National Association of Home Builders v. United States Fish and Wildlife Service , 34 F. Supp. 3d 50 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
NATIONAL ASSOCIATION OF HOME )
BUILDERS, et al. )
)
Plaintiffs, )
) Civ. Action No. 12-2013 (EGS)
v. )
)
U.S. FISH AND WILDLIFE SERVICE, )
et al., )
)
Defendants. )
________________________________)
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiffs are four organizations1 representing member
landowners and businesses in Central Texas and Washington state.
They seek injunctive and declaratory relief to set aside and
void two Court-approved agreements (“Agreements”) that were made
between environmental advocacy groups and the Fish and Wildlife
Service (“Service”) in 2011 to settle multi-district litigation
(“MDL”). See In re ESA Section 4 Deadline Litig. – MDL No. 2165,
Misc. Action No. 10-377 (D.D.C. 2010), WildEarth Guardians
Settlement Agreement (“Guardians Agreement”), ECF No. 31-1; and
Center for Biological Diversity Settlement Agreement (“CBD
Agreement”), ECF No. 42-1. The Agreements require the Service
1
Plaintiffs are: the National Association of Home Builders,
Olympia Master Builders, Home Builders Association of Greater
Austin, and the Texas Salamander Coalition, Inc. Compl. ¶ 1.
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to determine by certain deadlines whether to list 251 species as
endangered or threatened under the Endangered Species Act
(“ESA”), or find that listing these species is not warranted.
Certain of the 251 species either live on, or could live on,
land owned or used by Plaintiffs’ members. Compl. ¶¶ 32-36.
Plaintiffs do not challenge any particular listing decision.
Pl.’s Opp’n to Defs.’ Mot. to Dismiss 13.
Rather, Plaintiffs claim that the Agreements require the
Service to violate procedures to list species that are mandated
by Section 4 of the ESA. Compl. ¶¶ 80-95.
The Service and Secretary of Interior (“Defendants”) have
moved to dismiss for lack of Article III standing, inter alia.2
The Center for Biological Diversity (“CBD”), one of the
plaintiffs in the MDL, has moved to intervene in support of the
defendants. In their opposition to the motion to dismiss,
Plaintiffs argue that they have standing on the grounds that the
Agreements have caused injury to their members’ conservation,
property, and business interests. Pl.’s Opp’n 12.
This case marks the latest in a series of challenges to the
MDL. This Court and the Circuit Court have considered and
rejected nearly identical standing arguments in three prior
2
Defendants also move to dismiss for failure to state a claim
under the Administrative Procedure Act and the Endangered
Species Act. Defs.’ Mot. to Dismiss at 34-44. Because the Court
concludes plaintiffs have no Article III standing, it need not
reach these alternative arguments.
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decisions concerning the MDL. In re Endangered Species Act
Deadline Litig. (“Safari Club I”), 277 F.R.D. 1 (D.D.C. 2011),
aff'd 704 F.3d 972 (D.C. Cir. 2013) (hereinafter “Safari Club
II”), reh’g en banc denied (Apr. 29, 2013); In re ESA Section 4
Deadline Litig. (“Tejon Ranch”), 270 F.R.D. 1 (D.D.C. 2010). In
Tejon Ranch, TRC, a landowning corporation, moved to intervene
in the MDL on the claim that the Service’s decision to list a
species encompassed by the litigation would injure its
conservation, property and business interests by precipitating
restrictions on the use of its land. Tejon Ranch, 270 F.R.D. at
5. The Court denied TRC’s motion to intervene for lack of
standing. Id. Because the MDL was limited to whether the
Service had followed listing procedures under the ESA, and not
whether the Service had made the correct substantive decision to
list any species, the Court concluded that TRC’s potential
injuries were neither caused by, nor redressable in, the MDL.
Id. In Safari Club I, this Court denied a hunting group’s
motion to intervene in the MDL for the same reason. Safari Club
I, 277 F.R.D. at 3. The hunting group, Safari Club, alleged
that the since-finalized Agreements injured its members’
conservation and procedural interests by requiring the Service
to decide by certain dates whether to list three species that
they hunted. Id. at 4-7. The Court found that Safari Club’s
asserted conservation injury was indistinguishable from TRC’s
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because it was also based entirely on the potential substantive
outcome of the Service’s listing determinations. Id. at 3.
