WI L DEARTH GU ARDIANS,

Plaintiff,

v. KEN SALAZ AR, Secre tary of the Interior, Def endant. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 08–1596 (CKK)

MEMORAN DUM OP INION (September

28, 2010) Plaintiff, Wi ldEarth Gua

rdians, bring s this action ag ainst Defe ndant, Ken Sala zar, Secre tary of the I nterior, pursuant to the Administrative Proce dure A ct (“ APA”). 5 U .S.C. § 701

1 et. seq. Plaintiff seeks judicial re view of the Fish and Wildlife Service ’s (“ FWS”) final a g ency actions deny

ing Plaintiff’ s petition to reclassify the Utah pr airie dogas an e ndang ere d specie s under the Endang ere d Species Ac t (“ESA”) , 16 U.S.C. § 1531 et. seq. , as we ll as Plainti ff’ s petition to ini tiate rulemaking to r epea l a re g ulation allowing f or the limited ext ermination of Utah pra irie dog s. Currently befor e the Court ar e Plaintiff’s [33] Motion for Summary J udg ment (“Pl.’s Mot.”), D efe ndant’s [34] Cross-Motion for Summary J udg ment (“D ef.’ s Cross-Mot.”), and Plaintiff’s [36] Reply in Support of Plainti ff’ s Motion for Summary J udg ment (“Pl.’s Reply ”). The Court has thoroug hly revie wed the pa

rties’ submissions, the administrative rec ord, applicable case law, the r eleva nt statutory

and re g ulatory

authority , as we ll as the rec ord of the

case as a whole. For

the re asons set for

th below, the Court shall GRANT-I N-PART and DEN Y-

Pursuant to Fede ral Rule of Civil Procedure 25(d), the c urre nt Secre tary of the Interior, 1 Ken Salazar , has bee n automatically substitut ed as de fenda

nt.I

N-PART Plaintiff’s [33] Motion for Summary J udg ment, shall GRANT-I N-PART and DEN YI N-PART Def

endant’ s [34] Cross-Motion for Summary J udg ment, and shall re mand this matter to the ag ency

for f urther c onsideration consistent with this Memorandum Opinion. Specifica lly , the Court shall GRANT Plaintiff’s Motion for Summary J udg ment and DEN Y Def endant’ s Cross-Motion for Summary J udg ment with respec t to Pl aintiff’s pe tition t o rec lassify the Utah prairie dog beca

use (1) FWS failed to explain why the re duction in the specie s’ historical ra ng e did not indicate that re classification may be wa rra nted and ( 2) F WS failed to c onsider the cumulative ef

fec t of the ESA’s listing fa ctors as r equire d under 50 C.F .R. § 424.11(c). In addition, the Court shall DENY Plaintiff’s Motion for Summary J udg ment and GRANT Def endant’ s Cross-Motion for Summary J udg ment insofar a s Plainti ff a sserts that FWS’ ref usal to initi ate r

ulemakingwas a

rbitrar y , capr icious, and not in acc ordanc e with the ESA. I. BACKG ROUND A. Statutory and Regulatory Back ground Congr ess ena cted the E SA in 1973 “to provide a me ans whe reby the ec osy stems upon which enda

ng ere d specie s and threa

tened spe cies de pend may be conse rved, [and] to provide a prog ram for

the conse rvation of suc h endang ere d and thre atene d specie s.” 16 U.S.C. § 1531(b). An enda ng ere d specie s is “any

specie s which is in dang er of exti nction throug hout all or a signific ant portion of its rang e . . . .” Id. § 1532(6). In contra st, a threatened spe cies is one that “is likely to become a

n endang ere d specie s within the forese eable future . . . .” Id. § 1532(20). To be prote cted unde r the ESA, a spe cies must be “listed” as either an enda ng ere d or threatened spe cies by

the Secr etar

y of the Interior. See id. § 1531(b). Althoug h the Secr etar y 2

The Sec reta

ry has dele g ated his duties for te rre strial (i.e., non-ma rine) spe cies to the 2 FWS. See 50 C.F.R. § 402.01(b). The Court shall use the term “ FWS” and “Sec reta ry” intercha ng eably throug hout this Memorandum Opinion.may

list species himself, see id. § 1533(a) , individual citiz ens may also petition the Secre tary to list, delist , or re classify

a spec ies, see id. § 1533(b)( 3)(A) . To the extent possibl e, within 90-day s of re ceivingsuch a pe tition, “the Secre tary shall make a

finding as to whethe r the pe tition prese nts substantial scientific or commer cial information indicating that the pe titioned action may be wa rra nted.” Id. ; see also 50 C.F.R. § 424.14(b)( 1) (pr oviding that, “ to the maxi mum extent possi ble,” the Sec reta ry is to make this finding within 90-day s). A petition contains “substantial information” when it has a n “amount of infor

mation that would lead a

rea sonable pe rson to believe that the measure proposed in the pe tition m ay be

war rante d.” Id. When determiningwhether the petitioned ac tion “may be wa rra nted,” the 3 Secre tary examines the following f ive listing fa ctors’ individual and c umulative eff ect on the specie s: (A) t h e p re s en t o r t h re at en ed d es t ruction, mo d i fi ca t i o n , o r

curta ilment of its habitat or rang e; (B ) o v er u t i liz ation for commerc ial, rec reational, s ci en t i fi c, o r educational purposes; (C) disease or

predation; (D) the inadequa cy

of existi ng regulatory

mecha nisms; or

In particula

r, whe n evaluating if the petition has prese nted “substantial information,” the 3 Secre tary must consider whe ther the pe tition: “(i) Clea rly indicates the a dminist rative me asure rec ommended and g ives the scientific and any common name of

the spec ies involved; (ii) Contains detailed nar

rative justification for the re commended me asure , descr ibing, ba sed on available information, past and pr esent number s and distribution of the specie s involved and any threats face d by

the spec ies;(iii) Provides information reg arding the status of the spec ies over a ll or a sig nificant portion of its ra ng e; and ( iv) I s acc ompanied by appropr iate supporting documentation in the for

m of bibliogra

phic re fer ence s, repr ints of pertinent publications, copies of re ports or letters f

rom authorities, and ma

ps.” Id. § 424.14(b)( 2).

3(E) other n at u ra l o r m an m ad e fa ct o rs aff ecting its continued exis tence

. 16 U.S.C. § 1533(a)(1) ; see also 50 C.F.R. § 424.11(c) (providingthat specie s are to be listed based on “ any

one or a combination” of the aboveme ntioned fac tors). In makingthis deter mination, the Secre tary

may only consider “ the best ava ilable scientific a nd commerc ial information re g ardinga spec ies’ status, without refe renc e to possible economic or other impac ts of such de termination.” Id. § 424.11(b); 16 U.S.C. § 1533(b)(1) (A). T he Secr etar y ’s findingin reg ards to a pe tition, refer red to a s a “90- day

finding ,” is published in the Fe dera l Reg ister. See id. § 1533(b)( 3)(A)

. I f the Sec reta

ry ’s 90-da

y finding conclude s that the petition presents substantial information in support of the pe titioned action, the Secr etar y then must “promptly

commence a revie w of the status of the specie s conce rned.” Id. This reviewculminates in another finding issued within 12-months of rece ipt of the petition that concludes whe ther the pe titioned action is: (a) war rante d; (b) not war

rante d; or (c) war

rante d but prec luded by

other listing a ctivity

. Id. § 1533(b)( 3)(B ). The ESA extends cer

tain protec tions to l isted species, inc luding, most pertinent to this

case , a prohibition on the “take ” of a n endang ere d specie s. Id. § 1538(a) (1)( B)

. The ter m “take” is defined a s “to hara ss, harm, pursue , hunt, shoot, wound, kill , trap, c apture , or collec t, or to attempt to eng ag e in any

such conduc t.” Id. § 1532(19). Althoug h the ESA does not automatically

extend the take prohibition to threatene d specie s, the Secre tary has the discr etion, under ESA subsec tion 4(d), to “issue such r egulations as he dee ms nece ssary and advisa

ble to provide for

the conse rvation of [threate ned] species.” Id. § 1533(d). The Secre tary has exercise d this discretion to ge nera lly extend the take prohibition to threatene d specie s. See 50 C.F.R. §

