06-2049 - Center for Biological Diversity, et al., Appellants v. Gale Norton, etc., et al.; New Mexico Cattle Growers Association, Amicus Curiae
U.S. Tenth Circuit Court of Appeals
(March 7, 2007)

Briefs

Briefs require requires Adobe Acrobat Reader.

Case Summary (prepared at Washburn Law)

Background

The United States Fish and Wildlife Service (Service) determined that the Rio Grande cutthroat trout should not be listed under the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. Appellants filed suit in the District of New Mexico, challenging the Service's determination. Appellants relied on evidence showing the cutthroat trout has lost ninety-nine percent of its historical range and faces threats to ninety-five percent of its extant population. The district court upheld the Service's determination in Center for Biological Diversity v. Norton, 411 F. Supp. 2d 1271 (D.N.M. 2005). There the district court held that even when ninety-nine percent of a species' historic range is lost, it is not necessary to list the species under the ESA when the species is sufficiently protected from natural and man-made threats so that the species' continued existence is likely.

Issues

  1. Did the district court correctly determine the "significant portion" of the cutthroat trout's range under the ESA?
  2. Does the record support the Service's determination that the cutthroat trout is not in danger of extinction?
  3. Did the district court err by denying Appellant's (then Plaintiff) motion to supplement the record with evidence of a New Mexico Game Commission decision made after the Service's decision not to list the cutthroat trout?

Arguments

Appellant argues that a species can qualify for listing when the Service anticipates future substantial habitat losses or when the species is extinct in a large portion of its historical range. Appellant interprets Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001), to mean that the loss of ninety-nine percent of the cutthroat trout's historical range, coupled with threats to ninety-five percent of its extant population, is sufficient to justify its listing under the ESA.

Appellant also argues that the district court misinterpreted the ESA provision that the species should be listed if it faces extinction "in a significant portion of its range." See 16 U.S.C. § 1532(6), (20). Appellant argues that the relevant range of the cutthroat trout's population includes the historical range.

Appellant also argues that the Service incorrectly assessed the adequacy of existing regulatory mechanisms to protect cutthroat trout and drew conclusions about the viability of the species not supported by the available scientific data.

Appellee argues many species that only occupy a small portion of their historical ranges enjoy healthy population levels and are not endangered. According to Appellee, the "significant portion of its range" language exists to protect species that are endangered in a portion of, but not the entirety of, their current ranges. Appellee argues that to require listing under the ESA based solely on a reduction in historical range would require listing many thriving species as endangered.

Appellee also argues that the Service's determination that Rio Grande cutthroat trout should not be listed under the ESA is supported by the scientific evidence in the record. Appellee argues that the Service considered the loss of historical range, and that the determination against listing was not arbitrary or capricious. Rather, Appellee points to the evidence relied upon by the Service to demonstrate that the cutthroat trout is not at risk for extinction.

Appellee argues the district court's decision to deny Appellant's motion to supplement the record was not an abuse of discretion.