Skipper v. United States Fish and Wildlife ServiceSkipper v. United States Fish and Wildlife Service
ORDER
I. INTRODUCTION
This matter is before the Court on the Plaintiffs’ Motion for Summary Judgment (Doc. 47) and the cross-motions for summary judgment filed by the Federal Defendants (Doc. 57) and the Defendant-Intervenor (Doc. 59). The parties seek judgment as a matter of law on the Plaintiffs’ challenge to the U.S. Fish and Wildlife Service‘s (“FWS” or the “Service“) final rule designating critical habitat for the black pinesnake under the Endangered Species Act (“ESA“). Having reviewed the motions, briefs, declarations, administrative record, and the applicable law, the Court finds that the Service‘s designation of Units 7 and 8 as “occupied” critical habitat and its economic impact analysis were arbitrary and capricious.
Accordingly, Plaintiffs’ Motion for Summary Judgment is GRANTED in part and DENIED in part. The Federal Defendants’ and Defendant-Intervenor‘s Cross-Motions for Summary Judgment are DENIED in part and GRANTED in part. The Final Rule is VACATED as it pertains to Units 7 and 8 and REMANDED to the Service for further proceedings consistent with this opinion.1
This case concerns the FWS‘s designation of critical habitat for the black pinesnake, a large, nonvenomous constrictor native to longleaf pine ecosystems in portions of Mississippi and Alabama. See 80 Fed. Reg. 60,468-69 (Final Listing Rule); Administrative Record (hereafter “AR“) 147-150. Because it spends most of its time underground, the black pinesnake is said to be “difficult to locate even in areas where it is known to occur.” (AR 396). Historical threats include habitat fragmentation from urbanization, agriculture, fire suppression, and road mortality, resulting in isolated populations vulnerable to inbreeding and stochastic events. See 80 Fed. Reg. at 60,481; see also Doc. 81 at 20.
In 1999, the Service placed the black pinesnake on the list of candidate species for listing under the ESA. (AR 61). On October 7, 2014, the Service published a proposed rule to list the pine snake as threatened. (Id; 70 Fed. Reg. 60,406). In March 2015, the Service published a proposed rule to designate critical habitat of 338,100 acres and opened a public comment period. (Id.). Finally, on October 6, 2015, the Service officially listed the black pinesnake as a threatened species under the ESA. See 80 Fed. Reg. 60,468 (Oct. 6, 2015). The proposed designation identified physical and biological features essential to conservation, including upland pine-dominated forests with reduced shrub layers and suitable burrowing sites. Id. at 60,480-81. At the same time, the Service issued a “4(d) rule” restricting certain land use activities such as longleaf pine conversion and significant subsurface disturbance. See id. at 60,489;
On February 26, 2020, the Service published its Final Rule designating critical habitat for the species, encompassing approximately 324,679 acres across eight units in Alabama and Mississippi. (AR 411; see also 85 Fed. Reg. 11,238 (Feb. 26, 2020)). Units 7 and 8 are located in Clarke County, Alabama. Unit 7 comprises approximately 33,395 acres—entirely privately owned timberland—and Unit 8 comprises 5,943 acres, of which 2,100 acres are privately held, and 3,843 acres are state-owned lands in the Fred T. Stimpson Special Opportunity Area. (AR 411; Doc. 47 at 7-8).
The plaintiffs are timberland owners and family trusts whose land falls within Units 7 and 8. (Id. at 11-12). They allege the designation reduces property values, interferes with land use, and stigmatizes their property. (Id. at 12-13). The Service concluded that both Units 7 and 8 were “occupied” by the pinesnake at the time of listing, relying primarily on a small number of historical sightings. (AR 413). In Unit 7, the Service cited one pinesnake sighting in the twenty years preceding the listing and four older anecdotal sightings—all on the perimeter of the designated area. (Doc. 47 at 8-9 (citing AR 413)). For Unit 8, the Service relied on two sightings from the 1990s, neither of which occurred on the designated private land. (Id.). No pinesnakes were observed during a 2008-2009 field survey of either unit. (Id.; see also AR 398; AR 1968).
