers Union Local 751 v. Brown Grp., Inc., Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 24 of 46 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 517 U.S. 544, 549 (1966)). The Court further reasoned that the FWS’s “understanding of the statutory language not only clashes with the rule against surplusage” – since, under the Service’s approach, every circumstance in which a species would be listed based on its imperiled status in an SPR would also be listed based on its status in “all” of the species’ range – but also contravenes Congress’s purpose, as reflected in the legislative history, to “provide incremental protection to species in varying degrees of danger,” rather than waiting for the entire species to be on the brink of extinction. Id. at 1142-43. As noted previously, in March 2007, the Solicitor of the Department of the Interior issued an interpretive “Memorandum” to the Director of the FWS regarding the meaning of the SPR language. See M-37013, “The Meaning of ‘In Danger of Extinction Throughout All or a Significant Portion of its Range’” (March 16, 2007) (SPR-427-62) (“M-Opinion). The “M-Opinion,” as it is commonly known, was drafted in large measure in response to the Ninth Circuit’s ruling in Defenders. The M-Opinion responded to the Ninth Circuit’s analysis by determining that the FWS should abandon what the M-Opinion characterized as the “clarification interpretation” rejected in Defenders of Wildlife. See SPR-428-29. The M-Opinion described that as an approach under which the Service “viewed the [SPR] phrase not as providing another ‘substantive standard’ for determining whether a species is an endangered species,” but, rather, as merely “clarifying” how the Service may determine a species to be endangered throughout “all” of its range, i.e., either by finding that the species is presently “in danger of extinction in every portion of its range” or by finding that the “species faces threats in only a portion of its range [that are ] so severe as to threaten the viability of the species throughout its range . . . .” SPR-429 (emphasis added). The M-Opinion agreed with the Ninth Circuit that such an approach impermissibly reads the SPR phrase as “superfluous,” and thus concluded that the FWS “may not . . . define ‘significant’ to require that a species is endangered only if the threats faced by a species in a portion of its range are so severe as to threaten the viability of the species as a whole.” SPR-429, 436 (emphasis added). Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 25 of 46 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Instead, consistent with the Ninth Circuit’s analysis, the M-Opinion construed the SPR language as a “substantive standard” that must afford an independent basis for listing species as endangered or threatened irrespective of whether the threats facing the species in the relevant portion imperil the species as a whole. SPR-429. With respect to how “significance” should be defined, the Opinion explained that the Service “should do so in a way that is consistent with achieving the purposes of the statute,” id., including by considering the “biological importance of that portion of the range” to conservation of the species, as well as the extent to which “various values listed in the Act . . . would be impaired or lost if the species were to become extinct in either that portion of the current range or in the current range as a whole.” SPR-437 (emphasis added). In particular, the M-Opinion stressed the Act’s findings that “species of fish, wildlife, and plants are worthy of conservation because they are of ‘esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people,’” so that the importance of protecting a species’ range in the United States must play a vital role in assessing significance. Id. (emphasis added) (internal quotation omitted). On the other hand, the M-Opinion explained that to read the SPR phase as “requiring that a species be in danger of extinction throughout its entire range before it could be considered ‘endangered’ for purposes of the ESA would severely diminish the Secretary’s ability to achieve one of the primary objectives of the ESA, which is to ‘[safeguard], for the benefit of all citizens, the Nation’s heritage in fish, wildlife, and plants.’” SPR-431 (emphasis added) (quoting 16 U.S.C. § 1531(a)(5)). The FWS subsequently applied the approach in the M-Opinion in “determin[ing] that 5 species were threatened or endangered in a significant portion of their ranges,” SPR-795468, as well as in initially finding that the pygmy-owl should be listed based on its imperiled 8 These species are the “Colorado portion of the range of Preble’s meadow jumping mouse; the Wyoming portion of Northern Rocky Mountain DPS of gray wolf; the montane portion of the range of Gunnison’s prairie dog; the Campbell Plateau portion of the New Zealand/Australia DPS of the southern rockhopper penguin; and the Queen Charlotte Island portion of the British Columbia DPS of Queen Charlotte Goshawk.” SPR-79546. Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 26 of 46 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 status in the Sonoran Desert Ecosystem. See supra at 9-14. In addition to defining SPR in such a manner as to have independent meaning in the statutory scheme, the M-Opinion also addressed the consequences of finding that a species is imperiled in a significant portion, but not all, of its range. The M-Opinion concluded that such a species should be listed and benefit from the ESA’s protections only in that portion of the range where the species is deemed to be endangered or threatened, rather than in the entirety of its range. SPR-443-44. Subsequently, several court decisions rejected that specific feature – and only that feature – of the M-Opinion, holding that if a species is deemed to be endangered or threatened in an SPR, the species must be listed and protected under the ESA throughout its range. See, e.g., Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010); WildEarth Guardians v. Salazar, 2010 U.S. Dist. Lexis 105253 (D. Ariz. Sept. 30, 2010). Neither these nor any other judicial rulings construing the SPR phrase cast any doubt on the feature of the M- Opinion – at issue here – that determined that the phrase must have independent meaning, and that a range portion’s “significance” should be evaluated with reference to the conservation purposes and values of the ESA, including Congress’s objective to conserve imperiled species in the U.S. even if they are more abundant elsewhere. Nonetheless, because “[a]spects of the FWS interpretation were rejected by two courts,” DOI withdrew the M-Opinion in its entirety in May 2011. See SPR-79503 (emphasis added). 2. The FWS’s Final Policy Defining SPR In A Manner That Deprives The Phrase Of Any Independent Meaning. After withdrawing the M-Opinion, DOI and FWS officials devised their newest approach to the SPR proviso and applied it to the pygmy-owl and other species, even before embarking on a notice and comment rulemaking expressly designed to persuade reviewing courts that the interpretation is entitled to “judicial deference.” SPR-33. In December 2011, two months after applying its new interpretation to deny ESA protection for the pygmy-owl, the FWS, along with the National Marine Fisheries Service (which has ESA jurisdiction over most marine species), published a “Draft Policy on Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 27 of 46 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Interpretation of the Phrase [SPR] in the [ESA’s] Definitions of ‘Endangered Species’ and ‘Threatened Species,’” 76 Fed. Reg. 76994 (Dec. 9, 2011) (SPR-1). Consistent with the decision refusing to list the pygmy-owl, the Service set forth an interpretation under which a “portion of the range of a species is ‘significant’” only if its “contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction.” Id. at 76990-91. In proposing to adopt this interpretation as a matter of binding policy, the FWS acknowledged that it was obligated to “give operational effect to the [SPR] language instead of treating it as merely a clarification of the ‘throughout all’ language.” Id. at 76,991. The Service also asserted that it “now agree[d],” id., with the Ninth Circuit’s analysis in Defenders, in which that Court held that the SPR phrase could not be rendered “superfluous,” as would occur if the “effect of extinction throughout ‘a significant portion of its range’” must rise to the level of posing a “threat of extinction everywhere” in the species’ range. Defenders, 258 F.3d at 1141. However, the FWS did not explain how its proposed approach – under which a “significance” finding would depend on whether the entire species “would be in danger of extinction” without the portion, 76 Fed. Reg. at 76,990-91 – actually gives any independent “operational effect” to the SPR language, or how this approach is in any meaningful way distinguishable from the one rejected by the Ninth Circuit. Nor did the FWS make any effort to explain how its approach took into account Congress’s intention, as emphasized in the M-Opinion, not to allow the loss of species in the U.S. merely because they are more abundant elsewhere, although the proposal did assert that the Service’s “significance” determinations “would be the same” as the “period during which FWS implemented the M-opinion,” id. at 77,003 – an assertion disproven by the agency’s reversal of course on the pygmy-owl, to which no mention was made in the proposal.9 9 The FWS also proposed that, in contrast to the M-Opinion, any species listed on the basis of its status in an SPR would be protected throughout its range. As discussed below, however, that change, which was also adopted in the Final Policy, has no practical import since the Policy erects such a high threshold of significance that the FWS could not pinpoint any species that would ever be listed based solely on their status in an SPR. Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 28 of 46 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 During the public comment period on the proposed policy, the FWS received approximately 42,000 comments, see 79 Fed. Reg. 37,587. More than 98% of the commenters, including many conservation and scientific organizations, academic experts on the ESA, an Indian tribe, and citizens concerned with safeguarding the nation’s wildlife, strenuously opposed the new interpretation and urged that it be abandoned in favor of a far more species-protective standard. SPR-44849 (indicating that 41,492 of the comments were “submitted through” the Center, opposing the proposed policy). Numerous commenters contended that, notwithstanding the Service’s concession that it was required to give the SPR language independent meaning, under the Service’s approach the language is rendered redundant in exactly the manner that the Ninth Circuit denounced in Defenders. See, e.g., SPR-862 (George Washington University Law School Professors); SPR-1068 (Defenders of Wildlife); SPR-2872 (Wildlife Advocacy Project); SPR-2947 (Natural Resources Defense Council); SPR-968 (Kalispel Tribe). For example, the Center’s comments explained that the Service’s “definition is functionally equivalent to a species being endangered throughout all of its range, thereby rendering the [SPR] phrase superfluous and nullifying any conservation benefit to protecting species before they are threatened with worldwide extinction.” SPR-2896. The Center and others also stressed that both in the proposal and other communications concerning it, the FWS had been unable to produce a single real-world “example of a species that would receive protection under the policy because it was at risk in a [SPR] that would not otherwise receive protection based on being at risk in all of its range.” SPR-2897; SPR-45207 (Defenders of Wildlife). Similarly, Defenders of Wildlife (“Defenders”) – in comments submitted by the organization’s President, Jamie Rappaport Clark, who was also the Director of the FWS during the Clinton Administration – expressed concern that the proposal’s “unreasonably narrow focus on species viability fails to accommodate the ESA’s broader species conservation goals and purposes,” and that the Service’s “exceptionally restrictive approach to [SPR] is also contrary” to the Act’s “goal of protecting species in the United Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 29 of 46 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 States.” SPR-1065, 1069. Defenders also stressed that “even the now withdrawn [M- Opinion] concluded that the Services, in determining whether a portion of a species range is significant,” could consider the “various values listed in the Act,” including the paramount importance of “conserving domestic populations” of species irrespective of their status elsewhere. Id. Echoing these concerns, numerous commenters opined that, under the Service’s new approach, many of the nation’s most iconic species that are, or were, protected by the ESA for decades – such as the bald eagle, grizzly bear, wolf, jaguar, and many others – would never have been listed under the Act because, although they were at grave risk in the contiguous U.S. portions of their ranges, they were more abundant elsewhere. See, e.g., SPR-925 (American Society of Mammalogists); SPR-969 (Kalispel Tribe). Several commenters also explained that, although the FWS was purporting to “propose” a new interpretation for public comment, in reality the FWS had “already denied protection to a species based on the proposed definition of significance,” i.e., the pygmy-owl, despite finding that “pygmy owls in the Sonoran Desert Ecoregion occur in a unique habitat and have unique ecological adaptations” that may be crucial to the species’ conservation “[g]iven predictions about climate change.” SPR-2947 (Natural Resources Defense Council); see also SPR-2897 (Center). Commenters therefore urged that the pygmy-owl example “illustrates the shortcomings of the draft policy,” and “set[s] the bar for significance too high.” SPR-2947 (Natural Resources Defense Council). Notwithstanding the overwhelming public opposition, the FWS issued its Final Policy defining SPR on July 1, 2014. See 79 Fed. Reg. 37,578 (SPR-75). The