# California State Grange v. National Marine Fisheries Service

> District Court, E.D. California · October 31, 2008 · 620 F. Supp. 2d 1111

URL: https://www.frixlaw.com/law-library/cases/1456525

## Case

- **Full name:** CALIFORNIA STATE GRANGE, Et Al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, Et Al., Defendants, and Federation of Fly Fishers, Et Al., Defendant-Intervenors; Modesto Irrigation District, Et Al., Plaintiffs, v. Carlos M. Gutierrez, Secretary of Commerce, Et Al., Defendants, and Northern California Council of Federation of Fly Fishers, Et Al., Defendant-Intervenors
- **Court:** District Court, E.D. California
- **Decided:** October 31, 2008
- **Citations:** 620 F. Supp. 2d 1111; 2008 WL 4755610
- **Precedential status:** Published
- **Opinion:** Opinion by Wanger
- **Judges:** Oliver W. Wanger
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1456525

## How later opinions describe it (automated extraction)

- noting that the Oakdale Irrigation District and the South San Joaquin Irrigation 20 District are “public agencies organized and operating pursuant to California Law [Cal. Water Code 21 §§ 20500 et seq.].”

## Opinion text

ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT
(GRANGE
DOCS. 29, 39, 43;
MID II
Docs. 79, 90, 94)
OLIVER W. WANGER, District Judge.
*1118
TABLE OF CONTENTS
I. INTRODUCTION........................................................1119
II. BACKGROUND..........................................................1120
A.
Relevant Endangered Species Act Provisions
............................1120
B.
Biological Background on West Coast 0. mykiss
.........................1122
C.
Administrative
Histovy...............................................1123
1.
The ESU
Policy..................................................1123
2.
The DPS Policy
..................................................1124
3.
The Interim Hatchery Listing
Policy................................1125
4.
Initial Listings for the Populations at
Issue..........................1126
5.
The Alsea Decision and the 2001 Status
Review.......................1126
6.
The Modesto Irrigation District v. Evans
Decision....................1129
7.
Revised Hatchery Listing
Policy....................................1130
D.
The Challenged Listing
Process........................................1131
E.
Challenged Prohibitions and Protective
Regulations......................1139
III.
SUMMARY OF PLAINTIFFS’
MOTIONS..................................1140
A.
Grange
Motions......................................................1140
B.
MID II
Motions......................................................1141
IV.
STANDARD OF
REVIEW................................................1142
V. ANALYSIS..............................................................1143
A. Standing............................................................1143
1.
Standing of the Grange
Plaintiffs...................................1144
2.
Standing of the MID II
Plaintiffs...................................1146
B.
Hatchery-Bom v. Naturally-Spawned: Challenges to the Manner by Which NMFS Treated Hatchery 0. mykiss During the Listing Process
...........................................................1147
1.
Grange’s Claim That NMFS Acted Unlawfully by Defining Some of the DPSs to Include Hatchery Fish but Then Distinguished Between Hatchery and Naturally-Spawned Fish During the Listing
Process.................................................1147
a.
Two of the Five Challenged DPSs Do Not Include Hatchery
Fish.......................................................1147
b.
Alsea does not Control the Outcome of this
Claim.................1147
c.
Parsing Grange’s Naturally-Spawned v. Hatchery-Bom Challenge to Detemiine the Appropriate Standard of
Review____1149
d.
Chevron
Deference............................................1151
e.
Does the ESA Unambiguously Preclude Draunng Distinctions Between Naturally-Spawned and Hatchery-Bom Fish During Any Stage of the Listing
Process?......................1151
f.
Was the Approach Used by NMFS During the Listing Process
— Emphasizing
the Health of Natural Populations and Considering Hatchery-bom Fish Only Insofar as They Contribute to the Health of Natural Populations
— a
“Permissible Construction” of the
ESA?...............................1153
(1)
Statutory Language Regarding Protection of Ecosystems and Implying That Natural Populations Should Be
Protected...............................................1154
(2)
The Best Available Science Demands That Distinctions Be Drawn Between Naturally-Spawned and Hatchery-Bom Fish, Even If Both Are Part of the Same
DPS...............1157
C.
Anadromous v. Resident: Challenges to NMFS’ Treatment of Resident 0. mykiss During the Listing
Process.................................1161
1.
Did NMFS Sufficiently Justify Departing from its Past Practice of Applying its Own ESU Policy to Instead Apply the Joint DPS
Policy?.................................................... 1161
*1119
2.
Is the Designation of a Steelhead Only (ie., Anadromous Only) DPS Contrary to Statutory
Intent?....................................1172
a.
Alsea Does Not Control the Outcome of This
Claim...............1172
b.
Grange’s “Sparingly”
Argument................................1172
c.
Does Designation of an Anadromous Only DPS Conflict with the Statutory Language ‘Which Interbreeds When
Mature”?.... 1174
(1)
Legal analysis under
Chevron..............................1174
(2)
Does the ESA Unambiguously Preclude Excluding Some Interbreeding Members of a Population from a
DPS?----1174
(3)
Is the Agency’s Interpretation of the Statutory Language
Reasonable?............................................1176
(4)
Factual
Analysis..........................................1177
3.
Grange’s Abandoned Third Claim For Relief Re: “Illegal Construction of Distinct Population
Segments”.....................1177
4.
MID’s Argument That NMFS’s Decision to Separate Anadromous and Resident Forms of 0. mykiss is Inexplicably Inconsistent With Prior Treatment of Other Fish Species With Resident and Anadromous Life
Histories......................................1178
a.
Cutthroat Trout
.......................................'.......1180
b.
Bull
Trout...................................................1181
5.
Is NMFS’s Decision to List Steelhead-Only DPSs Supported by the Best Available
Science?..........................................1181
a. Discreteness..................................................1182
(1)
MID’s Argument That the Data Has Not Changed
............1183
(2)
Lack of Consistently Distinguishable Characteristics Between Life History
Forms..............................1183
(3)
The Cause of Distinctions Between Life History
Forms........1184
(4)
The Three Independent Scientific
Reports....................1186
(5)
The Role of Genetics and Reproductive Isolation in the DPS Policy
.................................................1189
b. Significance..................................................1193
D.
MID’s Argument Concerning Distinctions Drawn Between HatcheryBom and Naturally-Spawned 0.
mykiss..............................1194
1.
MID’s Argument That NMFS Unlawfully Used Genetic Discreteness as the Sole Reason to Exclude Nimbus and Mokelumne Hatchery-Bom Steelhead, but Then Ignored the Close Genetic Relationship of Co-Occurring Resident and Anadromous 0. Mykiss in Deciding to Exclude One but Not the Other from the
Listing........................................................1195
2.
MID’s Argument That NMFS Acted Unlawfully by Excluding the Nimbus and Mokelumne River Hatchery-Spawned Steelhead Based on Genetics, While Including in the DPS Their Naturally-Spawned
Progeny...............................................1196
3.
NMFS’s Exclusion of Nimbus and Mokelumne River Hatchery-spawned Steelhead While Including Genetically Similar Naturally-Spawned Populations on the Lower American River, the Mokelumne River, Putah Creek, and the Calaveras
River............1198
E.
Grange’s Challenge to NMFS’s Selective Application of ESA § 1(d) Protections to Naturally Spauming 0. mykiss and Only Those Hatchery 0. mykiss Which Have an Intact Adipose
Fins................1199
VI. CONCLUSION...........................................................1202
I.
INTRODUCTION
Before the court for decision are two sets of cross-motions for summary judgment filed in two separate, but similar lawsuits,
California State Grange, et al. v. National Marine Fisheries Service, et al.,
1:06-CV-00308 OWW DLB
(“Grange”),
and
Modesto Irrigation District, et al. v.
*1120
Carlos M. Gutierrez, et al,
1:06-CV-453 OWW
{“MID II”),
which have been consolidated for the purposes of summary adjudication.
{Grange
Docs. 29, 39 & 43;
MID II
Docs. 79, 90 & 94.) The
Grange
lawsuit concerns the listing of five populations of West Coast steelhead (a life form of
Oncorhynchus mykiss
(O.
mykiss))
as threatened or endangered species under the Endangered Species Act (“ESA”). A coalition of forestry interests led by California State Grange (collectively, “Grange”) challenge all five listings, arguing that, in reaching the listing determinations, the federal defendants unlawfully distinguished populations of anadromous
0. mykiss
from populations of resident 0.
mykiss,
and populations of naturally-spawned 0.
mykiss
from hatchery-born 0.
mykiss. {Grange
Compl. at ¶ 1.) Three non-profit organizations dedicated to the promotion of fly fishing and to the conservation of fishery resources have intervened in that lawsuit.
{Grange
Doc. 38.)
MID II
is a more factually detailed challenge to the listing of the Central Valley Distinct Population Segment of
0. mykiss,
one of the five listings at issue in the
Grange
suit. The plaintiffs in
MID II,
a coalition of irrigation districts (collectively “MID”), similarly argue that federal defendants unlawfully distinguished between populations of anadromous and resident
0. mykiss,
and between populations of naturally-spawned and hatchery-born 0.
mykiss.
Four non-profit organizations dedicated to the promotion of fly fishing and to the conservation of fishery resources have intervened in that lawsuit.
{MID II
Doc. 34.)
Although
Grange
and
MID II
share the same administrative record, a largely common factual backdrop, and many common issues, the cases are not identical, and these differences are separately analyzed.
II.
BACKGROUND
A.
Relevant Endangered Species Act Provisions.
The purposes of the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 ,
et seq.,
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.” 16 U.S.C. § 1531 (b). The term “conservation” is defined to mean:
... the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking
16 U.S.C. § 1532 (3).
Section 4(a) of the ESA directs the Secretary of Commerce or the Secretary of the Interior to “determine whether any species is endangered or threatened.” 16 U.S.C. § 1533 (a)(1). The Secretary of Commerce has delegated this authority to the National Marine Fisheries Service (“NMFS”); the Secretary of the Interior to the United States Fish and Wildlife Service (“FWS”).
1
*1121
When determining whether a species is “endangered” or “threatened,” NMFS must consider:
2
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.
16 U.S.C. § 1533 (a)(1). More generally,
The Secretary shall make [listing] determinations ... solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas.
16 U.S.C. § 1533 (b)(1)(A).
The ESA defines “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532 (16). The ESA does not define the term “distinct population segment” (“DPS”) or provide further direct guidance as to the scope and meaning of the term.
Alsea Valley Alliance v. Evans,
161 F.Supp.2d 1154, 1157 (D.Or.2001).
To the maximum extent possible, “concurrently with making a determination ... that a species is an endangered species or a threatened species,” NMFS is directed to “designate any habitat of such species which is then considered to be critical habitat. ...” 16 U.S.C. § 1533 (a)(3).
Once a species is listed as threatened or endangered under the ESA, it is unlawful for any person to “take”
3
members of the
*1122
species without a permit. 16 U.S.C. § 1538 (a)(l)(B)-(C) [ESA § 9(a)(1)(B)-(C) ]. NMFS “shall issue such regulations as [it] deems necessary and advisable to provide for the conservation of [threatened] species.” 16 U.S.C. § 1533 (d) [§ 4(d) ]. In the case of threatened fish or wildlife, NMFS “may by regulation prohibit ... any act prohibited under section 1538(a)(1) [§ 9’s take provisions].... ”
Id.
Pursuant to § 4(f) NMFS must “develop and implement plans ... for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless [the Secretary] finds that such a plan will not promote the conservation of the species.” 16 U.S.C. § 1533 (f). “[T]he Secretary must not merely avoid elimination of that species, but is required to bring the species back from the brink sufficiently to obviate the need for protected status.”
Fed’n of Fly Fishers v. Daley,
131 F.Supp.2d 1158, 1163 (N.D.Cal.2000).
B.
Biological Background on West Coast 0. mykiss.
0. mykiss
exhibit a highly complex life cycle. All
0. mykiss
are born and rear in fresh water. After spending anywhere from a few hours to several years in freshwater areas, some
0. mykiss,
commonly known as “steelhead,” migrate downstream to the ocean. In order to do so, they undergo a physiological change, known as smolting, which enables them to live in saltwater. Juvenile and subadult steelhead spend one to five years foraging in the Pacific Ocean before returning to fresh water to spawn. For the most part, steelhead return to spawn in the fresh water stream where they were born, although some stray to “non-natal” streams.
