Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRIENDS OF BLACKWATER; THE WILDERNESS SOCIETY; CENTER FOR BIOLOGICAL DIVERSITY; SOUTHERN APPALACHIAN FOREST COALITION; WILD SOUTH; and JUDITH S. RODD, Plaintiffs, v. KENNETH SALAZAR, in his official capacity as Secretary of Interior, the UNITED STATES DEPARTMENT OF THE INTERIOR; ROWAN GOULD, in his official capacity as Acting Director of the United States Fish and Wildlife Service, Defendants. CASE NO. 1:09-CV-2122-EGS REPLY IN SUPPORT OF DEFENDANTS CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

2 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 2 of 22 Pursuant to the Court s March 16, 2010 Order, Defendants hereby submit this reply in support of their combined opposition to Plaintiffs motions for summary judgment and crossmotion for summary judgment. INTRODUCTION In their opening brief ( Defs Brf, Defendants demonstrated that the Service s decision to delist the West Virginia Northern Flying Squirrel ( Squirrel was based on an exhaustive and peer-reviewed analysis of the best scientific and commercial data available, and that the rationale underlying the Service s decision was straightforward and unassailable. Over 20 years of Squirrel study, habitat regeneration, and recovery efforts by federal, state, and private entities have led to the following: (1 a significant increase in the number of known Squirrel captures and distinct capture locations; (2 verification of multiple-generation persistence and reproduction throughout the range; (3 proven Squirrel population stability and ability to adapt to and thrive in varying habitat types; (4 substantial improvement and continued expansion of suitable habitat range wide; and (5 the elimination or amelioration of any significant threats. The combination of these factors enabled the Service to reasonably conclude, based on the best available scientific data, that the Squirrel no longer met the definition of threatened species or endangered species under the Endangered Species Act ( ESA. Unable to show that the Service failed to consider the best available scientific data or reached a decision so implausible that it could not be ascribed to a difference in view or the product of agency expertise, Plaintiffs struggle to prove their case by distracting the Court from the law, the appropriate legal standards, and the actual facts outlined in the record. Plaintiffs efforts notwithstanding, a fair reading of the record and the Final Rule amply demonstrates that the Service s decision should be upheld. 1

3 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 3 of 22 ARGUMENT I. The Service s Delisting Decision is Rational, Consistent with the Mandates of the ESA, and Supported by the Best Available Scientific Data. Under the law of this Circuit, the Service s delisting decision is presumed valid, Environmental Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981, and must be upheld as long as it meets minimal standards of rationality, Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir (en banc. The Service s Squirrel delisting decision easily meets this relatively low bar. As outlined in Defendants opening brief, Defs Brf at pp , the Final Rule makes clear that the Service exhaustively reviewed the best scientific data available and made rational choices based on that data. The Service analyzed each of the five factors required by the ESA and provided a rational explanation of its finding with respect to each factor. The Service s ultimate conclusion following that analysis that the Squirrel no longer meets the definition of threatened or endangered is reasonable, supported by the record, and entitled to deference. II. Plaintiffs Have Not Demonstrated That the Service s Delisting Decision Is Arbitrary, Capricious, an Abuse of Discretion, or Otherwise Not in Accordance with Law. 5 U.S.C. 706(2(A. A. All Defendants Record Citations Are Accurate. In an effort to save their unfounded claims of rushed decision making and political interference, Plaintiffs summary judgment reply ( Pls SJ Reply attempts to impugn the factual background laid out in Defendants opening brief. Pls SJ Reply at pp. 2-4 (citing multiple examples spanning pages 5-16 of Defendants opening brief where, according to Plaintiffs, the factual characterizations allegedly have no basis in the record. However, a fair reading of the record plainly demonstrates the Service s decision was well-reasoned and free from political interference. Defendants will respond to some of Plaintiffs record objections below with the record citations. 2

