Full opinion text
ORDER KING, District Judge: The Honorable Janice Stewart, United States Magistrate Judge, filed Findings and Recommendation on July 13, 2007. All parties filed timely objections to the Findings and Recommendation. When either party objects to any portion of a magistrate’s Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate’s report. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). The matter is before this court pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). This court has, therefore, given de novo review of the rulings of Magistrate Judge Stewart. This court ADOPTS the Findings and Recommendation of Magistrate Judge Stewart dated July 13, 2007 in its entirety. IT IS HEREBY ORDERED that Trout Unlimited’s Motion for Summary Judgment (#45) is GRANTED and State of Oregon’s Motion for Summary Judgment (# 68), Federal Defendants’ Amended Motion for Summary Judgment (# 77), and Alsea Valley Alliance’s Motion for Summary Judgment (# 83) are DENIED. DATED this 5th day of October, 2007. FINDINGS AND RECOMMENDATIONS STEWART, United States Magistrate Judge: INTRODUCTION Plaintiffs, Trout Unlimited, Pacific Rivers Council, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, Native Fish Society, Oregon Natural Resources Council, Umpqua Watersheds, and Coast Range Association (collectively, “Trout Unlimited”), seek review of the determination by the National Marine Fisheries Service (“NMFS”) not to list Oregon Coast coho salmon under the Endangered Species Act, 16 USC §§ 1531-44 (“ESA”). NMFS is the federal government agency to which the Secretary of Commerce has delegated responsibility for administrating the provisions of the ESA with regard to threatened and endangered marine species. See 16 USC § 1532(15); 50 CFR § 17.2. NMFS has twice proposed to list the Oregon Coast coho salmon as a threatened species under the ESA, but has twice withdrawn the proposed listing at the urging of the State of Oregon. Initially, the State of Oregon developed the Oregon Coastal Salmon Restoration Initiative (“Oregon Plan”) to encourage voluntary conservation and some future regulatory changes. In reliance on the Oregon Plan, NMFS withdrew its proposed listing. This Court upheld a challenge to that withdrawal decision. Oregon Natural Resources Council v. Daley, 6 F.Supp.2d 1139 (D.Or.1998) (“ONRC”). Heeding that decision, the NMFS then rejected the Oregon Plan as a basis to avoid an ESA listing and proposed listing the Oregon Coast coho as threatened. However, based in part on a new viability assessment prepared by the State of Oregon, it reversed course and withdrew its listing proposal. As a result, of 27 salmon and steelhead populations in the Pacific Northwest and California, the Oregon Coast coho is the only population not currently listed under the ESA. Trout Unlimited now challenges that withdrawal decision and requests: (1) a declaratory judgment that NMFS’s determination not to list the Oregon Coast coho salmon is arbitrary, capricious, contrary to the best available science, and a violation of the ESA; (2) an order that NMFS issue a new final listing rule consistent with the ESA and the best available science rule within 60 days of the court’s decision; (3) an award of reasonable attorneys’ fees and costs; and (4) any additional relief the court deems just and proper. Opposing Trout Unlimited are defendants D. Robert Lohn (“Lohn”), the Northwest regional director of NMFS, Carlos M. Gutierrez (“Gutierrez”), the Secretary of the United States Department of Commerce, both sued in their official capacity, as well as intervenor defendants the State of Oregon and Alsea Valley Alliance. This action was originally filed in the United States District Court for the Western District of Washington and transferred to this court by Order of Judge R. Lesnik (docket # 24). This court has original jurisdiction pursuant to the citizen provision under the ESA, 16 USC § 1540(g)(1), as well as pursuant to 28 USC § 1331 under the Administrative Procedure Act, 5 USC § 706 (“APA”). Trout Unlimited has filed a Motion for Summary Judgment (docket # 45) and, in turn, all the defendants have filed Cross-Motions for Summary Judgment (docket ## 68, 77, 83). For the reasons below, Trout Unlimited’s motion should be granted and defendants’ cross-motions should be denied. BACKGROUND Congress enacted the ESA in 1973 “to provide a means whereby the ecosystems upon which endangered and threatened species may be conserved [and] to provide a program for the conservation of such endangered species and threatened species.” 16 USC § 1531(b). The ESA’s protections apply only to species that are listed as threatened or endangered. A species is “endangered” when it “is in danger of extinction throughout all or a significant portion of its range” and is “threatened” when it is likely to become endangered within the foreseeable future. 16 USC § 1532(6) & (20). Thus, a species is threatened if it is likely to qualify for endangered status within the foreseeable future. The ESA charged the Secretary of Commerce (“Secretary”) with listing marine and anadromous species. The Secretary has delegated those responsibilities to NMFS. 50 CFR § 424.01(b). The ESA requires the Secretary to determine whether any species is endangered or threatened “because of any” of the following five factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. 16 USC § 1533(a)(1). This determination is to be made: solely on the basis of the best scientific and commercial data available to [the Secretary] after conducting a review of the status of the species and after taking into account those efforts, if any, being made by a State or foreign nation ... to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction or on the high seas. 16 USC § 1533(b)(1)(A). In addition, the Secretary is required to consult with the affected states when considering whether to list a species as endangered or threatened and to “tak[e] into account those efforts ... being made by any State ... to protect such species” under existing “conservation practices.” 16 USC § 1533(b)(5)(A)® & (ii). Any interested person may petition to list a species as threatened or endangered. 16 USC § 1533(b)(3)(A). If the Secretary finds that the petitioned action may be warranted, he or she must “promptly commence a review of the status of the species concerned,” id., which typically entails convening a biological review team (“BRT”) of technical experts from several federal agencies to compile the best available science on the species’ status. Within 12 months after receiving the petition, the Secretary must make a finding that (1) the listing is or is not warranted, or (2) at the present time the listing is warranted but precluded. 16 USC § 1533(b)(3)(B). If the Secretary finds that the listing is warranted, “a general notice and the complete text of a proposed regulation to implement [the decision]” is published in the Federal Register. 1.6 USC § 1533(b)(3)(B)(ii); see also 16 USC § 1533(b)(5)(A)® (general notice and text of the proposed regulation must be published not less than 90 days before the effective date of the regulation). Within one year after publication of the proposed regulation, the Secretary must make a final decision whether to place the species on the endangered or threatened species list. 16 USC § 1533(b)(6)(A). The Secretary can invoke one six-month extension if “there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination ... concerned.” 