4
69 Fed.Reg. 33,102, 33,108 (June 14, 2004).
5
The present distribution of steel-head extends from Kamchatka in northeast Asia, across to Alaska, and down the length of the west coast of the United States to the border between the United States and Mexico
Id.
at 33,109 For reasons that are not well-understood, some O.
mykiss
never smolt, remaining in fresh water throughout their lives. These freshwater “resident”
O. mykiss
are known as “rainbow” (or “redband”) trout.
Id.
at 33,106.
The steelhead life form is considered to be important to the health and continued viability of
O. mykiss
populations. According to the Northwest Fisheries Science Center (“NWFSC”), an arm of NMFS, steelhead “represents] a critical component of the species’ evolutionary ‘bet-hedging’ strategy for coping with environmental and ecological challenges.” AR 1460 at 3. For example, even if a particular resident
O. mykiss
population is decimated by a disturbance event in a particular river, such as a disease outbreak or low water year, the anadromous steelhead that return to the area in subsequent years can repopulate the river. The Recovery Science Review Panel (“RSRP”), a panel of scientists that meets once a quarter to, among other things, review NMFS recovery plans,
6
concluded that “[t]he anadro
*1123
mous component of a salmonid ESU, by maintaining the population’s access to ocean habitat and food resources, can affect productivity over the short term and the probability that the ESU can persist in the long term____ [Estimates suggest that eliminating the anadromous component of steelhead eliminates fish from 99.97% of their potential natural habitat.” AR 1471 at 9.
Under some circumstances, either life form (steelhead or rainbow trout) can yield offspring that follow the alternative life form. However, NMFS’s Pacific Salmonid Biological Review Team (“BRT”), an expert panel of scientists from several federal agencies, concluded that the frequency of such occurrences are “relatively rare, and there is even less empirical evidence that, once lost, a self-sustaining anadromous run can be regenerated from a resident salmonid population.” AR 2185 at 211.
7
A separate panel of scientific experts, led by Dr. Jody Hey, (the “Hey Panel”) found that while “[r]esident populations of
0. mykiss
have often been established from resident, steelhead, and mixed sources ... the reverse process has been documented to have occurred just once.” AR 793 at 14. Because the prospect of regeneration of steelhead from resident populations is speculative, the Hey Panel concluded that “it is important to conserve the evolutionary potential of the anadromous component of the conservation unit.” AR 793 at 14. The RSRP reached similar conclusions, finding “only one published report of anadromy developing from a resident population ... that of the Santa Cruz River [in] Patagonia,” AR 1471 at 6, as did the Independent Scientific Advisory Board (“ISAB”), which noted that there is no reliable method to predict where and when resident populations are possible of reestablishing anadromy at all, “much less within a timeframe important to recovery,” AR 581 at 25. Moreover, even if it were possible to conclude with more certainty that resident populations could reestablish anadromous runs, there would still be a scientific basis for addressing the reasons for the decline of anadromous populations. The BRT found that “if the conditions that promote and support the anadromous life history continue to deteriorate ... the expectation would be that natural selection would gradually eliminate the migratory or anadromous trait from the population, as individuals inheriting a tendency for anadromy migrate out of the population but do not survive to return as adults and pass on their genes to subsequent generations.” AR 2185 at 211.
C.
Administrative History.
1.
The ESU Policy.
In 1991, NMFS promulgated its “Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon,” referred to as the “Evolutionarily Significant Unit”
8
Policy or the “ESU Policy”. 56 Fed.Reg. 58,612 (Nov. 20, 1991). The ESU Policy provides that a population of Pacific salmonids is considered to be an ESU, and therefore may be considered for listing under the ESA, if it meets the following two criteria:
*1124
(1) It must be substantially reproductively isolated from other nonspecific population units; and
(2) it must represent an important component in the evolutionary legacy of the species.
Id.
The ESU Policy is an interpretation by NMFS of what constitutes a “distinct population segment.” This interpretation has been found to be a “permissible agency construction of the ESA.”
Alsea,
161 F.Supp.2d at 1161 . Until recently, NMFS applied this policy to
all
salmonid species, including
0. mykiss,
for the purposes of defining ESUs.
2.
The DPS Policy.
Concurrent with the development of the ESU Policy, NMFS and FWS developed a joint policy to “clarify their interpretation of the phrase ‘distinct population segment of any species of vertebrate fish or wildlife’ for the purpose of listing, delisting, and reclassifying species under the [ESA] ...” (“Joint DPS Policy”). 59 Fed.Reg. 65,884 (Dec. 21, 1994). A draft Joint DPS Policy was published in 1994,
id.,
public comment was solicited on it, and a final Joint DPS Policy was published in 1996, 61 Fed.Reg. 4,722 (Feb. 7, 1996).
The Joint DPS Policy relies on three factors to determine whether a population may be considered a DPS:
1.
Discreteness
of the population segment in relation to the remainder of the species to which it belongs;
2. The
significance
of the population segment to the species to which it belongs; and
3. The population segment’s
conservation status
in relation to the Act’s standards for listing (i.e., is the population segment, when treated as if it were a species, endangered or threatened?).
Id.
at 4,725 (emphasis added).
A population segment of a species is considered “discrete” if it satisfies
either
one of the following conditions:
1. It is
markedly separated
from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
2. It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
Id.
(emphasis added).
If a population segment is found to be discrete, its biological and ecological “significance” is evaluated, “in light of Congressional guidance ... that the authority to list [DPSs] is to be used ‘... sparingly’ while encouraging the conservation of genetic diversity.”
Id.
The significance analysis may include, but is not limited to, an evaluation of:
(1) persistence of the DPS in an ecological setting unusual or unique for the taxon;
(2) evidence that loss of the DPS would result in a significant gap in the range of the taxon;
(3) evidence that the DPS represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or
(4) evidence that the DPS differs markedly from other populations of the species in its genetic characteristics.
*1125
Id.
The Joint DPS Policy recognizes that “[b]ecause precise circumstances are likely to vary considerably from case to case, it is not possible to describe prospectively all the classes of information that might bear on the biological and ecological importance of a discrete population segment.”
Id.
If a population is found to be both “discrete” and “significant,” it is evaluated against the five factors set forth in ESA § 4(a) in order to determine whether listing the population as endangered or threatened is warranted.
Id.
The Joint DPS Policy finds that the ESU Policy is “consistent with” and is a “detailed extension of’ the Joint DPS policy.
Id.
At the time the Joint DPS Policy was first promulgated, NMFS indicated that it would “continue to exercise [its alternative ESU Policy] with respect to Pacific salmonids.”
Id.
(NMFS recently determined that it is more appropriate to apply the DPS policy to
0. mykiss,
a policy shift that is discussed in greater detail below.)
3.
The Interim Hatchery Listing Policy.
In 1993, NMFS published an “Interim Policy on Artificial Propagation of Pacific Salmon Under the Endangered Species Act,” 58 Fed.Reg. 17,573 (April 5, 1993) (“Interim Hatchery Listing Policy” or “Interim Policy”). In this Interim Policy, NMFS indicated that “[g]enetic resources important to the species’ evolutionary legacy may reside in hatchery fish as well as in natural fish, in which case the hatchery fish can be considered part of the biological ESU in question.”
Id.
at 17,574. The policy also provided that “[hjatehery fish considered to be part of the ESU could also be included as part of the listed species and protected under the ESA.”
Id.
Determinations about existing hatchery fish were conducted by first determining whether “available information” indicates that either:
(1) the hatchery population in question is of a different genetic lineage than the listed natural populations, (2) artificial propagation has produced appreciable changes in the hatchery population in characteristics that are believed to have a genetic basis, or (3) there is substantial uncertainty about the relationship between existing hatchery fish and the natural population....
Id.
at 17,574-17,575.
If any of the above characteristics were present, “the existing hatchery fish will
not
be considered part of the biological ESU and will
not
be included as part of the listed species.”
Id.
If, however, available information “indicates that existing hatchery fish can be considered part of the biological ESU, a decision must be made whether to include them as part of the listed species.”
Id.
In general, “such fish will
not
be included as part of the listed species ... [although] [a]n exception may be made for existing hatchery fish if they are considered to be
essential
for recovery.
...” Id.
The policy also explained that “[u]nder any scenario, progeny of fish from the listed species that are propagated artificially are considered part of the listed species and are protected under the ESA.”
Id.
The Interim Policy provided that “a listing determination for an ESU depended solely upon the relative health of the natural populations in an ESU, and that most hatchery stocks determined to be part of an ESU were excluded from any listing of the ESU.” 70 Fed.Reg. 37,204, 37,205 (June 28, 2005).
9
*1126
4.
Initial Listings for the Populations at Issue.
In 1996, NMFS completed a comprehensive status review of
0. mykiss
populations in Washington, Oregon, Idaho, and California and published a proposed rule identifying 15 ESUs within that broad geographic area. Five of the ESUs were proposed to be listed as threatened, five as endangered. 61 Fed.Reg. 41,541 (Aug. 9, 1996). (Four of the remaining five proposed ESUs were ultimately found not warranted for listing, while one was identified as a candidate for listing.
Id.)
Following this proposal, FWS became concerned that NMFS would expand its proposed listing to include the resident form of 0.
mykiss.
As a result, staff from FWS met twice with staff from NMFS to discuss the treatment of resident
0. mykiss
in the proposed listing. AR 2314-05 at 1. FWS then wrote to NMFS on July 29, 1997, and stated that FWS had sole jurisdiction over the resident form of
0. mykiss
and therefore “any listing decision regarding rainbow [trout] rests with [FWS].”
Id.
FWS also indicated its belief that the two “behavioral forms can be regarded as separate DPSs” and therefore would not support any listing which included the resident form of 0.
mykiss
“absent evidence suggesting that the resident rainbow trout needed the [ESA’s] protection.”
Id.
Subsequently, NMFS revised the proposed listing to apply to only five ESUs of steelhead, two as endangered, including the Southern California ESU, and three as threatened, including the Central California Coast and South-Central California Coast ESUs. 62 Fed.Reg. 43,937 (Aug. 18, 1997). On March 19, 1998, NMFS listed two additional ESUs as threatened, including the California Central Valley ESU, but determined that the other three proposed ESUs, including the Northern California ESU, did not warrant listing at that time. 63 Fed.Reg. 13,347 (March 19, 1998). After further review, NMFS determined that the Northern California ESU warranted listing as threatened. 65 Fed.Reg. 36,074 (June 7, 2000).
5.
The Alsea Decision and the 2001
.
Status Review.
Over approximately the same time period and applying the same policies and procedures used during the above-described
O. mykiss
listing process, NMFS completed a status review of west coast salmon, and issued a proposed rule to list six ESUs of coho salmon as threatened. One of the proposed listings was for the “Oregon Coast ESU.” NMFS subsequently revoked this proposed listing based in part on conservation measures being undertaken as part of the Oregon Coastal Salmon Restoration Initiative.
See Alsea,
161 F.Supp.2d at 1159 . Subsequently, in
Oregon Natural Resources Council v. Daley,
6 F.Supp.2d 1139 (D.Or.1998), NMFS was found to have acted unlawfully in considering the conservation measures and was ordered to reconsider its decision. On August 10, 1998, NMFS issued a final rule listing the Oregon Coast coho ESU as threatened.
See Alsea,
161 F.Supp.2d at 1159 .
Despite the fact that the ESU included nine hatchery populations, “NMFS only
listed
all ‘naturally-spawned’ coho inhabiting streams between Cape Blanco and the Columbia River.”
Id.
In reaching this listing decision, NMFS applied its April 5, 1993 Hatchery Policy to the coho salmon. 63 Fed.Reg. 42,589. NMFS concluded that nine Oregon hatchery popula
*1127
tions were part of the same Oregon Coast ESU as the natural populations. However, the hatchery populations were not included in the listing decision because the hatchery populations were not “deemed ‘essential’ to recovery.”
Id.
Although excluded from the listing decision, NMFS stated that it might consider using these hatchery populations for future recovery but that “in this context, an ‘essential’ hatchery population is one that is vital for full incorporation into recovery efforts.”
Id.
Id.
The
Alsea
plaintiffs argued that the listing was invalid, arguing the distinction NMFS drew “between hatchery spawned and naturally-spawned coho is untenable under the ESA because the ESA does not allow the Secretary to make listing distinctions below that of species, subspecies or a distinct population segment of a species.”
Id.
at 1161 .
The
Alsea
court began its analysis by examining NMFS’s ESU policy, pursuant to which “a species is considered an ESU, and hence a DPS, if it is ‘substantially reproductively isolated from other conspecific population units’ and ‘represents an important component in the evolutionary legacy of the species.’ ”
Id.
(citing 56 Fed.Reg. at 58,618). This policy, the court concluded, is a “permissible agency construction of the ESA” and the “factors used to define it, geography and genetics, are within permissible limits under the ESA.”