Final 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.” Id. at 37,579 (emphasis added). The FWS asserted that this “slightly” revised definition was designed to “[l]ower and simplify Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 30 of 46 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the threshold for ‘significant’” from the definition the Service proposed in its draft policy – and applied to the pygmy-owl – so as to “more clearly avoid the appearance of similarity with the ‘clarification’ approach” rejected by the Ninth Circuit. Id. at 37,579, 37,601. Nonetheless, the revised interpretation suffers from the very same legal flaw highlighted in comments on the proposal and that resulted in the Service’s refusal to list the pygmy-owl, namely, the definition renders the SPR phrase entirely superfluous because any species’ status that would satisfy the definition would also describe a species that should be considered endangered or threatened in “all” of its range. While asserting that by “using th[e] standard” in the Final Policy the FWS “may list a few more species with important populations that are facing substantial threats” than the Service would have listed under the definition in the proposed policy, 79 Fed. Reg. 37,579, the Service again failed to identify even a single real-world species that would be listed as endangered or threatened under the Final Policy’s SPR standard that would not otherwise qualify for listing as a species endangered or threatened throughout “all” of its range. The FWS did not respond at all to the commenters who contended that the agency’s reversal of course on the pygmy-owl listing crystallized the need for a fundamentally different approach.10 As with the proposal, and in sharp contrast with the M-Opinion, the Final Policy’s definition of significance affords no consideration whatsoever to the ESA’s declared purpose to safeguard, “for the benefit of all citizens, the Nation’s heritage in fish, wildlife, and plants.” SPR-431 (emphasis added). Indeed, the Final Policy explicitly rejects an approach to the SPR phrase that would afford discretion to the Service to make SPR determinations taking into consideration the “national ‘values’” set forth in the Act 10 In response to commenters’ requests that “we provide examples for real species” that could be listed based on their status in an SPR under the Policy, the Service was able only to identify species that had previously been denied ESA protection based on the standard in the proposed policy. See 79 Fed. Reg. 37,601 (pointing to prior refusals to list Van Rossem’s gull-billed tern and Steller sea lion and stating that “[w]hile the definitions applied on a case-by-case basis prior to this final policy may differ slightly from this final policy’s definition of [significant portion of its range] our recent determinations generally illustrate how we would apply the framework laid out in this policy”). Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 31 of 46 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 itself, i.e., the Congressionally-mandated “value” of avoiding extirpation of species in the United States. 79 Fed. Reg. 37,593. ARGUMENT I. STANDARD OF REVIEW In resolving Plaintiffs’ challenge to the FWS’s refusal to list the pygmy-owl and the Final Policy, the Court must apply the APA standard of review, under which courts “shall . . . hold unlawful and set aside agency action found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). To survive APA review, the agency must “articulate a satisfactory explanation for its action, including a ‘rational connection between the facts found and the choice made,’” and a reviewing court must invalidate an agency decision on arbitrary and capricious grounds if, among other reasons, “the agency has relied on factors which Congress has not intended it to consider” or has “failed to consider an important aspect of the problem,” as embodied in the legislative scheme enacted by Congress. Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“State Farm”). Further, when, as here, an agency has changed its prior approach to a particular problem, the agency must, as a threshold matter, at least “display awareness that it is changing position,” as well as set forth legally sustainable grounds for that change. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). When an agency has formally interpreted a statute in notice and comment proceedings, reviewing courts apply the “familiar Chevron framework,” pursuant to which a court “first ask[s] ‘whether Congress has directly spoken to the precise question at issue.’” Valenzuala Gallardo v. Lynch, 818 F.3d 808, 815 (9th Cir. 2016) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). “If the statute ‘unambiguously bars’ the agency’s interpretation, that is the end of the analysis,” id. (quoting Whitman v. Am. Trucking Ass’n, Inc., 531 U.S. 457, 471 (2001)), “for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43. If the statute is sufficiently Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 32 of 46 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ambiguous to afford the agency some leeway in interpretation, a court must consider at the second step of Chevron analysis whether the agency’s approach is based on a “permissible” or “reasonable” construction of the statute. Id. An agency construction is “unreasonable” if it “ignores the plain language of the statute” or renders any statutory language “superfluous,” or where it “‘frustrate[s] the policy Congress sought to implement’” in the statute. Pac. N.W. Generating Coop. v. Dep’t of Energy, 580 F.3d 792, 806, 812 (9th Cir. 2009). “As a component of whether an agency’s interpretation is permissible,” a reviewing court must also “take into account the consistency of the agency’s position over time,” since “‘[a]n agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is entitled to considerably less deference than a consistently held view.’” Nat. Res. Def. Council v. EPA, 526 F.3d 591, 602 (9th Cir. 2008) (quoting INS v. Cardozo-Fonseca, 480 U.S. 421, 447 n.30 (1987)). Finally, as the Supreme Court recently reaffirmed, little or no Chevron deference is owed to an agency’s “effort to resolve ambiguities in the statutory scheme” unless the agency interpretation has first been adopted pursuant to a “‘relatively formal administrative procedure’” such as “notice-and-comment rulemaking.’” Encino Motors, LLC v. Navarro, 579 U.S. ___, 136 S. Ct. 2117, 2125 (2016).11 II. THE FWS’S DETERMINATION THAT A CONCEDEDLY “IMPORTANT” PORTION OF THE PYGMY OWL’S RANGE IS NOT A “SIGNIFICANT” PORTION VIOLATES THE PLAIN LANGUAGE OF THE ESA, UNDERMINES THE CONSERVATION PURPOSES OF THE ACT, AND IS OTHERWISE ARBITRARY AND CAPRICIOUS. Applying the foregoing standards to the FWS’s refusal to find listing of the pygmy-owl warranted based on its status in the Sonoran Desert Ecoregion, the Court must set aside the FWS’s anomalous finding that, although this portion of the pygmy- owl’s range is in fact “an important portion of the Western DPS, and of the taxon as a 11 As set forth in the accompanying standing declarations, Plaintiffs are conservation membership organizations with longstanding recreational, aesthetic, scientific, and organizational interests in the pygmy-owl and other imperiled species adversely affected by the agency actions under review. See Ex. A-D. Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 33 of 46 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whole,” it nevertheless is not a “significant” portion of the pygmy-owl’s range for purposes of the ESA’s definitions of endangered and threatened species. 76 Fed. Reg. 61,893 (emphasis added). As explained previously, in concluding that the Sonoran Desert Ecoregion is indeed “important” to conservation of the pygmy-owl, the FWS found, e.g., that the “ability of the western DPS to adapt to impacts from climate change may be substantially reduced” with the loss of the Sonoran Desert Ecosystem; that the “loss of a third of the range might represent a significant loss of important habitat and genetic diversity, affecting the redundancy and representation of the overall pygmy-owl population”; and that removal of the Sonoran Desert Ecoregion may “reduce the viability and potential for long-term survival of the remaining portion of the DPS.” Id. at 61,892- 93 (emphasis added). Although these facts were sufficient for the FWS to find the Sonoran Desert Ecoregion “significant” under the approach applied in the M-Opinion, they were subsequently deemed inadequate solely because of the new SPR interpretation in the final pygmy-owl finding, pursuant to which the Service could only find the Sonoran Desert Ecoregion “significant” if, given the “theoretical removal of [that portion] from the current range of the pygmy-owl, the remaining portion is likely to become extinct.” Id. at 61,892 (emphasis added). The FWS’s reversal of course cannot withstand APA review. A. The Definition Of SPR In The Pygmy-Owl Finding Is Not Entitled To Chevron Deference. As a threshold matter, since the specific interpretation of “significance” applied in the pygmy-owl finding deviated dramatically from the one embodied in the earlier M- Opinion – and, moreover, was applied by the FWS to the pygmy-owl without any prior public notice and comment – under Encino and other precedents, the interpretation is not entitled to Chevron deference. See Nat. Res. Def. Council, 526 F.3d at 605 (explaining that, in assessing the degree of deference to which an agency is entitled “we will take into account the consistency of the agency’s position over time”). Indeed, the FWS’s failure even to acknowledge that it had deviated from the approach in the M-Opinion is alone a Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 34 of 46 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sufficient reason for finding its new approach arbitrary and capricious. See Encino, 136 S. Ct. at 2126 (reaffirming that, to survive APA review, an agency changing its position “must at least ‘display awareness that it is changing position’” and hence it “follows that an ‘[u]nexplained inconsistency in agency policy is ‘a reason for holding an interpretation to be an arbitrary and capricious change from agency practice’”) (internal citations omitted); see also Pac. N.W. Generating Coop., 580 F.3d at 817 (“an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored”) (internal quotation omitted). Nor can the FWS’s subsequent adoption of the Final Policy afford a basis for deference to the agency’s pygmy-owl finding. Not only does the Final Policy itself fail to acknowledge the extent to which it deviates from the M-Opinion’s definition of significance, see infra at 34-35, but the Final Policy expressly purports to adopt a less restrictive definition than the one applied to the pygmy-owl. See, e.g., 79 Fed. Reg. 37,579 (asserting that the FWS had adopted a “lower threshold” for significance than the one set forth in its proposed policy and applied to the pygmy-owl so as to “more clearly avoid the appearance of similarity to the ‘clarification’ approach”). Although, as discussed below, both the Final Policy and the pygmy-owl finding suffer from the same legal defect – both render the SPR language redundant in the manner that the Ninth Circuit rejected in Defenders – the FWS cannot, in any event, be afforded deference for its pygmy-owl finding based on a subsequent interpretation that the Service itself claims to be “substantive[ly]” different from the one applied to the pygmy-owl. Id. at 37578.12 12 In WildEarth Guardians v. Jewell, 134 F. Supp. 3d 1182 (D. Ariz. 2015), in reviewing the FWS’s refusal to list the Gunnison’s prairie dog as endangered or threatened, the court addressed an aspect of the Final Policy – concerning the extent to which the Service must consider a species’ loss of historic range in assessing current imperilment – that is not at issue in this case. With respect to that issue, the court held that Chevron deference was appropriate although the species-specific finding preceded adoption of the Final Policy. Id. at 1192-93. The court did so, however, on the express grounds that the FWS’s approach to the historic range issue was “not displacing any prior agency interpretation” and because the species-specific finding applied exactly the same “definitions discussed in more detail” in the Final Policy. Id. Neither of those grounds applies to the definition of “significant” before the Court here – an issue explicitly avoided in WildEarth Guardians. Id. at 1195 (“The court need not decide whether that interpretation [of the SPR definition] is reasonable because, as noted by the Federal Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 35 of 46 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Irrespective Of Any Application Of Chevron Deference, The SPR Interpretation Applied To The Pygmy-Owl Cannot Be Sustained. Even if the Court were to apply the Chevron framework to the pygmy-owl finding, the FWS’s determination that the Sonoran Desert Ecoregion is “important,” but not “significant,” cannot be sustained under elementary principles of statutory construction. Even where the Ninth Circuit has deemed Chevron deference appropriate, it has emphatically rejected agency interpretations that “are not a permissible (or reasonable) construction of the statute” because they are “directly at odds with the text and purpose” of the statute at issue. Nat. Res. Def. Council v. Nat’l Marine Fisheries Serv., 421 F.3d 872, 879 (9th Cir. 2005) (rejecting, under Chevron step two, an agency construction of the statute regulating fisheries that was contrary to the “natural reading” of the statutory language and Congress’s purpose to rebuild fish stocks). That is the case here.13 First, the FWS’s finding that the Sonoran Desert Ecoregion is indeed “important” to conservation of the pygmy-owl as a whole, as well as the Western DPS, and yet is not “significant” for purposes of a listing determination is not only counterintuitive but contravenes the “plain and sensible meaning of the statute.” Cuevas-Gasper v. Gonzales, 430 F.3d 1013, 1022 (9th Cir. 2005). As the FWS has conceded, based on an ordinary dictionary definition, the words “significant” and “important” are synonymous, see 76 Fed. Reg. 76,993 (explaining that “one of the most prominent” dictionary definitions of “significant” is “important”) (citing Random House Dictionary of the English Language), and hence the Service itself has “conclude[d] that ‘important’ is the most relevant meaning” of the statutory language. Id. (emphasis added); see also Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 846 (9th Cir. 2003) (explaining that, in issuing its DPS Policy, the FWS had also recognized that the “‘commonly understood’ meaning” of “significant” is “important”) (citing Webster’s New World Dictionary at 1248) (internal Defendants, the Service’s interpretation of ‘significant’ is irrelevant to the 2013 Finding.”). 