4 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 4 of 22 First, the record shows that qualified individuals, both inside and outside the Service, considered the Squirrel to warrant reclassification as early as AR 458 at (indicating a West Virginia state biologist s opinion, based primarily on finding more Squirrel individuals and improved habitat trends, that the status of the Squirrel had progressed to the point where it should be downlisted from endangered to threatened; AR 737 at (acknowledging that downlisting may be warranted and that delisting may not be too far off in the future; AR 735 at (indicating Professor John Pagels and a Virginia state biologist s support for downlisting the Squirrel to threatened. Second, despite this initial support for reclassification, the record also demonstrates that the Service reasonably took no immediate action to downlist because of lack of time, staff, and budget to conduct a status review from 1985 to See 16 U.S.C 1533(c (requiring the service to conduct a five-year status review on every listed species; AR (mentioning the use of funds provided by the Washington Office to move ahead with downlisting ; AR 848 at (demonstrating the funding available to hire a term biologist to conduct a five-year review; AR 850 at , (indicating intent to hire a term biologist to initiate the status review. 1 Third, the record is also clear that Monongahela National Forest ( MNF expended a tremendous amount of time and money to complete what, in the end, proved to be unsuccessful presence/absence surveys. AR 172 at (explaining the history of the early efforts 1 Additionally, between 2003 and 2005, the Service was unable to complete the status review initiated in 2003, again due to workload and staffing constraints. AR 832 at (identifying workload and staffing as restraining forces in allowing timely completion of the status review and delisting proposal, and field office desire to hire a low-salary term biologist to free up the time of existing senior-level biologists to complete the status review and delisting proposal. 3

5 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 5 of 22 focused on Squirrel presence/absence surveys for timber projects on the MNF; AR 403 at (demonstrating how the 2001 recovery plan update to Appendix A freed up funding to be better spent on forest tree inventorying and mapping of Squirrel habitat, Squirrel population monitoring, and looking for new occurrences of the Squirrel; AR 889 at (demonstrating that before the 2001 recovery plan update, the MNF spent approximately $200, per timber project and that now the money can be better spent on Squirrel recovery tasks. Fourth, the record further shows the term biologist s lack of experience as demonstrated by her inappropriate use of the Nature Conservancy s ( TNC matrix. AR 889 at (meeting notes in 2003 referring to key attributes for conservation targets; AR 889 at (showing column headings on TNC s matrix for key attributes and general ranking of population health and habitat integrity (non-esa measurements of poor, fair, good; AR 181 at (demonstrating the method in which the Service, at a joint Field/Regional Office meeting on February 24, 2004, evaluated threats (ESA measurements of magnitude, severity, immediacy and how this has no relationship to the categories assessed in TNC s matrix; see also AR 172 at (referencing use of [The Nature Conservancy] tool and explaining why it was a useful tool initially to start thinking about threats but how it also needed to be expanded upon to assess threats in the context of the five threat factors and adjusted to rank severity and scope of the threats; AR 695 at (outlining the guidelines of five-year status reviews in use at the time which shows no relationship to TNC s matrix but highlights the need to assess threats in relationship to the five listing factors. Finally, the record plainly demonstrates how the 2003 status review played out in a normal, rigorous debate with differing opinions what one would expect with a scientifically challenging delisting decision. AR 887 at (demonstrating that in November 2003, the 4

6 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 6 of 22 term biologist was instructed to include in the status review dissenting viewpoints on the interpretation of Squirrel capture data; AR 833 at (attempting to resolve individual differences of opinion on whether it was appropriate to pursue downlisting or delisting; AR 836 at (arranging a meeting in 2005 of staff from both the Field Office and Regional Office wherein all staff would have the opportunity to participate and seek consensus with a facilitator; AR 157 at (outlining comments by Field Office staff which questioned support for the conclusion that delisting was warranted. In sum, the record demonstrates a delisting process that was deliberate, methodical, and well-reasoned, but also subject to staff and budget constraints that precluded more frequent status reviews or updates to the Squirrel s recovery plan. Plaintiffs simply have not (and cannot demonstrate any impropriety or haste in the Service s decision-making process. Therefore, Plaintiffs argument must be rejected. B. Plaintiffs Continue to Misinterpret the ESA in Contending that the Recovery Plan Provisions in Subsection 4(f Are Incorporated Into the Listing Provisions of Subsections 4(a and 4(b. Plaintiffs continue to argue that a new scientific standard (i.e., a recovery plan s objective, measurable criteria must control the Service s delisting analysis or, in the alternative, if the objective, measurable criteria are outdated, the Service must amend the recovery criteria before initiating a delisting analysis. 2 Pls SJ Reply at p Putting aside the 2 Plaintiffs inappropriately frame the issue as what Congress intended when it required objective, measurable criteria to be included in a recovery plan under Subsection 4(f. The more appropriate question, however, is: what standards and criteria did Congress require the Service to use in a delisting analysis? As demonstrated in Defendants briefing, this issue, when framed properly, is clear on its face: the Service is to analyze any threats under the five factors provided by subsection 4(a and is governed solely by the best available data under subsection 4(b. Furthermore, even if Plaintiffs were correct in framing the issue under Subsection 4(f, the 5

