Center for Biological Diversity v. United States Fish and Wildlife Service

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2025 Decided August 1, 2025
No. 23-5285
CENTER FOR BIOLOGICAL DIVERSITY,
APPELLANT
v.
UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-00791)
Kristine M. Akland argued the cause for appellant. With
her on the briefs was Eric R. Glitzenstein.
Nirva Patel was on the brief for amici curiae Scientific
Experts in support of appellant.
Christopher Anderson, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the briefs
were Todd Kim, Assistant Attorney General at the time the
brief was filed, and Kevin W. McArdle, Attorney.

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Before: SRINIVASAN, Chief Judge, MILLETT and PAN,
Circuit Judges.
Opinion for the court filed by Circuit Judge MILLETT.
Opinion concurring in part and dissenting in part filed by
Circuit Judge PAN.
MILLETT, Circuit Judge: The American Burying Beetle is
the largest carrion beetle in North America. In 1989, the Fish
and Wildlife Service listed the Beetle as an endangered species.
Since then, the Service has continued to study and evaluate the
Beetle’s status. In 2015, prompted by a petition from private
entities, the Service began a reevaluation of the Beetle that
resulted in the rules at issue in this case. After completing a
Species Status Assessment Report, the Service determined that
the Beetle’s current range is larger than thought when the
Beetle was listed as endangered, and that there are currently
several large, resilient Beetle populations in different locations
across the United States. In light of that new information, the
Service concluded the Beetle faces relatively low near-term
risk of extinction. At the same time, the Service explained that
future land-use changes and climate change are likely to impact
the resiliency of most populations and the overall viability of
the species in the coming decades. The Service therefore
determined that the Beetle is likely to become an endangered
species in the foreseeable future. Accordingly, in 2020, the
Service promulgated a Downlisting Rule, changing the
Beetle’s status from “endangered” to “threatened,” as well as a
Section 4(d) Rule establishing protections for the conservation
of the Beetle based on that downlisting.
The Center for Biological Diversity challenges both the
Service’s downlisting of the Beetle from endangered status and
the sufficiency of the protections put in place for the Beetle as

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a threatened species. Given the timeframe of the Service’s
decision, the Downlisting Rule does not violate the Endangered
Species Act, is supported by the administrative record, and was
reasonably explained. As for the challenges to the Section 4(d)
Rule, the Center failed to establish standing. We accordingly
affirm the district court’s judgment.
I
A
The Endangered Species Act of 1973, 16 U.S.C. § 1531 et
seq., is “the most comprehensive legislation for the
preservation of endangered species ever enacted by any
nation.” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180
(1978). It covers all “member[s] of the animal kingdom,
including * * * arthropod[s],” a category that includes insects.
16 U.S.C. § 1532(8), (16). The Act requires the Secretaries of
Interior and Commerce “to promulgate regulations listing those
species of animals that are ‘threatened’ or ‘endangered’ under
specified criteria, and to designate their ‘critical habitat.’”
Bennett v. Spear, 520 U.S. 154, 157–158 (1997) (citing 16
U.S.C. § 1533). As relevant here, the Secretary of the Interior
has delegated this authority to the Fish and Wildlife Service.
See 50 C.F.R. § 402.01(b); see also id. § 17.11.
The Act defines an “endangered” species as one that “is in
danger of extinction throughout all or a significant portion of
its range[.]” 16 U.S.C. § 1532(6). A “threatened” species, by
comparison, is one that “is likely to become an endangered
species within the foreseeable future throughout all or a
significant portion of its range.” Id. § 1532(20).
The Act, however, does not define the term ‘‘foreseeable
future.” In 2019, the Service set forth a framework for

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evaluating the foreseeability of extinction on a case-by-case
basis. See 50 C.F.R. § 424.11(d); Endangered and Threatened
Wildlife and Plants Regulations for Listing Species and
Designating Critical Habitat, 84 Fed. Reg. 45,020, 45,020–
45,021 (Aug. 27, 2019). Although this regulation was not in
place when the Downlisting Rule was first proposed, the
Service explained that the regulation codified its long-standing
approach. Endangered and Threatened Wildlife and Plants;
Reclassification of the American Burying Beetle from
Endangered to Threatened with a Section 4(d) Rule, 85 Fed.
Reg. 65,241, 65,243–65,244 (Oct. 15, 2020).
Under the regulation, “[t]he foreseeable future extends as
far into the future as the Service[] can make reasonably reliable
predictions about the threats to the species and the species’
responses to those threats.” 50 C.F.R. § 424.11(d). The
Service “will describe the foreseeable future on a case-by-case
basis, using the best available data and taking into account
considerations such as the species’ life-history characteristics,
threat-projection timeframes, and environmental variability.”
Id. The Service “need not identify the foreseeable future in
terms of a specific period of time.” Id.
The Center does not challenge the regulation or dispute
that its test captures the foreseeability inquiry applied at the
time the Beetle rules issued.
The decision to designate a species as endangered or
threatened carries important consequences. When a species is
listed as endangered, a suite of statutory protections
automatically attaches. Among other things, the Act makes it
unlawful to possess, sell, deliver, receive, import, export, or
take the species within the United States or its territorial waters.
16 U.S.C. § 1538(a)(1). To “take” an endangered species is “to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or

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collect” the species. Id. § 1532(19). This includes a
prohibition on incidental take. See Babbitt v. Sweet Home
Chapter of Communities for a Great Oregon, 515 U.S. 687,
697–703 (1995).
By contrast, the Act does not automatically impose
specific protections for threatened species. Instead, Section
4(d) of the Act, 16 U.S.C. § 1533(d), provides that the Service
“shall issue such regulations as [it] deems necessary and
advisable to provide for the conservation” of each threatened
species. 16 U.S.C. § 1533(d). In fashioning appropriate
protections for the species, the Service can pick from among
and tailor the statutory protections afforded endangered
species. Id.
The Act empowers the Service, on its own initiative or on
petition from an “interested person,” to list a species as
endangered or threatened. The Service “determine[s] whether
[the] species is an endangered species or a threatened species”
based on the following factors: “(A) the present or threatened
destruction, modification, or curtailment of [the species’]
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 U.S.C. § 1533(a)(1), (b)(1)(A),
(b)(3)(A). The Service then makes a listing determination “on
the basis of the best scientific and commercial data available to
[it] after conducting a review of the status of the species and
after taking into account” efforts by local, state, and foreign
governments to protect the species. Id. § 1533(b)(1)(A).
Once a species has been listed, the Service reviews that
designation every five years and determines whether the
species should be uplisted from threatened to endangered,

