Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________
)
NATIONAL ASSOCIATION OF HOME )
BUILDERS, et al . )
) Plaintiffs, ) ) Civ. Action No. 12-2013 (EGS) v. )
)
U.S. FISH AND WILDLIFE SERVICE, )
et al ., )
)
Defendants. )
________________________________)
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiffs are four organizations [1] representing member landowners and businesses in Central Texas and Washington state. They seek injunctive and declaratory relief to set aside and void two Court-approved agreements (“Agreements”) that were made between environmental advocacy groups and the Fish and Wildlife Service (“Service”) in 2011 to settle multi-district litigation (“MDL”). See In re ESA Section 4 Deadline Litig. – MDL No. 2165 , Misc. Action No. 10-377 (D.D.C. 2010), WildEarth Guardians Settlement Agreement (“Guardians Agreement”), ECF No. 31-1; and Center for Biological Diversity Settlement Agreement (“CBD Agreement”), ECF No. 42-1. The Agreements require the Service *2 to determine by certain deadlines whether to list 251 species as endangered or threatened under the Endangered Species Act (“ESA”), or find that listing these species is not warranted. Certain of the 251 species either live on, or could live on, land owned or used by Plaintiffs’ members. Compl. ¶¶ 32-36. Plaintiffs do not challenge any particular listing decision. Pl.’s Opp’n to Defs.’ Mot. to Dismiss 13.
Rather, Plaintiffs claim that the Agreements require the Service to violate procedures to list species that are mandated by Section 4 of the ESA. Compl. ¶¶ 80-95.
The Service and Secretary of Interior (“Defendants”) have moved to dismiss for lack of Article III standing, inter alia . [2] The Center for Biological Diversity (“CBD”), one of the plaintiffs in the MDL, has moved to intervene in support of the defendants. In their opposition to the motion to dismiss, Plaintiffs argue that they have standing on the grounds that the Agreements have caused injury to their members’ conservation, property, and business interests. Pl.’s Opp’n 12.
This case marks the latest in a series of challenges to the
MDL. This Court and the Circuit Court have considered and
rejected nearly identical standing arguments in three prior
*3
decisions concerning the MDL.
In re Endangered Species Act
Deadline Litig.
(“
Safari Club I
”),
As to Safari Club’s alleged procedural injury, the Court
concluded that Safari Club failed to identify any part of the
Agreements that required the Service to violate procedural
requirements. at 7.
Safari Club I
was subsequently
affirmed by this Circuit, which found that “Safari Club has
failed to identify a violation of a procedural right afforded by
the ESA that is designed to protect its interests.”
Safari Club
II
,
Even more recently, this Circuit considered, and rejected,
nearly identical standing arguments in
Defenders of Wildlife v.
Perciasepe
,
Taken together, the above cited cases constitute precedent that binds this Court on the issue of Article III standing. Plaintiffs’ arguments for standing are indistinguishable from those squarely addressed and rejected by the four decisions described above. Therefore, for the reasons below, the Court will DENY Plaintiffs’ prayer for injunctive and declaratory relief and GRANT Defendants’ motion to dismiss. Accordingly, the Court will DENY as moot Center for Biological Diversity’s motion to intervene.
II. BACKGROUND
A. Statutory Background
The Endangered Species Act was enacted “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] a program for the conservation of such endangered species and threatened species.” Endangered Species Act of 1973 § 2, 16 U.S.C. § 1531(b) (2012). Section 4 of the ESA directs the Service, *6 acting on behalf of the Secretary of Interior, to determine whether a particular species should be listed as endangered or threatened, id. § 1533(a), and when such a determination is made, to designate “critical habitat” for the species, id. § 1533(a)(3)(A)(i). The Service must decide whether to list a species “solely on the basis of the best scientific and commercial data available.” § 1533(b)(1)(A). The ESA’s protections apply only after a species is listed as endangered or threatened. Id. § 1538(a).
Members of the public may petition the Service to list a species. See id. § 1533(b)(3). For every petition to list a species, the Service must find whether listing is (1) not warranted, (2) warranted, or (3) warranted but precluded by pending proposals to list other species. § 1533(b)(3)(B). If listing is warranted, the Service must (1) promptly publish a proposed rule, id. § 1533(b)(3)(B)(ii), and (2) within one year publish a final rule, withdraw the proposed rule, or delay a final decision for up to six months to solicit more scientific information, id. § 1533(b)(6)(A)(i), 1533(b)(6)(B)(i).
