Center for Biological Diversity v. U.S. Fish and Wildlife Service ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR BIOLOGICAL
DIVERSITY,
Plaintiff,
v. Civ. Action No. 21-884
(EGS)
U.S. FISH AND WILDLIFE
SERVICE, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff, the Center for Biological Diversity, challenges
the U.S. Fish and Wildlife Service’s (“FWS”) “warranted but
precluded” findings pursuant to the Endangered Species Act
(“ESA”), 16 U.S.C. §§ 1531-1544 with respect to ten (10)
species, including the Longfin Smelt DPS. See generally Compl.,
ECF No. 1. Westlands Water District (“Westlands”) moves to
intervene. See generally Mot. to Intervene (“Mot.”), ECF No. 11.
Both Plaintiff and Defendants—FWS, Martha Williams in her
official capacity as acting Director of FWS, and the Secretary
of the U.S. Department of the Interior—oppose the motion. See
generally Gov’t’s Opp’n, ECF No. 12; Pl.’s Opp’n, ECF No. 13.
Upon consideration of the motion, oppositions, the reply, the
applicable law, and for the reasons explained below, Westlands’
Motion to Intervene is DENIED.
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I. Background
A. Statutory and Regulatory Background
The ESA has been described as “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). Congress enacted the ESA “to provide a means
whereby the ecosystems upon which endangered species and
threatened species depend may be conserved, [and] to provide a
program for the conservation of such endangered species and
threatened species.” 16 U.S.C. § 1531(b). “The plain intent of
Congress in enacting this statute was to halt and reverse the
trend toward species extinction, whatever the cost.” Tennessee
Valley Auth., 437 U.S. at 184.
The ESA directs the Secretary of the Interior and the
Secretary of Commerce to determine whether a species should be
listed as “endangered” or “threatened.” 16 U.S.C. § 1533. The
ESA requires the Secretary of the Interior to publish and
maintain a list of all species that have been designated as
threatened or endangered. Id. § 1533(c). Species are added to
and removed from the list after notice and an opportunity for
public comment, either on the initiative of the Secretary or as
a result of a petition submitted by an “interested person.” Id.
§ 1533(b)(1), (3), (5). When petitioned, FWS must, “[t]o the
maximum extent practicable,” within 90 days make a finding (“90-
2
day finding”) regarding whether the petition presents
“substantial scientific or commercial information indicating
that the petitioned action may be warranted.” Id. §
1533(b)(3)(A). If FWS so finds, it must begin a status review,
id.; and following the completion of that review and within 12
months of receiving the petition, issue a “12-month finding” as
to 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). With respect to a “warranted but
precluded” finding, FWS must conclude that listing is warranted,
but that:
(I) the immediate proposal and timely
promulgation of a final regulation
implementing [listing] . . . is precluded by
pending proposals to determine whether any
species is an endangered species or a
threatened species, and
(II) expeditious progress is being made to add
qualified species to [the endangered and
threatened] lists . . . and to remove from
such lists species for which the protections
of [the ESA] are no longer necessary.
Id. § 1533(b)(3)(B)(iii). For these “candidate species,” FWS is
required to treat the petition as if it has been resubmitted
annually, and make a new 12-month finding for the species within
a year. Id. § 1533(b)(3)(C)(i). FWS publishes the annual
findings in the “Candidate Notice of Review” (“CNOR”) in the
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Federal Register. See, e.g., 85 Fed. Reg. 73,164 (Nov. 16,
2020).
B. Factual and Procedural Background
“In 2012, [FWS] found that the [Longfin Smelt DPS]
warranted listing because the species faces high magnitude
threats, including reduced freshwater flows, contaminants, and
introduced species.” Compl., ECF No. 1 ¶ 33 (citing 77 Fed. Reg.
19,756, 19,787-88 (Apr. 2, 2012) and 85 Fed. Reg. 73,164, 73,173
Nov. 16, 2020). However, FWS determined that while listing the
Longfin Smelt DPS was warranted, it was precluded because of
higher-priority actions. Gov’t’s Opp’n, ECF No. 12 at 3 (citing
77 Fed. Reg. 19,756 (Apr. 2, 2012)). Accordingly, FWS “added the
Longfin Smelt DPS to the list of Candidates and re-evaluated
[its] status each year thereafter, pursuant to 16 U.S.C. §
1533(b)(3)(C)(i).” Id. at 4. “On November 16, 2020, [FWS]
published its most recent CNOR, finding again that listing the
Longfin Smelt DPS is warranted but precluded due to higher
priority actions.” Id. (citing 85 Fed. Reg. 73,164 (Nov. 16,
2020).
