Pub. Emps. for Envtl. Responsibility v. Bernhardt

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, et al., Plaintiffs, v. DAVID BERNHARDT, in his official capacity as Secretary,U.S. Department of Interior, et al., Defendants.

Civil No. 18-1547 (JDB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

February 7, 2020

MEMORANDUM OPINION

In 1992, the Fish and Wildlife Service ("the Service") listed the Louisiana black bear ("LBB") as a "threatened species" under the Endangered Species Act ("ESA"). The Service determined in 2016 that the bear had recovered and no longer qualified as threatened, and it was therefore delisted. Plaintiffs, a collection of non-profit organizations and individuals who assert an interest in the LBB and its habitat, dispute the Service's determination and challenge the decision to delist the LBB. Now before the Court are plaintiffs' motion for summary judgment and the government's and intervenor-defendant Safari Club International's cross-motions for summary judgment. Upon consideration of the parties' submissions and the entire record, the Court concludes that plaintiffs have failed to satisfy the requirements of Article III standing. Accordingly, the Court will dismiss the case without prejudice for lack of jurisdiction.

Background

A. The Louisiana Black Bear

The LBB is a subspecies of the American black bear. See Removal of the Louisiana Black Bear From the Federal List of Endangered and Threatened Wildlife and Removal of Similarity-of-Appearance Protections for the American Black Bear("Delisting Rule"), 81 Fed. Reg. 13,124, 13,124 (March 11, 2016). LBBs are "huge, bulky mammal[s] with long black hair" and yellowish-brown muzzles; they sometimes present with a white patch on their lower throat and chest. Threatened Status for the Louisiana Black Bear and Related Rules ("Listing Rule"), 57 Fed. Reg. 588, 588 (Jan. 7, 1992). While LBBs "are not readily visually distinguishable from other black bear[s]," Delisting Rule at 13,125, they are morphologically characterized by their "relatively long, narrow, and flat" skulls and "proportionately large molar teeth," Listing Rule at 588. Male LBBs usually weigh about 300 pounds, with females weighing in at around 150 pounds. Delisting Rule at 13,125.

LBBs are habitat generalists—they can and do survive in a variety of habitats, including "marsh, upland forested areas, forested spoil areas along bayous, brackish and freshwater marsh, salt domes, and agricultural fields." Delisting Rule at 13,126. The LBB historically lived in many of these sorts of habitats in Louisiana (as implied by the name "Louisiana black bear"). Id. The bear was also known to live in parts of southern Mississippi and eastern Texas. Id. at 13,126-27. Beginning in the 1700s and 1800s, however, hunting and deforestation narrowed the habitable land available to the LBB. Id. By 1992, agricultural land clearing had further reduced LBB habitat by more than 80 percent, and what habitat remained was "degraded by fragmentation." Id. at 13,127. As a result of this habitat loss, in 1992, only 80 to 120 LBBs were estimated to remain in Louisiana, 25 in Mississippi, and none at all in Texas. Id.

B. The 1992 Listing and Subsequent Developments

Under the ESA, the Secretary of the Interior—and through him, the Service—is charged with conserving endangered and threatened species. 16 U.S.C. § 1531(b). One means of satisfying that charge is to add or remove species like the LBB from the Federal Lists of Endangered and Threatened Wildlife and Plants. See 16 U.S.C. § 1533. A species is "endangered"—and should thus be listed—if it "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). Similarly, a species is "threatened" if it "is likely to become an endangered species within the foreseeable future." Id. § 1532(20). In determining whether a species is threatened or endangered, the Service must consider several statutory factors, including "the present or threatened destruction" of the species' habitat and "the inadequacy of existing regulatory mechanisms." Id. § 1533(a)(1).

In 1992, concerned by the LBB's habitat losses and low population numbers, the Service determined that the LBB met the statutory definition of "threatened" and issued a final rule listing the LBB. Listing Rule at 592. The main threats to the LBB, according to the Service, were (1) past habitat losses from the conversion of land for agricultural or other non-timberland purposes; (2) possible future habitat losses in privately owned areas; and (3) the inadequacy of existing regulatory mechanisms. Listing Rule at 590-91. The Rule noted that illegal killing by humans posed a secondary threat to the LBB. Id. at 591.

