Ctr. for Biological Diversity v. Haaland

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CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. DEBRA HAALAND, in her official capacity as Secretary of the United States Department of the Interior,^[1]et al., Defendants.

No. 20-573 (EGS)

United States District Court, District of Columbia

March 8, 2023

MEMORANDUM OPINION

Signed: Emmet G. Sullivan United States District Judge

I. Introduction

Plaintiff the Center for Biological Diversity (the “Center”), brings this action against Defendants Debra Haaland, in her official capacity as Secretary of the United States Department of the Interior; and Martha Williams,^[2]in her official capacity as Director of the United States Fish and Wildlife Service (the “FWS” or the “Service”), (collectively “Defendants”). See Compl., ECF No. 1.^[3]The Center seeks to compel Defendants to take certain actions under the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (“ESA” or “Act”): (1) to make 12-month findings for 231 species, 16 U.S.C. § 1533(b)(3)(B); (2) to publish final listing determinations for six species, id. § 1533(b)(6)(A); and (3) to make critical habitat designations for four species, id. § 1533(a)(3)(A)(i), (b)(6)(A)(ii)(I), (b)(6)(C). See Compl., ECF No. 1 ¶¶ 259-64.

Pending before the Court is Defendants' Motion for Partial Dismissal, ECF No. 12. Upon careful consideration of the parties' submissions, the applicable law, and the entire record herein, the Court hereby GRANTS IN PART and DENIES IN PART Defendants' Motion for Partial Dismissal.

II. Background

A. Statutory and Regulatory Background

The ESA “represent[s] 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 (1978). Congress passed this legislation “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.” Hill, 437 U.S. at 184.

The ESA mandates that the Secretary of the Interior and the Secretary of Commerce^[4]determine whether any species should be listed as endangered^[5]or threatened^[6]according to five enumerated statutory factors. See 16 U.S.C. §§ 1532(15), 1533(a). Listing a species as endangered or threatened triggers certain legal protections. See, e.g., id. §§ 1533-1538.

Section 4 of the ESA sets forth the procedure by which a species may be listed as endangered or threatened. See id. § 1533. Any “interested person” may petition the FWS to list a species. Id. § 1533(b)(3)(A). The Act requires that, “[t]o the maximum extent practicable, within 90 days,” the FWS^[7]make an initial “finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” Id. (describing the “90-day finding”). If the FWS determines that the petition does not present substantial information indicating that listing may be warranted, the agency rejects the petition, and the process concludes. See id. If, however, the FWS determines that the petition does present substantial information indicating that listing may be warranted, the agency must publish that finding in the Federal Register and conduct a scientific review of the status of the species. Id. (detailing the “status review”).

The ESA further requires that the FWS issue one of the following determinations “[w]ithin 12 months after receiving a petition”: (1) listing is “warranted”; (2) listing is “not warranted”; or (3) listing is “warranted, but . . . precluded” by other pending proposals for listing species, provided certain circumstances are present. Id. § 1533(b)(3)(B) (discussing the “12-month finding”). The agency must publish this determination in the Federal Register. See id. “The ESA permits no exceptions to this 12-month mandatory deadline.” In re Endangered Species Act Section 4 Deadline Litig., 277 F.R.D. at 4 (D.D.C. 2011); Friends of Animals v. Ashe, 808 F.3d 900, 903 (D.C. Cir. 2015) (“But even if it is not practicable, the Service must make an initial determination within 12 months of receiving the listing petition.”).^[8]

The process concludes here for any species for which the FWS determines listing is not warranted. See 16 U.S.C. § 1533(b)(3)(B)(i). Alternatively, for species whose listing is warranted, the FWS must “publish in the Federal Register a general notice and the complete text of a proposed regulation to implement such action.” Id. § 1533(b)(3)(B)(ii). Within one year of publishing that proposed listing rule, the agency must publish the final listing determination in the Final Register. Id. § 1533(b)(6)(A).