13 It also necessarily follows that the FWS’s determination is not entitled to any “Skidmore deference” in which “the court grants an agency’s interpretation only as much deference as its persuasiveness warrants.” Brown v. United States, 327 F.3d 1198, 1205 (D.C. Cir. 2003) (citing Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944)). Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 36 of 46 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 quotation omitted). Thus, the Service’s unequivocal declaration that the Sonoran Desert Ecoregion is, for myriad reasons, “important” to conservation of the pygmy-owl as a whole, as well as the Western DPS, but that this is inadequate to deem the area “significant,” is tantamount to an admission that the “plain and sensible meaning of the statute” has been shunted aside. See Cuevas-Gaspar, 430 F.3d at 1022; see also State of Hawaii v. FEMA, 294 F.3d 1152, 1161 (9th Cir. 2002) (consulting “dictionary definition” to ascertain the meaning of the “text of the statute”); Nat. Res. Def. Council, 421 F.3d at 880 (rejecting agency construction as contrary to the most “natural reading” of the statutory language). Second, the FWS’s paradoxical finding that the Sonoran Desert Ecoregion is “important” yet not “significant” flouts the express “purpose of the Act,” as well as the statutory text. Nat. Res. Def. Council, 421 F.3d at 879. As the Supreme Court has explained in the seminal ruling on the ESA, the “stated purposes” the ESA are “‘to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such . . . species.’” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978) (emphasis added) (quoting 16 U.S.C. § 1531(b)) (emphasis added). Congress “thereby adopt[ed] a policy which it described as ‘institutionalized caution’” in addressing the plight of at risk species and their habitats. Id. at 194; see also Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir. 2004) (explaining that the ESA defines “conservation” to mean “recovery” and that “it is clear that Congress intended that conservation and survival be two different (though complementary) goals of the ESA”). Accordingly, for the FWS to “acknowledge” that a gravely imperiled portion of the pygmy-owl’s habitat is in fact “important” to conservation of the “taxon as a whole” as well as the Western DPS – including because the ability of the owl “to adapt to impacts from climate change may be substantially reduced” with the loss of the Sonoran Desert Ecoregion, 76 Fed. Reg. at 61893 (emphasis added) – yet nonetheless find that the area is not “significant” enough to afford the pygmy-owl any protection under the ESA, Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 37 of 46 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is to undermine Congress’s “conservation” purpose and to stand the ESA’s policy of “institutionalized caution” on its head. The Court could not countenance such a result regardless of how much “deference” it affords the agency. See Nat. Res. Def. Council, 421 F.3d at 881 (explaining that “[w]hatever the outer limits of the range of permissible constructions of the [Magnuson-Stevens Fishery Conservation and Management Act], we are certain that what lies beyond them is an interpretation allowing the Agency” to undermine the central conservation purpose of that statute).14 The FWS’s refusal to list the pygmy-owl is even more fundamentally at odds with Congress’s design because the Service did not afford even the slightest consideration to the value of protecting the U.S. portion of the range of pygmy-owls, as a component of the Sonoran Desert Ecoregion. At the very outset of the ESA, Congress set forth the “findings” that led it to enact the statute and, in doing so, left no doubt that safeguarding species in this country was at the very heart of why the groundbreaking law was passed. Once again, Congress “declar[ed]” unequivocally that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untampered by adequate concern and conservation”; that other such species “have been so depleted in number that they are in danger of or threatened with extinction”; and that “these species . . . are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” 16 U.S.C. §§ 1531(a)(1)-(3) (emphases added). It is difficult to imagine how Congress could have made any plainer its intention to place particular emphasis on protecting imperiled species in the United States for the benefit of the “Nation and its people,” irrespective of whether such species may be more plentiful elsewhere. See also Hill, 437 U.S. at 183-84, 14 Tellingly, even in explaining the Final Policy, the FWS used as an example of a “portion of the species range” that should qualify as an SPR an area that is “important to conservation of the species” because it is a potential “refugia from climate change.” SPR-79545 (emphasis added). Yet that is precisely how the Service has characterized the Sonoran Desert Ecoregion while simultaneously deeming it non-“significant” for listing purposes. See 76 Fed. Reg. at 61,892-93; see also 79 Fed. Reg. at 37,581 (Final Policy) (stating that the FWS should “provide protection under the Act to species with important populations facing significant threats”) (emphasis added). Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 38 of 46 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 187 (explaining that one of Congress’s specific examples in the legislative history of a species that should be protected under the Act was the “rapidly dwindling stock of grizzly bears within Yellowstone Park” though it was abundant elsewhere) (emphasis added). The pygmy-owl in Arizona is a paradigmatic example of wildlife that, as a “consequence of economic growth and development untampered by adequate concern and conservation,” is now “so depleted in number that [it is] in danger of or threatened with extinction.” 16 U.S.C. §§ 1531(a)(1), (2). The FWS’s decision refusing to protect the species admits that, in Arizona, pygmy-owls now “occur[] in very low numbers in widely scattered populations”; that “[r]ecent surveys indicate that probably fewer than 50 adult pygmy-owls exist in the state, with 10 or fewer nest sites on an annual basis”; and that “populations of pygmy-owls in Arizona are in an ongoing decline” as a consequence of continuing destruction and degradation of their habitat. 76 Fed. Reg. at 61,863, 61,891. By the same token, for the federal government to turn a blind eye while the species is completely extirpated from the U.S. portion of its range, as the FWS proposes, is to discount the species’ “value to the Nation and its people” – and especially the residents of Arizona – in the very manner that Congress sought to avoid in enacting the ESA. 16 U.S.C. § 1531(a)(3); see also PO-697 (statement by the Program Officer for the Pima County Office of Conservation Science and Environmental Policy that the pygmy- owl “is an iconic species” in Arizona); PO-688 (statement by Acting Director of the FWS that “[t]here has been interest in the pygmy-owl from Congressman [Raul] Grijalva . . . who previously was a Pima County Supervisor and instrumental in the adoption” of the Sonoran Desert Conservation Plan). Nonetheless, the Congressionally-assigned value of conserving pygmy-owls in the U.S. portion of the species’ range played no role whatsoever in the FWS’s decision on whether the Sonoran Desert Ecoregion should be deemed “significant” for listing purposes. Indeed, the Service’s final “not warranted” decision does not even pay lip service to that issue. To the contrary, based entirely on the finding that the “theoretical removal” of the Sonoran Desert Ecoregion would not be “likely” to cause the “remaining Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 39 of 46 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 portion of the range” – i.e., in southern Mexico, far removed from the “Nation and its people” – “to become extinct,” 76 Fed. Reg. at 61,892 (emphasis added), the FWS determined, in effect, that the Arizona population could simply be written off. That determination is not only “manifestly contrary” to Congress’s purpose in enacting the ESA, Envtl. Def. Ctr., Inc v. U.S EPA, 344 F.3d 832, 857 (9th Cir. 2001), but it also necessitates rejection of the agency’s decision on the grounds that it utterly “‘failed to consider an important aspect of the problem,’ namely the underprotection that accompanies” affording no weight whatsoever to the value of protecting wildlife in the United States. Nat. Res. Def. Council, Inc. v. Pritzker, No. 14-16375, 2016 WL 3854207, at *11 (9th Cir. July 15, 2016) (holding that NMFS violated State Farm standards in applying an excessively strict standard under the Marine Mammal Protection Act); see also Nat’l Ass’n of Home Builders, 340 F.3d at 849 (“[e]xtirpation of the western pygmy- owl from the United States is certainly significant to the United States”) (emphasis added).15 III. AS WITH THE PYGMY-OWL FINDING, THE APPROACH ADOPTED IN THE FINAL POLICY RENDERS THE SPR LANGUAGE SUPERFLUOUS, CONTRAVENES NINTH CIRCUIT PRECEDENT, AND IS OTHERWISE CONTRARY TO LAW AND ARBITRARY AND CAPRICIOUS. As the Court of Appeals held in Defenders, any inherent ambiguity in the SPR phrase does not mean that the FWS is free to define the phrase in any manner it chooses. 15 In Nat’l Ass’n of Home Builders, the Ninth Circuit held that, in applying its DPS Policy – the basis on which the pygmy-owl was previously listed – the Service had not adequately explained how the pygmy-owl population in Arizona satisfied the DPS definition adopted by the FWS, which requires that a population be “significant ‘to the species to which it belongs.’” 340 F.3d at 839 (emphasis added) (quoting 61 Fed. Reg. at 4725); see also 340 F.3d at 852 (“Having chosen to promulgate the DPS Policy, the FWS must follow that policy.”). That ruling did not in any way address the meaning of the SPR phrase at issue here, although the court’s recognition that the loss of pygmy-owls in Arizona “is certainly significant to the United States,” id. at 849, squarely supports Plaintiffs’ argument that the Service’s SPR analysis must take into consideration the value of conserving the species in the United States. Indeed, given the court’s ruling that the FWS “chose” to exclude this factor from the DPS Policy, it is all the more critical that the importance of protecting U.S. portions of species be taken into account in the agency’s SPR determinations, lest this Congressionally-mandated consideration have no role in the agency’s listing decisions. Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 40 of 46 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defenders, 258 F.3d at 1141. Rather, regardless of which step of Chevron analysis the Court applies, the agency may not adopt an “interpretation [that] simply cannot be squared with the statute’s language and structure,” or with its overriding conservation purpose. Id. That, however, is precisely what the Service has done in the Final Policy: it has adopted an approach that is flatly “foreclose[d]” by the Court of Appeals’ reading of the SPR language and that, in any event, cannot be deemed a “permissible reading” of the ESA. Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Serv., 545 U.S. 967. 982-83, 986 (2005) (citing Chevron, 467 U.S. at 843-45). Although the Final Policy concedes that, consistent with the Ninth Circuit’s analysis in Defenders, the Service’s definition of SPR must afford an “independent basis for listing” – and purports to have “lower[ed] the threshold for ‘significant,’” which “may slightly increase (compared to the draft policy) the number of species we consider for listing,” 79 Fed. Reg. at 27,581 – in reality both the Final Policy and the draft policy suffer from the same fundamental legal defect: they both render the SPR language “superfluous” and hence violate elementary principles of statutory construction in the precise manner that the Ninth Circuit decried in Defenders. The draft policy (which, again, was invoked to deny protection to the pygmy-owl), defined a “portion of the range” as “‘significant’ if its “contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction.” 76 Fed. Reg. at 77,002. As numerous commenters pointed out, see supra at 19-20, that definition renders the SPR language of no independent utility because if (1) a portion of a species range is so significant that loss of that portion will place the entire species in danger of extinction, and (2) the portion itself is imperiled – which would be necessary for any listing to occur – then the species is clearly endangered in “all” of its range, and the SPR language adds nothing of substance to the statutory scheme. Indeed, that is exactly the approach the Ninth Circuit said the FWS was legally prohibited from taking in defining SPR. See Defenders, 258 F.3d at 1141-43. Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 41 of 46 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This legal flaw is not cured by the “slight” adjustment made in the Final Policy, which defines a range portion as “significant” if its “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.” 