Plaintiff filed its Complaint in this proceeding on April
1, 2021, alleging that FWS’s warranted but precluded findings as
to, among other species, the Longfin Smelt DPS, is arbitrary and
capricious in violation of the Administrative Procedure Act, 5
U.S.C. §§ 551 et seq. Compl., ECF No. 1 ¶¶ 51-55. Westlands
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filed its Motion to Intervene on May 5, 2021. Mot., ECF No. 11.
On July 22, 2021, the parties filed a Joint Motion to Stay,
requesting that the Court refer the case (and two others before
the Court) to the mediation program. See Joint Mot., ECF No. 20.
On July 23, 2021, Westlands filed a response to the Joint Motion
to Stay, requesting that the Court authorize Westlands to
participate in settlement discussions while the Motion to
Intervene is pending, or in the alternative requesting that the
Court rule on the Motion to Intervene before ruling on the Joint
Motion to Stay. See Westlands Water District’s Response to Joint
Motion to Stay (“Westlands’ Response”), ECF No. 21.
C. Proposed Intervenor
Westlands states that it “is a California water district,”
Mot. to Intervene, ECF No. 11 at 4 1; and that it “has contractual
entitlement to approximately 1,195,000 acre-feet of [Central
Valley Project (“CVP”) 2] water per year.” Decl. of Jose Gutierrez
(“Gutierrez Decl.”), ECF No. 11-2 ¶ 5. The United States Bureau
of Reclamation (“Reclamation”) conveys the CVP water to various
contactors, including Westlands. Id. ¶ 4. Westlands avers that
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
[T]he federal CVP . . . appropriates and re-appropriates water,
in part, from the San Francisco Bay (“Bay”)/Sacramento-San
Joaquin River Delta (“Delta”) and the rivers that create them
(collectively, the “Bay-Delta watershed”). Mot., ECF No. 11 at
2.
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Plaintiff “seeks to reduce Westland’s CVP water allocation . . .
through compelling [ESA] protection for the Longfin Smelt. Id. ¶
6. Westlands further avers that “Plaintiff contends that water
diversions, including diversions by the CVP, are a significant
cause of the population decrease of the Longfin Smelt and a
reason why this species should be expeditiously listed under the
ESA as either a threatened or endangered species.” Id. Finally,
Westlands avers that “additional ESA regulatory restrictions
will have significant negative impacts on Westlands and those it
serves” including: (1) “increased land fallowing”; (2)
“increased costs and higher risks for acquiring supplemental
supplies”; (3) “increased groundwater pumping” resulting in,
among other things, lower crop yields; (4) “increased soil
salinity”; (5) “increased energy use”; (5) “increased water
costs for disadvantaged communities”; (6) “permanent crop
damage”; (7) “increased unemployment”; (8) “reduced air
quality”; and (9) “potential increases to bird strike damage to
. . . striker-fighter aircraft. Id. ¶ 9.
II. Analysis
A. Intervention as of Right
Intervention as of right is governed by Federal Rule of
Civil Procedure 24(a). In this Circuit, an applicant must meet
four criteria to be granted intervention as of right: (1) the
application to intervene must be timely; (2) the applicant must
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demonstrate a legally protected interest in the action; (3) the
action must threaten to impair that interest; and (4) no party
to the action can be an adequate representative of the
applicant's interests. Karsner v. Lothian, 532 F.3d 876, 885
(D.C. Cir. 2008) (citation omitted).
Further, the Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) requires the intervenor-applicant to
demonstrate standing under Article III of the U.S. Constitution.
See In re Endangered Species Act Section 4 Deadline Litigation,
704 F.3d 972, 976 (D.C. Cir. 2013). To demonstrate standing, the
intervenor-applicant must show: (1) an injury-in-fact that is
(a) concrete and particularized and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical’”; (2) causal connection between
the injury and the conduct that is being complained about; and
(3) redressability. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560, 561 (1992) (citations omitted). For prospective
injuries, imminence means that the injury must be “certainly
impending.” Id. at 564 n.2 (citations omitted). “Because a
would-be intervenor’s Article III standing presents a question
going to this court’s jurisdiction, see Sierra Club v. EPA, 292
F.3d 895, 898 (D.C. Cir. 2002), we address it first.” Fund for
Animals, Inc., v. Norton, 322 F.3d 728 732 (D.C. Cir. 2003).
Westlands argues that satisfies the standing requirements
because: (1) its injury is economic; (2) its injury “is directly
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traceable to Plaintiff’s claims seeking to list the Longfin
Smelt DPS under the ESA”; and (3) “[a] decision to list the
Longfin Smelt, DPS, as the result of this lawsuit, will directly
impact the future supply of CVP water available to Westlands.”