As to Safari Club’s alleged procedural injury, the Court
concluded that Safari Club failed to identify any part of the
Agreements that required the Service to violate procedural
requirements. Id. at 7. Safari Club I was subsequently
affirmed by this Circuit, which found that “Safari Club has
failed to identify a violation of a procedural right afforded by
the ESA that is designed to protect its interests.” Safari Club
II, 704 F.3d at 979.
Even more recently, this Circuit considered, and rejected,
nearly identical standing arguments in Defenders of Wildlife v.
Perciasepe, 714 F.3d 1317 (D.C. Cir. 2013), reh’g en banc denied
(June 10, 2013). In that case, a trade association moved to
intervene on behalf of its members to oppose a consent decree
reached between environmental groups and the Environmental
Protection Agency (“EPA”).3 The consent decree required the EPA
to propose rulemaking under the Clean Water Act (“CWA”) by
certain dates. Perciasepe, 714 F.3d at 1321. The trade
association alleged that the consent decree caused injury to its
members by providing too little time for its members to
participate in the CWA rulemaking, id. at 1323, and requiring
3
The National Association of Home Builders, one of the
plaintiffs in this case, participated in Perciasepe as amicus
curiae in support of the trade association. Id.
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its members to spend money to respond to the EPA’s information
requests, id. at 1326. Again, the Circuit denied the motion to
intervene for lack of standing, holding that the consent decree
did not cause injury to the trade association’s members because
it only established a timeline by which the EPA must conduct a
rulemaking—it did not dictate the substantive content of that
rulemaking. Id. at 1324-26.
Taken together, the above cited cases constitute precedent
that binds this Court on the issue of Article III standing.
Plaintiffs’ arguments for standing are indistinguishable from
those squarely addressed and rejected by the four decisions
described above. Therefore, for the reasons below, the Court
will DENY Plaintiffs’ prayer for injunctive and declaratory
relief and GRANT Defendants’ motion to dismiss. Accordingly,
the Court will DENY as moot Center for Biological Diversity’s
motion to intervene.
II. BACKGROUND
A. Statutory Background
The Endangered Species Act was enacted “to provide a means
whereby the ecosystems upon which endangered species and
threatened species depend may be conserved, [and] a program for
the conservation of such endangered species and threatened
species.” Endangered Species Act of 1973 § 2, 16 U.S.C. §
1531(b) (2012). Section 4 of the ESA directs the Service,
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acting on behalf of the Secretary of Interior, to determine
whether a particular species should be listed as endangered or
threatened, id. § 1533(a), and when such a determination is made,
to designate “critical habitat” for the species, id. §
1533(a)(3)(A)(i). The Service must decide whether to list a
species “solely on the basis of the best scientific and
commercial data available.” § 1533(b)(1)(A). The ESA’s
protections apply only after a species is listed as endangered
or threatened. Id. § 1538(a).
Members of the public may petition the Service to list a
species. See id. § 1533(b)(3). For every petition to list a
species, the Service must find whether listing is (1) not
warranted, (2) warranted, or (3) warranted but precluded by
pending proposals to list other species. Id. § 1533(b)(3)(B).
If listing is warranted, the Service must (1) promptly publish a
proposed rule, id. § 1533(b)(3)(B)(ii), and (2) within one year
publish a final rule, withdraw the proposed rule, or delay a
final decision for up to six months to solicit more scientific
information, id. § 1533(b)(6)(A)(i), 1533(b)(6)(B)(i).
The Service must annually review the species whose listing
is warranted-but-precluded, id. § 1533(b)(3)(C)(i), and
implement a system to monitor their status and “prevent a
significant risk to the well being of any such species,” id. §
1533(b)(3)(C)(iii). In addition, the Service must also
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establish guidelines that include a ranking system to help
identify species that should receive priority review for listing.
Id. § 1533(h)(3).
