Before the court in the above-styled and numbered cause are Plaintiffs' Motion for Summary Judgment filed October 5, 2017 (Dkt. No. 132), Plaintiff-Intervenors' Motion for Summary Judgment filed October
I. BACKGROUND
The bone cave harvestman ("harvestman") is a tiny, pale, orange, eyeless, almost invisible, spider-like species that spends its entire life underground. It derives its nutrition from bugs, moisture, and other nutrients that filter down from the surface. It is an elusive spider known to inhabit only Travis and Williamson Counties, Texas and does not often reveal itself to even the most skilled observer. Because of the harvestman's limited population and
A. THE ENDANGERED SPECIES ACT
Congress enacted the Endangered Species Act in 1973 (the "Act") to "provide a means whereby the ecosystems upon which endangered species ... depend may be conserved" and to "provide a program for the conservation of ... endangered species."
"[I]nterested person[s]" may petition the Service to change the status of a species, including petitioning the Service to remove a species from the endangered-species list.
The Service must evaluate a petition for a "detailed narrative justification" for the requested delisting and a description of the "numbers and distribution of the species involved," "any threats faced by the species," and whether the petition "[p]rovides information regarding the status of the species over all or a significant portion of its range."
(A) the present or threatened destruction, modification, or curtailment of [the species'] habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting [the species'] continued existence.
If the Service determines that delisting may be warranted, it will undertake a second more searching 12-month review of the status of the species to determine whether delisting action "is" or "is not warranted."
the best scientific and commercial data available...substantiate that the species is neither endangered nor threatened for one or more of the following reasons:
(1) Extinction ...
(2) Recovery ... A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.
(3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error.
B. THE HARVESTMAN'S EARLY LISTING HISTORY
In 1988, the Service determined that five species of karst invertebrate should be protected by the Act, including the bee creek cave harvestman.
It was not until 1993 that the Service determined that bee creek cave harvestman is actually two species, the bee creek harvestman and the bone cave harvestman. The Service formally extended the 1988 listing to include the bone cave harvestman in 1993.
In 1994, the Service completed a Karst Invertebrate Recovery Plan for Travis and Williamson Counties, which included recovery criteria for the harvestman. The Service examined the threats facing the species, including threats posed by urbanization to the harvestman's habitat. At that time, the Service noted the harvestman's potential for complete recovery and delisting of the species was uncertain. The plan identifies steps and benchmarks that must be met before the harvestman can be reclassified from endangered to threatened.
In 2009, the Service completed a five-year species-status review, as required by the Act.
C. 2014 PETITION AND 2017 FINDING
A petition to delist a species must provide available information about past and present population figures and distribution of an endangered species, threats faced by the species, and information about the status of the species over a significant portion of its range.
The Service issued a 90-day finding, concluding that delisting was not warranted.
In 2017, the Service rendered a second 90-day finding, concluding that delisting was not warranted based on the evidence presented in the original 2014 petition.
Factor 1: Present or threatened destruction, modification, or curtailment of the harvestman's habitat or range
The primary threat to the harvestman identified in 1988 was the potential loss of habitat because of threats posed by urbanization and development. Much of the evidence in the petition is intended to disprove this threat.
The Stewards presents evidence of an increase in known locations of the harvestman from five or six at the time of the 1988 listing to 172 in 2014. This amounts to an increase at a rate of 7.59 new sites discovered per year and a total population increase of 3,340 percent. The Stewards also presents evidence of five caves that currently support the harvestman despite being located near developing areas, humans, and tourist attractions, which were all identified as threats to the survival of the species in 1988.
• Inner Space Caverns: This cave is located under a highway and train track, receives about 100,000 visitors per year, and includes paved walkways and electrical lighting. Surveys done on the cave show a continued presence of the harvestman despite heavy human traffic.
• Sun City Caves: These caves are located near a residential subdivision and regularly monitored. One survey found an increase in fauna, and most surveys indicate that there has not been a substantial negative change in the population. Biologists continue to observe the harvestman during their surveys of the property.