417.31. B. Factual Back ground 4 The Uta h prairie dog( Cynomys parv idens ) is one of f ive pra irie dog s species, a ll of which

are native to North Ame rica and have non-over lapping g eog raphic rang es. AR 1 at 263 (72 F ed. Reg . 7843, 7843 (F eb. 21, 2007) ( FWS’ 90-day finding ) (he reina fter “ Finding ”))

. The Uta h 5 prairie dog ’s ra

ng e is confine d to five southwester n Utah counties, r ender ing it cur rently the most g eog raphic ally

restric ted of a ll prairie dogspecie s. Id. at 263-64. The Utah pra irie doglives in ag g reg ations called c olonies, towns, or villag es. Id. at 903 (John L . Hoog land, Black- tailed Prairie Dog in Wil d Mammals of North Ame rica : Biolog y , Manag ement, and Conser vation 232, 237 (Ge org e A. F eldhamer , Br uce C. Thompson & J oseph A. Chapman e ds., 2nd ed. 2003)) . I ts pref err ed habitat c onsists of swale for mations with moi st herbag e and w ell-dra ined soil conducive for bur

rowing

. Id. at 264 (F inding) . Utah pra irie dog s are also predominate ly herbivore s, pref

err ing a lfalfa

and g rasse s, and ar e true hibernators that cea se most surfac e ac tivity duringthe har sher winter months. Id.

The Court’s re view in this case is “ confine d to the full administrative rec ord bef ore the 4 ag ency at the time the dec ision was made.” Envtl. Def. Fund, I nc. v. Costle , 657 F.2d 275, 284 (D.C. Cir. 1981). “The foca l point for judicial revie w should be the a dminist rative r ecor d alre ady in exi stence , not some new re cord c ompleted initially in the revie wing court.” Id. Acc ording ly , althoug h both parties at times re fer to information outside the administrative re cord, the Court does not consider

such information in dis cussing the re levant fa ctual and pr ocedur al bac kg round of this case or in eva luating the parties’ arguments. There are two administrative re cords in this case . The Court adopts the pa rties’ 5 convention of c iting to the administrative r ecor d for F WS ’ denia l of Plaintiff’s petition to rec lassify the pra irie dogas enda

ng ere d as “A dminist rative Rec ord 1,” or “AR 1,” a

nd the administrative re cord f

or F WS ’ denia l to init iate rule making as “A dminist rative Rec ord 2,” or “AR 2.” Supplements to both administrative re cords we re f iled. To the extent the supplements are not consec utively

pag inated with their re spective a dminist rative r ecor ds, the Court adopts the following convention for

a citation to the first pa g e of the fourth docume nt in a supplement to the second a dminist rative r ecor d filed as doc ket number 27: AR 2 Supp. Dkt. # 27-4, at 1. 5Although the first Utah pra irie dogcensus wa s not conducted until 1976, historical

estimates have place d the spec ies’ population in the 1920s at 95,000 animals ac ross a ra ng e of 713 square miles. Id. Since then, the spe cies ha s declined due to droug ht, habitat alteration, 6 disease ( predominate ly

sylvatic plague, known a s bubonic plague in humans), a nd targ eted

era dication by

humans. See id. at 264, 268; id. at 1104 (Rodney L . Play er & Phili p J . Urne ss, Habitat Manipulati on for Reestablishment of Utah Prairie Dog in Capitol Ree f Nati onal Park , 42 Gre at B asin Natura list 517, 517 (1982)). In 1973, the spec ies dec lined to approxim ately 3300 animals ac ross thirty -seve n colonies and, conse quently , FWS lis ted the Utah pr airie dogas an e ndang ere d specie s under the E SA. Complaint ¶ 26, Docket No. [1]; Answer ¶ 26, Doc ket No. [9] ; see also AR 1 at 251 (38 F ed. Reg . 14678 (June 4, 1973)). Six y ear s later, in 1979, the Uta h Division of Wi ldlife and Resource s (“UD WR ”) pe titioned FWS t o remove the spec ies from the L ist of Endang ere d and Threatened Wildlife. AR 1 at 265 (F inding) . In 1984, FWS responded to UDWR’s petition by

rec lassifying the specie s as threatened a nd conclude d that althoug h “the Uta h prairie dog is stil l threatened ove r much of its ra ng e,” be cause the spec ies’ population has incr ease d since 1972, it is not longer

in dang er of

exti nction. Id. at 252 (49 F ed. Reg . 22,330, 22330 (May 29, 1984)). The 1984 re classification decision was ac companied by a rule promulg ated unde r ESA subsection 4(d) that abrog ated the g ener al prohibition on the take of thr eate ned spec ies in reg ards The Court notes that the pa rties disagree on the ac cura cy of these e stimates. For 6 example, FWS arg ues that bec ause no f ormal ce nsus was conduc ted until 1976, “[i ]tis probably not possible to obtain accur ate f igur es of pa st populations.” Def.’ s Cross-Mot. at 7 (quoting A R 1 at 1204 (1991 Uta

h Prairie DogRecove ry

Plan)). Plaintiff, in turn, argues that eve n if the estimation is im perf

ect, it is the best information ava ilable and F WS itself has pre viously relied on this estimation. See Pl.’s Mot. at 30. The Court rec og nizes the parties disag ree ment and its citation to the 1920 estimate should not be construe d as an e ndorsement of either pa rties’ viewof the estimate’s ve rac ity

. 6to the Utah pra irie dogand per mitted a maxi mum take of 5000 a nimals per y ear

under a permitting sc heme a dminist ere d by UDWR. Id. at 252, 255. In 1991, FWS, citing incr ease d population counts, increa sed the a llowed take f or Utah pr airie dog s to 6000 animals per y ear (her einaf ter “ 1991 Rule”). AR 1 at 257, 259 (56 Fe d. Reg . 27,438, 27,440 (June 14, 1991)). When the pendingmotions were f iled, the 1991 Rule was still in effe ct. SeePl.’s Reply at 21-22. Under the 1991 Rule, the UDWR issues take per mits on a case- by -ca se basis af ter c onsidering whether the proposed ta

ke “is ne cessa

ry for the c onserva

tion and manag ement of the specie s and the ef fec t on overa ll population st atus.” AR 1 at 255 ( 49 Fe d. Reg . at 22,333). Permits are g rante d only

for those U tah pra irie dog s causingdamag e to the land, id. at 259 (56 F ed. Reg . at 27,440), and f

or no more tha

n ten per cent of

the animals in a g iven colony , id. at 269 (72 F ed. Reg . at 7849). F rom the ince ption of the permitted take prog ram in 1985 until 2008, a total of 49,204 takes have bee n permitted, re sulting in 21,054 repor ted takes, a

nd the ave rag e y ear ly repor ted take ha s been a

pproxi mately

960 animals. See AR 2 Supp. Dkt. # 27-4, at 1 (Summary of Utah Pra irie DogControl Progra m (1985-2008))

. C. Procedural Bac kground On Fe bruar

y 3, 2003, Plaintiff filed a pe tition wit h FWS requestingthat the Utah pr airie 7 dog be re classified a s endang ere d (her einaf ter “ Reclassification Petit ion”). See AR 1 at 1-213. In the Recla ssification Petition’s 189 pag es of discussion and a naly sis, Pl aintiff cited to ove r 200

source s and desc ribed why it believes that the ESA’s listing f actor s indicate that re classify ing the Utah pra irie dogas enda

ng ere d may

be wa rra nted. See Pl.’s Mot. at 18, 32. FWS acknow ledg ed

Note, whe n the Recla ssification Petition was filed Plaintiff was ca lled “F orest 7 Guar dians.” SeeAR 1 at 1 (Rec lassification Petition). Plainti ff ha s since cha ng ed its name to “WildEarth Guar dians.” See Pl.’s Mot. at 24 n.3. 7rec eipt of the Rec lassification Petition in a letter dated N ovember 21, 2003, in which it advised Plaintiff that funding restric tions prevented F WS from initiating a 90-day finding duringthe 2003 and 2004 fisca l y ear s. AR 1 at 214 (L etter f rom J ohn A. B lankenship, De puty Reg ional Dir., FWS, Dep’t of the I

nterior, to Dr . Nicole Rosemar ino, Endang ere d Species Dir., F orest Guar dians (Nov. 21, 2003) ). On Fe bruar

y 2, 2005, while Plaintiff awa ited FWS’ reply to the Reclassifica

tion Petit ion, Plaintiff petitioned FWS to repeal the 1991 Rule, a s well as to promulg ate a new r ule re stricting the translocation of Utah pra irie dog s from private to public lands (her einaf ter “ APA Petition”). AR 2 at 1344-66 (A PA Petiti on). The A PA Petiti on incorpora ted by ref ere nce the Reclassification Petit ion’s claims and a rgued, inter alia , the 1991 Rule hinders the r ecove ry of the Utah pr airie dog