B. Factual and Procedural Background
The Service annually publishes its latest findings on
warranted-but-precluded species (“candidate species”) in a
Candidate Notice of Review (“CNOR”) published in the Federal
Register. See, e.g., 2010 CNOR, 75 Fed. Reg. 69,222 (Nov. 10,
2010). Because the number of warranted-but-precluded findings
has outpaced the number of listings, the backlog of candidate
species had grown to 251 as of 2010. See id. at 69,224. The
species are afforded no protection under the ESA while on the
candidate list. See 16 U.S.C. § 1538(a).
The Agreements reached in the MDL and at issue in this case
seek to clear the backlog of species on the 2010 CNOR. They do
not dictate that the Service reach any particular substantive
outcome on any petition or listing determination. Safari Club I,
277 F.R.D. at 4. They only require the Service to make some
determination—-to publish either proposed listing rules or not-
warranted findings—-for the backlog of species by the end of
September 2016. Guardians Agreement, MDL, ECF No. 31-1 at 6;
CBD Agreement, MDL, ECF No. 42-1 at 5-6.
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Of the candidate species on the 2010 CNOR, nine subspecies
of Mazama pocket gopher and four species of Texas salamander4
either live on, or could live on, land owned or used by
Plaintiffs’ members. Compl. ¶¶ 32-36. The Mazama pocket gopher
has been a candidate species since 2001, 66 Fed. Reg. 54,808
(Oct. 30, 2001), and three of the four salamander species have
been candidates for more than ten years, see 67 Fed. Reg. 40,657
(June 13, 2002). In 2012, pursuant to deadlines stipulated in
the Agreements, the Service proposed to list four of the nine
subspecies of Mazama pocket gopher as threatened, 77 Fed. Reg.
at 73,770 (Dec. 11, 2012), proposed to list the four species of
salamander as endangered, 77 Fed. Reg. at 50,768 (Aug. 22, 2012),
and also proposed critical habitat in Washington and Texas for
the species proposed for listing, 77 Fed. Reg. at 73,770; 77 Fed.
Reg. at 50,768. The Service also concluded that three of the
nine subspecies of Mazama pocket gopher did not warrant listing,
one subspecies was extirpated, and one subspecies was not
actually a member of the same species (and therefore did not
warrant listing).5 77 Fed. Reg. at 73,770.
4
The four species of salamander at issue are the Austin Blind
salamander, Jollyville Plateau salamander, Georgetown salamander,
and Salado salamander. 77 Fed. Reg. at 50,768.
5
On August 20, 2013, the Service issued a final rule to list the
Austin Blind salamander as endangered and the Jollyville Plateau
salamander as threatened. 78 Fed. Reg. 51,278. On February 24,
2014, the Service issued a final rule to list the Georgetown
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Plaintiffs sued Defendants on December 17, 2012, soon after
the Service published its proposed rules for the Mazama pocket
gopher and salamander species. Importantly, Plaintiffs do not
challenge any final rules to list species covered by the
Agreements. Rather, all of Plaintiffs’ claims arise from the
timelines, set by the Agreements, for the Service to determine
whether or not listing is warranted. Compl. ¶¶ 80-95.
III. DISCUSSION
Defendants move to dismiss for lack of Article III standing.
Defs.’ Mem. 16-23. Plaintiffs oppose Defendants’ motion and
assert representational standing on behalf of its members. Pl’s
Opp’n 10. Plaintiffs assert three bases for their members’
standing: (1) the Agreements will impair members’ existing and
future conservation efforts; (2) they will increase regulatory
restrictions on members’ use of private land, causing economic
harm; and (3) the Agreements cause FWS to breach its legally
required procedures, and those breaches harm members’ concrete
interests. Pl.’s Opp’n 9, 12-13, 22.
A. Article III Standing
Standing is the threshold question in every federal case
that determines the Court’s power to entertain the suit. Warth
v. Seldin, 422 U.S. 490, 498 (1975). To establish
salamander as endangered and the Salado salamander as threatened.
79 Fed. Reg. 10,236.
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representational standing, an association must demonstrate that
“(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to
the organization’s purpose; and (c) neither the claim asserted
nor the relief requested requires the participation of
individual members in the lawsuit.” Nat’l Ass’n of Home
Builders v. E.P.A., 667 F.3d 6, 12 (D.C. Cir. 2011) (quotation
marks omitted). The government disputes the first of these
elements: whether Plaintiffs’ members would have standing to sue
in their own right.