Id.
(citing
PanAmSat Corp. v. FCC,
198 F.3d 890, 894 (D.C.Cir.1999)) & 1162 n. 5 (genetics and geography are permissible considerations during the listing process).
Alsea
found that the listing had a fundamental flaw.
The central problem with the NMFS listing decision of August 10, 1998, is that it makes improper distinctions, below that of a DPS,
by excluding hatchery coho populations from listing protection even though they are determined to be part of the same DPS as natural coho populations.
The ESA “specifically states in the definition of ‘species’ that a ‘species’ may include any subspecies ... and any distinct population segment (DPS) of any species ... which interbreeds when mature.” 16 U.S.C. § 1532 (16);
Southwest Center for Biological Diversity v. Babbitt,
980 F.Supp. 1080, 1085 (D.Ariz. 1997). Listing distinctions below that of subspecies or a DPS of a species are not allowed under the ESA.
Southwest Center,
980 F.Supp. at 1085 . Yet,. this is precisely what the NMFS did in its final listing decision of August 10, 1998. NMFS concluded that nine hatchery stocks were part of the same Oregon Coast ESU/DPS as the “natural” populations but none of the hatchery stocks were included in the listing decision because NMFS did not consider them “essential for recovery.” 63 Fed.Reg. 42,-589.
The distinction between members of the same ESU/DPS is arbitrary and capricious because NMFS may consider listing only an entire species, subspecies or distinct population segment (“DPS”) of any species. 16 U.S.C. § 1582 (16). Once NMFS determined that hatchery spawned coho and naturally-spawned coho were part of the same DPS/ESU, the listing decision should have been made without further distinctions between members of the same DPS/ESU.
Id.
at 1162 (emphasis added).
The
Alsea
court next noted, in dicta, that the listing of only the naturally-spawned population “could arguably be proper under the ESA if the NMFS had defined ‘hatchery spawned’ coho as a separate DPS____”
Id.
at 1162 . However, under the facts and circumstances of that
*1128
case, the
Alsea
court surmised that such a definition was not reasonable:
Here, hatchery spawned coho are likely not “substantially reproductively isolated” from naturally-spawned coho because, once released from the hatchery, it is undisputed that ‘hatchery spawned’ coho and “naturally-spawned” coho within the Oregon Coast ESU share the same rivers, habitat and seasonal runs, among other factors. It is undisputed that “hatchery spawned” coho may account for as much as 87% of the naturally spawning coho in the Oregon coast ESU. In addition, hatchery spawned and natural coho are the same species, and interbreed when mature
(Id.
at ¶ 4). Finally, the NMFS considers progeny of hatchery fish that are born in the wild as “naturally-spawned” coho that deserve listing protection.
Id.
at 1162-63 (citations omitted).
The court concluded NMFS’s listing decision was arbitrary because it “creates the unusual circumstance of two genetically identical coho salmon swimming side-by-side in the same stream, but only one receives ESA protection while the other does not.”
Id.
Finally,
Alsea
rejected NMFS’s argument “that its listing decision does not contradict the terms of the ESA because the listing decision, and relevant polices, are in accordance with ESA goals that prioritize ‘natural’ salmon populations and ‘genetic diversity’ within those populations.”
Id.
Although I agree with the general concept that “genetic diversity” is one factor in the long term success of a threatened species, and thus is one of many underlying goals of the ESA, genetics cannot, by itself, justify a listing distinction that runs contrary to the definition of a DPS.
The term “distinct population segment” was amended in the ESA in 1978 so that it “would exclude taxonomic [biological] categories below subspecies [smaller taxa] from the definition.” H.R. Conf. Rep. No. 95-1804, at 17 (1978), reprinted in 1978 U.S.C.C.A.N. 9485, 14855.
Congress adopted the DPS language stating:
The committee agrees that there may be instances in which [the Fish and Wildlife Service] should provide for different levels of protection for populations of the same species. For instance, the U.S. population of an animal should not necessarily be permitted to become extinct simply because the animal is more abundant elsewhere in the world. Similarly, listing populations may be necessary when the preponderance of evidence indicates that a species faces a widespread threat, but conclusive data is available with regard to only certain populations.
S. Rep. No. 96-151.
Thus, Congress expressly limited the Secretary’s ability to make listing distinctions among species below that of subspecies or a DPS of a species. Here, the NMFS listing decision was based on distinctions below that of subspecies or distinct population segment of a species. Therefore, the NMFS’s listing decision is arbitrary and capricious, because the Oregon Coast ESU includes both “hatchery spawned” and “naturally-spawned” coho salmon, but the agency’s listing decision arbitrarily excludes “hatchery spawned” coho....
Id.
at 1163 .
Following the
Alsea
decision, in 2002, NMFS began a review of the 27 West Coast salmonid listings. AR 12; AR 807; AR 808. One of the purposes of this review was to further consider the relationship between the resident and anadromous forms of O.
mykiss. See Modesto Irrig’n
*1129
Dist. v. Evans,
1:02-CV-6553 OWW DLB
(“MIDI”),
Doc. 79 at 55.
6.
The Modesto Irrigation District v. Evans Decision.
On December 11, 2002, the
MID I
plaintiffs filed suit against NMFS regarding its 1998 decision to list the California Central Valley
O. mykiss
ESU as threatened. The
MID I
Plaintiffs alleged that NMFS violated the ESA and the Administrative Procedura Act (“APA”) by: (1) listing naturally-spawning, but not hatchery, populations of
O. mykiss;
and, (2) listing anadromous, but not resident, members of
O. mykiss
in certain rivers within the Central Valley of California.
(Id.
at 3.)
On May 12, 2004, this Court issued a decision on plaintiffs’ motion for summary judgment in
MID I. (MID I,
Doc. 79.) With respect to the first allegation, as in
Alsea,
NMFS’s final rule pertaining to the listing of the Central Valley steelhead, issued March 19, 1998, included hatchery populations as part of the ESU, but listed as endangered only naturally-spawning steelhead. The federal defendants conceded this claim, acknowledging, that, under
Alsea,
“distinctions below that of a distinct population segment when making listing determinations are improper.”
(Id:
at 28.) Federal defendants also admitted that the 1998 listing of the Central Valley California steelhead was “legally flawed” in light of
Alsea,
and did not oppose plaintiffs’ motion for summary judgment on that claim.
(Id.)
However, intervenors, a coalition of fisheries resource advocacy groups, did oppose plaintiffs’ motion for summary judgment, arguing that hatchery-spawned steelhead are not only not eligible for
listing
under the ESA, but that they should not have been included as part of any ESU in the first place.
(Id.
at 29.) The district court first rejected intervenors’ argument that NMFS’s decision to
include
hatchery populations in the ESU should be declared unlawful.
Intervenors allege [federal defendants’] determination that “hatchery populations ... [were] part of the same ESU as the naturally-spawned populations” is unlawful. Intervenors’ conclusion is predicated on their contention that, given the nature of hatchery fish, “[protecting [them] cannot be reconciled with the ESA’s purpose and provisions. Intervenors admit, however, that NMFS added some of the hatchery populations to the ESU based on its conclusion that the stocks had not diverged from wild steelhead to such a degree that they could never be used for recovery.”
Intervenors provide selected passages from the AR and Federal Register to support their claims that hatchery fish threaten wild populations. The AR cited, however, does not contain sufficient evidence to invalidate NMFS’ classification of the hatchery population. Assuming that the hatchery fish do pose a threat of harm to the naturally-spawned population, there is insufficient evidence to decide whether this threat rises to such a level as to preclude classification of hatchery spawned population in the same ESU or DPS with naturally-spawned steelhead. Even assuming that hatchery fish “can pose serious threats” as Intervenors claim, no studies indicate that they do so in this case. Where a significant scientific dispute exists over an issue within the agency’s expertise, deference is ordinarily required.
[Federal defendants’] classification does not require that fish hatcheries replace natural ecosystems. Intervenors do not explain why the use of hatchery fish as a conservation tool precludes their ESA listing. Although excluding hatchery populations from the listing may be “[c]onsistent” with the ESA, there is no evidence indicating that the ESA requires or necessitates such exclusion.
*1130
NMFS’s studies also indicate that hatchery populations could be useful in the recovery of wild steelhead and that when interbred, the two form a distinct genetic group. Intervenors do not provide their own scientific evidence to prove that Defendants’ classification was arbitrary, capricious, and unlawful.
(Id.
at 35-36 (internal citations omitted).)
The district court next considered intervenors’ argument, based
on National
Association
of Home Builders v. Norton,
340 F.3d 835 (9th Cir.2003), that it was unlawful for NMFS to include hatchery-born 0.
mykiss
in the ESU/DPS, but only
list
naturally-spawned fish. In
Home Builders,
the Ninth Circuit suggested that FWS could have subdivided a particular owl population into smaller DPSs. Intervenors argued that this indicates NMFS could have listed a unit smaller than an ESU under the ESA. The district court found
Home Builders
to be inapplicable, reasoning:
Intervenors ... confuse two separate issues. The issue in
Home Builders
was whether FWS properly applied the DPS Policy when it classified the Arizona pygmy-owl population as a DPS. The issue here is whether the NMFS could list under the ESA a unit
smaller than a DPS.
As a result, the holding in
Home Builders
does not conflict with that in
Alsea
and is not binding on this case.
(Id.
at 38 (emphasis added).)
The district court next addressed plaintiffs’ allegation that NMFS violated the ESA by listing only anadromous 0.
mykiss,
while excluding resident fish from the listing. Plaintiffs maintained that the resident fish had been made part of the ESU and therefore, under
Alsea,
the listing of only anadromous fish was unlawful. The issue was factual: “whether resident and anadromous populations are groups within the same DPS or are separate DPS[s], distinguished by their behavior.”
(Id.
at 41-42.) After reviewing the evidence, the district court recognized NFMS’s conclusion: “resident
0. mykiss
should be included in the listed steelhead ESU ‘in certain cases,’ such as ‘(1) where resident 0.
mykiss
have the opportunity to interbreed with anadromous fish below manmade barriers or (2) where resident fish of native lineage once had the ability to interbreed with anadromous fish but no longer do so because they are currently above human-made barriers and are considered essential for recovery of the ESU.’ ”
Id.
at 43. Plaintiffs did not allege that this two-part test was insufficient or that NMFS failed to apply it properly. The court concluded:
Given that [federal defendants] did not classify resident steelhead as part of the DPS, [federal defendants] did not err in the same way as they did in failing to account for hatchery-bred populations in the listing decisions. Whether [federal defendants] erred in failing to classify resident 0.
mykiss
as part of the DPS is a separate question, and Plaintiffs do not provide enough evidence from the AR or otherwise to support a finding that the agency’s ruling here was unlawful. The issue remains “unclear.” Plaintiffs motion for summary judgment that NMFS’s failure to list resident populations under the ESA [is] impermissible is DENIED.
Id.
at 43 — 14.
7.
Revised Hatchery Listing Policy.
In light of the
Alsea
decision, NMFS announced it would reconsider its Interim Hatchery Listing Policy. 67 Fed.Reg. 6,215, 6,217 (Feb. 11, 2002). NMFS published a proposed revised hatchery listing policy on June 3, 2004, 69 Fed.Reg. 31,354, followed by a final revised Hatchery Listing Policy (“HLP”) on June 28, 2005, 70 Fed.Reg. 37,204. In the HLP, NMFS first emphasized that “[a] key feature of the ESU concept is the recognition of genetic resources that represent the ecologi
*1131
cal and genetic diversity of the species. These genetic resources can reside in a fish spawned in a hatchery (hatchery fish) as well as in a fish spawned in the wild (natural fish).”
Id.
at 37,215. In delineating an ESU for listing consideration “NMFS will identify all components of the ESU, including populations of natural fish (natural populations) and hatchery stocks that are part of the ESU.”
Id.
Those hatchery stocks “with a level of genetic divergence relative to the local natural population(s) that is no more than what occurs within the ESU: (a) are considered part of the ESU; (b) will be considered in determining whether an ESU should be listed under the ESA; and (c)
will be included in any listing of the ESU. ” Id.
(emphasis added).
Status determinations (i.e., determinations as to whether the ESU should be listed as threatened, endangered, or neither) for steelhead ESUs “will be based on the status of the entire ESU.”
Id.
However, “NMFS will apply this policy in support of the conservation of
naturally-spawning salmon
and the ecosystems upon which they depend, consistent with section 2(b) of the ESA (16 U.S.C. 1531(b)).”
Id.
