Center for Biological Diversity v. Bernhardt ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
CENTER FOR BIOLOGICAL )
DIVERSITY, et al., )
)
Plaintiffs, )
)
v. ) Case No. 19-cv-02898 (APM)
)
DAVID BERNHARDT, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiffs Center for Biological Diversity and Center for Food Safety are two
environmental nonprofit organizations. On behalf of themselves and their members, they bring
this action to challenge a memorandum issued in 2018 by the former Acting Director of the United
States Fish and Wildlife Service, which withdraws a memorandum issued four years earlier stating
the agency’s intent to phase out most uses of neonicotinoid pesticides and genetically modified
crops within the National Wildlife Refuge System. Plaintiffs claim that the issuance of the 2018
Memorandum violates multiple statutes, including (1) the Administrative Procedure Act, (2) the
National Wildlife Refuge System Administration Act as amended by the National Wildlife Refuge
System Improvement Act, (3) the National Environmental Policy Act, and (4) the Endangered
Species Act. Defendants move to dismiss all claims for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiffs lack standing and that their claims
are not ripe for adjudication. Defendants also move to dismiss for failure to state a claim under
Rule 12(b)(6), because the 2018 Memorandum is not a final agency action.
Because the court finds that Plaintiffs lack standing, it grants Defendants’ Rule 12(b)(1)
motion on that ground. As a result, the court does not address Defendants’ arguments regarding
ripeness or finality.
II. BACKGROUND
A. Factual Background
1. The 2014 Memorandum
On July 17, 2014, James W. Kurth, Chief of the National Wildlife Refuge System
(“System”), issued an internal memorandum to the Regional Refuge Chiefs for Regions 1–8
concerning the use of agricultural practices for wildlife management within national wildlife
refuges. Compl., ECF. No. 1 [hereinafter Compl.], Ex. A, ECF No. 1-2 [hereinafter 2014 Memo].
Kurth made two policy announcements relevant to this case. First, he declared that the United
States Fish and Wildlife Service (“Service”) would “no longer use neonicotinoid pesticides in
agricultural practices used in the System.” Id. Neonicotinoid pesticides (“neonics”) are
“neurotoxic pesticides that are known to cause adverse impacts on a wide range of taxonomic
groups, especially bird, aquatic insect, and pollinator species.” Compl. ¶ 97. Invertebrates
exposed to neonics may suffer from “nervous system overstimulation and eventually paralysis and
death.” Id. ¶ 98. Vertebrates “can experience similar toxicity issues,” leading to “decreases in
fat stores and body mass, reproductive effects, and failure to orient correctly during migration.”
Id. The 2014 Memorandum reflected the Leadership Team’s conclusion that “prophylactic use”
of neonics could distribute the pesticides systemically within plants and could “potentially affect
a broad spectrum of non-target species” in a manner “not consistent with Service policy.” 2014
Memo at 1. Stopping short of instituting a blanket ban, the Service acknowledged that there could
be “appropriate and specialized uses of [neonics]” and stated that decisions on those uses would
2
be “subject to review through all applicable laws, regulations, and policies, including, but not
limited to, the National Environmental Policy Act [‘NEPA’].” Id.
Second, the 2014 Memorandum declared that the Service would “phase out the use of
genetically modified crops [‘GMCs’] to feed wildlife.” Id. GMCs are genetically engineered to
resist otherwise lethal amounts of target pesticides, thus permitting “increased pesticide spraying
at increased intervals during farming season.” Compl. ¶¶ 109, 111. Because the System
demonstrated its ability “to successfully accomplish refuge purposes . . . without using genetically
modified crops,” the Service determined that “it is no longer possible to say that their use is
essential to meet wildlife management objectives.” 2014 Memo at 2. As with neonic use, the
Service did not place a ban on GMCs, but stated that it would “consider whether the[ir] temporary
use . . . in habitat restoration is essential on a case-by-case basis.” Id.
2. The 2018 Memorandum
These policies would be modified four years later. On August 2, 2018, Gregory J.
Sheehan, the Acting Director and Principal Deputy Director of the Service, issued a two-page
internal memorandum to the Service Directorate “withdrawing the [2014 Memorandum] in full.”