To establish that their members have Article III standing
in their own right, Plaintiffs must demonstrate that their
members have suffered 1) an injury in fact, 2) fairly traceable
to the challenged action, that is 3) redressable by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). An injury in fact must be “(a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Id. at 560 (citations and internal quotation
marks omitted). The injury “must be certainly impending,” and
“‘[a]llegations of possible future injury’ are not sufficient.”
Clapper v. Amnesty Intern., 133 S. Ct. 1138, 1147 (2013)
(emphasis in original).
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1. Injuries resulting from the rulemaking process
Plaintiffs allege two types of injury resulting from the
Agreements’ effect on the listing process. At the outset, the
Court notes that this Circuit in Perciasepe rejected standing
based on similar assertions of injury resulting from a
settlement agreement’s effect on the rulemaking process. In
Perciasepe, appellant-intervenor sought standing based on
asserted injury resulting from a consent decree that required
the Environmental Protection Agency (“EPA”) to propose
rulemaking by a certain date. 714 F.3d at 1321-1322. The
Circuit found that:
the consent decree does not require EPA to promulgate
a new, stricter rule. Instead, it merely requires that
EPA conduct a rulemaking and then decide whether to
promulgate a new rule—the content of which is not in
any way dictated by the consent decree—using a
specific timeline.
Id. at 1324 (emphasis in original). Perciasepe thus rejected
intervenor’s standing, because “Article III standing requires
more than the possibility of potentially adverse regulation.”
Id. at 1324-25.6
6
A number of decisions in this court, including but not limited
to the opinions in the MDL and discussed above, have found no
standing in similar circumstances. See, e.g., Ctr. for
Biological Diversity v. EPA, 274 F.R.D. 305, 311 (D.D.C. 2011)
(finding that aircraft manufacturers had no standing to
intervene in action which sought to compel EPA to respond to
plaintiffs’ petitions to regulate greenhouse gases, because the
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The same reasoning applies here. Like the consent decree
in Perciasepe, the Agreements “do not dictate that [the Service]
reach any particular substantive outcome on any petition or
listing.” Safari Club I, 277 F.R.D. at 4. They merely require
the Service to determine—according to a specific schedule—
whether listing of the species is warranted or not. Id. “That
the consent decree prescribes a date by which regulation could
occur does not establish Article III standing.” Perciasepe, 714
F.3d at 1325 (emphasis in original). Similarly, that the
Agreements set dates by which the Service could list warranted
species does not establish Article III standing for Plaintiffs.
This reasoning informs the following discussion of Plaintiffs’
asserted injuries.
a. Injury to conservation efforts
Plaintiffs first argue that their members have standing
because the Agreements impair their members’ existing and future
conservation efforts. Pl.’s Opp’n 14. Specifically, Plaintiffs
claim that the Agreements require the Service to propose listing
candidate species by certain dates without taking into account
court’s decision would only “require EPA to make the
determination (whether greenhouse gases endanger public health),
not to reach any particular result.”); Envtl. Defense v. Leavitt,
329 F. Supp. 2d 55, 68 (D.D.C. 2004) (holding that coal industry
group lacked standing to challenge consent decree requiring the
EPA to issue clean air regulations by a date certain, because
“the decree does not address the substance of the [regulations]
but merely sets a schedule for their promulgation.”)
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conservation efforts by their members that could reduce or
eliminate the need to list the species. Id. at 18.
Plaintiffs’ “conservation interest” basis for standing is
similar to that rejected by this Court in Tejon Ranch. In that
case, private property owners (“TRC”) sought standing to
intervene in litigation seeking to compel the Service to
determine by a certain date whether listing of the Tehachapi
slender salamander species was warranted. See Tejon Ranch, 270
F.R.D. at 2. TRC owned land that the Tehachapi slender
salamander lived on, and had spent years working with the
Service on a conservation plan for the species. Id. at 3. TRC
claimed that the timing of the Service’s listing determination
would injure its interest in ensuring that the conservation plan
would be approved and properly considered prior to listing the
species. Id. at 5. This Court found that:
TRC’s claims of injury from the timing of the [Service’s]
listing decision . . . fail to establish standing . . .