The Service must annually review the species whose listing is warranted-but-precluded, id. § 1533(b)(3)(C)(i), and implement a system to monitor their status and “prevent a significant risk to the well being of any such species,” id. § 1533(b)(3)(C)(iii). In addition, the Service must also *7 establish guidelines that include a ranking system to help identify species that should receive priority review for listing. § 1533(h)(3).
B. Factual and Procedural Background
The Service annually publishes its latest findings on warranted-but-precluded species (“candidate species”) in a Candidate Notice of Review (“CNOR”) published in the Federal Register. See, e.g. , 2010 CNOR, 75 Fed. Reg. 69,222 (Nov. 10, 2010). Because the number of warranted-but-precluded findings has outpaced the number of listings, the backlog of candidate species had grown to 251 as of 2010. See id. at 69,224. The species are afforded no protection under the ESA while on the candidate list. See 16 U.S.C. § 1538(a).
The Agreements reached in the MDL and at issue in this case
seek to clear the backlog of species on the 2010 CNOR. They do
not dictate that the Service reach any particular substantive
outcome on any petition or listing determination.
Safari Club I
,
Of the candidate species on the 2010 CNOR, nine subspecies
of Mazama pocket gopher and four species of Texas salamander
[4]
either live on, or could live on, land owned or used by
Plaintiffs’ members. Compl. ¶¶ 32-36. The Mazama pocket gopher
has been a candidate species since 2001, 66 Fed. Reg. 54,808
(Oct. 30, 2001), and three of the four salamander species have
been candidates for more than ten years,
see
67 Fed. Reg. 40,657
(June 13, 2002). In 2012, pursuant to deadlines stipulated in
the Agreements, the Service proposed to list four of the nine
subspecies of Mazama pocket gopher as threatened, 77 Fed. Reg.
at 73,770 (Dec. 11, 2012), proposed to list the four species of
salamander as endangered,
*9 Plaintiffs sued Defendants on December 17, 2012, soon after the Service published its proposed rules for the Mazama pocket gopher and salamander species. Importantly, Plaintiffs do not challenge any final rules to list species covered by the Agreements. Rather, all of Plaintiffs’ claims arise from the timelines, set by the Agreements, for the Service to determine whether or not listing is warranted. Compl. ¶¶ 80-95.
III. DISCUSSION
Defendants move to dismiss for lack of Article III standing. Defs.’ Mem. 16-23. Plaintiffs oppose Defendants’ motion and assert representational standing on behalf of its members. Pl’s Opp’n 10. Plaintiffs assert three bases for their members’ standing: (1) the Agreements will impair members’ existing and future conservation efforts; (2) they will increase regulatory restrictions on members’ use of private land, causing economic harm; and (3) the Agreements cause FWS to breach its legally required procedures, and those breaches harm members’ concrete interests. Pl.’s Opp’n 9, 12-13, 22.
A. Article III Standing
Standing is the threshold question in every federal case
that determines the Court’s power to entertain the suit.
Warth
v. Seldin
,
representational standing, an association must demonstrate that
“(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to
the organization’s purpose; and (c) neither the claim asserted
nor the relief requested requires the participation of
individual members in the lawsuit.”
Nat’l Ass’n of Home
Builders v. E.P.A.
,
To establish that their members have Article III standing
in their own right, Plaintiffs must demonstrate that their
members have suffered 1) an injury in fact, 2) fairly traceable
to the challenged action, that is 3) redressable by a favorable
decision.
Lujan v. Defenders of Wildlife
,
1. Injuries resulting from the rulemaking process
Plaintiffs allege two types of injury resulting from the
Agreements’ effect on the listing process. At the outset, the
Court notes that this Circuit in
Perciasepe
rejected standing
based on similar assertions of injury resulting from a
settlement agreement’s effect on the rulemaking process. In
Perciasepe
, appellant-intervenor sought standing based on
asserted injury resulting from a consent decree that required
the Environmental Protection Agency (“EPA”) to propose
rulemaking by a certain date.
the consent decree does not require EPA to promulgate a new, stricter rule. Instead, it merely requires that EPA conduct a rulemaking and then decide whether to promulgate a new rule—the content of which is not in any way dictated by the consent decree—using a specific timeline.
Id.
at 1324 (emphasis in original).