Compl., Ex. B, ECF No. 1-3 [hereinafter 2018 Memo], at 2. Addressing the issue of GMC use
within refuges, Sheehan announced that, because there may be situations “where use of GMO crop
seeds is essential to best fulfill the purposes of the refuge and the needs of birds and other wildlife,”
the “blanket denial” of GMC use “does not provide on-the-ground latitude for refuge managers to
work adaptively and make field level decisions about the best manner to fulfill the purposes of the
refuge.” Id. Sheehan stated that the Service would “determine the appropriateness of the use of
[GMCs] on a case-by-case basis, in compliance with all relevant and controlling legal authorities
(including NEPA) and Service policies.” Id.
3
 The 2018 Memorandum announced a similar change with respect to neonics. No longer
would there be a presumptive ban on their use. Rather, because neonics “may, or may not, be
needed to fulfill needed farming practices,” “[c]onsideration” of their use would now also be
subject to a “case-by-case” analysis in compliance with the appropriate authorities. Id.
The 2018 Memorandum concluded by providing a non-exhaustive list of refuges that “may
consider” GMC seed use but noted that such use could not resume in Region 5 until any NEPA
review is complete and the use is compliant with the settlement agreement reached in Delaware
Audubon Society, Inc. v. Secretary of U.S. Department of Interior, 612 F. Supp. 2d 442 (D. Del.
2009). 2018 Memo at 2.
B. Procedural History
On September 26, 2019, Plaintiffs filed this suit against the Service and the United States
Department of the Interior, as well as David Bernhardt and Margaret Everson in their official
capacities (collectively, “Defendants”). Plaintiff Center for Biological Diversity (“CBD”) is
“dedicated to the protection of native species and their habitats through science, policy, education,
and environmental law.” Compl. ¶ 14. Plaintiff Center for Food Safety (“CFS”) strives “to
protect food, farmers, and the environment from the adverse impacts of industrial agriculture” by
“generat[ing] public involvement, education, and engagement with government officials” on
relevant issues. Id. ¶¶ 18–19. On behalf of themselves and their members, Plaintiffs seek
declaratory and injunctive relief. Id. ¶ 10.
Plaintiffs assert three claims. First, they contend that the 2018 Memorandum runs afoul
of the National Wildlife Refuge System Administration Act and is otherwise arbitrary and
capricious in violation of Section 706(2)(A) of the Administrative Procedure Act (“APA”).
Compl. ¶¶ 148–170. Next, they claim that Defendants violated the procedural requirements of
4
NEPA and Sections 706(2)(A) and 706(1) of the APA. Compl. ¶¶ 171–82. Finally, Plaintiffs
allege that Defendants—prior to issuing the 2018 Memorandum—failed to comply with the
procedural and substantive requirements of the Endangered Species Act (“ESA”), particularly the
requirement that the Service consult internally to determine whether the 2018 Memorandum would
“jeopardize the continued existence” of any endangered or threatened species, see 16 U.S.C.
§ 1536(a)(2). Compl. ¶¶ 183–89.
On December 6, 2019, Defendants filed their Motion to Dismiss, arguing that the court
lacks subject matter jurisdiction and that Plaintiffs fail to state a claim. Defs.’ Mot. to Dismiss
Pls.’ Compl., ECF No. 15 [hereinafter Defs.’ Mot.].
III. LEGAL STANDARD
Because the court resolves this matter on the question of standing, it sets forth only that
legal standard here. A federal court must presume that it “lack[s] jurisdiction unless the contrary
appears affirmatively from the record.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3
(2006). The party asserting jurisdiction has the burden of demonstrating the contrary, including
establishing the elements of standing. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Standing must be
demonstrated “for each claim,” DaimlerChrysler, 547 U.S. at 352 (citation and internal quotation
marks omitted), “with the manner and degree of evidence required at the successive stages of
litigation,” Lujan, 504 U.S. at 561.
On a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), the court must accept
all well-pleaded factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v.
Food & Drug Admin., 402 F.3d 1249, 1253–54 (D.C. Cir. 2005). But the court need not assume
the truth of legal conclusions, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), or “accept inferences
5
that are unsupported by the facts set out in the complaint,” Islamic Am. Relief Agency v. Gonzales,
477 F.3d 728, 732 (D.C. Cir. 2007). “Threadbare recitals of the elements of [standing], supported
by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. If a complaint does not
contain sufficient factual matter “to state a claim [of standing] that is plausible on its face,” it must
be dismissed. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court
may consider “such materials outside the pleadings as it deems appropriate to resolve the question
whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. Of Elections & Ethics, 104
F. Supp. 2d 18, 22 (D.D.C. 2000); see Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.
1992).