79 Fed. Reg. at 37,609 (emphasis added). As the Service acknowledged, the only import of the revised language is that, instead of a requirement that the range portion be so vital that its loss would mean that the entire species is endangered, as under the draft policy, under the final policy a range portion must be so vital that its loss would result in the entire species being “either endangered or threatened.” Id. at 37,579; see also 16 U.S.C. § 1532(20) (definition of a “threatened species”). Notwithstanding the Service’s protestation that this change was made to “more clearly avoid the appearance of similarity to the ‘clarification’ approach” rejected by the Ninth Circuit, 79 Fed. Reg. at 37,579 – which comes close to a concession that the draft policy applied to the pygmy-owl finding does run afoul of the Ninth Circuit analysis – the same problem afflicts the Final Policy. Thus, if a portion of a species’ range is so vital that its loss would render the entire species “either endangered or threatened,” and the portion itself is endangered or threatened (which would be a prerequisite to a listing in any case), then the species is necessarily endangered or threatened in “all” of its range, and the SPR phrase is improperly rendered “surplusage.” Defenders, 258 F.3d at 1142. “Such a redundant reading of a significant statutory phrase is unacceptable.” Id.; see also Defenders of Wildlife v. U.S. Dep’t of Interior, 354 F. Supp. 2d 1156, 1168 (D. Or. 2005) (rejecting the FWS’s determination that the wolf’s viability in the “core” portion of its range rendered other portions non-significant because this “interpretation ‘has the effect of rendering the phrase [SPR] superfluous’”) (quoting Defenders, 258 F.3d at 1142); Nat’l Wildlife Fed’n v. Norton, 386 F. Supp. 2d 553, 565-66 (D. Vt. 2005) (same). That neither the draft policy nor Final Policy add anything of substance to the statutory scheme is hammered home by the fact that the FWS, in either its proposal or Final Policy, was unable to point to even a single real-world species that the FWS would Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 42 of 46 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 list under the agency’s SPR approach that would not otherwise be listed under the “all” prong of the statutory definitions of endangered and threatened species. Many commenters urged the Service to provide such an illustration. See supra at 19. However, while conceding that any such listings will be “uncommon,” 79 Fed. Reg. at 37,609, the FWS again conspicuously failed to pinpoint even a single real-world species that would be listed pursuant to its redundant reading of the SPR language.16 Moreover, as with the pygmy-owl decision, the Final Policy adopts an approach that impermissibly ignores the Congressional design not to allow wildlife extinctions in the United States simply because the species is more abundant elsewhere. As explained by the Ninth Circuit, in adopting the SPR language and the ESA as a whole, Congress specifically rejected an approach under which a listing could occur only “when [the species] is threatened with worldwide extinction.’” 258 F.3d at 1144 (quoting H. R. Rep. No. 412, 93d Cong., 1st Sess. (1973)). Yet that is precisely the unlawful approach that the FWS has reverted to in the Final Policy: unless the loss of the range portion at issue would render the entire species endangered or threatened, ESA protection is precluded. See also Defenders of Wildlife v. Norton, 239 F. Supp. 2d 9, 19 (D.D.C. 2002) (holding that the “FWS’s exclusive focus on one region where the Lynx is more prevalent” to deny listing, despite the Lynx’s presence in three additional regions where the species was facing severe threats was “antithetical to Congress’s broad purpose to protect endangered and threatened species” and Congress’ specific intent, in adopting the SPR language, to depart from “earlier statutes . . . narrowly defin[ing] endangered species as 16 In its proposed policy, rather than refer to any actual species that would be affected by the agency’s approach, the Service relied on a single hypothetical “example” that actually underscored the redundancy in the approach. In the Service’s example there are two main populations of a species (portions X and Y), one of which (portion Y) “faces only moderate threats, but . . . occurs in an area that is so small or homogeneous that a stochastic . . . event could devastate the entire area and the population inhabiting it,” and the second of which (portion X) is presently facing “severe threats” to its continued existence. 76 Fed. Reg. at 76,995. As commenters pointed out, however, under the Ninth Circuit’s analysis, such a species would have to be considered endangered or threatened in “all” of its range – since the anticipated extirpation of the area facing “severe threats” would place the entire species at risk from a “devastat[ing]” stochastic event. See, e.g., SPR-2872, SPR-1068. Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 43 of 46 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 including only those species facing worldwide extinction”). As numerous commenters pointed out, under this draconian standard, many of America’s most iconic species – such as the grizzly bear, wolf, bald eagle, jaguar, and many others – would never have received ESA protection. See supra at 19-20. An approach to listing that affords no weight whatsoever to the incalculable “value” of such species “to the Nation and its people,” 16 U.S.C. § 1531(a)(3), is impossible to harmonize with Congress’s intent in enacting the ESA. See Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 685 (D.D.C. 1997) (rejecting the FWS’s refusal to list the Lynx because it is more abundant in Canada and holding that the “FWS cannot be allowed to dismiss the contiguous United States population of a species merely because it is more plentiful elsewhere”).17 Finally, the Final Policy should also be set aside because the FWS set forth no coherent, let alone legally sustainable rationale, for jettisoning the lower “significance” threshold that was embodied in the M-Opinion and applied by the Service before devising the interpretation at issue. While reviewing courts found fault with the M- Opinion’s approach to where species should be protected based on their status in an SPR, no court questioned the legality of the test for significance put forth in that document. In sharp contrast to the approach in the Final Policy, that test appropriately took into consideration Congress’s intention to safeguard U.S. populations of species, see SPR- 431, and did not render the SPR language a redundancy, as evidenced by the FWS’s initial decision to list the pygmy-owl as well as other, final listing decisions made while the M-Opinion was in effect. See, e.g., 74 Fed. Reg. 56,766 (Nov. 3, 2009) (finding a portion of the range of the Queen Charlotte Goshawk “significant” on the grounds that it was “important to the conservation of the species because it contributes meaningfully to the representation, resiliency, or redundancy of the species . . . [i]t does not mean that if 17 See also SPR-871 (George Washington University Law Professors’ comment noting that a leading Congressional sponsor of the ESA invoked a quote from famed naturalist Aldo Leopold that “[r]elegating grizzles to Alaska is like relegating happiness to heaven: one may never get there”). Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 44 of 46 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 such portion of the range were lost, the species as a whole would be in danger of extinction, immediately or in the foreseeable future; rather, that the ability to conserve the species would be compromised”) (emphasis added); 73 Fed. Reg. 6675 (Feb. 8, 2008) (finding population of the Gunnison’s prairie dog “significant” because it is “important to the conservation of the species”). While deviating dramatically from this prior approach, the FWS did not “cogently explain” why it was necessary to do so. State Farm, 463 U.S. at 48. Indeed, in adopting the Final Policy, the Service did not even clearly “display awareness that it is changing position,” Fox, 556 U.S. at 515, since the agency suggested that the “status determinations” it would make under its new approach “will be the same” as the “period during which FWS implemented the M-Opinion,” 79 Fed. Reg. at 37,609 – which is false, as the experience with the pygmy-owl vividly illustrates. Consequently, even if the Service could explain how its new interpretation is compatible with the language and purpose of the ESA – which it cannot – the agency’s reversal of position cannot even pass muster under basic standards of APA review.18 CONCLUSION For the foregoing reasons, the FWS’s “not warranted” finding for the pygmy-owl and Final Policy construing the statutory language “significant portion of its range” should be vacated and remanded. 18 To the extent that the FWS explicated any rationale for its concededly “high” threshold for making an SPR determination, the agency reinforced the unlawful nature of its approach. 79 Fed. Reg. at 37,578. The Service stated that setting a threshold that few, if any, species will be able to satisfy is “desirable because we have concluded that, if a species is endangered or threatened in a [SPR], it is protected throughout all of its range” under the scheme adopted by Congress. Id. In other words, because Congress determined that the conservation purposes of the ESA would best be served by protecting species throughout their entire range even if they are listed based on their status in an SPR, the FWS decided to afford the SPR language as little meaning as possible so that the agency could avoid protecting such species at all. That hardly constitutes a “satisfactory explanation,” State Farm, 463 U.S. at 43, for adopting an approach that, as a practical matter, is much less species-protective than the M-Opinion that was declared insufficiently protective by the courts. At least under the M-Opinion, species such as the pygmy-owl could gain some level of protection based on their status in portions of their range. Under the Final Policy, the very same species will obtain no ESA protection at all so that the FWS can avoid protecting them “throughout their entire range.” 79 Fed. Reg. at 37,570. Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 45 of 46 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, /s/ Eric R. Glitzenstein Eric R. Glitzenstein D.C. Bar No. 358287 (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 4115 Wisconsin Avenue, N.W., Suite 210 Washington, DC 20016 Telephone: (202) 588-5206 Facsimile: (202) 588-5049 eglitzenstein@meyerglitz.com /s/ William S. Eubanks II William S. Eubanks II D.C. Bar No. 987036 (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 245 Cajetan Street Fort Collins, CO 80524 Telephone: (970) 703-6060 Facsimile: (202) 588-5049 beubanks@meyerglitz.com Attorneys for Plaintiffs Case 4:14-cv-02506-RM Document 52 Filed 08/11/16 Page 46 of 46 EXHIBIT A IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT No. 4:14-cv-02506-RM Case 4:14-cv-02506-RM Document 52-1 Filed 08/11/16 Page 1 of 10 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric R. Glitzenstein (D.C. Bar No. 358287) (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 4115 Wisconsin Ave., N.W., Suite 210 Washington, D.C. 20016 Telephone: (202) 588-5205 Facsimile: (202) 588-5049 Eglitzenstein@meyerglitz.com Attorney for Plaintiffs IN THE UNITED STATES DISRICT COURT FOR THE DISTRICT OF ARIZONA _____________________________________________ ) CENTER FOR BIOLOGICAL DIVERSITY, ) DEFENDERS OF WILDLIFE, ) ) Plaintiffs, ) No. 4:14-cv-02506-RM ) v. ) DECLARATION OF ) NOAH GREENWALD ) Sally JEWELL, Secretary, U.S. Department of the ) Interior, Daniel M. ASHE, Director, U.S. Fish & ) Wildlife Service, ) ) Defendants. ) ) DECLARATION OF NOAH GREENWALD I, Noah Greenwald, declare as follows: 1. I am a member of and the Endangered Species Director at the Center for Biological Diversity (“the Center”), a Plaintiff in this case. I am submitting this declaration in support of Plaintiffs’ Motion for Summary Judgment. 2. The Center is a nonprofit organization committed to the preservation, protection, and restoration of native species and the ecosystems upon which they depend through science, policy, education, and environmental law. The Center has offices throughout the United States, including in Arizona, the District of Columbia, New Mexico, California, Alaska, Minnesota, Vermont, Florida, Oregon, and Washington. The Center has more than 48,575 members and over 1.1 million online supporters. Case 4:14-cv-02506-RM Document 52-1 Filed 08/11/16 Page 2 of 10 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The Center believes that the welfare of human beings is deeply linked to nature and to the existence in our world of a vast diversity of wild animals and plants. Because diversity has intrinsic value, and because its loss impoverishes society, the Center works to secure a future for all species, great and small, hovering on the brink of extinction through science, law and creative media, with a focus on protecting the lands, waters and climate that species need to survive. The Center strives to protect its members’ and supporters’ recreational, aesthetic, scientific and educational interests in protecting and preserving imperiled species and biological diversity for future generations through its numerous organizational programs.1 4. One such program, the Center’s Endangered Species Program, which I oversee, is specifically focused on: compiling and analyzing data about species status and recovery; submitting legal petitions and preparing reports, filing lawsuits when necessary, using the leverage of our supporters’ voices and ensuring that imperiled species are federally protected; obtaining adequate amounts of critical habitat for species; advocating for sound conservation policy; watchdogging Congress and government agencies; and using creative media to keep the Center’s members informed and engaged.2 The Center’s Endangered Species Program has been more successful than all other U.S. conservation groups combined in achieving first-time protection (i.e., listing) under the ESA for imperiled plant and animal species.3 5. To that end, the Center systematically and ambitiously uses biological data, legal expertise, and the Endangered Species Act’s (“ESA”) citizen petition process to obtain sweeping, legally binding new protections for imperiled animals, plants, and their habitat. The Center has achieved ESA protection for hundreds of species as a result of its groundbreaking petitions, lawsuits, policy advocacy, and outreach to media. The Center 1 See http://www.biologicaldiversity.org/programs/. 