• Weldon Cave: The Service identified this cave in the 1988 listing as a concern because of a nearby road extension and residential development. In 1988, this cave was the only example given by the Service of the potentially adverse effects of development on the harvestman. The cave has since been identified by the Service as a sustainable habitat for the species.
• Three-Mile and Four-Mile Caves: The petition lists these caves as places where the harvestman persists despite being located underneath a highway. The interior of the walls are covered in historic graffiti, which indicates a steady stream of vandalism and human traffic throughout the years.
The petition urges that, without affirmative evidence that development activities will lead to a significant reduction in the population size, the caves provide compelling evidence that the harvestman has continued to persist alongside development, contrary to the Service's conclusion at the time of listing.
The petition also presents some evidence documenting the use of "mesocaverns" by the harvestman-a phenomenon that was not considered in the 1988 listing-as a potential habitat for the species. A mesocavern is a humanly impassable void that may or may not be connected to larger
In sum, the petition argues that current available evidence demonstrates that the harvestman coexists with development and human traffic. The petition points out that no negative correlations have been found between development and a decline in the harvestman population. Since impacts of development are likely not as significant to the species as predicted by the Service in the 1988 listing, the petition argues that the harvestman should be delisted.
The Service begins its discussion of Factor 1 by restating that the primary threat to the harvestman is still the potential loss of its habitat due to development activities. The Service recognizes the five caves discussed in the petition. Nonetheless, the Service states that the observation of the harvestman in these locations is not proof that they are thriving or can withstand the long-term impacts of development activities. The Service acknowledges that it lacks adequate data to conduct a species-trend analysis, given that it may take decades to detect the harvestman's population trend because of small sample sizes, difficulty surveying the species, and its long life span. Nonetheless, the finding states that the petition does not provide the Service with adequate information to detect population trends. After concluding that there is not enough data to do a trend analysis, the Service addresses each of the caves presented in the petition.
• Inner City Space Caverns: The Service states that although the harvestman may be present at the caverns, their presence is not proof that the harvestman's population is robust and secure. The Service points out that, despite the harvestman's presence, the population may still be declining and at risk from threats arising from development. The Service also observes that the cavern has an overgrowth of algae that may out-compete the harvestman for food. The Service further states that the petition failed to provide enough data for the Service to assess trends in the harvestman in relation to the time that they have been exposed to artificial lighting in the cavern. The Service further observes that part of the cavern is located under a highway and train tracks, which both present a threat of contaminant spill that could impact the species in the future.
• Sun City Cave: The Service states that the petition failed to provide enough data for the Service to assess the cumulative effect of the development on the harvestman's population trend.
• Weldon, Three-Mile, and Four-Mile Caves: The Service points out that the Weldon cave is surrounded by undeveloped space, not developed space, as the petition asserts. The Service further states that detailed survey data was not provided by the petitioners for three or four-mile caves.
• Mesocaverns: The Service states that it is unclear why the Stewards believes that mesocaverns are geologically protected from surface activities. It points to a study that mesocaverns are subject to rapid permeation of surface water. As a result, the harvestman would be as susceptible to groundwater contamination because water penetrates rapidly through the rock in mesocaverns.
The finding additionally discusses a study conducted in 2007 that compares caves in urbanized areas with caves in natural areas to bolster the finding's conclusion about the effect of urbanization on the harvestman. The study found that, even though a small area within a largely urbanized ecosystem may support a cave community with karst invertebrates, karst populations are significantly lower than those found in caves in more natural, less-developed ecosystems. The study suggests that this is most likely a result of reduced nutrient input. The finding does not note whether the harvestman was specifically considered in the study. The finding also points to a study conducted at Lakeline Cave in Travis County, that documents a significant decline in another karst-invertebrate species over a 20-year time frame. During this same time frame, no more than three examples of the harvestman were observed in any one survey, and the harvestman was not seen at all over six years and 12 surveys. The finding concludes that urbanization and human population growth and development continue to represent a threat to the species, especially in light of the exploding population in the Austin area.