Mot., ECF No. 11 at 12.
Plaintiff and Defendants respond that Westlands lacks
Article III standing. First, the alleged injury is prospective,
but it is not “certainly impending,” Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 409 (2013); because “WWD can only speculate
that the resolution of this action many impact CVP water supply
or create further ESA consultation obligations.” Gov’t’s Opp’n,
ECF No. 12 at 5 (citing Mot., ECF No. 11 at 6, 7); see also
Pl.’s Opp’n, ECF No. 13 at 11 (“the ultimate listing of the
longfin smelt and any potential attendant impact on Westlands’
contractual water rights are entirely speculative”). Second,
Westlands does not satisfy the causation element because at this
juncture, it is speculative whether: (1) Defendants will lose on
the merits of this case; (2) the Longfin Smelt will eventually
be listed as threatened or endangered; and (3) CVP operations
will be subject to further ESA consultation and whether that
consultation will restrict CVP water allocations to the
detriment of Westlands. Id. at 6. Finally, Westlands does not
satisfy the redressability element because if Defendants prevail
in this case—i.e. the “warranted but precluded” determination
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was not arbitrary and capricious—this would have no effect on
whether the FWS eventually issues a proposed listing rule for
the Longfin Smelt DPS. Id. at 7.
Westlands fails to rebut these arguments, instead asserting
that it has standing because it “seeks to defend the substance
of” FWS’s warranted but precluded finding. Reply, ECF No. 17 at
3. Westlands’ argument is unpersuasive. Westlands relies on
Nat’l Ass’n of Home Builders v. U.S. Fish and Wildlife Service,
34 F. Supp 3d 50 (D.D.C. 2014) for the proposition that
“[w]arranted-but-precluded’ findings . . . are judicially
reviewable.” Id. at 62. While that is an accurate statement, it
does not help Westlands establish standing. Westlands’ reliance
on County of San Miguel, Colorado v. MacDonald, 244 F.R.D. 36(D.D.C. 2007) is similarly misplaced because there the court
found that the proposed intervenors had standing to intervene in
a challenge to FWS’s determination that listing the subject
species as endangered or threatened was not warranted. Id. at
38. Here, the question is whether Westlands has standing to
intervene at the “warranted but precluded” stage, a stage that
is preliminary to a listing determination.
The Court finds that Westlands does not have standing to
intervene. First, the injury is not “certainly impending.”
Lujan, 504 U.S. at 564 n.2 (citations omitted). Rather,
Westlands avers that its injury will be caused by “additional
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ESA regulatory restrictions.” Gutierrez Decl., ECF No. 11-2 ¶ 9.
Plaintiff’s claim here is that FWS’s warranted but precluded
finding is arbitrary and capricious. Accordingly, whether and
what additional ESA regulatory restrictions may be imposed is
speculative at this juncture and is not the claim before the
Court. The Court also finds that Westlands has failed to satisfy
the causation and redressability elements of Article III
standing. Westlands’ alleged injury is based on a potential
future listing of the Longfin Smelt DPS, which is not before the
Court. Regardless of whether the Court rules in favor of
Plaintiff or Defendants, that ruling will have no direct impact
on whether there will be additional ESA restrictions.
For the same reasons, the Court finds that Westlands has
failed to demonstrate a legally protected interest. United
States v. Am. Tel. and Tel. Co., 642 F.2d 1285, 1291-92 (D.C.
Cir. 1980) (defining a legally protectable interest as one which
is “of such a direct and immediate character that the intervenor
will either gain or lose by the direct legal operation and
effect of the judgment”). Accordingly, the Court need not
consider the remaining elements of the four-part test.
Because the Court finds that Westlands does not have
standing to intervene and has failed to demonstrate a legally
protectable interest in this case, the Court DENIES Westlands’
motion to intervene as of right.
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B. Permissive Intervention
In the alternative, Westlands moves for permissive
intervention pursuant to Federal Rule of Civil Procedure 24(b).
Rule 24(b)(1)(B) provides for permissive intervention on a
timely motion, where the applicant “has a claim or defense that
shares with the main action a common question of law or fact.”
Fed. R. Civ. P. 24(b)(1)(B). To litigate a claim on the merits
under Rule 24(b)(2), the prospective intervenor must demonstrate
(1) an independent ground for subject matter jurisdiction; (2) a
timely motion; and (3) a claim or defense that has a question of
law or fact in common with the main action. Equal Emp't
Opportunity Comm'n v. Nat'l Children's Ctr., 146 F.3d 1042, 1046
(D.C. Cir. 1998). 3 “If a prospective intervenor satisfies these
criteria, courts ‘must consider whether the intervention will
unduly delay or prejudice the adjudication of the original
parties' rights.’” In re Endangered Species Act Section 4
Deadline Litigation, 270 F.R.D. 1, 6 (D.D.C. 2010) (quoting Fed.