2 See http://www.biologicaldiversity.org/programs/biodiversity/index.html. 3 Id. Case 4:14-cv-02506-RM Document 52-1 Filed 08/11/16 Page 3 of 10 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employs a full-time staff of dozens of prominent environmental lawyers and scientists who work exclusively on its campaigns to save species and the places they need to survive. Additionally, the Center disseminates scientific and educational information in its various publications, including Endangered Earth Online, a weekly e-newsletter, as well as periodic reports detailing the current threats to imperiled species and biodiversity as well as the success stories of recovered and recovering species.4 6. The Center has long endeavored to obtain the listing and protection of numerous imperiled species under the ESA. Over the past 26 years, the Center has submitted more than 90 different listing petitions addressing hundreds of at-risk species to the U.S. Fish and Wildlife Service (“FWS”) identifying appropriate candidates for listing and protection under the ESA.5 Additionally, the Center is actively involved in species and habitat protection issues throughout the United States and across the world, including protecting plant and animal species that are or will be significantly negatively affected by the impacts of global warming through its Global Warming and Endangered Species Initiative and its work with the Center’s Climate Law Institute.6 7. The Center and its numerous members’, board members’, and staff’s institutional, educational, recreational, and scientific interests are harmed by the FWS’ new interpretation of the phrase “significant portion of its range.” The Center’s (and its members’, board members’, and staff’s) interests in observing, studying, and otherwise enjoying the pygmy-owl as well as many other threatened and endangered species and their critical habitats, and in obtaining and disseminating educational and scientific information regarding the survival of imperiled and at-risk species have been harmed by the FWS’ adoption of the new and unlawful Policy construing “significant portion of its 4 See http://www.biologicaldiversity.org/publications/. 5 See, e.g., http://www.biologicaldiversity.org/publications/petitions/listing/. 6 See http://www.biologicaldiversity.org/campaigns/global_warming_and_endangered_species/ index.html. Case 4:14-cv-02506-RM Document 52-1 Filed 08/11/16 Page 4 of 10 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 range,” 7 and improper refusal to list the pygmy-owl.8 8. In March 8, 2011 comments that I submitted on behalf of the Center objecting to the Draft Policy defining “significant portion of its range,” the Center explained how the FWS’ proposed interpretation of the phrase “significant portion of its range” – embodied in the new Policy – is “functionally equivalent to a species being endangered throughout all of its range, thereby rendering the [“significant portion of its range”] language superfluous and nullifying any conservation benefit to protecting species before they are threatened with worldwide extinction.” The Final Policy did not cure this problem. By rendering the “significant portion of its range” language superfluous, and by completely ignoring the importance of protecting species in the U.S. even when they are more plentiful elsewhere, the FWS’ new Policy interferes with and undercuts the Center’s organizational mission of utilizing the ESA to effectuate Congress’ intent to protect, for the benefit of all U.S. citizens, the Nation’s heritage in fish wildlife, and plants. Additionally, the new Policy concretely injures the Center, and directly interferes with its core organizational mission, by severely weakening the ability of the Center’s Endangered Species Program to successfully petition the FWS for the listing and protection of imperiled and at-risk species by unlawfully and unreasonably narrowing the scope of potential and candidate species eligible for listing under the ESA. Thus, the FWS’ new Policy interpreting the phrase “significant portion of its range” concretely injures the ability of the Center’s Endangered Species Program to pursue its core and most essential activity – petitioning the FWS for listing of imperiled species – by unlawfully limiting the scope of the criteria under which imperiled species are protected. Examples of species in which the Center and its members have a longstanding 7 See 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,’ 79 Fed. Reg. 37,578 (July 1, 2014) (“Final Policy”). 8 See 12-Month Finding on a Petition to List the Cactus Ferruginous Pygmy-Owl as Threatened or Endangered with Critical Habitat, 76 Fed. Reg. 61,856 (Oct. 5, 2011) (“Final Pygmy Owl Rule”). Case 4:14-cv-02506-RM Document 52-1 Filed 08/11/16 Page 5 of 10 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interest and that have been, or are being, directly affected by the approach embodied in the Final Policy include the Rio Grande cutthroat trout, Arctic grayling, and bi-state sage grouse. 9. The FWS’s new interpretation of “significant portion of its range” also directly interferes with the Center’s institutional mission by undermining the value of a landmark legal settlement that the Center reached with the FWS regarding the Service’s backlog in listing “candidate” species, many of which the Center had petitioned for protection under the Act. See In re Endangered Species Act Section 4 Deadline Litigation, No. 1:10-mc-00377-EGS, ECF No. 42-1 (Stipulated Settlement Agreement) (July 12, 2011 D.D.C.). The Settlement Agreement requires the FWS, according to a schedule embodied in the Settlement and ending in 2017, to make listing decisions on hundreds of imperiled species in which the Center and its members have longstanding scientific, professional, recreational, and other interests. However, the Service’s new interpretation of “significant portion of its range,” which was adopted while the FWS was in the midst of carrying out its obligations under the Settlement, significantly reduces the likelihood that many of the species covered by the Settlement – which required an enormous contribution of organizational time, resources, and personnel to accomplish – will benefit from positive listing determinations by the FWS. Thus, the new interpretation, as embodied in the Final Policy, both interferes with the Center’s core mission to safeguard imperiled species, and undercuts the value of one of the most important and far-reaching biodiversity protection accomplishments ever achieved by the Center. 10. In addition, the new Policy will, in a number of ways, drain valuable Center resources (both in terms of staff and monetary resources) that are devoted to protecting imperiled species. First, the Policy will require the Center to expend its resources exploring alternative means of protecting species of longstanding interest to the Center and its members (such as the pygmy-owl) that otherwise would have been afforded the critical safeguards of the ESA but will be denied such protection by the Policy. Second, Case 4:14-cv-02506-RM Document 52-1 Filed 08/11/16 Page 6 of 10 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the new Policy necessitates that the Center spend more of its limited funds attempting to satisfy the extremely stringent standard set forth in the Policy – which requires, in effect, that species may only be listed when they are at risk of extinction throughout all of their range – rather than satisfying the less stringent standard that the Service applied prior to adoption of the final policy (as illustrated by the Service’s abrupt reversal of position on listing of the pygmy owl based on its status in the Sonoran Desert). 11. The Center, its members, and board are intimately invested in obtaining federal protection for the cactus ferruginous pygmy-owl (G. ridgwayi cactorum) (“pygmy owl”), as evidenced by the Center’s long history of striving to obtain ESA protections for the imperiled pygmy-owl. The Center and others first petitioned for listing the pygmy- owl under the ESA in 1992. Consequently, in 1999, the FWS listed the Arizona population as a distinct population segment (“DPS”) of the pygmy-owl population that was at risk of extinction and thus warranted protection as endangered. 62 Fed. Reg. 10,730 (Mar. 10, 1997). 12. In 1998, as a direct result of this listing decision, Pima County – the location of the majority of the then-federally designated critical habitat for the endangered Arizona pygmy-owl – began a years-long planning process to integrate the federal protections for the pygmy-owl into its long-term land use management plan.9 The resultant Sonoran Desert Conservation Plan (“SDCP”), which the Center helped develop with input from various stakeholders, has since been heralded as an award-winning example of integrating natural resources conservation and protection with land management.10 13. The Center has continued to support the SDCP, recognizing the important and revolutionary role it has played in integrated endangered species urban planning, 9 See https://webcms.pima.gov/cms/One.aspx?portalId=169&pageId=52654. 10 Id. Case 4:14-cv-02506-RM Document 52-1 Filed 08/11/16 Page 7 of 10 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 both in Pima County itself and as an example for other areas nationwide.11 The Center advocated for inclusion in the SDCP of not only management, monitoring, and vital habitat acquisition (including for the then-federally-listed pygmy-owl), but also the institutional recognition that ecosystem repair, through the creation of linked biological corridors, is essential to the recovery of imperiled species, and that creating those corridors, in turn, requires measures to manage nearby Tucson, Arizona’s sprawling growth. The Center’s successes in shaping the SDCP is evident in the plan’s resolution to steer future development away from ecologically important areas and instead toward existing urban cores. 14. Subsequent to listing of the pygmy-owl, the National Association of Homebuilders challenged the listing decision – an essential catalyst for creating and maintaining the SDCP – for failing to adequately explain why the Arizona population alone constituted a DPS, and in 2006, the FWS issued a formal rule withdrawing the Arizona population of the pygmy-owl from the endangered species list. 71 Fed. Reg. 19,452 (Apr. 14, 2006). 15. On the basis of new scientific evidence, in March of 2007, the Center and Defenders of Wildlife (“Defenders”) submitted to the FWS a joint petition to list the pygmy-owl as a threatened or endangered species under the ESA not only for the gravely imperiled Arizona population but also the greater Sonoran desert population, which includes the Arizona population.12 In the groundbreaking multi-species listing settlement of In re Endangered Species Act Section 4 Deadline Litigation,13 the FWS agreed to consider the Center’s new pygmy-owl listing petition and publish notice of either a 11 See http://www.biologicaldiversity.org/programs/public_lands/deserts/sonoran_desert/. 12 Available at http://www.biologicaldiversity.org/species/birds/cactus_ferruginous_pygmy_owl/pdfs/pet ition-to-list-cactus-ferruginous-pygmy-owl-03-2007.pdf. 13 Action no. 1:10-00377 (D.D.C. July 12, 2011), available at https://www.fws.gov/endangered/improving_ESA/WILDLIFE-218963-v1- hhy_071211_exh_1_re_CBD.PDF Case 4:14-cv-02506-RM Document 52-1 Filed 08/11/16 Page 8 of 10 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Proposed Rule or a not-warranted finding in the Federal Register no later than the end of fiscal year 2011.14 Although the FWS initially intended to list the pygmy-owl based on its imperiled status in the Sonoran desert, the Service subsequently reversed that position based on the new interpretation of the “significant portion of its range” language as embodied in the new listing Policy. 16. The longstanding interests of the Center and its members in conserving the pygmy-owl and pygmy-owl habitat are gravely injured by the FWS’s refusal to list the pygmy-own as an endangered or threatened species. The Center was founded in Tucson, Arizona, and many of the Center’s members, board members, and staff still reside in the area, and regularly seek to observe the dwindling population of pygmy-owls in the nearby Sonoran Desert Ecoregion. Thus, the FWS’ refusal to list the pygmy-owl as threatened or endangered based on the agency’s new statutory interpretation harms the Center’s members’, board members’, and staff’s educational, scientific, aesthetic, and recreational interests in observing the pygmy-owl in the Sonoran Desert Ecoregion as the pygmy-owl, divested of federal protection under the ESA, dwindles in number, and as its populations become increasingly disparate and disconnected – making them more and more difficult to find, observe, and study in the United States and elsewhere in the Sonoran Desert Ecosystem. The Service’s refusal to list the pygmy-owl also greatly increases the likelihood that the pygmy-owl will become extinct in the Sonoran Desert Ecosystem, which poses an even graver and more imminent threat to the interests of the Center’s members, board members, and staff in the pygmy-owl and its habitat. 17. As detailed above, for the past two decades the Center has expended substantial organizational resources – both monetary and human – in attempting to obtain needed ESA protections for the pygmy-owl on behalf of its members, board members, and staff. Additionally, the Center’s organizational interests in integrating endangered species protection considerations into urban planning analyses – specifically, with regard 14 Id. at 5. Case 4:14-cv-02506-RM Document 52-1 Filed 08/11/16 Page 9 of 10 Case 4:14-cv-02506-RM Document 52-1 Filed 08/11/16 Page 10 of 10 EXHIBIT B IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT No. 4:14-cv-02506-RM Case 4:14-cv-02506-RM Document 52-2 Filed 08/11/16 Page 1 of 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric R. Glitzenstein (D.C. Bar No 358287) (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 4115 Wisconsin Ave., N.W., Suite 210 Washington, D.C. 20016 Telephone: (202) 588-5206 Facsimile: (202) 588-5049 Eglitzenstein@meyerglitz.com Attorney for Plaintiffs IN THE UNITED STATES DISRICT COURT FOR THE DISTRICT OF ARIZONA _____________________________________________ ) CENTER FOR BIOLOGICAL DIVERSITY, ) DEFENDERS OF WILDLIFE, ) ) Plaintiffs, ) No. 4:14-cv-02506-RM ) v. ) ) Sally JEWELL, Secretary, U.S. Department of the ) Interior, Daniel M. ASHE, Director, U.S. Fish & ) Wildlife Service, ) ) Defendants. ) ) DECLARATION OF SKY JACOBS I, Sky Jacobs, declare as follows: 1. I am a member of the Center for Biological Diversity (“the Center”), a Plaintiff in this case. I am submitting this declaration in support of Plaintiffs’ Motion for Summary Judgment. 