Factor 2: Disease or predation
In the 1988 finding, fire ants were identified by one study as being a potential competitor with the harvestman. The study predicted that threats posed by fire ants would be exacerbated as the human population increased. The petition presents evidence that fire ants have not been shown to have a lasting negative impact on the harvestman populations nor on the ability of the harvestman to persist in areas that contain fire ants. Specifically, the petition includes a discussion of studies conducted since the 1988 listing, which suggest that the impact to the harvestman by fire ants is greatest during and shortly after an initial fire-ant invasion, and long-term impacts are likely not as significant as once believed. The petition asserts this represents new scientific information that refutes previous conclusions drawn by the Service about the susceptibility of the harvestman to fire-ant infestations. The petition also presents evidence of specific locations in Texas where there was not a decline in the harvestman despite the presence of fire ants.
The Service recognizes the study, but notes that the study also states that red fire ants likely did contribute directly or indirectly to the disappearance or reduction in numbers of the harvestman and that the study should not be interpreted as an indication that detrimental effects of invasive ants will simply disappear with time. The Service states that fire ants have been observed within and near many caves in central Texas. The Service finally notes that it previously considered the study cited by the petition.
Factor 3: Inadequacy of existing regulatory mechanisms
In 1988, there were no laws in place to protect the harvestman or its habitats. The petition identifies 94 caves that are now protected from development by state and local regulations. The petition also details extensive state, county, and city regulations that represent significant conservation efforts, including regulations by the City of Austin, City of Georgetown, and the Texas Commission on Environmental Quality.
The Service recognizes the new regulations but nonetheless concludes that there is not enough information in the petition to indicate whether or not the state and local regulations provide enough protection against all threats faced by the harvestman.
Factor 4: Other natural or manmade factors affecting continued existence
Though not originally identified in 1988, the Service has since identified climate change as a potential threat to the harvestman. The Service acknowledges a lack of evidence showing a direct correlation between climate change and impact on the harvestman. The petition argues that studies indicate that the harvestman habitats in smaller and deeper mesocaverns may mitigate the potential threat of climate change.
The Service addresses the likelihood that climate change will affect the harvestman, and specifically, the petition's contention that the use of mesocaverns may mitigate the threat of climate change. The Service acknowledges that mesocaverns may provide protection from climate change, but states that mesocaverns will likely not be enough to ameliorate the effect of climate change on the harvestman. The Service identifies specific dangers from climate change including increased storms, higher temperatures, and modifying habitat or nutrient availability.
II. STANDARD OF REVIEW
Summary judgment is appropriate if the record shows "that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In the context of a challenge to an agency action under the Administrative Procedure Act ("APA"), "[s]ummary judgment is the proper mechanism for deciding, as a matter of law, whether an agency's action is supported by the administrative record and consistent with the APA standard of review." Blue Ocean Inst. v. Gutierrez ,
Under the APA, "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."
When reviewing for arbitrariness and capriciousness, a court considers whether an agency has "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.' " Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. ,
In addition to a prohibition on arbitrary or capricious action, the APA prohibits agency action that is "not in accordance with law,"
A. ARGUMENTS OF THE PARTIES
The Stewards moves for summary judgment on the basis that the Service's finding is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See
The Center also moves for summary judgment, arguing that the Stewards has not met its burden in presenting substantial scientific information to indicate that delisting of the species may be warranted. The Center additionally argues that any doubts regarding the threats facing the harvestman must be construed in its favor.
III. ANALYSIS
The Stewards presents several arguments as to why summary judgment should be granted in its favor, but its most persuasive argument is that the Service required a higher quantum of evidence than is permissible under the Act and implementing regulations governing a 90-day finding.
