July 9, 2008

D.C. Circuit: American Wildlands v. Kempthorne

By D.C. Circuit: American Wildlands v. Kempthorne

The frequency of Endangered Species Act litigation is a problem in that it takes away funding, manpower, and other resources from federal agencies that in turn makes it more difficult to properly implement the ESA in the first place.  For instance, as current U.S. Fish and Wildlife Service director H. Dale Hall recently noted, "the onslaught of [listing and critical habitat] lawsuits drove the priorities for the Fish and Wildlife Service through the 1990s, and was only interrupted in 1995, during the Clinton administration, by a congressional moratorium on listing of any species that year. By the end of the 1990s, all listing actions were essentially placed on hold so our biologists could devote their time to addressing the critical habitat lawsuits. More than 100 lawsuits seeking critical habitat have been brought against the Fish and Wildlife Service since 2001."

This concern is relevant when considering the United States Court of Appeals for the District of Columbia's opinion in American Wildlands v. Kempthorne, in which the United States Court of Appeals for the District of Columbia upheld FWS's decision not to list the westslope cutthroat trout as a threatened species.  Jonathan Adler pointed out the case yesterday at the Volokh Conspiracy.

Should the limited resources of FWS be taken into account when considering the agency's obligation to make ESA listing decisions "solely on the basis of the best scientific and commercial data available" under 16 U.S.C. § 1533(b)(1)(A)?  Although American Wildlands does not explicitly say so, the D.C. Circuit appears to at least recognize that listing decisions may very well not be made with 100% certainty due to resource constraints.

The apparent problem for the westslope cutthroat trout subspecies (WCT) is hybridization — by interbreeding with other members of the trout family, the WCT "puts at risk the genetic heritage that defines WCT as a subspecies and that equips it to survive harsh conditions."  When assessing the status of the WCT subspecies, it is necessary to determine what percentage of the WCT population is hybridized and what percentage remains pure.  But then the question becomes how exactly to distinguish between hybridized WCT and pure WCT.  Although genetics would seem to be the best method, FWS "relied on morphology [i.e. physical characteristics] as the 'principal criterion' and did not consider fish that conformed morphologically to WCT to pose a threat of hybridization."

That is not to say that FWS never used genetic testing in assessing the WCT population.  In fact, for those fish that were genetically tested, they counted towards the WCT population only if they had an introgression (hybridization) level below 1%.  But genetic testing was not fully available for the entire subspecies, and so in using morphology there was a risk that hybridized fish could be included in the WCT count.  As the D.C. Circuit noted, FWS conceded that "its method may count some fish in the WCT population that morphologically conform to WCT but have introgression levels higher than 20%," the level at which FWS determined FWS should be excluded from the WCT subspecies.

Plaintiff American Wildlands claimed that FWS violated 16 U.S.C. § 1533(b)(1)(A)'s "best available data" requirement because "the agency wrongly assumed that fish morphologically conforming to WCT will be only slightly hybridized."  According to American Wetlands, FWS should "look at the genetically pure populations, . . . look at the threat facing those [populations], and . . . decide whether those populations . . . would be able to sustain the species in the future."  Circuit Judge Thomas Griffith's opinion recognized the unavailability of genetic data and summarily rejected American Wildlands' position:

To agree with the plaintiffs would be to require the Service to make its decision only on the basis of genetic data.  This rule would demand the absurd result that the Service must deem threatened any species for which it lacks genetic data.  Absent a statutory mandate requiring the Service to collect genetic data, however, the Service's method was reasonable.  If plaintiffs believe the Service's decision to not list WCT depended on counting fish which, genetically tested, would have introgression levels greater than 20%, the path for plaintiffs to press their argument is clear: provide sufficient genetic data to substantiate this claim.

American Wildlands recognizes that the word "available" in "best available data" has significant meaning — no matter if there is a possibility of using more exact methods in listing determination, the studies that are presented before FWS are the ones that count, as FWS "has no obligation to conduct independent studies," to quote an earlier D.C. Circuit decision that American Wildlands reaffirmed.  At least for now, then, FWS will not be further hamstrung when it comes to making listing determinations on fish species.  If there is to be a gathering of genetic data, it will have to be done by private parties.

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