(emphasis added). Accordingly,
“[hfatchery fish will be included in assessing an ESU’s status in the context of their contributions to conserving natural self-sustaining populations. ” Id.
(emphasis added). Specifically, the effects of hatchery fish on the status of an ESU will depend on which of four key attributes— abundance, productivity, genetic diversity, and spatial distribution — are currently limiting the ESU, and “how the hatchery fish
within the ESU affect each of the attributes. ” Id.
(emphasis added).
The presence of hatchery fish within the ESU can positively affect the overall status of the ESU, and thereby affect a listing determination, by contributing to increasing abundance and productivity of the natural populations in the ESU, by improving spatial distribution, by serving as a source population for repopulating unoccupied habitat, and by. conserving genetic resources of depressed natural populations in the ESU. Conversely, a hatchery program managed without adequate consideration of its conservation effects can affect a listing determination by reducing adaptive genetic diversity of the ESU, and by reducing the reproductive fitness and productivity of the ESU. In evaluating the effect of hatchery fish on the status of an ESU, the presence of a long-term hatchery monitoring and evaluation program is an important consideration.
Id.
NMFS concluded that “[m]any hatchery programs are capable of producing more fish than are immediately useful in the conservation and recovery of an ESU and can play an important role in fulfilling trust and treaty obligations with regard to harvest of some Pacific salmon and steel-head ■ populations.”
Id.
Accordingly, NMFS determined that, where appropriate, it will “exercise its authority under section 4(d) of the ESA to allow the harvest of listed hatchery fish that are surplus to the conservation and recovery needs of the ESU, in accordance with approved harvest plans.”
Id.
at 37,215-37,216.
D.
The Challenged Listing Process.
On June 14, 2004, NMFS issued new proposed listings for 27 ESUs of West Coast salmonids. 69 Fed.Reg. 33,102. NMFS first applied its ESU policy to define the 27 ESUs, noting that
the.Alsea
court had approved of the ESU Policy as an interpretation of the statutory term “distinct population segment.” 69 Fed. Reg. 33,111 . Five -California
O. my kiss
ESUs were defined: Southern California, South-Central California Coast, Central
*1132
California Coast, California Central valley, and Northern California.
Neither the Southern California nor the South-Central California Coast proposed 0.
mykiss
ESUs included hatchery stocks, but the other three (Central California Coast, California Central Valley, and Northern California 0.
mykiss
ESUs) were proposed to include two hatchery programs each., 69 Fed.Reg. at 33,llT-SS,118.
With respect to the inclusion of resident (versus anadromous)
0. mykiss,
NMFS found that “no suite of morphological or genetic characteristics has been found that consistently distinguishes between the two life-history forms.”
Id.
at 33,113 . Consistent with the ESU Policy, NMFS evaluated the “extent of reproductive isolation and biological divergence from other populations within the ESU.”
Id.
NMFS found, overall, that populations of 0.
mykiss
from the same life history form that were geographically separated were more genetically divergent from one another than were resident and anadromous forms found in the same geographical area.
Id.
In previous listings, NMFS carefully examined the relationship between nearby resident and anadromous populations to determine whether the resident population belonged in the ESU.
Id.
As a general rule, given that the available data suggested that “resident rainbow trout and steel-head in the same area generally share a common gene pool (at least over evolutionary time periods),” both resident and anadromous populations were included in the same ESU.
Id.
However, resident populations above long-standing natural barriers and those populations that resulted from the introduction of non-native rainbow trout, were excluded from ESU.
Id.
In the case of resident populations upstream of impassable human-caused migration barriers (e.g., large mainstem hydroelectric dams), NMFS found “insufficient information to merit their inclusion in steelhead ESUs,” but recommended these populations be “evaluated on a case-by-case basis as more information becomes available on their relationships to below-barrier populations, or on the role these above-barrier resident populations might play in conserving below-barrier populations of 0. mykiss.”
m:
After
Alsea,
the BRT adopted a similar framework for determining the ESU/DPS membership of resident
0. mykiss
populations geographically associated with anadromous populations:
These evaluations were guided by the same biological principles used to define ESUs of natural fish and determine ESU membership of hatchery fish: the extent of reproductive isolation and biological divergence from other populations within the ESU. Ideally, each resident population would be evaluated individually on a case-by-case basis, using all available biological information. In practice, little or no information is available for most resident 0. mykiss populations. To facilitate determinations of the ESU/DPS membership of resident 0. mykiss, the BRT identified three different cases, reflecting the range of geographic relationships between resident and anadromous forms within different watersheds: (1) No obvious physical barriers to interbreeding between resident and anadromous forms; (2) long-standing natural barriers (e.g., a waterfall) between resident and anadromous forms; and (3) relatively recent (e.g., within the last 100 years) human-imposed barriers (e.g., a dam without a fish ladder) between resident and anadromous forms. The BRT adopted the following working assumptions about ESU membership of resident fish falling in each of these three cases. -Where there was no obvi
*1133
ous physical barrier to interbreeding between the two life-history forms, resident fish were considered part of the ESU. Empirical studies show that resident and anadromous 0. mykiss are typically very similar genetically when they co-occur with no physical barriers to migration or interbreeding. Where long-standing natural barriers separate resident and anadromous forms, resident populations were not regarded as part of the ESU. Many populations in this category have been isolated from contact with anadromous populations for thousands of years. Empirical studies show that in these cases the resident fish typically show substantial genetic and life-history divergence from the nearest downstream anadromous populations. In cases where the resident fish were separated from the anadromous form by relatively recent human actions (e.g., impassable dams and culverts), the BRT was unable to justify any particular default assumption. The two life-history forms most likely coexisted without any barriers to interbreeding prior to the establishment of the manmade barrier(s). However, as a result of rapid divergence in a novel environment, or displacement by or genetic introgression from non-native hatchery rainbow trout, these resident populations may no longer represent the evolutionary legacy of the 0. mykiss ESU. Given these uncertainties, the BRT left unresolved the ESU membership of 0. mykiss above recent (usually man-made) impassable barriers. In the absence of information indicating that they are part of a common ESU, NMFS does not find such above-barrier populations to be part of the 0. mykiss ESUs under review.
Id.
at 33,113-114 . (These working assumptions are referenced by the parties and the administrative record as the “null hypothesis.”)
Based in part on these conclusions, NMFS proposed that all five 0.
Mykiss
ESUs include resident rainbow trout
below
impassable barriers that co-occur with anadromous populations.
Id.
Resident rainbow trout located
above
one particular impassible barrier were considered part of the Central California Coast proposed ESU because genetic data indicated they were more similar to each other and to other populations within the ESU than they were to outside populations.
Id.
at 33,118 .
Once the ESUs were defined, NMFS assessed the extinction risk faced by each ESU. NMFS relied in part upon conclusions reached by the BRT, which evaluated the risk of extinction to the various ESUs based upon the “performance of the naturally spawning populations in each of the ESUs____”
Id.
at 33,110 . To perform this evaluation, the BRT employed the “Viable Salmonid Populations” (“VSP”) criteria, developed “to provide a consistent and logical reference for making viability determinations and are based on a review and synthesis of the conservation biology and salmon literature.”
Id.
Specifically, “the viability of salmon and steelhead ESUs is characterized by the health, abundance, productivity, spatial structure, and genetic/behavioral diversity of the individual populations within the ESU.”
Id.
ESUs with fewer populations are more likely to become extinct due to catastrophic events, and have a lower likelihood that the necessary phenotypic and genotypic diversity will exist to maintain future viability. ESUs with limited geographic range are similarly at increased extinction risk due to catastrophic events. ESUs with populations that are geographically distant from each other, or are separated by severely degraded habitat, may lack the connectivity to function as metapopulations (i.e., a group of interconnected subpopulations)
*1134
and are more likely to become extinct. ESUs with limited diversity are more likely to go extinct as the result of correlated environmental catastrophes or environmental change that occurs too rapidly for an evolutionary response. ESUs comprised of a small proportion of populations meeting or exceeding VSP criteria may lack the source populations to sustain the non-viable declining populations during environmental downturns. ESUs consisting of a single population are especially vulnerable in this regard.
Id.
at 33,110-33,111 .
NMFS acknowledged that the BRT’s work was hampered by limited data:
As noted above, little or no population data are available for most resident 0. mykiss populations, greatly complicating assessments of ESU-level extinction risk.... As was often the case, no data on the abundance, productivity, spatial structure, or diversity were available for resident populations in an ESU.
Id.
at 33,113 . Nevertheless, based on available data, the BRT concluded that, even with the presence of large resident populations, the complete elimination of the anadromous population might be irreversible.
The BRT noted that the presence of relatively numerous resident populations can significantly reduce risks to ESU abundance. However, there is considerable scientific uncertainty as to how the resident form affects extinction risk through its influence on ESU productivity, spatial structure, and diversity. The threats to 0. mykiss ESUs extend beyond low population size and include declining productivity, reduced resilience of productivity to environmental variation, curtailed range of distribution, impediments to population connectivity and reproductive exchange, depleted diversity stemming from loss or blockage of habitat and associated erosion of local adaptation, and erosion of the diversity of expressed migratory behaviors. Thus, the BRT concluded that, despite the reduced risk to abundance for certain 0. mykiss ESUs due to numerically abundant residents, the collective contribution of the resident life-history form to the viability of an ESU in-total is unknown and may not substantially reduce extinction risks to an ESU in-total (NMFS, 2004). Based on present scientific understanding, the BRT could not exclude the possibility that complete loss of anadromous forms from within an ESU may be irreversible.
Id.
at 33,113-114 .
After analyzing each ESU under the VSP criteria, the BRT assessed the ESU’s extinction risk based on the performance of the naturally spawning populations.
Id.
at 33,111 .
The BRT’s assessment of ESU-level extinction risk uses categories that correspond to the definitions of endangered species and threatened species, respectively, in the ESA: in danger of extinction throughout all or a significant portion of its range, likely to become endangered within the foreseeable future throughout all or a significant portion of its range, or neither. As discussed above, these evaluations do not include consideration of hatchery stocks included in ESUs, and do not evaluate efforts being made to protect the species. Therefore, the BRT’s findings are not to be considered recommendations i'egarding listing. The BRT’s ESU-level extinction risk assessment reflects the BRT’s professional scientific judgment, guided by the analysis of the VSP criteria, as well as by expectations about the likely interactions among the individual VSP criteria. For ex
*1135
ample, a single VSP criterion with a “High Risk” score might be sufficient to result in an overall extinction risk assessment of “in danger of extinction,” but a combination of several VSP criteria with more moderate risk scores could also lead to the same assessment, or a finding that the ESU is “likely to become endangered.”
Id.
at 33,111 .
NMFS treated the BRT’s recommendations as “a partial assessment of the ESU’s extinction risk,” but not as a final determination as to whether listing was warranted. NMFS then incorporated an assessment of the “contributions of within-ESU hatchery programs to the viability of an ESU in-total.”
Id.
at 33,112 . The result is NMFS’s Salmonid Hatchery Inventory and Effects Evaluation Report (“SHIEE Report”), an assessment of the contributions of ESU hatchery programs on ESU viability and extinction risk.
See id.;
AR 1459. NMFS proposed to list the Southern California ESU as endangered, and the other four California ESUs as threatened.
Id.
at 33,162-33,163 .
Following the publication of the proposed listing, NMFS commissioned three separate, independent scientific evaluations, in part to examine the use of the null hypothesis as a means of identifying members of a DPS using the ESU Policy. First, the Salmon Recovery Science Review Panel (“RSRP”), comprised of seven scientists from U.S. and Canadian universities, was convened to provide guidance on the scientific and technical aspects of recovery planning for West Coast populations of salmon and steelhead. AR 1471 at 1. The RSRP concurred with the BRT’s “null hypothesis” that separation of anadromous from resident forms by the existence of longstanding natural barriers justified the decision that the two forms not be considered part of the same DPS under the ESU Policy. AR 1471 at 6.
In April 2005, the second panel, the ISAB, concluded that “the presence of both resident and anadromous life-history forms is critical for conserving the diversity of steelhead/rainbow trout populations and, therefore, the overall variability of ESUs.” AR 1443 at 39.
Finally, on June 13, 2005, the Hey Panel issued a written report responding to four questions posed by NMFS. Pertinently, NMFS asked the Hey Panel: “Is there a reasonable biological justification for excluding from a conservation unit resident populations that are similar to anadromous populations in that unit?” AR 1442 at 13. Beginning with the three scenarios developed by the BRT in the null hypothesis, the Hey Panel found that where anadromous and resident O.
mykiss
co-occur and are located below impassible barriers, the null hypothesis’ conclusion that both members belonged in the same ESU was correct.
