Defenders of Wildlife v. Jewell (176 F. Supp. 3d 975, 2016)

ORDER

Dana L. Christensen, Chief Judge, United States District Court

Before the Court are seven motions for summary judgment filed in these three consolidated cases: one filed by the plaintiffs in CV 14-246-M-DLC and CV 14-247-M-DLC; one filed by the plaintiffs in CV 14-250-M-DLC; two cross-motions filed by the government; and three cross-motions filed by the three groups of defendant-intervenors. The Court heard several hours of thorough and thought-provoking oral argument on February 9, 2016, and the .undersigned greatly, appreciates the quality of both the oral presentations and the briefing in this complicated matter. For the reasons explained below, the Court grants the motions in part and denies them in part; vacates the United States Fish & Wildlife Service’s (the “Service”) August 13, 2014 withdrawal of its proposed rule to list the distinct population segment of the' North American wolverine as threatened under the Endangered Species Act,(“ESA”); and remands this matter to the Service for further consideration consistent with this order.

Background

I. The wolverine

Sometimes referred to as the “mountain devil,” the North American wolverine, Guio guio luscus, is the largest terrestrial member of what is commonly known as the weasel family. (PR-00734.) Resembling a small bear, female wolverines weigh between 17 and 26 pounds, while males' range between 26 and 40 pounds. (Id.) Compact, stout, and uncannily strong, the wolverine has been known to kill prey many times its size, including mature bull moose. Historically, the wolverine has assumed a mythical reputation. At the beginning of Chapter One of The Wolverine Way, author Douglas H. Chadwick cites to the following from Ernest Thompson Seton’s Lives of Games Animals: Vol. II, 1925-1927:

The wolverine is a tremendous character ... a personality of unmeasured force, courage, and achievement so enveloped in a mist of legend, superstition, idolatry, fear, and hatred, that one scarcely knows how to begin or what to accept as fact. Picture a weasel — and most of us can do that, for we have met the little demon of destruction, that small atom of insensate courage, that symbol of slaughter, sleeplessness, and tireless, incredible activity-picture that scrap .of demoniac fury, multiply that mite by some fifty times, and you have the likeness of a wolverine.

Douglas H. Chadwick, The Wolverine Way 15 (Patagonia Books 2010).

The wolverine is custom-built for life in mountainous, snowy environments, and relies upon snow for its existence at the most fundamental level. Physiologically, the wolverine exhibits a number of snow-adapted traits, including a lower threshold of thermoneutrality at -40° C; dense, hydrophobic, frost-resistant hah-; and very low foot loadings, due to its disproportionately large paws. (PI-001258.) Wolverines move effortlessly through deep snow and steep terrain — scientists observed one intrepid radio-collared individual travel eleven kilometers in four hours, gaining over 2,000 feet in elevation to summit an 8,000 foot mountain in Montana’s Glacier National Park. (LIT-000948-50.)

The wolverine displays an “obligate” relationship with snow for natal denning purposes, meaning, quite simply, the wolverine requires snow in order to reproduce. Scientists have posited a number of explanations for this relationship — thermal protection and/or predator shielding for newborn kits, food caching — but, regardless of the' reason, there is consensus that the relationship is obligate at the den scale. (FR-05609.) Female wolverines excavate reproductive dens down into the snowpack, and therefore tend to choose areas where snow persists through the denning season at a minimum depth of. five feet. (PR-00734.) Dens consist of tunnels containing well-used runways and bed sites, and may naturally incorporate shrubs, rocks, and downed logs as part of the den structure. (Id. ) The requirement of cold, snowy conditions means that, in the southern portion of the species’ range, including the United States, where ambient temperatures are warmest, wolverine distribution is restricted to high elevations. (PR-00735.) To say that wolverine den sites tend be off the beaten path is an understatement — in Idaho, natal den sites occur above 8,200 feet, often in north-facing boulder talus fields or subalpine glacial cirques in forest openings; in Montana, natal dens occur above 7,874 feet and are located on north aspects in avalanche debris. (PR-00734.) Throughout its worldwide circumboreal range, the wolverine depends on persistent spring snow cover to reproduce — despite ubiquitous: .alternative denning structure within its distribution, no wolverine has ever been observed denning anywhere but in snow, (PR-00735-36.)

By age three, nearly all female wolver-ihes become pregnant every year, but approximately half of all wolverine pregnancies terminate annually. (PR-00734.) Pregnant females commonly resorb or spontaneously abort litters prior to giving birth, perhaps to preserve resources- to increase reproductive success in subsequent years, or because of low food availability. (Id.) Studies suggest that in many places in the range of wolverines, it may take two years of foraging for a female to store enough energy to successfully reproduce. (Id.) Due to the combination of these factors, it is likely that actual rates of successful reproduction in wolverines are among the lowest known for mammals. (Id.)

While the reclusive nature of the wolverine makes it nearly impossible to know for certain, it is estimated that no more than 300 individuals live in the contiguous United States. (FR-00022.) Wolverines most likely exist in this country as a meta-population: a population composed of a network of semi-isolated subpopulations, each occupying a suitable patch of habitat in a landscape of otherwise unsuitable habitat. (PR-00735.) Metapopulations require some level of regular or intermittent migration and gene flow among subpopula-tions, in which individual subpopulations support one-another by providing genetic and demographic enrichment through mutual exchange of individuals. (Id.) If meta-population dynamics break down, i.e. the influx of individuals and corresponding genetic diversity from other subpopulations is disrupted, either due to changes within subpopulations or loss of connectivity, an entire metapopulation may be jeopardized due to subpopulations becoming unable to persist in the face of inbreeding or demographic and environmental • stochasticity. (Id.) Due to temperature constraints associated with the lower latitudes of its distribution, the wolverine metapopulation in the contiguous United States consists of a network of small subpopulations on mountain tops, some containing less than ten individuals. (Id.) For the metapopulation to persist under these circumstances, individuals must cycle between subpopula-tions. Studies demonstrate that, during dispersal movements, wolverines prefer to move across suitable habitat, as defined by persistent spring snow cover, rather than across unsuitable habitat. (Id.)