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downlisted from endangered to threatened, or removed from
the list altogether. 16 U.S.C. § 1533(c)(2)(A)–(B).
B
Historically, the American Burying Beetle could be found
in thirty-five states and along the southern borders of three
Canadian provinces. But between the early 1900s and the
1970s, the Beetle lost 90% of its range. The Service first listed
the Beetle as an endangered species in 1989. See Endangered
and Threatened Wildlife and Plants; Determination of
Endangered Status for the American Burying Beetle, 54 Fed.
Reg. 29,652 (July 13, 1989). At the time, there were only two
known Beetle populations, which were in Oklahoma and Block
Island, Rhode Island.
In 2008, the Service undertook a review of the Beetle’s
status pursuant to 16 U.S.C. § 1533(c)(2). See American
Burying Beetle (Nicrophorus americanus) 5-Year Review:
Summary and Evaluation, U.S. Fish and Wildlife Service
(March 2008). At that time, the Service determined the Beetle
remained endangered.
Since the Beetle’s initial listing, additional population
surveys have revealed Beetle populations inhabiting portions
of Arkansas, Kansas, Oklahoma, Nebraska, South Dakota, and
Rhode Island. Reintroduced populations have also taken root
in Nantucket Island, Massachusetts and in Missouri.
In 2015, private entities submitted a petition asking the
Service to delist the Beetle, pursuant to 16 U.S.C.
§ 1533(b)(3)(A). In response to that petition, the Service
reviewed the Beetle’s status. In doing so, the Service used its
Species Status Assessment Framework, which sets forth a
methodology that informs all of the Service’s decisions under

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the Endangered Species Act. See Species Status Assessment
Framework, U.S. Fish & Wildlife Service (Aug. 2016),
https://perma.cc/FUM4-43MJ.
As set out in the Species Status Assessment Framework,
the Service applied the conservation biology principles of
“resiliency,” “redundancy,” and “representation” in evaluating
the current and future condition of the Beetle. 85 Fed. Reg. at
65,244; Species Status Assessment Framework at 4.
“Resiliency” measures the species’ ability to withstand
ordinary environmental and demographic variations, like warm
or cold years and wet or dry years. 85 Fed. Reg. at 65,244. The
primary indicators of resiliency are geographic distribution and
the relative abundance of available habitat within localized
areas. J.A. 313. “Redundancy,” in turn, measures the species’
ability to withstand catastrophic events, like a drought or
hurricane. 85 Fed. Reg. at 65,244. The number of populations
and their geographic dispersion can affect a species’
redundancy. J.A. 313. Lastly, “representation” measures the
species’ ability to adapt over time to long-term changes in the
environment, like climate change or urbanization. 85 Fed. Reg.
at 65,244. Representation depends on the species’ genetic and
ecological diversity. J.A. 313. Therefore, “the more resilient
and redundant a species is and the more representation it has,
the more likely it is to sustain populations over time, even
under changing environmental conditions.” 85 Fed. Reg. at
65,244.
The Service then issued a Species Status Assessment
Report (“Species Report”), which is a peer-reviewed scientific
report that “represents a compilation of the best scientific and
commercial data available concerning the status of the species,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting the species.” 85 Fed. Reg. at
65,242.

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The Species Report grouped the known Beetle populations
into three regions: (i) the “Northern Plains” in Nebraska and
South Dakota, (ii) the “Southern Plains” in Texas, Oklahoma,
Kansas, and Arkansas, and (iii) the “New England” region,
which comprises populations in Nantucket, Massachusetts and
Block Island, Rhode Island. 85 Fed. Reg. at 65,245. The
Northern Plains and Southern Plains regions are each further
divided into three “analysis areas.” In the Northern Plains,
those are the Loess Canyons, Sand Hills, and Niobrara River
analysis areas. Id. In the Southern Plains, they are the Red
River, Arkansas River, and Flint Hills analysis areas. Id. The
New England region is a single analysis area. Id.
The Species Report first evaluated the Beetle’s current
status based on its resiliency, redundancy, and representation
at the time of the study. To do so, the Species Report analyzed
the Beetle’s current and historical range, current habitat
availability and land protections, and current population status
including the status of reintroduction and experimental
populations. The Species Report also considered the effects
that climate change has had on the Beetle’s current condition.
Based on that information, the Species Report found that
six of the seven analysis areas had moderate or high resiliency,
but that the Red River analysis area had low resiliency. As for
redundancy, the Species Report found that the number of
populations ranges from at least five to as high as nine,
including reintroduced populations. These populations provide
redundancy “due to [their] separation by considerable
distances, differences in habitat makeup, behavior, existing
threats, land use patterns, and climate[.]” J.A. 416. Lastly, the
Species Report concluded that overall representation is
moderate. It found that, while current genetic diversity is

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relatively high, ecological diversity has been reduced given the
loss of the Beetle’s historical range.
The Species Report then gauged the Beetle’s future status
based on the Beetle’s projected future resiliency, redundancy,
and representation. The Species Report identified two
“primary risk factors” that could impact the Beetle’s status in
the foreseeable future: (i) land-use changes, such as conversion
of grassland to cropland, high utilization of vegetation through
grazing and mowing activities, and urbanization, and (ii)
climate change. J.A. 418. The Service modeled the combined
effects of those two risk factors.
To predict the effects of future land-use changes, the
Service modeled two scenarios. J.A. 425–461. The first
scenario assumed that land-use changes continued at the
current rate, existing land management continued, and
additional managed lands were established. J.A. 425. The
second scenario assumed that land-use changes accelerated,
and that there was no intentional management of the Beetle.
J.A. 425. The Service found that under the second scenario,
resiliency would change from moderate to low in the Loess
Canyons analysis area and in New England. J.A. 461. In
addition, representation and redundancy would both be
“reduced” under the second scenario “with potential losses of
populations in New England, Loess Canyons, Red River, and
the reintroduction site in Missouri.” J.A. 461.
To estimate the impacts of climate change on the future
conditions of the Beetle, the Species Report relied on two
projections—a moderate greenhouse gas emissions scenario
and a high greenhouse gas emissions scenario—from the
Intergovernmental Panel on Climate Change’s Fifth
Assessment Report. See Intergovernmental Panel on Climate

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Change, Climate Change 2013: The Physical Science Basis
147–150 (2013), https://perma.cc/P9LM-A5XP.
The Service then modeled future summertime mean-
maximum temperatures over three separate thirty-year time
periods: early century (2010–2039), mid-century (2040–
2069), and late century (2070–2099). The Service compared
the predicted mean-maximum temperature for each time period
to two thresholds. The first threshold is the “near” threshold,
which represents “climate conditions that could negatively
affect [the Beetle’s] ability to feed, shelter, or reproduce[.]”
J.A. 468. The Service estimated that threshold to be 93°F–95°F
for the Beetle populations in the Northern Plains and 94°F–
95°F for the Beetle populations in the Southern Plains. The
second threshold is the “survival” threshold. J.A. 471. That
threshold was estimated to be 95°F. While the Beetle may
survive periodic years with mean-maximum temperatures at or
above 95°F, the Service found that areas with average
temperatures at or above that threshold likely could not support
Beetle populations in the long-term. J.A. 468.
According to the Species Report, the most immediate
effects of climate change are predicted to impact the Red River
analysis area, located in the southernmost part of the Southern
Plains region. Under both the moderate and high greenhouse
gas emission scenarios, resiliency in the Red River analysis
area is predicted to decrease to zero by 2039. The Species
Report also predicts that climate change will have an impact on
the other analysis areas in the Southern Plains region, but over
a longer time period. In both the Arkansas River and Flint Hills
analysis areas, resiliency is predicted to reduce to low by 2039,
and down to zero by 2069. J.A. 475.
Meanwhile, no part of the Northern Plains is “expected to
approach the 93°F–95°F near threshold” by 2039. J.A. 476.