2. I have been a member of the Center on-and-off since 1994, and support environmental protection and conservation efforts for wild places and wildlife. I rely on the Center to represent my interests in the preservation of imperiled species and their habitats, including the cactus ferruginous pygmy-owl (“pygmy-owl”). 3. I have donated to and volunteered for the Center on numerous occasions to aid its mission, including by conducting wildlife and other surveys, attending numerous events and rallies to support wildlife protection and helping with mailings, canvasses and office moves. Case 4:14-cv-02506-RM Document 52-2 Filed 08/11/16 Page 2 of 7 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. I have over a decade of experience as a field biologist in the southwestern United States and northwestern Mexico. I have visited habitat for the pygmy-owl in both Mexico and the United States on numerous occasions for both recreational and professional purposes. I have been working and volunteering on pygmy-owl related activities since 1998. Working with a researcher from the University of Arizona, I have surveyed for and studied the pygmy-owl in Sonora, Mexico since 1999 and likely have more on-the-ground experience with the pygmy-owl, its habitat, nests, home-ranges, call, etc. than all but a few of other people. I have heard literally hundreds of pygmy-owls and seen at least 150 different individuals, some individuals consecutively for many years. 5. From 2005-2006, I worked for a biological consulting company surveying likely pygmy-owl habitat in and around Tucson and other southern Arizona localities. Despite surveying extensive suitable habitat, I did not observe pygmy-owls in southern Arizona. Since then, I have also worked with a survey crew that has observed pygmy- owls on the Cabeza Prieta Wildlife Refuge of southwestern Arizona. In the future, I intend to regularly visit areas that are known to have been occupied by pygmy-owls, with the hope that I can observe them, listen to their calls, and otherwise enjoy them. 6. I have an intense personal interest in obtaining federal protection for the pygmy-owl based on my own interactions and life-long observation of these animals, which I hope to continue so long as pygmy-owl are preserved in Arizona and other areas where I can observe them. Seeing pygmy-owls in the wild is amazing. They are very charismatic, interesting, fierce, family oriented, and handsome creatures. It makes me sad to know the main reason few pygmy-owls exist in Arizona is due to the ongoing destruction of the most biologically rich areas of the Sonoran Desert, namely the bottom- land areas with deep soil, shallow groundwater, and large mesquite bosques and gallery forests. Animals and their habitat are completely intertwined and knowing this web is being broken for pygmy-owls weighs on my mind and lessens my ability to enjoy habitats that I know have been home to larger pygmy-owl populations in the past. Case 4:14-cv-02506-RM Document 52-2 Filed 08/11/16 Page 3 of 7 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. Based on my extensive experience with, and work on, the pygmy-owl, I know that, scientifically, it is important that pygmy-owls continue to exist in the United States because the pygmy-owl represents the unique interaction between the Sonoran Desert and the neotropical ecosystems. The species has roots in the neotropics, yet can make a living in a desert, which is exceptional and amazing to those of us who observe the species in this area and know how specialized a habitat it is for these animals. Additionally, the pygmy-owl is unlike other small desert owls because it defends a much larger territory than both elf and screech owls. Its diet is diverse, feeding on mammals, lizards, birds, and insects. Pygmy-owls are relatively unafraid of humans and are bold and strong as opposed to docile and secretive like other small desert owls, making them a unique species of desert owl in the United States. 9. I have a 10-month old daughter and I want her to be able to experience the desert pygmy-owl in our own backyard of southern Arizona. It is important for me and for her to protect the United States populations of the pygmy-owl, as part of the larger Sonoran Desert Ecosystem, to protect our American biodiversity, and to not have to travel across the border to another country based on what I believe is a misreading of the Endangered Species Act (“ESA”) that says the species is not important in its historical home here in Arizona in the United States. My interests in preserving and protecting pygmy-owls and their habitat in the United States for future generations (including my daughter) as part of the United States’ shared national heritage – including to observe and enjoy aesthetically, spiritually, educationally, and recreationally – is harmed when the pygmy-owl population in the United States diminishes and habitat is lost because of the Fish & Wildlife Service’s (“FWS” or the Service”) failure to grant the pygmy-owl federal protection. 10. I believe that protection under the ESA will help protect the pygmy-owl from the multiple threats it faces, including urban sprawl, invasive species, water withdrawal/pumping, livestock grazing and others, and increase the chance that it will persist in the wild in the foreseeable future by protecting its habitat and increasing Case 4:14-cv-02506-RM Document 52-2 Filed 08/11/16 Page 4 of 7 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 research on its occurrences and habitat needs. I believe that if the pygmy-owl is not protected under the ESA, then it is far more likely to suffer substantial population declines and even go extinct in the northwestern portion of its range. If the pygmy-owl continues to decline or becomes extinct, its loss would deprive me of the benefits I currently enjoy from its existence. I would suffer professional, aesthetic, spiritual, and recreational injuries from the inability to observe and appreciate the pygmy-owl in the wild. My knowledge of the decline of the pygmy-owl and the deterioration of its habitat has already lessened my enjoyment of areas that I know served as homes for more robust populations and, despite my pleasure in visiting the pygmy-owl’s habitat, my concern for its survival continues to detract from my enjoyment of these experiences. 11. In fact, I have already observed once occupied pygmy-owl habitat destroyed for development, extirpating the owls from some of their habitat in the United States. Seeing this decline in pygmy-owl populations, and destruction and deterioration of its habitat saddens me deeply, and negatively affects my aesthetic, spiritual, and recreational interests in enjoying the species. If the pygmy-owl is allowed to go extinct due to the FWS’s refusal to list the species under the ESA (and the underlying policy on which that refusal is based, which reads the phrase “significant portion of its range” in what I believe is an unlawfully narrow manner), my love of the Sonoran Desert Ecoregion will suffer severely, knowing we have destroyed such charismatic microfauna and that we have failed to be good stewards of the land which we all call home. Much of the reason I live in Tucson is because there still exists substantial regional natural heritage and natural resources. Knowing that there is no chance of seeing a pygmy-owl in the wild in Southern Arizona, which I believe will result if the FWS’s refusal to list the species under the ESA is not reversed, would severely negatively impact my enjoyment of the region aesthetically, spiritually, and recreationally. When, as a result of the FWS’s decision, the pygmy-owl continues to decline in population or goes extinct in the United States, I will suffer professionally as well. I sometimes study pygmy-owls for a living, formerly as a Research Biologist for the University of Arizona working on a multi- Case 4:14-cv-02506-RM Document 52-2 Filed 08/11/16 Page 5 of 7 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pronged research project on pygmy-owls and also for SWCA Biological Consultants assessing habitat and surveying for pygmy-owls. Additionally, I co-authored a research article in the academic journal PLOS One evaluating pygmy-owl habitat quality,1 as well as guided and assisted with logistics during filming for a Japanese nature documentary on the pygmy-owl as well as an upcoming BBC documentary featuring the pygmy-owl. As I have researched and observed pygmy-owls for a living, as well as for enjoyment, I will lose a potential source of work when the species declines or is extirpated from the United States, as I believe will inevitably be the case in the absence of protection under the ESA. 12. Thus, my longstanding professional, aesthetic, spiritual, and recreational interests in conserving the pygmy-owl and pygmy-owl habitat are gravely injured by the FWS’s refusal to list the pygmy-owl as an endangered or threatened species, based on the FWS’s unreasonably narrow interpretation of what it means for a species to be endangered or threatened in a “significant portion of its range.” I reside in southwestern Arizona, near pygmy-owl habitat, and seek to observe the dwindling population of pygmy-owls in the nearby Sonoran Desert Ecoregion. Thus, the FWS’ refusal to list the pygmy-owl as threatened or endangered based on the agency’s new statutory interpretation greatly harms my educational, scientific, aesthetic, and recreational interests in observing the pygmy-owl in the Sonoran Desert Ecoregion as the pygmy-owl, divested of federal protection under the ESA, dwindles in number, and as its populations become increasingly disparate and disconnected – making them more difficult to find, observe, and study in the United States and elsewhere in the Sonoran Desert Ecosystem. The Service’s refusal to list the pygmy-owl also greatly increases the likelihood that the pygmy-owl will become extinct in the Sonoran Desert Ecosystem, which poses an even graver and imminent threat to my interests in protecting pygmy-owl and its habitat. 1 Available at http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0119986. Case 4:14-cv-02506-RM Document 52-2 Filed 08/11/16 Page 6 of 7 Case 4:14-cv-02506-RM Document 52-2 Filed 08/11/16 Page 7 of 7 EXHIBIT C IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT No. 4:14-cv-02506-RM Case 4:14-cv-02506-RM Document 52-3 Filed 08/11/16 Page 1 of 8 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric R. Glitzenstein (D.C. Bar No 358287) (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 4115 Wisconsin Ave., N.W., Suite 210 Washington, D.C. 20016 Telephone: (202) 588-5206 Facsimile: (202) 588-5049 Eglitzenstein@meyerglitz.com Attorney for Plaintiffs IN THE UNITED STATES DISRICT COURT FOR THE DISTRICT OF ARIZONA _____________________________________________ ) CENTER FOR BIOLOGICAL DIVERSITY, ) DEFENDERS OF WILDLIFE, ) ) Plaintiffs, ) No. 4:14-cv-02506-RM ) ) DECLARATION OF v. ) CRAIG MILLER ) ) Sally JEWELL, Secretary, U.S. Department of the ) Interior, Daniel M. ASHE, Director, U.S. Fish & ) Wildlife Service, ) ) Defendants. ) ) I, Craig Miller, declare as follows: 1. I am a member of and the Senior Southwest Representative at Defenders of Wildlife (“Defenders”), a Plaintiff in this case. I am submitting this declaration in support of Plaintiffs’ Motion for Summary Judgment. 2. Defenders is a non-profit 501(c)(3) organization headquartered in Washington, D.C. with field offices in Arizona, Alaska, California, Florida, Idaho, Montana, Oregon, and Mexico. Founded in 1947, Defenders is a science-based conservation organization with more than 1,200,000 members and supporters nationwide, and approximately 8,400 members in Arizona. Defenders is dedicated to the protection Case 4:14-cv-02506-RM Document 52-3 Filed 08/11/16 Page 2 of 8 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of all native wild animals and plants in their natural communities, and the preservation of the habitat on which they depend. Defenders advocates for new approaches to wildlife conservation that will help keep species from becoming endangered, and it employs education, litigation, research, legislation, and advocacy to defend wildlife and their habitat. Defenders is one of the nation’s leading organizations seeking to advance endangered species protection and has been involved in issues of ESA implementation for more than 30 years. 3. Defenders believes in the inherent value of wildlife and the natural world, and this singular focus defines our important niche in the environmental and conservation community and serves as the anchor for our organizational values. In furtherance of this organizational mission, Defenders takes action to protect and restore imperiled species throughout North America by transforming policies and institutions and promoting innovative solutions – and this approach makes a lasting difference for wildlife and its habitat a) on the ground at the state and local level, developing practical, innovative programs that protect and restore key species and habitats and inform our national policy work; b) with state, national and international policy makers to secure laws and policies that protect animals and their habitats; and c) in the courts establishing legal safeguards for native wildlife and fighting efforts to roll back environmental protections, acting as legal counsel on behalf of a population segment that cannot act for itself: North America’s wildlife. 