IV. DISCUSSION
To maintain an action in federal court, a plaintiff must satisfy the traditional elements of
Article III standing: (1) “an injury-in-fact,” (2) “that is fairly traceable to the challenged conduct
of the defendant,” and (3) “that is likely to be redressed by a favorable judicial decision.” Spokeo,
Inc. v. Robins, 578 U.S. ___, ___, 136 S. Ct. 1540, 1547 (2016). An injury-in-fact is “an invasion
of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (cleaned up). To maintain jurisdiction,
the court need only find that one plaintiff has standing. Mendoza v. Perez, 754 F.3d 1002, 1010
(D.C. Cir. 2014).
Here, Plaintiffs offer three primary theories of standing. First, they argue that they have
organizational standing to bring suit on their own behalf. Second, they contend that they have
associational standing to bring suit on behalf of their members. Third, they assert procedural
standing based on violations of NEPA and the ESA. The court addresses each theory in turn.
6
A. Organizational Standing
An organization may assert standing on its own behalf, but to do so it must, “like an
individual plaintiff,” “show actual or threatened injury in fact that is fairly traceable to the alleged
illegal action and is likely to be redressed by a favorable court decision.” Equal Rights Ctr. v.
Post Properties, Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011) (internal quotation marks omitted).
In evaluating whether the organization has suffered a concrete and demonstrable injury, a court
must ask “first, whether the agency’s action or omission to act injured the organization’s interest
and, second, whether the organization used its resources to counteract that harm.” Food & Water
Watch, Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015) (alteration adopted).
To establish an injury to its interest, “an organization must allege that the defendant’s
conduct perceptibly impaired the organization’s ability to provide services.” Id. (quoting Turlock
Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C. Cir. 2015)). An organization’s ability to provide
services is perceptibly impaired “when the defendant’s conduct causes an ‘inhibition of [the
organization’s] daily operations.’” Id. (quoting PETA v. USDA, 797 F.3d 1087, 1094 (D.C. Cir.
2015)). Use of an organization’s resources “for litigation, investigation in anticipation of
litigation, or advocacy” does not create a cognizable Article III injury. Id. at 919. The same is
true when the organization “expends resources to educate its members and others unless doing so
subjects the organization to operational costs beyond those normally expended.” Id. at 920
(cleaned up). In this case, neither Plaintiff has alleged a sufficient injury to its organizational
interests.
At the outset, Plaintiffs claim that the 2018 Memorandum impaired their ability to protect
species and habitats on national wildlife refuges because “practices that are known to be harmful
to species”—ostensibly the use of GMCs and neonics—“can now be used across the Refuge
7
System.” Pls.’ Opp’n to Defs.’ Mot. to Dismiss, ECF No. 18 [hereinafter Pls.’ Opp’n], at 34.
They further contend that the Service has developed “proposed guidance for implementing the use
of [neonics] authorized by the [2018 Memorandum].” Id. But those arguments overstate the
actual effect of the 2018 Memorandum. Although it withdraws the 2014 Memorandum’s
restrictions in full, and thereby effects a change in policy, the 2018 Memorandum does not
authorize the use of neonics or GMCs throughout the System or within any particular refuge. By
its own terms, the 2018 Memorandum contemplates only the “consideration” of such practices on
a “case-by-case basis.” 2018 Memo at 2. And before the Service can permit the use of either
practice, the agency must “compl[y] with all relevant and controlling legal authorities (including
NEPA) and Service policies.” Id. Those additional requirements explain why, despite multiple
requests, as of the date of Plaintiffs’ Complaint, the Service “has not authorized the use of any
genetically modified crops or neonicotinoid pesticides as a result of the 2018 memo.” Defs.’