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But by the 2040–2069 period, under either the moderate or high
emissions scenario, parts of the Northern Plains are anticipated
to begin experiencing temperatures at the near threshold. Over
the course of the century, resiliency in the Northern Plains is
predicted to decrease. In New England, climate change is not
expected to increase temperatures materially this century.
Resiliency there is predicted to remain moderate, so long as
active management continues.
In sum, the Service predicted that climate change would
impact the Beetle’s viability in all areas in the Southern Plains
region by 2039, and in some areas within the Northern Plains
region by 2069.
C
Based on the Species Report, the Service promulgated
rules downlisting the Beetle from endangered to threatened and
establishing protective measures for the conservation of the
Beetle. See 85 Fed. Reg. at 65,241.
The Service first concluded that the Beetle “is not
currently in danger of extinction as it faces relatively low near-
term risk of extinction.” 85 Fed. Reg. at 65,254. In reaching
this conclusion, the Service noted that “the risk of extinction”
of the Beetle “has been ameliorated since the species was
listed” because “[t]he current range is much larger than
originally thought” and “there are several large populations
with relatively good genetic diversity and relatively low current
risks.” Id. The Service added that “the current status includes
at least five populations with moderate to high resiliency and
several of these populations are relatively large.” Id.
The Service then concluded that the Beetle’s longer-term
prospects were starkly different, with the Beetle likely to

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become endangered within the foreseeable future throughout
all of its range. 85 Fed. Reg. at 65,254–65,255. The Service
concluded that the Beetle “would likely be extirpated as a result
of increasing temperatures due to climate change” “[w]ithin the
mid-century time period (i.e., 2040–2069)” in each of the
Southern Plains analysis areas—which together constitute 59%
of the Beetle’s range. Id. at 65,254. In addition, the impact of
agriculture is expected to affect 5–15% of suitable habitat in
the Northern Plains, and redcedar expansion in the Loess
Canyon analysis area is expected to result in a 30% habitat loss
in the foreseeable future. Id. Together, these losses “would
severely impact representation” of the species. Id. The Service
explained that “[t]he combined effects of land use and future
climate changes are likely to impact the resiliency of most
populations and the overall viability of the species.” Id.
Having concluded that the Beetle is threatened throughout
all of its range, the Service considered whether the Beetle was
at the time endangered in any “significant portion of its range,”
which includes the Northern Plains, Southern Plains, and New
England regions. 85 Fed. Reg. at 65,255–65,256. After
reviewing the record and analyses, the Service concluded that
in each of those portions of the Beetle’s range, the Beetle “is
not currently in danger of extinction,” but that land-use and
climate risks will make the Beetle “likely to become
endangered in the foreseeable future.” Id. at 65,256. As a
result, the Service downlisted the Beetle to threatened.
Because of that downlisting, the full panoply of statutory
protections did not automatically attach. Instead, the Service
imposed a subset of protections under its Section 4(d)
authority, 16 U.S.C. § 1533(d). The Service prohibited all
intentional takes of the Beetle. 85 Fed. Reg. at 65,257. It also
prohibited incidental takes, but in ways that differed across the
Beetle’s geographic regions. Id. In New England and the

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Northern Plains, the Service prohibited incidental take in any
habitat suitable for the Beetle’s reproduction if the take was the
result of “soil disturbance.” Id. The Service added, however,
that death or injury caused by ranching and grazing, as well as
applications of fertilizer consistent with typical agricultural
purposes, would not constitute a prohibited take. Id.
In the Southern Plains region, the Service prohibited
incidental take only on select conservation lands. 85 Fed. Reg.
at 65,257, 65,260. And even then, the Service did not prohibit
activities conducted in compliance with Service-approved
conservation plans regardless of whether they resulted in a
take. Id. at 65,257.
In January 2024, the Service initiated a new five-year
review of the Beetle’s status. See Endangered and Threatened
Wildlife and Plants; Initiation of 5-Year Status Reviews of 22
Species in the Southwest, 89 Fed. Reg. 4966, 4967 (Jan. 25,
2024).
D
The Center filed suit in the United States District Court for
the District of Columbia challenging both the Downlisting Rule
and the adequacy of the Section 4(d) protections. The parties
cross-moved for summary judgment. The Center argued, in
relevant part, that the Service’s Downlisting Rule is
inconsistent with the language of the Endangered Species Act
and that the decision to downlist is arbitrary and capricious, in
part because it provides less stringent protections in the
Southern Plains than in the other regions.
The district court granted summary judgment for the
Service on all claims. See Center for Biological Diversity v.
United States Fish & Wildlife Serv., 698 F. Supp. 3d 39 (D.D.C.

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2023). The court concluded that the Service reasonably
determined that the predicted serious threats to the Beetle’s
continued existence in the 2040–2069 time period qualified as
within the “foreseeable future” for purposes of threatened-
species status, but did not make the Beetle “in danger of
extinction” now. Id. at 66. The court further concluded that
the Service’s Downlisting Rule and its tailoring of the Beetle’s
Section 4(d) protections were supported by the administrative
record and adequately explained. Id. at 71–82.
II
The Center challenges the Downlisting Rule on two
grounds. First, it argues that the downlisting fails to comport
with the statutory definitions of “endangered” and “threatened”
in the Endangered Species Act. Center Opening Br. 26–30.
Second, the Center contends that the Service’s Downlisting
Rule is unsupported by the administrative record and is
inadequately explained. Center Opening Br. 30–33. As to both
of these claims, the Center views the record as requiring that
the Beetle be categorized as endangered now given its
condition in the Southern Plains region. The Center lastly
challenges the Section 4(d) Rule as arbitrary and capricious and
contrary to law because it “omits any protection against
incidental take from soil disturbing activity” in most of the
Southern Plains region while providing that protection in the
Northern Plains. Center Opening Br. 34.
We affirm. With respect to the Downlisting Rule, the
parties’ dispute comes down to the question of when a
recognized prospective threat to a species comes so close in
time that it is unreasonable for the Service not to treat the
species as endangered in the present. Given the record in this
case, considered against the backdrop of the Service’s recent
initiation of another five-year review of the Beetle’s status, the