16 USC § 1533(b)(6)(B)®. Once a species is listed, various safeguards prevent activities that will cause harm to members of the species or that will jeopardize the survival and recovery of the species. 16 USC §§ 1536, 1538. The ESA’s ultimate goal is recovery of listed species to the point that ESA protection is no longer necessary. 16 USC §§ 1531(b)-(c), 1532(3). Toward this end, NMFS must develop recovery plans for listed species that contain “objective, measurable criteria which, when met, would result in a determination ... that the species be removed from the list.” 16 USC § 1533(f)(l)(B)(ii). STANDARD OF REVIEW The ESA authorizes citizen suits against the Secretary alleging a failure to perform duties under the ESA’s listing provision. 16 USC § 1540(g)(1)(C). Because the ESA specifies no standard of review of agency actions, the Ninth Circuit has borrowed the APA standard of review set out in 5 USC § 706(2), under which the agency’s action is presumed to be valid. ONRC, 6 F.Supp.2d at 1145 (citation omitted). Thus, the reviewing court may set aside an agency’s decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Pyramid Lake Paiute Tribe of Indians v. Dep’t of the Navy, 898 F.2d 1410, 1414 (9th Cir.1990). An agency’s decision is arbitrary and capricious if it: has relied on factors which Congress had 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. O’Keeffe’s, Inc. v. United States Consumer Prod. Safety Comm’n, 92 F.3d 940, 942 (9th Cir.1996), quoting Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Review under the APA “is generally limited to the Administrative Record compiled in support of the decision being challenged.” Camp v. Pitts, 411 U.S. 138, 141-42, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). However, the reviewing court may consider material outside the administrative record “(1) if necessary to determine whether the agency considered all relevant factors and has explained its decision, (2) when the agency relied on documents not in the record, or (3) when ... necessary to explain technical terms or complex subject matter.” Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996) (internal citations and quotations marks omitted). Plaintiffs and the State of Oregon have submitted extra-record affidavits. UNDISPUTED FACTS I. Original Listing A. 1995 Status Review and Proposal to List As Threatened Oregon Coast coho salmon is a species of Pacific salmon which hatches in freshwater, migrates to the ocean to sexually mature, then migrates back to freshwater to spawn. After hatching in the spring, the juvenile coho salmon move during the summer into' quiet areas with low flow, such as backwater pools, beaver ponds, dam pools, and side channels, where they remain throughout the winter. Coho smolts typically spend approximately 18 months in freshwater streams and rivers, migrate to the ocean from April to June, spend around 18 months in salt water, and re-enter freshwater from September to November when sexually mature to spawn. 69 Fed. Reg. 33,102, 33,109 (June 14, 2004) (Administrative Record (“AR”) 818). In the early 1990s, scientific literature documented the extinction of more than a dozen coho stocks and the high risk of extinction facing a comparable number of remaining stocks. See, e.g., AR 932 at 6 (September 1995); 60 Fed. Reg. 38,011, 38,018-19 (July 25, 1995) (AR 936). In response to petitions to list coho salmon, NMFS convened a BRT of scientists to conduct a West Coast status review of coho salmon. AR 932. The BRT divided coho salmon into several evolutionary significant units (“ESUs”), including one for the Oregon Coast coho, whose range stretched from Cape Blanco to the mouth of the Columbia River. Id. at v. In assessing this ESU’s risk of extinction, the BRT reviewed the factors that NMFS has deemed critical in other listings. It found that the total number of individuals in a population, as well as the spatial and temporal distribution of adults is important in the assessment of risk. Id. at 95. The BRT noted that coho returns historically approximated 1 to 1.4 million, but their abundance has declined to less than 10% of these historical levels. Id. at vi-vii, 113; 60 Fed. Reg. 38,011, 38,019 & 38,021. The BRT also expressed “serious concern” about the coho’s low productivity with a decline in recruits per spawner ratios that are below replacement levels. AR 932 at 117; 60 Fed. Reg. 38,011, 38,-021. While the BRT noted that it had not attempted to identify the causes for the decline in recruits per spawner, it pointed out possible causes such as changes in ocean production and loss and degradation of freshwater habitat. AR 932 at 117. Based on these findings, the BRT concluded that the Oregon Coast coho salmon are “not at immediate risk of extinction but are likely to become endangered in the future if present trends continue.” AR 932 at vi-vii, 128-29. Addressing the ESA’s statutory listing factors, NMFS found the coho in decline due to “long-standing, human-induced conditions (e.g., harvest, habitat degradation and artificial propagation) that serve to exacerbate the negative effects of adverse environmental conditions (e.g., drought, poor ocean conditions).” 60 Fed. Reg. 38,-011, 38,024. B. 1997 Withdrawal of the Proposed Listing Based on the Oregon Plan After NMFS proposed to list Oregon Coast coho salmon as threatened, Oregon adopted the Oregon Plan, which aimed to comprehensively address all the factors for the decline of the coho salmon and to hold all state agencies whose activities affect salmon accountable for coordinating their activities in a manner to conserve and restore the species and their habitat. While the Oregon Plan led to measures to reduce fishing and modify hatchery practices, it relied on voluntary measures, new forest practices regulations and nonspecific plans for future regulatory changes on state land and agricultural land to address habitat degradation. 62 Fed. Reg. 24,588, 24,603-05 (May 6,1997) (AR 938). NMFS found that the adoption of the Oregon Plan had not successfully halted or reversed the downward habitat trends and that improving freshwater habitat conditions was essential to coho survival. Id. at 24,607. Nonetheless, NMFS withdrew the proposed listing in 1997 based on the predicted effects of future and voluntary conservation measures envisioned under the Oregon Plan. Id. at 24,591, 24,607-08. NMFS found that the coho would not become endangered during the two-year time frame it allowed for Oregon to adopt improved habitat protections. Id. at 24,607-OS. In ONRC, this Court found that the NMFS’s withdrawal determination was arbitrary and capricious and remanded the matter back to NMFS for further consideration. More specifically, this court concluded that NMFS had improperly focused on the risk of extinction over the next two years instead of the foreseeable future, as required by the ESA, and improperly relied on voluntary future conservation efforts. C. 1998 Listing as Threatened In response to ONRC, on August 10, 1998, NMFS listed Oregon Coast coho salmon as threatened. 