TRC’s purported interest is in ensuring that its
[conservation plan] will be approved and properly
considered prior to listing the Tehachapi slender
salamander. It is unclear how intervening here would
protect that interest. TRC does not allege and has not
shown that its proposed habitat conservation plan will be
approved or denied as a result of the instant lawsuit. . . .
Because TRC has failed to show both causation and
redressability with respect to this injury . . . the Court
finds that TRC does not have standing to intervene in this
case.
Id. at 5. Another judge on this court reached a similar
conclusion in Envt’l Defense v. Leavitt, in which a coal
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industry group attempted to challenge a consent decree which
required the EPA to issue certain clean air regulations within a
specified timeframe, but did not address the substance of those
regulations. 329 F. Supp. 2d 55 (D.D.C. 2004). The industry
group claimed that its interests were harmed because the
regulations would be “artificially expedited” which would
prevent “due deliberation.” Id. at 68. The court rejected the
claim, holding that the industry group “fail[ed] to show that
the suggested timetable is inadequate or that modifications to
the timetable are likely to be necessary, or that any such
inadequacies or modifications would result in injury or
impairment to” the industry group. Id.
The same analysis applies here. Plaintiffs do not show
that their members’ conservation efforts will be found
sufficient or insufficient to protect the species as a result of
the deadlines set forth in the Agreement. They also do not show
that the Service will ignore or discount their conservation
efforts as a result of the Agreements. Nor do Plaintiffs show
the time-frames set forth in the Agreement are inadequate for
the Service to make a determination whether or not listing is
warranted. Nor could they, since the gopher and salamander
species at issue have been on the candidate list for at least
ten years.
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Plaintiffs’ reliance on County of San Miguel v. MacDonald,
244 F.R.D. 36 (D.D.C. 2007), is unavailing. In San Miguel,
trade associations sought standing to intervene in an action
seeking injunctive relief to order the Service to list a species
of bird as “endangered” after the Service had determined that
listing was “not warranted.” Id. at 38. The trade association-
intervenors argued that the relief sought would injure their
members’ existing and future conservation efforts to avoid
listing the species. Id. at 44. The Court found that the trade
associations had standing to intervene because the alleged
injury to their members’ conservation efforts to avoid a listing
was fairly traceable to the relief sought, and redressable by a
decision favorable to the intervenors. Id. at 44-45. Here, the
Agreements that Plaintiffs oppose do not contemplate or dictate
any actual listing decision for the species at issue. They only
require the Service to find by specific dates whether listing of
such species is warranted. Guardians Agreement, ECF No. 31-1 at
6; CBD Agreement, ECF No. 42-1 at 5-6. Acting under the
schedule set forth in the Agreements, the Service has since
found that listing is actually not warranted for five of the
nine candidate subspecies of Mazama pocket gopher at issue. 77
Fed. Reg. at 73,770. Accordingly, the Court does not see how
injury to Plaintiffs’ members is fairly traceable to the
Agreements—as opposed to the Service’s actions independent of
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the Agreements—or redressable by a court order to set them aside.
See Perciasepe, 714 F.3d at 1325 (finding no standing where
injury was based on the potential substantive outcome of the
EPA’s rulemaking); Safari Club I, 277 F.R.D. at 6 (finding no
standing where injury was based on the potential substantive
outcome of the Service’s listing decision); Tejon Ranch, 270
F.R.D. at 5 (same).
In an effort to show that the voluntary conservation
efforts of their members are consistent with the ESA, Plaintiffs
point out that the Service has issued an advance notice of
proposed rulemaking to create incentives for landowners to take
voluntary conservation actions. Pl.’s Opp’n 16 (citing 77 Fed.
