Ctr. for Biological Diversity v. Bernhardt

490 F.Supp.3d 40

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.David BERNHARDT, et al., Defendants.

Case No. 19-cv-02898 (APM)

United States District Court, District of Columbia.

Signed September 24, 2020

Sylvia Shih-Yau Wu, Victoria Yundt, Pro Hac Vice, Center for Food Safety, San Francisco, CA, Hannah Mary Margaret Connor, Center for Biological Diversity, St. Petersburg, FL, for Plaintiffs.

Sarah Izfar, Devon Lea Flanagan, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

Amit P. Mehta, United States District Court Judge

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 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.

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 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, 126 S.Ct. 1854, 164 L.Ed.2d 589 (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, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing must be demonstrated "for each claim," DaimlerChrysler , 547 U.S. at 352, 126 S.Ct. 1854 (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, 112 S.Ct. 2130.

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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), or "accept inferences 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, 129 S.Ct. 1937. If a complaint does not contain sufficient factual matter ...