A species whose listing is warranted but precluded is considered a candidate for listing under the ESA. See 2022 Candidate Notice of Review (“CNOR”), 87 Fed.Reg. 26,152 (May 3, 2022) (“A candidate species is one for which we have on file sufficient information on biological vulnerability and threats to support a proposal for listing as endangered or threatened, but for which preparation and publication of a proposal is precluded by higher priority listing actions.”). The FWS must “publish [this] finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based.” 16 U.S.C. § 1533(b)(3)(B)(iii). The agency must treat this petition as one that has been resubmitted for consideration. Id. § 1533(b)(3)(C)(i). As a result, the FWS must make a new determination within 12 months as to whether listing is warranted or warranted but precluded. See id. The agency must also “implement a system to monitor effectively the status” of these candidate species “to prevent a significant risk to the well being of any such species.” Id. § 1533(b)(3)(C)(iii).

Additionally, the ESA mandates that the agency designate critical habitats^[9]“to the maximum extent prudent and determinable . . . concurrently with making a determination . . . that a species is an endangered species or a threatened species.” Id. § 1533(a)(3)(A)(i). The agency must make this designation “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.” Id. § 1533(b)(2).

As with the listing procedure, the process for designating critical habit is governed by statutory deadlines. See id. § 1533(a)(3)(A)(i). However, if critical habitat is not determinable at the time of listing, the Act empowers the agency to extend its deadline to designate critical habitat by “no more than one additional year.” Id. § 1533(b)(6)(C)(ii). At that time, the FWS “must publish a final regulation, based on such data as may be available at that time, designating, to the maximum extent prudent, such habitat.” Id.

B. Factual

This case concerns “the ongoing failure” of the FWS to comply with statutory deadlines for listing species as threatened or endangered and for designating critical habitats for these species. Compl., ECF No. 1 ¶ 1. In 2011, following multi-district litigation, the FWS entered into two settlement agreements requiring it to complete hundreds of listing determinations. See id. ¶ 46 (citing Order Granting Joint Mot. for Approval of Settlement Agreement and Order of Dismissal of Center for Biological Diversity's Claims, In re Endangered Species Act Section 4 Deadline Litig., No. 1:10-mc-00377-EGS, MDL No. 2165 (D.D.C. Sept. 9, 2011), ECF No. 56; Order Granting Joint Mot. for Approval of Settlement Agreement and Order of Dismissal of WildEarth Guardians' Claims, ECF No. 55). As part of these settlement agreements, the Center agreed to limit its challenges to the agency's failures to make timely determinations to no more than 10 species each year. See Stipulated Settlement Agreement, In re Endangered Species Act Section 4 Deadline Litig., Misc. No. 10-377 (D.D.C. July 12, 2011), ECF No. 42-1 ¶ B(10)(c).

In September 2016, the FWS announced its multi-year National Listing Workplan for completing the more than 200 overdue findings required by law but not captured by the Settlement Agreement. See Compl., ECF No. 1 ¶ 47. The agency updated this Workplan in May 2019 to address its planned actions for the following five-year period. See id. ¶ 49. Despite the agency's commitments in these Workplans, the FWS missed statutory deadlines for 30 species in fiscal year 2017, 78 species in fiscal year 2018, and 46 species in fiscal year 2019. See id. ¶ 48.

At the time the Center filed the Complaint, the organization alleged that the FWS had failed to make listing determinations and/or critical habitat designations for 241 species. See id. ¶ 5. Specifically, the Center claims that: (1) the agency has not completed a 12-month finding for 231 species, see id. ¶ 50-200, 259-60; (2) the agency has not completed a final listing determination for six species, see id. ¶¶ 201-40, 261-62; and (3) the agency has not made a proposed or final critical habitat designation for four species, see id. ¶¶ 24158, 263-64.

C. Procedural

The Center filed this lawsuit on February 27, 2020. See Compl., ECF No. 1. On May 4, 2020, Defendants filed this motion, which requests dismissal of the Center's claims with respect to various species. See Defs.' Mot Partial Dismissal, ECF No. 12 at 1; Mem. in Supp. Defs.' Mot. Partial Dismissal (“Defs.' Mot.”), ECF No. 12-1 at 1-2. The Center filed its opposition brief on June 8, 2020, see Pl.'s Opp'n Defs.' Mot. Partial Dismissal (“Pl.'s Opp'n”), ECF No. 17; and Defendants filed their reply brief on ...