Wolverines carve out relatively large home ranges for animals of their size. Females, whose ranges are likely tied to the availability of food, maintain an average home range of 148 square miles in central Idaho, 55 square miles in Glacier national Park, and 128 square miles in the Greater Yellowstone region. (Id.) Males, whose ranges likely depend on breeding opportunities, maintain an average home range of 588 square miles in central Idaho, 193 square miles in Glacier National Park, and 311 square miles in the Greater Yellowstone region. (PR-00735.) Thus, with range area requirements of this size, habitat islands are necessarily able to support only a limited number of wolverines, before range overlap becomes unacceptable. Within areas with known wolverine populations, relatively few wolverines can coexist due to these naturally low population densities, even if all areas were occupied at or near carrying capacity. (PR-00736.)

In sum, as aptly described by Plaintiffs’ counsel during the February 9, 2016 motions hearing, the wolverine is a relic of the northern hemisphere’s last ice age, and it survives in very low numbers in those limited areas in the contiguous United States where ice age-like conditions persist. The wolverines’s sensitivity to climate change, in general, cannot really be questioned. In fact, many believe, similar to the polar bear, that the wolverine may serve as a land-based indicator of global warming. However, as explained in detail in this order, general supposition does not drive a listing determination under the ESA.

II. Listing history of the wolverine under the ESA: 1994-2013

The effort to list the wolverine as a threatened or endangered species began over twenty years ago, and has continued unabated since that time. On August 3, 1994, the Predator Project and Biodiversity Legal Foundation filed a petition with the- Service to list the wolverine in the contiguous United States under the ESA. On April 19, 1995, the Service published a finding that the petition “did not provide substantial information indicating that listing the wolverine in the contiguous United States may be warranted.” (PR-00733.)

In July 2000, the Biodiversity Legal Foundation, Predator Conservation Alliance, Defenders of Wildlife, Northwest Ecosystem Alliance, Friends of the Clear-water, and Superior Wilderness Action Network filed with the Service a second petition to list the wolverine and designate critical habitat for the species. On October 21, 2003, the Service again rejected the petition, finding that the petitioners “failed to present substantial scientific and commercial information indicating that listing may be warranted.” (Id.) Defenders of Wildlife, Friends of the Clearwater, Kla-math-Siskiyou Wildlands Center, and Northwest Ecosystem Alliance then sued the Service, alleging in part that the Service relied on its own internal standard for determining “substantiality,” rather than the standard articulated in the governing regulations. See Defenders of Wildlife v. Kempthorne, CV 05-99-M-DWM, Order at 12-13 (D. Mont. Sept. 29, 2006). This Court subsequently ruled that the Service’s 90-day petition finding was in error and ordered the Service to submit to the Federal Register a 12-month finding for the wolverine by September 29, 2007. By order dated April 19, 2007, the Court extended the deadline for filing the 12-month finding to February 28, 2008.

On March 11, 2008, the Service published a 12-month finding of “not warranted” for the wolverine in the contiguous United States. (PR-00733 (citing 73 Fed. Reg. 12,-929 et seq.).) The Service “determined that the contiguous United States population of the North American wolverine does not constitute a distinct population segment [ (“DPS”) ] under the [ESA] and therefore a listable entity unto itself,” and “that the contiguous United States population of the North American wolverine is not a significant portion of the range of the North American subspecies and does not warrant further consideration under the [ESA]:” 73 Fed. Reg. 12,929, 12,941 (March 11, 2008). Then, on September 30, 2008, Defenders of Wildlife and eight other plaintiffs filed a complaint in this Court seeking to set aside and remand .the 12-month finding to the Service for reconsideration, based in part upon the Service’s failure to “address[ ] the ■ question whether the wolverine population in the lower-48 United States constitutes an endangered or threatened species due to small effective population size.” Defenders of Wildlife v. Kempthorne, CV 08-139-M-DWM, Compl. at 19 (D. Mont. Sept. 30, 2008). The Service then agreed to settle the case -by voluntarily remanding the 12-month finding and issuing a new 12-month finding by December 1, 2010. Following the settlement agreement, the Court dismissed the case on June 15, 2009 and ordered the Service to comply with the parties’ stipulations.

On April 15, 2010, the Service published a Notice of Initiation of a 12-month finding for wolverines in the contiguous United States. (PR-00734 (citing 75 Fed. Reg. 19,-591 et seq.).) The Service published its finding on December 14, 2010, and “determined that the wolverine in the contiguous United States constituted a [DPS] and that the DPS warranted listing under the [ESA], but that listing was precluded by higher priority listing actions.” (Id. (citing 75 Fed. Reg. 78,030).)

On July 12, 2011, the Service reached a settlement with the Center for Biological Diversity, one of the plaintiffs .in In re Endangered Species Act Section 4 Deadline Litigation, 1:10-mc-377-EGS (D. DC), whereby the Service agreed to submit for publication in the Federal Register, no later than the end of the 2013 fiscal year, either a proposed listing rule for the wolverine or a withdrawal of the warranted 12-month finding. Prior to the stipulated publication, on April 13, 2012, Cottonwood Environmental Law Center, Footloose Montana, and Biodiversity Conservation Alliance filed an action before the undersigned challenging the Service’s December 14, 2010 warranted-but-precluded finding for the wolverine. See Cottonwood Envtl. Law Ctr. v. Salazar, CV 12-57-M-DLC (D. Mont.). On September 20, 2012, the Court granted the Service’s motion to, stay the case based on the Service’s representation to the Court that it expected to submit a proposed rule or withdrawal to the Federal Register by January 18, 2013, Thereafter, on • February 8, 2013, the plaintiffs moved to voluntarily dismiss their Complaint following the Service’s publication of a rule proposing to list the wolverine DPS as.a threatened species under the ESA and establishing a non-essential experimental population in Colorado, Wyoming, and New Mexico (the “Proposed Rule”).

The defining analyses and conclusions in the Proposed .Rule related to projected impacts of climate change on wolverine habitat. To that end, the Service relied on two studies — Copeland (2010) and McKel-vey (2011). Copeland (2010) “propose[d] a fundamental geographic distribution for the wolverine based on the hypothesis that the occurrence of wolverines is constrained by their obligate association with persistent spring snow cover for successful reproductive denning and by an upper limit of thermoneutrality.” (LIT-00981.) To develop this distribution, the authors compared and correlated two data layers, configuring the first to, in the end, match the second as closely as possible.