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Service’s conclusion that the Beetle was not endangered when
it issued its Rule in 2020 falls within the bounds of reasonable
judgment and is consistent with the record evidence. As to the
Section 4(d) challenge, the Center has failed to establish Article
III standing on appeal.
A
Before this court can resolve the Center’s appeal, we must
ensure that we have the power to act. Article III of the
Constitution confines federal courts to the resolution of actual
“Cases” and “Controversies[.]” U.S. CONST. Art. III, § 2. One
essential component of the case-or-controversy requirement is
that the party seeking relief must establish standing.
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006). To
do so, a plaintiff must show that (i) it “suffered an injury in fact
that is concrete, particularized, and actual or imminent”; (ii) the
“injury was likely caused by the defendant”; and (iii) the injury
“would likely be redressed by judicial relief.” TransUnion
LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–561 (1992)).
When, as here, an association asserts standing to sue on
behalf of its members, the association must show that (i) at least
one member has standing to sue in her own right, (ii) the
interests the association seeks to protect are germane to its
purposes, and (iii) neither the asserted claim nor requested
relief requires the participation of individual members. Center
for Biological Diversity v. EPA, 56 F.4th 55, 66 (D.C. Cir.
2022); see also Friends of the Earth, Inc. v. Laidlaw Env’t
Servs., Inc., 528 U.S. 167, 181 (2000). As the party invoking
federal jurisdiction, the Center bears the burden of establishing
these elements. Spokeo, Inc. v. Robins, 578 U.S. 330, 338
(2016).

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Applying that test, the Center has met the second and third
requirements for associational standing for its challenges to
both the Downlisting Rule and the Section 4(d) protective
criteria. The interests in conservation and preservation of the
Beetle relate closely to the Center’s “mission of ‘protection and
enjoyment of the environment and our nation’s endangered and
threatened species and their habitats.’” Center for Biological
Diversity, 56 F.4th at 67 (citation omitted); see also J.A. 35. In
addition, the purely injunctive and declaratory relief sought by
the Center, Compl., Prayer for Relief, does not require the
participation of individual members either to litigate or to
remediate the claim.
As for the first prong of associational standing—whether
an individual member would have standing to sue in her own
right—the Center has made that showing with respect to its
challenges to the Service’s Downlisting Rule. But it has not
identified an individual with standing to challenge the Section
4(d) Rule, and so the Center lacks standing to prosecute that
claim.
1
To demonstrate standing, the Center submitted a
declaration from Christopher Bugbee, a member and employee
of the Center. J.A. 35. Mr. Bugbee attested to his interest in
the Beetle’s preservation and protection. In his professional
capacity as a conservationist, Mr. Bugbee works to protect
endangered and threatened species. J.A. 35. He also has a
personal interest in the Beetle. J.A. 35. Mr. Bugbee visits
Block Island, Rhode Island every summer for a family vacation
and searches for and photographs the Beetle while there. J.A.
35–36. According to Mr. Bugbee, he would “suffer
professional, aesthetic, spiritual, and recreational injuries from
any further loss of th[e] [Beetle] in the wild.” J.A. 38.

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Those allegations adequately demonstrate that Mr.
Bugbee’s interests in seeing the Beetle and visiting its habitat
are injured by the downlisting of the Beetle from endangered
to threatened and the accompanying reduction in protections
for the species in the New England region. Mr. Bugbee’s
“desire to * * * observe an animal species, even for purely
esthetic purposes, is undeniably a cognizable interest for
purpose of standing.” Lujan, 504 U.S. at 562–563.
To be sure, a plaintiff’s “vague desire” to visit a species’
habitat and observe it “is insufficient” to show that the plaintiff
will be injured. Summers v. Earth Island Inst., 555 U.S. 488,
496 (2009). But Mr. Bugbee’s interests show the type of here-
and-now injuries, backed up by specific facts and concrete
plans, that support Article III standing. See Lujan, 504 U.S. at
564. As noted, Mr. Bugbee visits Block Island, Rhode Island,
which is in the New England analysis area, annually. J.A. 35.
“Both as a personal hobby and in a professional capacity,” Mr.
Bugbee “specialize[s] in finding and documenting rare and
cryptic species.” J.A. 36. Because of this, he “routinely
search[es] for [the Beetle] in its native habitat on Block Island”
and has “located and photographed [it] on several occasions.”
J.A. 36. “In the coming years,” he plans to continue observing
the Beetle in this habitat during his “annual” “summer
vacation.” J.A. 36.
The Center has also demonstrated that the Service’s
downlisting decision “adversely affect[s]” Mr. Bugbee’s
interest in observing the Beetle in the New England analysis
area. Center for Biological Diversity v. Department of Interior,
563 F.3d 466, 478 (D.C. Cir. 2009). That is because the
downlisting decision reduced the level of protection and
conservation measures for the Beetle. See 16 U.S.C. § 1533(d);
Sweet Home Chapter, 515 U.S. at 697–703. That the

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challenged rules do not threaten the imminent elimination of
the Beetle in Block Island is beside the point. See Animal Legal
Def. Fund, Inc. v. Glickman, 154 F.3d 426, 437 (D.C. Cir.
1998) (en banc) (“It has never been the law, and is not so today,
that injury in fact requires the elimination (or threatened
elimination) of either the animal species or environmental
feature in question.”). What suffices is that, as a result of the
downlisting decision, the Service prohibited incidental take in
the New England analysis area “only if it occurs in suitable
habitat[,] is the result of soil disturbance[,]” and is not caused
by ranching or grazing. 85 Fed. Reg. at 65,257–65,258. That
decision will increase the risk of loss of the Beetle and, in turn,
Mr. Bugbee’s ability to see and enjoy it in its natural habitat.
In addition, the Service acknowledges its new limited
prohibition on incidental take risks harm to some Beetles in the
New England area. Id. at 65,258 (“[S]ome minimal level of
take may occur incidental to ranching and grazing” in New
England.). In other words, the Beetle now enjoys less
protection and faces greater risk of harassment, harm, and
death than it did with the comprehensive prohibition on take
that governed when it was listed as endangered. See 16 U.S.C.
§ 1538(a)(1); 54 Fed. Reg. at 29,652.
As a result, Mr. Bugbee’s aesthetic interests “will be
lessened” by the downlisting rule. American Rivers, 895 F.3d
at 41 (citation omitted). And agency action that “adversely
affects a plaintiff’s enjoyment” of a species causes a cognizable
harm to that interest. American Soc’y for Prevention of Cruelty
to Animals v. Ringling Bros. & Barnum & Bailey Circus, 317
F.3d 334, 337 (D.C. Cir. 2003).
Lastly, the Center has shown that vacatur of the
Downlisting Rule would remedy Mr. Bugbee’s injury. Should
the Downlisting Rule be vacated, the Beetle would return to its
status as an endangered species and all forms of incidental take