Mot., Ex. 1, Martinez Decl., ECF 15-2, ¶¶ 6, 16. Events following the close of briefing underscore
the antecedent nature of the 2018 Memorandum. The Service on March 30, 2020, issued a draft
Programmatic Environmental Assessment and on June 4, 2020, issued a final Assessment for GMC
use on refuges in the Southeastern United States. See Defs.’ Second Notice of Recent Events,
ECF No. 28 at 1–2. The final Assessment notes the Southeastern refuges “will use a tiered
analysis to determine whether to permit the use of genetically engineered crops on a particular
refuge,” which will include various additional environmental assessments. Id. at 2 (emphasis
added); id., Ex. A, ECF No. 28-1, at 163. As the steps taken following the 2018 Memorandum
and the additional evaluations still to come show, Plaintiffs cannot plausibly allege the perceptible
impairment necessary to establish an injury to their interests stemming from the 2018
Memorandum.
8
Plaintiffs also argue that the 2018 Memorandum caused injury when it required them to
reallocate significant staff time, expertise, and funds to counteract the harm to their missions.
Pls.’ Opp’n at 35. In his declaration, Andrew Kimbrell, the Executive Director of CFS, states that
the organization “sent out at least four different wildlife refuge alerts and appeals to its members
specifically notifying them” of the Service’s reversal. Pls.’ Opp’n, Kimbrell Decl., ECF No. 18-
8 [hereinafter Kimbrell Decl.], ¶ 20. To produce those alerts, “staff time was diverted from other
pressing education and outreach tasks related to CFS’s pesticide and pollinator programs, such as
the harm of pesticide and [genetically engineered] crops in other agricultural settings.” Id. ¶ 21.
Kieran Suckling, the Executive Director of CBD, recounts a similar impact. He states: “[S]taff
time was diverted from other important conservation issues, such as informing the public about
water pollution from industrial animal feeding operations, the environmental impacts of invasive
species, or the various impacts of pesticide exposure to species, the environment, and public
health.” Pls.’ Opp’n, Suckling Decl., ECF No. 18-9 [hereinafter Suckling Decl.], ¶¶ 26–27.
Those injuries, however, are analogous to the injuries considered and rejected by the
D.C. Circuit in Food & Water Watch. Plaintiff in that case was a consumer group challenging
USDA poultry regulations that shifted responsibility for certain inspection tasks from federal
inspectors to industry personnel. 808 F.3d at 910–11. In defense of its organizational standing,
the group stated that, due to the new regulations, it would have to increase resources spent on
educating the general public that a USDA inspection legend did not mean that the poultry product
was safe and persuading its members to avoid poultry products not inspected by government
personnel. Id. at 920. The Circuit held that the group had not shown that its organizational
activities had been “perceptibly impaired.” Id. at 921. Instead, the group had “alleged nothing
more than abstract injury to its interests that [was] insufficient to support standing.” Id.
9
 So, too, here. The activities identified in the Kimbrell and Suckling declarations more
closely resemble component parts of larger advocacy and lobbying efforts. Kimbrell admits that
CFS’s alerts to its members are intended to “rally[] them to take actions to counter the 2018
[Memorandum].” Kimbrell Decl. ¶ 20. And Suckling states that CBD’s alerts to its members
and the general public are meant to “encourage[] them to sign onto a petition to [the Service]
requesting that [neonic and GMC use] be discontinued in national wildlife refuges.” Suckling
Decl. ¶ 25. These types of efforts have long been considered insufficient to establish a cognizable
organizational injury. See Turlock, 786 F.3d at 24; Ctr. For Law & Educ. v. Dep’t of Educ., 396
F.3d 1152, 1161 (D.C. Cir. 2005) (“This Court has not found standing when the only ‘injury’ arises
from the effect of the regulations on the organizations’ lobbying activities.”). 1
Plaintiffs’ attempt to distinguish Food & Water Watch is unconvincing. They assert that,
in that case, the plaintiff failed to establish organizational standing because “the injuries identified
were in the form of future expenditure[s] of resources and time . . . not present expenditures.”