Id.
at 13-15 . The Hey Panel stated: “In those cases where the two populations co-occur and the lifestyle variation is present as a polymorphism, then it would be biologically justified for the conservation unit to include both the resident and anadromous fish.”
Id.
at 15 .
NMFS staff concluded that these three studies “strongly confirm” and are consistent with its recommended final listing determinations that included both resident and anadrmous forms of O.
mykiss
in the same ESU. AR 2215R (email from Scott Rumsey to others within the National Oceanographic and Atmospheric Administration, of which NMFS is a part).
Following an initial public comment period of 90 days, NMFS extended the public comment period two times. 69 Fed.Reg. 53,031 (Aug. 31, 2004); 69 Fed.Reg. 61,348 (Oct. 18, 2004). NMFS received comments disagreeing with the proposal to include rainbow trout in the ESUs and criticism on how it considered resident
*1136
rainbow trout in evaluating the risk to the continued existence of the entire ESU. 70 Fed.Reg. 37,219, 37,220 (June 28, 2005); 71 Fed.Reg. 834, 836-7 (Jan. 5, 2006) (“[C]ommenters felt that rainbow trout and steelhead should be considered separate ESUs for biological reasons (differences in behavior, morphology, and ecology); or for policy or legal reasons (such as implementing the purposes of the ESA).”).
In June 2005, FWS wrote to NMFS, raising concerns about NMFS’s proposed listings of O.
mykiss,
stating, in pertinent part:
[FWS] understands ... that you must reconsider the listing of the Pacific coast steelhead (O. mykiss) per several court actions ... and that NMFS has conducted assessments of both life forms of O.
mykiss
(resident rainbow trout and anadromous steelhead). As you know, pursuant to [the 1974 MOU], the NMFS exercises [ESA] jurisdiction over the anadromous form and the FWS exercises jurisdiction over the resident form of 0.
mykiss.
Based on informal discussions with NMFS regarding their assessment of both life forms of 0.
mykiss,
the FWS requested copies of all underlying information and data NMFS is using to develop its potential listing determinations for both life forms, and particularly all underlying information related to the species of jurisdiction to the FWS, the resident form. To date, we have not received the bulk of the requested information.
It is our understanding that [the BRT] did not have specific biological information on many facets of the relationship between resident and anadromous forms of 0.
mykiss
as they made their determinations to list or not to list the various ESUs. Instead, great weight was put on the fact the two forms are the same species, so where they occurred in sympatry, listing decisions were primarily if not wholly based on the status of the anadromous form and the fact the forms are genetically the same species. It is not clear to the FWS the extent that non-genetic information on these two forms of
0. mykiss
were considered in the deliberations to list the species. If not included in your record of scientific review, we would recommend that additional information be solicited to define the relationship between resident and anadromous forms, particularly in regards to frequency and significance of genetic interchange (spawning) between the two forms, the frequency, significance, and triggers for reversion to anadromy of the resident form and vice versa, and risk assessments to the entire ESU that analyzes the relative contributions to population status and stability of both resident and anadromous forms. In addition, we would need information regarding your determination of the ESU itself to ensure that it complies with the joint FWS/NMFS policy on distinct population segments. Until we receive information from you that demonstrates this analysis, the FWS is not persuaded that the conservation status of the rainbow trout form warrants Section 4 listing action. If such a determination is warranted, the Secretary of Commerce does not have legal jurisdiction to undertake a listing action for this freshwater fish and the Secretary of the Interior would have to make such a determination.
Of course, we stand ready to examine carefully all scientific data in your custody.... To accomplish this cooperative review, we recommend that you consider invoking section 4(b)(6)(B)(I) of the ESA to allow for further scientific evaluation, data gathering, and debate among the scientific experts within FWS and NMFS before any final decision is made
*1137
as to whether to list the species under section 4.
AR 1439.
In light of FWS’s concerns and those of other commentators, and to provide NMFS additional time to assimilate the new scientific information, NMFS announced that it was invoking the six month statutory extension of the deadline for. a final determination on the ten proposed listings, pursuant to 16 U.S.C. § 1533 (b)(6)(B)(I). 70 Fed.Reg. at 37,-220. According to NMFS’s Federal Register Notice announcing the invocation of the six month extension, the FWS letter raised concerns about “the factual and legal bases for the proposed O.
mykiss
listings,” and indicated that there was substantial disagreement regarding the relationship between resident rainbow trout and steelhead populations and the best way to assess extinction risk to populations containing both resident and ana-, dromous fish.
Id.
According to NMFS, FWS identified in its letter three specific areas of “substantial disagreement” with regard to the sufficiency and/or accuracy of the available scientific data underlying NMFS’s proposed listing decision: (1) the determination that resident and anadromous forms comprise a single ESU; (2) the relatedness of co-occurring resident and anadromous forms; and (3) the assessment of the risk of extinction for ESUs comprised of both resident and anadromous members.
Id.
In addition, NMFS noted that it had received the three reports from the independent scientific panels containing information bearing on the relationship between resident rainbow trout and steelhead.
Id.
NMFS again solicited public comment on the issues relating to the scientific disagreement and uncertainty surrounding the relationship between resident and anadromous populations.
Id.
Notably, in its June 2005 letter, FWS suggested that NMFS “ensure that [its] delineation of
0. mykiss
ESUs complies with the [joint] DPS policy.” AR 1439. NMFS indicated it its request for comment on a proposal to switch from the ESU to the DPS Policy, that it “agreed that the facts before it made it appropriate to consider departing from the past practice of applying the ESU policy to
0. mykiss
and instead applying the DPS policy when determining what ‘species’ of
0. mykiss
warranted listing.” 70 Fed.Reg. 67,131 (Nov. 4, 2005). NMFS noted that applying the DPS policy would be consistent with the past application, by both agencies, in defining DPSs of Atlantic Salmon, another species over which the two agencies share jurisdiction.
Id.
NMFS explained that the primary difference between the two policies was that the ESU policy focuses on “substantial reproductive isolation” to define an ESU, while the DPS policy relies on “marked separation,” which accounts for physical, physiological, ecological, and behavioral factors, in addition to genetics.
Id.
NMFS further opined that unlike the ESU Policy, which relies on reproductive isolation, the DPS Policy’s first criteria of discreteness focuses on whether there is “marked separation of population groups as a consequence of biological factors.”
Id.
at 67,132 . Applying the discreteness factor to O.
mykiss,
NMFS found that despite apparent reproductive exchange between rainbow trout and steelhead, the two life forms “remain markedly separated physically, physiologically, ecologically, and behaviorally,” so that a steelhead-only grouping would satisfy the discreteness criterion of the DPS policy.
Id.
NMFS reasoned:
Steelhead differ from resident rainbow trout physically in adult size and fecundity, physiologically by undergoing smoltification, ecologically in their preferred
*1138
prey and principal predators, and behaviorally in their migratory strategy. Where the two life forms co-occur, adult steelhead typically range in size from 40-72 cm in length and 2-5 kg body mass, while adult rainbow trout typically range in size from 25-46 cm in length and 0.5-2 kg body mass (Shapovalov and Taft, 1954; Wydoski and Whitney, 1979; Jones, 1984). Steelhead females produce approximately 2,500 to 10,000 eggs, and rainbow trout fecundity ranges from 700 to 4,000 eggs per female (Shapovalov and Taft, 1954; Buckley, 1967; Moyle, 1976; McGregor, 1986; Pauley et ah, 1986), with steel-head eggs being approximately twice the diameter of rainbow trout eggs or larger (Scott and Crossman, 1973; Wang, 1986; Tyler et al., 1996). Steel-head undergo a complex physiological change that enables them’ to make the transition from freshwater to saltwater (smoltification), while rainbow trout reside in freshwater throughout their entire life cycle. While juvenile and adult steelhead prey bn euphausiid crustaceans, squid, herring, and other small fishes in the marine environment, the diet of adult rainbow trout is primarily aquatic and terrestrial insects and their larvae, mollusks, amphipod crustaceans, fish eggs, and minnows (LeBrasseur, 1966; Scott and Crossman, 1973; Wydoski and Whitney, 1979). Finally, steel-head migrate several to hundreds of miles from their natal streams to the ocean, and spend up to 3 years in the ocean migrating thousands of miles before returning to freshwater to spawn (Busby et ah, 1996). Rainbow trout, in contrast, may exhibit seasonal migrar tions of tens of kilometers but generally remain associated with their natal drain-ages (Meka et al., 1999).
Id.
at 67,132 .
As to significance, NMFS referenced prior status reviews that concluded steel-head represent an important component in the evolutionary legacy of the species, which met the significance criterion.
Id.
NMFS then reopened the comment period a final time to take comment on whether it should apply the joint DPS policy to delineate ten steelhead-only DPSs. 70 Fed.Reg. at 67,131.
On August 1, 2005, representatives of NMFS and FWS met to discuss the proposed listings. At the meeting, the two agencies and their staffs preliminarily agreed that there was no scientific dispute concerning NMFS’s identification of the ESUs, nor with NMFS’s decision to include both resident and anadromous members in certain ESUs. Specifically, NMFS and FWS agreed: (1) that “[t]he O.
mykiss
ESUs delineated relative to taxonomic subspecies appear to be well supported by the best available scientific information and are consistent with the statutory provision of the Endangered Species Act (ESA) ....”; (2) the “best available scientific information supports the inclusion of co-occurring resident and anadromous forms in the same O.
mykiss
ESU. Although there is often a lack of site-specific information, the scientific literature strongly indicates that where resident and anadromous O.
mykiss
co-occur they share a common gene pool, interbreed, produce progeny of the alternative life form, and collectively exhibit adaptive life history traits composing an important component of the evolutionary legacy of the species.” AR 2238-01 at 1.
In September 2005, Dr. Scott Rumsey of NMFS conducted a review of the available literature on the relationship between the anadromous and resident forms of O.
mykiss.
Dr. Rumsey noted that of the 27 articles he reviewed, 25 provided evidence that co-occurring residents interbreed with the anadromous form. AR 2241R. Dr. Rumsey noted that the “notion that ‘co-occurring resident and anadromous O.
*1139
mykiss
interbreed and produce the alternative life-history form’ is regarded as established fact in the scientific literature, by our co-managers, and by 10 years of BRT reviews (although the frequency and magnitude is unknown).”
Id.
At the end of September 2005, NMFS continued to assert that, pursuant to the
ESU Policy,
the best available scientific evidence supported the inclusion of both resident and anadromous forms in the same
ESUs
where they co-occur below impassible barriers. In a document entitled “Approach for Resolving Shared NOAA Fisheries and U.S. Fish and Wildlife Jurisdiction under the Endangered Species Act for Steelhead and Rainbow Trout
(Oncorhynchus
mykiss)” NMFS explained:
It is well established in the scientific literature that resident (rainbow trout) and anadromous (steelhead) O.
mykiss
are very similar genetically where they co-occur with no physical barriers to migration or interbreeding. It is also well established that the resident form occasionally produces anadromous migrants, and vice versa. Accordingly, in past NMFS’ steelhead status reviews, co-occurring resident and anadromous
0. mykiss
were regarded as a polymorphism within an interbreeding population and the two life-history forms were considered as part of the same ESU ... In response to several petitions, pending litigation, and in an effort to comply with the Alsea ruling, NMFS conducted a comprehensive status review of 27 West Coast salmonid ESUs, including all ten ESA-listed steelhead ESUs. This recent review included an updated assessment of the best available scientific information concerning the relationship between resident and anadromous
0. mykiss,
and their relative contributions to the viability of delineated
0. mykiss
ESU ... Consistent with previous reviews, our recent review concluded that where resident and anadromous
0. mykiss
co-occur they are not substantially reproductively isolated, they collectively represent an important component in the evolutionary legacy of the species, and they are part of the same ESU.
AR 2245-01 at 3 (emphasis added).
On January 5, 2006, NMFS published a final rule regarding the proposed listings, adopting the reasoning presented in the notice, announcing the shift from the ESU to the DPS policy, and addressing numerous comments. 71 Fed.Reg. 834. The boundaries of the previously defined
O. mykiss
ESUs were unchanged, but, applying the Joint DPS Policy, all resident
O. mykiss
were excluded and the groupings were referred to as “DPSs” rather than “ESUs.” The hatchery programs included in the final steelhead DPS listings were unchanged from those included in the 2004 proposed listing.
Id.
at 848 . The Southern California steelhead DPS is listed as endangered and the other four California steelhead DPSs are listed as threatened.
Id.
at 857 .
E.
Challenged Prohibitions and Protective Regulations.