7 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 7 of 22 fact that the Squirrels recovery criteria did in fact play a substantial role in the Service s delisting analysis, see AR 3, Plaintiffs legal argument asks this Court to re-write the ESA and finds no support in the ESA s plain language, the legislative history, or the implementing regulations. To the contrary, the ESA is clear on its face that the Service s delisting analysis is based on the threats found under the five factors provided by subsection 4(a and is governed solely by the best available scientific data under subsection 4(b. Except for a few brief additional comments, Defendants will rely on the arguments outlined in its opening brief. First, to be clear, the ESA unambiguously outlines the standards for a delisting analysis. In subsection 4(a, Congress identified the five broad threat factors that shall be considered in a listing or delisting decision: (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; 50 C.F.R (c. Congress further specified in subsection 4(b that any such decision shall be based solely on the basis of the best scientific and commercial data available to him, 16 U.S.C. 1533(b(1(A (emphasis added. Subsection 4(c further reinforces the appropriate standards mandated by Congress by requiring any delisting recommendation made in the Service s five-year-review to be made in accordance with the provisions of subsections 4(a and 4(b of this section. Id. 1533(c(2 (emphasis added. Additionally, as explained in Defendants opening brief, a delisting analysis must be based solely language at issue is clearly ambiguous and not a Chevron step one analysis. Under Chevron step two, the Service s interpretation is permissible and entitled to deference. 6

8 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 8 of 22 on 4(a and 4(b because the ESA imposes no obligation to continually update or revise a recovery plan. See U.S.C. 1533(f(4. Congress was therefore explicit that the scientific standards governing the Service s delisting decisions are governed by the best available scientific data standard and not, as Plaintiffs would have it, by the objective measurable criteria specified in a recovery plan. Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842 ( If the intent of Congress is clear, that is the end of the matter..... Furthermore, in addition to the arguments outlined in Defendants opening brief, Defs Brf at pp , Plaintiffs insertion of a new scientific standard would ultimately create an absurd result in this case. American Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982 ( Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible.. Pursuant to subsection 4(c, the Service, in its five-year review, is to undertake a threats analysis pursuant to 4(a and 4(b. As part of its five-year review, the Service analyzed the relevant threats to the Squirrel under the five threat factors, and determined that all the past, current, and future threats were either completely eliminated or largely abated. Under Plaintiffs interpretation, the Service, after completing its five-year review, would now have to go through the time and expense to formally amend (through notice and comment the Squirrel s recovery plan to address threats which the Service already found to be non-existent in its status review. Then, after developing a revised recovery plan with objective, measurable criteria to address non-existent threats, the Service would be required to start the rulemaking for Squirrel delisting where it would again address (through notice and comment any threats to the Squirrel under the five factors. 3 This is not what Congress intended; Plaintiffs argument is illogical, a make-work 3 Additionally, science on endangered and threatened species can change from day to day. As such, Plaintiffs interpretation would require the Service to halt subsequent rulemaking should the newly revised recovery plan ever become outdated. 7

9 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 9 of 22 exercise, and most importantly, not required by the ESA. Finally, Plaintiffs legal argument, Pls SJ Reply at p. 8, finds no support in Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C This case merely found that recovery plan criteria must address the specific threats to a species under each of the five factors. This case did not hold that the Service was legally bound to meet or amend a species recovery plan before initiating a delisting analysis. Fund for Animals, 903 F. Supp. at 105. In fact, no court has ever found the ESA to require the Service to meet or amend every recovery criterion before delisting. To the contrary, implementation of a recovery plan, at any stage of a species conservation, is discretionary and non-binding. See, e.g., Fund for Animals v. Rice, 85 F.3d 535, 547 (11th Cir ( Section 1533(f makes it plain that recovery plans are for guidance purposes only. By providing general guidance as to what is required in a recovery plan, the ESA breathe[s] discretion at every pore. (citations omitted; Oregon Natural Res. Council v. Turner, 863 F. Supp (D. Or (outlining that recovery plans present guidelines for future goals but do not mandate any action at any time to obtain those goals; National Wildlife Fed n v. National Park Serv., 669 F. Supp. 384 (D. Wyo (deferring to agency s decision to not implement every action in the recovery plan; United States v. McKittrick, 142 F.3d 1170 (9th Cir (summarizing that implementation of a recovery plan is discretionary. That said, it is not the Service s position that recovery plan criteria play no part in a delisting analysis as demonstrated by the Service s 27-page recovery plan analysis. See AR 3. The Service agrees that a recovery plan s objective, measurable criteria can and should help inform a delisting analysis, just as the criteria should help inform and provide a road map for any 8

