Ctr. for Biological Diversity v. Everson, Civil Action No. 15-477 (EGS), Civil Action No. 16-910 (EGS) (

435 F.Supp.3d 69

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.Margaret EVERSON, et al., DefendantsandAmerican Forest & Paper Association, et al., Defendant-Intervenors.

Defenders of Wildlife, Plaintiff,

v.Margaret Everson, et al., DefendantsandAmerican Forest & Paper Association, et al., Defendant-Intervenors.

Civil Action No. 15-477 (EGS), Civil Action No. 16-910 (EGS) (

C/w 15-cv-477)

United States District Court, District of Columbia.

Signed January 28, 2020

Ryan Adair Shannon and Jane P. Davenport, Center for Biological Diversity, Portland, OR, for Plaintiffs.

John S. Most, Department of Justice Land & Natural Resources Div., Kaitlyn Ashley Poirier, U.S. Department of Jsutice, Washington, DC, for Defendants.

John Charles Martin, Holland & Hart LLP, Washington, DC, Sarah C. Bordelon, Holland & Hart LLP, Reno, NV, for Defendant-Intervenors.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge In April 2015, the United States Fish and Wildlife Service ("FWS" or "the Service") issued its final rule listing the northern long-eared bat ("Bat") as a "threatened" species under the Endangered Species Act of 1973. See Threatened Species Status for the Northern Long-Eared Bat With 4(d) Rule, 80 Fed. Reg. 17,974 (Apr. 2, 2015) ("Listing Rule"). FWS found that while the Bat "resides firmly in th[e] category where no distinct determination exists to differentiate between endangered and threatened," the Bat "is appropriately categorized as a threatened species" as the Bat "is likely to become an endangered species in the foreseeable future." Id. at 18,020 -21.

Plaintiffs—the Center for Biological Diversity, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Sierra Club, and Defenders of Wildlife—challenge two separate decisions by FWS pertaining to the Bat that they claim fail to comply with mandates for the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 - 1544, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 - 4347. These decisions are: (1) the decision to list the Bat as threatened rather than endangered, with an interim final species-specific 4(d) rule, Listing Rule, 80 Fed. Reg. 17,974 ; and (2) the final species-specific section 4(d) rule, 81 Fed. Reg. 1900 (Jan. 14, 2016). The Court bifurcated briefing on these two challenges, Min. Order of Jan. 13, 2017, and pending before the Court are the parties' cross-motions for summary judgment on plaintiffs' Listing Rule claim.

Upon careful consideration of the plaintiffs' motion, the Federal defendants' and defendant-intervenors' cross-motions, the oppositions and replies thereto, the arguments of amicus curiae,¹ the relevant law, the full administrative record, and for the reasons set forth below, the Court finds that FWS's decision to list the Bat as threatened under the ESA was arbitrary and capricious. Accordingly, the Court GRANTS IN PART AND DENIES IN PART plaintiffs' motion for summary judgment and GRANTS IN PART AND DENIES IN PART Federal defendants' and the defendant-intervenors' motions for summary judgment.

I. Background

A. Statutory and Regulatory Background

The ESA has been described as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Congress enacted the ESA "to provide a means whereby the ecosystems upon which endangered species and threatened species depend 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 plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost."

Tennessee Valley Auth., 437 U.S. at 184, 98 S.Ct. 2279.

The ESA's protections are triggered when a species is designated as either "threatened" or "endangered." A designation of "endangered" triggers a broad scope of protections, including a prohibition on "taking" individual members of the species. See 16 U.S.C. § 1538(a)(1)(B) ; see also id. § 1532(19) ("The term take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."). A designation of "threatened" requires the Secretary to "issue such regulations as he deems necessary and advisable to provide for the conservation of such species." Id. § 1533(d).

An "endangered species" is "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A "threatened species" is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). The term "species" is defined in the Act to include species, subspecies, and "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16).