The final NMFS listing promulgated certain protective measures. Although ESA § 9(a), 16 U.S.C. § 1538 (a)(1)(B), take provisions apply to all species listed as endangered, for threatened species, ESA § 4(d) grants NMFS discretion whether and to what extent to extend § 9(a) “take” protections. Section 4(d) also directs the- agency to issue regulations it considers necessary and advisable for the conservation of the species.
10
*1140
On June 28, 2005, as part of the final listing determinations for 16 West Coast salmon ESUs, NMFS amended the previously promulgated 4(d) protective regulations for threatened salmon and steelhead. 70 Fed.Reg. 37,160. The amendment was designed to “provide the necessary flexibility to ensure that fisheries and artificial propagation programs are managed consistently with the conservation needs of threatened salmon and steelhead.” 71 Fed.Reg. 857. Under the amended regulation, section 4(d) protections were extended only to natural and hatchery fish with an intact adipose fin, but not to listed hatchery fish that have had their adipose fin removed prior to release into the wild. The regulation applied to steelhead being listed as threatened in the South-Central California, Central California Coast, California Central Valley, Northern California, DPSs, among others.
III.
SUMMARY OF PLAINTIFFS’ MOTIONS
A.
Grange Motions.
Grange filed this lawsuit on March 20, 2006, alleging generally that, in listing the five California O.
mykiss
DPSs, NMFS failed to comply with the ESA and the APA.
(Grange
Doc. 1.) Grange now moves for summary judgment on the following grounds:
First, the Grange argues these NMFS listings unlawfully distinguished between hatchery and naturally-spawned O.
mykiss
by first defining some of the DPSs to
include
hatchery fish, but then distinguished between hatchery and naturally-spawned fish during the listing process. Grange relies heavily on the holding from
Alsea
that “[ljisting distinctions below that of subspecies or a DPS of a species are not allowed under the ESA.” 161 F.Supp.2d at 1163 . Grange asserts that the phrase “listing distinctions” should apply not only to “listing decisions” (i.e., the final determination whether to place a species or DPS on the threatened or endangered list) but to any distinctions made at any point of the listing process once the members of a DPS are defined.
11
(Id.
at ¶¶ 84-91.)
Next, Grange challenges NMFS’s decision to apply the Joint DPS policy to
O. mykiss,
which resulted in the exclusion of all resident
O. mykiss
from the five challenged DPSs, leaving only steelhead in those DPSs. Grange first argues that NMFS had insufficient justification for applying the Joint DPS policy to
O. mykiss,
which was a departure from its prior practice of applying the ESU Policy.
(Id.
at ¶¶ 99-102.) Second, Grange argues that drawing any distinction between migratory and resident O.
mykiss
“results in an inconsistent and artificial species definition that is not supported by the ESA and is contrary to the ESA’s intent.” (Doc. 1 at ¶ 82.)
(Grange
Doc. 1 at ¶¶ 79-83.)
Finally, Grange challenges the ESA § 4(d) protective regulations for the four challenged DPSs designated as threatened. The regulation applies the anti-take protections of ESA § 9 to only the “natu
*1141
rally-spawned” portion of the listed populations and those members of the hatchery-born population with an intact adipose fin, while those hatchery-born fish whose adipose fins have been clipped are deemed “surplus to the conservation needs of the species.”
Grange maintains that allowing the take of fish which have been deemed “surplus to the conservation needs of the species” violates the ESA. Specifically, for threatened species, the ESA requires NMFS to “issue such regulations as [NMFS] deems necessary and advisable to provide for the
conservation of
such species.” 16 U.S.C. § 1533 (d) (emphasis added). The ESA defines “conservation,” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” § 1532(3). The definition of conservation provides: “[s]uch methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and,
in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. ” Id.
(emphasis added). The Grange asserts that this language operates as a prohibition against permitting the take of any listed species except in extraordinary cases, making NMFS’s protective regulation unlawful.
(Grange
Doc. 1 at ¶¶ 103-108.)
The
Grange
advances one additional claim, premised on the ESA’s definition of a “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife
which interbreeds ivhen mature. ”
16 U.S.C. § 1532 (16) (emphasis added). Grange alleges that each of the challenged DPSs consist of numerous sub-populations spread across large areas and that, for example, “[s]ome O.
mykiss
return to spawn in Redwood Creek in Humboldt County, in the far
north
portion of the DPS, while others return to spawn in the Gualala River in Mendocino County, in the far south portion of the DPS — over 200 miles away.”
(Grange
Doc. 1 at ¶ 95.) This allegedly conflicts with the ESA’s plain language requiring DPS members to “interbreed when mature.” However, as Federal Defendants point out in their cross-motion,
this claim was not raised in Grange’s motion for summary judgment.
Rather, the claim was raised for the first time in the reply brief. To mask this untimeliness, the argument is characterized as a response to a different argument made in Defendants’ cross motion. Specifically, Grange’s opening brief (in the context of a separate claim) argued that all DPSs of
O. mykiss
must include both resident and anadromous fish because they “interbreed when mature.” NMFS responded,
inter alia,
that “[t]he ESA requirement that a group of organisms defined as a DPS must ‘interbreed when mature’ is a necessary but not exclusive condition.”
(Grange
Doc. 45 at 25.) Defendants discussed this statutory language in the context of Grange’s Fourth and First Claims for relief (which challenge the distinction between resident and migratory O.
mykiss).
Grange’s reply reintroduces their entire Third claim as a response to Defendants’ reference to the “interbreed[ing] when mature” language. This procedure deprives Defendants of a fair opportunity to respond.
B.
MID II Motions.
MID advances five arguments why NMFS’s listing of the Central Valley Steelhead DPS is arbitrary, capricious, and unlawful, some of which overlap with the
*1142
Grange’s claims. First, MID claims that NMFS’s interpretation of the term “distinct population segment” is arbitrary because it contradicts the plain language of the ESA. Second, NMFS’s decision to separate anadromous and resident forms of 0.
mykiss
is arbitrary because it is inconsistent with its own and FWS’s treatment of other fish species with anadromous and resident life histories. Third, NMFS’s switch from the ESU to the DPS policy is arbitrary and capricious because the reasons for the switch are unsupported by the administrative record. Fourth, the best available science does not support NMFS’s determination that anadromous 0.
mykiss
are discrete from resident 0.
mykiss.
Finally, NMFS provided no rational basis to justify including some genetically divergent
0. mykiss
and excluding other genetically divergent
0. mykiss
from the defined DPS.
IV.
STANDARD OF REVIEW
Plaintiffs seek summary judgment setting aside NMFS’s listing determinations for the five DPSs of California steelhead. It is not disputed that the listings are final agency actions. Review of an agency’s final action is governed by APA section 706(2) of the APA, which provides:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall — •
(2)hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
5 U.S.C. § 706 .
Courts will award summary judgment in an APA case if they determine, after reviewing the administrative record, that the agency’s action was arbitrary and capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole.
Morongo Band of Mission Indians v. FAA,
161 F.3d 569, 573 (9th Cir.1998); 5 U.S.C. § 706 (2)(A). According to the Ninth Circuit, a decision is arbitrary and capricious if the agency
(1) has relied on factors which Congress has not intended it to consider,
(2) entirely failed to consider an important aspect of the problem,
(3) offered an explanation for its decision that runs counter to the evidence before the agency, or
(4) is so implausible that it could not be ascribed to a difference in view or product of agency expertise.
United States v. Snoring Relief Labs., Inc.,
210 F.3d 1081, 1085 (9th Cir.2000).
“Review under the arbitrary and capricious standard is narrow, and the reviewing court may not substitute its judgment for that of the agency.”
Morongo Band,
161 F.3d at 573 ;
see also Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 414-16 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971),
overruled on other grounds by Califano v. Sanders,
430 U.S. 99, 105 , 97 S.Ct. 980 , 51 L.Ed.2d 192 (1977). Despite this “narrow” scope of review, the court is still expected to make a “thorough, probing, in-depth review” of the administrative
*1143
record to ensure the validity
of the
agency action, and “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.”
Id.
at 415-16. Whenever scientific experts express conflicting views, “an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.”
Marsh v. Oregon Natural Res. Council,
490 U.S. 360, 378 , 109 S.Ct. 1851 , 104 L.Ed.2d 377 (1989). A court must be “at its most deferential” when an agency is “making predictions within its area of expertise, at the frontiers of science.”
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,
462 U.S. 87, 103 , 103 S.Ct. 2246 , 76 L.Ed.2d 437 (1983).
V. ANALYSIS
12
A.
Standing.
To establish constitutional standing, a plaintiff first must “have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”
Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) (internal quotations and citations omitted). Second, “there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant and not the result of some independent action of some third party not before the court.”
Id.
Finally, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Id.
at 561 , 112 S.Ct. 2130 . Plaintiffs bear the burden of establishing these elements.
Id.
At the summary judgment stage, Plaintiffs “can no longer rest on ... mere allegations, but must set forth by affidavit or other evidence specific facts, which for the purposes of [a] summary judgment motion will be taken to be true.”
Id.
When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiffs asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction-and perhaps on the response of others as well. The existence of one or more of the essential elements of standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict; and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it
*1144
is ordinarily substantially more difficult to establish.
Id.
at 561-62 , 112 S.Ct. 2130 (internal citations and quotations omitted). Plaintiffs must “demonstrate standing for each claim [they] seek to press.”
DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 335 , 126 S.Ct. 1854 , 164 L.Ed.2d 589 (2006).
1.
Standing of the Grange Plaintiffs.
Federal Defendants assert that the Grange Plaintiffs’ have failed to meet their burden of establishing standing.
(Grange
Doc. 45 at 14.) The Grange Plaintiffs does not directly address the issue of standing
in either their motion for summary judgment or their reply brief.
Nor have they Grange Plaintiffs submitted declarations (or any other evidence) from any individuals associated with either California State Grange or Greenhorn Grange. The Complaint contains some basic allegations regarding the purpose of California State Grange and Greenhorn Grange, as well as the general interests they might have in the 0.
mykiss
listing. However, at the summary judgment stage, mere allegations are insufficient. As neither California State Grange nor Greenhorn Grange have submitted any
evidence
regarding standing, they have totally failed to meet their burden under
Lujan
and their claims must be dismissed from the case for lack of standing.
Other Plaintiffs remain. Standing declarations have been submitted by (1) David Bischel, the President of the California Forestry Association (“CFA”)
(Grrange
Doc. 54); (2) Robert Briggs, the Director of the Central Coast Forest Association (“CCFA”)
(Grange
Doc. 56); and (3) James Kentosh, the Manager of Resource Planning for United Water Conservation District (“UWCD”)
(Grange
Doc. 55).
David Bishel states that as a result of the listing of several populations of salmonids, including the steelhead, the California Forest Practice Rules were amended to “increase the prescriptive measures already in place for the protection of watershed resources.”
(Grange
Doc. 54 at ¶ 2.) Specifically, the added protections “include requiring landowners to retain trees which would have previously been harvested and impose additional requirements for erosion control, watercourse crossings, restoration, monitoring, and selection of alternatives. These measures dramatically increased the costs of harvesting and reduce the numbers of trees removed near streams.”
(Id.
at ¶ 4.) Bishel estimates that “[p]rivate timber harvests in California dropped by 380 million board feet due to the imposition of the [new] pr[e]scriptive measures.”
(Id.
at ¶ 6.) However, Bischel does not provide any evidence pertaining to the membership of the CFA, or how its members have been harmed by the new regulations. The
Complaint
explains that the CFA consists of “forestry professionals, companies, and individuals,” who are “committed to staying abreast of issues facing the forest products industry.”
(Gmnge
Compl. at ¶ 9A.) However, nothing in Bischel’s declaration provides
evidence
to support these allegations, nor does he provide any affidavits from individual CFA members or timber owners who have been impacted by the new regulations.
An organization may sue on behalf of its members (i) where at least one member would have standing to sue in his or her own right, (ii) where the interests the association seeks to protect are germane to its purpose, and (iii) where neither the claim nor the remedy requires the members to participate individually.
Hunt v. Wash. State Apple Adver. Comm’n,
432 U.S. 333, 342-43 , 97 S.Ct. 2434 , 53 L.Ed.2d 383 (1977). Although the third element is not reasonably in dispute here, Bishel’s declaration fails to establish either the first or second element, as it contains absolute
*1145
ly no evidence regarding the organization’s purpose or whether any of its members have individualized injury to confer standing.