R. Civ. P. 24(b)(1)(B)). The Court may also consider “whether
parties seeking intervention will significantly contribute to .
. . the just and equitable adjudication of the legal questions
presented.” Aristotle Int’l, Inc. v. NPG Software, Inc., 714 F.
3 It is unclear “whether standing is necessary for permissive
intervention.” In re Vitamins Antitrust Class Actions, 215 F.3d
26, 31 (D.C. Cir. 2000).
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Supp. 2d 1, 18 (D.D.C. 2010) (quoting H.L. Hayden Co. v. Siemens
Med. Sys., Inc. 797 F.2d 85, 89 (2d Cir. 1986)). “District
Courts have the discretion . . . to deny a motion for
permissive intervention even if the movant established an
independent jurisdictional basis, submitted a timely motion, and
advanced a claim or defense that shares a common question with
the main action.” Nat'l Children's Ctr., 146 F.3d at 1048.
As a threshold matter, the Court finds that Westlands’
motion is timely as Westlands filed its motion 34 days after the
Complaint was filed. Mot., ECF No. 11. However, Westlands makes
little effort to demonstrate that it satisfies the remaining
elements required for permissive intervention, merely asserting
that “Plaintiff’s claims place Westlands’ interests directly at
stake” and that its “interests present issues of law and fact
common to the main action.” Id. at 12. Westlands further states
that it does not assert any counterclaims. Id. Assuming arguendo
that Westlands has established these elements, however, the
Court considers whether Westlands’ intervention could lead to
undue delay or would significantly contribute to the just and
equitable adjudication of Plaintiff’s claims. Based on these
considerations, the Court concludes that Westlands’ motion
should be denied.
First, the Court finds that Westlands’ intervention could
lead to undue delay. Westlands seeks to participate in the
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settlement discussions to oppose settlement: “settlement of this
case presents significant risk to Westlands’ contractual rights
to water from the [CVP], as well as other legally protected
interests.” Westlands’ Response, ECF No. 21 at 1. However, as
explained supra, Westlands failed to demonstrate a legally
protected interest. The Court is unwilling to allow Westlands to
intervene to delay the resolution of this case.
Second, the Court finds that Westlands’ intervention will
not “significantly contribute to . . . the just and equitable
adjudication of the legal questions presented.” Aristotle Int’l,
Inc., 714 F. Supp. 2d at 18. Westlands contends that it “is
seeking to intervene to support [FWS] in defending its finding,
or to defend the scientific basis for that finding should
Federal Defendants choose not to.” Reply, ECF No. 17 at 8-9.
Westlands states that it “has invested significantly in the
development of science used to determine actions that protect
and improve the viability of nature fish within the Bay-Delta
Watershed.” Id. at 8. Westlands also relies on its declarant to
assert that it “has a strong interest in ensuring that decisions
made pursuant to the ESA are based on the best available
science, including when it comes to decisions about the relative
priorities of list efforts under the ESA.” Id. (citing Gutierrez
Decl., ECF No. 11-2 ¶ 7). However, Westlands’ declarant made no
averments regarding his knowledge about “the relative priorities
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of listing efforts under the ESA.” Accordingly, Westlands has
failed to demonstrate that it has information or expertise
regarding the legal issue in this case—whether FWS has made
expeditious progress in listing species as endangered or
threatened.
Additionally, the Court finds that denying the motion will
not prejudice Westlands’ interests because as stated above,
regardless of whether the Court rules in favor of Plaintiff or
Defendants, that ruling will have no direct impact on whether
there will be additional ESA restrictions. As this Court has
stated in a similar context, Westlands “can best serve its
stated interests by participating in the administrative review
process for the FWS’s eventual listing decision.” In re
Endangered Species Act Section 4 Deadline Litigation, 270 F.R.D.
at 6. If FWS ultimately lists the Longfin Smelt DPS, Westlands
“can then file its own suit to protect those interests
directly.” Id. “[T]he case before the Court offers [Westlands]
no opportunity to effectively vindicate its interests,” id. at
7; rather, Westlands seeks to delay any eventual listing
decision by defending FWS’s warranted but precluded finding.
Because the Court finds that intervention could lead to
undue delay, would not significantly contribute to the just and
equitable adjudication of Plaintiff’s claims, and would not
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prejudice Westlands’ interests, the Court DENIES Westlands’
request for permissive intervention.
III. Conclusion
For the reasons explained above, Westlands’ Motion to
Intervene is DENIED. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
August 16, 2021
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