Upon review of the petition and the 2017 finding, and for the reasons that follow, the court concludes that the Service violated its regulations when it required the Stewards to essentially present conclusive evidence about the harvestman's population trends-more evidence than the Service admits is available or attainable. The Service's regulations require a petition to present only "available information," and the Service committed a clear error in judgment and acted arbitrarily, capriciously, and not in accordance with law when it called for more evidence than the law requires. The court will vacate the 2017 finding and remand the finding to the Service for further consideration of the Stewards' petition based on available population information, not population information that the Service admits is impossible to attain.
A. The Service violated its regulations governing the standard for reviewing a delisting petition by requiring an unlawfully high quantum of evidence.
In a challenge to agency action under the APA, part of the court's task involves "reviewing agency action to determine whether the agency conformed with controlling statutes." Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc. ,
Under the Act, a petition must "present[ ] substantial scientific or commercial information indicating that the petitioned action may be warranted."
The petition presents extensive evidence that the gravest threat to the harvestman identified in the 1988 listing-loss of habitat due to development-might not be as grave as was predicted in 1988, and that reconsideration of the listing determination may be warranted. To support this contention, the petition includes evidence that the population of the harvestman has steadily increased since the time of the listing-from five in 1988 to 172 as of 2014-despite an explosion in the human population. It also offers examples of five different caves in which the harvestman co-exist with human visitors, highway disruptions, tourist attractions, and industrial development, all of which the 1988 finding predicted would endanger or eradicate the species. It presents evidence that the fire ant, identified by some studies as a competitor with the harvestman, may not threaten the harvestman's food source to the extent believed by the Service in 1988. Finally, it presents evidence of overlapping regulatory regimes that now provide protection for the harvestman, as compared to no regulatory protections in 1988.
In considering the Stewards' petition, the Service correctly articulates the standard required by its regulations, "[w]e evaluated this petition under the 50 C.F.R. 424.14 requirements that were in effect prior to October 27, 2016, as those requirements applied when the petition and supplemental information were received." The Service analyzed the five "listing factors," as the Act requires. The Service determined that the evidence presented in the petition is not enough for the Service to conclude that delisting may be warranted. The Service came to this decision after conducting an overall assessment of the viability of the harvestman and threats to its continued existence. However, the finding recognizes that there is currently no available data on the overall population trend of the harvestman. The finding also recognizes that, although population-trend information is likely impossible to attain, it
By requiring evidence that the Service admits is either infeasible to collect or totally unavailable, the Service makes it all but impossible for the Stewards to disprove the essential assumption of the 1988 listing-that the harvestman would decline as the population increases because of dangers to its habitat-and thus, makes the case for delisting the harvestman impossible. Rather than considering whether the information presented in the petition may indicate that delisting is warranted, the Service requires conclusive evidence that the overall population of the harvestman did not decline as human population and development increased. The Service disputes this point and argues that the petition was not denied because of a lack of population-trend data, but that the Service denied the petition after the Service conducted an overall assessment of the viability of the harvestman and threats to the harvestman's continued existence. Nonetheless, after review of the finding, this court concludes that the bulk of the evidence presented in the petition was discounted because it was not accompanied by overall-population-trend data.
The court concludes that denying the petition because the petition lacks admittedly unavailable evidence, the Service did not make its decision based on the best available data, in violation of the Act and implementing regulations. See
B. The Service's violation of the Act and implementing regulations is arbitrary, capricious, and not in accordance with law.
Under the APA, a court must set aside an agency decision that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Many courts have concluded that an agency's failure to comply with its own regulations is arbitrary and capricious. See, e.g., Erie Boulevard Hydropower ,
The court finds that the Service did not engage in "reasoned decisionmaking" when it did not follow the standard set by Congress and implementing regulations intended to guide the Service's decisionmaking. The court concludes that the petition presents available, substantial scientific and commercial information indicating that delisting of the harvestman may be warranted. As a result, the court concludes that the Service's conclusion to the contrary is arbitrary, capricious, "or otherwise not in accordance with [the Act and implementing regulations]," which require that a petition need only present available evidence.