Pls.’ Opp’n at 38. By contrast, Plaintiffs here “allege significant past and ongoing diversions of
resources as a result of the 2018 [Memorandum].” Id. But the Circuit’s reasoning in Food &
Water Watch ascribes no weight to that temporal distinction. In arriving at its holding, the Circuit
found it instructive to compare the facts before it to those in PETA v. USDA. 808 F.3d at 920–
21. There, PETA claimed that the USDA had violated the law by not applying the Animal
Welfare Act to birds, and thus, the agency was not generating the inspection reports that PETA
used to educate its members. 797 F.3d at 1094. And because the USDA failed to collect
1
Plaintiffs also contend that the 2018 Memorandum’s lack of environmental impact analyses has forced CFS to spend
more resources on FOIA requests in order to “specifically monitor and assess” neonic and GMC use on national
wildlife refuges. Kimbrell Decl. ¶ 22; see also Pls.’ Opp’n at 34–35. But because those extra requests appear to be
predicates for future advocacy, lobbying, litigation, or member education efforts, see Kimbrell Decl. ¶ 22 (suggesting
the FOIA requests are part of the organization’s “mission as a government watchdog”), they do not constitute
cognizable injuries.
10
information about bird mistreatment, PETA also claimed that it lacked the requisite data to bring
statutory violations to the agency’s attention. Id. The Circuit held that PETA’s two alleged
harms—the denial of educational information and the inability to seek redress for a violation of
the law—sufficed to establish an injury. Id. at 1095. The plaintiff in Food & Water Watch, on
the other hand, failed to allege either type of injury. 808 F.3d at 921. Ultimately, that failure—
not any alleged distinction between past or present expenditures—explains the Circuit’s
conclusion on standing in Food & Water Watch.
Plaintiffs attempt to cover their bases by suggesting that this case is comparable to PETA.
Pls.’ Opp’n at 35–37. Not so, and for multiple reasons. For one, Plaintiffs do not allege injury
based on the inability to bring statutory violations to the Service’s attention. More importantly,
although Plaintiffs do allege informational injury stemming from Defendants’ noncompliance with
the ESA and NEPA, see Pls.’ Opp’n at 42, those allegations are not enough. “A plaintiff suffers
sufficiently concrete and particularized informational injury where the plaintiff alleges that: (1) it
has been deprived of information that, on its interpretation, a statute requires the government or a
third party to disclose to it, and (2) it suffers, by being denied access to that information, the type
of harm Congress sought to prevent by requiring disclosure.” Friends of Animals v. Jewell, 828
F.3d 989, 992 (D.C. Cir. 2016). Defendants concede that Plaintiffs’ NEPA-related injury meets
the first prong, but they insist that the ESA-related injury does not, because the ESA contains no
public disclosure requirement. Defendants are correct. See 16 U.S.C. § 1536(b)(3)(A)
(specifying that the consultation opinion “shall [be provided] to the Federal agency and the
applicant, if any”); cf. Fund For Animals v. Hall, 448 F. Supp. 2d 127, 136 (D.D.C. 2006) (“[T]he
ESA’s Section 7 consultation process fails to provide for public comment in the same way that
NEPA does.”). Thus, Plaintiffs’ ESA-related injury is not cognizable.
11
Likewise, Plaintiffs’ claimed informational injury under NEPA falls short. In Foundation
on Economic Trends v. Lyng, 943 F.2d 79 (D.C. Cir. 1991), the Circuit stated that it had “never
sustained an organization’s standing in a NEPA case solely on the basis of . . . damage to the
organization’s interest in disseminating the environmental data an impact statement could be
expected to contain.” Id. at 84. Doing so, the Circuit continued, “would potentially eliminate
any standing requirement in NEPA cases” because “any member of the public—anywhere—would
seem to be entitled to receive [information contemplated by the statute].” Id. at 84–85.
“[W]ithout more,” a standalone assertion of an improper denial of information pursuant to NEPA
would convert “a mere interest in a problem” into a cognizable injury—a result at odds with
established jurisprudence. Id. (cleaned up) (citing Sierra Club v. Morton, 405 U.S. 727 (1972)).
Here, Plaintiffs do not allege a deprivation of information under NEPA any greater than that which
is suffered by the general public. Without a differentiating harm, Plaintiffs’ NEPA-related
informational injury amounts to no more than “a mere interest” in the disuse of pesticides and
other practices on national wildlife refuges, which does not suffice for Article III standing.
The court therefore finds that neither Plaintiff has alleged an injury to its interests sufficient
to satisfy organizational standing requirements.
B. Associational Standing
Plaintiffs separately assert associational standing on behalf of their members. Pls.’ Opp’n
at 39–41. To establish associational standing, Plaintiffs must demonstrate (1) “that at least one
member would have standing under Article III to sue in his or her own right”; (2) “that the interests
it seeks to protect are germane to its purposes”; and (3) “that neither the claim asserted nor the
relief requested requires that an individual member participate in the lawsuit.” Nat. Res. Def.
