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If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Despite publicity and investments, NOAA report concludes that "bold protective measures" still needed for coral reefs | Main| FWS announces critical habitat for Kootenai sturgeon »

D.C. Circuit defers to FWS on hybrid westslope cutthroat trout analysis, clarifies supplementation of administrative record

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American Wildlands v. Kempthorne, No. 07-5179 (D.C. Cir. July 8, 2008)

WCT.JPG
Westslope cutthroat trout (WCT) have a number of morphological characteristics that scientists use to identify the fish, such as a distinctive spotting pattern, coloring, and a typical number of vertebrae, scales, and bony projections called “gill rakers.” However, “morphology” is an imperfect science.  WCT genetic data allows biologists to detect “introgression” — the “entry or introduction of a gene from one gene complex into another” — in fish that otherwise conform morphologically to the subspecies. In this case, Plaintiffs challenged the decision by the U.S. Fish & Wildlife Service not to list the species, and questioned the agency’s reliance on morphology, because FWS had recognized that “a natural population of WCT with less than 20 percent of its genes derived from (foreign subspecies) is, most likely, morphologically indistinguishable from nonintrogressed populations of WCT with no hybrid ancestry.”  However, the Service also concluded that low levels of introgression can occur as a result of the natural evolutionary process and that such fish may “remain very valuable to the overall conservation and survival of that species.” Ultimately, the Service acknowledged that the problem of hybridization “remains the greatest threat to WCT,” but in the absence of genetic information, continued to rely upon morphology, and decided that the severity of the threat did not require listing of the species at the time. See Reconsidered Finding for an Amended Petition to List the Westslope Cutthroat Trout as Threatened Throughout Its Range, 68 Fed. Reg. 46,989 (Aug. 7, 2003).  Photo from Washington Department of Fish and Wildlife.  

   SUMMARY (from opening of court's opinion): The westslope cutthroat trout has historically inhabited rivers and streams across parts of Montana, Wyoming, Idaho, Oregon, and Washington. Its scientific name, Oncorhynchus clarki lewisi, pays homage to Lewis and Clark, the storied explorers who encountered the fish in 1805 at the Great Falls of the Missouri River. Plaintiffs maintain that interbreeding with other members of the trout family — a phenomenon called hybridization — has so imperiled the continued existence of the fish that the government should list it as threatened under the Endangered Species Act.

    On appeal, plaintiffs argue that the government’s decision not to do so was arbitrary and capricious because the agency included in its count of westslope cutthroat trout hybridized fish, which embodied the menace at issue. Plaintiffs also appeal the district court’s denial of their motion to supplement the record with letters supporting their case. Although new data might require a future listing of the fish as threatened, we conclude the agency engaged in reasoned decisionmaking based on the best available science, and the district court did not abuse its discretion in refusing to supplement the record.

FACTUAL AND PROCEDURAL BACKGROUND: In 1997 a fisherman and several environmental groups (collectively, “American Wildlands”) petitioned the Service to list the westslope cutthroat trout (“WCT”) as a threatened species. See Am. Wildlands v. Norton, 193 F. Supp. 2d 244, 249 (D.D.C. 2002) (recounting procedural history). According to plaintiffs, the chief threat to the fish comes from hybridization: interbreeding between WCT and other members of the trout family, primarily the rainbow trout. Plaintiffs contend that hybridization puts at risk the genetic heritage that defines WCT as a subspecies and that equips it to survive harsh conditions…  American Wildlands’ primary challenge is to the Service’s reliance on morphological data, which they argue was arbitrary and capricious because the agency wrongly assumed that fish morphologically conforming to WCT will be only slightly hybridized. They contend that evidence in the record shows that fish can have introgression levels up to 50% and still morphologically conform to the subspecies.

NOTEWORTHY EXCERPT OF OPINION: The Service concedes that its method may count some fish in the WCT population that morphologically conform to WC but have introgression levels higher than 20%. See Service’s Br. at 37 (“One of the primary authors of the Service’s Finding has acknowledged this possibility, and the Service is well aware of it.”); Oral Arg. Recording at 22:10–22:36. Nonetheless, the agency argues that its method is reasonable. We agree and hold that in the absence of genetic data the Service reasonably included fish morphologically conforming to WCT in the population considered for listing. Under the ESA, listing determinations are to be made “solely on the basis of the best scientific and commercial data available.” 16 U.S.C. §1533(b)(1)(A). In Southwest Center for Biological Diversity v. Babbitt, we held that “[t]he ‘best available data’ requirement makes it clear that the Secretary has no obligation to conduct independent studies.” 215 F.3d 58, 60 (D.C. Cir. 2000). Rather, that provision “ ‘merely prohibits the Secretary from disregarding available scientific evidence that is in some way better than the evidence he relies on.’ ” Id. (quoting City of Las Vegas, 891 F.2d at 933) (emphasis added).

KEITHINKING:  Endangered Species Act cases often involve threshold disputes over whether certain information should be included in the “administrative record,”  the set of documents considered and otherwise “before the decision-maker” that ultimately define the scope of judicial review.  As the Federal Administrative Procedure Act states, When reviewing agency action under the APA, we review “the whole record or those parts of it cited by a party.” 5 U.S.C. § 706.  In this case, as in many, many others, the environmentalist plaintiffs sought to introduce additional documents into the administrative record, but the U.S. District Court refused.  Providing much-needed clarity on this important issue, the D.C. Circuit upheld the lower court’s ruling:

We do not allow parties to supplement the record “unless they can demonstrate unusual circumstances justifying a departure from this general rule.” Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C. Cir. 1991). We have recognized such circumstances in at least three instances, see James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (collecting cases): (1) “[T]he agency deliberately or negligently excluded documents that may have been adverse to its decision,” id.; (2) “the district court needed to supplement the record with ‘background information’ in order to determine whether the agency considered all of the relevant factors,” id.; or (3) “the agency failed to explain administrative action so as to frustrate judicial review,” id.
(internal quotation marks and brackets omitted). We hold the district court did not abuse its discretion in denying the motion to supplement the record. Both letters were written after the Service issued its Reconsidered Finding, and are therefore not part of the administrative record. Moreover, they do not satisfy any of the “unusual circumstances” previously listed. Rather, as the district court correctly concluded, Am. Wildlands v. Norton, No. 05-1043, 2006 WL 19 2780702, at *2–4 (D.D.C. Sept. 21, 2006), they merely disagree with the Service’s conclusions, see, e.g., Letter from N.P. Hitt, Professor, Dept. of Fisheries & Wildlife Scis., Va. Polytechnic Inst. & State Univ., to L.R. Keading, Chief, Branch of Native Fishes Mgmt. (July 10, 2004)(“[W]edisagree with the [Service’s] interpretation of our data on several counts and believe that the current introgression policy does not represent the best available scientific information.”).