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19
would be prohibited. See 54 Fed. Reg. at 29,652; Sweet Home
Chapter, 515 U.S. at 697–703. That the Center’s legal
arguments as to why the Beetle should remain listed as
endangered focus on threats to the species in the Southern
Plains, rather than in New England, is neither here nor there.
The downlisting is what allowed the Service to reduce
protections for the Beetle in New England and thereby to
directly impair Mr. Bugbee’s interests. So Mr. Bugbee’s injury
“would be redressed by vacatur of th[e challenged action] on
the basis of any defect[.]” Sierra Club v. FERC, 867 F.3d 1357,
1366 (D.C. Cir. 2017).
2
The Center, however, has not established standing on
appeal to challenge the Section 4(d) Rule. To be sure, Mr.
Bugbee’s injury and causation remain because the Section 4(d)
Rule’s reduced protections for the Beetle threaten its viability
in the New England area where Mr. Bugbee regularly seeks out
the Beetle. But the Center has not demonstrated redressability
on appeal.
“[A] plaintiff satisfies the redressability requirement when
he shows that a favorable decision will relieve a discrete injury
to himself.” Massachusetts v. EPA, 549 U.S. 497, 525 (2007)
(quoting Larson v. Valente, 456 U.S. 228, 244 n.15 (1982)). It
“must be ‘likely,’ as opposed to merely ‘speculative,’” that the
requested relief will redress the stated injury. Lujan, 504 U.S.
at 561. “Relief that does not remedy the injury suffered cannot
bootstrap a plaintiff into federal court; that is the very essence
of the redressability requirement.” Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 107 (1998).
On the question of the lawfulness of the Section 4(d) Rule,
the Center seeks a particularized and narrow form of relief from

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20
this court. It asks for vacatur of the Section 4(d) Rule only
“insofar as it eliminates protections for the beetle in the
Southern Plains.” Center Opening Br. 43 (“Should the court
decline to vacate the downlisting, the 4(d) Rule should be
vacated insofar as it eliminates protections for the beetle in the
Southern Plains.”); Center Reply Br. 24 (same).
The standing problem is that the entirety of the Section
4(d) relief that the Center seeks on appeal—vacatur of the
Southern Plains portion of the Section 4(d) Rule—is a form of
relief that will have no discernible effect on the injury Mr.
Bugbee alleges, which is interference with his ability to
observe the Beetle in New England. Mr. Bugbee’s declaration
offers only vague suggestions that he might observe the species
outside of Block Island. He notes that he has “searched for [the
Beetle] in other areas” and “like[s] to think that the species may
still exist in other places[.]” J.A. 36. But he has not articulated
any plans to visit the Beetle anywhere other than Block Island.
At most, he “plan[s] on following up on [possible] scientific
leads in the future as time and money allow[].” J.A. 36. Such
“some day” intentions are insufficient to support standing.
Lujan, 504 U.S. at 564.1
Because granting the requested vacatur of the Southern
Plains portion of the Section 4(d) Rule would have no impact
on Mr. Bugbee’s injuries in the New England analysis area, the
1 Before the district court, the Center submitted a standing
declaration from a second member. That member has since passed
away, and the Center no longer relies on his declaration. See Center
Supp. Br. 1, 5.

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21
Center lacks standing to seek vacatur of the Section 4(d) Rule
as to the Southern Plains.2
B
Turning to the merits of the Service’s Downlisting Rule,
we may only overturn the Rule if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A); American Wildlands v. Kempthorne, 530
F.3d 991, 997 (D.C. Cir. 2008). An agency acts arbitrarily or
capriciously if it “has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in view
or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). Our review “under the ‘arbitrary and capricious’
standard is narrow and a court is not to substitute its judgment
for that of the agency.” Id.
1
The Center’s first argument is that the Service ran afoul of
the statutory definitions of “endangered” and “threatened”
when it downlisted the Beetle to threatened status. In
2 Since in district court the Center sought vacatur of the Section
4(d) provisions in full, including those governing the New England
region, the Center had standing to press its challenges to the Section
4(d) Rule there. See, e.g., Center Mot. Summ. J. 42. But, because
the Center changed the scope of its requested relief before us, it now
lacks standing. See Hollingsworth v. Perry, 570 U.S. 693, 705
(2013) (“[S]tanding ‘must be met by persons seeking appellate
review, just as it must be met by persons appearing in courts of first
instance.’”) (citation omitted).

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particular, the Center focuses its arguments on the Southern
Plains region and maintains that the Beetle is currently
endangered there. Because that area constitutes a significant
portion of the Beetle’s range, the Center reasons, the Beetle
meets the statutory definition of an endangered species. Center
Opening Br. 22–30. The Center’s perceived statutory
transgression did not occur. On the record in this case, the
Service’s decision comports with the statutory terms.
The Endangered Species Act defines an “endangered
species” as one that “is in danger of extinction throughout all
or a significant portion of its range[,]” and a “threatened
species” as one that “is likely to become an endangered species
within the foreseeable future throughout all or a significant
portion of its range.” 16 U.S.C. § 1532(6), (20). What
distinguishes the two categories, then, is the imminence of the
extinction danger. “Threatened” status applies if the danger of
extinction is in the “foreseeable future,” while “endangered”
status applies if there is a current danger that extinction will
occur. The foreseeability of an extinction danger is made on a
“case-by-case basis, using the best available data and taking
into account considerations such as the species’ life-history
characteristics, threat-projection timeframes, and
environmental variability.” 85 Fed. Reg. at 65,244; see also In
re Polar Bear Endangered Species Act Listing & Section 4(d)
Rule Litig.—MDL No. 1993, 709 F.3d 1, 15 (D.C. Cir. 2013).
Here, the Service made predictions about the effects of climate
change on the Beetle’s viability through 2099. 85 Fed. Reg. at
65,247.
The Service explained that, in determining whether the
Beetle is endangered or threatened under the statutory criteria,
it identified threats to the species, evaluated the expected effect
of each of those threats, and then analyzed the cumulative
effect of all the threats on the species currently and in the

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23
reasonably and reliably foreseeable future. 85 Fed. Reg. at
65,243.
In so doing, the Service hewed to the statutory text and
appropriate species-specific analytical framework. The
Service concluded that in six of the seven total analysis areas
for the Beetle, its populations exhibited moderate to high
resiliency. 85 Fed. Reg. at 65,246. That includes two of the
analysis areas in the Southern Plains region—the Arkansas
River and Flint Hills analysis areas, which make up 87% of the
Beetle’s Southern Plains range. The Service explained that
both the Arkansas River and Flint Hills analysis areas “have
large areas of suitable habitat, several large protected areas, and
a relatively wide distribution of American burying beetles
within the analysis areas.” Id. Based on population and habitat
factors, the Service found that the Arkansas River analysis area
has high resiliency and that the Flint Hills analysis area has
moderate resiliency. At the time of the Service’s decision in
2020, that resiliency was predicted to continue for
approximately nineteen years in the Southern Plains region,
and even longer in most parts of the other regions.3
Overall, representation throughout the Beetle’s range is
moderate, and current “genetic diversity appears to be
relatively high,” the Service found, while noting that ecological
diversity has been reduced. 85 Fed. Reg. at 65,246. In
addition, “[m]ultiple populations within the analysis areas[,]”
including in the Southern Plains, “provide redundancy that
3 In the Northern Plains region, through 2069 (and potentially
through 2099), resiliency was projected to be high in the Sand Hills
analysis area, moderate or moderate-low in the Niobrara analysis
area, and low in the Loess Canyons analysis area. In the New
England region, resiliency was predicted to be moderate-low through
2099.