C. The Service considered whether the harvestman was listed in error.
Delisting is also appropriate under the Service's regulations if "[s]ubsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error."
The 1988 listing identifies the primary threat to the harvestman as potential loss of habitat because of ongoing development activities. The Stewards' petition states that the discovery of many previously unknown populations of the harvestman arguably demonstrates that the 1988 listing was in error because more species have been discovered as development increases. The Stewards argues that the record is devoid of any evidence that the Service evaluated whether the original listing was in error. This argument is not supported by the record.
The finding expressly considers whether the original listing was erroneous. The finding states that a review of the petition does not indicate that the original classification was made in error. The Service concludes "[b]ased on our review and evaluation ... the petition does not present substantial scientific or commercial information indicating that the delisting of the harvestman may be warranted due to ... error in the original scientific data at the time the species was classified or in our interpretation of that data." For example the Service indicates that "species may be delisted when subsequent investigations 'show that the best scientific and commercial data available when the species was listed, or the interpretation of such data, were in error.' " The Service also considered the petition's assertion "that threats to the species are not as severe as originally thought ... [w]e evaluate that information, below, with respect to the five listing factors." In light of the record, the court concludes that the Service did consider whether the original listing was in error.
The Stewards also disagrees with the substance of the Service's determination that the original listing was not in error. Very little was known about the harvestman at the time of the 1988 listing. The 1988 listing is based on a handful of studies on similar species, their food sources, and the potential effects of human development on the species. At the time of
IV. PLAINTIFF-INTERVENORS' MOTION FOR SUMMARY JUDGMENT
Yearwood moves separately for summary judgment under the APA, arguing that Congress has exceeded its constitutional authority under the Commerce Clause, the Necessary and Proper Clause, and Tenth Amendment by regulating the "take" of the harvestman. See U.S. Const. art. I, § 8, cl. 3 ; U.S. Const. art. I, § 8, cl. 18 ; U.S. Const. Amend. X ; see also
The Service and the Center cross-move for summary judgment, arguing that Yearwood's claims are barred by the applicable statute of limitations.
A. Yearwood's claims are not barred by the statute of limitations, but Williamson County's claims are barred.
Under the APA, a reviewing court shall "hold unlawful and set aside agency
In determining when a right of action accrues, the law distinguishes between a "facial challenge" to a regulation and a challenge to a regulation after an agency applies that regulation to a plaintiff. See Dunn ,
In addition, "agency action must mark the consummation of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature." U.S. Army Corps of Engineers v. Hawkes Co. , --- U.S. ----,
The court concludes that Yearwood's challenge is not barred by the limitations because he is a party to the 2014 petition to delist the harvestman and is directly affected by the Service's decision not to delist the harvestman. Yearwood can demonstrate the requisite "direct, final agency action" affecting him personally and may challenge the Service's statutory and constitutional authority for applying the rule. Dunn ,
As Yearwood concedes, however, Williamson County is not a party to the 2014 petition to delist the harvestman. The County nonetheless claims that it has suffered similar injuries to those suffered by Yearwood and other parties who filed the petition and should not be barred by limitations. The County marshals to no legal support for this proposition. Because the County is not a party to the 2014 petition, it cannot show the requisite direct and final action that flows from the denial of Yearwood's petition. The County's claims are barred by limitations.
B. The Service's regulation of the harvestman takes does not violate the Commerce Clause.
Under the Commerce Clause, Congress may "regulate Commerce ... among the several States," U.S. Const. art. I, § 8, cl. 3, including regulating activities that "substantially affect interstate commerce." United States v. Lopez ,
In reviewing an act passed under Congress's Commerce Clause authority, the court applies a rational-basis analysis, under which courts "need not determine whether ... activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding." Gonzales v. Raich ,
a. GDF Realty Investments, Ltd. v. Norton
Regulation of a take of the harvestman is a valid exercise of the Commerce Clause power. GDF Realty ,
Yearwood recognizes GDF Realty but argues that its mode of analysis has been overruled by subsequent cases. See Raich ,
b. Gonzalez v. Raich and United States v. Whaley
Yearwood argues that a concurring opinion Raich altered the analysis for intrastate activities that have a substantial effect on interstate commerce. Raich ,
Yearwood additionally contends that the circuit adopted Raich's concurring opinion in United States v. Whaley.