. Id. at 1346, 1351-56. FWS acknowledg ed re ceipt of the APA Petition i n a letter dated April 6, 2005. AR 2 at 1368 (L etter f rom ActingMountain-Prairie Re g ion Dir., FWS, Dep’t of the I

nterior, to Dr . Nicole Rosemar ino, Endang ere d Species Dir., F orest Guar dians (Apr . 6, 2005)). On Fe bruar

y 2, 2006, near ly

three y ear s after

Plaintiff filed the Recla ssification Petition, FWS had not initi ated a

90-day finding and so Plaintiff filed suit to compel FWS to do so. Compl. ¶ 35; Answer ¶ 35. In acc ordanc e with the cour t-approve d settlement ag ree ment in that 8

case , FWS was requir ed to publish a 90-day finding by

Fe bruar y 17, 2007. SeeDkt. # 11, Forest Guardians v. Kempthorne , Civ. No. 06-183(RBW). On Fe bruar

y 21, 2007, FWS publis hed its 90-day finding in reg ards to the Reclassification Petit ion (here inafter “F inding” ). See AR 1 at 263-72 (72 F ed. Reg . at 7849-51).

See F orest Guardians v. Kempthorne , Civ. No. 06-183(RBW). 8 8The F inding c oncluded that “ substantial scientific or c ommercia l information has not bee n

prese nted by

[P laintiff] indi catingthat rec lassification of the U tah pra irie dog. . . from thre atene d to endang ere d may

be wa rra nted.” Id. at 271 (notingalso that the Recla ssification Petition “did not identify

or pre sent substantial new infor mation indicating that the level of thre ats to the specie s has cha

ng ed sig nificantly

since its rec lassification to threatened in 1984.”) . The F inding was influenc ed by

the most rece nt population Utah prairie dog census, whic h indicated that the specie s’ population was twice as hig h as whe n the spec ies was r ecla ssified as thre atene d in 1984. Compare id. (noting spring 2005 count was 5,381) , with AR 1 Supp. Dkt. #27-3, at 3 (Spring Counts of Adult Utah Prairie Dog s) (listing the spr ing 1984 c ount at 2,522). On September 9 16, 2008, Plaintiff filed its complaint in thi s case . Count Ialleg es that F WS violated the ESA and APA whe n it denied the Rec lassification Petition. Com pl. ¶ 39 Count I Ialleg es that F WS violated the APA by

failingto rule on the APA Petition. Compl . ¶ 41. Ove r five months later , on Fe bruar

y 23, 2009, FWS issued its response to Plainti ff’ s APA Petiti on (her einaf ter “Response” ). AR 2 Supp. Dkt. #27-2. In the Response, F WS denied Plaintiff’s r equest to promulg ate a

new r ule bec ause Plaintiff did not include the te x t of the propose d rule a s require d under 43 C.F .R. § 14.2. Id. at 2. As for Plaintiff’s reque st to repea l the 1991 Rule, FWS found that the most rece nt Utah pra irie dogcensus data “doe s not appea r to support [P laintiff’s] The pa rties disag ree on the methodolog y employ ed in the 1984 ce nsus and, 9 conseque ntly , the extent to which the 1984 census r efle cted the a ctual Utah pr airie dog population at that time. Compare Pl.’s Mot. at 15 (arguing that the methodology employ ed in 1984 counted 80% of the population), with Def .’s Cross-Mot. at 10 n.3 (a rguing that UDWR employ ed a me thod in 1984 that only counted 50% of the population). Reg ardle ss, the parties do not appea r to disag ree that the 2005 ce nsus, which FWS relied upon in the F inding, c ounted approximately

50% of the a ctual population. See Pl.’s Mot. at 31, 31 n.53-54; Def.’s Cross-Mot. at 21, 21 n.7. This indicated a spring 2005 population of about 10,762 animals. See Pl.’s Mot. at 31. Additionally , beca

use the c ensus occ urs in the spring , it only includes those animals that have sur vived the winter

and no juveniles. See AR 1 at 259 (56 F ed. Reg . at 27,440).

9asser

tion that the species is in dang er of exti nction” and invited Plaintiff to comment on a

1 0 forthcomingamende d version of the 1991 Rule. Id. at 1 (Response) . The Response c onstitut ed 1 1 FWS’ “final de cision” on Plaintiff’s APA Petition. Id. at 3. In light of the Response, the pa rties filed [15] Stipul ation to Permit the Filing of a Supplemental Complaint and J oint Moti on to Reset Dea dlines. The Court g rante d Plaintiff’s reque st, pursuant to Fe dera l Rule of Civil Procedur e 15(d) , to file a supplementa l complaint. See [17] Am. Scheduling and Proce dures Or der ( Apr. 14, 2009). O n April 23, 2009, Plaintiff filed its [18] First Supplement Complaint in which it amended Count I I to alleg e that F WS ’ denia l of the APA Petition vi olated the APA. Suppl. Compl. ¶ 43. FWS t hen filed the administrative re cord for the Re classification Petit ion on March 27, 2009, [13] Notice of L odg ing A dmin. Record, and the administrative re cord f or the APA Petition on J une 11, 2009, [20] Notice of L odg ing A dmin. Record. Plaintiff moved to suppleme nt the Reclassification Petit ion’s administrative re cord, [23] Mot. to S uppl. the Admin. Record, whic h FWS opposed, [24] Opp’n to Pl.’s Mot. to S uppl. the Admin. Record. The Court ultim ately denied the motion. See W ildearth Guardians v. Salazar , 670 F. Supp. 2d 1 (D.D .C. 2009). Subsequently , the Court adopted the pa rties’ propose d summary

judgme nt briefing schedule , Min. Order

(De c. 11, 2009), pur suant to which Plaintiff filed its [33] Motion for Summary J udg ment on J anuar

y 29, 2010, Def

endant f iled its [ 34] C ross-Motion for Summary

The most rec ent ce nsus data wa s from the springof 2007 and indica ted a total 1 0 population of nea

rly 12,000 animals. See AR 2 Supp. Dkt. #27-2, at 1 (Response)

. Both pa rties ac knowledg e that this amende d version of the 1991 Rule remains 1 1 forthcoming

. See Pl.’s Mot. at 26 n.49; Def.’s Cross-Mot. at 34 n.8. 10J udg ment on Marc h 5, 2010, and Plaintiff filed its [36] Reply in Support of Plainti ff’ s Motion 1 2 for Summary

J udg ment on Marc h 19, 2010. The brie fingon the par ties’ motions for summary judgme nt is now complete and the matter is ripe f or the Court’s re view and r esolution. II. LEGAL STANDARD “Courts must defer

to an ag ency ’s interpre tation of a statute that it implements ‘so long as it is reasonable , consistent with the statutory purpose, a

nd not in conflict with the statute’s plain languag e.’” Davis v. Latscher , 202 F.3d 359, 364 ( D.C. Cir. 2000) (quoting OSG Bulk Ships v. United States , 132 F.3d 808, 814 ( D.C. Cir. 1998)); see Chev ron, U.S.A., Inc . v. Natural Res. Def. Council , 467 U.S. 837, 845 (1984). “Similarly , provided it does not violate the Constitution or a f eder al statute, an a g ency ’s interpre tation of its own regulations ‘will prevail unless it is plainly err oneous or inconsistent with the plain ter ms of the disputed regulations.’” Id. (quoting Eve rett v. United States , 158 F.3d 1364, 1367 ( D.C. Cir. 1998) (interna l quotation marks omitted). The APA g overns judicial r eview of ag ency action under

the ESA. Cabinet Mountains W ilderness v. Pe terson , 685 F.2d 678, 685 ( D.C. Cir. 1982) (“Since the ESA does not spec ify a standard of

revie w, judicial re view is g overne d by section 706 of the [APA].”). J udicial re view of ag ency decisions “is normally

confine d to the full administrative rec ord bef ore the ag ency

at the time the dec ision was made.” Envt’l De f. Fund. , 657 F.2d at 284; see also Richards v

