262 F.3d 13 (1st Cir.

2001)

STATE OF MAINE, ET AL., Plaintiffs, Appellees,

v.
DIRECTOR, UNITED STATES FISH AND WILDLIFE
SERVICE, ET AL., Defendants,
DEFENDERS OF WILDLIFE, ET AL., Movants, Appellants.
No. 01-1770

United States Court of Appeals For the First Circuit

Heard August 3, 2001
Decided August 24, 2001
Amended September 28, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Howard M. Crystal with whom Eric R. Glitzenstein and Meyer and
Glitzenstein were on brief for appellants.
Catherine R. Connors with whom Peter W. Culley and Pierce Atwood
were on brief for appellees.
Before Boudin, Chief Judge, Gibson, Senior Circuit Judge,* and Lynch,
Circuit Judge.
LYNCH, Circuit Judge.

In November, 2000 the National Marine Fisheries Service and the U.S. Fish
and Wildlife Service (collectively, "the Services") issued a final decision
designating Atlantic Salmon in an area comprised of seven Maine rivers to be
an endangered species under the Endangered Species Act. 16 U.S.C. 15311544 (1994 & Supp. IV 1998). Several weeks later, the State of Maine and
business group plaintiffs sued to have the decision set aside. The United States
appeared to defend the Services. Several conservation groups, Defenders of
Wildlife, Biodiversity Foundation, Conservation Action Project, Forest Ecology

Network, and Coastal Waters Project (collectively, "Defenders"), sought to

intervene, also attempting to defend the designation of the Atlantic Salmon as
an endangered species. Defenders' chief argument was that the Services had
recently been their adversaries in earlier litigation, which Defenders had
brought to force the Services to protect the salmon, and this meant the United
States did not and could not adequately represent the conservation groups'
interests. No party opposed the intervention.
2

The district court nonetheless denied the intervention, but did say it would
allow Defenders to participate in the litigation on an amicus-plus status. Maine
v. Norton, No. CIV 00-250-B-C, 2001 WL 360991, at *7 (D. Me. Apr. 11,
2001). As amicus-plus, Defenders have the right to submit briefs (including
arguments not presented by the government), a limited right to call and crossexamine witnesses, and a right to receive notice and service of all documents
and events as if they were parties in the case. Defenders appealed from the
denial of intervention. The plaintiff business interests appeared to defend the
district court's order as within its discretion. The State of Maine has not taken a
position on the appeal.

With a caveat, we affirm the order as within the trial court's discretion. In doing
so, we decline to adopt a per se rule, urged by Defenders, that the "inadequacy
of representation" test of Fed. R. Civ. P. 24(a)(2) is automatically met where
the litigation challenges governmental action which the government defends
and the proposed intervenor had earlier sued the government trying to bring
about a similar action. Rather, the "inadequacy" test must be looked at in
context of the facts of the specific case. That context leads to the caveat:
should, in the course of this litigation, the trial court conclude that the
government appears not to represent adequately the interest of Defenders, then
it should reconsider afresh, on application, the matter of intervention.
I.

Legend has it that salmon were once so plentiful in the great rivers of Maine
that workers along the Kennebec River negotiated as a term of employment
that they would not be fed salmon for breakfast, lunch, and dinner. W.H.
Bunting, A Day's Work (2000). In the year 2000, by contrast, very few wild
adult salmon returned to the seven Maine Rivers at issue in this case (the
Dennys, East Machias, Machias, Pleasant, Narraguagus, Ducktrap, and
Sheepscot Rivers). Me. Atl. Salmon Comm'n, 2000 Trap Catch Statistics, at
http://www.state.me.us/asa/2000catchstats.html (last modified Nov. 3, 2000).
This is significant because the Atlantic Salmon spawns in freshwater rivers.
Young salmon live in those rivers for one to three years before they undergo

changes which enable them to live in saltwater. The salmon then migrate to the
Atlantic Ocean. In reproducing, they return to the streams where they were
born, where the female salmon delivers the eggs.
5

Concerned about the decline in salmon population, in 1993 one of the

conservation groups petitioned the Services to list the salmon as an
"endangered" species under the Endangered Species Act ("ESA"). See 16
U.S.C. 1540(g)(2)(C) (requiring written notice); 65 Fed. Reg. 69,459 at
69,462 (2000) (providing a history of previous federal action concerning the
salmon).