Council v. EPA, 489 F.3d 1364, 1370 (D.C. Cir. 2007); see Hunt v. Wash. Apple Advert. Comm’n,
12
432 U.S. 333, 343 (1977). There is no dispute as to the second and third requirements, so the
court focuses its analysis on the first—whether any of Plaintiffs’ individual members have
standing.
Plaintiffs claim that the 2018 Memorandum impairs their members’ use of national wildlife
refuges for “recreational, scientific, and aesthetic purposes,” including experiencing threatened
and endangered species. Compl. ¶¶ 24–25. “Plaintiffs’ members who use and recreate on and
around refuges are also at a greater risk of suffering from adverse health effects from pesticide
exposure because of the 2018 [Memorandum].” Id. ¶ 26. And the “cultivation of [genetically
engineered] crops,” Plaintiffs assert, “compromises members’ enjoyment of the refuges, because
the crops pose risks to wildlife” and injure the interests of those who seek to maintain biodiversity.
Id.
To demonstrate their injuries, Plaintiffs submit declarations from three members of CBD.
Tierra Curry has been a member since 2004 and has been employed as a senior scientist with CBD
since 2007. Pls.’ Opp’n, Curry Decl., ECF No. 18-5 [hereinafter Curry Decl.], ¶¶ 3–4. An “avid
naturalist and recreationist,” Curry “tends to plan [her] personal activities to coincide with areas
where [she] know[s] [she] may be able to view imperiled species in the wild.” Id. ¶ 8. In the
past year, Curry has visited the Reelfoot, Clarks River, and Tennessee National Wildlife Refuges
in Kentucky and Tennessee. Id. ¶ 10. She lists the specific wildlife she came across during those
visits—including monarch butterflies, bats, and freshwater mussels—and explains her concerns
that the use of neonics and GMCs will render habitats unsuitable for those species and “decrease
[her] ability to observe, recreate among, and enjoy [those] species when [she] visit[s]” the refuges.
Id. ¶¶ 11–20. Her fears are “heightened” by her knowledge that all three refuges have expressed
13
interest in utilizing those very practices following the issuance of the 2018 Memo. Id. ¶¶ 11, 15,
20.
A.J. Jenkins has been visiting and recreating on the Wheeler National Wildlife Refuge
since a young age. Pls.’ Opp’n, Jenkins Decl., ECF No. 18-6 [hereinafter Jenkins Decl.], ¶ 7. He
often spends his time “looking for, photographing, and learning about the various species of
reptiles and amphibians” located on the refuge. Id. As a sportsman, Jenkins gets “great
satisfaction knowing that there are rare and interesting species in the areas where [he is] hunting,”
and states that he would be harmed if those populations decline “as a result of [the Service’s]
decision to allow neonicotinoid pesticides and genetically engineered crops . . . to be used on
national wildlife refuges.” Id. ¶ 11. Like Curry, he is “especially concerned about the adverse
effects of [the 2018 Memorandum] because it is [his] understanding that [the Service] intends to
use either or both of those practices.” Id. ¶ 19. His concern is exacerbated by the Service’s
“refusal to engage in consultation under the [ESA] or environmental analysis under [NEPA]” prior
to permitting the use of those practices. Id. ¶ 19.
Kristy Kasserman currently resides in North Carolina and has been taking regular trips to
the Alligator River and Pocosin Lakes National Wildlife Refuges, “usually visiting the refuges at
least once in spring, once in fall, and almost always over the holidays in December.” Pls.’ Opp’n,
Kasserman Decl., ECF No. 18-7 [hereinafter Kasserman Decl.], ¶ 6. As a birdwatcher, she
estimates having encountered “approximately 35” native bird species during her last few visits,
including red-tailed hawks, great crested flycatchers, yellow-rumped warblers, and northern
flickers. Id. ¶ 7. Kasserman also enjoys using the refuges “for the purposes of hiking,
photography, recreating, and generally observing wildlife.” Id. ¶ 11. She recounts how she once
observed a group of black bears “in and around corn crops” growing on the Pocosin Lakes Refuge,
14
and that her “immediate concern” was whether those bears were “being exposed, through ingestion
or direct application, to any pesticides that might have been used to grow that corn.” Id. ¶ 11.