63 Fed. Reg. 42,-587 (Aug. 10, 1998) (AR 939). Based on the interim hatchery policy then in effect, NMFS included several hatchery populations in the ESU, but excluded those hatchery stocks from the ESA listing because they were not needed for immediate recovery efforts. Id.; 50 CFR § 227.4(o) (redesignated as 50 CFR § 223). In Alsea Valley Alliance v. Evans, 161 F.Supp.2d 1154, 1162 (D.Or.2001), appeal dismissed for lack of jurisdiction, 358 F.3d 1181 (9th Cir.2004) (“Alsea”), this court held that the listing was arbitrary and capricious and once again remanded the matter to NMFS for further consideration. The court found that the interim hatchery policy made improper distinctions within DPSs between hatchery spawned coho and naturally spawned coho. II. New Listing Proposal A. 2003 BRT Status Review After Alsea, NMFS developed a new hatchery policy under which hatchery stocks determined to be part of a DPS will be considered in determining whether a DPS is threatened or endangered under the ESA, and convened a new BRT to conduct an updated status review of 27 West Coast salmonid ESUs. See 70 Fed. Reg. 37,204 (June 28, 2005) (AR 1) (new hatchery listing policy); AR 916 (July 2003) (updated West Coast salmon status review). The BRT evaluated the risk of extinction based on the performance of the naturally spawning populations in each of the ESUs under the assumption that present conditions would continue into the future. 69 Fed. Reg. 33,102, 33,110. To assess extinction risk, the BRT relied on a NMFS technical memorandum regarding Viable Salmonid Populations (“VSP”), which established four criteria to determine the viability of an ESU: abundance, growth rate/productivity, spatial structure, and diversity. AR 910 at xiii, 12-15. For each ESU being considered, the BRT members gave a numerical risk score to each of the four VSP criteria. AR 916 at 18-19. The BRT analysis of overall risk to the ESU used categories that correspond to definitions in the ESA: in danger of extinction, likely to become endangered, or neither. Id. at 23. Each BRT member distributed 10 likelihood points among the three ESU risk categories, reflecting his or her opinion on how likely that category correctly represents the true ESU status. Id. This approach allowed each BRT member to divide his or her votes if the member was not entirely certain about the overall extinction risk faced by an ESU. Id. With respect to Oregon Coast coho salmon, the BRT noted that adult spawner abundance had increased in 2001-02 due to improved ocean conditions and reduced harvest, but raised concerns about a prior three-year period (1997-99) in which natural spawners did not replace themselves, the only three years of recruitment failure that have been observed since such data for Oregon Coast coho salmon was first collected in 1950. AR 901 at 324. The BRT concluded that “[wjhereas the recent increases in spawner escapement have resulted in long-term trends in spawners that are generally positive, the long-term trends in productivity in this ESU are still strongly negative.” Id. at 400. A majority (73 votes or 56%) of the BRT votes were cast in the “likely to become endangered” category and a minority (57 votes of 44%) fell in the “not likely to become endangered” category for the Oregon Coast coho salmon ESU. Id. at 400-01 (Table 92). The BRT Report explained: The majority of BRT members felt that to have a high degree of confidence that the ESU is healthy, high spawner escapements should be maintained for a number of years, and the freshwater habitat should demonstrate the capability of supporting high juvenile production from years of high spawner abundance .... The BRT was concerned that if the long-term decline in productivity reflects deteriorating conditions in freshwater habitat, this ESU could face very serious risks of local extinctions during the next cycle of poor ocean conditions. With the cushion provided by strong returns in the last 2-3 years, the BRT had much less concern about short-term risks associated with abundance. AR 916, Part C at 90; AR 901, p. 400. In short, the majority of the BRT felt that the recent increases in coho returns were most likely attributable to favorable ocean conditions and reduced harvest rates. As noted earlier in the BRT Report, “[i]t is far from certain that favorable marine conditions will continue and, with the current freshwater habitat conditions, the ability of [Oregon Coast] coho to survive another prolonged period of poor marine survival remains in doubt.” AR 901, p. 324. In contrast, a “minority of BRT members felt that the large number of spawners in the last few years demonstrate that this ESU is not currently at significant risk of extinction or likely to become endangered” and, furthermore, “that the recent years of high escapement, following closely on the heels of the years of recruitment failure, demonstrate that populations in this ESU have the resilience to bounce back from years of depressed runs.” Id. at 401. The BRT assessment did not include consideration of hatchery stocks included in ESUs nor an evaluation of the possible effects of protective efforts, which is one of the factors that NMFS must consider when deciding whether to list an ESU as endangered or threatened. 69 Fed. Reg. 33.102, 33,111; 16 USC § 1533(b)(1)(A). As a result, the BRT warned that its findings on the risk of extinction were “not be to be considered recommendations regarding listing” of identified ESUs as threatened or endangered species. 69 Fed. Reg. 33.102, 33,111. B. 2004 Proposal to List Oregon Coast Coho In June 2004, NMFS proposed to list as threatened 27 salmon and steelhead ESUs, including Oregon Coast coho salmon. 69 Fed. Reg. 33,102, 33,102. NMFS adopted the findings of the BRT majority on the risk of extinction faced by the Oregon Coast coho and noted with concern that recent higher returns have varied throughout the ESU range and that some populations in small streams have not rebounded. The proposed listing noted the BRT’s concern that “if the long-term decline in productivity reflects deteriorating conditions in freshwater habitat, this ESU could face very serious risks of local extirpations if ocean conditions reverted back to poor productivity conditions.” Id. at 33,132. As an example, NMFS noted that: Approximately 30 percent of the ESU has suffered habitat fragmentation by culverts and thermal barriers, generating concerns about ESU spatial structure. Additionally, the lack of response to favorable ocean conditions for some populations in smaller streams, and the distinct patterns between north and south coast populations may indicate compromised connectivity among populations. The degradation of many lake habitats, and the resultant impacts on several lake populations in the Oregon Coast coho ESU, also poses risks to ESU diversity. Id. NMFS supplemented the BRT’s findings with its own assessment of the role of hatcheries, and concluded that while providing a slight beneficial effect to ESU abundance, hatcheries have neutral or uncertain effects on ESU productivity, spatial structure, and diversity, and do not substantially reduce the extinction risk of the ESU. Id. at 33,132-133, 33,161. After