"Endangered species" is a legal term of art that signifies "any species which is
in danger of extinction throughout all or a significant portion of its range." 16
U.S.C. 1532(6). It is contrasted with "threatened species," which signifies
"any species which is likely to become an endangered species within the
foreseeable future." Id. 1532(20). The ESA requires the Secretary of the
Interior to "determine whether any species is an endangered species or a
threatened species because of any of the following 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." Id. 1533(a)(1). The Secretary must classify species as endangered
or threatened "solely on the basis of the best scientific and commercial data
available to him after conducting a review of the status of the species and after
taking into account those efforts, if any, being made by any State . . . to protect
such species." Id. 1533(b)(1)(A).

The purpose of such classification is to conserve the endangered or threatened

species. See id. 1531(b). But there are differences between the two
classifications. While the ESA requires the Secretary to issue regulations to
provide for the conservation of threatened species, id. 1533(d), it also
prohibits the import, export, or taking of endangered species, id. 1538(a)(1).
When making either the "threatened" or "endangered" determination, the
Secretary must take state efforts to protect the species into account. Id.
1533(b)(1)(A). If the Secretary enters into a cooperative agreement with a state
to protect a threatened species, regulations to protect that species, with the
exception of regulations prohibiting the taking of that species, apply only to the
extent that the state has adopted them. Id. 1533(d).

This legislative framework sets the stage for the regulatory history, which is
essential to understanding Defenders' argument.

II.
9

In 1994, in response to the 1993 petition to list the Atlantic Salmon under the
ESA, the Services published a notice in the Federal Register indicating that
such a listing was potentially warranted. 59 Fed. Reg. 3067 (1994). In 1995, the
Services concluded that the requested listing was not warranted because the
salmon as they had been described in the earlier petition did not meet the ESA's
definition of a species. 60 Fed. Reg. 14,410 (1995).1 In this same notice, the
Services concluded that the Atlantic Salmon in seven Maine rivers did meet the
ESA's criteria for a species because they were found to be evolutionarily
significant and reproductively isolated from other populations belonging to the
same species. Id. at 14,411-12.

10

In 1995, the Services published a proposed rule listing the Gulf of Maine
Distinct Population Segment ("DPS") of the Atlantic Salmon as threatened
under the ESA. 60 Fed. Reg. 50,530 (1995). But in 1997, the Services withdrew
the proposed rule because of scientific data bearing on the health of the DPS
and ongoing and planned actions to protect the Atlantic Salmon, including
federal conservation efforts and the State of Maine's development of the
"Atlantic Salmon Conservation Plan for Seven Maine Rivers." 62 Fed. Reg.
66,325 at 66,332-37 (1997).

11

Maine's Conservation Plan addresses both ongoing and proposed actions to

reduce threats to the Atlantic Salmon. Id. at 66,335. "The stated intent of the
Conservation Plan is to minimize human impacts on the Atlantic salmon and
restore the species . . . ." Id. The Maine Plan identifies five categories of threats
to the salmon: agriculture, aquaculture, forestry, recreational fishing, and other
natural and human related threats. Id. at 66,335-37. For each category of threat,
the Plan describes ongoing and planned future actions to protect the salmon. Id.

12

When deciding whether to classify a species as threatened or endangered under

the ESA, the Secretary must consider the status of the species after accounting
for any state efforts to protect the species. 16 U.S.C. 1533(b)(1)(A). After
doing so, the Services in 1997 concluded that ongoing actions had
"substantially reduced threats to the species" and that the DPS was "not likely
to become endangered in the foreseeable future" and so listing was "not
warranted" at the time. 62 Fed. Reg. 66,325 at 66,337.