10 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 10 of 22 other decision making under sections 6, 7, 9, 10, and 11 of the ESA. 4 Indeed, the Squirrel s recovery plan criteria substantially informed the Service s delisting analysis in the case at hand. See AR 3. However, while the criteria help to inform a delisting analysis, the criteria do not control a delisting analysis and, as demonstrated above, the ESA does not impose a duty on the Service to amend every recovery criterion before delisting. After considering the best available scientific data, the Service need only supply a reasoned analysis for why it did or did not meet each recovery plan criterion. Motor Vehicles Mfrs. Ass n v. State Farm, 463 U.S. 29, 42 (1983 ( an agency changing its course... is obligated to supply a reasoned analysis for the change ; Defenders of Wildlife v. Hall, 565 F. Supp. 2d 1160, 1170 (D. Mont ( While the Service is entitled to change its recovery criteria [in a delisting context], it must provide a reasoned analysis for doing so.. Plaintiffs argument must be rejected. C. Plaintiffs Criticisms of the Service s Scientific Analysis and Decisions in the Final Rule Continue to be Unfounded. 1. The 1990 Recovery Plan Criteria Plaintiffs charge that the Service ignored or inconsistently appli[ed] the standards or recovery criteria outlined in the Squirrel s recovery plan, Pls SJ Reply at p. 18, is simply not true. First, as explained above, the Service is not bound by a species recovery criteria and only has to provide a reasoned analysis for its ultimate decisions. Defenders of Wildlife, 565 F. Supp. 2d at 1170 ( While the Service is entitled to change its recovery criteria [in a delisting context], it must provide a reasoned analysis for doing so.. Second, the Service clearly analyzed the 1990 recovery criteria and amply explained how the recent science changed the extent to which 4 Additionally, recovery plan criteria also serve the essential statutory function of accountability, by providing a specific benchmark by which time and cost estimates can be determined and a general benchmark as to the relative recovery status of a species for both Congress and the public. S. Rep. No , at 9-10 (1988, reprinted in 1988 U.S.C.C.A.N. 2700,

11 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 11 of 22 two of the four recovery criteria needed to be met. See AR 3. For example, with regard to the first recovery criterion, the Service explained that even though it proved to be impracticable to generate population trend data for the Squirrel, the Service s persistence analysis generated valuable data on the Squirrel s numbers, reproductive capabilities, and distribution: (1 the absence of documented extirpation at any site in over 20 years of monitoring; (2 the relatively high proportion of sites (83% meeting the definition of persistence, distributed equitably among habitat quality types and within geographic zones; (3 the routine documentation of nestlings or juveniles (76% of sites indicating reproductive success over multiple generations; (4 the balanced to slightly female-skewed sex ratios; and (5 the growth in capture sites from one individual in one site in 1981 to a total of 109 Squirrel sites, 5 comprising seven population centers, which recorded approximately 1,198 captures (including 85 recaptures across 85% of the Squirrel s former range in AR 3 at The Service concluded that collectively, these results demonstrated that populations were stable (as required by the first criterion in the 1990 recovery plan and increasing across multiple generations and that habitat was consistently occupied across the range. AR 1 at , ; AR 3 at Therefore, recovery criterion number one was met in intent, AR 3 at , and the historical threat of extreme rarity and isolated distribution, present at the time of listing in 1985, was no longer a threat, AR 1 at This finding was reasonable and supported by the record. Plaintiffs argument that Defendants erroneously conflated the concept of persistence to the concept of recovery, Pls SJ Reply at p. 20, likewise finds no support in the record. As 5 The West Virginia Division of Natural Resources defined a capture site to be a capture location greater than 0.5 mile from another capture location; therefore, capture sites may contain multiple locations where Squirrels were captured. AR 9 at