considering the hatcheries study and the BRT findings, NMFS concluded that Oregon Coast coho ESU “in-total” is likely to become endangered in the foreseeable future. Id.; AR 917 at 30-31 (April 2004). However, NMFS indicated that it would consider Oregon’s forthcoming analysis of the Oregon Plan in ascertaining whether the plan mitigated the extinction risk. 69 Fed. Reg. 33,102, 33,161. III. Decision to Withdraw Proposed Listing A. Oregon’s Draft Assessment In January 2005, the State of Oregon released a draft titled Oregon Coastal Coho Assessment (“Draft Assessment”) which evaluated the current viability of the Oregon Coast coho salmon ESU and the certainty of implementation and effectiveness of the Oregon Plan measures in addressing the factors responsible for the decline of the Oregon Coast coho ESU. See AR 833. The Draft Assessment concluded that: (1) the Oregon Coast coho ESU is “biologically viable, demonstrating sufficient abundance, productivity, distribution and diversity to avoid becoming endangered in the foreseeable future;” (2) the ESU is “supported by sufficient habitat to be sustainable through a future period of adverse ocean, drought and flood conditions similar to or slightly more adverse than the most recent period of poor survival conditions;” (3) “[p]rimary habitat related threats are being addressed through ongoing conservation efforts,” which should “improve water quality and habitat supporting the ESU;” and (4) it is “unlikely that conditions currently supporting viability of the ESU could change so rapidly or dramatically as to preclude future, timely detection and protective action under the Oregon Plan ... or the federal ESA.” Id. at Part 1, 5-6, 50-52. B. Independent Multidisciplinarg Science Team’s Review of Oregon’s Draft Assessment In letters dated December 17, 2004 and February 1, 2005, the State of Oregon requested the Independent Multidisciplinary Science Team (“IMST”), a panel of scientists that provides scientific oversight of the Oregon Plan, to review the Draft Assessment “as it relates to the viability of Oregon Coast coho, the effectiveness of the State’s conservation efforts (occurring primarily under the [Oregon Plan]), and NOAA Fisheries’ final listing determination under the federal Endangered Species Act.” AR 834, Cover Letter at 1. The IMST found that the Draft Assessment had a number of strengths: (1) the criteria used (abundance, distribution, productivity, persistence, and diversity) were scientifically appropriate as consistent with the criteria used by the TRT; (2) the “overall rigor, integration of disciplines and variables, and blending of modeling approaches,” the “clarity of presentation,” “readability of documents”; and (3) the “well-described” risks and uncertainties discussed in one section of the report enhanced the report’s credibility. Id., Cover Letter at 2. The State of Oregon also requested the IMST to recommend how the Draft Assessment could be strengthened. In response, the IMST report identified several areas that could be improved. Among others, it stated: We feel that the report takes an unduly static view of the Oregon coastal landscape, and would be strengthened by inclusion of more future scenarios that integrate the potential consequences of multiple factors that affect fish populations (including ocean conditions, drought, fires, overall watershed conditions brought about by human population increases and land use change, and stream habitat conditions), and assess what would happen if individual trends detrimental to fish converged. We feel the report was overly dismissive of the likelihood that such scenarios might actually occur over the long term. * * * The conclusions of the Viability Assessment depend strongly on assumptions regarding a new “low abundance paradigm.” This perspective on coastal coho salmon has not been thoroughly reviewed or tested. The State should be cautious about making decisions that are based heavily on the new “low abundance paradigm” and should seek additional intensive review. * * * We find circularity in the argument that habitat must be adequate since viability was determined by the assessment to be not at risk. The circular reasoning can be framed as: the ESU is viable; hence the habitat must be adequate. Therefore, the habitat must be adequate because the ESU is viable. This can lead to a false sense of security in determining if the ESU could be de-listed. A more accurate statement could be: the ESU might be viable, in spite of the fact that the habitat is quite marginal. Id. at 33-34 (internal emphasis excluded). C. NMFS’s Review of Oregon’s Draft Assessment On February 9, 2005, NMFS published a notice of availability of Oregon’s Draft Assessment for public review and comment in the Federal Register and noted that information presented in the draft and final assessments would be considered in developing the final listing determination for the Oregon Coast coho ESU. See 70 Fed. Reg. 6,840 (Feb. 9, 2005). On February 28, 2005, Lohn sent the Draft Assessment to the Northwest Fisheries Science Center (the “NWFSC”) and requested that it “analyze and comment on the State’s draft coho viability criteria and ESU status assessment, and habitat-related portions of its draft PECE analyses of Oregon Plan programs.” AR 1636 at 1. On March 15, 2005, the NWFSC sent Lohn two documents entitled: “Review of Oregon’s “Viability Criteria and Status Assessment of Oregon Coastal Coho’ ” (“NWFSC Viability Review”) and “Review of the Oregon Plan and Coastal Coho AssessmenNHabitat” (“NWFSC Habitat Review”). AR 920-02. The NWFSC Viability Review found that Oregon’s Draft Assessment “represents an impressive amount of work on an important topic conducted under short time frames. The analyses reflect a thoughtful consideration of many important factors.” Id. (NWFSC Viability Review) at 3. However, the NWFSC also stated that “the report has some important limitations, and the reviewers had many concerns about the data, methods and conclusions.” Id. The NWFSC Viability Review identified four specific concerns: (1) the Draft Assessment conclusion that “[Oregon Coast] coho salmon will consistently have very high productivity at very low spawn-er numbers” was an “overly optimistic interpretation of the data;” (2) the Draft Assessment should have a higher level of certainty of high productivity (offspring returning to their natal streams) at low abundance; (3) the Draft Assessment model for extinction risk and the analyses used to define the persistence criteria had flaws “serious enough to make the results unreliable” and problems in data measurement error and parameter estimation “tend to bias the model toward an overly optimistic conclusion about risk;” and (4) although the Draft Assessment analysis of population-level diversity focused on population size, it should have also considered any potential information about life history diversity, habitat diversity, and the evolutionary selective impacts of hatcheries and harvest. Id. Similarly, the NWFSC Habitat Review found that the Draft Assessment reflected an impressive effort, but also found that it had several limitations. One of its major concerns was that the synthesis reports on habitat were written in a narrative