13

In 1999, the proposed intervenors filed suit in the U.S. District Court for the
District of Columbia, challenging the Services' 1997 withdrawal of the
proposed rule. While the D.C. litigation was underway, the Services in

November 1999 proposed a new rule that listed the Gulf of Maine Salmon as
endangered, 64 Fed. Reg. 62,627 (1999), not merely threatened. Once a
proposed listing rule is promulgated, the Services ordinarily have one year to
make a final decision. 16 U.S.C. 1533(b)(6)(A)(i).
14

On June 14, 2000, the parties in the D.C. litigation entered into a courtendorsed stipulation agreeing to stay that litigation pending the Services'
decision to promulgate or withdraw the proposed endangered species rule by
November 17, 2000. In entering the stipulation, the Services were modifying
their unilateral ability to extend the review process by six months, see 16
U.S.C. 1533(b)(6)(B). The stipulation did provide that a party could ask the
court to modify the terms of the agreement. Eventually, the D.C. litigation
concluded and judgment entered. The Services complied with the stipulation by
deciding within the stipulated time frame of one year.

15

The Services issued a final rule listing the Gulf of Maine Atlantic Salmon as an
endangered species. 65 Fed. Reg. 69,459 (2000) (to be codified at 50 C.F.R.
pts. 17 and 224). In their justification for listing the Atlantic Salmon as
endangered, the Services considered, among other factors, the low number of
returning adult salmon, 65 Fed. Reg. 69,459 at 69,461, 69,479, the escalating
threat of disease, id. at 69,476-77, and threats to the salmon from existing
aquaculture practices, id. at 69,477-79.

16

The State of Maine, the Maine State Chamber of Commerce, and various
Maine businesses and business associations challenged the regulation. They
alleged, pursuant to the Administrative Procedure Act, that the Services'
designation of the Maine Atlantic Salmon as endangered was arbitrary and
capricious and should therefore be set aside. See 5 U.S.C. 706(2)(A) (1994).
Their complaint included allegations that the Services (1) failed to base their
listing decision on the best available data; (2) ignored Maine's Plan to protect
and restore the salmon; (3) unlawfully agreed to restrict their own ability to
extend the statutory deadline for regulating; and (4) acted inconsistently with
their prior decision not to list the salmon as threatened or endangered.
III.

17

We start with Defenders' challenge to the district court's denial of their motion
for intervention of right. Intervention of right, in the absence of a federal statute
granting intervention, is governed by Fed. R. Civ. P. 24(a)(2), which states:

18

Upon timely application anyone shall be permitted to intervene in an action: . . .

(2) when the applicant claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that the
disposition of the action may as a practical matter impair or impede the
applicant's ability to protect that interest, unless the applicant's interest is
adequately represented by existing parties.
19

This suit largely turns2 on the clause "unless the applicant's interest is
adequately represented by existing parties."

20

The appellate standard of review in this Circuit is that "[w]e will reverse the
denial of a motion to intervene as of right 'if the court fails to apply the general
standard provided by the text of Rule 24(a)(2), or if the court reaches a decision
that so fails to comport with the standard as to indicate an abuse of discretion.'"
Public Serv. Co. of N.H. v. Patch, 136 F.3d 197, 204 (1st Cir. 1998) (quoting
International Paper Co. v. Town of Jay, 887 F.2d 338, 344 (1st Cir. 1989)). As
we have said, "'abuse of discretion' . . . may be a misleading phrase. Decisions
on abstract issues of law are always reviewed de novo; and the extent of
deference on 'law application' issues tends to vary with the circumstances."
Cotter v. Mass. Ass'n of Minority Law Enforcement Officers, 219 F.3d 31, 34
(1st Cir. 2000), cert. denied, 531 U.S. 1072 (2001). "Despite its nomenclature,
intervention 'as of right' usually turns on judgment calls and fact assessments
that a reviewing court is unlikely to disturb except for clear mistakes. . . . [I]n
practice, the district court enjoys a reasonable measure of latitude . . . ."
Daggett v. Comm'n on Governmental Ethics and Election Practices, 172 F.3d
104, 113 (1st Cir. 1999).3

21

Some burden of showing inadequacy is placed on the proposed intervenor. See

id. at 111 (not deciding whether burden is one of production or persuasion).
The general alignment of interest of the Services and Defenders in upholding
the designation is self-evident. This case is not an instance of the government
having to make a regulatory choice which may be adverse to the proposed
intervenors; the government has made the choice to designate the species as
endangered, and the result is what the proposed intervenors wanted. There is no
inadequacy immediately apparent in such a situation.