Perciasepe
thus rejected
intervenor’s standing, because “Article III standing requires
more than the possibility of potentially adverse regulation.”
at 1324-25.
[6]
*12
The same reasoning applies here. Like the consent decree
in
Perciasepe
, the Agreements “do not dictate that [the Service]
reach any particular substantive outcome on any petition or
listing.”
Safari Club I
,
a. Injury to conservation efforts
Plaintiffs first argue that their members have standing
because the Agreements impair their members’ existing and future
conservation efforts. Pl.’s Opp’n 14. Specifically, Plaintiffs
claim that the Agreements require the Service to propose listing
candidate species by certain dates without taking into account
court’s decision would only “require EPA to make the
determination (whether greenhouse gases endanger public health),
not to reach any particular result.”);
Envtl. Defense v. Leavitt
,
Plaintiffs’ “conservation interest” basis for standing is similar to that rejected by this Court in Tejon Ranch . In that case, private property owners (“TRC”) sought standing to intervene in litigation seeking to compel the Service to determine by a certain date whether listing of the Tehachapi slender salamander species was warranted. See Tejon Ranch , 270 F.R.D. at 2. TRC owned land that the Tehachapi slender salamander lived on, and had spent years working with the Service on a conservation plan for the species. Id. at 3. TRC claimed that the timing of the Service’s listing determination would injure its interest in ensuring that the conservation plan would be approved and properly considered prior to listing the species. Id. at 5. This Court found that:
TRC’s claims of injury from the timing of the [Service’s] listing decision . . . fail to establish standing . . . TRC’s purported interest is in ensuring that its [conservation plan] will be approved and properly considered prior to listing the Tehachapi slender salamander. It is unclear how intervening here would protect that interest. TRC does not allege and has not shown that its proposed habitat conservation plan will be approved or denied as a result of the instant lawsuit. . . . Because TRC has failed to show both causation and redressability with respect to this injury . . . the Court finds that TRC does not have standing to intervene in this case. at 5. Another judge on this court reached a similar
conclusion in
Envt’l Defense v. Leavitt
, in which a coal
*14
industry group attempted to challenge a consent decree which
required the EPA to issue certain clean air regulations within a
specified timeframe, but did not address the substance of those
regulations.
The same analysis applies here. Plaintiffs do not show that their members’ conservation efforts will be found sufficient or insufficient to protect the species as a result of the deadlines set forth in the Agreement. They also do not show that the Service will ignore or discount their conservation efforts as a result of the Agreements. Nor do Plaintiffs show the time-frames set forth in the Agreement are inadequate for the Service to make a determination whether or not listing is warranted. Nor could they, since the gopher and salamander species at issue have been on the candidate list for at least ten years.
Plaintiffs’ reliance on
County of San Miguel v. MacDonald
,
In an effort to show that the voluntary conservation
efforts of their members are consistent with the ESA, Plaintiffs
point out that the Service has issued an advance notice of
proposed rulemaking to create incentives for landowners to take
voluntary conservation actions. Pl.’s Opp’n 16 (citing 77 Fed.
Reg. at 15,352 (March 15, 2012)). However, referencing the
Service’s intent to promote voluntary conservation does nothing
to confer standing where the alleged conservation injury is
neither traceable to, nor redressable by, the Agreements that
Plaintiffs seek relief from. Put otherwise, Plaintiffs fail to
establish that the
Agreements
, not the Service’s alleged failure
to recognize their members’ conservation efforts, cause the
injury that their members complain of.
See Perciasepe
, 714 F.3d
at 1325 n.7 (finding that the EPA’s statements that it intended
to update regulation did not confer standing, because
“[intervenor] has the burden to establish that the
consent
decree—
not EPA’s throat clearing—will cause the injury of which
*17
it complains.”). Furthermore, as Defendants point out,
“voluntary efforts to undertake pre-listing [conservation
actions] provide no basis for Plaintiffs’ purported injury.”
Def.’s Reply 9. Plaintiffs “cannot manufacture standing by
choosing to make expenditures based on hypothetical future harm
that is certainly not impending.”