12 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 12 of 22 explained in Defendants opening brief, Defs Brf at p , the Service s overall delisting (i.e., recovery decision did not focus solely on persistence data. The Service used persistence to establish population viability as part of its focused analysis of the past threats of rarity and limited distribution. The analysis of persistence data established that there was a stable, expanding, and viable Squirrel population (as required by the first recovery criterion distributed across 85% of its former range. However, the Service only analyzed persistence data as one element in its recovery decision. The Service s broader recovery decision not only accounted for the Squirrel s stable and expanding population, but also found an absence of any significant threats for the foreseeable future. AR 1 at Therefore, the Service found that the Squirrel was not just surviving, but that the Squirrel no longer met the definition of threatened or endangered and was thus recovered. Gifford Pinchot Task Force v. FWS, 378 F.3d 1059, 1070 (9th Cir (distinguishing between recovery and survival under the ESA. 2. Plaintiffs fail to demonstrate any flaw in the Service s Factor A analysis a. Non-federal Lands Plaintiffs contend that the Service failed to account for the grave and predictable loss of habitat on private lands and lands owned by the State of West Virginia. Pls SJ Reply at p Plaintiffs argument is without merit. First, the predictable loss assertion is pure 6 The Service s threats analysis thoroughly considered the potential effects to the Squirrel and its habitat from many factors, including: inbreeding depression, AR 1 at ; logging and other timber-management practices, AR 1 at , 11-12, 14, and 16-18; residential development, AR 1 at , AR 4 at ; road development, AR 1 at , 17-18; mining, oil, gas, and wind-power development, AR 1 at ; forest pests, AR 1 at , 15; climate change, AR 1 at , 14-16; acid deposition, AR 1 at , 18; overcollection, AR 1 at , 18; disease and predation, AR 1 at , 19; inadequacy of regulatory mechanisms, AR 1 at ; as well as competition with the southern flying squirrel and transmission of a parasite, AR 1 at ,

13 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 13 of 22 speculation, and Plaintiffs offer no record evidence for this proposition. To the contrary, the evidence pertaining to these lands indicates that private landowners (and other private entities are developing and implementing protective measures to further conserve the Squirrel. AR 9 at (outlining the protective measures being employed by the West Virginia Division of Forestry on the Kumbrabow State Forest; id. (discussing Snowshoe Mountain, Inc. s strategies to minimize, avoid, and mitigate any loss of Squirrel habitat; id. at (summarizing The Nature Conservancy s efforts in (1 the purchase of 57,000 acres of mineral rights on Cheat Mountain and over 2,000 acres of surface rights in high elevation red spruce/northern hardwood forest, which were transferred to the Monongahela National Forest, (2 creation of a 100-acre preserve with the red-spruce forest on the Shavers Fork River, (3 aiding the Service in the purchase of a 450-acre tract that became part of the Canaan Valley National Wildlife Refuge, and (4 completion of a 100-acre conservation easement on Spruce Mountain. 7 Second, the Service analyzed the threat of development and loss of Squirrel habitat on these non-federal lands. While acknowledging that certain projects do occur on these lands that affect Squirrel habitat, the Service found that these projects occur only locally or occur on the periphery of the [Squirrel s] range[,] and that there is no indication that the activities would ever be likely to occur over a landscape level, or at such a magnitude as to pose a threat to the continued existence of [the Squirrel] throughout its range or in any significant portion of its range. AR 1 at Even in the highly unlikely event that all Squirrel habitat was lost on 7 See also AR 410 at (signing a Memorandum of Understanding that documented the future intent of the Service, MNF, West Virginia Division of Natural Resources, West Virginia Division of Forestry, and TNC to continue to conserve the Squirrel and its habitat after delisting; AR 684 at (reiterating the commitment of the West Virginia Division of Forestry to manage and improve Squirrel habitat in a letter commenting on the post-delisting monitoring plan. 12