The first layer described spring snow cover. The authors developed this layer by compositing over 12,000 satellite images of the northern hemisphere taken between April 24th and May 15th in each of the years 2000 to 2006. The authors chose this period because it “generally corresponds to the period of wolverine den abandonment. ., and is consistent with the time period used [in an earlier study] to correlate historical occurrence records with spring snow cover.” (LIT-00983.) Each pixel in these images was classified as either snow, bare ground, cloud, or night. If a pixel carried the bare ground spectral signature at any time during the 21-day period in a given year, the authors conservatively excluded the pixel from the snow cover data layer for that year. The authors “then summed all annual snow layers for the [seven]-year period to create a coverage that depicted the number of years out of [seven] that each pixel was classified as snow” for the 21-day period. (Id.) If, as wolverine biological research suggested, the wolverine requires persistent spring snow for denning and reproduction, then a data layer depicting areas that retained snow through the denning period in at least one out-of seven years would, theoretically, depict all potential wolverine den-ning habitat in the northern hemisphere during, those seven years.

The second layer was more straightforward, and served a ground-truthing function. The authors developed this layer by mapping “spatial information for 562 wolverine reproductive den sites representing all verified dens in North America ... and Finland ... and dens from 2000 to 2006 in Norway and from 2003 to 2006 in Sweden.” (LIT-00986.) The purpose of the second layer was to assess the fit between the first layer, which showed potential wolverine denning habitat, and actual historical observations. When the authors compared the model described in the first layer with the observed data described in the second layer, they discovered that 97.9% of the historical den sites occurred within pixels in the first layer which registered as snow covered in at least one out of the seven years. In Scandinavia and North America, the comparison suggested that wolverines statistically preferred areas classified as snow-covered in six out of seven years for siting dens; indeed, in North America, 69% of wolverine dens occurred in such pixels. Importantly, of the twelve observed dens in the northern hemisphere not captured by the snow layer, further investigation revealed that the dens were located in snow, but the pixels where the dens were located did not meet the strict classification requirements described above. Furthermore, nowhere in Copeland (2010) did the authors suggest that wolverines require spring snow coverage until May 15— they simply chose this date because “it roughly corresponded to the end of the peak of the weaning period and the end of reproductive denning.” (PI-001259.)

The Copeland (2010) authors conducted this study in order to develop a picture of wolverine distribution based not in field observation, which is very difficult for this species, but by “using climatic conditions as explanatory variables for reproductive den site selection and year-round habitat use.” (LIT-00992.) The authors concluded that the “strong concordance of wolverine den sites with the spring snow coverage [data layer] clearly reflects an obligatory relationship with snow cover for reproductive dens,” and that “the denning requirements of the wolverine primarily determine the limits of its eircumboreal range.” (Id.) In light of the latter conclusion, the authors stated the following with regard to climate change:

If wolverine distribution in southern regions can be delineated reliably by persistent spring snow cover, climate driven reductions in the size and connectivity of these areas may signal associated range losses for the wolverine. Significant reductions in spring snow cover associated with climatic warming have already occurred in some portions of the wolverine’s range in the contiguous [United States] .... If these trends continue, habitat conditions for the wolverine along the southern extent of its circum-boreal range will likely be diminished through reductions in the size of habitat patches and an associated loss of connectivity, leading to a reduction of occupied habitat in a significant portion of the species range.

(LIT-00992.)

McKelvey (2011), the second cornerstone of the Proposed Rule, picked up where Copeland (2010) left off. Recognizing the Copeland (2010) authors’ conclusion that “persistent spring snow cover provided a good fit to current understandings of the wolverine’s eircumboreal range,” the McKelvey (2011) authors started with the premise that “areas with spring snow cover that supported reproduction ... could also be used to predict year-round habitat use, dispersal pathways, and both historical ,.. and current ranges.” (LIT-02569.) The McKelvey (2011) authors hypothesized that “[i]f ... the extent of persistent spring snow cover has constrained current and historical distributions, then it is reasonable to assume that it will also constrain the wolverine’s future distribution,” and that, “for conservation planning, predicting the future extent and distribution of persistent spring snow cover can help identify likely areas of range loss and persistence, and resulting patterns of connectivity.” (Id.)

The authors sought to make this prediction based on regional snow modeling. First, the authors surveyed the approximately twenty available global climate models (“GCMs”), and, as recommended by the Intergovernmental Panel on Climate Change, chose to ensemble-average ten of the GCMs in order to “more faithfully reproduce existing patterns of climate change.” (Id.) The authors chose the ten GCMs based on their regional historical performance, meaning they included GCMs which accurately modeled past conditions in the study area. The McKelvey (2011) authors then chose an emissions scenario to apply to the ensembled GCMs. While there are over forty such scenarios, the authors identified the four most commonly employed, and ultimately applied a mid-range to conservative scenario. Then, in order to translate the relatively coarse-scale GCM outputs to a scale appropriate for estimating snowpack, the authors downscaled the GCMs to one-sixteenth of a degree of latitude and longitude “using the ‘delta’ method [ ], which assumes that local relationships, such as relative shifts in temperature and precipitation associated with elevation and prevalent weather patterns, remain constant.” (LIT-02570.) The authors then applied a hydrologic model to the GCMs, which “produce [d] variables of hydrological interest including snow water equivalent [ ] and snow depth.” (Id.) Finally, the authors “cross-walk[ed]” the GCM outputs to the scale of the satellite imagery used in Copeland (2010) in order to render their snowpack predictions relevant to the distribution model developed in that earlier study. (LIT-02571.)