4. Defenders strives to protect its members’ and supporters’ recreational, aesthetic, scientific and educational interests in protecting and preserving imperiled species and their habitats through its organizational programs, employing scholarship, litigation, research, legislation, and advocacy to defend wildlife and their habitat. One such program, Defenders’ Conservation Law Program specifically focuses on using litigation and policy as an essential advocacy tool to ensure the survival of endangered and threatened species, protect public lands from development interests, hold federal agencies accountable where they take actions that negatively impact wildlife and habitat, Case 4:14-cv-02506-RM Document 52-3 Filed 08/11/16 Page 3 of 8 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and enforce federal environmental and natural resource laws to preserve the natural legacy of the United States. 5. Additionally, Defenders disseminates scientific and educational information in its various publications, including on Defenders’ website blog which includes the “Weekly Wildlife Wrap-up,”1 our monthly subscription magazine Defenders, and the Defenders of Wildlife eNews, a free monthly e-newsletter. Additionally, Defenders publishes and updates numerous animal fact sheets detailing current threats to imperiled species and their habitats.2 6. Defenders is one of the nation’s leading organizations seeking to advance endangered species protection and has been involved in issues of ESA implementation, including, where appropriate, ensuring the listing of species as endangered or threatened, for more than 30 years. In particular, Defenders has been working extensively for more than a decade to secure federal protections under the ESA for the imperiled cactus ferruginous pygmy-owl (“pygmy-owl”), expending substantial organizational resources in an effort to do so. 7. Defenders and its numerous members’ institutional, educational, recreational, spiritual, and scientific interests are harmed by the FWS’ new interpretation of the phrase “significant portion of its range” not only with respect to the pygmy-owl, but regarding other imperiled species in the United States. Defenders and its members’ interests in observing, studying, and otherwise enjoying the pygmy-owl as well as many other threatened and endangered species and their critical habitats, and in obtaining and disseminating educational and scientific information regarding the survival of imperiled and at-risk species have been harmed by the FWS’ adoption of the new and unlawful Policy construing “significant portion of its range,” 3 and unlawful refusal to list the 1 See https://www.defendersblog.org. 2 See https://www.defenders.org/animal-factsheets. 3 See 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,’ Case 4:14-cv-02506-RM Document 52-3 Filed 08/11/16 Page 4 of 8 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pygmy-owl.4 8. As set forth in March 8, 2012 comments that Defenders’ President and CEO Jamie Clark submitted objecting to the Draft Policy, the “policy’s unreasonably narrow focus on species viability fails to accommodate the ESA’s broader species conservation goals and purpose,” and the FWS’ “exceptionally restrictive approach to [“significant portion or its range”] is also contrary [to the ESA’s] goal of protecting species in the United States.” By rendering the “significant portion of its range” language superfluous, and by completely ignoring the importance of “conserving domestic populations” even when they are more plentiful elsewhere, the FWS’ new Policy interferes with and undercuts Defenders’ institutional mission of utilizing the ESA to protect not only the pygmy-owl but other endangered species and threatened species and all native wild animals and plants in their natural communities, and protect the habitat upon which they depend. Id. 9. Thus, the new Policy interpretation concretely injures Defenders and its members by directly interfering with its core organizational mission by severely weakening Defenders’ ability to successfully petition the FWS for the listing and protection of imperiled and at-risk species and by unlawfully and unreasonably narrowing the scope of potential and candidate species eligible for listing under the ESA. In addition, the new Policy interpretation will drain Defenders’ limited resources (both in terms of staff and monetary resources) that are devoted to protecting imperiled and at-risk species. First, the Policy will require Defenders to expend its resources exploring alternative means of protecting at-risk species of interest to Defenders and its members (such as the pygmy-owl) that otherwise would have been afforded the critical safeguards of the ESA but will be denied such protection by the new Policy. Second, the new Policy necessitates that Defenders spend more of its limited funds attempting to satisfy the 79 Fed. Reg. 37,578 (July 1, 2014) (“Final Policy”). 4 See 12-Month Finding on a Petition to List the Cactus Ferruginous Pygmy-Owl as Threatened or Endangered with Critical Habitat, 76 Fed. Reg. 61,856 (Oct. 5, 2011) (“Final Pygmy Owl Rule”). Case 4:14-cv-02506-RM Document 52-3 Filed 08/11/16 Page 5 of 8 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 extremely stringent standard set forth in the Policy – which requires, in effect, that species may only be listed when they are at risk of extinction throughout all of their range – rather than satisfying the less stringent standard that the Service applied prior to adoption of the final policy (as illustrated by the Service’s abrupt reversal of position on listing of the pygmy owl based on its status in the Sonoran Desert). 10. As noted, Defenders and its members have a strong interest in obtaining federal protection for the cactus ferruginous pygmy-owl (G. ridgwayi cactorum) (“pygmy owl”). Defenders has worked to ensure its protection under the ESA for more than a decade. When the pygmy-owl was previously listed as an endangered species in Arizona, Defenders endeavored to maximize the protections afforded the species by that listing, particularly through the safeguards afforded by sections 7 and 9 of the ESA. After the prior endangered listing was rescinded in 2006,5 Defenders, in conjunction with Plaintiff Center for Biological Diversity, submitted to the FWS a joint petition to list the pygmy- owl as a threatened or endangered species under the ESA not only for the gravely imperiled Arizona population but also the greater Sonoran Desert population, which includes the Arizona population. 10. I personally have extensive and longstanding professional and personal interests in the conservation of the pygmy-owl in Arizona. As a representative of Defenders, in 1998, I was appointed by the Regional Director of Region 2 of the FWS, to the formal pygmy-owl Recovery Team, and I served on the team’s Implementation Group through 2003. In 1998, I was invited by U.S. Congressman Jim Kolbe to serve as a panelist of the “Pygmy Owl Forum” represent the interests of Defenders and the public at large, and also to discuss issues surrounding conservation of the pygmy-owl in the Sonoran Desert. Also, in 2002, as representative of Defenders, I was appointed to a special committee by the Town of Marana to study the pygmy-owl/development conflict and to work with developers and community leaders on constructive solutions to 5 71 Fed. Reg. 19,452 (Apr. 14, 2006). Case 4:14-cv-02506-RM Document 52-3 Filed 08/11/16 Page 6 of 8 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conserve the pygmy-owl in the Sonoran Desert. As a result, the town of Marana established the 2,400 acre Tortolita Preserve, as a means to mitigate the impact of multiple new high-density residential subdivisions throughout pygmy-owl habitat. In addition to these professional interest, I also have longstanding personal interests in conservation of the pygmy-owl. I regularly visit occupied and potential pygmy-owl habitat in the Tucson area, hoping to observe some of the last remaining members of the species in this vicinity, and I intend to continue such visits for the foreseeable future. 11. The longstanding interests of the Defenders and its members in conserving the pygmy-owl and pygmy-owl habitat are gravely injured by the FWS’s refusal to list the pygmy-own as an endangered or threatened species in response to Defenders’ petition. Many of the Defenders’ members, including myself, regularly seek to study and enjoy observing the dwindling population of pygmy-owls in the Sonoran Desert Ecoregion. Thus, the FWS’ refusal to list the pygmy-owl as threatened or endangered based on the agency’s new statutory interpretation harms Defenders’ and its members’ educational, scientific, aesthetic, spiritual, and recreational interests in observing the pygmy-owl in the Sonoran Desert Ecoregion as the pygmy-owl, divested of federal protection under the ESA, dwindles in number, and as its populations become increasingly disparate and disconnected – making them more and more difficult to find, observe, and study in the United States and elsewhere in the Sonoran Desert Ecosystem. The Service’s refusal to list the pygmy-owl also greatly increases the likelihood that the pygmy-owl will become extinct in the Sonoran Desert Ecosystem, which poses an even graver and more imminent threat to the interests of Defenders and its members in the pygmy-owl and its habitat. In addition, the Tortolita Preserve that I helped bring into fruition, and similar efforts to preserve our community’s interest in conserving the pygmy-owl are now in jeopardy as a result of the Service’s new “significant portion of its range” policy and consequent refusal to protect the pygmy-owl. 13. As detailed above, for decades Defenders has expended substantial organizational resources – both monetary and human – in attempting to obtain needed Case 4:14-cv-02506-RM Document 52-3 Filed 08/11/16 Page 7 of 8 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ESA protections for the pygmy-owl on behalf of its members. Defenders’ organizational interests in furthering the conservation objectives of the ESA, including its express purpose to safeguard imperiled species in the United States even if they are more abundant elsewhere, is severely undercut by the FWS’ unlawful refusal to extend federal ESA protections to the pygmy-owl particularly as it resides in the Sonoran Desert Ecoregion in the United States merely because the owls may be more plentiful in southern Mexico, far removed from Defenders’ members. 14. For these reasons, Defenders and its members are concretely and severely injured both by the FWS’ improper refusal to list the pygmy-owl, and the FWS’ unlawful new interpretation of the phrase “significant portion of its range.” Pursuant to 28 U.S.C. § 1746, I hereby declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. August 8, 2016 _________________________ Craig Miller Senior Southwest Representative, Defenders of Wildlife Case 4:14-cv-02506-RM Document 52-3 Filed 08/11/16 Page 8 of 8 EXHIBIT D IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT No. 4:14-cv-02506-RM Case 4:14-cv-02506-RM Document 52-4 Filed 08/11/16 Page 1 of 9 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric R. Glitzenstein (D.C. Bar No 358287) (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 4115 Wisconsin Ave., N.W., Suite 210 Washington, D.C. 20016 Telephone: (202) 588-5206 Facsimile: (202) 588-5049 Eglitzenstein@meyerglitz.com Attorney for Plaintiffs IN THE UNITED STATES DISRICT COURT FOR THE DISTRICT OF ARIZONA _____________________________________________ ) CENTER FOR BIOLOGICAL DIVERSITY, ) DEFENDERS OF WILDLIFE, ) ) Plaintiffs, ) No. 4:14-cv-02506-RM ) v. ) DECLARATION OF ) CHRISTINA MCVIE ) Sally JEWELL, Secretary, U.S. Department of the ) Interior, Daniel M. ASHE, Director, U.S. Fish & ) Wildlife Service, ) ) Defendants. ) ) I, Christina McVie, declare as follows: 1. I am a member of Defenders of Wildlife (“Defenders”), a Plaintiff in this case. I am submitting this declaration in support of Plaintiffs’ Motion for Summary Judgment. 2. I have been a Defenders member since the 1990s and support environmental protection and conservation efforts for wild places and wildlife. I rely on Defenders to help represent my interests in the protection of all native wild animals and plants in their natural communities and the preservation of the habitat on which they depend, including the cactus ferruginous pygmy-owl (“pygmy-owl”). 3. I have volunteered for Defenders on numerous occasions to aid its mission, including by attending numerous events and rallies to support wildlife protection and helping with grassroots organizing. 4. I have almost two decades of experience observing, researching and Case 4:14-cv-02506-RM Document 52-4 Filed 08/11/16 Page 2 of 9 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 advocating for the pygmy-owl in the southwestern United States. My intense interest in the pygmy-owl was sparked by presence of the most productive known pygmy-owl nest site known to the Arizona Game and Fish Department located adjacent to my personal residence at 4420 West Cortaro Farms Road, Tucson, Pima County, Arizona, and my discovery of it in the mid-1990s. My property consists of a majority undeveloped parcels of land, and constitutes a portion of the open space that comprised the two owls’ 280 acre home territory. In the years since discovering the presence of such a rare, endemic species on this property, I have become a fervent advocate for the pygmy-owl in the southwestern United States and Arizona. Pygmy-owls were also detected on undeveloped property I own in southern Pinal County, Arizona. In fact, because of my personal familiarity with and relentless enthusiasm for protecting the pygmy-owl and its habitat, locally I am known as the “Owl Lady.” 5. Since living with pygmy-owls literally in my backyard for years, I have observed them countless times. Despite our close proximity, I am continually awestruck when I see these unique and special owls engaging in their feeding, breeding and hunting behaviors. I recall one particularly striking instance where I witnessed a hunting pygmy- owl execute a wonderful mid-air capture of a dove in our backyard. I remember fledgling baby owls, with their awkward and clumsy manner, becoming impaled on cholla cactus after attempting to take flight, requiring rescue by the Fish and Wildlife Service (“FWS”). I recall observing their behavior of elongating and remaining motionless while avoiding predators such as Harris hawks. I have also observed pygmy-owls hunting uncharacteristically during the day, as well as perching down low in ironwood trees and pouncing on lizards. I have observed pygmy-owls engage in the full gamut of natural behaviors, both in my backyard and in other areas of southern Arizona, numerable times. 