14 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 14 of 22 these non-federal lands, the Service demonstrated that nearly 80% of Squirrel habitat was secured by public ownership and/or managed for the protection of the Squirrel, and that these lands had sufficient habitat quality and connectivity for the further conservation of the Squirrel. AR 3 at Therefore, the Service concluded that because of the large amount of Squirrel habitat protected and managed on public lands (both state and federal, non-federal lands were not critical for recovery. AR 1 at ; AR 3 at ; AR 5 at (analyzing the threats to public land and private land on all the GRAs and concluding that none of these areas faced a sufficient threat to warrant continued Squirrel listing. Plaintiffs attempt to contrast the Service s delisting analysis with a past Section 7 consultation, Pls SJ Reply at p. 27, is misplaced and only supports the Service s threat analysis on the non-federal lands. The Service s analysis in the cited biological opinion concluded that this particular project would adversely affect only 0.05% of the available Squirrel habitat range wide and would not result in Squirrel jeopardy. AR 406 at In the biological opinion, it is apparent that 0.05% was de minimis, and that the type of project under consultation was relatively rare. Id. This conclusion is entirely consistent with the Service s analysis in this case. AR 1 at (concluding that project activities occur only locally or occur on the periphery of the [Squirrel s] range[,] and that there is no indication that the activities would ever be likely to occur over a landscape level, or at such a magnitude as to pose a threat to the continued existence of [the Squirrel] throughout its range or in any significant portion of its range ; AR 5 at In sum, the Service thoroughly analyzed the potential threat of habitat loss on non-federal land. The Service found the following: (1 the threat of habitat loss on non-federal land was ameliorated as conservation measures were being developed and implemented by private entities, 13

15 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 15 of 22 AR 9 at ; (2 the known development projects occurred locally and their effects were de minimus, AR 1 at ; (3 nearly 80% of Squirrel habitat was secured by public ownership and/or managed for the protection of the Squirrel, AR 3 at ; and (4 sufficient habitat quality, quantity, and connectivity existed on the public lands for the Squirrel s conservation, id. Based on these findings, the Service concluded that any potential loss of habitat on the non-federal lands was unlikely and/or insignificant to the Squirrel s overall recovery. This conclusion was reasonable and supported by the record. b. Climate Change Plaintiffs mistakenly argue that the Service applied the wrong legal standard in its climate-change analysis by inappropriately requiring conclusive evidence. 8 Pls SJ Reply at p Again, the ESA requires the Service to analyze threats to the Squirrel using the best scientific and commercial data available. See 16 U.S.C. 1533(b(1(a. The primary purpose of the best available data standard is to ensure that the ESA not be implemented haphazardly, on the basis of speculation or surmise. Bennett v. Spear, 520 U.S. 154, 176 (1997. Hence, while this standard does not require scientific certainty, it does require reliable data. As explained in Defendants opening brief, the Service extensively considered climate change and found no reliable climate change data on the Squirrel. AR 1 at , The Service determined that the climate change studies available to the Service were too broad and too inconclusive to document any threat. AR 1 at ; 9 see also Alliance for Wild 8 Interestingly, Plaintiffs, in other parts of the Service s delisting analysis, demand a conclusive evidence standard with regard to the Squirrel s population status and the Service s use of persistence data. Pls SJ Reply at p. 19 (demanding that the Service have solid scientific proof. 9 See also AR 487 at (documenting Dr. Adams comments that there have been concerns expressed about increasing temperatures reducing the extent of red spruce-northern 14

16 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 16 of 22 Rockies v. Lyder, Civ. No , 2010 WL , *13 (D. Mont. July 28, 2010 ( The Service found the available science did not allow for climate predictions at the appropriate scale to enable it to designate unoccupied habitat. This determination is reasonable.. Additionally, there was no evidence of damage or decline in Squirrel habitat as a result of climate change or other impacts. AR 1 at (citing lack of current evidence of widespread crown dieback of red-spruce within the range of the Squirrel, reversing a short episode of crown-dieback in the 1980s, followed by signs of recovery by the late 1990s, and continuing to present. 10 In fact, all the evidence specific to this region suggested that the Squirrel habitat was healthy, regenerating, and expanding. AR 1 at (noting red spruce is expanding by recolonizing areas of hardwood forests. However, much of this is based on uncertain models, and estimates about migration rates of red spruce during earlier climate regimes, thus making the results unpredictable ; AR 223 at (noting many limitations of current climate-change forecasting methods; AR 1 at (noting huge variations in potential outcomes from climate-change models; AR 689 at (noting that past and current climate-change models have been developed primarily at global and continent-wide scales, whereas climate impacts occur at more specific local scales; AR 1 at (noting that larger-scale models provide only crude approximations of future outcomes; AR 450 at (noting reduced confidence in downscaling continent-wide modeling of spruce habitat down to a state-wide level; AR 450 at (noting huge variation in red spruce predictive climate models for West Virginia due to small sample sizes; AR 1 at (concluding that given these caveats and the huge variation in possible views of the future noted above, all with unknown likelihoods of occurrence, that it is not possible to translate these possible scenarios into potential effects on the Squirrel or its habitat over any meaningful timeframe. 10 See also AR 487 at (documenting peer reviewer Dr. Mary Beth Adams assessment that unlike conditions in more northerly regions, she has not observed current spruce decline within the central Appalachians the range of the Squirrel; AR 488 at (same from peer review Dr. Mark Ford; AR 484 at (same for peer review Mr. Craig Stihler; AR 487 at (explaining that spruce declines observed in more northerly regions outside the range of the Squirrel are related to colder winters, and decreases in spruce cold tolerance linked to acid deposition and that there is no similar decline in the central and southern Appalachian mountains because winter temperatures do not reach the very low levels found in the northern Appalachians and Adirondacks. 15