The Service produced an economic analysis by it‘s contractor, Industrial Economics, Inc., in support of its designation. (AR 27). That analysis used the “baseline” approach, excluding costs attributable to the
Finally, the Service certified under
After the Service issued its Final Rule, Plaintiffs sent a 60-day notice of intent to sue and subsequently filed this action challenging the designation under the ESA, APA, and RFA. (Doc. 47 at 10-11).
III. APPLICABLE LAW
A. The Endangered Species Act
The Endangered Species Act represents what the Supreme Court has called “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978);
Under Section 4 of the ESA, the Secretary of the Interior, acting through the Service, determines whether to list a species as “endangered” (in danger of extinction) or “threatened” (likely to become endangered in the foreseeable future). See
In addition to listing, the ESA requires the Service to concurrently designate “critical habitat” for listed species.
The statute defines two distinct types of critical habitat: “occupied” and “unoccupied.” Occupied critical habitat consists of “the specific areas within the geographical area occupied by the species at the time it is listed” that contain the physical or biological features essential for its conservation.
A critical habitat designation does not create a park or a wildlife refuge and does not, on its own, prohibit private activities on private land. The primary legal effect of a critical habitat designation is triggered by Section 7, which establishes a consultation process for federal agencies.
B. The Administrative Procedure Act
Enacted in 1946, the Administrative Procedure Act (“APA“) is “a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” U.S. v. Morton Salt Co., 338 U.S. 632, 644 (1950). It provides the default framework for judicial review of final agency actions. See
This standard, while at times deferential, is not toothless. A court may not substitute its own policy judgment for that of the agency, but it must conduct a “thorough, probing, in-depth review” of the agency‘s reasoning—often referred to as the “hard look” doctrine. See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). An agency‘s action is arbitrary and capricious if it:
...has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The agency must articulate a “rational connection between the facts found and the choice made” in the administrative record. Id.
C. The Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) was enacted by Congress in 1980 in response to concerns that federal agencies were promulgating uniform regulations without sufficient consideration of their disproportionate impact on small entities, which frequently lack the institutional resources of larger organizations to absorb compliance burdens.
To this end, the RFA imposes specific procedural requirements upon the rulemaking process. When an agency issues a notice of proposed rulemaking, it is generally required to prepare an “initial regulatory flexibility analysis” (IRFA) that evaluates the rule‘s anticipated impact on small businesses, small governmental jurisdictions, and small nonprofit organizations.
The RFA contains a significant exemption from these analytical duties. An agency is relieved of the obligation to prepare an IRFA or FRFA if the head of the agency certifies that the rule will not “have a significant economic impact on a substantial number of small entities.”
IV. STANDARD OF REVIEW
Summary judgment is appropriate when the administrative record shows that there is no “genuine issue material fact” and the movant is entitled to judgement as a matter of law. Fed R. Civ. P. 56(a). Review of agency action under the ESA is governed by the standards of the APA.
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 586 U.S. 9, 12 (2018). As previously stated, the APA requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Once the moving party has met its burden, Rule 56(c) “requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.‘” Celotex, 477 U.S. at 324. To avoid summary judgment, the nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in [his] favor.” ThyssenKrupp Steel USA, LLC v. United Forming, Inc., 926 F. Supp. 2d 1286, 1290 (S.D. Ala. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Nevertheless, if the nonmoving party fails “to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,” the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323.
This Court‘s review of the Service‘s legal interpretations of the statutes it administers is shaped by the Supreme Court‘s recent decision in Loper Bright Enterprises, 603 U.S. 369, which overruled the doctrine of Chevron deference.4 Whatever statutory ambiguities exist in the present case are not “implicit delegations” to the Service for their own unbridled explanation. Id. at 373. Thus, this Court will not defer to the Service‘s statutory interpretations but will instead exercise its independent judgment to “determine the best reading of [a] statute and resolve [any] ambiguity.” Id. While not given complete deference, this Court will still consider the FWS‘s “body of experience and informed judgment,” among other information in the record. Skidmore v. Swift & Co., 323 U.S. at 140. (1944). As elucidated in Loper Bright, “an agency‘s interpretation of a statute ‘cannot bind a court, but may be especially informative ‘to the extent it rests on factual premises within [the agency‘s] expertise.‘” 603 U.S. at 402 (quoting Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 98, n. 8 (1983)).
