>Ctr. for Biological Div. v. U.S. Fish & Wildlife Serv.

698 F.Supp.3d 39

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. U.S. FISH AND WILDLIFE SERVICE, et al., Defendants.

Civil Action No. 21-791 (TJK)

United States District Court, District of Columbia

Signed September 30, 2023

Eric Robert Glitzenstein, Center for Biological Diversity, Washington, DC, Kristine M. Akland, Pro Hac Vice, Akland Law Firm PLLC, Missoula, MT, for Plaintiff.

Kamela Caschette, U.S. Department of Justice, Washington, DC, for Defendants.

Paul S. Weiland, Nossaman LLP, Irvine, CA, for Amici American Stewards of Liberty, Osage Producers Association.

Paul S. Weiland, Nossaman LLP, Irvine, CA, Robert Henneke, Texas Public Policy Foundation, Austin, TX, for Amicus Texas Public Policy Foundation.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge.

The Fish and Wildlife Service recently designated the American Burying Beetle "threatened" under the Endangered Species Act after decades of listing the beetle as "endangered." Plaintiff, the Center for Biological Diversity, disagrees with that decision and alternatively says the beetle requires at least more discretionary protections available to threatened species. Despite that legal quarrel, the parties essentially agree on how the beetle's future will likely unfold: The primary threat it faces is climate change, which is likely to extirpate swaths of the beetle between 2040 and 2069. The core legal dispute is about how to categorize that risk under the statute.

The Court finds that the Fish and Wildlife Service relied on a reasonable interpretation of the statute when it listed the beetle as threatened. As for Plaintiff's other challenges, it finds that the challenged rule was procedurally proper, adequately explained, and supported by the administrative record. Thus, it will grant summary judgment for Defendants.

I. Background

A. Legal Background

Congress enacted the Endangered Species Act ("ESA") to promote the conservation of species in danger of extinction and the ecosystems on which they depend. 16 U.S.C. § 1531(b). The ESA delegates authority to the Secretary of the Interior to implement the statute by regulation. See id. §§ 1532(15), 1533. In practice, the Fish and Wildlife Service ("the Service"), a bureau of the Department of the Interior, carries out the ESA's directives relevant to this case.

The ESA's first directive is to "determine whether any species is an endangered species or a threatened species." 16 U.S.C. § 1533(a)(1). A species is endangered if it "is in danger of extinction throughout all or a significant portion of its range." Id. § 1532(6). A species is threatened if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). The Service must publish a list of all species deemed endangered or threatened. Id. § 1533(c)(1).

Endangered species receive more statutory protections than threatened species. When a species is listed as endangered, several statutory prohibitions automatically apply to it. See 16 U.S.C. § 1538(a)(1)(A)-(F). Significant among those are the prohibitions against takings, id. § 1538(a)(1)(B)-(C), which can include incidental (nondeliberate) takings, see Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 697-703, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995); 16 U.S.C. §§ 1532(19), 1539(a)(1)(B). By contrast, for threatened species, the Service has discretion to issue protective regulations that are "necessary and advisable ... for the conservation of such species." Id. § 1533(d).¹ Such a rule "may ... prohibit" any of the acts automatically prohibited for endangered species. See id.

The ESA tells the Service more about how to identify an endangered or threatened species. For one thing, the Service must act "solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species." 16 U.S.C. § 1533(b)(1)(A). It may base its decision on "any of the following factors: (A) the present or threatened destruction, modification, or curtailment of [a species'] habitat or range; (B) overutilization for [enumerated] purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence." Id. § 1533(a)(1). By regulation, the Service has explained that it may use "any one or a combination of [those] factors." 50 C.F.R. § 424.11(c).

The ESA also directs the Service to "review" listed species "at least once every five years." 16 U.S.C. § 1533(c)(2)(A). "[O]n the basis of such [a] review," the Service may remove a species from the list or change the species from endangered to threatened (or vice versa). Id. § 1533(c)(2)(B).² Separately, an interested party may petition the Service to alter a species' listing, which can trigger a determination on the species' status. See id. § 1533(b)(3)(A); 5 U.S.C. § 553(e); 50 C.F.R. § 424.14.