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24
reduces the risk of any catastrophic events.” Id. That is
because, since the initial endangerment finding, additional
populations of the Beetle have been found in larger and more
geographically dispersed areas, and the Beetle has been
successfully reintroduced into two new areas. Id. at 65,242,
65,254.
As required to find the Beetle “threatened,” the Service
also found that the threat profile of the Beetle would change
materially many years in the foreseeable future. In the
Southern Plains region in particular, the Service found that
rising temperatures will likely cause resiliency in the Southern
Plains’ analysis areas to decrease by 2039, and they could
result in the Beetle’s extirpation from the Southern Plains by
2069. See 85 Fed. Reg. at 65,256 (finding risk to be “likely”).
The Service also found that the combination of land-use and
climate-related risks would likely endanger the Northern Plains
populations within the foreseeable future, and that land-use
risks were likely to similarly endanger New England
populations. Id.
Having evaluated the Beetle’s current and prospective
status, both near-term and for the longer-term, the Service
found in 2020 that the Beetle was not endangered at that time
because it “is not currently in danger of extinction,” and it
“faces relatively low near-term risk of extinction” throughout
all of its range and in each significant portion of its range,
including in the Southern Plains region. 85 Fed. Reg. at
65,254, 65,256. At the same time, the Service found that the
Beetle was threatened because it faced the danger of extinction
in the foreseeable future in its entire range and in each
significant portion of its range, including in the Southern
Plains. Id. at 65,254–65,256.

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25
That finding falls within the statutory definition of a
threatened species. After all, the Center does not dispute that
the Service relied solely on the best scientific and commercial
data available, 16 U.S.C. § 1533(b)(1)(A), or that the Service
made its decision based on the statutory criteria. Nor does the
Center dispute the Service’s scientific and technical findings,
including that the 2040–2069 period is within the foreseeable
future for the Beetle.
Instead, the Center argues that, because the Beetle could
be extirpated in the Southern Plains as soon as 2040, the Beetle
was “in danger of extinction” in the Southern Plains in 2020,
within the meaning of the statute. Center Opening Br. 26–27.
But nothing in the statutory text requires the Service to list
a species as endangered rather than threatened based on threats
to the species that are not predicted to manifest at the earliest
until roughly two decades after the Service’s listing
determination. The statute leaves the term “foreseeable future”
undefined. That makes sense given the broad variety of flora
and fauna to which the “foreseeable future” analysis must be
applied, not to mention the diverse and ever-changing
environments and conditions affecting those species. How far
out the Service can make reliable predictions about a species’
viability is necessarily an individualized, fact-specific
determination that is dependent on the species’ life cycle, the
nature of the threats to the species’ viability, and the
availability of scientific data and modeling.
As a result, the statutory context indicates the phrase
“foreseeable future” merits the case-by-case flexibility that the
Service applied here, and it must be evaluated through the lens
of the species’ particular lifespan and characteristics. See In re
Polar Bear Endangered Species Act Listing, 709 F.3d at 15
(noting that the Service “determines what constitutes the

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26
‘foreseeable’ future on a case-by-case basis in each listing
decision”).
Because the Service considered the best available
scientific and commercial data and exercised its expertise to
determine that the Beetle, at the time of decision and for the
near term, was threatened but not yet endangered, the
downlisting decision falls within the statute’s textual bounds.4
While the Center would prefer a timeframe that finds extinction
sooner than the Service did, the Center points to nothing in the
statutory text that compels that result.
2
The Service’s determination that, at the time of its decision
and for the coming years, the Beetle was threatened rather than
endangered, also is grounded in the record and reasonably and
adequately explained.
In categorizing the Beetle as threatened, the Service
carefully distinguished between risks to the Beetle in the near
term and in the foreseeable future. To do so, it relied on its
standard Species Status Assessment Framework that measures
viability in terms of a species’ resiliency, redundancy, and
representation. 85 Fed. Reg. at 65,244.
4 This is particularly true here where the intervening time period
includes a statutorily required reevaluation of the status of the species
long before the date of the predicted harms. See 16 U.S.C.
§ 1533(c)(2); Oral Argument Tr. 68:18–19, 73:19–10. The Service,
in fact, has already begun its five-year review of the Beetle’s status.
89 Fed. Reg. at 4967. That study ensures that the Service will
reevaluate its listing long before the Beetle is on the brink of
extinction.

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27
For its near-term analysis, the Service analyzed the
Beetle’s current and short-term resiliency, redundancy, and
representation. The Service determined the “current condition
* * * based on relative abundance, population distribution,
known population trends, availability of suitable habitat, acres
of protected areas, and the level of management in protected
areas.” 85 Fed. Reg. at 65,245. The Service also considered
the impact of climate change on the Beetle’s current condition
and its loss of historical range, and it compared the Beetle’s
current viability with that of its last assessment in 2008. Id. at
65,254.
That data bears directly on the short- and long-term
prospects for the Beetle and equipped the Service to reasonably
assess the Beetle’s viability in the near term. As noted earlier,
see pp. 22–23, supra, the Service concluded that in six of the
seven analysis areas—including Arkansas River and Flint Hills
in the Southern Plains—the Beetle populations exhibited
moderate to high resiliency. 85 Fed. Reg. at 65,246. In
addition, current overall representation is moderate, and
current “genetic diversity appears to be relatively high[.]” Id.
As for redundancy, the Service noted that there were currently
“multiple populations within the analysis areas” that “provide
redundancy that reduces the risk of any catastrophic events.”
Id. Based on the Beetle’s then-current resiliency,
representation, and redundancy, the Service concluded that the
Beetle “is not currently in danger of extinction as it faces
relatively low near-term risk of extinction.” Id. at 65,254.
To evaluate the Beetle’s longer-term resiliency,
redundancy, and representation, the Service identified changes
in land use and climate as the two primary threats to the
Beetle’s future viability, evaluated the expected effects of each
of those threats on the Beetle, and then analyzed their
cumulative effects. 85 Fed. Reg. at 65,246–65,250, 65,254–