6. In addition to observing the pygmy-owl on my two properties, I enjoy searching for owls as I hike and birdwatch in nearby areas, like the Ironwood Forest National Monument, Organ Pipe Cactus National Monument and Saguaro National Park. I have led educational talks for students and other interested persons, describing pygmy- Case 4:14-cv-02506-RM Document 52-4 Filed 08/11/16 Page 3 of 9 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 owl behaviors and habitat. Furthermore, I seek out pygmy-owls by going to their known or anticipated habitats to observe them to further my mental and spiritual health. 7. In the nearly two decades since I began observing pygmy-owls, I have observed that pygmy-owls return to certain suitable locations, and I have seen those locations and habitats threatened by sprawl, tourism, livestock grazing, drought, and the encroachment of the invasive species, buffelgrass, among other threats. In my opinion, having personally communicated with researcher Dr. Aaron Flesch to evaluate threats to the pygmy-owl, drought in particular is a serious threat to the Arizona population of the pygmy-owl since there is a one to two year time lag after a drought before the pygmy-owl population decreases. 8. Over the last two decades, I have volunteered with Defenders to aide in the protection and conservation of pygmy-owls and their habitat. In the late 1990s, I volunteered for Defenders on a lawsuit challenging the U.S. Army Corps of Engineers nationwide Clean Water Act section 404 permit for not adequately taking the pygmy-owl and its habitat into account in making their determinations. See Defenders of Wildlife v. Ballard, 73 F. Supp. 2d 1094 (D. Ariz. 1999). As a volunteer on that successful case, I researched and gathered evidence of issued permits impacts on the pygmy-owl in Arizona’s Pima and Pinal Counties. 9. I have also submitted public comments on the various pygmy-owl-related management actions taken by the government over the past 19 years both individually and on behalf of various organizations including Defenders, the Tucson Audubon Society (where my various roles over the past 15 years have included board member, Vice President, and currently Conservation Chair), as well as the now-defunct non-profit, Desert Watch, where I was a founding member and formerly Executive Director. For instance, in April of 2003, I submitted lengthy comments to the Fish and Wildlife Service’s (“FWS”) on the proposed critical habitat designation for the then-listed as endangered pygmy-owl. In October of 2005, I submitted personal comments on the proposed delisting of the pygmy-owl in my capacity as a concerned citizen, an active Case 4:14-cv-02506-RM Document 52-4 Filed 08/11/16 Page 4 of 9 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 participant in the drafting of Pima County’s Sonoran Desert Conservation Plan, and as a member of its Steering Committee and its Multi-Species Conservation Plan Implementation Drafting and Negotiating Committee. In October of 2008, I authored and submitted over one hundred pages of comments on the FWS’ 90-day Finding on the Cactus Ferruginous Pygmy-Owl, see 73 Fed. Reg. 31418 (June 2, 2008), on behalf of Defenders and the Tucson Audubon Society. 10. I have been involved in local and regional land use planning and conservation efforts in southeast Arizona from 1992 to the present. In 1997, my husband and I served on the Pima College Northwest Campus Site Selection Committee. My husband and I also served on Pima County’s Northwest Comprehensive Plan Advisory Committee. In addition to submitting numerous comments, I served on the Implementation Group of the FWS’s Cactus Ferruginous Pygmy-Owl Recovery Team from its inception in 1998 through 2003. I was a Science Contributor and a member of Pima County’s Sonoran Desert Conservation Plan’s Steering Committee from 1999- 2003, and a member of the county’s Multi-Species Conservation Plan – Implementation Drafting and Negotiating Committee. I served on the county’s successful May 2004 Open Space Conservation Bond Advisory Committee, chaired its Cortaro/Thornydale Mitigation Site Selection Committee from 2000-2001, and served on its Environmentally Sensitive Resource Ordinance and Conservation Subdivision Ordinance Advisory Groups. I have appeared before the Arizona Power Plant and Transmission Line Siting Committee (2015) and Arizona Corporation Commission (2016) as a Pro Se Intervenor regarding the SunZia Transmission Line – pertinent and related to the biological wealth and biodiversity of previously identified CFPO critical habitat, which I helped to map. I am also a member of the DOI’s Desert Landscape Conservation Cooperative and co- authored one of the 3 pilot project proposals chosen for future implementation. I currently serve as the Tucson Audubon Society’s Conservation Chair. As a founding member in 1998, and Chair of the Advisory Committee for over a decade, I frequently speak on behalf of the Coalition for Sonoran Desert Protection. I have received numerous awards Case 4:14-cv-02506-RM Document 52-4 Filed 08/11/16 Page 5 of 9 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 including: the first Corazon de Justicia Award from Derechos Humanos and Alianza Indigena Sin Fronteras for “conservation and dedication to the struggle for justice and human rights in our community” in 2003; the Common Ground Public Policy Award from the Metropolitan Pima Alliance for proposing Pima County’s Transfer of Development Rights Policy - “we can find common ground only by moving to higher ground” – in 2007; an honorary degree in wildlife biology from professional wildlife biologist mentors and colleagues, including members of the FWS’s SE Arizona Ecological Services Office and Pima County staff, in 2011; the Tucson Audubon Society’s David Yetman Award for exhibiting and promoting conservation in southern Arizona - “for being a true friend to our Sonoran Desert and a strong force for its conservation and for having profound and long-lasting positive effects on its protection” in 2014; the Sky Island Alliance Nancy Zierenberg Advocate Award in 2014; the Common Ground Award from the Metropolitan Pima Alliance: Top 20 Project of the Year for Exemplary Collaboration on the Ina and Silverbell Subdivision Change of Zoning Conditions in 2015 and; the Arizona Chapter of The Wildlife Society’s Conservationist of the Year Award for 2015. 11. In addition to the previous regular observation of pygmy-owls I was so fortunate to undertake in my own backyard, I have current plans to visit prime suitable pygmy-owl habitat subsequent to the release of captive-bred owls into the wild near the lower San Pedro River by the Arizona Game and Fish Department. I have long supported and been involved with the captive breeding program and have concrete plans to go to the lower San Pedro River area next year to attempt to observe pygmy-owls there. 12. I have an intense personal interest in obtaining federal protection for the pygmy-owl based on my own interactions and decades-long observation and concern for these animals, which I hope to continue so long as pygmy-owls are preserved in Arizona and other areas where I can observe them. I am delighted when I am able to observe pygmy-owls, and not seeing them in places where I know that they once resided, including my own backyard, is distressing and makes me feel terrible. Pygmy-owls are Case 4:14-cv-02506-RM Document 52-4 Filed 08/11/16 Page 6 of 9 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 normally quiet, very discreet and not easy to see or find, except when they are mating and engage in loud calling behaviors. Because of my familiarity with their behaviors, I have assisted others in observing these quiet animals, both members of the public and officials of the Arizona Game and Fish Department and FWS. 13. It saddens me greatly to know the main reason few pygmy-owls exist in Arizona is due to the ongoing destruction of the most biologically rich areas of the Sonoran Desert, through sprawl, livestock grazing, and desert upland and riparian habitat destruction and degradation. Pygmy-owls are also not doing well in Sonora because their habitat has been encroached upon and converted in huge degree by buffelgrass, an invasive, non-native African grass planted by ranchers because it outcompetes other grasses. Buffelgrass creates a monoculture that destroys ecological diversity and greatly increases fire hazards. Not only is pygmy-owl habitat under threat, but so too is the entire Sonoran Desert ecosystem. Tools like the reintroduction of captive-bred pygmy- owls will not succeed where those owls are placed into a threatened ecosystem, and where we lack the tools to protect those owls and their habitat once they establish and occupy a territory. The degradation of pygmy-owl habitat and the reduction in their population weighs heavily on my mind, and significantly lessens my ability to enjoy the few remaining pygmy-owls I do observe. 14. It is critically important to protect the United States populations of the pygmy-owl, as part of the larger Sonoran Desert ecosystem, to protect our American biodiversity. My interests in preserving and protecting pygmy-owls and their habitat in the United States as part of the United States’ shared national heritage – including to observe and enjoy them aesthetically, spiritually, educationally, and recreationally – is harmed when the pygmy-owl population in the United States diminishes and habitat is lost because of the FWS’ failure to grant the pygmy-owl federal protection. 15. I believe that listing under the ESA is essential to help protect the pygmy- owl from the multiple threats it faces, including urban sprawl, invasive species, water withdrawal or pumping, climate change, prolonged drought, livestock grazing and others, Case 4:14-cv-02506-RM Document 52-4 Filed 08/11/16 Page 7 of 9 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and increases the chance that it will persist in the wild in the foreseeable future by protecting, monitoring and adaptively managing its habitat and increasing research on its occurrences and habitat needs. I believe that the failure to protect the pygmy-owl under the ESA makes it far more likely to suffer substantial population declines and even go extinct in the northwestern portion of its range. If the pygmy-owl continues to decline or becomes extinct, its loss would deprive me of the benefits I historically enjoyed and currently enjoy from its existence. 16. As a result of the FWS’s decision refusing to list the pygmy-owl, I am suffering, and will continue to suffer professional, aesthetic, spiritual, and recreational injuries because this decision is directly impairing my ability to observe and appreciate the pygmy-owl in the wild. My knowledge of the decline of the pygmy-owl and the deterioration of its habitat, to which the FWS decision has contributed, has already lessened my enjoyment of areas that I know served as suitable habitat and/or occupied territories for more robust populations and, despite my pleasure in visiting the pygmy- owl’s habitat, my concern for its survival continues to detract from my enjoyment of these experiences. 17. The FWS’s refusal to list the pygmy-owl under the ESA (and the underlying policy on which that refusal is based, which reads the phrase “significant portion of its range” in what I believe is an unlawfully narrow manner) makes it far more likely that the pygmy-owl will go extinct in Arizona and, as a result, my enjoyment and appreciation of the Sonoran Desert Ecoregion is suffering, and will continue to suffer, severely, knowing that such a unique and charismatic species as the pygmy-owl is being allowed to spiral towards extinction in the Sonoran Desert Ecoregion without any effort to conserve the species under the ESA. In the absence of relief from this Court, the pygmy-owl will continue to decline in population and head towards extinction in the United States, to the detriment of my longstanding aesthetic, educational, spiritual, and recreational interests in conserving the pygmy-owl and pygmy-owl habitat. Case 4:14-cv-02506-RM Document 52-4 Filed 08/11/16 Page 8 of 9 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to 28 U.S.C. § 1746, I hereby declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. August 10, 2016 __________________________________________________________________ Christina McVie Case 4:14-cv-02506-RM Document 52-4 Filed 08/11/16 Page 9 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISRICT COURT FOR THE DISTRICT OF ARIZONA _____________________________________________ ) CENTER FOR BIOLOGICAL DIVERSITY, ) DEFENDERS OF WILDLIFE, ) ) Plaintiffs, ) No. 4:14-cv-02506-RM ) v. ) PROPOSED ORDER ) ) Sally JEWELL, Secretary, U.S. Department of the ) Interior, Daniel M. ASHE, Director, U.S. Fish & ) Wildlife Service, ) ) Defendants. ) ) This matter is before the Court on the parties’ cross-motions for summary judgment. On consideration of the parties’ motions and the entire record before the Court, it is, this ___ day of ___, 2017, ORDERED that Plaintiffs’ motion for summary judgment is granted; and it is further ORDERED that Federal Defendants’ and Defendant-Intervenor’s motions for summary judgment are denied; and it is further ORDERED that, for the reasons set forth in the accompanying Opinion, the “12- Month Finding on a Petition to List the Cactus Ferruginous Pygmy Owl as Threatened or Endangered,” 76 Fed. Reg. 61,856 (Oct. 5, 2011), and the “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,’” 79 Fed. Reg. 37,578 (July 1, 2014), are hereby vacated and remanded. _________________ U.S. District Judge Case 4:14-cv-02506-RM Document 52-5 Filed 08/11/16 Page 1 of 1