The results of the modeling in McKel-vey (2011) were significant, but not surprising. First, the ensembled GCMs predicted that as of 2045, the study area would retain only 67% of its historic spring snow cover. As of 2085, that number was reduced to 37% of historical norms. The authors found that, “[g]iven a warming trend, spring snow cover is expected to decline and snow-covered areas are expected to become more fragmented and isolated,” which could “create many small and isolated [wolverine] populations that would be subject to high levels of demographic and genetic stochasticity.” (LIT-02579-80.) The authors noted several study limitations, including: (1) the “delta” downscaling approach employed in the analysis can lead to underestimates of local changes in climate, meaning that the predicted reductions in spring snowpack are likely conservative-, and (2) “[although wolverine distribution is closely tied to persistent spring snow cover ..., [the authors] do not know how fine-scale changes in snow patterns within wolverine home ranges may affect population persistence.” (LIT-02581.) Ultimately, the McKelvey (2011) authors concluded that they “expect. .. the geographic extent and connectivity of suitable wolverine habitat in western North America [to] decline with continued global warming,” and that if their “scenarios are valid, then conservation efforts should focus on maintaining wolverine populations in the largest remaining areas of contiguous habitat and, to the extent possible, facilitating connectivity among habitat patches.” (LIT-02582.)

Based upon Copeland (2010) and McKel-vey (2011), the latter of which the Service referred to as both the most sophisticated and “best available science for projecting the future impacts of climate change on wolverine habitat” (PR-00744), the Service came to the following conclusions in the Proposed Rule:

The primary threat to the [wolverine] is from habitat and range loss due to climate warming .... Wolverines require habitats with near-arctic conditions wherever they occur. In the contiguous United States, wolverine habitat is restricted to high-elevation areas in the West. Wolverines are dependent on deep persistent snow cover for successful den-ning, and they concentrate their year-round activities in areas that maintain deep snow into spring and cool temperatures throughout summer. Wolverines in the contiguous United States exist as small and semi-isolated subpopulations in a larger metapopulation that requires regular dispersal of wolverines between habitat patches to maintain itself. These dispersers achieve both genetic enrichment and demographic support of recipient populations. Climate changes are predicted to reduce wolverine habitat and range by 31 percent over the next 30 years and 63 percent over the next 75 years, rendering remaining wolverine habitat significantly smaller and more fragmented. [The Service] anticipate^] that, by 2045, maintenance of the contiguous United States wolverine population in the currently occupied area may require human intervention to facilitate genetic exchange and possibly also to facilitate metapopulation dynamics by moving individuals between habitat patches if they are no longer accessed regularly by dispersers, or risk loss of the population.

Other threats are minor in comparison to the driving primary threat of climate change; however, cumulatively, they could become significant when working in concert with climate change if they further suppress an already stressed population. These secondary threats include harvest (including incidental harvest) ... and demographic stochasticity and loss of genetic diversity due to small effective population sizes .... All of these factors affect wolverines across their current range in the contiguous United States.

(PR-00754.) The Service further found that the wolverine DPS “presently meets the definition of a threatened species due to the likelihood’ of habitat loss caused by climate change resulting in population decline leading to breakdown of metapopulation dynamics,” and, accordingly, proposed listing the wolverine as threatened under the ESA. (Id.) Interestingly, no doubt sensing the potential for backlash, the Service included the following language in the Proposed Rule:

A determination to list the contiguous United States DPS of the North American wolverine as a. threatened species under the [ESA], if [the Service] ultimately determine^] that listing is warranted, will not regulate greenhouse gas emissions. Rather, it -will reflect a determination that the DPS meets the definition of a threatened species under the Act, thereby establishing certain protections for them under the ESA. While [the Service] acknowledge^] that listing will not have a direct impact on the loss of deep, persistent, late spring snowpack or the reduction of greenhouse gases, [the Service] expect[s] that it will indirectly enhance national and international cooperation and coordination of conservation efforts, enhance research programs, and encourage the development of mitigation measures that could help slow habitat loss and population declines.

(PR-00755.)

III. Listing history following the Proposed Rule: February 2013 — July 2014

Within weeks of publishing the Proposed Rule, the Service and its partners had drafted both a wolverine recovery plan and, in light of the Service’s proposal to establish an experimental non-essential wolverine population in Colorado (see PR-00758 (citing 78 Fed. Reg. 7890 et seq,)), a translocation plan. Service staff at the local level communicated with regional level staff as to whether conferencing was required for government projects proposed within potential wolverine critical habitat. Indeed, the critical habitat designation process had begun by April 2013. In short, at this time, the Service was preparing a final rule to list the wolverine.

Predictably, the Service received a flood of comments in the months after it published the Proposed Rule. As of May 16, 2013, one week after the comment period closed, the Service had received 118,000 submissions from affected states, non-governmental organizations, and interested individuals. (FR-05986.) Of particular note were comments submitted by states in the western United States, and comments submitted by the seven wolverine experts from whom the Service specifically elicited remarks.

The State of Colorado, through its Parks & Wildlife Department, commented on the Proposed Rule on April 29, 2013. Colorado did not comment on the propriety of listing the wolverine, but was supportive of establishing a nonessential population within its borders, so long as the process for doing so remained flexible. (PI-012080.)

The State of Utah submitted comments through the Office of the Governor’s Public Lands Policy Coordination Office on May 2, 2013. Utah decried the Service’s use of “unvalidated climate models” that “are neither rigorous nor sufficiently scaled at a fine-scale level for evaluation of the threats necessary to support [a listing] decision” (PI-011987), and asserted that “[t]he global models employed and proposed as the ‘best available science’ are not precise enough to constitute a predictor of any actual threat to populations and metapopu-lations of wolverines at the landscape level.” (PI-011988.)

The State of Alaska, through its Department of Fish & Game, commented on May 6, 2013, Similar to Utah, Alaska opposed the Proposed Rule because it “appears to follow the rationale used to list the polar bear and various species of ice seals: it is based on untested or unverified models that speculate on a species’ possible future fate, rather than focusing on current population health and trends and immediate threats.” (PI-003333.) Alaska further contended that “[t]he projected threats to the designated wolverine DPS are not immediate or severe, although they are potentially broad in scope,” and that “because the population impacts these models predict are highly uncertain, it is not necessary to immediately list this species.” (Id.)