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28
65,256. In the Southern Plains region, on which the Center
focuses, the Service found that “[w]ithin the foreseeable future,
i.e., the mid-century time period (2040–2069), all Southern
Plains analysis areas are expected to exceed threshold
temperatures under [a range of] emissions scenarios, likely
resulting in extirpation of the American burying beetle from
these areas.” Id. at 65,256.
The Service added that, while the Southern Plains is
“currently experiencing the effects of climate change[,]” the
“magnitude of the changes up to the present time are low
enough that the species is not [now] in danger of extinction.”
85 Fed. Reg. at 65,256. The Service therefore concluded that
the Beetle “is not currently in danger of extinction within the
Southern Plains representative area but is likely to become
endangered in the foreseeable future.” Id.
The Service’s determination that the Beetle was not
currently in danger of extinction was grounded in record data
and explained in detail. The Service reasonably distinguished
between near-term and longer-term risks to the Beetle’s
viability. The Center, again, does not dispute that the Service
considered the relevant information and used the best scientific
information available. The question before us, after all, is not
whether the Service’s conclusion was the only reasonable one
on this record or even the most reasonable one, but whether it
was a sensible one. Which it was. See Deaf Smith County
Grain Processors, Inc. v. Glickman, 162 F.3d 1206, 1215 (D.C.
Cir. 1998) (“[U]nder the arbitrary and capricious standard,
‘[t]he action * * * need be only a reasonable, not the best or
most reasonable, decision[.]’”) (citation omitted).
The Center objects that the Service failed to define the
“near term.” Center Reply Br. 9. Not so—the Service
differentiated between the near term and longer term based on

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29
the data, variable circumstances, and condition of Beetle
populations. The Service then defined the relevant timeframes
in terms of future multi-decade periods. Neither the statute nor
reasoned decisionmaking required the Service to impose an
artificially more precise timeline that would have
misrepresented the variability and intangibility of the relevant
circumstances. To that point, the Service stressed that its
assessments were made on a case-by-case basis that ensured
flexibility to consider the “species’ life-history characteristics,
threat-projection timeframes, and environmental variability.”
85 Fed. Reg. at 65,244. In addition, the Service distinguished
between near-term risks and future risks based on whether the
risk would impact the Beetle’s current or future viability. That
was a “‘comprehensible standard’” for deciding whether the
Beetle was endangered or threatened. ACA Int’l v. Federal
Commc’ns Comm’n, 885 F.3d 687, 700 (D.C. Cir. 2018)
(quoting United States Postal Serv. v. Postal Regulatory
Comm’n, 785 F.3d 740, 753 (D.C. Cir. 2015)).
The Center also argues that the Service failed to explain
why its findings do not make the Beetle at risk of extinction in
the near term, particularly when the Red River analysis area is
already experiencing the impacts of climate change. Center
Reply Br. 9.
The Service adequately explained its judgment. To start,
the Service predicted the future impacts of climate change by
modeling summertime mean-maximum temperatures under
two emissions scenarios over three thirty-year time periods:
early century (2010–2039), mid-century (2040–2069), and late
century (2070–2099). The Service compared those mean-
maximum temperatures against the Beetle’s “near” threshold
of 94°F–95°F—that is, the point at which the Beetle’s ability
to feed, shelter, or reproduce could be negatively affected—
and the Beetle’s survival threshold of 95°F.

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30
The Service acknowledged that the southernmost portion
of the Red River analysis area—the Beetle’s smallest habitat
area in the Southern Plains region—is already experiencing
mean-maximum temperatures of 94°F–95°F, and survey
results suggest that the Beetle may already be extirpated from
portions of that analysis area. Mean-maximum temperatures
from 2010–2039 in that one area are predicted to be above the
Beetle’s survival threshold under both the moderate and high
emissions scenarios. The Service accordingly found that the
Red River analysis area currently exhibits low resiliency, and
that resiliency will become zero by 2039 when the average
temperatures coalesce above the Beetle’s survival threshold.
Had the Service made similar predictions for the Arkansas
River and Flint Hills analysis areas—which together make up
87% of the Southern Plains region—the Service would have
been hard-pressed to find that the Beetle was merely threatened
there. But the Service’s predictions for the Arkansas River and
Flint Hills analysis area in the same period are quite different
from Red River. And the Center does not argue that the Red
River analysis area, which accounts for just 13% of the suitable
habitat in the Southern Plains, by itself constitutes a significant
portion of the Beetle’s range such that the climate effects there
could render the Beetle endangered in the Southern Plains
region as a whole.
To illustrate, in the Arkansas River analysis area, under the
moderate emissions scenario, 43% of the area will be above the
95°F threshold by 2039, while under the high emissions
scenario, 64% of the area will be above the 95°F threshold in
that same timeframe. J.A. 474–475. The remaining parts of
the area will be within two degrees of the threshold. Id. And
in the Flint Hills analysis area, under either emissions scenario,
only a portion of the area (4% under the moderate emissions

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31
scenario and 32% under the high emissions scenario) is
predicted to be above the 95°F threshold by 2039, but most of
the remaining area (73% under the moderate emissions
scenario and 64% under the high emissions scenario) will be at
the 94°F near threshold.
Given that data—which the Center does not contest—
temperatures in the Arkansas River and Flint Hill analysis areas
do not pose a near-term risk of extinction to the Beetle. As the
Service explained, Beetle “populations may be able to survive
periodic or occasional years with mean maximum temperatures
at or above 95ºF, but areas that average mean maximum
temperatures above 95ºF are not likely to support populations.”
J.A. 468 (emphasis added). As a result, the Service found that
temperatures pose a threat to the Beetle’s viability when they
coalesce at thirty-year averages above the Beetle’s survival
threshold. That threat was not predicted to materialize for at
least nineteen years after the Service’s downlisting decision.
The data similarly indicates that it is uncertain how much
of the Arkansas River analysis area, which constitutes 73% of
the suitable habitat in the Southern Plains, will exceed the
threshold, depending on whether climate change proceeds
along the moderate or high emissions scenarios. It is also
unclear how much of the Flint Hills analysis area, which
constitutes another 14% of suitable habitat in the Southern
Plains, will be affected. Given that uncertainty in the data,
occasioned at least in part by the multifarious influences on
both emissions levels and the progress of climate change, the
Service made a reasoned determination that the Beetle’s status
in 2020 was “threatened,” especially since there would be an
intervening review of the Beetle’s status in the mid 2020s.
Finally, based on its predictions, the Service found that,
under either emissions scenario, resiliency would become low

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in both the Arkansas River and Flint Hills analysis areas by
2039, which, based on the record, would likely support
endangerment no later than 2039, and perhaps earlier. The
Service, after all, relied on the Beetle’s resiliency as a key
metric informing its listing determination. See 85 Fed. Reg. at
65,254 (“In summary, the current status includes at least five
populations with moderate to high resiliency and several of
these populations are relatively large. We find that the species
is not currently in danger of extinction as it faces relatively low
near-term risk of extinction.”); id. at 65,254–65,255 (“The
combined effects of land use and future climate changes are
likely to impact the resiliency of most populations and the
overall viability of the species. Thus, after assessing the best
available information, we conclude that the American burying
beetle is likely to become in danger of extinction in the
foreseeable future throughout all of its range.”).
Based on the Service’s own methodology and predictions
then, the Beetle would become endangered in the Southern
Plains by 2039. That finding is consistent with the Service’s
determination here that the Beetle is “likely to become
endangered within the foreseeable future”—that is, nineteen
years after the Service’s current finding that the Beetle is
threatened, and it will likely face extinction in the foreseeable
future. See 85 Fed. Reg. at 65,251 (“By definition, a threatened
species determination implies a potential need to reclassify the
species as endangered if our projections about its status in the
foreseeable future are accurate.”).
The dissenting opinion maintains that the Service failed to
address evidence that those reductions in resiliency in the
Southern Plains might occur sometime between 2020 and 2029
in the Flint Hills and Arkansas River analysis areas and faults
the Service for making a prediction “by 2039” without stating