. Immigration &Naturali

zation Serv. , 554 F.2d 1173, 1177 ( D.C. Cir. 1977) (“Summary judgme nt is an appropr iate proc edure for r esolving a cha lleng e to a f eder al ag ency ’s administrative decision whe n revie w is based upon the a dminist rative r ecor d.”). Under the APA, a cour t must This filing a lso includes Def endant’ opposition t o Plaintiff’s motion for summary 1 2 judgme nt. 11set aside a g ency decisions that ar e “a

rbitrar y , capr icious, an abuse of discre tion, or otherwise not in acc ordanc e with law.” 5 U.S.C. § 706(2)(A) . “‘The party challeng ing a

n ag ency ’s ac tion as arbitra ry and ca pricious bea

rs the burde n of proof

.’” City of Olmsted Falls v. Fed. Aviation Admin. , 292 F.3d 261, 271 ( D.C. Cir. 2002) (quoting Lomak Petroleum, I nc. v. F ed. Ene rgy Regulatory Comm’n , 206 F.3d 1193, 1198 ( D.C. Cir. 2000)). A cour t’s “scope of re view under the ‘a rbitrar y and ca pricious’ standa

rd is narr ow and a court is not to substit ute its judgment for that of the a g ency .” Motor VehicleMfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983). “T o survive re view under the ‘a rbitrar y and capr icious’ standar d, an ag ency must ‘examine the releva nt data and a

rticulate a satisfac tory explanation for its action including a rational connec tion between the fac ts found and the c hoice made.’ ” PPL W

allingfor d Energy LLC v. Fed. Ene rgy Regulatory Comm’n , 419 F.3d 1194, 1198 (D.C. Cir. 2005) (quoting State Farm , 463 U.S. at 43) (inter nal quotation marks omitted). A revie wing court “ will uphold [ an ag ency ’s] findings, thoug h of less than idea l clarity , if the ag ency ’s path may

be re asonably

discerne d . . . .” Hall v. Mc Laughlin , 864 F.2d 868, 872 ( D.C. Cir. 1989) (interna l quotation marks and citations omitted). Howe ver,

an ag ency [decision] would be arbitra ry and capr icious if the ag ency has relied on fac tors which Congr ess has not intended it to consider, entirely failed to consider an important aspec t of the problem, offe red an explanation for its decision that runs counter to the evidenc e befor e the ag ency , or is so implausible that would not be ascr ibed to a differ ence in view or the product of ag ency ex p er t i s e. The revie wing court should not attempt itself t o m ak e u p for such defic iencies: “We may not supply a reasoned basis for the age n cy ’s action that the a g ency

itself has not g iven.” State Farm , 463 U.S. at 43 (quoting Sec. & Exc h. Comm’n v. Che nery Corp. , 332 U.S. 194, 196 (1947)) ; see also McD onnell Douglas Corp. v. U.S. Dep’ t of the Air Force , 375 F.3d 1182, 1187

12(D.C. Cir. 2004) (holdingthat the “Court will not defe r to the ag ency ’s conc lusory or unsupported alleg ations”). Fur thermore , revie wing courts ar e to “g ive an e x treme de g ree of def ere nce to the a g ency when it ‘is eva luating sc ientific data within its expertise.’” Huls Am. Inc . v. Browner , 83 F.3d 445, 452 (D.C. Cir. 1996) (quoting Int’l Fabricare I nst. v. E.P.A. , 972 F.2d 384, 389 ( D.C. Cir. 1992)). This includes “ an ag ency ’s pre dictive judg ments about are as that ar e within the ag ency ’s field of discr etion and expertise . . . .” BNSF Ry. Co. v. SurfaceTransp. Bd. , 526 F.3d 770, 781 (D.C. Cir. 2008) (inter

nal quotation marks omitted); see also Colo. River Cutthroat T rout v. Kempthorne , 448 F. Supp. 2d 170, 174 (D.D .C. 2006) (“The re is a strongpresumption in favor of upholding de cision of the F WS in view of its expertise in the are a of w ildlife conser vation and manag ement and the defe rential standa rd of r eview.” ). III. DISCUSS ION A. The 90-Day

Finding As a thre shold matter, the Court notes the limited nature of it review in this case . In revie wing the Finding , the Court is not asked to deter mine whether

the Utah pr airie dogshould ultimately

be re classified a s endang ere d, or eve n whether the Court thinks reclassific ation may be

war rante d. See Am. Paper I

nst., Inc. v. A m. Elec . Power Serv. Corp. , 461 U.S. 402, 422 (1983) (explaining that unde r the a rbitrar y and ca pricious standar d of re view a c ourt “ne ed not find that [t he ag ency ’s dec ision] is the only rea sonable one , or eve n that it is t he re sult [ the Court] would have r eac hed had the question arise in the f irst instance in judicial proc eeding s.”). Rathe r, the issue befor e this Court is whether, whe n issuing the F inding, F WS proper ly applied the ESA a

nd “examine[d] the re levant data and ar ticulate[d] a satisfa ctory

explanation for its action including

1 3a rational connec tion between the fac ts found and the c hoice made .” PPL W allingfor d Energy , 419 F.3d at 1198 (D.C. Cir. 2005) (quoting State Farm , 463 U.S. at 43) (inter nal quotation marks omitted). In light of the afor ementioned leg al standar d, the Court now turns to the merits of Plaintiff’s arguments. Plainti ff ha s alleg ed that the F inding wa s arbitra ry , capr icious and/or contra ry to law for se vera l rea sons. For two r easons, the Court a g ree s that the Findingmust be

vacated and r emande d to FWS for further consideration. 1. FWS Failed to Explain W hy the Reduction in the Utah Pra irie Dog ’s Historical Rang e Did Not Constitute a “Signif icant Portion of I ts Range ” Plaintiff argues that the F inding is ar bitrary , capr icious, and not in acc ordanc e with the ESA beca use F WS did not analy

ze how the re duction in the Utah pra irie dog ’s historical ra ng e does not indicate that rec lassifying the specie s as enda ng ere d may

be wa rra nted. See Pl.’s Mot. at 28-32. Plaintiff ar g ues that the Uta h prairie dog ’s cur

rent ra ng e has be en re duced by

near ly eig hty -seve n perc ent from its historical estimations, thereby indicating the spec ies is “in dang er of extinction t hroug hout . . . a sig nificant portion of its ra ng e” suc h that rec lassification to endang ere d may

be wa rra nted. See id. at 29 (quoting16 U.S.C. § 1532(6) ( defining“enda ng ere d specie s” ))

. In support of this argument, Plaintiff principally relies on the N inth Ci rcuit’s holdingin Defende rs of W

ildlif e v. Norton that “whe re . . . it is on the re cord a ppare nt that the are a in which the [species] is ex pecte d to survive is much smaller than its historical ra ng e, the Sec reta

ry must at least e x plain her c onclusion that the are a in which the spe cies c an no long er live is not a ‘sig nificant portion of its ra ng e.’” 258 F.3d 1136, 1145 ( 9th Cir. 2001) (her einaf ter Defende rs ( Lizard) ); see also Pl.’s Reply at 6-8. In rea chingthis conclusion, the Ninth Circuit rejec ted the