22

Defenders make two arguments as to intervention of right, only one of which

has any substance. The primary argument is that the Services, formerly
Defenders' antagonists, cannot be trusted to defend fully the endangered
species designation because they will not make an argument which Defenders
would make. The argument the Services are unlikely to make is that the
Services should have protected the Atlantic Salmon earlier, that they were
wrong when they failed to do so, particularly in deferring to Maine's State Plan

in 1997, and that the 2000 designation corrected an earlier mistake. Indeed, the
issue on which Defenders focus is in the case as a result of plaintiffs' pleadings.
Plaintiffs' complaints claim that the change in the government's position
between 1997 and 2000 is evidence of the arbitrariness of the Services' 2000
designation. More specifically, Defenders say that the argument they would
make is different in kind from the other arguments because it is an argument
under step one of Chevron that as a matter of law, the Services could not in
1997 have deferred to the Maine Conservation Plan. See Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). That is
because, in their view, that Plan was not an "existing" regulatory mechanism
under 16 U.S.C. 1533(a)(1)(D).
23

The Services, having not opposed intervention below, have not appeared in this
appeal, but we assume that they are not likely to confess any error as to the
1997 withdrawal of the "threatened" species designation. Rather, they will
likely say that the sum of information available to them justified the 2000
designation.

24

Defenders argue that the Supreme Court has said that applicants for
intervention need only make a "minimal" showing that representation "may be"
inadequate. Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972).
From this Defenders make a stab at an argument that the district court made an
error of law, reviewed de novo, by holding them to the test of demonstrating
that the Services "will fail to adequately protect their claimed interest." Norton,
2001 WL 360991 at *6. "Will fail," they say, is a harsher standard than "may
be inadequate." This argument, which relies on a single phrase plucked out of a
lengthy opinion, is not a fair reading of what the district court did. The court
applied Trbovich and this Circuit's law and there is no serious argument that the
court misapprehended the legal standard in its careful analysis. In addition, this
case is meaningfully different from Trbovich. In Trbovich, the Court's doubts
about the adequacy of the government's representation stemmed from the Labor
Secretary's statutory duty to represent the "two distinct interests" of the
individual union members and the general public. 404 U.S. at 538-39. Here
there is no statutorily imposed conflict and the Services' interests are closely
aligned with Defenders' interests.

25

This case presents a recurring situation: a group with recognized interests

wishes to intervene and defend an action of the government which the
government is itself defending. Trbovich is such a case, as are several of our
decisions in the area. E.g., Cotter, 219 F.3d 31 (minority police officers and
Massachusetts Association of Minority Law Enforcement Officers sought to
intervene to defend police department's promotion of minority officers); Mass.

Food Ass'n v. Mass. Alcoholic Beverages Control Comm'n, 197 F.3d 560 (1st
Cir. 1999) (trade associations sought to intervene to defend Massachusetts
liquor regulation), cert. denied, 529 U.S. 1105 (2000); Daggett, 172 F.3d 104
(parties intending to run for office sought to intervene to defend Maine Clean
Election Act); Patch, 136 F.3d 197 (industry and consumer groups sought to
intervene to defend New Hampshire electric utility restructuring plan); United
Nuclear Corp. v. Cannon, 696 F.2d 141 (1st Cir. 1982) (Conservation Law
Foundation sought to intervene to defend Rhode Island nuclear power
regulation).
26

Generally, our decisions have proceeded on the assumption, subject to evidence

to the contrary, that the government will adequately defend its actions, at least
where its interests appear to be aligned with those of the proposed intervenor.
E.g., Mass. Food Ass'n, 197 F.3d at 567. Indeed, our cases use the language of
"presumption." E.g., id. at 566-67; Daggett, 172 F.3d at 111. Although the bar
is raised higher for proposed intervenors in this situation, there is danger in a
mechanistic application of such language. "Presumption" means no more in this
context than calling for an adequate explanation as to why what is assumed -here, adequate representation -- is not so. See Fed. R. Evid. 301; 2 McCormick
on Evidence 344 at 445-46 (John W. Strong et al. eds., 5th ed. 1999). The
facts of these cases vary greatly and whether the proposed intervenors'
explanation of inadequacy suffices must be determined "in keeping with a
commonsense view of the overall litigation." Patch, 136 F.3d at 204.