The Idaho Office of Species Conservation, on behalf of the State of Idaho, also submitted comments on May 6, 2013, Idaho asserted that the Service’s DPS analysis was flawed, and that ESA protections are unnecessary nevertheless:

First, the wolverine does not qualify as a DPS because the population is not discrete, and loss of the subspecies in the contiguous United States would not represent a significant gap in relation to its entire range, which includes areas within the contiguous United States, Canada-, and Alaska. The population and habitat area in the lower 48 states represent a small fraction of the entire range; meaning that, for ESA purposes, the wolverine is insignificant when compared to the entire North American subspecies.

In addition, and perhaps more importantly, the ESA does not provide the wolverine with any ■ additional substantive protection that cannot be provided by the states, and listing based solely on climate change does not allow the Service to develop a meaningful recovery plan for the species. The State of Idaho is well equipped to monitor and manage the species without federal protection, especially considering the fact that the ESA cannot halt climate change.

(PI-003176.)

The State of New Mexico, through its Department of Game & Fish, also submitted comments on the Proposed Rule on May 6, 2013. New Mexico did not take a position on listing the wolverine as threatened, but simply noted that “the proposal ... is not applicable to New Mexico ... due to the current absence of wolverine in the state and the lack of data indicating that the species was formerly a resident.” (PI-003135.) New Mexico did state its belief that, in the event of reintroduction of wolverine to Colorado and given the availability of suitable habitat in New Mexico, any wolverine located within its borders in the future would be considered part of the non-essential experimental population. (Id.)

The Nevada Department of Wildlife submitted comments on behalf of the State of Nevada on May 6, 2013 as well. Nevada first noted that .the wolverine is a legally protected species within the state, and then articulated the following issues with the-Proposed Rule: (1) neither. Copeland (2010) nor McKelvey (2011) are sufficiently rehable studies to base the listing decision upon, (2) certain scientific studies suggest that the climate may simply be in a historically-recurring period of drought, similar instances of which the wolverine has survived -as a species in the past, and (3) “using a climate model to predict possible future scenarios rather than current scientific data regarding wolverine population demographics for the decision-making processes could be potentially damaging to the future credibility of the [ESA].” (PI-003122.)

The State of Oregon, through its Department of Fish & Wildlife, also submitted comments on May, 6, 2013. Oregon found the proposed listing to be “very questionable,” because “the wolverine population has increased dramatically and mortality from regulated trapping has been very low, and because “the foundation on which the snow cover models are built do[es] not seem to be based on accurate ecological information, including whether persistent spring snow cover is actually obligatory for wolverine reproduction, and if so, the dates used to assess potential effects of climate change.” (PI-003119.) In essence, and similar to Nevada, Oregon challenged the Service’s reliance on Copeland (2010) and McKelvey (2011).

The State of Washington provided comments on the Proposed. Rule on May 6, 2013 as well, through its Department of Fish & Wildlife. Washington first acknowledged its status as home to a documented resident wolverine population in the North Cascades, and cited information provided to it'by the Service’s North Cascades Wolverine Project. (PI-003097.) Washington did not- oppose the listing conclusion in the Proposed Rule, but offered the following constructive comment related to the depth of analysis in a future final rule:

Because climate change is the primary driver of the proposal to list the DPS, a more robust discussion regarding the uncertainty of the climate projections, and more importantly, how those predictions may impact the metapopulation dynamics, is warranted. Specifically, the Service should provide information that shows how reduced snow pack will directly impact the metapopulation by affecting genetic viability. As stated in the notice, the DPS consists of a network of small subpopulations that require movement across suitable and unsuitable habitat. While the timing of snow pack as it relates to denning may impact success of those den sites, overall genetic exchange may be reduced but could remain sufficient. If other factors resulting from loss of den sites play a strong role in the listing decision, they should be more fully explored. In addition, the Service should provide more information on how the threat of climate change is evaluated for the “foreseeable future” in regards to how wolverine meets the definition of “threatened.”

(PI-003098-99.)

The State of Wyoming, through Governor Matthew Mead, submitted comments on the Proposed Rule on May 6, 2013. Wyoming opposed the conclusions in the Proposed Rule, primarily on the grounds that: (1) western states adequately manage and conserve the wolverine throúgh existing regulatory schemes, (2) there is no evidence suggesting that the wolverine is incapable of adapting to changes in snow-pack, to the extent those changes are even likely, and (3) “[a] listing attributed to climate change is particularly troubling because there is no immediacy, seemingly no connection, and few, if any, conservation measures would ameliorate climate change in a manner that could lead to delisting.” (PI-002978.)

Finally, on May 7, 2013, Montand Fish, Wildlife & Parks (“FWP”) submitted lengthy comments on behalf of the State of Montana. Summarizing the state’s twenty-three-page submission, FWP Director Jeff Hagener stated the following:

Based on our review of the status and distribution of wolverine, and the science used by the [Service] as justification for designation of a DPS and .the proposed threatened status, [FWP] asserts that wolverine do not meet the criteria as a separate DPS, and are not warranted for federal listings under the E S A .... [W]olverines have been expanding for the past ■ 50 years, concurrent with changing climate conditions comparable to what is predicted in the next 50 years. The science cited by the [Service] as the best available science is a hypothesis rather than a true representation of the best available science as required by the ESA. Interpretation and application of a broader review of the available science indicates that there is ■ no imminent threat to wolverines in North America, and they do not meet the criteria for listing under the ESA.

(PI-002925 (emphasis in original).) Montana further stated that the Service’s “claim that climate change poses an imminent threat to wolverine populations relies too heavily on a single hypothesis generated and pushed forward by a single research group that may be motivated to have wolverines listed,” because “listing may provide new funding sources to continue their wolverine research efforts.” (PI-002936.)

At approximately the same time — within the first two weeks of May 2013 — the Service received solicited comments from seven peer reviewers. In its letter requesting peer review, the Service asked peer reviewers to answer the following five questions: (1) is the Service’s description and analysis of the biology, habitat, population trends, and historic and current distribution of the wolverine accurate; (2) does the Proposed Rule provide accurate and adequate review and analysis of the factors affecting the species; (3) are there any significant oversights, omissions or inconsistencies in the Proposed Rule; (4) are the conclusions the Service reached logical and supported by the evidence it provided; and (5) did the Service include all the necessary and pertinent literature to support its assumptions, arguments, and conclusions. (PI-002624.)

