Ctr. for Biological Diversity v. Bernhardt, Case No. 1:20-cv-00529 (TNM)

480 F.Supp.3d 69

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,

v.David BERNHARDT, Secretary of the Interior, et al., Defendants.

Case No. 1:20-cv-00529 (TNM)

United States District Court, District of Columbia.

Signed August 20, 2020

Jennifer L. Loda, Pro Hac Vice, Center For Biological Diversity, Oakland, CA, Ryan Adair Shannon, Center For Biological Diversity, Portland, OR, for Plaintiff.

Shampa Panda, U.S. Department of Justice Wildlife and Marine Resources, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

TREVOR N. McFADDEN, U.S.D.J.

The Center for Biological Diversity ("CBD") sues to prevent the U.S. Fish and Wildlife Service from leapfrogging the Endangered Species Act's ("ESA") current mandates in its efforts to protect the Houston toad. The ESA requires the Service to develop and implement "recovery plans" that incorporate certain measures for the conservation and survival of all endangered species. CBD alleges that the Service has yet to develop such a plan for the endangered Houston toad. Defendants move to dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim. The Court denies the motion for the following reasons.

I.

The Houston toad, or the Bufo houstonensis , is "small- to medium-sized"—for a toad—with adult males ranging between 45-70 mm snout to vent and adult females ranging between 52-80 mm. Defs.’ Mot. to Dismiss ("Defs.’ Mot.") Ex. A ("1984 Recovery Plan") at 9, ECF No. 13-1.¹ Its upper side is "light brown (sometimes reddish) with a variable number of dark brown to black spots," which "usually contain a single, or several fused, nonspinous warts." Id. Considered a "habitat specialist," the Houston toad prefers "deep sandy soils and forest cover that are near breeding pools." Compl. for Decl. & Inj. Relief ("Compl.") ¶ 18, ECF No. 1. Its mating call "consists of a long, high-pitched trill" and its release call consists of a "short, barely audible release vibration and an even shorter vocalized chirp." 1984 Recovery Plan at 10.

The Houston toad resides only in Texas. Compl. ¶ 18. It "historically ranged across the central coastal region of Texas." Id. ¶ 19. But despite its name, it began disappearing from the Houston area in the 1960's. Id. It was listed as an endangered species in 1970. Id. ¶ 20. And it remains so today.

The ESA seeks to protect all endangered species. Since 1988, Section 4(f) of the ESA provides that the Secretary of the Interior, through the Service, "shall develop and implement plans (hereinafter in this subsection referred to as ‘recovery plans’) for the conservation and survival of endangered species ..., unless he finds that such a plan will not promote the conservation of the species." 16 U.S.C. § 1533(f)(1).²

As part of these "recovery plans," Section 4(f) states that the Service "shall" incorporate in each plan certain statutorily enumerated measures. Id. § 1533(f)(1)(B). These include "objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list." Id. § 1533(f)(1)(B)(ii). The Service must also solicit and consider public comment before "final approval" and "implementation" of a "new or revised recovery plan." Id. § 1533(f)(4), (5). Section 4(f) requires a report every two years "on the status of efforts to develop and implement recovery plans for all species" and "on the status of all species for which such plans have been developed." Id. § 1533(f)(3).

In 1984—four years before the adoption of the current version of Section 4(f)—the Service issued the "Houston Toad Recovery Plan." See 1984 Recovery Plan. Its goal was to "improve the status of the Houston toad to the point that survival is secured and the species can be delisted." Id. at 31. The 1984 Recovery Plan outlined four remedial steps: (1) "protect its known populations and habitats," (2) "locate and protect additional natural populations and habitats," (3) "determine its taxonomic status with respect to other forms of Bufo ," and (4) "introduce and establish self-sustaining wild populations on sites in its historic range." Id. at 31–32 (cleaned up). The Service has never supplemented or revised the 1984 Recovery Plan. Compl. ¶ 23.

