American Stewards of Liberty v. Department of the Interior

370 F.Supp.3d 711

AMERICAN STEWARDS OF LIBERTY, Charles Shell, Cheryl Shell, Walter Sidney Shell Management Trust, Kathryn Heidemann, Robert V. Harrison, Sr., John Yearwood, and Williamson County, Texas, Plaintiffs,

John Yearwood and Williamson County, Texas, Plaintiff-Intervenors,

v.DEPARTMENT OF THE INTERIOR, United States Fish and Wildlife Service, Sally Jewell, Daniel M. Ashe, Benjamin N. Tuggle, Center for Biological Diversity, Travis Audubon, and Defenders of Wildlife, Defendants,Center for Biological Diversity, Defenders of Wildlife, and Travis Audubon, Defendant-Intervenors.

CAUSE NO. 1:15-CV-1174-LY

United States District Court, W.D. Texas, Austin Division.

Signed March 28, 2019

Brooke Marcus Wahlberg, Rebecca Hays Barho, Alan M. Glen, Nossaman LLP, Austin, TX, Paul S. Weiland, Nossaman LLP, Irvine, CA, for Plaintiffs.

Chad Ennis, David Barton Springer, Kevin D. Collins, Bracewell LLP, Chance D. Weldon, Robert E. Henneke, Texas Public Policy Foundation, Austin, TX, for Plaintiff-Intervenors.

Lesley Karen Lawrence-Hammer, U.S. Department of Justice, Denver, CO, Charles W. Irvine, Irvine & Conner PLLC, Houston, TX, Jared Michael Margolis, Center for Biological Diversity, Eugene, OR, Jason C. Rylander, Pro Hac Vice, Defenders of Wildlife, Washington, DC, Ryan Adair Shannon, Center for Biological Diversity, Portland, OR, for Defendant-Intervenors.

MEMORANDUM OPINION AND ORDER

LEE YEAKEL, UNITED STATES DISTRICT JUDGE

Before the court in the above-styled and numbered cause are Plaintiffs' Motion for Summary Judgment filed October 5, 2017 (Dkt. No. 132), Plaintiff-Intervenors' Motion for Summary Judgment filed October 10, 2017 (Dkt. No. 133), Amicus-Curiae Brief of Mountain States Legal Foundation in Support of Plaintiff-Intervenors' Motion for Summary Judgment filed October 16, 2017 (Dkt. No. 136), Brief of Texas as Amicus Curiae in Support of Intervenor-Plaintiffs' Motion for Summary Judgment filed October 6, 2017 (Dkt. No. 137), Federal Defendants' Cross Motion for Summary Judgment & Opposition to Plaintiffs' Motion for Summary Judgment filed December 15, 2017 (Dkt. Nos. 142 & 144), Federal Defendants' Cross-Motion for Summary Judgment and Opposition to Plaintiff-Intervenors' Motion for Summary Judgment filed December 15, 2017 (Dkt. Nos. 145 & 146), Defendant-Intervenors' Cross-Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment filed December 21, 2017 (Dkt. No. 147 & 148), Federal Defendants' Response to Amici Curiae Briefs of Mountain States Legal Foundation and Texas filed December 22, 2017 (Dkt. Nos. 149 & 150), Defendant-Intervenors' Cross-Motion for Summary Judgment and Opposition to Plaintiff-Intervenors' Motion for Summary Judgment filed December 22, 2017 (Dkt. Nos. 151 & 152), Plaintiff-Intervenors' Combined Reply in Support of Motion for Summary Judgment and Opposition to Federal Defendants and Defendant-Intervenors' Cross-Motions for Summary Judgment filed January 19, 2018 (Dkt. Nos. 154 & 155), Plaintiffs' Reply to Responses to Plaintiffs' Motion for Summary Judgment filed January 19, 2018 (Dkt. No. 156), Plaintiffs' Combined Response in Opposition to Defendants' Cross-Motion for Summary Judgment and Opposition to Defendant-Intervenors' Cross Motion for Summary Judgment filed January 19, 2018 (Dkt. No. 157), Federal Defendants' Reply in Support of Their Motion for Summary Judgment Against Plaintiff-Intervenors filed February 16, 2018 (Dkt. No. 158), Federal Defendants' Opposed Motion to Strike Four Exhibits Attached to Plaintiffs' Reply Brief filed February 16, 2018 (Dkt. No. 159), Federal Defendants' Reply In Support of Their Motion for Summary Judgment Against Plaintiffs filed February 2, 2018 (Dkt. No. 160), Defendant-Intervenors' Reply in Support of Their Cross-Motion for Summary Judgment and in Opposition to Plaintiff-Intervenors' Motion for Summary Judgment filed February 16, 2018 (Dkt. Nos. 161 & 162), Plaintiffs' Opposition to Federal Defendants' Motion to Strike filed February 23, 2018 (Dkt. No. 163), Federal Defendants' Reply in Support of Their Opposed Motion to Strike Four Exhibits Attached to Plaintiffs' Reply Brief filed February 27, 2018 (Dkt. No. 165), Plaintiff-Intervenors' Notice of Supplemental Authority filed December 3, 2018 (Dkt. No. 172), Response to Plaintiff-Intervenors' Notice of Supplemental Authority filed December 10, 2018 (Dkt. No. 173), and Defendant-Intervenors' Response to Plaintiff-Intervenors' Notice of Supplemental Authority filed December 10, 2018 (Dkt. No. 174). On March 2, 2018, the court conducted a hearing on the motions at which all parties were represented by counsel. Having reviewed and considered the motions, responsive and supplemental filings, arguments of counsel, and applicable law, the court renders the following order.