V. ANALYSIS
A. Standing and Jurisdiction
Standing consists of three elements: the plaintiff must have suffered an injury in fact, the defendant must have caused that injury, and a favorable decision must be likely to redress it. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Plaintiffs bear the burden to establish these three elements of Article III standing. Id. The Court is satisfied that Plaintiffs have standing under Article III to bring these claims and that the Court has jurisdiction to review the critical
habitat designation. Plaintiffs own land within Units 7 and 8 that were designated as critical habitat. (Doc. 48; Doc. 50). Although Plaintiffs seek vacatur of the Final Rule in its entirety, their standing is limited to the designation of Units 7 and 8. They claim the designation causes them concrete injury by diminishing the economic value of their property from negative perceptions attached to the critical habitat designation and by imposing additional regulatory burdens on any use of their land. (Doc. 47 at 11-19). These injuries are neither speculative nor generalized; they are specific to the Plaintiffs’ properties. See Lujan, 504 U.S. at 560-61.
1. Actual Injury
Designation of private land as critical habitat has an immediate impact on property value and potential development opportunities. See Weyerhaeuser Co., 586 U.S. at 19 n.1 (2018). The record contains evidence that the mere presence of a critical habitat label can create a public perception of regulatory risk, leading to reduced market value of the land. (AR 44). The Service‘s own economic analysis acknowledged 65,000 acres of privately owned land within the designation, with a total value of $180 million that could be subject to such perception effects, though the Service was “unable to estimate” the degree of economic harm. (Id. at 53). Units 7 and 8 comprise approximately 35,495 acres of privately owned land. AR 413. Even absent a current sales transaction, the reduced value of Plaintiff‘s land caused by the designation is a real economic harm. See Weyerhauser, 586 U.S. at 19 n.1 (noting decrease in market value of land as a result of critical habitat designation was a concrete injury sufficient for Article III standing). Plaintiffs’ land, thousands of acres of timber and rural land, stands to lose economic value or face significant use restrictions. This economic injury is sufficiently concrete and imminent and is
particularized to Plaintiffs. It is not a diffuse harm shared by the general public. See Lujan, 504 U.S. at 560-61.
2. Traceability and Redressability
Plaintiffs’ injuries are traceable to the Service‘s actions—specifically, to the designation of Plaintiffs’ land as critical habitat. But for that designation, Plaintiffs’ property would not be subject to the adverse modification standard or any constraints beyond those already in place from the species listing. If the designation is vacated on Plaintiffs’ lands, any future federal-agency actions on those lands would no longer require consideration of adverse modification of critical habitat. Thus, the injury flows from the challenged
Accordingly, the Court concludes that Plaintiffs have satisfied Article III standing. The designation of their land in Units 7 and 8 imposes concrete economic harms that are directly traceable to the Service‘s actions. This harm would be sufficiently redressed by vacatur. Although Plaintiffs lack standing to challenge the Final Rule beyond their property, their claims as to Units 7 and 8 are properly before the Court.
B. The Record does not Support the Service‘s “Occupied” Critical Habitat Determination
First, the Court must consider whether the Service properly concluded that Units 7 and 8 were “occupied” by the species at the time of listing. Plaintiffs contend that these areas were unoccupied by the black pinesnake in 2015 and that the Service‘s decision to treat them as occupied was not based on the best available science. (Doc. 47 at 25). The ESA‘s text draws a clear distinction between occupied and unoccupied areas. If an area falls within the geographical area occupied by the species at the time of listing, it can be designated if it contains the features essential to conservation. See
The ESA requires the Service to use the “best available science” when making such determinations, yet the record lacks concrete evidence that the black pinesnake was present in Units 7 and 8 at the time of listing. The Service‘s assumption of the black pinesnake‘s occupying Units 7 and 8 is unsupported by observational data and falls short of the evidentiary standard required under the ESA. Although there is no binding Eleventh Circuit precedent on this issue, persuasive authority from other circuits exposes the weakness of the Service‘s determinations.