style, as opposed to a scientific format that cited data, so “there is little on which to assess whether the assertions and conclusions in the reports have a scientific basis.” AR 920-02 (NWFSC Habitat Review) at 2-3. NWFSC noted that the synthesis reports often failed to cite the technical reports developed to support the Oregon Plan, while citations to peer-reviewed scientific literature were almost non-existent. Id. at 2. In addition, staff in NMFS’s Northwest Regional Office reviewed Oregon’s Draft Assessment and created a detailed list of comments. AR 920-01 (“NWR Review”). With respect to Oregon’s low abundance paradigm, the NWR Review stated: Oregon’s viability analysis is based on the hypothesis that coho populations are inherently resilient at low abundance. The NWFSC review posits that the empirical record is too short and the cause- and-effect relationship behind recent escapements is too poorly established to support Oregon’s hypothesis. The chapter should discuss potential sources of bias in their analytical methods that have been described in the literature and explain why the selected analyses are reasonable. In addition, Oregon should address the possibility that future ocean conditions may be worse in intensity and longer in duration than those observed in the 1990s. Id. at 1. The NWR Review questioned the assumption that there is a low risk of catastrophic events further compounding the effects of a return to poor ocean conditions and recommended that “Oregon run its model using ocean conditions worse in intensity and longer in duration than those observed in the 1990s.” Id. at 2. On March 18, 2005, NMFS forwarded to the State of Oregon: (1) the NWFSC’s review documents; (2) the NWR Review; and (3) the 15 public comments received after NMFS published Oregon’s Draft Assessment in the Federal Register. AR 1644, 1644-01, and 1644-02. D. Oregon’s Final Assessment On May 13, 2005, the State of Oregon issued its final Oregon Coastal Coho Assessment (“Final Assessment”). AR 928. The Final Assessment included a summary of, and response to, the comments received on the Draft Assessment, as well as several substantive changes intended to address concerns raised regarding the sufficiency and accuracy of the Draft Assessment. Id. In the words of the NMFS, the Final Assessment concluded that: (1) Oregon Coast coho populations exhibit strong density dependence conferring resilience in periods of low population abundance; (2) there are sufficient high quality habitats within the ESU to sustain productivity during periods of adverse environmental conditions; (3) current harvest regulations and hatchery reforms adequately address past harmful practices; (4) the ESU is resilient in long periods of poor ocean survival conditions; and (5) measures under the Oregon Plan make it unlikely that habitat conditions will be degraded further in the future. 71 Fed. Reg. 3033, 3036 (Jan. 19, 2006) (AR 794). On the basis of these conclusions, the Final Assessment found that the ESU is viable, “with the component populations generally demonstrating sufficient abundance, productivity, distribution, and diversity to be sustained under the current and foreseeable range of future environmental conditions.” Id. at 3035-36. At NMFS’s recommendation (see NWR Review, AR 920-01 at 1), Oregon conducted additional sensitivity analyses on its persistence model to include a scenario in which the marine survival conditions observed in the 1990s persisted for different lengths of time into the future. The Final Assessment stated: Generally, longer duration of adverse ocean conditions did not significantly decrease probability of persistence of coho populations. Modeling for conditions more adverse than were observed in the last 5 decades predicted lower probability of persistence for specific populations, with more populations at risk as several successively more adverse ocean survival rates were modeled.... The new analysis suggests that up to a 15% decrease in life-cycle survival may not affect the conclusion that the ESU meets viability criteria. Thus, Oregon continues to conclude that the ESU will remain viable under similar or slightly more adverse ocean conditions than had been observed during the last 5 decades. AR 928, Part 1 (Synthesis) at 9-10. On May 25, 2005, the NMFS Northwest Regional Office asked the NWFSC whether the Final Assessment addressed the concerns raised in its review of the Draft Assessment. AR 1655-01. In a memorandum dated August 15, 2005, the NWFSC explained the scope of its response: “We are not making any conclusion about the viability of these populations. We are reviewing the analyses presented in the report and evaluating how well the analyses support the conclusions reached in the report.” AR 1661-01 at 1. NWFSC then provided the following overall evaluation of the Final Assessment: Many of our comments on the previous draft of this report have been addressed in the final version, but many have not. In fact, some of our most serious concerns about the potential for overestimation of population resilience remain. Because of these concerns, we continue to question the analytical support for Oregon’s conclusion that the ESU is viable. The ESU may be viable, but it is also possible that it is not viable. The case for viability, based on the presented analyses, is not as strong as suggested in the conclusions of this report. Id. The NWFSC Memorandum acknowledged that the Final Assessment had responded to some of its concerns by running additional scenarios through its population model, but the result was still questionable: The sensitivity analyses conducted on the persistence model included a scenario in which the marine survival conditions observed in the 1990[s] persisted for different lengths of time into the future. The result was that the ESU remained viable even under these conditions where very low marine survival persisted for 24 years. This was a very useful analysis and provides some of the best support for the argument that the ESU is viable. However, as shown by the other sensitivity analyses, uncertainty in the estimates of productivity at low abundance can overwhelm this result. Id. at 4-5. The NWFSC Memorandum continued to express concerns about the uncertainty of the Final Assessment’s “hypothesis, that coho will unfailingly have a high productivity every time the population is pushed to low abundance,” and noted that this is “a question that requires careful statistical consideration.” Id. at 3. E. NMFS’s Supplemental Analysis NMFS held eight public hearings in the Pacific Northwest concerning the June 2004 West Coast salmon and steelhead proposed listing determinations, including the proposed determination for the Oregon Coast coho ESU. 69 Fed. Reg. 53,031 (Aug. 31, 2004); 69 Fed. Reg. 61,348 (Oct. 18, 2004). In response to the requests for information and comments on the June 2004 proposed listing determinations, NMFS received over 28,250 comments by fax, standard mail, and e-mail. 71 Fed. Reg. 3033, 3037. On June 28, 2005, NMFS announced a six-month extension of the final listing determination for the Oregon Coast coho ESU pursuant to 16 USC § 1533(b)(6)(B)(I) to solicit additional data, finding that “there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination ... for the purposes of soliciting additional data.” 70 Fed. Reg. 37,217 (June 28, 2005). NMFS also announced a 30-day public comment period to solicit information regarding the validity of Oregon’s Final Assessment, particularly in light of the concerns raised with respect to the Draft Assessment. Id. On August 22, 2005, Dr. John Stein, Deputy Director of the NWFSC, sent a memorandum to Lohn forwarding a draft report from the TRT on the recovery status of the Oregon Coast coho ESU (the “TRT Report”). AR 923. Based on a preliminary review, this report indicated “with a moderate degree of uncertainty, that the ESU is persistent (persistence is relevant to Endangered status). Our evaluation of biological sustainability (relevant to Threatened status) based on current and recent past conditions shows a high degree of uncertainty with respect to the statement that the ESU is sustainable.” Id. Its preliminary results were subject to change upon further testing and review. Id. Approximately five months later, Donna Darm (“Darm”), Assistant Regional Administrator for Protected Resources, NMFS Northwest Region, sent a memorandum (“Darm Memorandum”) to Lohn which analyzed “whether the Oregon Coast coho salmon ESU is likely to become an endangered species in the foreseeable future because of the present or threatened destruction, modification or curtailment of its habitat or range.” AR 1681 at 1. As to present habitat conditions, Darm stated: “Given the competing reasonable inferences [of the majority of BRT votes and the final Oregon Assessment], we cannot conclude that the ESU is likely to become endangered in the foreseeable [sic] because of the ‘present destruction, modification, or curtailment of its habitat or range.’ ” Id. at 2. Similarly, after comparing the findings of the BRT, Oregon’s Final Assessment, the TRT Report, an August 2005 review by NMFS regional staff, and a table prepared by a regional office biologist, she concluded: “[W]e believe there is insufficient evidence to support a conclusion that the Oregon Coast coho ESU is likely to become an endangered species because of the ‘threatened destruction, modification, or curtailment of its habitat or range.’ ” Id. at 5. F. Withdrawal Decision On January 19, 2006, NMFS published its Withdrawal Decision for the Oregon Coast coho ESU. The Withdrawal Decision explained NMFS’s interpretation of the ESA’s standard for listing a species as threatened under the ESA: “[threatened” is defined as “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We interpret the term “likely” to mean that the best available information must indicate that a species is more likely than not to become an endangered species within the foreseeable future throughout all or a significant portion of its range. 71 Fed. Reg. 3033, 3043. Applying this “more likely than not” standard, the Withdrawal Decision concluded: While acknowledging the uncertainties noted above, particularly regarding the adequacy of current habitat conditions to support ESU viability, we conclude from our review of information regarding factors affecting the species that the Oregon Coast coho ESU is not likely to become endangered in the foreseeable future as a consequence of: the loss or degradation of its habitat or curtailment of its range; overutilization; disease or predation; inadequacy of existing regulatory mechanisms; or other natural or human-made factors. Accordingly, we determine that the Oregon Coast coho ESU does not warrant listing under the ESA at this time and therefore withdraw the proposed listing. Id. at 3047. NMFS listed the other 26 ESUs under the ESA. 70 Fed. Reg. 37,160-01 (June 28, 2005) (AR 950) (16 salmon ESUs); 71 Fed. Reg. 834 (Jan. 5, 2006) (10 steelhead ESUs). FINDINGS Trout Unlimited alleges that the NMFS violated the ESA by withdrawing its proposed listing of the Oregon Coast coho as threatened. According to Trout Unlimited, only two changes occurred in the 18 months between the proposed listing and the Withdrawal Decision that can explain why the NMFS reversed course: (1) adoption of a new legal standard which improperly shifts the burden of proof to the species; (2) issuance of Oregon’s Final Assessment which is predicated on the soundly criticized and fatally flawed “low abundance paradigm” and, therefore, violates the agency’s best available science mandate. After reviewing the reasons for the Withdrawal Decision, this court finds that while the legal standard applied is consistent with the ESA, NMFS did not properly apply that standard and violated the ESA by not relying on the best available science. I. “More Likely Than Not” Standard Trout Unlimited challenges the standard applied by the NMFS to list a species as “threatened” as contrary to the statutory language of “likely to become an endangered species.” In response to Comment 19 in the Withdrawal Decision, NMFS rejected a “precautionary approach” as the appropriate statutory standard and interpreted “the word ‘likely’ to mean that the best available information must indicate that a species is more likely than not to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 71 Fed. Reg. 3033, 3043, 3047. In effect, this listing standard requires a greater than 50% likelihood that a species will become endangered. Trout Unlimited contends that this is a new legal standard which is not entitled to deference under Chevron v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and which cannot be reconciled with other ESA decisions. A. Deference Under Chevron Judicial review of an agency’s interpretation of a statute is governed by the two-part formula announced in Chevron. A court reviewing an administrative interpretation of a statute must first ask “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If the statute is unambiguous, then the court “must give effect to the unambiguously expressed intent of Congress” regardless of the agency’s view. Id. at 843, 104 S.Ct. 2778. However, if the statute is silent or ambiguous with respect to the specific issue, then a court must defer to the agency’s interpretation unless that interpretation is unreasonable. Id. at 843-44, 104 S.Ct. 2778; United States v. Mead Corp., 533 U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). “Levels of deference given to agency statutory interpretations vary with the circumstances, and as the level of deference that a court is required to give increases, so too does the tolerable marginal difference between a court and an agency’s interpretations.” Hawaii ex rel. Atty. Gen. v. Fed. Emergency Mgmt. Agency, 294 F.3d 1152, 1158 (9th Cir.2002). The precise degree of deference warranted depends on the statute and agency action at issue. Mead, 533 U.S. at 227-31, 121 S.Ct. 2164. Factors affecting the level of deference given to an agency’s interpretation include “the degree of the agency’s care, its consistency, formality, and relative expertness, and the persuasiveness of the agency’s position.” Id. at 228, 121 S.Ct. 2164 (citations and footnotes omitted). The ESA defines “threatened” as “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 USC § 1532(20). The first step under Chevron is to determine whether the word “likely” is ambiguous. The