Defenders of Wildlife v. Jewell
70 F. Supp. 3d 183
D.D.C.2014Background
- The U.S. Fish and Wildlife Service (FWS) proposed listing the dunes sagebrush lizard as endangered in 2010 based on habitat loss and fragmentation from oil and gas development; after public comment and new information, FWS withdrew the proposed listing in June 2012.
- Key conservation measures assessed by FWS were: BLM’s Resource Management Plan Amendment (RMPA) (covers federal lands in NM), New Mexico Candidate Conservation Agreement/CCAA (in effect since 2008), and the newly implemented Texas CCAA/Habitat Conservation Plan (the “Texas Plan”). Together they covered ~89% of the lizard’s habitat.
- Plaintiffs (Defenders of Wildlife and Center for Biological Diversity) sued, alleging FWS (1) failed to consider all five ESA listing factors properly, (2) did not rely on the best available science, and (3) acted arbitrarily and capriciously and violated FWS’s PECE policy by crediting speculative or inadequately certain conservation efforts.
- FWS relied on studies of habitat patch size and species occurrence, enrollment and compliance data for New Mexico and early Texas Plan enrollment, and PECE analyses evaluating certainty of implementation and effectiveness of the conservation measures.
- The court reviewed the agency action under the APA’s arbitrary-and-capricious standard (and ESA §4(b)’s requirement to use best scientific and commercial data), giving deference to agency scientific judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FWS adequately considered the five ESA listing factors (A–E) | FWS failed to account for all listing factors and cumulative impacts | FWS analyzed factors individually and cumulatively, especially habitat (A), and considered conservation measures | Held for Defendants: FWS sufficiently considered each factor and cumulative effects |
| Whether FWS relied on the best scientific and commercial data available | Withdrawal was politically driven and not supported by best available science | FWS relied on studies, expert input, and monitoring data; no superior science was ignored | Held for Defendants: FWS met the best-available-science standard |
| Whether FWS improperly relied on the Texas Plan and confidential Certificates of Inclusion | Texas Plan was vague, unproven, and confidentiality prevented FWS from verifying implementation/effectiveness | FWS could monitor aggregate and habitat-class level data, had reporting/monitoring mechanisms, and expected enrollment growth | Held for Defendants: Reliance on Texas Plan was reasonable despite confidentiality |
| Whether FWS violated its PECE by crediting future or unproven conservation efforts | PECE requires certainty of implementation and effectiveness; FWS improperly credited speculative measures | PECE allows consideration of not-yet-proven efforts if FWS assesses certainty and monitoring; FWS performed PECE analyses and found sufficient certainty | Held for Defendants: FWS complied with PECE; efforts judged sufficiently certain to weigh against listing |
Key Cases Cited
- Motor Vehicle Manufacturers Ass'n v. State Farm, 463 U.S. 29 (agency action arbitrary and capricious standard)
- American Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir.) (APA review in agency action cases)
- Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir.) (entire case on review is question of law in APA review)
- Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (judicial review limits; not substitute court judgment for agency)
- Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir.) (best data available standard explained)
- Friends of Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir.) (Service may rely on best available data)
- Huls America, Inc. v. Browner, 83 F.3d 445 (D.C. Cir.) (deference to agency scientific expertise)
- Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (deferential review of scientific determinations)
- WildEarth Guardians v. Salazar, 741 F. Supp. 2d 89 (D.D.C.) (criticized conclusory cumulative-impact analysis)
- Alaska v. Lubchenco, 825 F. Supp. 2d 209 (D.D.C.) (PECE requires some certainty as to implementation/effectiveness)