Reg. at 15,352 (March 15, 2012)). However, referencing the
Service’s intent to promote voluntary conservation does nothing
to confer standing where the alleged conservation injury is
neither traceable to, nor redressable by, the Agreements that
Plaintiffs seek relief from. Put otherwise, Plaintiffs fail to
establish that the Agreements, not the Service’s alleged failure
to recognize their members’ conservation efforts, cause the
injury that their members complain of. See Perciasepe, 714 F.3d
at 1325 n.7 (finding that the EPA’s statements that it intended
to update regulation did not confer standing, because
“[intervenor] has the burden to establish that the consent
decree—not EPA’s throat clearing—will cause the injury of which
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it complains.”). Furthermore, as Defendants point out,
“voluntary efforts to undertake pre-listing [conservation
actions] provide no basis for Plaintiffs’ purported injury.”
Def.’s Reply 9. Plaintiffs “cannot manufacture standing by
choosing to make expenditures based on hypothetical future harm
that is certainly not impending.” Clapper, 133 S. Ct. at 1143
(finding no standing for respondents whose alleged injury
consisted of costs incurred to avoid risk of harm by the
Government).
Because Plaintiffs fail to show that the injury is fairly
traceable to the Agreements or redressable by an order to set
them aside, the Court finds that Plaintiffs do not have standing
based on a purported injury to their members’ conservation
efforts.7 8
7
By extension, for the same failure to satisfy the traceability
and redressability elements, Plaintiffs would also lack standing
to challenge the Agreements if the Service ultimately lists the
species covered by the Agreements. Plaintiffs could, of course,
directly challenge the final listing decision. See, e.g.,
Safari Club II, 704 F.3d at 977 (citation omitted).
8
To the extent that Plaintiffs separately allege that their
members’ conservation interest is injured by the Service’s
warranted-but-precluded findings for candidate species living on
their land, see Pl.’s Opp’n 14 (“[t]he presence of candidate
species . . . on private property has a palpable effect on . . .
Plaintiffs’ members”), the Court fails to see how setting aside
the Agreements protects that interest. Plaintiffs could have
sought judicial review of the Service’s finding at any point
during the up to ten years that the species at issue were
warranted-but-precluded. See 16 U.S.C. § 1533(b)(3)(C)(ii)
(2012).
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b. Regulatory restrictions on property use and
business operations
Plaintiffs also assert that the Agreements precipitate
additional pre-listing regulatory restrictions by local
authorities that injure their members’ property and business
interests. Pl.’s Opp’n 22. Plaintiffs illustrate this claim
with a declaration by John Kaufman, a Plaintiff-member land
developer in Washington state. Kaufman Decl. ¶¶ 1-4, ECF No.
14-2. Kaufman states that in the years before the Agreements,
he engaged in efforts to protect the Mazama pocket gopher
candidate species on his land in order to comply with state and
local conservations and potentially obviate federal listing.
See Kaufman Decl. ¶¶ 8-16. He states that his habitat
management plan was “on track for final approval” by state and
local authorities. Id. ¶ 17. According to Kaufman, once the
Service entered into the Agreements, local authorities asked the
Service to comment on his plan, id. ¶ 19, the Service
recommended that the plan be modified, id. ¶ 20, and the local
authorities then required Kaufman to implement these
recommendations before they approved the plan, id. ¶ 20. From
this sequence of events, Kaufman infers that “[w]hat [local
authorities] deemed adequate protection for a ‘candidate’
species was suddenly not enough” once the Agreements were
approved. Id. ¶ 24.
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An action by a third party not before the court may cause
injury for Article III standing when that action is a result of
a determinative or coercive effect upon that third party. See
Bennett v. Spear, 520 U.S. 154, 169 (1997). In Bennett, the
Supreme Court held that Oregon ranchers had standing to
challenge a Biological Opinion issued by the Service because the
Opinion caused the Bureau of Reclamation to reduce water flows,
which injured the ranchers. Id. at 169-71. The Supreme Court
found that the Biological Opinion had a determinative or
coercive effect on the Bureau because the Bureau would be
subject to the Service’s enforcement action if it did not comply
with the Opinion. Id. at 170. Here, Plaintiffs do not show
that the Service’s recommendations had a determinative or
coercive effect on local authorities such that they were
compelled to implement the recommendations. Def.’s Reply 16,
n.10 (explaining that the local authorities faced “no legal
consequences if they disagreed with the Service’s
recommendations” regarding Plaintiff’s proposed habitat
management plan). That the local authorities independently
sought out and incorporated the Service’s recommendations once
the Agreements were announced does not establish that the
Agreements caused them to do so.