Finally, the ESA provides that the Service "shall develop and implement" recovery plans "for the conservation and survival" of endangered and threatened species. 16 U.S.C. § 1533(f). Such plans should describe "site-specific management actions," include "objective, measurable criteria" that would support the species' delisting, and estimate the time and cost required. See id. § 1533(f)(1)(B)(ii). A recovery plan, however, is "a statement of intention, not a contract." Friends of Blackwater v. Salazar, 691 F.3d 428, 434 (D.C. Cir. 2012). Thus, the Service may alter a species' listing even if a goal set in its recovery plan has not been met. See id. at 432-34.

B. Factual Background³

This case is about the American Burying Beetle, a carrion beetle named for its distinctive reproductive practices. See generally AR 683-99. Historically, the beetle lived in much of the midwestern and eastern United States. See AR 690. But the most recent evidence suggests that its current range is much smaller. See AR 1383. The Service currently divides the beetle's range into three regions: the Northern Plains, the Southern Plains, and New England. AR 161. The two plains regions are also subdivided into "analysis areas." See AR 1385. By habitat acreage, the two plains regions dwarf New England. See AR 1354, 1385. By population, the Northern Plains is likely the largest region, followed by the Southern Plains and, more distantly, New England. See AR 1401-11.

1. Original Listing and Recovery Plan

In 1989, the Service listed the beetle as endangered. AR 734. The Service had concluded that the beetle had "disappeared from most of its historic range." Determination of Endangered Status for the American Burying Beetle, 54 Fed. Reg. 29652, 29652 (July 13, 1989). At that time, only two populations were known. Id. But the Service acknowledged the possibility "that future search efforts [could] result in discovery of another extant population." Id. at 29653. Still, it thought that "any newly discovered populations" would also be "vulnerable to whatever factors have caused [the beetle's] disappearance elsewhere," meaning that new discoveries would be unlikely to change the beetle's situation. See id.

That listing decision prompted the Service to adopt a recovery plan for the beetle. See generally AR 4943-5023. It set two objectives: first, to "reduce the immediacy of the threat of extinction" to the beetle, and second, in the longer term, "to improve its status so that it can be reclassified from endangered to threatened." AR 4946. It recognized two criteria for the former objective: the "protection and maintenance" of existing populations and the introduction of "at least two additional self-sustaining wild populations of 500 [beetles] each, one in the eastern and one in the western part of the species' historical range." AR 4979. As for the latter objective, it announced that it would consider reclassifying the beetle when three conditions were met: (1) the discovery or reintroduction of the beetle in each of "the Northeast, the Southeast, the Midwest, and the Great Lake states," (2) each of those populations contains at least 500 adult beetles, and (3) each of those populations is self-sustaining. AR 4980.

The recovery plan also summarized the Service's understanding of the causes of the beetle's decline. The Service called the question "complex and difficult." AR 4967. It rejected several possible explanations as inadequate, such as the use of the pesticide DDT, a non-native, species-specific disease, and "the loss of habitat." See AR 4967-68. Still, it acknowledged that "habitat loss and alteration" likely contributed to the beetle's decline, at least in isolated populations. See AR 4968. It concluded that the best explanation at the time was that habitat fragmentation had both reduced the availability of and increased the competition for carrion, a predicate of the beetle's reproductive success. See AR 4969-71. That explanation was "exacerbated," it explained, by "changing land use patterns, including more intensive agricultural practices and grazing." AR 4971. It also noted that the evidence then available was "circumstantial." Id.

2. Interim Evaluations

The Service next evaluated the beetle's status in a 2008 review. See AR 5024-76. There, it revisited the two objectives from the original recovery plan. It concluded that the "stated intent" of the first objective had been achieved because "[t]he immediate threat of extinction [had] subsided in the 18 years since" the beetle was listed as endangered. AR 5030. It explained that "additional western populations" had been discovered "across a considerable geographic area." Id. But the second objective, it said, was unsatisfied because the beetle "presumably remain[ed] extirpated in most of its historic range." AR 5031. Although the beetle met the previously stated criteria for downlisting in the Midwest, the same was not true for the other three regions listed in the recovery plan. See AR 5030-31.

The ...