The Rule also discussed whether hybridization was a threat to the LBB. Id. at 591-92. The Rule explained that in the 1960s, about 160 American black bears from Minnesota had been introduced into LBB habitat. Id. It then considered whether cross-breeding between the LBB and those Minnesota bears was a threat to the species, ultimately concluding that such hybridizationwas not a threat, because the extant populations of LBBs were "probably intraspecifically hybridized" already. Id. at 592. The important thing was to "protect[] the taxon now distinguished by cranial features." Id. Because "genetic investigations did not identify real differences" between the LBB and the Minnesota bear, the Service concluded that hybridization was not likely to dilute or threaten the LBB taxon. See id.

As required by statute, after it listed the LBB, the Service developed and approved a recovery plan for the LBB. See Louisiana Black Bear Recovery Plan ("Recovery Plan"), FWS002595 (Sept. 27, 1995). The plan stated that the recovery objective was "[d]elisting," and provided three criteria for delisting the LBB: (1) the existence of "[a]t least two viable subpopulations, one each in the Tensas and Atchafalaya River Basins"; (2) the "[e]stablishment of immigration and emigration corridors between the two subpopulations"; and (3) "[l]ong-term protection of the habitat and interconnecting corridors that support each of the two viable subpopulations." Id. at FWS002600, 2615. Once the plan was approved, the Service worked to implement it, with the goal of satisfying each of the plan's three criteria. During the implementation period, the Service published a final rule designating approximately 1,195,800 acres as "critical habitat" for the LBB. See Designation of Critical Habitat for the Louisiana Black Bear, 74 Fed. Reg. 10,350 (Mar. 10, 2009).

In 2007, the Service initiated a "5-year review" of the LBB's status to "ensure that the classification of [the] species" as threatened remained "accurate." 5-Year Review of Nine Southeastern Species, 72 Fed. Reg. 42,425 (Aug. 2, 2007). The results of that review were published in early 2014. See 5-Year Review, FWS016804. The review concluded that between 76% and 100% of the Recovery Plan's objectives had been met, noting that all three LBB populations existing at the time of listing were increasing, new breeding populations had appeared,and "significant progress in habitat restoration and protection" had been made. Id. at FWS016806, 16814.

C. The 2016 Delisting

On March 11, 2016, twenty-four years after the LBB was listed, the Service published a final rule delisting the LBB. See Delisting Rule at 13,124. In the Delisting Rule, the Service determined that the LBB had recovered because all substantial threats had been eliminated or reduced and all recovery criteria in the Recovery Plan had been met; thus, the LBB no longer met the definition of a threatened species. Id. at 13,133-38. The Rule emphasized that (1) habitat, forest restoration, and breeding habitat had increased significantly since the time of listing, id. at 13,159; (2) hunting, commercial use, disease, and predation continued not to be serious threats to the LBB, id. at 13,159-60; and (3) many state and federal protections would remain in place after delisting, including the Clean Water Act, permanent conservation easements, state protections analogous to those under the ESA, and state management plans for maintaining LBB habitat, id. at 13,160-64.

The Service also returned to the question whether hybridization was a threat to the LBB. It acknowledged that the Upper Atchafalaya River Basin ("UARB") subpopulation showed some "genetic affinity" to Minnesota bears, but concluded that such affinity "is not sufficient evidence for determining taxonomic status." Id. at 13,165. Moreover, the Service noted that a recent study validated its assumption at the time of listing that the whole LBB population was to some extent already hybridized, and so the notion that a "pure" LBB genetic strain existed anywhere was likely mistaken. Id. Indeed, the Service determined that, rather than threatening the LBB, genetic exchange "among bears from Louisiana, Mississippi, and Arkansas can be considered a positive genetic and demographic contribution" to the LBB subspecies. Id. (emphasis added).

In addition to delisting the LBB, the Delisting Rule also rescinded the critical habitat designation from 2009. See id. at 13,171.

D. This Lawsuit

Plaintiffs filed this lawsuit on June 28, 2018, challenging the Service's conclusions in the Delisting Rule that the LBB is recovered and no longer meets the definition of a "threatened species" under the ESA. See, e.g., Compl. [ECF No. 1] ¶¶ 76-101. Plaintiff's complaint seeks a declaration that the Delisting Rule was issued in violation of law and vacatur of the Rule. Id. at 34. On January 4, 2019, Safari Club International moved to intervene; the Court granted that motion on March 22, 2019. Order of March 22, 2019 [ECF No. 22] at 5-6. Plaintiffs, the government, and Safari Club have each moved for summary judgment. Pls.' Mot. for Summ. J. ("Pls.' MSJ") [ECF No. 24]; Safari Club Int'l's Cross-Mot. for Summ. J. and Resp. in Opp'n to Pls.' Mot. for Summ. J. ("Safari Club MSJ") [ECF No. 25]; Fed. Defs.' Cross-Mot. for...