word “likely” clearly means something less than 100% certain, but how much less is not as clear. For example, it can mean considerable certainty, a probability, or some other degree of expectation. See Merriam Webster Online (http://www.m-w. com/dictionary/ likely) (“having a high probability of occurring or being true: very probable crain is likely today>”); Cambridge Dictionary of American English (http://dictionary. cambridge.org/define.asp?key=likely*l + 0&dict=A (“expected to happen; probable”); Oxford English Dictionary (http:// dictionary.oed.com/cgi/entry/50133234/ 50133234sel l?query_type=word& querywor d=likely&first=1 &max_to_ show=10&sort_type=alpha&result_ place=2&search-id=lqnn-ESuuBa8212& hilite=50133234sell) (“Probably, in all probability.”) Now chiefly most likely, very likely otherwise rare exc. Sc. dial., or (freq.) N. Amer.). Given this ambiguity, this court must determine what level of deference to give the NMFS’s interpretation. Under the ESA, the NMFS is required to publish guidelines on “criteria for making the findings” and “provide to the public notice of, and opportunity to submit written comments on, any guideline.” 16 USC § 1533(h)(2). However, the NMFS did not announce its “more likely than not” interpretation by issuing a full-dress guideline and adopting it as a policy pursuant to the formal notice-and-comment procedures of 16 USC § 1533(h). See VSP Policy (AR 910), Appendix, p. 33 (noting that neither NMFS nor the USFWS has defined “likely to become” in a policy context); Northwest Ecosystem Alliance v. U.S. Fish & Wildlife, 475 F.3d 1136, 1142 (9th Cir.2007) (giving Chevron deference to a DPS policy that a population be significant to its taxon because it “emerged” through the “robust process” of public notice and comment). Instead, NMFS first announced this standard in the Withdrawal Decision which evolved as a result of litigation and public comments with respect to a particular salmon species. The fact that an agency reaches its interpretation “through means less formal than ‘notice and comment’ rulemaking does not automatically deprive that interpretation of the judicial deference otherwise due.” Barnhart v. Walton, 535 U.S. 212, 221, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002) (citation omitted); also see Davis v. EPA, 348 F.3d 772, 780 n. 5 (9th Cir.2003). On the other hand, deference is denied “to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice” because the “deliberateness of such positions, if not indeed their authoritativeness, is suspect.” Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 741, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996), citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). It is noteworthy that the NMFS did not apply its interpretation of “likely” in the proposed listing for the Oregon Coast coho or in the proposed or final listings of the other 26 salmon species. This standard had not been announced when the BRT conducted its review. The NMFS gave no prior notice and did not subject its interpretation to public comment or scientific scrutiny. Instead, this standard appeared for the first time in the Withdrawal Decision in response to a public comment without any explanation as to how it was reached. See AR 1677R (December 20, 2005 email about the need to discuss the definition of “likely”). Accordingly, this court finds that the NMFS’s interpretation is not entitled to the maximum level of deference under Chevron. Even if NMFS’s interpretation is not entitled to Chevron deference, it is nonetheless entitled to “respect” under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). “[T]he agency’s views still ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’ ” Northwest Ecosystem Alliance, 475 F.3d at 1141, quoting Skidmore, 323 U.S. at 140, 65 S.Ct. 161. B. Appropriate Statutory Standard Trout Unlimited argues that the “more likely than not” (or greater than 50%) standard is contrary to the ESA for two reasons: (1) according to the best available science mandate, the NMFS must give the benefit of the doubt to the species; and (2) the new legal standard is inconsistent with agency policies and the feedback received from peer reviewers. For the reasons that follow, neither argument is persuasive. 1. Giving Beneñt of the Doubt to the Species First, quoting Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989), Trout Unlimited contends that the “best available science” mandate of the ESA requires the NMFS to “give the benefit of the doubt to the species.” However, Conner did not address a listing decision, but instead involved a jeopardy analysis on already listed species under Section 7 of the ESA, 16 USC § 1536(a)(2). Section 7 of the ESA requires each federal agency to ensure that any action taken “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of designated critical habitat. In Conner, an agency issued oil and gas leases without addressing in its biological opinion the impact of post-lease activities on species that had already been listed. The agency contended that it lacked sufficient data on post-leasing oil and gas activities to prepare comprehensive biological opinions. The Ninth Circuit disagreed, holding that the agency improperly ignored extensive information that it already had about the behavior and habitats of the listed species in the areas covered by the leases. The court explained that an agency must use the best available information in accordance with Congress’s intent to “give the benefit of the doubt to the species.” Id. at 1454, quoting H.R. Conf. Rep. No. 96-967, 96th Conf., 1st Sess. 12, reprinted in 1979 USCCAN 2572, 2576. While Conner concerned an agency’s failure to use the best available information in the context of evaluating the impact of activities on already listed species, this case, in contrast, concerns whether, under Section 4 of the ESA, a species should be listed in the first instance. Under Section 4, the default position for all species is that they are not protected under the ESA. A species receives the protections of the ESA only when it is added to the list of threatened species after an affirmative determination that it is “likely to become endangered within the foreseeable future.” Although an agency must still use the best available science to make that determination, Conner cannot be read to require an agency to “give the benefit of the doubt to the species” under Section 4 if the data is uncertain or inconclusive. Such a reading would require listing a species as threatened if there is any possibility of it becoming endangered in the foreseeable future. This would result in all or nearly all species being listed as threatened. Instead, Congress vested the NMFS with discretion to make listing decisions based on consideration of the relevant statutory factors using the best scientific information available. Trout Unlimited contends that in Brower v. Evans, 257 F.3d 1058, 1071 (9th Cir.2001), the Ninth Circuit adopted the “benefit of the doubt” approach to resolving scientific uncertainty about the future of a species. Brower construed the “best available science” standard under the International Dolphin Conservation Program Act, Pub.L. No. 105-42, 111 Stat. 1122 (“IDCPA”), to evaluate