14parties’ definitions of the phra se “sig nificant portion of its ra ng e” a nd, afte r consulting the ESA’s leg islative history

and the Sec reta

ry ’s historical pra ctice, c oncluded that “ a spec ies ca n be extinct ‘throug hout . . . a sig nificant portion of its ra ng e’ if the re a

re ma jor g eog raphic al ar eas in whic h it is no longe r viable but onc e wa s.” Id. ; see also id. at 1138, 1145-46 (va catingand re manding the Secre tary ’s dec ision because the Secr etar y failed to e x pressly

explain how a thirty -four perc ent reduc tion in a species’ historical ra ng e wa s not a signif

icant portion of the spe cies’ r ang e). Courts in thi s Circuit have found the Ninth Circuit’s rea soning in Defende rs of W ildlif e v. Norton persua sive. See, e .g. , Defende rs of W ildlif e v. Ke mpthorne , Civ. No. 04-1230(GK) , 2006 WL2844232, at *5 (D.D .C. Sept. 29, 2006) (here inafter Defende rs ( Lynx II ) ) (f inding the N inth Circuit’s rea soning “ persua sive” a nd apply ing its def inition of “signific ant portion of its rang e”) ; Sw. Ctr . for Biological Diversity v. Norton , Civ. No. 98-934 (RMU/J MF), 2002 WL 1733618, at *14 (D.D.C. Jul y

29, 2002) (a

pplying the Ninth Circuit’s definition of “sig nificant portion of its rang e”) . Moreove r, Judge Gla dy s Kessler ha s twice re lied on the Ninth Circuit’s holding to

vacate and r emand a s arbitra ry , capr icious, and contra ry to the ESA’s purpose, F WS decisions that have f

ailed to explain how a loss of three of a spe cies’ f our population reg ions did not constitute a sig nificant portion of the specie s’ ra ng e. See D efende rs of W ildlif e v. Norton , 239 F. Supp. 2d 9, 21 (D.D.C. 2002) (he reina fter Defende rs ( Lynx I) ), vacate d in part on other grounds , 89 F. App’ x 273 (D.C. Cir. 2004) (va catingas moot the district court’s e njoinment of FWS from

concur ringin ESA § 7 determinations and re manding the ca se for further considera

tion); Defende rs Lynx II

, 2006 WL2844232, at *5-6, 11, 13 (va catingand ag ain re manding the decision to FWS beca

use the a g ency

failed to a ddress how thre e of f our population reg ions do not constitute a signif

icant portion of the spe cies’ r ang e). This Court joins the other c ourts in this

1 5Circuit who have f ound the Ninth Circuit’s holding pe rsuasive a nd shall apply

the Ninth Circuit’s standard that “wher e . . . it is on the rec ord appa rent that the a

rea in which the [species] is expected to survive is much smaller than its historical rang e, the Sec reta ry must at least explain [hi s] conclusion that the area in which the spec ies ca

n no longe r live is not a ‘sig nificant portion of its rang e.’” Defende rs ( Lizard) , 258 F.3d at 1145. In this case, F WS does not argue that it conducte d a sig nificant portion of the rang e analy sis. See Def

.’s Cross-Mot. at 16-19. Rather , FWS argues that the phra se is ambig uous, FWS’ rea sonable interpr etation is entitled to defer ence , and, in any event, Plaintiff is barr ed fr om raisingthe sig nificant portion of the rang e issue bec ause the Reclassification Petit ion failed to do

so. See id. The Court re

jects these a

rguments and vac ates a

nd rema nds the Findingto FWS to explain in t he first instance how the Utah pr airie dog ’s re duction of its historical rang e does not indicate that r ecla ssifying the specie s as enda ng ere d may

be wa rra nted. First, Plaintiff is not barre d from ra ising the sig nificant portion of the rang e issue. As Plaintiff points out , the phra se “sig nificant portion of its ra ng e” is pa rt of the ESA’s de finition of “enda ng ere d specie s.” Pl.’s Reply at 10-11 (quoting16 U.S.C. § 1532(6) (def ining “ endang ere d specie s”)) . Thus, the Recla ssification Petition’s request to rec lassify the Utah pr airie dogas endang ere d sufficie ntly

raised the signific ant portion of the r ang e issue. See Tex Tin Corp. v. E.P.A. , 935 F.2d 1321, 1323 ( D.C. Cir. 1991) (per curiam) (“An objection must be made w ith sufficie nt specificity

rea sonably

to alert the a g ency .”). A dditionally , the conc ern of fairne ss underliningthe exhaustion doctrine is absent in this case. See F ound. on Educ. Trends v. Hec kler , 756 F.2d 143, 156 ( D.C. Cir. 1985) (“[W] e note that the e x haustion doctrine is pre mised on a view of

fairne ss to the ag ency

and to the litiga

nts.”). F WS ’ oblig ation to expl ain how the

16reduc tion from the Utah pr airie dog ’s historical ra ng e does not c onstitut e a significant portion of the spec ies’ ra

ng e derives from the ESA’ s definition of “e ndang ere d specie s.” Ther efor e, F WS should not be surprised that it nee ded to conduc t such an a naly sis in thi s case . Acc ording ly , the Court finds that the exhaustion doctrine does not bar Plaintiff f rom raisingthe sig nificant portion of the ra ng e issue in this appea l. Second, althoug h the phra se “sig nificant portion of its ra ng e” is ambiguous, see Defende rs (

Lizard) , 258 F.3d at 1145, the interpre tation FWS now urg es this Court to adopt is not entitled to defer ence as it is conspicuously absent fr om FWS’ consideration of the Reclassification Petit ion. Most im portantly , the Findingitself does not indicate tha t FWS define d, let alone a

pplied, “sig nificant portion of its ra ng e” in the ma

nner F WS now adva

nces in this case. Equa lly

telling, F WS ’ brief

ing doe s not cite to this case’s a dminist rative r ecor d to establish how FWS interprete d the phra se whe n it was consider ing the Reclassification Petit ion. SeeDef .’s Cross-Mot. at 18 (quoting Greater Yellow stone Coaliti on, Inc. v . Servhe en , 672 F. Supp. 2d 1105, 1124 (D. Mont. 2009)). The Court owes no def ere nce to F WS ’ interpr etation of a statutory phrase that first appe ars on a ppeal. See B owen v. Ge orgetown Univ. Hosp. , 488 U.S. 204, 212 (1988) ( g rantingno defe renc e to “a g ency litigatingpositions t hat ar e wholly unsupported by

regulations, rulings, or a dminist rative pr actice . To the contra ry , we have declined to g ive def

ere nce to a

n ag ency counsel’s inter

pretation of a statute whe re the ag ency itself has ar

ticulated no position on the question . . . .”).

1 7Third, eve n if the Court wer e to def er to F WS ’ interpr etation of “ signific ant portion of its rang e,” the Court would nonetheless have to vac ate a nd rema nd the Findingbeca

use there is no 1 3 indication that FWS in fact applied this def inition i n this case, see H all , 864 F.2d at 873 (holding that an ag ency ’s dec ision must“be suf ficient to per

mit the court to discern the path [the ag ency] has take n”). In fac t, FWS im plicitly conce des as much when it failed to a rgue that it conducte d 1 4 such an a naly sis and instead ar g ues that Plaintiff waive d this iss ue. SeeDef .’s Cross-Mot. at 18- 19. The Uta

h prairie dog ’s ra

ng e has de clined at lea st fifty perc ent from 1925 to 1975. AR 1 at 264 (F inding) . The F inding a lso indicates that in 1971 the Utah pr airie dogwas pre sent in an

are a compr ising 61,440 a cre s, while the spec ies’ estimated r ang e in 1920 was a n are a compr ising 456,320 acr es. See id. at 264-65. The differ ence betwee n the 1971 ra ng e and the 1920 estimated rang e amounts to a ne arly eighty -seve n perc ent re duction in the Utah pra irie dog ’s historical rang e. See Pl.’s Mot. at 10. The Findingdoes not explain, however, how this reduction, or e ven