Five of the seven peer reviewers' supported the Service’s work on the Proposed Rule, generally answering “yes” to the first two questions above, “no” to the third question, and “yes” to the final two questions. (See PI-000484, 000544, 001244, 001278, 001292.) Two of the peer reviewers — Dr. Audrey Magoun (“Magoun”), a Wildlife Biologist and consultant with Wildlife Research & Management, and Dr. Robert Inman (“Inman”), a Biologist-and Director of the Greater Yellowstone Wolverine Program at the Hornocker Institute/Wildlife Conservation Society — took issue with the Service’s reliance on Copeland (2010) and McKelvey (2011), echoing a comment expressed by several states. Magoun and Inman disagreed with the Copeland (2010) authors’ decision to map wolverine denning habitat based on areas which maintained snow cover through May 15th, arguing that data do not suggest wolverines require snow that late into the spring for denning purposes. (PI-000747-750, 000968.) Based on their disagreement with Copeland (2010), Magoun and Inman questioned the validity of McKelvey (2011), as the latter was allegedly “based on a flawed assumption regarding the significance of snow through 15 May for wolverines, and. ... [therefore] vastly over-predicts habitat loss as it relates to the obligate denning hypothesis that the analysis is founded upon.” (PI-000751.)

The comments received by the Service— particularly those criticizing the Proposed Rule — sparked debate within the agency. During their May 16, 2013 monthly update, Service staff involved in the wolverine listing discussed the volume and nature of the comments received, including Magoun’s and Inman’s “[djirect challenges to the climate change models used in the [Proposed [R]ule.” (FR-05986.) On May 24, 2013, Region 6 Chief of Endangered Species Bridget Fahey (“Fahey”) informed Region 6 Assistant .Regional Director of Ecological Services Michael Thabault (“Thabault”) that Gary Frazer, Assistant Director for Endangered Species at the Service’s Washington, D.C. office and one level down from Service Director Dan Ashe, “want[ed] to circle back on whether [listing] was really warranted,” because “[i]f the modeling is such that [the Service] can’t really predict [the location of critical habitat] in the future then maybe it’s not good enough to say the [species] warrants listing.” (FR-05971.)

In their June 2013 monthly update, Service staff discussed' a proposal by the State of Montana, in consultation with other “affected” western states, regarding whether “the Service would consider a conservation strategy for [w]olverines to avoid listing,” (FR-05911.) The states’ proposed conservation strategy would “address the two principle threats — [c]limate [cjhange and trapping,” and would focus on reintroduction of wolverines with the hope of “establishing] at least three additional sustaining populations in areas that will support them,” again to avoid listing. (Id.) Staff agreed to “let the State [of Montana] know that [the Service] would consider a conservation strategy in the listing rule, if it can be finished in time.” (Id.) However, at this time, listing the, wolverine as threatened appeared to be the likely outcome.

The following month,, in advance of the Western Association of Fish & Wildlife Agencies (“WAFWA”) summer .meeting, staff from the Service’s Region 1 office prepared for a discussion of the Proposed Rule and wolverine listing with an official from the Idaho Department of Fish & Game. That official expressed concerns over the Service’s “use of models and projections in ESA determinations,” as well as “the broader issue of [the] ESA and climate change,” and whether the Service “will eventually list everything . due to changes in climate.” (FR-05897.)

At the WAFWA meeting, Region 6 Director Noreen Walsh (“Walsh”)' met with an official from Montana FWP to discuss the conservation strategy; the Montana official later summarized the meeting in an email as follows:

I wanted to follow up on our discussion at WAFWA about a rangewide conservation agreément developed by the state fish and wildlife agencies for wolverine. Before committing a lot of resources towards development of a rangewide conservation agreement, we wanted to be sure of the expectations from the [the Service] in light of what the states can ■deliver. My understanding from that discussion is that the [Service] expects any such agreement to include a commitment for “facilitated range expansion” in addition to range-wide adaptive management monitoring. States are willing to pursue development of a rangewide monitoring process, and have committed to an interstate meeting in Salt Lake to work on that.- Since our conversation [at WAFWA], I visited with colleagues from Cal. Dept, of Fish and Wildlife, Oregon Dept, of Fish and Wildlife, and Colorado Parks and Wildlife about. potential for translocation. Colorado continues to say no for the reasons we discussed. Oregon similarly wasn’t willing to make such a commitment because of uncertainty about potential habitat in light of possible climate change and potential regulatory concerns if wolverines are subsequently listed. California had the same concerns about putting a lot of effort into translocation of wolverines into habitat that may not be suitable in the future, as well as concerns about cost and who would pay. They did say they would be willing to include a commitment to evaluate the possibility of tran-slocation, but can’t commit to more beyond that.

So with that said, and based on the discussion at WAFWA, I want to confirm that in the eyes of the FWS, that would be inadequate to meet the FWS purposes. If that is the case, please confirm so we can decide whether to continue with rangewide efforts.

(FR-05890.) During the August 2013 monthly update, Service staff reported that a “[s]tate lead conservation strategy is no longer being considered due to [a] lack of commitment from .[Colorado] and [California].” (FR-05887.)

By February 2014, having completed a second round of public comment, the Service decided to convene a science panel to “[g]ain a better understanding of the level of agreement among scientists regarding” the science behind the Proposed Rulé, as well as any “sources of uncertainty.” (FR-05866.) The Service did “[n]ot expect[] consensus, but hop[ed] to improve confidence in [its] decision.” (Id.) Nonetheless, “[withdrawal of the proposed listing remain[ed] a potential outcome” following the science panel. (Id.)

