a) Meaning of "Significant Portion of Its Range"The parties do not dispute that the phrase "significant portion of its range" is, for Chevron purposes, ambiguous, see Defs.' Mem. at 26; see generally Pls.' Reply Mem. Supp. Pls.' Mot. & Opp'n Defs.' Mot. and HCC's Mot. ("Pls.' Reply"), ECF No. 41, and the Court concurs, see, e.g., Defenders of Wildlife v. Norton, 258 F.3d 1136, 1141 (9th Cir. 2001) ("The statute is . . . inherently ambiguous"); Colo. River Cutthroat Trout v. Salazar, 898 F. Supp. 2d 191, 201 (D.D.C. 2012) (finding phrase ambiguous); W. Watersheds Project v. Ashe, 948 F. Supp. 2d 1166, 1184 (D. Idaho 2013) ("Because the phrase is ambiguous, the [FWS] has a wide degree of discretion in determining whether the [species] is in danger 'throughout a significant portion of its range'"). Thus, under Chevron Step Two, the agency's interpretation of the phrase is entitled to deference if it is reasonable. Chevron, 467 U.S. at 843.
a) Meaning of “Significant Portion of Its Range”The parties do not dispute that the phrase “significant portion of its range” is, for Chevron purposes, ambiguous, see Defs.' Mem. at 26; see generally Pls.' Reply Mem. Supp. Pls.' Mot. & Opp'n Defs.' Mot. and HCC's Mot. (“Pls.' Reply”), ECF No. 41, and the Court concurs, see, e.g.,Defenders of Wildlife v. Norton, 258 F.3d 1136, 1141 (9th Cir.2001) (“The statute is ... inherently ambiguous”); Colo. River Cutthroat Trout v. Salazar, 898 F.Supp.2d 191, 201 (D.D.C.2012) (finding phrase ambiguous); W. Watersheds Project v. Ashe, 948 F.Supp.2d 1166, 1184 (D.Idaho 2013) (“Because the phrase is ambiguous, the [FWS] has a wide degree of discretion in determining whether the [species] is in danger ‘throughout a significant portion of its range’ ”). Thus, under Chevron Step Two, the agency's interpretation of the phrase is entitled to deference if it is reasonable. Chevron, 467 U.S. at 843, 104 S.Ct. 2778. In Defenders of Wildlife, the Ninth Circuit did not defer to the FWS's interpretation of the phrase “significant portion of its range,” despite noting that the statute was “puzzling” and “inherently ambiguous.”
Fed.R.Civ.P. 56(a). However, in a case involving review of a final agency action under the Administrative Procedures Act (“APA”), the court's role is limited to reviewing the administrative record, and the standard set forth in Rule 56 does not apply. Colorado River Cutthroat Trout v. Salazar, 898 F.Supp.2d 191, 200 (D.D.C.2012) (citing Catholic Health Initiatives v. Sebelius, 658 F.Supp.2d 113, 117 (D.D.C.2009), rev'd on other grounds,617 F.3d 490 (D.C.Cir.2010)). “Under the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas ‘the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.’ ” Id. (citation omitted).
Nonetheless, the Court's review must be "searching and careful." See Colo. River Cutthroat Trout v. Salazar, 898 F.Supp.2d 191, 199 (D.D.C. 2012) (quoting Nat'l Envtl. Dev. Ass'n's Clean Air Project v. Envtl. Prot. Agency, 686 F.3d 803, 810 (D.C. Cir. 2012) ). A decision may be deemed arbitrary and capricious where an agency "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, [or] offered an explanation for its decision that runs counter to the evidence before the agency[ ] or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."