27

Here, Defenders have offered an explanation and the question is whether the
district court abused its discretion in concluding that the explanation did not
presently suffice. As the case is now configured, we cannot find abuse of
discretion. At bottom Defenders show one argument which they wish to present
and (we assume) the government does not. The district court has said, through
its grant of amicus-plus status, that it will hear the arguments Defenders wish to
present. At oral argument before our Court, the plaintiff business interests have
said they will not object to Defenders presenting arguments on the basis that
they are not intervenors (and will respond to the arguments on the merits). And
our cases have said that a difference in tactics as to presenting a legal argument
does not necessarily an inadequacy make. E.g., Daggett, 172 F.3d at 112.

28

The argument Defenders wish to advance may be thought of as a supplement to

the defendants' main argument in the case. The main argument, under the APA,
concerns whether the 2000 designation is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A).
Whether the Services should have earlier so designated the salmon may be a
building block in an argument, but is hardly a necessary one to the defense.

Defenders' additional argument is better thought of as a rejoinder to plaintiffs'

argument that the Services' different result in 2000 than in 1997 is evidence that
the 2000 decision was arbitrary. There are several obvious, more direct
arguments for the government to make in response in which the Services and
Defenders have a common interest, and which do not depend on the alternate
argument.
29

Defenders seek to wrap themselves in decisions of this Court reversing district

court decisions denying intervention. See Cotter, 219 F.3d 31; Conservation
Law Found. v. Mosbacher, 966 F.2d 39 (1st Cir. 1992). But in each of those
cases the intervenors had direct private interests (in Cotter, 219 F.3d at 34-37,
the jobs and promotions available to black police officers and in Conservation
Law Foundation, 966 F.2d at 44, commercial fishing interests) which the
government had and could have no interest in protecting. Further, in
Conservation Law Foundation, the government did not answer or defend the
case but simply agreed to a consent decree that imposed additional burdens on
and was unacceptable to intervenors. Id. Those situations are a far cry from this
case, which involves no dissimilar interests, but only a tactical disagreement. It
is difficult to analyze "inadequacy" without looking at the strength of the
interests the would-be intervenors present and the tests of inadequacy may vary
with the strength of the interests. Daggett, 172 F.3d at 111, 113-14. These
proposed intervenors, like those in Daggett, are more in the middle of the range
as to strength of interests, and, as in Daggett, an appellate court is hard pressed
to reverse a district court's decision, either way it goes.

30

Given plaintiffs' emphasis on the Services' supposed "change" of position, we

might view this case differently if the argument Defenders wish to present
depended on introduction of evidence that the Services would refuse to
present.4 But review of federal agency administrative actions is usually
confined to the record before the agency. See SEC v. Chenery Corp., 318 U.S.
80, 87-88 (1943). No one has suggested that the record of agency action will
not permit the argument to be made that Defenders wish to pursue. And there is
no suggestion the case requires presentation of evidence only available through
Defenders' participation as intervenors.

31

This leaves the argument that because of the prior litigation, we should
question the government's zeal in adequately defending the designation. The
Ninth and the Tenth Circuits have considered this, among other factors, in
finding inadequacy in such circumstances. Idaho Farm Bureau Fed'n v. Babbitt,
58 F.3d 1392, 1398 (9th Cir. 1995); Coalition of Ariz./N.M. Counties for
Stable Econ. Growth v. Dep't of the Interior, 100 F.3d 837, 845-46 (10th Cir.
1996). Our view is that the former adversary relationship between the

government and proposed intervenors may raise questions about adequacy, but
does not alone answer the questions. An earlier adverse relationship with the
government does not automatically make for a present adverse relationship.
32