17 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 17 of 22 hardwood forest near existing stands and is growing at lower elevations, contrary to landscapelevel long-term climate change projections of trees moving northward and upslope; AR 484 at (same; AR 487 at (same; AR 352 at (same. 11 Therefore, based on these facts, the Service, as the expert agency, reasonably concluded that climate change was not a threat to the Squirrel or its habitat in the foreseeable future. City of Waukesha v. EPA, 320 F.3d 228, 248 (D.C. Cir (citations omitted (noting that we will give an extreme degree of deference to the agency when it is evaluating scientific data within its technical expertise. Despite this evidence, Plaintiffs attempt to demonstrate an inconsistency with how the Service analyzed climate-change data in the polar bear listing and how the Service analyzed climate change data for the Squirrel. See Determination of Threatened Status for the Polar Bear Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, However, Plaintiffs comparison is misplaced and does not further their argument. For instance, in the polar bear case, the Service, through reliable evidence, found the following: (1 the polar bear was almost entirely dependent on its sea-ice habitat, id. at 28,213; (2 according to studies specific to the polar bear s habitat, extensive sea-ice declines had already been reported and documented from the 1970s to 2007, id. at 28,220-23; (3 according to studies specific to the polar bear s habitat, continued sea-ice declines were likely, id. at 28,226-34; and (4 according to studies specific to the polar bear, the likely sea-ice declines would cause population declines. Id. at 28, However, the facts and circumstances surrounding the Service s polar bear finding were in stark contrast to the case at hand. With respect to the Squirrel, the Service found the 11 See also AR 352 at (noting red spruce health gradually improving through natural regeneration; AR 9 at (noting natural forest succession had resulted in older forest stands with improved forest habitat conditions (e.g., den sites, food for the Squirrel; AR 488 at (noting good, stable annual growth rates of red spruce since the mid 1980s; AR 281 at (same. 16

18 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 18 of 22 following: (1 unlike the polar bear, the Squirrel has demonstrated an ability over the past century to adapt to a more varied habitat composition than originally believed, AR 420 at ; (2 unlike the polar bear, there were no climate-change studies specific to the squirrel or its habitat that were appropriately scaled to an area approximating the range of the Squirrel, AR Docs. 275 (analyzing climate-change effects at a much larger scale than the Squirrel s habitat, 287 (same, 288 (same, 289 (same, 290 (same, 291 (same, 292 (same, and 499 (same; (3 the general climate-change studies available at the time were also too broad and too inconclusive to document any threat into the foreseeable future, see supra n. 8; see also AR 743 at (documenting the Squirrel habitat is unlikely to change in the next 50 years, id. (documenting that predicting climate change effects beyond 50 years is too uncertain; (4 there was no evidence of current, on-the-ground damage or decline in Squirrel habitat as a result of climate change or other impacts, see supra n. 9; and (5 the evidence, specific to this region, suggested that the Squirrel habitat was healthy, regenerating, and expanding. AR 1 at ; see also supra n. 10. In sum, the Service did not inappropriately demand scientific certainty in its climate change analysis. But it did require reliable scientific data. As explained above, the only reliable scientific data specific to the Squirrel or its habitat, indicated an overall trend of habitat regeneration and improvement and an ability of the squirrel to adapt to habitat changes. AR 1 at , 20. Therefore, based on these facts, the Service concluded that climate change was not a threat to the Squirrel or its habitat in the foreseeable future. 12 AR 1 at This 12 Plaintiffs cite to a 2010 study issued by the National Research Council of the National Academy of Sciences. Pls SJ Reply at p. 30. Not only does this study not provide any reliable evidence of a threat to the Squirrel or its habitat, it is also post-decisional and therefore, not part of the record. 17