Therefore, even if the Court had otherwise concluded that Intervenor-Plaintiffs raised "plausible criticisms of the methodology chosen by the" Corps, they have failed to show that this choice was arbitrary or capricious. See Colo. River Cutthroat Trout v. Salazar, 898 F. Supp. 2d 191, 205 (D.D.C. 2012) ("[A]n agency's choice of methodology need only be reasonable to be upheld."). b. The FEIS Adequately Analyzes and Discloses Impacts of the Proposed Action Alternative on Hydropower Generation
However, the Court notes that it has been raised in other circuits, and courts have regularly found that, in APA cases like this one, they may consider government action after the filing of a case in assessing jurisdiction and finality. See e.g., Friends of Animals v. Bernhardt, 961 F.3d 1197, 1203 (D.C. Cir. 2020) (holding that where plaintiff challenged certain government findings which were subsequently withdrawn, challenge became moot); Akiachak Native Cmty. v. United States Dep't of Interior, 827 F.3d 100, 105-06 (D.C. Cir. 2016) (holding action became moot where plaintiff challenged a regulation which the government subsequently withdrew); Colorado River Cutthroat Trout v. Salazar, 898 F. Supp. 2d 191, 211 (D.D.C. 2012) (finding action was moot where plaintiff challenged a memorandum subsequently withdrawn by the government). The Court finds these cases are persuasive authority and sees no bar to considering the May 19 withdrawal of the May 11 SSVF letter here.
The Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir. 2003). “In a case involving review of final agency action under the APA, . . . the Court's role is limited to reviewing the administrative record, ” Colorado River Cutthroat Trout v. Salazar, 898 F.Supp.2d 191, 200 (D.D.C. 2012), and it “generally need not perform any fact-finding, ” All. for the Wild Rockies v. U.S. Forest Serv., No. 2:19-CV-00350-SMJ, 2020 WL 7049556, at *5 (E.D. Wash. Dec. 1, 2020). At the summary judgment stage, the court need only determine whether “as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.”
They further assert that the Service sufficiently identified and discussed cumulative impacts. Id. at 29-30 (citing Rocky Mountain Wild v. U.S. Fish & Wildlife Serv. , No. 13-cv-00042-M-DWM, 2014 WL 7176384, at *8 (D. Mont. Sept. 29, 2014) ; Colorado River Cutthroat Trout v. Salazar , 898 F.Supp.2d 191, 206 (D.D.C. 2012) ; Defs. of Wildlife v. Jewell , 70 F.Supp.3d 183, 193 (D.D.C. 2014) (" Defenders II "), aff'd sub nom. Defs. of Wildlife & Ctr. for Biological Diversity v. Jewell , 815 F.3d 1 (D.C. Cir. 2016) ; Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ).
Communities for a Better Environment v. EPA, 748 F.3d at 336 (quoting City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C.Cir.2003)) (internal quotation marks omitted); see alsoTroy Corp. v. Browner, 120 F.3d 277, 283 (D.C.Cir.1997) (a federal court should “review scientific judgments of the agency ‘not as the chemist, biologist, or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality’ ”) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C.Cir.1976) (en banc)). “The Court's review, however, must be ‘searching and careful.’ ” Colorado River Cutthroat Trout v. Salazar, 898 F.Supp.2d 191, 199 (D.D.C.2012) (quoting Nat'l Envtl. Dev. Assn's Clean Air Project v. EPA, 686 F.3d 803, 810 (D.C.Cir.2012)). “An agency decision is arbitrary and capricious if it ‘relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Cablevision Sys. Corp. v. FCC, 649 F.3d 695, 714 (D.C.Cir.2011) (quoting Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43, 103 S.Ct. 2856); accordAgape Church, Inc. v. FCC, 738 F.3d 397, 410 (D.C.Cir.2013).
This opinion does not go so far as to hold that the FWS may not ever consider nonbinding statements as part of the mix when assessing the adequacy of a set of regulatory mechanisms as a whole; it finds that it was unreasonable in this instance for FWS to determine that it was necessary for Wyoming to manage for more than ten breeding pairs and 100 wolves as a condition for delisting but then accept a plan that did not commit to that.SeeColorado River Cutthroat Trout v. Salazar, 898 F.Supp.2d 191, 207–08 (D.D.C.2012) (“while the FWS cannot rely on promised and unenforceable conservation agreements in evaluating regulatory mechanisms ... its consideration of the Conservation Strategy as part of its overall assessment of ongoing management practices is not inappropriate.”)