Injury cannot be the result of “the independent action of
some third party not before the court.” Lujan, 504 U.S. at 560.
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Plaintiffs fail to show that the Agreements—as opposed to the
Service’s actions separate from the Agreements, or the
independent action of local authorities—caused or will cause
increased regulatory restrictions. Again, the Agreements “only
require the Service to determine whether or not to list the [251
candidate] species within the next several years, not to reach
any particular result.” See Safari Club I, 277 F.R.D. at 5.
Nor do Plaintiffs show that local authorities were compelled to
adopt the Service’s regulatory recommendations. Accordingly,
Plaintiffs cannot establish their members’ standing based on
increased regulatory restrictions resulting from the Agreements.
See Perciasepe, 714 F.3d at 1327 (denying standing where trade
association did not support its argument that a consent decree,
rather than the EPA’s actions apart from the decree, caused the
purported injury).
2. Procedural violations underlying Plaintiffs’
injuries
Plaintiffs’ alleged injuries are based on the underlying
claim that by acting pursuant to the Agreements, the Service
fails to follow ESA-mandated procedures. See Compl. ¶ 80-95.
To establish standing to challenge the Service’s failure to
abide by a statutory procedure, Plaintiffs must show that the
procedures in question are “designed to protect some threatened
concrete interest” of their members. Florida Audubon Soc. v.
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Bentsen, 94 F.3d 658, 667 (D.C. Cir. 1996) (quoting Lujan, 504
U.S. at 573 n.8). Plaintiffs must also show “not only that the
defendant's acts omitted some procedural requirement, but also
that it is substantially probable that the procedural breach
will cause the essential injury to the plaintiff's own interest.”
Id. at 664-665. For the reasons below, the Court finds that
Plaintiffs fail to do so, and therefore lack standing on the
basis of alleged procedural violations.
First, Plaintiffs claim that the Agreements require the
Service to abandon statutorily required procedures for
determining whether listing a candidate species is precluded.
Compl. ¶¶ 76, 81-82. Second, they claim that the Service
discards the procedure for prioritizing candidate species for
listing. Id. ¶¶ 77, 84-86. Third, Plaintiffs claim that the
Agreements change the procedure for listing species without
allowing public notice and comment. Id. ¶ 78, 91-95. Finally,
they claim that the Agreements require the Service to make
decisions that disregard the best scientific and commercial data
available. Id. ¶¶ 77, 88-89.
These claims of procedural violations have been considered
and rejected by this Court and Circuit in Safari Club I and
Safari Club II. In the Safari Club cases, movant-intervenor
Safari Club proffered a number of procedural bases for standing
to intervene in the MDL that gave rise to the Agreements.
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Safari Club first claimed that the ESA required the Service to
decide whether listing was precluded before proposing to list a
species. Safari Club II, 704 F.3d at 977. The Circuit found
that:
[a]lthough the Service must make one of three
findings—that listing a species is not warranted, is
warranted, or is warranted but precluded . . . , 16
U.S.C. § 1533(b)(3)(B), the ESA does not require the
Service to find that listing a species is precluded
under any specific circumstances.
Safari Club II, 704 F.3d at 977. Plaintiffs have not attempted
to distinguish their claim from Safari Club’s.
Next, Plaintiffs claim that by entering into the Agreements,
the Service modified its priority ranking system such that the
Service no longer proposed to list candidate species in the
order of their assigned priority number. Id. ¶¶ 77, 84-86.
Again, this claim was considered and rejected in the Safari Club
decisions. This Court found that:
[while] the [ESA] requires [the Service] to establish
guidelines to include “a ranking system to assist in
the identification of species that should receive
priority review[,]” [16 U.S.C. § 1533(h),] [t]he
rankings do not create any requirement—procedural or
otherwise—that the agency consider the species in the
order they are ranked.
277 F.R.D. at 7. The same is true here of Plaintiffs’ second
claim.
Safari Club also asserted that the Service may not modify
its priority ranking system without proper notice and comment.