I. BACKGROUND

The bone cave harvestman ("harvestman") is a tiny, pale, orange, eyeless, almost invisible, spider-like species that spends its entire life underground. It derives its nutrition from bugs, moisture, and other nutrients that filter down from the surface. It is an elusive spider known to inhabit only Travis and Williamson Counties, Texas and does not often reveal itself to even the most skilled observer. Because of the harvestman's limited population and fragile nature, the United States Fish and Wildlife Service ("the Service") listed the species as endangered in 1993. This case arises out of Plaintiffs ("the Stewards")¹ and Plaintiff-Intervenors' ("Yearwood") request to remove the harvestman from the endangered-species list.

A. THE ENDANGERED SPECIES ACT

Congress enacted the Endangered Species Act in 1973 (the "Act") to "provide a means whereby the ecosystems upon which endangered species ... depend may be conserved" and to "provide a program for the conservation of ... endangered species." 16 U.S.C. § 1531(b). A species is "endangered" if it "is in danger of extinction throughout all or a significant portion of its range." Id. at § 1532(6). The Service is responsible for determining whether to list a species as endangered. Id. at § 1533(a)(1). It is also responsible for determining whether to delist a species. Id. at § 1533(a)(2)(B).

"[I]nterested person[s]" may petition the Service to change the status of a species, including petitioning the Service to remove a species from the endangered-species list. Id. at § 1533(b)(3)(A). Within 90 days of the filing of a petition, the Service must make a finding ("90-day finding") as to whether the petition "presents substantial scientific or commercial information indicating that the petitioned action may be warranted." Id. Though "substantial scientific and commercial information" may seem like a high bar, id. , the Service's regulations indicate otherwise, defining substantial information as only "that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted." 50 C.F.R. § 424.14(b)(1) (2014).

The Service must evaluate a petition for a "detailed narrative justification" for the requested delisting and a description of the "numbers and distribution of the species involved," "any threats faced by the species," and whether the petition "[p]rovides information regarding the status of the species over all or a significant portion of its range." Id. at § 424.14(b)(2) (2014). The petition need only be "based on available information." Id. The Service must publish its findings in a "listing determination" based on a consideration of five factors:

(A) the present or threatened destruction, modification, or curtailment of [the species'] habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting [the species'] continued existence.

16 U.S.C. § 1533(a)(1) ; see also 50 C.F.R. § 424.11(c), (d) (2014). Listing determinations must be made "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A).

If the Service determines that delisting may be warranted, it will undertake a second more searching 12-month review of the status of the species to determine whether delisting action "is" or "is not warranted." 16 U.S.C. § 1553(b)(3)(B) (emphases added). Under the implementing regulations, delisting is warranted where:

the best scientific and commercial data available...substantiate that the species is neither endangered nor threatened for one or more of the following reasons:

(1) Extinction ...

(2) Recovery ... A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.

(3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error.

50 C.F.R. § 424.11(d)(1)-(3) (2014). If the Service determines that a petition presents substantial scientific or commercial information indicating that listing or delisting may be warranted, the Service is required to make a finding within 12 months that (1) the petitioned action is not warranted; (2) the petitioned action is warranted; or (3) the petitioned action is warranted but precluded by other higher-priority actions. 16 U.S.C. § 1533(b)(3)(B).

B. THE HARVESTMAN'S EARLY LISTING HISTORY

In 1988, the Service determined that five species of karst invertebrate should be protected by the Act, including the bee creek cave harvestman. 53 Fed. Reg. 36,029 -01 (Sept. 16, 1988). At that time, the bee creek cave harvestman was known to exist only in five or six caves in Travis and Williamson Counties. The Service found in its 1988 listing that the gravest threat to these karst invertebrates was habitat destruction and modification due to urbanization. The Service posited that residential, commercial, and industrial...