“[T]o think that they might, either then or now as a result of the [Service’s] decision to allow
[GMCs and neonics], be exposed to harmful agricultural pesticides . . . breaks my heart.” Id.
Kasserman also expresses concerns that pesticide use will endanger the refuges’ biodiversity as
well as her own health due to exposure during her visits. Id. ¶¶ 12, 17. Like Jenkins, she claims
further injury based on the Service’s decision to issue the 2018 Memo “behind closed doors and
without compliance with federal law.” Id. ¶ 20.
While the court understands and appreciates the declarants’ commitment to wildlife
preservation and biodiversity, for purposes of Article III standing, their concerns do not amount to
an “actual or imminent” injury. Lujan, 504 U.S. at 560. An actual or imminent injury is
“certainly impending and immediate—not remote, speculative, conjectural, or hypothetical.”
Public Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1293 (D.C. Cir. 2007).
Gulf Restoration Network, Inc. v. National Marine Fisheries Service, 730 F. Supp. 2d 157 (D.D.C.
2010), illustrates the point. There, plaintiff organizations claimed that a Fishery Management
Plan for regulating offshore marine aquaculture in the Gulf of Mexico violated several federal
laws, including NEPA. Id. at 159. In a series of affidavits, members of plaintiffs’ organizations
stated that the Plan would, among other things, hurt their interests “in the well-being of the Gulf,”
“damage[] the ecosystem,” and “harm[] wild fish populations.” Id. at 166. The court
nevertheless held that plaintiffs did not have standing to challenge the Plan because their asserted
injuries were “dependent upon a chain of events that might occur,” including approval by the
relevant government bodies “on a case-by-case basis.” Id. As the court put it: “The [Fishery
15
Management Plans] alone do not have any regulatory effect because implementing regulations
must be approved in order to effectuate them.” Id.
Plaintiffs’ members’ purported injuries in this case suffer from essentially the same
deficiency. The 2018 Memorandum does not actually authorize the use of either neonics or
GMCs, and thus, the individual members can only present their injuries in speculative terms.
See, e.g., Curry Decl. ¶ 20 (noting that the refuges she plans to visit again have only “expressed
interest” in neonics/GMCs); Jenkins Decl. ¶¶ 19 (same), 17 (expressing concern “if th[e] forest
ecosystem[] is further impaired or otherwise compromised as a result of agricultural practices on
the Wheeler National Wildlife Refuge that may result from the [2018 Memorandum]” (emphasis
added)); Kasserman Decl. ¶ 18 (speculating on species and biodiversity loss that “may occur” due
to the 2018 Memorandum and asserting injury “if those losses occur” (emphasis added)). Just as
in Gulf Restoration Network, a series of subsequent events—many of which are still purely
hypothetical—must occur before either neonics or GMCs are formally authorized for use in any
of the refuges referenced in the members’ declarations. See 2018 Memo at 2 (requiring
conformity with NEPA and the Service’s internal policies before authorizing use); see also Defs.’
Mot., Defs.’ Mem. in Supp. of Mot. to Dismiss, ECF No. 15-1, at 16 (providing one example of
the multi-step process before authorization). And as a general matter, the case-by-case approach
contemplated by the 2018 Memorandum gives refuge managers “on-the-ground latitude” to reject
use requests based on localized judgments about the purpose of a particular refuge. See 2018
Memo at 2. Because the 2018 Memorandum does not actually authorize the use of the practices
challenged by Plaintiffs, either generally or in any specific refuge, and because any such
authorization would require further agency actions, Plaintiffs’ members’ claimed injuries are not
sufficiently “actual or imminent” to establish Article III standing.
16
Plaintiffs respond by arguing that they need only demonstrate a “substantial risk” that their
members’ injuries will occur. Pls.’ Opp’n at 40 (citing Nat. Res. Def. Council v. EPA, 464 F.3d
1, 6–7 (D.C. Cir. 2006)). To be sure, the D.C. Circuit “generally require[s] that [a plaintiff]
demonstrate a ‘substantial probability,’” not certainty, “that they will be injured.” Nat. Res. Def.