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33
more precisely when those reductions might happen.
Dissenting Op. at 8–9. We read the record differently.
To begin, the Service’s prediction that reductions in the
Beetle’s resiliency would occur “by 2039” derives from the
Service’s methodological choice in the Status Report to predict
reductions in resiliency based on thirty-year average mean-
maximum temperatures. That choice was reasonable in this
case. As the Service explained, Beetle “populations may be
able to survive periodic or occasional years with mean
maximum temperatures at or above 95ºF, but areas that
average mean-maximum temperatures above 95ºF are not
likely to support populations.” J.A. 468 (emphasis added). So
to predict reductions in the Beetle’s resiliency, the Service
reasonably chose to consider average mean-maximum
temperatures over a period of time.
That the Service chose to calculate the mean-maximum
temperatures based on thirty-year averages was also reasonable
in this case. We do not suggest that the Service was required
to use thirty-year averages, or that using thirty-year averages
was the only reasonable choice in this case. Contra Dissenting
Op. at 11. But here, the Service chose to use thirty-year
averages to predict how rising average temperatures will
impact Beetle populations.
That methodology allowed it to make a prediction in 2020
about reductions in the Beetle’s resiliency nineteen years into
the future—that is, by 2039. And neither the Center nor the
Service has suggested that the Service could have made
reasonably certain predictions about the Beetle’s future
resiliency in a more precise way. Indeed, the Center does not
challenge the Service’s use of thirty-year average mean-
maximum temperatures. For all those reasons, the Service’s
choice to use thirty-year averages was reasonable in this case.

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In addition, the record evidence does not show that the
Beetle’s resiliency will reduce sometime between 2020 and
2029 in the Flint Hills and Arkansas River analysis areas.
While the Service conceded that it “did not state explicitly * * *
that the Beetle’s resiliency in the Flint Hills and Arkansas River
[a]nalysis [a]reas is expected to decline to ‘low’ only at or near
the end of the” 2020–2039 time period, the Service explained
that the “analysis and modeling in the record support that
conclusion.” Service Supp. Letter 2.
And they do. In the Arkansas River analysis area,
depending on the emissions scenario, predicted mean
temperatures range from 94.7°F–95.6ºF in 2020–2029, and
from 95.9°F–96.4ºF in 2030–2039. Service Supp. Letter 23.
In the Flint Hills analysis area, depending on the emissions
scenario, predicted mean temperatures range from 93°F–95.1ºF
in 2020–2029, and from 94.4°F–95.8ºF in 2030–2039. Id.
Those ranges predict steady increases in the mean
temperatures in the Arkansas River and Flint Hills analysis
areas between 2020 and 2039. At the same time, the data also
reflects uncertainty about what sustained mean temperatures
will be in the 2020–2029 period. Yet it is only “areas that
average mean maximum temperatures above 95ºF” over time
that “are not likely to support populations.” J.A. 468.5
Finally, the dissenting opinion relies on government
counsel’s representation at oral argument that endangerment
would occur at sustained temperatures of 93°F–94ºF. See Oral
5 Because the Service’s statement in its supplemental brief is
independently present and verifiable in the record, the dissenting
opinion’s objection (at 12 n.4) that the court is improperly relying on
counsel’s statements as a basis for decision is misplaced.

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35
Arg. Tr. 58–59. From that statement by counsel, the dissenting
opinion reasons that the Beetle faces a risk of extirpation in the
Southern Plains by 2029. Dissenting Op. at 3, 9.
But our task is to review the agency’s decision, not
counsel’s oral argument. We “may not accept appellate
counsel’s post hoc rationalizations for agency action; Chenery
requires that an agency’s discretionary order be upheld, if at
all, on the same basis articulated in the order by the agency
itself[.]” Burlington Truck Lines, Inc. v. United States, 371
U.S. 156, 168–169 (1962) (citing Securities & Exch. Comm’n
v. Chenery Corp., 332 U.S. 194, 196 (1947) (italics added)).
Nowhere in the record does the Service say what the
dissenting opinion says (in reliance on government counsel’s
argument)—that mean-maximum temperatures of 93°F–94ºF
over a ten-year period would result in an endangerment finding
for the Beetle. Compare Dissenting Op. at 10, with J.A. 468
(Beetle “populations may be able to survive periodic or
occasional years with mean maximum temperatures at or above
95ºF, but areas that average mean-maximum temperatures
above 95ºF are not likely to support populations.”).
The dissenting opinion suggests that such a finding
“comes from the record” because the Beetle’s “near” threshold
is at 93°F–94°F. Dissenting Op. at 10. But the Service
expressly found that the Beetle’s near threshold in the Southern
Plains is 94°F–95°F, not 93°F–94°F. J.A. 468 (Species Report)
(“[W]e have identified a near mean maximum threshold
temperature range of * * * 94°F–95°F for southern analysis
areas.”). And the Service also stated that “populations under”
the near threshold of 94°F–95°F in the Southern Plains “remain
viable.” Id. In its Species Report, the Service defines
“viability” as “the ability of a species to sustain populations in

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the wild beyond a biologically meaningful time frame.” J.A.
318 (Species Report).
Moreover, the Service never said that temperatures at the
Beetle’s “near” threshold result in endangerment. Nor does the
record support that conclusion. According to the Service, the
Beetle’s “near” threshold represents “climate conditions that
could negatively affect [the Beetle’s] ability to feed, shelter, or
reproduce[.]” J.A. 468. Those conditions could just as well
represent a finding that the Beetle is threatened, but not yet
endangered. Id. Which is the finding the Service made here.
To be sure, the Center’s and the dissenting opinion’s
concerns over the timelines the Service drew are not without
reason given the uncertainty of the pace of climate change over
the coming decades. But it is precisely such close judgment
calls about scientifically uncertain data and timing that the
Endangered Species Act assigns to the Service, not this court.
So in upholding the Service’s predictive judgments, we
underscore that, especially “[i]n an area characterized by
scientific and technological uncertainty[,] * * * this court must
proceed with particular caution, avoiding all temptation to
direct the agency in a choice between rational alternatives.”
American Wildlands, 530 F.3d at 1000. Our review is limited
to whether the determination the Service made was reasonable,
adequately explained, and supported by the record when the
decision was made, not whether an arguably better decision
could have been made then or today.
III
For the foregoing reasons, the district court’s judgment
dismissing the case is affirmed.
So ordered.

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