19 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 19 of 22 conclusion was reasonable and supported by the record. 3. Plaintiffs fail to demonstrate any flaw in the Service s Factor D analysis In its delisting decision, the Service thoroughly analyzed all past and potential threats to the Squirrel and its habitat under Factors A-C and E. In addition to its threats analysis under Factors A-C and E, the Service, contrary to Plaintiffs assertion, Pls SJ Reply at p. 22, also independently analyzed any possible threat to the Squirrel due to inadequate regulatory mechanisms (Factor D. As explained in the final rule, the Service concluded that the threats under Factors A-C, and E have been eliminated or abated, and no regulatory mechanisms are needed to delist the [Squirrel]. AR 1 at This decision was logical and reasonable. Plaintiffs attempt to demonstrate a discrepancy in the Service s Northern Rocky Mountain Gray Wolf ( Gray Wolf finding, Pls SJ Reply at p. 24, is without merit. In the Gray Wolf finding, the Service analyzed the threats under Factors A-C and E and found that humancaused mortality (Factors C and E was the primary threat to wolf population, distribution, and range (Factor A. 71 Fed. Reg. 43,410, 43,426, 43,432 (Aug. 1, Because of this threat, the Service, under Factor D, analyzed whether regulatory mechanisms were in place to control human-caused mortality and help maintain adequate wolf population numbers and distribution. Id. at 43, The Service ultimately concluded that, in the absence of ESA protection, Wyoming state law and its wolf management plan were not adequate to control this threat and maintain the required wolf population numbers and distribution. Id. at 43,410, 43,432; see also Defenders of Wildlife v. Salazar, Civ. No , 2010 WL (D. Mont. Aug. 5, 2010 (the Service s Gray Wolf finding reversed on other grounds The Service s Factor D analysis is also consistent with the analysis in the Canada Lynx finding. 65 Fed. Reg. 16,052 (Mar. 24, In the Canada Lynx finding, the Service determined, among other things, poor land management practices to be a threat to the lynx and 18

20 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 20 of 22 The Service s approach is consistent in the case at hand. The Service first analyzed the threats to the Squirrel under Factors A-C and E. AR 1 at Unlike the Gray Wolf, all of the potential threats for the Squirrel were eliminated or largely abated. AR 1 at As such, the Service concluded that no regulatory mechanisms were needed for delisting. AR 1 at In other words, the Service concluded that an inadequate regulatory mechanism can exist only if there is a threat and that threat is inadequately regulated. The Service s analysis is reasonable and supported by the record. 14 CONCLUSION For the foregoing reasons, the Court must grant Defendants cross-motion for summary judgment and deny Plaintiffs motion for summary judgment. Respectfully submitted this 18th day of August, IGNACIA S. MORENO, Assistant Attorney General JEAN E. WILLIAMS, Section Chief /s/ Rickey D. TurnerJr. RICKEY D. TURNER, JR., Trial Attorney (CO Bar # its habitat throughout its range (Factor A. Id. at 16,076, 16,078. The Service then determined the relevant management plans to be inadequate mechanisms to control the threat of poor land management practices. Id. at 16,052, 16, Plaintiffs assertion that there must exist regulatory mechanisms at least as effective [as the ESA] in order to delist, Pls SJ Reply at p. 26, is wrong. Species recover for a number of reasons, such as proactive conservation. Proactive conservation measures like disease and predator control, captive propagation, habitat recovery and regeneration, landowner restoration and incentive programs all happen without any regulatory mechanisms. These factors play an equal, and in some cases, a greater role in future conservation than any regulatory mechanism. Therefore, recovery is indeed possible without regulatory mechanisms in place and Plaintiffs argument fails. 19

21 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 21 of 22 Wildlife and Marine Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7369 Washington, D.C ( Attorneys for Defendants 20

22 Case 1:09-cv EGS Document 21 Filed 08/18/10 Page 22 of 22 CERTIFICATE OF SERVICE I hereby certify that on August 18, 2010, I caused the foregoing to be served upon counsel of record through the Court's electronic service system (ECF/CM. /s/ Rickey D. Turner, Jr. RICKEY D. TURNER JR. 21