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Friends of the Wild Swan v. U.S. Fish & Wildlife Serv.

Citation: 28 ELR 20650
No. 94-1318-JO, 12 F. Supp. 2d 1121/(D. Or., 12/04/1997)

The court holds that the U.S. Fish and Wildlife Service (FWS) arbitrarily and capriciously listed several subpopulations of bull trout as endangered under the Endangered Species Act (ESA). In 1994, the FWS concluded that listing the bull trout as a species was warranted but precluded. Then, in response to a court order, the FWS issued a revised finding listing certain population segments of bull trout. The court first holds that it was not arbitrary and capricious for the FWS to identify five populations of bull trout rather than the entire species in its 1994 revised findings, but, to the extent that the FWS relied on a 1996 policy to justify its 1994 revised finding, the FWS' approach is arbitrary and capricious. The court then holds that the FWS' inadequately explained switch from considering listing the entire bull trout species to proceeding on a five-population segment basis is arbitrary and capricious. The listing of population segments is a proactive measure to prevent the need for listing a species over a larger range, not a tactic for subdividing a larger population that the FWS already determined warrants listing throughout the larger range. The FWS has not explained why subdividing the coterminous U.S. population into five population segments is appropriate. The court also holds that the 1994 revised finding is arbitrary and capricious, because it fails to address the entire scope of the groups' petition and fails to explain why it no longer considers listing of the bull trout warranted. The petition requested that the FWS list the bull trout throughout its range; however, the FWS only considered five distinct population segments. The FWS' findings should be at least comprehensive enough to address the scope of the petition to list. Moreover, the FWS' prior practice indicates that it normally spontaneously considers a larger population for listing even when the petition requests only that a distinct population segment be listed.

The court next holds that the FWS' decision that the listing of the Coastal/Puget Sound population of bull trout was not warranted is arbitrary and capricious. The FWS failed to explain why extrapolation from less than one-half the basins containing bull trout and from analyses that underestimate the risk to bull trout is a better evaluation of bull trout population trends than its previous extrapolations from salmonids generally. The court also holds that it cannot determine whetherthe FWS' decision that listing of the Jarbridge River population of bull trout was not warranted is arbitrary and capricious. The FWS relied on state wildlife agency data that has been consistent in reporting that bull trout populations are low in the Jarbridge River system, but there is no data to indicate that the population has changed since the 1950s. Moreover, the state wildlife agency has consistently suggested that the bull trout may be historically rare in the Jarbridge River. The court then holds that the FWS' decision that the listing of the Saskatchewan River population of bull trout was not warranted is supported by the record. Although this population segment has been reported to have declined historically, once the FWS has identified a population segment, its duty is to evaluate the entire population segment. And the FWS found that, in the Canadian portion of the Saskatchewan River basin, bull trout are widespread and not in danger of extinction. Thus, the court remands the case to the FWS to determine whether listing the bull trout is warranted throughout the species' entire range, whether listing of the bull trout is warranted throughout the coterminous United States, or whether listing the Coastal/Puget Sound population is warranted.

[Prior decisions in this litigation are published at 26 ELR 20351 and 27 ELR 20524. A decision related to this litigation is published at 26 ELR 20908. Briefs and Pleadings in this litigation are digested at ELR BRIEFS & PLEADS. 66469 and 66475.]

Counsel for Plaintiffs
Gary K. Kahn
Reeves, Kahn & Eder
4035 SE 52d Ave., Portland OR 97206
(503) 777-5473

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
U.S. Attorney's Office
888 SW 5th Ave., Ste. 1000, Portland OR 97204
(503) 727-1000