Ninth Circuit Defers to Services’ Interpretation of “Distinct Population Segments” Under the ESABy Jessica Ferrell
Earlier this month, the Ninth Circuit Court of Appeals addressed an issue at the heart of listing decisions under the Endangered Species Act (ESA): the meaning of the term “species.” In Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Service (Alliance v. FWS), the Ninth Circuit deferred to the U.S. Fish and Wildlife Service’s (FWS) and the National Marine Fisheries Service’s (NMFS) interpretation of the term “distinct population segment” (DPS) within the ESA’s definition of “species.” The Court also upheld the FWS’ application of that policy to a particular subspecies in Washington State. The Ninth Circuit is the first appellate court to explicitly consider the validity of the Services’ interpretation of the term “DPS.” The opinion allows the Services to continue making listing decisions below the species level, under the analysis they’ve used for past decade.
Background: The DPS Analysis
The ESA defines the term “species” to include “any subspecies of fish or wildlife or plants, and any [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” Under this definition, “a population of wildlife that does not constitute a taxonomic species may nevertheless qualify for listing as a DPS.” The term “DPS” is neither defined in the ESA nor commonly used in scientific discourse. In fact, it has no accepted scientific meaning. To fill this gap, the FWS and NMFS adopted a policy statement (DPS Policy) “to guide their evaluation of whether a population group should be treated as a DPS.” The Services published a draft of the policy on December 21, 1994, and invited public comment.  After considering comments, the Services adopted the policy as issued in draft form.
The DPS Policy sets forth two factors for the Services’ consideration: the “[d]iscreteness of the [DPS] in relation to the remainder of the species to belongs,” and the “significance of the population segment to the species to which it belongs.” Discreteness is satisfied if a population segment is “‘separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors,’ or if a population’s boundaries are marked by international borders.” The Services analyze “significance” under four non-exclusive factors: (1) whether the population persists in a unique or unusual ecological setting; (2) whether the loss of the population would cause a “significant gap” in the taxon’s range; (3) whether the population is the only surviving natural occurrence of a taxon; and (4) whether the population’s genetic characteristics are “markedly” different from the rest of the taxon. A population qualifies as a DPS only if the appropriate Service decides it is both discrete and significant. If a population qualifies as a DPS, the Service then decides whether the DPS is endangered or threatened.
Multiple district courts and a handful of appellate courts have considered as-applied challenges to various DPS decisions. For example, the Ninth Circuit considered a petition to list a goshawk population as an endangered DPS in Center for Biological Diversity v. Badgley, and deferred to the FWS’ decision not to list the species. In National Association of Home Builders v. Norton, the Ninth Circuit determined that the FWS did not properly apply the DPS Policy in listing a certain population of pygmy owls.
In 2003, Judge Lasnik of the District Court for the Western District of Washington addressed the validity of the DPS Policy itself in Center for Biological Diversity v. Lohn, a case concerning the Eastern North Pacific Southern Resident Killer Whales. Judge Lasnik concluded that the DPS Policy was not contrary to congressional intent, and that it constituted a reasonable interpretation of an ambiguous statutory term. In Maine v. Norton, the District Court for the District of Maine considered the propriety of the Services’ determination that a Gulf of Maine Atlantic salmon population was a DPS, and did not disturb the Services’ listing decision. The Maine v. Norton court also concluded that the DPS Policy is “a reasonable interpretation of ambiguous statutory language.” Before Alliance v. FWS, however, no appellate court had explicitly addressed the validity of the DPS Policy on its face.
Procedural History of the Ninth Circuit’s Opinion in Alliance v. FWS
The opinion in Alliance v. FWS specifically concerns one of three subspecies of the western gray squirrel (Sciurus griseus griseus), the largest native tree squirrel in the Pacific Northwest. The western gray squirrel is fairly common in California, legally hunted in Oregon, and classified as “protected” under state law in Nevada. Washington law also protects the western gray squirrel populations. Due in part to their historic separation from other subspecies by the Columbia River, the Washington subspecies has been reduced to three geographically isolated populations over the last three decades. In 1998 and 1999, surveyors detected only six western gray squirrels of the so-called “Puget Trough population.” The other Washington populations showed significantly higher numbers, albeit at densities lower than historic levels. In January 2001, Plaintiffs (collectively, the Alliance) petitioned the FWS to list Washington’s western gray squirrel populations under the ESA. The FWS denied the petition, concluding that the population was not significant to the taxon to which it belongs under the DPS Policy. The Alliance then sued the FWS, contending that its decision was arbitrary and capricious. The district court granted summary judgment for the FWS.