Robert Briggs’ declaration, made on behalf of CCFA, also fails to provide evidence regarding the organizational goals of CCFA. Although the Complaint alleges that CCFA is “a California nonprofit alliance of small forestland owners, forestry professionals, and forest oriented businesses with close affinity to the woods, mountains, streams, and wildlife of the Central Coast of California,” Briggs’ declaration asserts no facts to support these allegations. Briggs’ does provide some information as to the harm caused to CCFA members by the listing of the steelhead. He states unequivocally, that “the listing of the steelhead has justified federal and state interference in the lives and livelihoods of people in the Santa Cruz Mountains area in numerous ways.”
(Grange
Doc. 56 at ¶ 2.) Briggs describes several specific impacts of the listing and resulting logging restrictions upon CCFA members. For example, Briggs explains that CCFA member Charles Burton harvested a 55 acre plot of redwood on his lands in Santa Cruz County in 1999. As a result of a stream buffer requirement enacted by the California Board of Forestry “at the instigation of NMFS to protect the steelhead,” Mr. Burton was required to leave a 150 foot uncut strip of timber approximately 1,000 feet long, resulting in $72,000 in lost harvest revenue.
(Id.
at ¶ 3Bi.) Briggs offers several other specific examples of harm caused to CCFA members as a result of the stream buffer requirement.
(Id.)
Briggs also explains how other steel-head protection measures have harmed CCFA members. For example, CCFA member Big Creek Lumber Company is now required to haul water 40 miles roundtrip to a logging site because drafting water from an on-site stream is restricted to protect steelhead.
(Id.
at 3ii.)
James Kentosh, the Manager of Resource Planning for United Water Conservation District (“UWCD”), states in his declaration that UWCD “manages groundwater and delivers water to cities and agricultural water users within a large part of Ventura County, in Southern California. UWCD is a public agency with an elected board of directors, created under the Water Conservation District Law of 1931.”
(Grange
Doc. 55 at ¶ 2.) Kentosh explains that NMFS’s recommendations for the protection of the steelhead include reducing the amount of water that may be diverted out of the Santa Clara River at UWCD’s Freeman Diversion by approximately 10,000 acre feet per year. UWCD estimates that it would cost approximately $7.25 million per year to acquire replacement water in that region, although Ken-tosh does not indicate that it is necessary for UWCD to replace this water or that it has paid for replacement water.
(Id.
at ¶¶ 8-9.) In addition to the water diversion restrictions, NMFS has also concluded that a fish ladder installed at the Freeman diversion does not work and recommends replacing it with a “rock ramp.” UWCD estimates that such a rock ramp would cost around $100 million to construct. UWCD also has incurred and continues to incur costs related to studying impacts of its operations on listed steelhead. UWCD estimates these costs related to the relicensing of its operations at Lake Piru to be over $100,000 to date.
(Id.
at ¶ 16.) In addition, partly because of the listing of the steelhead, UWCD is being required to upgrade fish screens and build a natural fishway at Piru Creek, at an estimated cost of $600,000.
(Id.
at ¶ 17.)
There is no question that UWCD has been harmed by the listing of the steelhead. UWCD also claims to be harmed by NMFS’s promulgation of a protective regulation that allows the harvest
*1146
of hatchery-born 0.
mykiss
because, as a regulated party, any decision that permits the take of some listed individuals may impact the overall capacity of the listed species (or DPS) to survive and recover. Accordingly, UWCD has standing to challenge the listing determinations, the policies and practices that led to the listings, and NMFS’s promulgation of a protective regulation that allows the harvest of hatchery-born 0.
mykiss
who have had their adipose fin clipped.
The California State Grange and Greenhorn Grange have totally failed to demonstrate they have standing. The CFA has not provided evidence as to its organizational purpose and has not demonstrated that any of its members has been harmed by Defendants’ conduct. CCFA has also failed to provide evidence as to its organizational purpose. UWCD, however, has demonstrated that it has been harmed by the listing of the steelhead.
2.
Standing of the MID II Plaintiffs.
No standing challenge is raised in
MID II.
A brief review of the MID II Plaintiffs’ interests reveals that they have standing to pursue their claims.
Plaintiffs Modesto Irrigation District (“Modesto ID”), Turlock Irrigation District (“Turlock ID”), Merced Irrigation District (“Merced ID”), Oakdale Irrigation District (“Oakdale ID”), and South San Joaquin Irrigation District (“South San Joaquin ID”), are all irrigation districts and public agencies organized and operating pursuant to California Law. Cal Water Code §§ 20500,
et seq.
Modesto ID and Turlock ID own and operate the Don Pedro Project, which is subject to a license issued by the Federal Energy Regulatory Commission (“FERC”), making Modesto ID’s and Turlock ID’s operations subject to consultation between NMFS and FERC under Section 7 of the ESA. Merced ID owns and operates facilities that divert water from the Merced River. These facilities are also subject to licenses issued by FERC, and are similarly subject to Section 7 consultation. Oakdale ID and South San Joaquin ID own and operate facilities that divert water from the Stanislaus River. Some of these facilities are the subject of permits issued by FERC.
{See generally MID II
Doc. 1 at 5-6.)
Stockton East Water District (“Stockton East WD”) is á special district formed by special action of the California Legislature, and is generally governed as a water conservation district pursuant to California Water Code §§ 74000-76501. Stockton East WD owns and operates facilities that divert water from the Stanislaus River, Calaveras River, and Mormon Slough in Calaveras, Tuolumne, Stanislaus, and San Joaquin Counties. Some of Stockton East WD’s facilities are the subject of permits issued by the United States Army Corps of Engineers (“USACOE”) pursuant to section 404 of the Clean Water Act ( 13 U.S.C. § 1344 ), and are subject to Section 7 consultation between NMFS and the USACOE.
{Id.
at 6.)
Each
MID II
Plaintiff depends upon or operates facilities on rivers allegedly occupied by Central Valley Steelhead.
{Id.
at ¶ 9.) Not only are the
MID II
Plaintiffs’ operations on these rivers subject to ESA Section 7, their operations are subject to Section 4(d) “take” prohibitions and penalties if a listed fish is taken as a result of these operations. Plaintiffs have a concrete interest in ensuring that the ESA listing decisions that will form the subject of further regulation of their activities are proper. They are and will continue to be injured by listing decisions that affect the timing and volume of water that they can divert and deliver. It is undisputed that the listing decision is the cause of Plaintiffs’ injury and that the invalidation of the listing decision would redress the alleged
*1147
harm. In addition, as regulated parties, the MID II Plaintiffs fall within the zone of interest of the ESA. The MID II Plaintiffs have standing to bring this suit.
B.
Hatchery-Bom v. Naturally-Spawned: Challenges to the Manner by Which NMFS Treated Hatchery 0. mykiss During the Listing Process.
1.
Grange’s Claim That NMFS Acted Unlawfully by Defining Some of the DPSs to Include Hatchery Fish but Then Distinguished Between Hatchery and Naturally-Spawned Fish Dunng the Listing Process.
Grange argues generally that NMFS unlawfully distinguished between hatchery and naturally-spawned 0.
mykiss
by first defining some of the DPSs to
include
hatchery fish but then distinguished between hatchery and naturally-spawned fish during the listing process. Grange insists that (1) “[u]nder the ESA’s clear terms, NMFS must treat equally, without distinction, all members of a species it includes in a species population,”
(Grange
Doc. 29 at 13), and (2) NMFS acted unlawfully when it (a) reviewed the status of only the naturally-spawned portion of the population to determine if that portion warranted listing, and (b) only evaluated hatchery
0. mykiss
to determine how hatcheiy
0. mykiss
impacted the natural population.
(Id.)
The
Grange
relies upon language from
Alsea,
the plain language of the ESA, and portions of the ESA’s legislative history.
Federal Defendants and Defendant-Intervenors cross-move for summary judgment on this claim, contending that they lawfully drew distinctions between hatchery-born and naturally-spawning
0. mykiss
during the listing process.
a.
Two of the Five Challenged DPSs Do Not Include Hatchery Fish.
It is undisputed that two of the five challenged California Steelhead DPSs, the Southern California and South-Central California DPSs, do not include hatchery fish. Grange’s Second Claim for Relief is based on the argument that NMFS cannot include hatchery fish in a DPS and then treat them differently from naturally-spawned fish
during
the listing process. This claim cannot possibly apply to the two California DPSs that do not include hatchery fish. Accordingly, Federal Defendants and Defendant-Intervenors’ cross-motion for summary judgment on the Second Claim for Relief is GRANTED with respect to these two DPSs.
b.
Alsea does not Control the Outcome of this Claim.
Plaintiffs rely heavily on
Alsea,
maintaining it controls the outcome of this case.
Alsea
addressed NMFS’s listing of the Oregon Coast Coho ESU as threatened. 161 F.Supp.2d at 1159 . Under its ESU Policy, NMFS concluded that nine hatchery populations were part of the disputed ESUs, but nonetheless listed only the naturally-spawned fish as threatened. The hatchery populations were not included in the listing because the hatchery populations were not deemed “essential to recovery.”
Id.
The
Alsea
listing was invalid because NMFS’s distinction “between hatchery spawned and naturally-spawned coho is untenable under the ESA because the ESA does not allow the Secretary to make listing distinctions below that of species, subspecies or a distinct population segment of a species.”
Id.
at 1161 .
Alsea
concluded that NMFS’s ESU Policy is a “permissible agency construction of the ESA” and the “factors used to define [an ESU during the listing process], geogra
*1148
phy and genetics, are within permissible limits under the ESA,”
id.
at 1162 n. 5, but found NMFS’s approach to be fundamentally flawed:
The central problem with the NMFS listing decision of August 10, 1998, is that it makes improper distinctions, below that of a DPS, by excluding hatchery coho populations from listing protection even though they are determined to be part of the same DPS as natural coho populations.
The ESA “specifically states in the definition of ‘species’ that a ‘species’ may include any subspecies ... and any distinct population segment (DPS) of any species ... which interbreeds when mature.” 16 U.S.C. § 1532 (16);
Southwest Center for Biological Diversity v. Babbitt,
980 F.Supp. 1080, 1085 (D.Ariz. 1997).
Listing distinctions below that of subspecies or a DPS of a species are not allowed under the ESA. Southwest Center,
980 F.Supp. at 1085 . Yet, this is precisely what the NMFS did in its final listing decision of August 10, 1998. NMFS concluded that nine hatchery stocks were part of the same Oregon Coast ESU/DPS as the “natural” populations but none of the hatchery stocks were included in the listing decision because NMFS did not consider them “essential for recovery.” 63 Fed.Reg. 42,-589.
The distinction between members of the same ESU/DPS is arbitrary and capricious because NMFS may consider listing only an entire species, subspecies or distinct population segment (“DPS”) of any species.
16 U.S.C. § 1532 (16).
Once NMFS determined that hatchery spawned coho and naturally-spawned coho were part of the same DPS/ESU, the listing decision should have been made without further distinctions between members of the same DPS/ESU.
Id.
at 1162 (emphasis added).
Plaintiffs assert here that the phrase “listing distinctions” should be read broadly to apply not only to “listing decisions” (i.e., the final determination whether to place a species or DPS on the threatened or endangered list) but to any distinctions made in any point of the ESA listing process as applied to the members of a DPS.
(Grange
Doc. 1 at ¶¶ 84-91.) In support, Plaintiffs point to
Alsea’s
analysis of the ESA’s text and legislative history, which rejects NMFS’s argument “that its listing decision does not contradict the terms of the ESA because the listing decision, and relevant policies, are in accordance with ESA goals that prioritize ‘natural’ salmon populations and ‘genetic diversity’ within those populations.”
Id.
Although I agree with the general concept that “genetic diversity” is one factor in the long term success of a threatened species, and thus is one of many underlying goals of the ESA, genetics cannot, by itself, justify a listing distinction that runs contrary to the definition of a DPS.
The term “distinct population segment” was amended in the ESA in 1978 so that it “would exclude taxonomic [biological] categories below subspecies [smaller taxa] from the definition.” H.R. Conf. Rep. No. 95-1804, at 17 (1978), reprinted in 1978 U.S.C.C.A.N. 9485, 14855.
Congress adopted the DPS language stating:
The committee agrees that there may be instances in which [the Fish and Wildlife Service] should provide for different levels of protection for populations of the same species. For instance, the U.S. population of an animal should not necessarily be permitted to become extinct simply be
*1149
cause the animal is more abundant elsewhere in the world. Similarly, listing populations may be necessary when the preponderance of evidence indicates that a species faces a widespread threat, but conclusive data is available with regard to only certain populations.