The Fifth Circuit "follows the rule that alternative holdings are binding precedent and not obiter dictum." Texas v. United States ,
This court recognizes that the Supreme Court vacated the judgment in Markle in light of Weyerhaeuser , but the Court did so on other grounds.
Yearwood finally asserts that Supreme Court in Sebelius "found that the Affordable Care Act could not be justified by the Commerce Clause when viewed through the Necessary and Proper Clause." Yearwood repeatedly, but improperly, refers to a solo concurrence in Sebelius as the Court's holding. The majority decided the case based on Congress's taxing power, not on the Necessary and Proper Clause.
In sum, this court recognizes that Raich and Whaley mention the Necessary and Proper Clause. However, these passing references are not enough to shift the well-established Commerce Clause analysis-one the Fifth Circuit has twice applied in considering the constitutionality of the
C. TENTH AMENDMENT
Yearwood argues that Congress's regulation of the harvestman violates the Tenth Amendment, but devotes no briefing to the issue. U.S. Const. Amend. X. "Arguments that are insufficiently addressed in the body of the brief, however, are waived." See Bridas S.A.P.I. C. v. Gov't of Turkmenistan ,
V. CONCLUSION
The court concludes the 2017 finding is arbitrary, capricious, and not in accordance with law. When a reviewing court concludes an agency action to have been carried out "without observance of procedure required by law," the court shall "hold unlawful and set aside" the action.
IT IS ORDERED that Plaintiffs' Motion for Summary Judgment filed October 5, 2017 (Dkt. No. 132) is GRANTED with regard to the Stewards's claim that the Service acted arbitrarily and capriciously. The court will vacate the 2017 finding and remand the 2017 finding to the Service for further consideration consistent with this opinion. In all other respects, the motion is DENIED.
IT IS FURTHER ORDERED that Federal Defendants' Cross Motion for Summary Judgment filed December 15, 2017 (Dkt. Nos. 142) is GRANTED as to its argument that the Service considered whether the harvestman was listed in error. In all other respects, the motion is DENIED.
IT IS FURTHER ORDERED that Defendant-Intervenors' Cross-Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment filed December 21, 2017 (Dkt. No. 147) is DENIED.
IT IS FURTHER ORDERED that Plaintiff-Intervenors' Motion for Summary Judgment filed October 10, 2017 (Dkt. No. 133) is GRANTED to the following extent: Yearwood's arguments are not barred by the statute of limitations. In all other respects, the motion is DENIED.
IT IS FURTHER ORDERED that Federal Defendants' Cross-Motion for Summary Judgment filed December 15, 2017 (Dkt. Nos. 145) and Defendant-Intervenors' Cross-Motion for Summary Judgment filed December 22, 2017 (Dkt. Nos. 151) are GRANTED to the following extent: Congress's regulation of a "take" of
IT IS FINALLY ORDERED that Federal Defendants' Opposed Motion to Strike Four Exhibits Attached to Plaintiffs' Reply Brief [Dkt. Nos. 156-6, 156-7, 156-8, 156-9 & 157-6, 157-7, 157-8, 157-9] and Memorandum in Support filed February 16, 2018 (Dkt. No. 159) is DISMISSED , as the court did not consider these exhibits.