In 2011, the Service conducted a 5-year review of the Houston toad. See Defs.’ Mot. Ex. B ("2011 5-Year Review"), ECF No. 13-2. The review addressed "current threats to the species, existing conservation efforts, and the need for future conservation actions." Id. at 3. It concluded that the 1984 Recovery Plan "does not reflect the most up-to-date information on the species’ biology, nor does it address all five listing factors that are relevant to the species." Id. at 4. It also found that the 1984 Recovery Plan contains no recovery criteria, and that a "Recovery Plan with updated, measurable, and objective criteria is needed." Id. Another 5-year review took place in 2018. See Defs.’ Mot. Ex. C ("2018 5-Year Review"), ECF No. 13-3. This review confirmed that the Houston toad remains an endangered species and that the 2011 5-Year Review "remains an accurate reflection of the species current status." Id. at 1.³

CBD is a non-profit organization "dedicated to the protection of native species and their habitats through science, policy, and environmental law." Compl. ¶ 6. It sues "on its own institutional behalf and on behalf of its members," some of whom "regularly visit natural areas that are occupied by the Houston toad, and seek to observe or study the toad in its natural habitat." Id. ¶ 7. CBD alleges that these members "derive educational, scientific, recreational, spiritual, professional, and aesthetic benefits from these activities, and intend to continue to use and enjoy these areas in the future." Id. Defendants are David Bernhardt, in his official capacity as Secretary of the Interior, and Aurelia Skipwith, in her official capacity as the Director of the Service (collectively, the "Government").

CBD claims that the Service has "never developed a scientifically grounded and legally valid recovery plan for the Houston toad" in violation of the ESA, 16 U.S.C. § 1533(f), and Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1). Compl. ¶ 1; see id. ¶¶ 30–42. The Government moves to dismiss the Complaint for lack of subject matter jurisdiction under Rule 12(b)(1) and failure to state a claim under Rule 12(b)(6). That motion is ripe for adjudication.

II.

Under Rule 12(b)(1), the plaintiff bears the burden of establishing the court's jurisdiction. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." Id. And the court must "accept all of the factual allegations in the complaint as true." Jerome Stevens Pharm., Inc. v. Food & Drug Admin. , 402 F.3d 1249, 1253 (D.C. Cir. 2005) (cleaned up).

To avoid dismissal under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim crosses from conceivable to plausible when it contains factual allegations that, if proved, would allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Banneker Ventures, LLC v. Graham , 798 F.3d 1119, 1129 (D.C. Cir. 2015) (cleaned up). A court must "draw all reasonable inferences from those allegations in the plaintiff's favor," but not "assume the truth of legal conclusions." Id.

The ESA's civil-suit provision authorizes a private party to sue "where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary." 16 U.S.C. § 1540(g)(1)(C). The lawsuit must "compel the Secretary to perform a nondiscretionary duty under § 1533." See Bennett v. Spear , 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (cleaned up). Similarly, the APA allows courts to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). Such a claim "can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. " Norton v. S. Utah Wilderness All. , 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (emphasis in original).

III.

A.

The Government did not challenge CBD's standing to bring this case. But the Court "has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties." Summers v. Earth Island Inst. , 555 U.S. 488, 499, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). The Court thus considers CBD's standing sua sponte before addressing the motion to dismiss. See Lee's Summit, MO v. Surface Transp. Bd. , 231 F.3d 39, 41 (D.C. Cir. 2000).

A plaintiff must establish standing at each phase of litigation. See Scenic Am., Inc. v. U.S. Dep't of Transp. , 836 F.3d 42, 48 (D.C. Cir. 2016). The "determination that a plaintiff has established standing at the motion to dismiss stage by alleging sufficient facts in her pleadings is only the first step, because that finding does not obviate the court's responsibility to ensure that the plaintiff can actually prove those allegations when one or both parties seek summary judgment." Id. (emphasis in original). So the "burden to demonstrate standing grows heavier at each stage of the litigation." Osborn v. Visa Inc. , 797 F.3d 1057, 1063 (D.C. Cir. 2015).

ESA's citizen-suit provision "expands standing to the full extent permitted under Article III of the Constitution and eliminates any prudential standing requirements." See Am. Soc'y for...