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Same Facts, Different Conclusions in Treatment of Cutthroat Trout

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Are the Rio Grande Cutthroat Trout Endangered?  The Endangered Species Act (ESA) is a federal law designed to conserve and protect species like the Rio Grande Cutthroat Trout (Trout).  It is a trout species native to Southern Colorado and New Mexico and has undergone a significant decrease in its population over the last 150 years. This decrease is attributed to drought, habitat loss, invasive species, and its mating with other trout producing hybridized offspring.

Background

The U.S. Fish and Wildlife Service (USFWS) considered listing the Trout as an endangered species in 2002, 2008, and 2014. The USFWS listed the Trout in 2008, while coming to the opposite conclusion in 2014. The Center for Biological Diversity and Taylor McKinnon filed legal action using the Administrative Procedure Act (APA) against the Secretary of Interior, U.S. Fish & Wildlife Service, the State of Colorado, the Colorado Division of Parks & Wildlife, the Colorado Parks & Wildlife Commission, and the New Mexico Department of Game and Fish. The Plaintiffs argued against the USFWS's 2014 delisting of the Trout as an endangered species.

Conflicting Results with The Same Facts

The 2008 Determination found the ESA listing of the Trout warranted due to consideration of population fragmentation, isolation, small population size, nonnative trout, drought, fire, and the projected effects of climate change. The USFWS concluded that populations considered secure in 2002 underwent significant losses in population size. It found fragmentation as a significant threat to the Trout population but noted habitat restoration projects created to help protect the Trout. Habitat fragmentation is the process by which a continuous habitat is broken apart into several smaller isolated patches of habitats. The Service also stated that at least 2,500 fish are needed to ensure a population of trout’s long-term persistence. Of the 120 conservation populations identified in 2002, only 13 contained enough trout and considered secure. The Service considered the effects of other factors on the trout populations as well. Increases in water temperature, decreased stream flow, changes in hydrography, and extreme events caused by climate change create instability in the trout populations. The Service concluded that the listing of Trout was warranted based on these factors.

Through an extensive analysis, the 2014 Determination concluded the trout was not appropriate for listing. During its analysis, it reconsidered the list of the trout while noting the species “needs multiple resilient populations widely distributed across its range” to avoid extinction. Seven risk factors were factored into a statistical and analytical model. The seven risk factors are: (1) demographic risk resulting from small population sizes; (2) hybridizing non-native species who present the risk of genetic dilution; (3) competing non-native species; (4) wildfire; (5) stream drying; (6) disease; and (7) water temperature changes.” The model took into consideration assumptions on how Trout populations would increase over time from conservation projects underway. The Service studied whether the trout was endangered throughout all its current range, as well as whether it would be threatened with extinction in the “foreseeable future.” It determined the species was not at risk of extinction in either scenario.

The final portion of the USFWS’s analysis was on what portions of the Trout’s range would be significant under the significant portion range (SPR) Interpretation. These are the areas whose “contribution to the viability of the species is so important that, without members in that portion” the species would be in danger of extinction. The USFWS explained it would first consider a species endangered throughout all its range. If the USFWS found it was not endangered, it would then consider what portions of the species’ range were significant. It however found all the projections in its analysis demonstrated enough “resiliency, representation, and redundancy” to conclude the trout was not presently endangered nor in the foreseeable future.

What The Court Decided

Plaintiffs made several arguments against the Service’s 2014 Trout delisting. These include arguments that the USFWS applied the wrong standards under the ESA as well as challenging the interpretation of the SPR. The strongest argument the Plaintiffs made however was related to how different the 2008 and 2014 determinations analyzed and treated the same information. Plaintiffs argued the 2008 and 2014 Determinations had the same factual scenarios, and yet reached opposite conclusions. The Court cited how both determinations disagree on the number of populations that can be considered healthy. The USFWS also changed its criteria for determining whether a trout population was healthy and stable. Because it did not offer any explanations to the different methodologies used in the two determinations, the Court reversed the 2014 determination for further analysis and explanation to calculate healthy trout populations.

If you have any questions about this case, the ESA or APA or other government regulations, contact the experienced attorneys at Whitcomb, Selinsky Law PC at (866) 476-4558 or complete an online form.

About the AuthorRaymundo Ribota

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