For example, in Alaska Oil & Gas Ass‘n v. Jewell, 815 F.3d 544, at 561 (9th Cir. 2016), the Ninth circuit upheld an “occupied” critical habitat designation for polar bears based on detailed tracking studies showing consistent movement through the designated area. By contrast, the Service‘s reliance on sparse, decades-old anecdotal sightings of an elusive species renders its occupancy determination speculative at best. While standards
Indeed, this case is a far cry from Jewell, where the FWS‘s occupancy determination for polar bears was upheld based on robust satellite telemetry data showing their regular movement and use of the designated areas. Id. The record here contains no such compelling evidence. The facts here are more closely analogous to those in Otay Mesa Property, L.P. v. U.S. Dep‘t of Interior, 344 F. Supp. 3d 355 (D.D.C. 2018). In Otay Mesa, the FWS designated 57 acres as “occupied” or, alternatively, “unoccupied” critical habitat for the Riverside fairy shrimp, even though the shrimp themselves were only found within a single one-acre stock pond on the property. Id. at 360. The agency justified its expansive designation by pointing to the presence of essential physical features—the watershed—on the surrounding 56 acres. Id. The court rejected this as an improper conflation of the statutory requirements. It held that the agency must first identify the area the species actually occupies and then determine where the essential features are found within that occupied area. Id. at 371. An agency cannot use the presence of suitable habitat to expand the boundaries of “occupied” territory beyond where the species is actually found. Id. The Service makes the same analytical error here. It has taken a few sporadic sightings on the edges of the designated units and, by pointing to the existence of suitable pine forest throughout
the area, has extrapolated those sightings to declare tens of thousands of acres “occupied.” Just as the FWS could not declare 56 acres of dry land “occupied” by an aquatic shrimp in Otay Mesa, it cannot declare thousands of acres of forest “occupied” by an elusive snake based on a handful of fleeting encounters. Such a determination “runs counter to the evidence before the agency” and is the essence of arbitrary action. Motor Vehicle Mfrs’ Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
C. The Service‘s Economic Impacts Analysis under 4(b) was Insufficient
The Services‘s economic analysis of the potential impacts of the critical habitat designation on Plaintiffs’ land missed the mark. The Service claims in its analysis that no economic harm stems from negative land perceptions attached to the designation. (Doc. 57-2 at 16). (“Plaintiffs assert that the Designation will likely cause a reduction in property values as a result of negative perceptions of land designated critical habitat ... however their argument is unsupported by competent evidence“). However, the Service based this conclusion on an analysis that was never conducted. As evidenced in the record, due to data limitations, the Service could not estimate the magnitude of any economic injury that could be caused from negative perceptions of the land due to the critical habitat designation. (AR 53).
The ESA requires the Service to consider the “economic impact...of specifying any particular area as critical habitat.”
economic burdens already imposed by the species’ listing. (Doc 57 at 16-17). The Plaintiffs argue for the
In New Mexico Cattle Growers Ass‘n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001). The court found that the Service‘s own regulations at the time defined the “adverse modification” standard for critical habitat so similarly to the “jeopardy” standard for species listing that nearly all economic impacts could be attributed to the pre-existing listing, leaving no meaningful costs to be analyzed at the critical habitat stage. Id. at 1283. This regulatory overlap, the court concluded, rendered the economic analysis required by Congress “a meaningless exercise.” Id. at 1285. The core of the Tenth Circuit‘s holding is that any methodology that prevents a full accounting of the economic consequences of a designation—thereby precluding a meaningful balancing of benefits and costs—is contrary to the statute. Id.
The Ninth Circuit took a different view in Arizona Cattle Growers’ Ass‘n v. Salazar, 606 F.3d 1160 (9th Cir. 2010). It rejected the Tenth Circuit‘s reasoning, but did so on narrow grounds. The Ninth Circuit argued that the premise of the New Mexico Cattle Growers decision was faulty because the underlying FWS regulation that conflated the “adverse modification” and “jeopardy” standards had since been invalidated by other courts. Id. at 1173. Because the two standards were now distinct, the Ninth Circuit reasoned, the baseline approach was no longer meaningless and was therefore permissible. Id.