a change in the dolphin-safe label standard. In that regard, it looked for guidance to the analogous ESA and cited Conner for the conclusion that the agency “cannot use insufficient evidence as an excuse for failing to comply with the statutory requirement.” Id. at 1071. However, the situation in Brower was similar to Section 7 of the ESA in that the species in question, the dolphin, was already protected under federal law. As explained in a later challenge to the remand decision following Brower, the insufficiency of the data should be resolved in favor of the species because “Congress’s intent was to change the status quo labeling requirement only if the fishery was not impacting the dolphin stocks.” Earth Island Inst. v. Hogarth, 484 F.3d 1123, 1129 (9th Cir.2007). Citing Brower, the court rejected the notion that inconclusive evidence may justify a reduction in existing protections for a species. Here, in contrast, the issue is whether inconclusive evidence may be used to initiate protections for a species. Trout Unlimited also relies on Defenders of Wildlife v. Babbitt, 958 F.Supp. 670, 679-80 (D.D.C.1997) and Center for Biological Diversity v. Lohn, 296 F.Supp.2d 1223, 1236-40 (W.D.Wash.2003), vacated and remanded on other grounds, 483 F.3d 984 (9th Cir.2007), which cited Conner in the Section 4 context for the proposition that Congress intended to “give the benefit of the doubt to the species.” However, they did so without any explanation or analysis of the difference between Section 4 and Section 7 of the ESA. Furthermore, neither of these cases actually applied the “benefit of the doubt” standard. Instead, they held that under the mandate to use the best available science, the agency improperly ignored evidence after concluding it fell “short of absolute scientific certainty.” Northwest Ecosystem Alliance, 475 F.3d at 1147 (citing both cases). Therefore, they are not persuasive authority as to the applicable standard for listing a species under Section 4. 2. Inconsistent With Policies and Input Second, Trout Unlimited argues that the “more likely than not” standard is at odds with the VSP Policy, the NMFS’s prior findings, and the input received from the BRT, NWFSC, TRT, and IMST. For example, it cites the BRT and VSP Policy definition of a viable ESU as having “a negligible risk (over a time scale of 100 years) of going extinct” which the proposed listing adopted. 69 Fed. Reg. 33,-102,33,111; AR910 atxiii. However, a risk of extinction must not be confused with the standard for listing a species as threatened. To be threatened, a species must be “likely to become an endangered species.” A species is “endangered” if it is in “danger of extinction throughout all or a significant portion of its range.” 16 USC § 1532(6). In other words, for a species to be listed as “threatened,” it must “likely” be in “danger of extinction” in the foreseeable future. A “danger of extinction” certainly does not mean a “high rate of extinction.” See Western Watersheds Project v. Foss, 2005 WL 2002473, *17 (D.Id., Aug. 19 2005) (“By using the standard, ‘high rate of extinction’ in the ‘foreseeable future,’ the FWS conflates the terms ‘endangered’ and ‘threatened,’ and creates a higher standard for a ‘threatened’ species than Congress intended.”). Instead, the required danger level for extinction necessarily depends on the applicable scientific viability assessments for the particular species. For example, a scientific viability assessment might conclude that a species is viable if it has a 5% risk of going extinct within 100 years. Under that threshold, a population would need a 95% likelihood of achieving the target population in order to be considered viable and not in “danger of extinction.” The NMFS would then have to determine how likely such a “danger of extinction” will occur. If the NMFS had adopted a standard that a threatened species must be “more likely than not” (at least 50%) at risk of actually becoming extinct in the foreseeable future, then it would have announced a new standard contrary to the statute and its own policies and scientific viability assessments. However, the Withdrawal Decision does not say that. Instead it states that the standard is “more likely than not to become an endangered species within the foreseeable future.” So stated, this standard requires at least a 50% chance of being in “danger of extinction,” as opposed to at least a 50% risk of going extinct. This is consistent with the VSP Memo which endorsed one scientist’s view that “a reasonable interpretation of a ‘likely’ event is one that has at least a 50% chance of occurring.” AR 910 at 33 (citing a 1991 NOAA technical memorandum by G.G. Thompson). Provided that this standard is not superimposed onto the viability assessment, it does not raise the burden of proof for listing a species as threatened. Not giving the benefit of the doubt to the species under Section 4 should not be interpreted as throwing a precautionary approach to the wind. The APA standard explicitly incorporates many statutory constraints, and listing decisions under the EPA must be made solely on the basis of the best available science which requires far less than conclusive evidence. Congress repeatedly explained that it intended to require the FWS to take preventive measure before a species is ‘conclusively’ headed for extinction. The purpose of creating a separate designation for species which are “threatened,” in addition to species which are “endangered,” was to try to “regulate these animals before the danger becomes imminent while long-range action is begun.” The legislative history of the ESA contains ample expressions of Congressional intent that preventive action to protect species be taken sooner rather than later. Defenders of Wildlife, 958 F.Supp. at 680 (emphasis in original; citations omitted). In sum, this court is not persuaded that the NMFS’s interpretation of the statutory standard is wrong. Instead, the critical issue is how it applied that standard in this case. C. Application of Standard Although the Withdrawal Decision announced the “more likely than not” standard, it nowhere explained how this standard altered the NMFS’s findings based on the scientific record. Instead, it appears to be offered to support its conclusion that when faced with competing inferences, resulting in uncertainty, a listing is not warranted. If the best available science truly reveals a 50-50 chance or less that a species will become endangered in the foreseeable future, then a listing as threatened may not be warranted. However, as explained below, that is not the case here. II. Best Available Science Next, Trout Unlimited argues that NMFS violated the “best available science” mandate by withdrawing the proposed listing because: (1) it mainly relied on Oregon’s Final Assessment, which is predicated upon the “low abundance paradigm,” a heavily criticized theory lacking scientific support; and (2) NMFS never disavowed the findings or rationale of the BRT majority position, never reconciled its Withdrawal Decision with the TRT’s findings, and erred by relying on the BRT minority position. Defendants disagree, contending that NMFS did apply the best available science because: (1) Oregon’s Final Assessm