Clapper
,
Because Plaintiffs fail to show that the injury is fairly traceable to the Agreements or redressable by an order to set them aside, the Court finds that Plaintiffs do not have standing based on a purported injury to their members’ conservation efforts. [7] [8]
*18 b. Regulatory restrictions on property use and business operations
Plaintiffs also assert that the Agreements precipitate additional pre-listing regulatory restrictions by local authorities that injure their members’ property and business interests. Pl.’s Opp’n 22. Plaintiffs illustrate this claim with a declaration by John Kaufman, a Plaintiff-member land developer in Washington state. Kaufman Decl. ¶¶ 1-4, ECF No. 14-2. Kaufman states that in the years before the Agreements, he engaged in efforts to protect the Mazama pocket gopher candidate species on his land in order to comply with state and local conservations and potentially obviate federal listing. See Kaufman Decl. ¶¶ 8-16. He states that his habitat management plan was “on track for final approval” by state and local authorities. ¶ 17. According to Kaufman, once the Service entered into the Agreements, local authorities asked the Service to comment on his plan, id. ¶ 19, the Service recommended that the plan be modified, id. ¶ 20, and the local authorities then required Kaufman to implement these recommendations before they approved the plan, id. ¶ 20. From this sequence of events, Kaufman infers that “[w]hat [local authorities] deemed adequate protection for a ‘candidate’ species was suddenly not enough” once the Agreements were approved. Id. ¶ 24.
An action by a third party not before the court may cause
injury for Article III standing when that action is a result of
a determinative or coercive effect upon that third party.
See
Bennett v. Spear
,
Injury cannot be the result of “the independent action of
some third party not before the court.”
Lujan
,
2. Procedural violations underlying Plaintiffs’ injuries
Plaintiffs’ alleged injuries are based on the underlying
claim that by acting pursuant to the Agreements, the Service
fails to follow ESA-mandated procedures.
See
Compl. ¶ 80-95.
To establish standing to challenge the Service’s failure to
abide by a statutory procedure, Plaintiffs must show that the
procedures in question are “designed to protect some threatened
concrete interest” of their members.
Florida Audubon Soc. v.
*21
Bentsen
,
First, Plaintiffs claim that the Agreements require the Service to abandon statutorily required procedures for determining whether listing a candidate species is precluded. Compl. ¶¶ 76, 81-82. Second, they claim that the Service discards the procedure for prioritizing candidate species for listing. Id. ¶¶ 77, 84-86. Third, Plaintiffs claim that the Agreements change the procedure for listing species without allowing public notice and comment. ¶ 78, 91-95. Finally, they claim that the Agreements require the Service to make decisions that disregard the best scientific and commercial data available. Id. ¶¶ 77, 88-89.
These claims of procedural violations have been considered and rejected by this Court and Circuit in Safari Club I and Safari Club II . In the Safari Club cases, movant-intervenor Safari Club proffered a number of procedural bases for standing to intervene in the MDL that gave rise to the Agreements.
Safari Club first claimed that the ESA required the Service to
decide whether listing was precluded before proposing to list a
species.
Safari Club II
,
[a]lthough the Service must make one of three findings—that listing a species is not warranted, is warranted, or is warranted but precluded . . . , 16 U.S.C. § 1533(b)(3)(B), the ESA does not require the Service to find that listing a species is precluded under any specific circumstances.
Safari Club II
,
Next, Plaintiffs claim that by entering into the Agreements, the Service modified its priority ranking system such that the Service no longer proposed to list candidate species in the order of their assigned priority number. ¶¶ 77, 84-86. Again, this claim was considered and rejected in the Safari Club decisions. This Court found that:
[while] the [ESA] requires [the Service] to establish guidelines to include “a ranking system to assist in the identification of species that should receive priority review[,]” [16 U.S.C. § 1533(h),] [t]he rankings do not create any requirement—procedural or otherwise—that the agency consider the species in the order they are ranked.
Safari Club also asserted that the Service may not modify
its priority ranking system without proper notice and comment.
*23
Id.
As to that assertion, this Court held that the ESA “does
not require that [the Service] must provide notice and comment
before applying the [priority listing] guidelines to any
species.”
Id
. (explaining that when the Service adopted the
priority guidelines thirty years ago, the Service stated “the
priority systems presented must be viewed as guides and should
not be looked upon as inflexible frameworks for determining
resource allocations.” 48 Fed. Reg. 43,098 (Sept. 21, 1983).
On appeal, the Circuit similarly found that “neither the ESA nor
the implementing regulations require the Service to invite
comment when it makes a warranted-but-precluded finding.”
See
Safari Club II
,
Finally, Plaintiffs claim that the Agreements compel the
Service to make warranted findings without regard for the best
scientific and commercial data available.