Council, 464 F.3d at 6. But Plaintiffs do not meet even this lesser threshold. Once again, the
2018 Memorandum did not greenlight the use of neonics or GMCs; rather, the Memorandum lifted
the presumptive blanket ban on their use in favor of a “case-by-case” approach, which still will
subject any proposed use to regulatory processes and approvals. The mere prospect that the
Service might someday authorize such use within a yet unknown refuge does not plausibly give
rise to the substantial probability of harm required to establish standing.
The case law Plaintiffs cite only reinforces this conclusion. See Pls.’ Opp’n at 40.
National Resources Defense Council v. EPA is distinguishable from the present case because it
involved a dispute over a final rule that “authorized new production and consumption [of methyl
bromide] up to the limit established” by the relevant authorities. 464 F.3d at 5 (emphasis added).
Similarly, in Ouachita Riverkeeper, Inc. v. Bostick, the district court held that the United States
Army Corps of Engineers did not err in finding that construction of a wastewater pipeline “was
authorized” under two discharge permits issued by the Corps pursuant to the Clean Water Act.
938 F. Supp. 2d 32, 34 (D.D.C. 2013). In a post-briefing notice to the court, Plaintiffs draw
attention to the Circuit’s recent decision in National Resource Defense Council v. Wheeler, but
there, too, the agency rule at issue “[gave] regulated parties the legal right to replace ozone-
depleting substances with HFCs.” 955 F.3d 68, 80 (D.C. Cir. 2020). Here, by contrast, the 2018
Memorandum does not authorize the use of any neonics or GMCs. Plaintiffs also rely on Attias
v. Carefirst, Inc., but the risk posed to plaintiffs in that case was significantly greater than the risk
17
of injury here. There, the plaintiffs alleged theft of Social Security or credit card numbers in a
data breach. 865 F.3d 620, 627 (D.C. Cir. 2017). The court held that plaintiffs had standing
because it inferred that the third party that stole the plaintiffs’ data had “both the intent and the
ability to use that data for ill.” Id. at 628. That inference was reasonable because, in the words
of the court: “Why else would hackers break into . . . a database and steal consumers’ private
information?” Id. (quoting Remijas v. Neiman Marcus Grp., 794 F.3d 688, 693 (7th Cir. 2015)).
Despite Plaintiffs’ protestations, no such inference is reasonable here. Given the significant
uncertainty surrounding whether the Service will eventually authorize neonic or GMC use in any
refuge, let alone one visited by one of Plaintiffs’ declarants, the court may not assume the
imminence of Plaintiffs’ members’ injuries. See Clapper v. Amnesty Int’l USA, 568 U.S. 398,
410–14 (2013) (rejecting “a speculative chain of possibilities” as the basis for injury).
Because Plaintiffs fail to establish Article III injury for any of their members, the court
holds that they cannot rely on associational standing to bring their claims.
C. Procedural Standing
Finally, Plaintiffs assert procedural injuries on behalf of themselves and their members
because issuance of the 2018 Memorandum flouted the procedural requirements of NEPA and the
ESA and precluded Plaintiffs from participating in mandatory environmental review processes.
Pls.’ Opp’n at 42. But “omission of a procedural requirement does not, by itself, give a party
standing to sue.” Food & Water Watch, 808 F.3d at 921 (quoting Ctr. For Biological Diversity
v. U.S. Dep’t of Interior, 563 F.3d 466, 479 (D.C. Cir. 2009)) (internal quotation marks omitted).
In other words, a “deprivation of a procedural right without some concrete interest that is affected
by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.”
Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009).
18
As discussed, Plaintiffs have not plausibly established any concrete interest that is affected
by the 2018 Memorandum; therefore, the procedural violations they allege cannot establish a
cognizable Article III injury-in-fact. See Food & Water Watch, 808 F.3d at 921 (“Because
Plaintiffs have failed to establish that they will likely suffer a substantive injury, their claimed
procedural injury necessarily fails.”) (cleaned up); City of Orrville, Ohio v. FERC, 147 F.3d 979,
986 (D.C. Cir. 1998) (“Since plaintiffs lack standing to challenge [the agency’s] substantive
actions, they indeed lack standing to challenge procedural defects in the process that produced
those actions.”) (cleaned up).
V. CONCLUSION
Thus, for the reasons stated, Defendants’ Motion to Dismiss is granted. A separate final
order accompanies this Memorandum Opinion.
Dated: September 24, 2020 Amit P. Mehta
United States District Court Judge
19