Here, the Services did not designate the Atlantic Salmon as endangered under
litigation compulsion to reach that result, but rather of their own accord.
Further, the Services' endangered species designation goes beyond what
Defenders sought in the earlier litigation. After all, Defenders' suit challenged
the 1997 withdrawal of the designation of the Atlantic Salmon as "threatened,"
a designation which provides less protection. The articulated reasoning
supporting the Services' 2000 designation cites to new studies and information
not available at the time of the earlier litigation. This fact distinguishes the
subject matter of this litigation from the earlier case. The prior litigation was
not marked by the sort of conduct from the government that would evidence
bad faith. Cf. Coalition of Arizona, 100 F.3d at 845-46 (intransigence of
government in prior litigation resolved only after contempt citation); Mausolf,
85 F.3d at 1303-04 (reversing denial of intervention where inadequacy not
based on "nebulous and paranoid 'distrust of government,'" but on a "welldocumented history" of government failure to enforce regulations; government
inevitably has to choose among competing interests and interests may be
adverse to those of proposed intervenor); In re Sierra Club, 945 F.2d 776, 780
(4th Cir. 1991) (reversing denial of intervention where interests of government
and intervenors diverge at a number of significant points, including remedy). In
another case involving different facts, a prior adversary relationship might
suffice. Here it does not and there was no abuse of discretion.

33

The second argument5 made by Defenders is that they must be allowed to

intervene to protect what they won in their litigation against the government in
the District of Columbia. The main purpose of the argument seems to be to
reinforce the antagonism point discussed above. On its own terms the argument
is without merit. As the district judge correctly and succinctly concluded, all
that Defenders won was a stipulation that the Services would decide what to do
on listing the Atlantic Salmon by a particular date. That bargain was kept, the
decision was made, and there is no risk to that completed bargain in this
litigation.6

34

As to permissive intervention, appellate review is even more restrictive.

Daggett, 172 F.3d at 113. The district court denied intervention because it felt
intervention would delay and complicate matters. This was a judgment call for
the court. It applied the appropriate standards and we cannot say it was wrong.

35

This litigation is at its early stages. Should it appear to the district court from

some event that the government may not be adequately representing the
interest, advanced by Defenders, that the Atlantic Salmon remain listed as an
endangered species, the court should revisit the matter of intervention. See
Mass. Food Ass'n, 197 F.3d at 568 ("[I]f the [government] refused to appeal
from a defeat, a would-be intervenor could then seek to intervene."); cf.
Coalition of Ariz., 100 F.3d at 844-45 (intervention allowed after government
had refused to take procedural steps which would have helped its case).
36

Affirmed. No costs are awarded.

Notes:
*

Of the Eighth Circuit, sitting by designation.

The 1993 petition requested the Services to list the naturally spawning
anadromous Atlantic Salmon throughout its known historic range in the United
States. The Services "determined that available biological evidence" did not
support such a listing. 60 Fed. Reg. at 14,412.

The district court assumed that Defenders' asserted interest satisfied Rule 24(a)
(2)'s "interest relating to the property or transaction which is the subject of the
action" requirement, and held that the disposition of the case may impede
Defenders' ability to protect that interest. The business interests' protests need
not be addressed. Our decision focuses on the "inadequacy" point.

Other circuits, but not this one, apparently review denovo most issues of denial
to intervene. E.g., Mausolf v. Babbitt, 85 F.3d 1295, 1302 (8th Cir. 1996)
(reviewing de novo); Coalition of Ariz./N.M. Counties for Stable Econ. Growth
v. Dep't of the Interior, 100 F.3d 837, 840 (10th Cir. 1996) (reviewing de novo
save for timeliness issue); Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392,
1397 (9th Cir. 1995) (same); but see In re Sierra Club, 945 F.2d 776, 779 (4th
Cir. 1991) (abuse of discretion review).

Plaintiff business interests informed the district court they wish to discover and
introduce evidence outside of the record. The United States has taken the
position review is restricted to the record. We take no position on the matter.

In a footnote, Defenders argue that the change of administration also makes the
Services' representation inadequate. The district court correctly noted that
Defenders have not presented "any evidence" on inadequacy resulting from the
new administration. Norton, 2001 WL 360991 at *6.

Plaintiff business interests also claim that the stipulation as to timing forced
USFWS into a precipitous and ill-considered decision. There appears to be a
perfect alignment of interests between USFWS and Defenders in denying this.