Id.
¶¶ 77, 88-89.
This Circuit has already found that the ESA does not provide a
mechanism for judicially reviewing warranted findings. 16 U.S.C.
§ 1533(b)(3)(C)(ii)(2012);
Safari Club II
,
In short, Plaintiffs’ assertions that the Service violates Section 4 procedures for listing species are indistinguishable from those that this Court and Circuit considered and rejected in the Safari Club cases. They neither identify a listing procedure that the Agreements require the Service to violate, nor identify a listing procedure that is designed to protect their members’ interests. Therefore, Plaintiffs fail to establish standing based on alleged violations of statutory procedure.
IV. CONCLUSION
Plaintiffs do not establish injury to their members sufficient for Article III standing. On the theory of injury to their members’ conservation interests, the alleged injury is not fairly traceable to the Agreements or redressable by an order to set them aside. On the theory of increased regulatory restrictions prior to listing, Plaintiffs fail to show that the Agreements cause or will cause those restrictions, or that the Service compelled a third party to adopt them. Finally, Plaintiffs do not establish that the Section 4 listing procedures are designed for their members’ benefit, or that the Agreements require the Service to violate any statutory procedure. The Court notes that Plaintiffs aggrieved by the listing process are not without remedy. “Warranted-but- precluded” findings are judicially reviewable. In addition, Plaintiffs aggrieved by a warranted finding may challenge the Service’s final rule listing the species. Accordingly, for the reasons stated herein, the Court GRANTS Defendants’ motion to dismiss and DENIES Plaintiffs’ prayer for injunctive and declaratory relief. In light of the foregoing, the Court DENIES AS MOOT Center for Biological Diversity’s motion to intervene in *26 this action. An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED .
SIGNED: Emmet G. Sullivan
United States District Court Judge March 31, 2014
Notes
[1] Plaintiffs are: the National Association of Home Builders, Olympia Master Builders, Home Builders Association of Greater Austin, and the Texas Salamander Coalition, Inc. Compl. ¶ 1.
[2] Defendants also move to dismiss for failure to state a claim under the Administrative Procedure Act and the Endangered Species Act. Defs.’ Mot. to Dismiss at 34-44. Because the Court concludes plaintiffs have no Article III standing, it need not reach these alternative arguments.
[3] The National Association of Home Builders, one of the plaintiffs in this case, participated in Perciasepe as amicus curiae in support of the trade association. Id.
[4] The four species of salamander at issue are the Austin Blind
salamander, Jollyville Plateau salamander, Georgetown salamander,
and Salado salamander.
[5] On August 20, 2013, the Service issued a final rule to list the Austin Blind salamander as endangered and the Jollyville Plateau salamander as threatened. 78 Fed. Reg. 51,278. On February 24, 2014, the Service issued a final rule to list the Georgetown
[6] A number of decisions in this court, including but not limited
to the opinions in the MDL and discussed above, have found no
standing in similar circumstances.
See, e.g., Ctr. for
Biological Diversity v. EPA
,
[7] By extension, for the same failure to satisfy the traceability
and redressability elements, Plaintiffs would also lack standing
to challenge the Agreements if the Service ultimately lists the
species covered by the Agreements. Plaintiffs could, of course,
directly challenge the final listing decision.
See, e.g.
,
Safari Club II
,
[8] To the extent that Plaintiffs separately allege that their members’ conservation interest is injured by the Service’s warranted-but-precluded findings for candidate species living on their land, see Pl.’s Opp’n 14 (“[t]he presence of candidate species . . . on private property has a palpable effect on . . . Plaintiffs’ members”), the Court fails to see how setting aside the Agreements protects that interest. Plaintiffs could have sought judicial review of the Service’s finding at any point during the up to ten years that the species at issue were warranted-but-precluded. See 16 U.S.C. § 1533(b)(3)(C)(ii) (2012).
[9] The Court notes that Plaintiffs aggrieved by a warranted
finding—and the proposed rule that issues from such a finding-
are not without remedy. Plaintiffs may request a public hearing
on the proposed rule. 16 U.S.C. § 1533(b)(5)(E)(2012). And
Plaintiffs may challenge the Service’s final rule listing the
species, if such listing occurs.
Safari Club II
, 704 F.3d at
977;
see, e.g.
,
In re Polar Bear Endangered Species Act Listing
and Section 4(d) Rule Litig.
,