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Id. As to that assertion, this Court held that the ESA “does
not require that [the Service] must provide notice and comment
before applying the [priority listing] guidelines to any
species.” Id. (explaining that when the Service adopted the
priority guidelines thirty years ago, the Service stated “the
priority systems presented must be viewed as guides and should
not be looked upon as inflexible frameworks for determining
resource allocations.” 48 Fed. Reg. 43,098 (Sept. 21, 1983).
On appeal, the Circuit similarly found that “neither the ESA nor
the implementing regulations require the Service to invite
comment when it makes a warranted-but-precluded finding.” See
Safari Club II, 704 F.3d at 979 (citing 16 U.S.C. §
1533(b)(3)(B)(2012)). Again, Plaintiffs’ “notice and comment”
claim is virtually identical those asserted by Safari Club in
this Court and on appeal, and is rejected for the same reasons.
Finally, Plaintiffs claim that the Agreements compel the
Service to make warranted findings without regard for the best
scientific and commercial data available. Id. ¶¶ 77, 88-89.
This Circuit has already found that the ESA does not provide a
mechanism for judicially reviewing warranted findings. 16 U.S.C.
§ 1533(b)(3)(C)(ii)(2012); Safari Club II, 704 F.3d at 977; see,
e.g., Bldg. Indus. Ass’n v. Norton, 247 F.3d 1241, 1246-47 (D.C.
Cir. 2001) (finding that “[a]ppellants misread § 1533(b)(1)(A):
the Service must utilize the ‘best scientific . . . data
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available,’ not the best scientific data possible.”). “When the
Service proposes to formally list a [candidate] species, the ESA
provides no means for the Safari Club to assert that formal
listing of the species is precluded. Congress’ failure to
provide the Safari Club with a means to require continued
warranted-but-precluded findings reinforces the conclusion that
the ESA contains no such procedural right.” Safari Club II, 704
F.3d at 977-78.9
In short, Plaintiffs’ assertions that the Service violates
Section 4 procedures for listing species are indistinguishable
from those that this Court and Circuit considered and rejected
in the Safari Club cases. They neither identify a listing
procedure that the Agreements require the Service to violate,
nor identify a listing procedure that is designed to protect
their members’ interests. Therefore, Plaintiffs fail to
establish standing based on alleged violations of statutory
procedure.
9
The Court notes that Plaintiffs aggrieved by a warranted
finding—and the proposed rule that issues from such a finding-
are not without remedy. Plaintiffs may request a public hearing
on the proposed rule. 16 U.S.C. § 1533(b)(5)(E)(2012). And
Plaintiffs may challenge the Service’s final rule listing the
species, if such listing occurs. Safari Club II, 704 F.3d at
977; see, e.g., In re Polar Bear Endangered Species Act Listing
and Section 4(d) Rule Litig., 709 F.3d 1, 2 (D.C. Cir. 2013)
(considering challenges to the Service’s listing of the polar
bear as a threatened species).
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IV. CONCLUSION
Plaintiffs do not establish injury to their members
sufficient for Article III standing. On the theory of injury to
their members’ conservation interests, the alleged injury is not
fairly traceable to the Agreements or redressable by an order to
set them aside. On the theory of increased regulatory
restrictions prior to listing, Plaintiffs fail to show that the
Agreements cause or will cause those restrictions, or that the
Service compelled a third party to adopt them. Finally,
Plaintiffs do not establish that the Section 4 listing
procedures are designed for their members’ benefit, or that the
Agreements require the Service to violate any statutory
procedure. The Court notes that Plaintiffs aggrieved by the
listing process are not without remedy. “Warranted-but-
precluded” findings are judicially reviewable. In addition,
Plaintiffs aggrieved by a warranted finding may challenge the
Service’s final rule listing the species. Accordingly, for the
reasons stated herein, the Court GRANTS Defendants’ motion to
dismiss and DENIES Plaintiffs’ prayer for injunctive and
declaratory relief. In light of the foregoing, the Court DENIES
AS MOOT Center for Biological Diversity’s motion to intervene in
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this action. An appropriate Order accompanies this Memorandum
Opinion.
SO ORDERED.
SIGNED: Emmet G. Sullivan
United States District Court Judge
March 31, 2014
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