The Ninth Circuit’s Opinion in Alliance v. FWS
The appeal presented two issues: “(1) whether the [FWS’] construction of the term ‘[DPS]’ is entitled to Chevron deference, and if so, whether the [FWS’] construction is reasonable; and (2) whether the [FWS’] denial of the petition was arbitrary and capricious.” The Alliance argued that “the DPS Policy’s requirement that a population be significant to its taxon is unlawfully restrictive. The Alliance d[id] not seek to invalidate the DPS Policy on its face, but only as applied [to the Washington population of western gray squirrel].” The Ninth Circuit elected to take a broader view, explaining:
We may nevertheless consider the general validity of the element of the DPS Policy – i.e., the significance requirement – that was used by the [FWS] to deny the Washington gray squirrel a listing as an endangered DPS. We may not, however, evaluate elements of the DPS Policy that were not applied against the Alliance. We note that the [FWS] does not argue on appeal that the validity of the significance requirement cannot be evaluated in an as-applied suit. We also note that, before the district court, the [FWS] did not challenge the Alliance’s first claim for relief. It is this claim, that the [FWS] ‘had a nondiscretionary duty to list the Washington populations of the western gray squirrel under the ESA upon determining they are imperiled [DPSs],’ that objects to the existence of the significance requirement rather than merely its application to the Washington gray squirrels.
The Validity of the DPS Policy
Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., a court reviewing an administrative interpretation of a statute must first decide whether Congress has spoken clearly on the issue. If the statute is clear, the court “must give effect to the unambiguously expressed intent of Congress,” regardless of the agency’s opinion. If the statute is ambiguous, then, according to the Ninth Circuit, a court “must determine how much deference to give to the administrative interpretation,” depending on the statute and agency action at issue. Chevron deference applies “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Although the Alliance did not seek to invalidate the DPS Policy on its face, nor did it argue that the Policy is not entitled to deference, the Court still addressed the issue, concluding that the DPS Policy is entitled to deference under Chevron. In reaching this conclusion, the Court pointed to the “procedural rigors” to which the Services applied the DPS Policy, “the express congressional command to the Service[s] to develop guidelines,” and the treatment of the DPS Policy – by both the Services and parties presenting listing petitions – as legally binding. The Court found that “these factors distinguish the DPS Policy from garden-variety policy statements that do not enjoy Chevron status.”
The Challenge to the DPS Policy, as Applied to the Listing Decision
Addressing the second factor in the DPS analysis (the “significance” inquiry), the Court noted that the FWS’ discussion of whether loss of the population would cause a “significant gap” in the taxon’s range “is not a paragon of clarity.” Still, the Court rejected the following arguments proffered by the Alliance: (1) that the DPS Policy contradicts the alleged plain meaning of the statute; (2) that the FWS’ finding that certain subpopulations do not constitute unique ecological settings for the taxon within the meaning of the DPS Policy was arbitrary and capricious; (3) that the FWS inappropriately found that a hypothetical loss of the entire Washington population would not cause a significant gap in the range of the taxon; and (4) that the FWS failed to acknowledge marked genetic differences between subpopulations of the taxon. The Court deferred to the FWS’ decisions that: (1) the relevant population does not persist in a unique ecological setting; (2) loss of the population would not result in a significant gap in the range of taxon; and (3) the population is not markedly different genetically from other populations of the species. Therefore, the Court concluded that the FWS’ decision not to designate Washington’s western gray squirrel population as a DPS was not arbitrary and capricious, and was entitled to deference.
Narrowly construed, the Ninth Circuit’s opinion in Alliance v. FWS means that Washington’s western gray squirrel populations are not protected by the ESA and, as a consequence, property owners and other members of Washington’s regulated community will not be subject to restrictions necessitated by federal protection of the state’s gray squirrels. The subspecies and its nest trees, however, remain protected under state law. The significance of the Ninth Circuit’s opinion in the long run, however, may lie less in any immediate practical impact than in its consequence for future listing decisions. The Court’s deference to the Services’ controversial interpretation of the word “significance” in the phrase “DPS” allows the Services to continue making listing decisions below the species level as they have for over ten years. Previous Senate committees and the General Accounting Office have voiced concerns that inclusion of the phrase “DPS” in the definition of the term “species” could result in an unrestrained “proliferation of endangered species listings.” By upholding the Services’ four-factor “significance” test under the DPS Policy, the Ninth Circuit has arguably furthered the U.S. Senate’s expectation, first voiced 18 years ago: that the Services would “use the ability to list populations sparingly and only when the biological evidence indicates that such action is warranted.”
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