Notes
When a case presents competing claims of varying parties, it is often hard to keep the claims of an individual party in focus. And using the legal designation of the parties is often hard for the reader to follow. Here, certain of the parties may be grouped with regard to issues where their interests do not diverge. For simplicity, the court will refer to the parties as follows, unless otherwise noted or needed for context: Plaintiffs American Stewards of Liberty, Charles Shell, Cheryl Shell, Walter Sidney Shell Management Trust, Kathryn Heidemann, Robert V. Harrison, Sr., John Yearwood, and Williamson County, Texas will be collectively referred to as "the Stewards." Plaintiff-Intervenors John Yearwood and Williamson County, Texas will be collectively referred to as "Yearwood." Defendant-Intervenors Center for Biological Diversity, Defenders of Wildlife, and Travis Audubon will be collectively referred to as "the Center."
As the interests of Plaintiffs, American Stewards of Liberty, Charles Shell, Cheryl Shell, Walter Sidney Shell Management Trust, Kathryn Heidemann, Robert V. Harrison, Sr., John Yearwood, and Williamson County, Texas, do not diverge, the court will refer to Plaintiffs collectively as "the Stewards," unless otherwise noted or as needed for context.
The plan requires establishing "karst-fauna regions" and "karst-fauna-area preserves" with the following specifications: (1) distinct areas known to support one or more locations of a listed karst species; (2) that possess geologic and hydrologic features that create barriers to the movement of water, contaminants, and troglobitic fauna; and (3) that exist far enough apart from each other that, if a catastrophic event occurs in one area preserve, it would not destroy any other area preserve occupied by the species. Under the recovery plan, reclassification would be possible if three karst-fauna-area preserves within each karst fauna-region in a species' range are protected in perpetuity. If fewer than three karst-fauna-area preserves exist within a given karst-fauna region, then all karst-fauna-area preserves within that region should be protected. Before the Service will reclassify a species, the necessary protections must be in place for at least five consecutive years, with assurances that the area preserves will remain protected in perpetuity.
The delisting determination consists of several parts: (1) the Service-published summary notice of its finding; (2) a more detailed, signed notice of the same finding; and (3) the Petition Review Form for Delisting a Listed Entity. For the purpose of this order, the court will refer to the summary notice, detailed signed notice, and petition review form collectively as the "2017 finding."
See supra note 2.
The court's analysis would not change were it to analyze the 90-day finding under Section 706(2)(D).
The Stewards, the Service, and the Center for Biological Diversity ("the Center") each move for summary judgment under the APA. The motions address whether the Service's finding is arbitrary, capricious, or otherwise not in accordance with law. The Service and the Center's motions for summary judgment will be considered together, as they make substantially the same argument. Yearwood, the Service, and the Center additionally move for summary judgment based on the constitutionality of the Act. See infra Section IV.
The Stewards additionally contends that the 2017 finding is arbitrary and capricious because the Service unlawfully relies on the recovery plan and karst-preserve design recommendations as necessary evidence of whether the harvestman has recovered and necessitates delisting. Because the court concludes that the finding is arbitrary and capricious on other grounds, the court need not consider the argument that the use of the recovery plan as binding is unlawful.
A "take" is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting, or attempting to engage in any such conduct. Id. at § 1532(19). Property owners and developers must seek permits from the Service for approval of any activities that might disturb an endangered species. Id. at § 1539(a). The consequences of an unauthorized take can be serious, including civil and criminal penalties, fines as great as $ 50,000, and imprisonment for up to one year. Id. at § 1540.
The arguments of the Service and the Center are substantively similar, and the court will refer to the arguments made by both as the Service's arguments, unless otherwise noted or as needed for context.
Two separate petitions for a writ of certiorari were filed in Markle. The Court granted the petition of Weyerhaeuser Company, which primarily raised an issue of statutory construction of the Act's critical-habitat-designation provision. See Weyerhauser Co. v. U.S. Fish and Wildlife Serv. , --- U.S. ----,
More specifically, the Court granted certiorari to consider whether a critical habitat need be currently habitable; the Fifth Circuit held it did not. Weyerhaeuser ,
Yearwood also asserts that the rational-basis test applied in GDF Realty "is no longer sufficient in this circuit" because the "Fifth Circuit has since rejected this no-evidence approach to rational-basis scrutiny in other contexts." See, e.g., Castille ,