S. Rep. No. 96-151.
Thus, Congress expressly limited the Secretary’s ability to make listing distinctions among species below that of subspecies or a DPS of a species. Here, the NMFS listing decision was based on distinctions below that of subspecies or distinct population segment of a species. Therefore, the NMFS’s listing decision is arbitrary and capricious, because the Oregon Coast ESU includes both “hatchery spawned” and “naturally-spawned” coho salmon, but the agency’s listing decision arbitrarily excludes “hatchery spawned” coho ....
Id.
at 1163 . Plaintiffs claim this suggests it is appropriate to bar NMFS from drawing
any
distinctions between naturally-spawned and hatchery-born fish at
any
stage during the listing process. Neither Alsea’s holding nor its analysis of the ESA suggests such a limitation. Rather, Alsea emphasizes that Congress limited NMFS’s ability to
list
a population that is taxonomically smaller than a subspecies or distinct population segment. It is undisputed that NMFS
listed
the entire DPSs in dispute here.
Alsea
does not address whether it is proper for NMFS to emphasize the health of the natural components of the DPSs during its analysis of the extinction risks faced by the DPSs.
13
Defendants and Defendant-Intervenors are correct that Alsea “does not require a particular approach to assessing extinction risk.” Alsea does not resolve Plaintiffs’ claims as a matter of law.
c.
Parsing Grange’s Naturally-Spawned v. Hatchery-Bom Challenge to Determine the Appropriate Standard of Review.
Grange also argues that, under the relevant statutory text and legislative history, the listing decision is contrary to the ESA’s intent. Grange does not
directly
challenge the lawfulness of NMFS’s HLP. Rather, Grange attacks the listing determinations alone. A challenge to a policy is reviewable under
Chevron;
a challenge to the
application
of a policy is reviewed under the arbitrary and capricious standard.
See Nat’l Ass’n of Home Builders v. Norton,
340 F.3d 835, 841 (9th Cir.2003). The parties have analyzed this case under the “arbitrary and capricious” standard, however the nature of the Grange’s challenge and its relationship to the HLP makes less clear the appropriate standard of review.
The HLP provides that, when delineating an ESU for listing consideration, “NMFS will identify all components of the ESU, including populations of natural fish (natural populations) and hatchery stocks that are part of the ESU.” 70 Fed.Reg. at 37,215. However, when making status determinations (i.e., as to whether the ESU should be listed as threatened, endangered, or neither), “NMFS will apply this policy in support of the conservation of
naturally-spawning salmon
and the ecosystems upon which they depend, consis
*1150
tent with section 2(b) of the ESA (16 U.S.C. 1531(b)).”
Id.
(emphasis added). Accordingly, “[h]atchery fish will be included in assessing an ESU’s status in the context of their contributions to conserving natural self-sustaining populations.”
Id.
NMFS used the HLP process to reach the challenged listing determinations and cited the HLP in the final listing. 71 Fed.Reg. 834, 836, 848. Grange does not assert that the HLP was applied improperly or that the agency’s conclusions under the HLP (or any other policy) were unsupported by the record. (Either of these contentions would be reviewed under an arbitrary and capricious standard.) Rather, it asserts that the
process
NMFS utilized — a process explicitly set forth in the HLP — is contrary to law. Most, if not all, of the agency’s justifications for applying this process are set forth in the HLP, not within the listing determinations. Although neither party has characterized this claim as a challenge to the HLP,
14
Plaintiffs’ claim implies that the HLP is unlawful.
The parties extensively debate whether
Chevron
deference should apply to the HLP. For
Chevron
to apply to review of agency policy, Congress must delegate rule-making authority to the agency, and the agency’s interpretation of its rules, having the force of law, must have been promulgated in the exercise of that authority.
United States v. Mead Corp.,
533 U.S. 218, 226-27 , 121 S.Ct. 2164 , 150 L.Ed.2d 292 (2001). The Ninth Circuit interprets
Mead
to require
Chevron
deference “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law.”
Alaska Dept. of Health and Social Servs. v. Ctrs. for Medicare and Medicaid Servs.,
424 F.3d 931 (9th Cir.2005) (quoting
Mead,
533 U.S. at 226-27 , 121 S.Ct. 2164 ).
Grange argues the HLP is owed no
Chevron
deference because “[although the ESA authorizes NMFS to make rules carrying the force of law, NMFS did not exercise that authority by issuing its [HLP].”
(Grange
Doc. 53 at 3.) Grange correctly points out that the policy explicates that it is a general policy statement not subject to APA notice and comment procedures.
See
70 Fed.Reg. at 37,215. This language is taken out of context. This statement was part of a section of the final rule in which NMFS determined that the Regulatory Flexibility Act
15
(“RFA”) did not apply to the promulgation of the HLP:
Required Determinations
This Policy on the Consideration of Hatchery-Origin Fish in Endangered Species Act Listing Determinations for Pacific Salmon and Steelhead is a general statement of policy, to which the requirement of notice and comment procedures under the Administrative Procedure Act does not apply, pursuant to 5 U.S.C. 553(b)(A). Because prior notice and opportunity for public comment are not required under 5 U.S.C. 553(b)(A) or any other law, the analytical requirements of the Regulatory Flexibility Act are not applicable to this action.
Id.
NMFS correctly concluded that the RFA does not apply to interpretive rules or general statements of policy. The RFA’s non-applicability is not dispositive
*1151
of whether an interpretive rule or general statement of policy should be afforded
Chevron
deference.
Although not technically a “rule” subject to notice and comment rulemaking procedures, the HLP is a “policy” intended to fill a statutory gap and was established after public notice and opportunity for public comment. The Joint DPS Policy is similarly a “policy” rather than a “rule” that was published in draft form providing an opportunity for public comment. The Joint DPS Policy has repeatedly been afforded
Chevron
Deference.
See Nw. Ecosystem Alliance v. U.S. Fish and Wildlife Serv.,
475 F.3d 1136, 1141-42 (9th Cir.2007);
Maine v. Norton,
257 F.Supp.2d 357, 385 (D.Me.2003) (“The Joint DPS Policy was issued as an official position of the agencies after both the proposed and final versions of the policy were published in the Federal Register and the policy was subject to public notice and comment.”).
In this case, as with the Joint DPS policy, NMFS promulgated the HLP with sufficient public notice and opportunity for comment to qualify the HLP
for Chevron
deference. Despite the parties arguments to the contrary, this claim is most appropriately characterized and analyzed as a challenge to the HLP’s legality.
Chevron
deference applies to this as-applied challenge to the HLP’s application.
d.
Chevron Deference.
Under
Chevron’s
two-part test, a court “must decide (1) whether the statute unambiguously forbids the Agency’s interpretation, and, if not, (2) whether the interpretation, for other reasons, exceeds the bounds of the permissible.”
Hemp Indus. v. Drug. Enf. Admin.,
357 F.3d 1012 , 1015 (9th Cir.2004)
(citing Barnhart v. Walton,
535 U.S. 212, 218 , 122 S.Ct. 1265 , 152 L.Ed.2d 330 (2002)). At step one, a court “must give effect to the unambiguously expressed intent of Congress.”
Id.
However, if “the statute is silent or ambiguous with respect to the specific issue,” at step two a court will “sustain the Agency’s interpretation if it is based on a permissible construction” of a statute.
Id.
e.
Does the ESA Unambiguously Preclude Drawing Distinctions Between Naturally-Spawned and Hatchery-Bom Fish During Any Stage of the Listing Process
?
Grange’s central complaint is that once NMFS had already defined its DPSs to include hatchery-born
O. mykiss,
it was unlawful for the agency to thereafter focus on the conservation of naturally-spawning O.
mykiss
by considering hatchery-born fishes’ contributions the DPSs status only “in the context of their contributions to conserving natural self-sustaining populations.” This approach was set out in the HLP and expressly referenced by NMFS in its listing decisions. Under the first
Chevron
step, does the ESA unambiguously preclude drawing
any distinctions
between naturally-spawned and hatcherybom fish during the listing process?
The Ninth Circuit has prescribed implementation of the first step of the
Chevron
analysis.
To determine whether Congress has directly spoken to the issue, we employ the traditional tools of statutory construction. These tools of construction require us first to engage in a textual analysis of the relevant statutory provisions and to read the words of a statute in their context and with a view to their place in the overall statutory scheme. If the proper interpretation is not clear from this textual analysis, the legislative history offers valuable guidance and insight into congressional intent. However, it is well established that legislative history which does not demonstrate a clear and certain congressional intent cannot form the basis for enjoining regulations.
*1152
In conducting this analysis, we are not vested with the power to rewrite the statutes, but rather must construe what Congress has written. It is for us to ascertain-neither to add nor to subtract, neither to delete nor to distort.
Arizona State Bd. For Charter Schools v. U.S. Dept. of Educ.,
464 F.3d 1003, 1007 (9th Cir.2006) (internal quotations and citations omitted).
Grange contends the ESA requires NMFS to treat hatchery and naturally-spawned O.
mykiss
equally throughout the entire listing process, relying almost exclusively on the ESA’s definition of species and relevant legislative history. The ESA defines species to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532 (16). The ESA does not define the term “distinct population segment,” and provides no direct guidance as to the scope and meaning of the term.
Alsea,
161 F.Supp.2d at 1157 .
Grange points out that Congress originally defined “species” in the 1973 version of the ESA to include “any subspecies of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature.” The ESA was amended in 1978 by changing the definition of “species” so it “would exclude taxonomic categories below subspecies from the definition as well as distinct populations of invertebrates.” H.R. Conf. Rep. No. 95-1804 at 17 (1978), reprinted in 1978 U.S.C.C.A.N. 9485, 14,855. Grange correctly asserts that this was an expression of Congressional intent that the term “DPS of a species” apply only to “species” not to “smaller taxa.” However, this does not resolve the issue: Whether Congress expressed an intent to bar the agency from considering
any
distinctions below the species or DPS level when determining whether a properly defined DPS should be listed as threatened or endangered? Grange identifies no language in the statute, the legislative history (or any relevant case
16
) that illuminates Congress’ intent
*1153
regarding whether distinctions among members of a DPS may be considered during the listing process. Congress has not spoken on the issue. This is the type of gap which agencies commonly fill by way of regulation or policy that is due
Chevron
deference.
See also Am. Rivers v. FERC,
201 F.3d 1186, 1197 (9th Cir.1999) (“When relevant statutes are silent on the salient question, we assume that Congress has implicitly left a void for an agency to fill. We must therefore defer to the agency’s construction of its governing statutes, unless that construction is unreasonable.”).
By not addressing the question of whether an agency may use distinctions below the DPS to evaluate whether a properly defined DPS should be listed as threatened or endangered, the legislature cedes the authority to do so to the agency. The analysis turns to the second
Chevron
step.
f.
Was the Approach Used by NMFS Dwing the Listing Process
— Em
phasizing the Health of Natural Populations and Considering Hatchery-bom Fish Only Insofar as They Contribute to the Health of Natural Populations
— a
“Permissible Construction’’ of the ESA?
In the second
Chevron
step, a reviewing court must ask “whether the agency’s [interpretation] is based on a permissible construction of the statute.”
New Edge Network, Inc. v. F.C.C.,
461 F.3d 1105 , 1109 (9th Cir.2006). “If a statute is ambiguous, and if the implementing agency’s construction is reasonable,
Chevron
requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.”
Id.; see also Earth Island Institute v. Ruthenbeck,
459 F.3d 954, 965 (9th Cir.2006) (“‘[R]easonableness is the standard [by which] courts review regulations under
Chevron’s
second step”).
Defendants and Defendant-Intervenors maintain that the ESA permits, if not requires, as part of the listing decision, the agency to pay attention to the differences between hatchery and wild steelhead. They argue that focusing on the health of naturally-spawned O.
mykiss
(part of
*1154
which focus considers hatchery-born fish within a DPS only to the extent that those hatchery-born fish contribute to the viability of natural populations) is, at least impliedly, called for by ESA language that emphasizes protecting ecosystems.
(Grange
Doc. 45 at 2.) Second, Federal Defendants and DefendanNIntervenors argue that because (a) the statute requires the agencies to rely upon the best available science during the listing process, and (b) the best available science regarding 0.
mykiss
indicates that natural populations should be given priority in order to best ensure the long term viability of DPSs, the ESA
requires
that NMFS take account of the differences between natural and hatchery-born fish.
(1)
Statutory Language Regarding Protection of Ecosystems and Implying That Natural Populations Should Be Protected.
Although Grange correctly points out that “nowhere in the ESA does Congress refer to ‘natural populations’ or ‘naturally-spawned species,’ ”
(Grange
Doc. 53 at 5), Defendants and Defendant-Intervenors point to

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1456525. Public record. Not legal advice.