The ESA requires the Secretary of the Interior to publish and maintain a list of all species that have been designated as threatened or endangered. Id. § 1533(c). Species are added to and removed from this list after notice and an opportunity for public comment, either on the initiative of the Secretary or as a result of a petition submitted by an "interested person." Id. § 1533(b)(1), (3), (5). The Secretary of the Interior and the Secretary of Commerce are responsible for making listing decisions. Id. §§ 1532(15), 1533(a)(2). The Secretary of the Interior is responsible for making listing determinations for the Bat. See 50 C.F.R. § 402.01(b).

A listing determination is made on the basis of one or more of five statutorily prescribed factors: "(A) the present or threatened destruction, modification, or curtailment of a species' habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting a species' continued existence." 16 U.S.C § 1533(a)(1)(A)-(E) ; see also 50 C.F.R. § 424.11(c). The agency must list a species as long as "any one or a combination" of these factors demonstrates that the species is threatened or endangered. 50 C.F.R. § 424.11(c).

The decision to list a species must be made

solely on the basis of the best scientific and commercial data available ... 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....

16 U.S.C. § 1533(b)(1)(A).

B. Factual and Procedural Background

The Bat is a medium-sized bat species with relatively long ears whose range extends "across much of the eastern and north-central United States ... [including] 37 states, the District of Columbia," and "all Canadian Provinces." 80 Fed. Reg. at 17,975. The Bat has different winter and summer habitats. In winter, the Bat hibernates in hibernacula, typically caves and abandoned mines. Id. at 17,984. In summer, the Bat typically roosts alone or in colonies "underneath bark or in cavities or crevices of both live trees and snags," with no apparent preference for tree species. Id. The maximum lifespan of the Bat is estimated at 18.5 years, and adult females give birth to a single pup each year. Id. at 17,988.

A number of bat species are susceptible to White-nose syndrome ("WNS"), caused by a fungus known as "Pd," which has been "responsible for unprecedented mortality of insectivorous bats in eastern North America." Id. at 17,993 –94. First documented in 2006, it "has spread rapidly." Id. at 17,994. The Bat has been found to be highly-susceptible to WNS. Id. at 17,998. As stated in the Listing Rule,

A recent study revealed that the northern long-eared bat has experienced a precipitous population decline, estimated at approximately 96 percent (from hibernacula data) in the northeastern portion of its range, due to the emergence of WNS. WNS has spread to approximately 60 percent of the northern long-eared bat's range in the United States, and if the observed average rate of spread of Pd continues, the fungus will be found in hibernacula throughout the entire species' range within 8 to 13 years based on the calculated rate of spread observed to date (by both the Service and COSEWIC^{[2 ]}). We expect that similar declines as seen in the East and portions of the Midwest will be experienced in the future throughout the rest of the species' range.

Id. at 18,000. Once a bat becomes infected with WNS, there is no cure. Id. at 18,021.

In 2010, the Center for Biological Diversity petitioned FWS to list the Bat as endangered or threatened and to designate critical habitat for the species, and in October 2013, FWS proposed to list the Bat as an endangered species. See 12-Month Finding on a Petition to List the Eastern Small-Footed Bat and the Northern Long-eared Bat as Endangered or Threatened Species; Listing the Northern Long-Eared Bat as an Endangered Species, 78 Fed. Reg. 61,046 (Oct. 23, 2013) ("Proposed Rule"). Thereafter, in April 2015, FWS issued its final rule listing the Bat as a threatened rather than an endangered species. See generally 80 Fed. Reg. 17,974.

In describing the Bat's range, FWS divided the range into four geographical sections, and explained that WNS has affected three of the four sections, with WNS being undetected in the section where the Bat is generally "uncommon" or "rare." The eastern section of the range includes the District of Columbia, Delaware, Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, Pennsylvania, Vermont, Virginia, West Virginia, New York, and Rhode Island. Id. at 17,976. As explained by FWS,

Historically, the [Bat] was widely distributed in the eastern part of its range," but due to the arrival of

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