The Service held the two-day Wolverine Science Panel Workshop (the “Panel”) in Spokane, Washington beginning on April 3, 2014. The Panel consisted of nine “experts in climate change, wolverines and other mammalian carnivores, habitat modelers, and population ecologists.” (FR-14014.). The Service facilitated the event “through a structured agenda with exercises and discussions to investigate whether and how climate change might affect wolverines in the [United States].” (Id.) The event consisted of three topical areas: (1) defining climate-related wolverine habitat, (2) trends in snow and wolverine habitat, and (3) wolverine population trends. (FR-14028.) After presentations on each of the topics, Panel members were asked a series of multiple choice questions, and then asked to assign 100 points between the answer choices. The format allowed Panel members to. tailor their answers as expressions of confidence — a Panel member’s assignment of 100 points to an answer choice signaling complete.- agreement, while a spread of points between choices signaling uncertainty. -

Panel members were first asked about the correlation between persistent deep snow and three scales of wolverine habitat. Panel meiftbers allocated a very strong majority of the available points toward the “obligate” answer choice when asked about the correlation between persistent deep snow and the denning scale. (FR-14020-21.) Uncertainty increased when asked about the correlation at the home-range and range-wide scales, but based on the point allocations, the Panel was in near full agreement that the wolverine displays an obligate relationship to deep persistent snow at the denning scale.

Panel members were next asked “to register a score to indicate whether their current information would lead them to believe that the snow cover projections in McKelvey [] (2011) might be about right or lean toward over- or under-estimates.” (FR-14022.) “The results indicated a peak in [Panel members’] belief that McKelvey [] (2011) was ‘about right’ in the short term,” ,'i.e. through the year 2045. (FR-14023.) However, “[t]he peak was less pronounced in the long term,” i.e. the year 2085, “as support shifted toward the overestimate category,” meaning Panel members believed that the McKelvey (201Í) study actually “underestimated the severity of snow loss” in the long term. (Id.)

Panel members were than asked.to “assess[] how well the McKelvey [] (2011) spring snow cover projections represent wolverine habitat by registering scores to indicate whether the ... projections were likely to be just right or an over- or underestimate of wolverine habitat.” (FR-14023.) Panel members’ point allocations showed stronger support for the McKelvey (2011) projections being “just right” than either an over- or under-estimate, and furthermore showed “no indication” that the study suffered from “systematic error resulting in a one-sided bias.” (Id.)

Finally, Panel members were asked to comment on wolverine population trends, in terms of “optimism or pessimism about wolverine persistence in the [United States].” (FR-14024.) Panel members “expressed cautious optimism for wolverines in the short term, and qualified their optimism with uncertainty about whether wolverines are still expanding into their former range, and whether wolverines had any plasticity to adjust to changing habitats.” (Id.) Notably, “[although [the Service] did not ask for consensus, nine out of nine [Panel members] expressed pessimism for the long-term (roughly end-of-century) future of wolverines in the contiguous [United States] because of the effects of climate change on habitat.” (Id.)

Two weeks after the Panel, Service regional directors and “decision makers” scheduled a briefing session, and Service staff working on the wolverine listing awaited “an indication of [the] direction to go with the final rule.” (FR-05823.) Following the briefing session, top officials from Service Regions 1, 6, and 8 requested formal answers from Service staff regarding: (1) how the concept of “foreseeable future” had been handled with the wolverine; (2) the temporal connection between predicted reductions in snowpack and the wolverine’s biological response to those reductions; and (B) the use of modeling in past listing decisions. (FR-05820.) Furthermore, on April 28,' 2014, Walsh requested that Tha-bault “prepare a synopsis of the basis for [the Ecological Services division’s] recommendation of threatened status for the ... wolverine.” (FR-05605.)

On May 14, 2014, Thabault emailed Walsh and Assistant Region 6 Director Matt Hogan a memo responsive to Walsh’s request. In the memo, Thabault reviewed the Service’s DPS analysis, its five-factor ESA analysis, see 16 U.S.C. § 1533(a)(1), the results of the 2013 peer review, and the results from the Panel one month earlier. Ultimately, based on his summary and review, Thabault concluded that relying on the findings in Copeland (2010) and McKelvey (2011) “as the best available scientific information regarding the effects of climate change on wolverine habitat remains scientifically justified,” and that finalizing a listing determination for the wolverine was appropriate. (FR-05614.) Thabault also stated the following with regard to the notion of uncertainty:

In our review we have been unable to obtain or evaluate any other peer reviewed literature or other bodies of evidence that would lead us to a different conclusion. While we recognize there is uncertainty associated with when population effects may manifest themselves, any conclusion that there will not be population effects appears to be based on opinion and speculation. In our opinion that would not represent the best available scientific or commercial data available.

(Id.) In the two days following Thabault’s memo, Walsh also received comment memos from Region 8 Director Ren Lohoefener (“Lohoefener”) and Acting Region 1 Director Richard Hannan (“Hannan”). Both expressed reservations over listing the wolverine based upon the predicted effects of climate change. Lohoefener, citing the apparent wide range in results among various precipitation-based climate models and uncertainty with respect to wolverine population statistics, concluded that the wolverine is not “in danger of extinction in the next 20 to 50 years because of climate change effects on’ snowpack and loss of denning habitat.” (FR-05581.) He opined that “[t]he situation [the Service] face[s] with the wolverine — whether a species is likely to become endangered in the foreseeable future because of climate change effects — will become a common source of petitioned actions and threaten the Service’s resources to address priority issues.” (Id.) Hannan’s comments tracked Lohoe-nefer’s — after noting that “there remain critical information gaps that limit [the Service’s] ability to draw conclusions on the impacts of climate change to wolverines and their habitat,” he concluded that the Service lacks “clear understanding of the essential life history requirements of wolverines, the nature of the relationship between various climate variables and those life history requirements, and the expression of climate change and its projected effects on wolverine populations and viability.” (FR-05567.)

By May 21, 2014, one week after receiving Thabault’s memo and several days after receiving comments from Regions 1 and 8, Walsh had drafted a lengthy response to Thabault, In it she questioned McKelvey (2011) for the following reasons: (1) “[t]he potential that climate model predictions that far into the future may be uncertain;” (2) “[P]anel biologists generally expressed a strong opinion that the relationship between wolverines and deep snow was an obligate relationship at the den site, they expressed much less certainty or unanimity that the relationship was obligate at larger spatial scales;” and (3) “[t]he potential that available habitat has been underestimated [by] only [including] those areas that retain snow until May 15[,] and therefore future loss overestimated.” (FR-05542.) Walsh also concluded that, even if McKelvey (2011) correctly predicts the future snowpack loss, it is uncertain whether that loss will translate to decreased denning opportunities and, ultimately, decreased wolverine numbers. Interestingly, Walsh concluded the May 21st draft by stating that despite “the priority [she] place[s] on communication and coordination with state wildlife agencies,” and the fact that “state agencies are [the Service’s] primary partners in conservation, the determination [she came] to ... about the wolverine’s status under the [ESA] [was hers] alone, and [had] not been influenced in any way by a state representative.” (FR-05543.)