This Court finds the Ninth Circuit‘s reasoning in Arizona Cattle Growers unpersuasive because it mistakes a symptom for the disease. The Tenth Circuit‘s logic does not depend on the existence of the specific, now-invalidated regulation. Rather, it addresses the fundamental structural flaw of the baseline approach itself. The baseline methodology, by its very design, will always seek to attribute as many costs as possible to the pre-existing listing, thereby minimizing the “incremental” costs of the critical habitat designation. This creates an analytical framework that is inherently biased against a full and fair consideration of economic impacts. Whether the overlap between the jeopardy and adverse modification standards is 99% (as it was under the old regulation) or some lesser amount, the baseline approach still systematically undercounts the true economic burden of the designation and prevents the Service from conducting the robust cost-benefit analysis that Section 4(b)(2) requires. The Tenth Circuit‘s approach, in contrast, ensures that all economic consequences flowing from the designation are considered, which is the only way to give effect to Congress‘s clear directive to “tak[e] into consideration the economic impact” before making a final decision.
D. Failure to Analyze or Weigh Exclusion of Units 7 and 8
Even if the Service had employed a valid economic methodology, its ultimate decision not to exclude Units 7 and 8 was arbitrary and capricious. The ESA grants the Secretary discretion to exclude an area if “the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.”
failed to consider an important aspect of the problem.” State Farm, 463 U.S. at 43. Here, the Service entirely failed to consider the important aspect of public attitudes and their impact on the economic analysis. The administrative record contains the Service‘s own economic analysis, which explicitly identifies “public attitudes about the limits and costs that the Act may impose” as a source of “real economic effects,” including diminished property values. (AR 44). Having identified this significant impact, the Service was obligated to grapple with it. Instead, it threw up its hands, claiming that “due to data limitations, we are not able to estimate the magnitude of any potential impact on property values.” (AR 53).
An agency cannot make a rational decision if it is unaware of a key part of the equation. The Service‘s statutory duty is to weigh the benefits of exclusion (e.g., avoiding economic harm) against the benefits of inclusion (conservation). By failing to quantify or even qualitatively analyze a known, significant economic cost, the Service effectively left one side of the scale empty. Its subsequent “weighing” process was therefore a hollow exercise. As the Supreme Court made clear in Weyerhaeuser, the Service must be able to articulate a rational basis for its decision not to exclude. See 586 U.S. at 25-26. No rational basis can be found when the agency ignores a critical factor in its analysis. As a result, its decision not to exclude Units 7 and 8, reached without a full and fair consideration of a major benefit of exclusion, was not the product of reasoned judgment. The Court finds the Service failed to properly analyze the potential economic impact of the critical habitat designation on Plaintiffs’ land. Therefore, the Service‘s failure to analyze this important aspect of the problem renders its decision not to exclude Units 7 and 8 an abuse of discretion.
VI. CONCLUSION
The APA provides that courts “shall... hold unlawful and set aside” agency actions found to be arbitrary, capricious, or otherwise not in accordance with law.
As set forth above, the Services’ action suffers from multiple deficiencies. The designation of Units 7 and 8 was not supported by evidence of occupancy at the time of listing and the Service also relied on an economic analysis that failed to consider quantifiable impacts. These failures mirror those in Kansas Natural Resource Coalition, where the district court vacated the rule outright due to the Service‘s refusal to consider economic costs. See Kansas Nat. Res. Coal., 2024 U.S. Dist. LEXIS 9486, at *50-52. Given the scope and severity of the Service‘s decisions, the Court concludes that vacatur—not mere remand—is appropriate. Vacatur will eliminate the current regulatory burden on Plaintiffs’ land and ensure that any future designation complies with statutory and procedural requirements.
The Supreme Court has instructed that vacatur should be limited to the unlawful portion of a rule where the remainder is severable. See Weyerhaeuser, 586 U.S. at 26. Although Plaintiffs seek vacatur of the Final Rule in its entirety, their standing is limited to the designation of Units 7 and 8.
DONE and ORDERED this 21st day of August, 2025.
/s/ JEFFREY U. BEAVERSTOCK
CHIEF UNITED STATES DISTRICT JUDGE