370 F. Supp. 3d 711
W.D. Tex.2019Background
- The bone cave harvestman, an eyeless karst invertebrate found in Travis and Williamson Counties, Texas, was listed as endangered in 1988; additional populations were discovered later and the species was formally included as a distinct species in 1993.
- Plaintiffs (the Stewards) petitioned in 2014 to delist the harvestman, arguing expanded known range (from ~5–6 to 172 sites), coexistence with development at several named caves, reduced threat from fire ants, and new state/local protections support delisting.
- The Fish and Wildlife Service issued a 90-day finding in 2015 (later remanded for a clerical error) and a superseding 2017 90-day finding concluding the petition did not present substantial information that delisting may be warranted, primarily because of insufficient population-trend data.
- Stewards challenged the 2017 finding under the Administrative Procedure Act (APA), arguing the Service applied an unlawfully high evidentiary standard, improperly relied on recovery-plan criteria, and failed to treat listing-as-error claims correctly; intervenors raised constitutional challenges to the Act’s “take” provisions.
- The district court held the Service acted arbitrarily and capriciously and contrary to law by requiring unavailable/conclusive population-trend data at the 90-day stage, vacated the 2017 finding, and remanded for reconsideration based on available information; it also held (for other motions) that the Service had considered whether the original listing was in error and that Congress validly exercises Commerce Clause authority to regulate takes of the harvestman.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Service applied the proper standard for a 90‑day finding under the ESA/regs | Stewards: Service demanded conclusive population‑trend evidence unavailable in principle; petition met the low "substantial"/"available information" threshold | Service: it applied correct standard and reasonably found the petition lacked sufficient evidence that delisting may be warranted | Court: Service set an unlawfully high evidentiary bar; decision arbitrary/capricious; vacated and remanded |
| Whether the Service improperly required recovery‑plan criteria or misread regs | Stewards: Service treated recovery‑plan benchmarks as de facto requirements for delisting | Service: assessed factors appropriately | Court: did not reach this claim on merits because main-regulatory violation warranted vacatur; rejected treating recovery plan as decisive here is unnecessary to resolve |
| Whether the Service considered whether the original 1988 listing was made in error | Stewards: Service failed to evaluate whether original listing data/interpretation were erroneous | Service: it expressly considered and rejected the "listed in error" argument | Court: Service did consider that ground; cross‑motion granted on that narrow point |
| Whether constitutional challenges to the Act’s "take" prohibition are timely and valid | Yearwood: Commerce/Necessary & Proper/Tenth Amendment challenge to federal regulation of intrastate take | Service: claims barred by limitations as to some plaintiffs; GDF Realty and circuit precedent uphold Act under Commerce Clause | Court: Yearwood’s claim not time‑barred; Williamson County’s claims barred; regulation of takes of the harvestman is a valid exercise of Commerce Clause; Tenth Amendment argument waived |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (agency must examine relevant data and provide rational connection between facts and choice)
- Judulang v. Holder, 565 U.S. 42 (review for consideration of relevant factors and clear error of judgment)
- GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th Cir.) (applying Commerce Clause analysis to ESA application to karst invertebrates)
- Gonzalez v. Raich, 545 U.S. 1 (discussing limits of Commerce Clause and rational‑basis aggregation rationale)
- Dunn‑McCampbell Royalty Interest, Inc. v. Nat'l Park Serv., 112 F.3d 1283 (limitations accrual rules for APA challenges)