On May 22,2014, Walsh received a short memo and attached report from Stephen Torbit, Assistant Region 6 Director, Science Applications (“Torbit”). Walsh had previously posed the following two questions to the Science Applications division, which Torbit answered in the memo: (1) “[w]hat is [the division’s] perspective of the temperature vs. precipitation projections for wolverine habitat, especially with regard to the model projections of the reduced deep spring snow apparently needed for successful wolverine denning;” and (2) “[w]hat is [the division’s] perspective of the rigor of the correlative relationship between persistent spring snow cover and wolverine denning observations.” (FR-05452.) As to the first question, Torbit stated that “the modelling [sic] efforts that support the listing recommendation aré not at a sufficiently reduced scale to clearly articulate the impact to existing or potential wolverine habitat, based on persistent snow-cover.” (FR-05453.) On ■ this point, he attached a report to the memo prepared by the University of Colorado-Boulder for the Colorado Water Conservation Board (the “Colorado study”), in which the authors present modeling results showing that high elevation snowpack in Colorado is expected to remain at 70-90% of historic norms- through the end of the twenty-first century. (FR-5457 et seq.) As to the second question, he stated that because the wolverine’s need for deep snow in the denning context is not completely understood, the lack of deep snow/ lack of den sites/lack of recruitment/decreased population correlative chain is logically weak. (FR-05454.) Torbit concluded that strengthening this chain would strengthen the listing rationale, and thus he called for further study of the mechanisms behind the wolverine’s need for deep, persistent snowpack. (FR-05455.)

On May 30, 2014, Walsh produced a final version of her May 21st memo, incorporating Torbit’s comments, the results presented in the Colorado study mentioned above, comments from Regions 1 and 8, and many of the arguments contained in comment memos received from the western states. In it, she concluded that the Service should not list the wolverine as threatened, for three reasons. First, Walsh cited information that “populations are continuing to expand both within the area currently inhabited by wolverines as well as suitable habitat not currently occupied and/or occupied with a few individuals.” (FR-05371.) In support of this conclusion, Walsh pointed to the discovery of loan male wolverines in Colorado and California, “dispersers” in Wyoming, and a 2013 estimated available habitat capacity in the United States of 644 wolverines. (Id.) Second, Walsh stated that though there “is strong support for the existence of an obligate relationship between wolverines and deep spring snow at the den site[,] support for the obligate relationship ... at an individual wolverine’s home range or the species range in general is lacking.” (Id.) On this point, Walsh opined that the Service “can only reliably predict a ..decline in wolverine habitat [commensurate with a decline in snowpack] if we believe that wolverine have an obligate relationship with snow for all life stages.” (FR-05369.) Third, Walsh asserted that, while she generally agreed with the notion that climate change would likely affect the wolverine at some point in the future, as of May 2014 the Service did “not have the sufficient resolution of-predictive climate models nor certainty in those models to make definitive conclusions about both the amount and persistence of snowfall at the scale of specific wolverine den sites.” (FR-05372.) She acknowledged that McKelvey (2011) was “the most sophisticated analysis of the impacts of climate change at a scale specific to wolverine,” but ultimately concluded that “the scale is not fine enough to deal with the site specific characteristics of wolverine dens.” (Id. (emphasis added).) As she did in the May 21st draft, Walsh emphasized that the conclusions she outlined in the final memo were hers alone and had “not been influenced in any way by a state representative.” (FR-05373.) She ended the memo by directing Service staff to prepare a withdrawal of the Proposed Rule.

With an August 2014 decision deadline looming, Service staff began working on a withdrawal, but appeared to struggle with the 180 degree change of course. On June 6, 2014, Shawn Sartorious (“Sartorious”) with the Service’s Montana Ecological Service Office — who appears to have been more intimately involved in the listing effort than anyone else at the agency — commented on Walsh’s memo and directions. As to the Colorado study which Torbit provided to Walsh, Sartorious indicated that he had not reviewed it with Service staff, and that regardless of the study’s conclusions with respect’ to snowpack depth, the likelihood of a shorter snow season due to warming temperatures was more alarming in terms of effects on the wolverine. (FR-05031.) As to the notion that the Service must know the mechanisms behind the wolverine’s need for deep snow before listing, Sartorious, with a hint of sarcasm, stated that apparently “[t]he fact that essentially all wolverine-scientists agree that snow is essential, but posit different mechanisms for the relationship, casts doubt on the snow relationship.” (Id.) He further noted that “[i]t is unlikely that we will ever have conclusive evidence for a mechanism in this case due to the difficulties of experimentally manipulating wolverine populations.” (Id.)

By July 2014, Service staff began circulating a draft withdrawal of the Proposed Rule, yet some level of discord remained in resolving the justifications for withdrawing the Proposed Rule with the contents of the Proposed Rule itself. On July 7, 2014, a Service biologist commented that, because much of the language in the draft withdrawal appeared to have been transferred from the Proposed Rule, the draft contained “no hint” that the Service ultimately questioned the climate models it had relied on in the Proposed Rule. (FR-03282.) She suggested “inserting] new information upfront about the uncertainties [the Service] now [has] and questions that have been raised” because, “as written, [the Service] then appear[s] to do an about-face when [in] the threats analysis later” in the document. (Id.) On July 10th, Fahey, Region 6 Chief of Endangered Species, commented on two shortcomings she recognized in the draft withdrawal. First, she. stated that staff “needfed] to do more to connect the dots that [the Service has] no information on species response to changes in habitat by loss of snow at the larger scales, rather than simply saying [wolverines] might still have enough den sites,” because the den-scale' effect has more to do with den success than the availability of enough deep snow for denning. (FR-02000.) Second, Fa-hey urged staff to strengthen the criticism of Copeland (2010) and McKelvey (2011)— rather than attacking the May 15th show persistence date in