FWS argues that it interpre ted “r ang e” to mea n “cur rent ra ng e, not historical ra

ng e” a nd 1 3 “sig nificant” to mean “ba sed on a va riety of fa ctors that indicate the importance of the ra ng e to the spec ies survival and the prese rvation of the spe cies’ e cosy stem” and “ is not based on any prese nt or quantitative mea surement of rang e.” D ef.’ s Cross-Mot. at 18 (quoting Greater Y ellowstone Coali tion , 672 F. Supp. 2d at 1124). Simi larly , althoug h the par ties have a dvance d a total of thre e diffe rent de finitions of 1 4 “sig nificant portion of its ra ng e,” the Court does not addre ss which should be applied in this case beca use F WS failed to a

pply any of them in the F inding. See Palisades Gen Hosp. Inc . v. Leavitt , 426 F.3d 400, 403 ( D.C. Cir. 2005) (“[U]nder settled principles of administrative law, when a court re viewingag ency

action dete rmines that an a g ency made a n err or of law , the cour

t’s inquiry is at an end: the c ase must be r emande d to the ag ency for f urther a ction consistent with the cor rec t leg al standar ds.”) ( quoting County of Los Angeles v. Shalala , 192 F.3d 1005, 1011 (D.C. Cir. 1999)). 18the fifty

perc ent re duction, is not “a sig nificant portion of [of the spec ies’] rang e.” It may very 1 5 well be that these reduc tions do not amount t o a sig nificant portion of the specie s rang e. 1 6 Howeve r, F WS ’ fa ilure to explain why this mi g ht be so rende rs the F inding a rbitrar y , capr icious, and not in acc ordanc e with the ESA. See State F arm , 463 U.S. at 43 (holding that an ag ency decision is arbitra

ry and ca pricious when it “e ntirely failed to c onsider an importa nt aspec t of the problem”) . Acc ording ly , this Court vacates a nd rema nds the Findingto FWS to ex plain in the first instance how

the re duction in the Utah pra irie dog ’s historical ra ng e does not c onstitut e a signific ant portion of the spe cies’ r ang e. 1 7

2. FWS Failed to Consider the L isting F actor s’ Cumulative Effe ct Plaintiff also argues that F WS acte d arbitra rily and ca priciously when it fa iled to consider the listing fa ctor’s c umulative eff ect on the spe cies. SeePl.’s Mot. at 39; see also 50 C.F.R. §

The F inding, howe ver, doe s question the reliability of the historica l estimate and 1 5 indicates that a

forthcomingstudy

may produce more re liable re sults. AR 1 at 264 (Finding ) (“We be lieve the be st information conce rningactua l Utah pra irie doghabitat is from ong oing mapping eff

orts . . . howeve r, cur

rent oc cupanc y

has not bee n verifie d for this mapped ha bitat are a, or f or other a rea s of historical habitat.” ). F orthcomingstudies, however , cannot c ontradict the only available evidenc e re g ardingthe Utah Pra irie dog ’s ra ng e. See50 C.F.R. § 424.11(b) (allowingFWS to rely

on “the be st available scientific a nd commerc ial information re g ardinga specie s’ status”) ( emphasis adde d). See D efende rs (

Lizard) , 258 F.2d at 1143 (“[I ]t simply does not make se nse to assume 1 6 that the loss of a pre deter mined perc entag e of ha

bitat or rang e would nec essar ily qualify a spec ies for listing. Aspecie s with an exceptionally larg e historical r ang e may continue to enjoy

healthy population levels despite the loss of a substantial amount of suitable habitat.”)

. In so holding, the Court make s no finding a s to the rea sonablene ss of the interpr etation 1 7 of “sig nificant portion of its ra ng e” F WS advanc e in this appea l or this interpretation’s application in this case. A lthough suc h arguments may ultimately

be succ essful, the ag ency ––and not this Court––must make that de termination in the first instance

. See State F arm , 463 U.S. at 43 (a r eview c ourt may not supply

“a r easone d basis for the a g ency ’s ac tion the ag ency itself has not g iven”) (interna l quotation marks and citations omitted). 1 9424.11(c) (re quiring listi ng decisions to be base d on “any one or a combination of the [list ing] fac tors”) ( emphasis adde d); Carlton v. Babbitt , 900 F. Supp. 526, 530 (D.D .C. 1995) (“F WS must consider ea ch of the listi ngfac tors singula rly and in combination with the other fa ctors”) (empha sis added). F WS argues that it did consider the listing f actor s’ cumulative e ffe ct and c ites to three doc uments in the administrative rec ord in support of this assertion. De f.’s Cross-Mot. at 29-30. These citations, howeve r, do not support FWS’ claim. First, two of the documents ar e a dr aft a nd revised ve rsion of a ta ble pre pare d by

the Utah Ec ologic al Service s Field Of fice in a brief

ing to the F WS ’ Mountain-Prair ie Rang e Reg ional Direc tor reg ardingthe Recla ssification Petition. See Def .’s Cross-Mot. at 30 (c iting AR 1 at 1665 (Nov. 9, 2006 B riefing ); AR 1 at 1780 (De c. 14, 2006 B riefing )). In both the versions, F WS ’ ana ly sis of the listing fa ctors’ c umulative eff ect is limited to the following: “Althoug h we a g ree that these fa ctors ar e hinder ing r ecove ry of the spec ies, we disagree that the level of thre at is signific ant enoug h to warr ant enda ng ere d status.” AR 1 at 1665 (Nov. 9, 2006 Br iefing ); AR 1 at 1780 (De c. 14, 2006 B riefing ). This statement, howe ver, is mer ely conclusory and does not e x plain why FWS believes that the listing f actor s’ cumulative e ffe ct does not indicate that r ecla ssifying the Utah pra irie dogas enda ng ere d may

be wa rra nted. PPL W allingfor d Energy , 419 F.3d at 1198 (quoting State Farm , 463 U.S. at 43) (“ [A] n ag ency must ‘examine the re levant data and ar ticulate a sa

tisfactory explanation for its action including a rational c onnection betwe en the f acts found a

nd the choice made’ ”) ( internal quotation marks omitted); see also Mc

Donnell Douglas Corp. , 375 F.3d a t 1187 (holding tha

t the “Court will not defe r to the ag ency ’s conc lusory or unsupported a lleg ations”). Ac cording ly , the table e ntries do not allow FWS to survive the arbitra ry and ca pricious standar d of re view.

20L astly , FWS cites to the Findingitself and ar g ues that within it FWS “dete rmined that

[t he fa ctors] collectively

did not constitut e substantial scientific inf ormation.” De f.’s Cross-Mot. at 29-30. Nota

bly , howeve r, F WS does not quote an e x cer pt of the F inding that pur portedly supports this assertion. See id. Nor doe s the Findingitself expli citly indicate that F WS analy

zed the listing fa ctors’ c umulative eff ect. See AR 1 at 271(F inding) ; see also Hall , 864 F.2d at 873 (holding that an ag ency ’s dec ision must “be suf ficient to per

mit the court to discern the path [the ag ency] has taken”)

. The F inding pa g e cited by FWS does, howeve r, conta in a conc lusion of the ag ency ’s analy sis of the listing fa ctors’ individual impacts on the Uta h prairie dog

. See AR 1 at 271 (F inding)

. But such a

conclusion does not constitute an a naly sis of the listing fa ctors’ c umulative eff ect be cause it does not ex plain how the individual fac tors combine to af fec t the Utah pra irie dog

. See P

PL W allingford Energy , 419 F.3d at 1198 (quoting State Farm , 463 U.S. at 43) (“ [A] n ag ency must ‘examine the releva nt data and a

rticulate a satisfac tory

explanation for its action including a

rational c onnection betwe en the f acts found a

nd the choice made’ ”) ( internal quotation marks omitted)

. In essenc e, by failingto analy

ze the listi ng fac tors’ cumulative impac t, FWS has require d Plaintiff to prove by one fa ctor a lone that re classify ing the Utah pra irie dog may be wa rra nted. This transfor

mation ignor es a c lear

mandate f

rom the ESA’s re g ulations, as well as the F inding’ s articulation of F WS ’ re sponsibili ty in a 90-da

y finding

. See50 C.F.R. § 424.11(c) (re quiring listi ng decisions to be base d on “any one or a combination of the [list ing] fac tors”); AR 1 at 265 ( Finding ) (“ L isting ac tions may be wa rra nted base d on any

of the a bove threat fac tors, either sing ly or in combination.”). A ccor dingly , the Court finds that FWS’ failure to consider the c umulative eff ect of the listing fa ctors re nders the F inding a rbitrar y and

