Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv.

690 F.Supp.3d 322

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

21-cv-5706 (LJL)

United States District Court, S.D. New York

Signed September 5, 2023

Elise Pautler Bennett, Center for Biological Diversity, St. Petersburg, FL, Brian Segee, Center for Biological Diversity, Ojai, CA, for Plaintiffs.

Allison Rovner, Anthony Jan-Huan Sun, United States Attorney's Office, New York, NY, for Defendants.

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

Plaintiffs Center for Biological Diversity, Waterkeeper Alliance, Inc., Waterkeepers Chesapeake, Inc., Lower Susquehanna Riverkeeper Association, and Middle Susquehanna Riverkeeper Association (collectively "Plaintiffs") filed this Complaint, seeking in part an order declaring that a determination of the U.S. Fish and Wildlife Service ("FWS" or "Service") that the eastern hellbender should not be listed as either endangered or threatened is unlawful and vacating the listing determination to that effect.

Plaintiffs and defendants FWS and two of its officials (collectively "Defendants") now each move, pursuant to Federal Rule of Civil Procedure 56, for an order granting summary judgment in their favor. Dkt. Nos. 55, 65.

For the following reasons, Plaintiffs' motion for summary judgment is granted and Defendants' motion for summary judgment is denied.

BACKGROUND

The following facts are taken from the administrative record ("AR"), in lieu of Local Civil Rule 56.1 Statements of Material Facts. Dkt. No. 54.

I. The Endangered Species Act

The Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., "represent[s] the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). It was enacted in 1973 "to provide a means whereby the ecosystems upon which endangered species and threatened species 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 ESA and its implementing regulations empower FWS to "determine whether any species is an endangered species or a threatened species" based on an enumerated set of factors. Id. § 1533(a)(1). Under the ESA, a species is defined as "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16). A species qualifies as endangered under the ESA when it is "in danger of extinction throughout all or a significant portion of its range," and qualifies as threatened when it is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(6), (20).

The Secretary of the Interior is required to consider the following five factors to determine whether a species is either endangered or threatened: (a) "the present or threatened destruction, modification, or curtailment of its 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 its continued existence". Id. § 1533(a)(1). The Secretary of the Interior must make this determination:

solely on the basis of the best scientific and commercial data available to him [or her] after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction; or on the high seas.

Id. § 1533(b)(1)(A).

Listing may be done at the initiative of the FWS or in response to a petition from an "interested person." Id. § 1533(b)(3)(A). In particular, under the ESA, interested persons may petition FWS to "add a species to, or to remove a species from, either of the [endangered species or threatened species] lists," and FWS "shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted," and, if so, the agency "shall promptly publish each finding made." Id.

Within ninety days of receiving a petition, the Secretary of the Interior must, "[t]o the maximum extent practicable," determine whether the petition presents "substantial scientific or commercial information indicating that the petitioned action may be warranted." Id. The Service evaluates this information against the listing factors to determine whether the proposal of a rule listing the species may be warranted. Id. If the Secretary of the Interior determines that a petition presents "substantial scientific or commercial information indicating that the petitioned action may be warranted," the Secretary must then begin a "review of the status of the species concerned." Id. After that review, the Secretary of the Interior must make a second finding, commonly referred to as a "twelve-month finding," that the petitioned action is: (a) not warranted; (b) warranted; or (c) warranted but precluded by higher priority pending proposals while expeditious progress is being made to list, delist, or reclassify species (referred to as a "warranted but precluded finding"). Id. § 1533(b)(3)(B). Where a "petitioned action is not warranted," FWS "shall promptly publish such finding in the Federal Register," and any such negative finding "shall be subject to judicial review." Id. § 1533(b)(4)(B)(i), (C)(ii).

II. The Eastern Hellbender

The eastern hellbender is an aquatic salamander with populations in streams across fifteen states in the Northeast, Midwest, Mid-Atlantic, and Southern United States. See Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Endangered Species Status for the Missouri Distinct Population Segment of Eastern Hellbender, 84 Fed. Reg. 13,223 (Apr. 4, 2019) ("Listing Determination"). Eastern hellbenders typically establish their nests beneath "partially embedded, large (greater than 30 centimeters), flat rocks with a single opening facing downstream or perpendicular to streamflow," where female hellbenders deposit their eggs for males to fertilize and then defend from other hellbenders. Id. at 13,225. After larvae hatch, they retain their gills until they are roughly two-years old, and advance to sexual maturity at age five or six. Id. Once an eastern hellbender sheds its gills, it respires through prominent, highly vascularized skin folds. Id. As a result, the eastern hellbender can only thrive in environments that are cool and well oxygenated. Id. Because it only thrives in specific environments, the eastern hellbender is considered "an indicator of good stream and river quality." AR at 2,421. Experts estimate that in the wild, eastern hellbenders can live at least twenty-five to thirty years. Listing Determination, 84 Fed. Reg. at 13,225.

FWS has identified four distinct geographical units that comprise the eastern hellbender's range, referred to as adaptive capacity units ("ACUs"), and which "delineate variation in genetic and ecological traits within the eastern hellbender's historical range." Id. at 13,226. The first is the Missouri River drainage ACU ("MACU"), which is the smallest ACU, encompassing only five streams in a small region of a single state and containing zero healthy populations of the eastern hellbender. Id.; AR at 77. The second is the Ohio River-Susquehanna River drainages ACU ("OACU"), which encompasses 123 occupied streams across nine states and contains forty-two healthy eastern hellbender populations. Listing Determination, 84 Fed. Reg. at 13,226; AR at 77. The third is the Tennessee River drainage ACU ("TACU"), which encompasses 178 occupied streams across six states and contains sixty-eight healthy eastern hellbender populations. Listing Determination, 84 Fed. Reg. at 13,226; AR at 77. The final is the Kanawha River drainage ACU ("KACU"), which encompasses forty occupied streams across three states and contains sixteen healthy hellbender populations. Listing Determination, 84 Fed. Reg. at 13,226; AR at 77. A higher number of occupied streams signifies an enhanced level of resiliency, or annual variation in environment, allowing the eastern hellbender to better persist and recover from unfavorable conditions and disturbances and thereby sustain populations through both good and bad years. AR at 81.

Several influences have, however, put eastern hellbender populations under stress throughout its range. According to experts on the eastern hellbender, the primary stressor impacting the trajectory of the eastern hellbender is sedimentation. Id. at 76. Increased sediment in streams occupied by the eastern hellbender fills the spaces around and in between rocks that are used by larval and juvenile hellbenders for shelter and can impact habitat and migratory patterns in adults by burying shelter and nest rocks. Id. at 255. Elevated sediment can be caused by, for example, logging of upland forests, clearing of riparian vegetation, and intense flooding events occurring with increased frequency. Id. at 848. A second stressor projected to have a significant impact on the eastern hellbender is water quality degradation. Id. at 112. Water quality degradation can occur through dam construction, which stops swift water flow and submerge riffles causing oxygen levels in water to decline, as well as toxic pollution often caused by acid mine draining, which results in decreased pH levels. Id. Other stressors identified by FWS and the experts include habitat destruction and modification, direct mortality or permanent removal of eastern hellbenders, disease, population fragmentation and...