2 1capr icious. See State F arm , 463 U.S. at 43 (“a

n ag ency [decision] would be ar

bitrary and capr icious if the ag ency

. . . entirely

failed to c onsider an importa nt aspec t of the problem” )

. FWS attempts to avoid thi s conclusion by seekingref

ug e under the APA’s def

ere ntial standard of

revie w and a

rguing that this C ourt must “uphold a dec ision of less than ideal cla rity if the ag ency ’s path may

rea sonably

be disce rned.” Def

.’s Cross-Mot. at 30 (quoting Frizelle v. Slater , 111 F.3d 172, 176- 77 (D.C. Cir. 1997)). Howeve r, as discusse d above, ne ither the 1 8 Findingnor the table entries pr ovide a non- conclusory , discerna ble basis for be lieving tha t FWS in fac t considere d the listing fa ctors’ c umulative eff ect. Eve n under the defe rential a rbitrar y and capr icious standard of

revie w, a r eviewingcourt “ may not supply

a re asoned ba sis for the ag ency ’s ac tion that the ag ency itself has not g iven.” State Farm , 463 U.S. at 43 (quoting Chenery Corp. , 332 U.S. at 196). Ac cording ly , as F WS has fa iled to cite to a docume nt in the Finding ’s over

2000 pag e administrative r ecor d that evidenc es, in a non-c onclusory fashion, that FWS considered the listi ng fac tor’s cumulative e ffe ct, the Court conc ludes that the F inding must be vac ated a

nd this case r emande d to the ag ency . On re mand, FWS must ex plain whether the listi ng fac tor’s cumulative e ffe ct indicates that rec lassifying the specie s as enda ng ere d may

be

war rante d. 1 9 FWS also argues that Plaintiff did not identify wher e the Rec lassification Petition 1 8 addre sses the listing fa ctors’ c umulative eff ect. De f.’s Cross-Mot. at 30. This ar g ument is quickly dismiss ed for , as Plaintiff identifies in its reply , not only did the Reclassification Petit ion identify how the listing fa ctors combine to thre aten the U tah pra irie dog , Plaintiff’s motion for summary judgme nt cites to these re fer ence s as well. See Pl.’s Reply at 20 & 20 n.33; see also Pl.’s Mot. at 19 (citing AR 1 at 95-97 (Rec lassification Petition)); id. at 21 (c iting AR 1 at 167- 71, 191 (Recla ssification Petition)); id. at 22 (c iting AR 1 at 193 (Re classification Petit ion)). The Court does not agree , howeve r, with Plaintiff’s argument that FWS sim ilarly err ed 1 9 by failingto consider the thr eat of predation. Pl .’s Mot. at 39. “It is a hard a nd fast rule of administrative law, r ooted in simple fairne ss, that issues not raised bef ore a n ag ency are waived and will not be consider ed by a cour t on review .” Nuclear Energy Inst., Inc. v . E.P.A. , 373 F.3d 22For the above mentioned re asons, the Court conc ludes that the F inding must be va cate d and re manded to the a g ency for f urther c onsideration consistent with this opinion. I n light of this

case ’s cur rent proc edura l posture, the Court dec lines to address Plaintiff’s r emainingarguments reg ardingthe Finding

. B. FW

S’ Responseto the APA Petition In Count I I , Plaintiff argues that the Response is inade quate on its fac e, ar bitrary , capr icious, and contra

ry to the ESA. Pl. Mot . at 39-40. In denying a petition for rulemaking, 2 0 an ag ency shall provide “pr ompt notice” of the denial and “ [e] x cept in af firming a prior de nial or when de nial is self-explanatory , the notice sha ll be acc ompanied by a brie f statement of

the g rounds for de nial.” 5 U.S.C. § 555(e) . J ust as with other ag ency decisions, re viewingcourts must overturn a r efusa l to init iate rule making if it is “arbitrar y and ca pricious, an a

buse of discretion, or othe rwise not in ac corda nce w ith the law.” EMR Network v. F ed. Commc ’ns Comm’n , 391 F.3d 269, 272- 73 (D.C. Cir. 2004) (quoting5 U.S.C. § 706(2)). Howeve r, “a

n ‘ag ency ’s re fusal to institut e rule making proce eding s is at the high e nd of the ra ng e’ or level of de fer ence [reviewingcourts] give to ag ency action under

[t heir] ‘arbitra

ry 1251, 1297 (D.C. Cir. 2004). The Re classification Petit ion does not addre ss predation in it s section entitled: “I dentified Thr eats to the Petitioned Species: Criteria for L isting.” A R 1 at 59- 187. Notably , althoug h the third ESA listi ng fac tor includes disea se and pr edation, 16 U.S.C. § 1533(a) (1)( C), the Recla ssification Petition onl y discussed disease , see AR 1 at 60, 104-06. Moreove r, Plaintiff ca

nnot rely on the Recla ssification Petition’s li mited background discussion of pre dation, seePl.’s Reply at 20 n.32, in a 189-pa g e docume nt to claim that it sufficiently raised the predation threat, see Nat’l Ass’n of Mfrs. v. U.S. D ep’t. of Interior , 134 F.3d 1095, 1111 (D.C. Cir. 1998) (“ [W ]e decline to find that sca ttered r efe renc es to [an issue] in a voluminous record a ddressingmy riad c omplex technica l and policy matters suff

ices to provide an ag ency . . . with a ‘fa ir opportunity ’ to pass on the issue.” ). Plaintiff only

appea ls FWS’ refusa l to repea l the 1991 Rule and not the F WS ’ re fusal to 2 0 promulg ate a

new r ule re stricting the translocating of Utah pra irie dog s. See Pl.’s Mot. at 40. 2 3and ca

pricious’ re view.” Defende rs of W ildlif e v. G uiterrez , 532 F.3d 913, 919 ( D.C. Cir. 2008) (quoting Am. Horse Prot. Ass’n v . Lyng , 812 F.2d 1, 4- 5 (D.C. Cir. 1987)); see also Massachusetts v. E.P .A. , 549 U.S. 497, 527 (2007) (“ Refusals to promulg ate r ules are [] susceptible to judicial re view, thoug h such re view is extremely limit ed and hig hly

defe rential” ) (interna l quotation marks and citation omitted). “Such a ref usal is to be overturne d only in the

rar est and most compelling of circ umstances . . . whic h have pr imarily involved plain err ors of law, sug g esting that the ag ency has bee n blind to the source of its deleg ated powe r.” Am. Horse Prot. Ass’n , 812 F.2d at 5 (internal quotations and c itations omi tted); see also Cellnet Commc’ns, Inc. v . F.C.C. , 965 F.2d 1106, 1111 ( D.C. Cir. 1992) (explaining that “ an ag ency ’s re fusal to initiate rulemakingis evaluate d with a def ere nce so br oad as to make the proc ess akin to nonrevie wability .”). The Court finds that Plaintiff has not demonstrate d that this case is one of “the r are st and most compelling of c ircumstance s.” Am. Horse Prot. Ass’n , 812 F.2d a t 5. Accor dingly , the Court shall gr ant FWS’ summary judgme nt motion i n reg ards to Count I I

. 1. The Response I s Not Procedur ally Inadequate First, Plaintiff claims that the Response is proc edura lly inadequate and not in ac corda nce with the law bec ause the Response does not expressly state that F WS denied Plaintiff’s r equest to repe al the 1991 Rule. See Pl.’s Mot. at 40-41. Plainti ff is cor rec t that the Response did not use the word “ denial,” or

any variation thereof, when discussingPlaintiff’s reque st to repea l the 1991 Rule. Neve rtheless, while it is clea r that F WS must provide a “br ief stateme nt of the grounds for de nial,” 5 U.S.C. § 555(e) , Plaintiff fails to identify any leg al support for its cla im that FWS must ex pressly

indicate it was de nying Plaintiff’ s reque st. Moreover , it is di fficult to see why

24such a r equire ment would even be nece ssary in this case. The Response indicate d that FWS was not repe aling the 1991 Rule and that it was F WS ’ “f inal decision” on the APA Petition, AR2 Supp., Dkt. # 27-2 at 3, and by ever y indication Plaintiff understood the re sponse to be a de nial,

see, e .g. , Suppl. C ompl. ¶ 3 (“Thr oug h this First Supplemental Complaint [ Plaintiff] now challeng es [FWS’] Fe bruar y 23, 2009 denial

of its APA petition . . . .”) (empha sis added). Moreove r, Plaintiff does not claim that F WS did not provide a brie f statement of the g rounds for denial as r equire d under 5 U .S.C. § 555(e). Ac cording ly , the Court reje cts Plaintiff’s claim that the Response wa s proce durally inadequate. 2. The Response I s Not Arbitrar y or Capric ious Second, Plaintiff ar g ues that F WS ’ re fusal to initiate rulemakingis arbitrar y and capr icious beca

use the 1991 Rule is biologic ally infea sible, it deters the spec ies’ re cover y , and, there fore , it ignore s the ESA’s mandate

. SeePl.’s Mot. at 42-44. I n particula r, Plaintiff seeks to compar e this case to American H orse Protection Association , in which the D.C. Circuit vac ated and re manded the Sec reta ry of the Agriculture’ s ref

usal to initi ate r

ulemakingunder the Horse Protection Act (“ HPA”). 812 F .2d at 2-3, 5-8. T he Court re jects Plaintiff’s ar g uments and holds instead that the Response w as not arbitra ry or ca pricious. In American H

orse Protection Association , the cour t held that the ag ency

failed to articulate a r easona

ble explanation for its ref usal in part bec ause the ag ency ’s two conc lusory statements justifying the ref usal failed to de monstrate that the r efusa l was the produc t of “re asoned de cisionmaking .” Id. at 6 (notingthose conc lusory statements included the a g ency ’s deputy administrator’s de clar ation that: “I have r eviewe d studies and other materials . . . . On the basis of this information, Ibelieve that the most effe ctive method of e nforc ing the [HP A] is t o 2 5continue the c urre nt regulations”). The court a lso concluded that the ag ency ’s re fusal to initiate

rulemakingto prohibit a prac tice that Cong ress unambiguously intended the HPA to eliminate indicated that the a g ency

“has be en blind to the nature of his mandate f rom Congr ess.” Id. at 7. In this case, in contr ast, FWS articulated a rea sonable e x planation for its re fusal. In the 2 1 Response, bec ause Plaintiff’s A PA Petiti on incorporated by ref ere nce its cla ims in t he Reclassification Petit ion, FWS also incorporate d by ref ere nce its conc lusions in t he F inding to support its denial. AR 2 Supp., Dkt. # 27-2 at 1 (Response). A dditionally , FWS provided in the Response itself that

Counts in 2007, the most recent data available , documented 5,991 adult animals indicating a total population of about 12,000 adult Utah prairie dog s . . . . This is the second highe st population count rec orded since survey eff

orts beg an in 1975. The available data does not appea r to support y our asser

ti o n that the specie s is in dang er of exti nction. Id. Fa r fr om the two conclusory statements in American H orse Protection Association , the passag e cited a

bove indicate s that FWS applied the most rece nt Utah pra irie dogcensus whe n it denied the A PA Petiti on. Acc ording ly , the Court finds that this decision was in fac t “re asoned,” there by satisfying the Court’s highly defe rential re view of F WS ’ re fusal to initiate rulemaking

. See A m. Horse Prot. Ass’n, I nc. , 812 F.2d at 5 (“[W] e must consider whether the ag ency ’s decisionmakingwas re asoned” ) (inter nal quotation marks and c itation omit ted); see also Cellnet

Contrary to Plainti ff’ s intim ations, the fac t that FWS did not respond to eve ry question 2 1 raised in the twe nty -three pag e APA Petition does not render the Response a

rbitrar y and capr icious, so long a s the administrative re cord de monstrates that the Response w as the produc t of re asoned de cisionmaking

. See A m. Horse Prot. Ass’n , 812 F.2d at 6; see also 5 U.S.C. § 555(e) (re quiringthat the notice of denial “be acc ompanied by a brief statement of the grounds for de nial”) ( emphasis adde d). 26Commc’ns , 965 F.2d at 1111 (“[A]n age ncy ’s re fusal to initiate rulemakingis evaluate d with a

defe renc e so broa d as to make the proce ss akin to non-revie wability .”). Additionally , the 1991 Rule’s existence does not de monstrate that F WS is ignoringthe ESA’s mandate beca

use, most importantly , the ESA itself only prohibits the take of endang ere d—not threate ned—spec ies. See16 U.S.C. § 1538(a). More over, Cong ress de leg ated to the Secre tary

the authority

to determine the extent to which the ESA protects threatened specie s. See id. § 1533(d) ( “Wheneve r any specie s is lis ted as a

threatened spe cies . . . , the Secre tary shall issue such re g ulations as he dee ms nece ssary and advisa

ble to provide for

the

conser vation of such spe cies.” ). I n American H

orse Protection Association , in contrast, the ag ency ref used to initiate rulemakingto prohibit a prac tice that Cong ress e x plicitly and unambig uously

intended the HSA to prohibit. See 812 F.2d at 6. Thus, beca use the ESA does not expl icitly

prohibit the take of thr eate ned spec ies, the Court finds that the 1991 Rule is not so contra ry to Congre ss’s mandate unde r the ESA such that FWS could be said to be “blind to the

source of its deleg ated powe r.” Id. at 7; see also Gutierrez , 532 F.3d at 921(requir ing c halleng ers to an ag ency ’s re fusal to initiate rulemaking“to pre sent new e vidence strong ly sug g esting that the ag ency

was una war e of its cong ressional mandate . . . .”) (interna l quotation marks and citations omitt ed). Finally , althoug h both parties ac knowledg e that the 1991 Rule’s le vel of take may not be biologica lly

sound, Pl.’s Mot. at 43; Def.’s Cross-Mot. at 32, the a dminist rative r ecor d reve als that FWS has relied upon e vidence indicating that some permitted take is advantag eous to the Utah pra irie dog s’ re cover y , see Def

.’s Cross-Mot. at 32-33. F or example, FWS cites to how controlled take can stimulate population g rowth, re duce hig h density populations prone to

2 7decimation by plague, and, c onsequently , curb the specie s’ boom-and- bust population cy cle. Id. at 33 (c iting AR 2 at 1371; id. at 905-06, 908; id. at 305; id. at 241). The prec ise level of take that should be permitted is a matter square ly within FWS’ technical a

nd scientific e x pertise a

nd the Court “dec line[s] to enter this hy per- technica l fray .” BNSF Ry. Co. , 526 F.3d at 781 (“It is well established that a

n ag ency ’s pre dictive judg ments about are as that ar e within the ag ency ’s field of discr etion and expertise ar e entitled to par ticularly defe rential re view, so longas they are

rea sonable.” ). In conclusion, F WS has pre sented a rational ba sis for re fusing to repe al the 1991 Rule that is adequately

supported by

the re cord a

nd, conseque ntly , the Court does not overtur n this decision on appe al. Acc ording ly , the Court shall g rant F WS ’ motion for summary judgme nt in reg ards to Count I I

. IV. CONCLUSION For the re asons set for

th above, the Court sha ll GRANT-I N-PART Plaintiff’s [33] Motion for Summary

J udg ment as to Count Iand DEN Y-I N-PART Plaintiff’s Motion for Summary J udg ment as to Count I I . The Court shall GRANT- I N-PART the Secr etar

y ’s [34] Cross-Motion for Summary

J udg ment as to Count I Iand DEN Y-I N-PART the Secr etar

y ’s Cross-Motion for Summary J udg ment as to Count I . Acc ording ly , FWS’ decision deny ing Plaintiff’ s Reclassification Petit ion is vacate d and re manded to the a g ency for f urther c onsideration consistent with this Memorandum Opinion. An appropr iate Or der a ccompa nies this Memorandum Opinion. Date: Septembe r 28, 2010 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e 28