CONSERVANCY of Sw. Fla. v. UNITED States FISH, Case No. 2:10-cv-106-FtM-SPC

Decision Date06 April 2011
Docket NumberCase No. 2:10-cv-106-FtM-SPC
CourtU.S. District Court — Middle District of Florida



On November 12, 2010, United States Magistrate Judge Sheri Polster Chappell submitted a Report and Recommendation (Doc. #85) to the Court recommending Eastern Collier Property Owners', Federal Defendants', and Intervenor Seminole Tribe of Florida's Motions to Dismiss (Docs. ## 45; 46; 59) be denied. All parties filed Objections to the Report and Recommendation (Docs. ## 90; 91; 92) and Responses to the Objections. (Docs. ## 93, 96; 97; 98; 99.) For the reasons set forth below, the Court finds that it has subject matter jurisdiction and that plaintiffs have standing, but that none of the counts state claims upon which relief may be granted.


After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir. 2010). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 63 6(b)(1)(C); see also United States v. Farias-Gonzalez, 55 6 F.3d 1181, 1184 n.1 (11th Cir. 2009). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609, 94th Cong., § 2 (1976)). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994).


The Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1531 et seq., is intended to protect and conserve endangered and threatened species and their habitats. The Fish and Wildlife Service (FWS or Service) administers the ESA with respect to species under thejurisdiction of the Secretary of the Interior, including designating critical habitat.2 50 C.F.R. § 402.01(b). The Court uses Service and Secretary interchangeably in its discussion below.

The Florida Panther (Felis concolor coryi or puma concolor coryi) has been listed as an endangered species since 1967, 32 Fed. Reg. 4001 (Mar. 11, 1967), and retained its status after the 1973 passage of the ESA. The Florida Panther, a subspecies of the cougar, is "one of the rarest large mammals in the United States," 71 Fed. Reg. 30156-01 (May 25, 2006), and "one of the most endangered large mammals in the world." Fund for Animals, Inc. v. Rice, 85 F.3d 535, 538 (11th Cir. 1996)(quoting a FWS Biological Opinion). "Although the Florida Panther once ranged throughout the Southeastern United States, it has been reduced to a single population in south Florida." Id. Critical habitat, however, has never been designated for the Florida Panther.

In January 2009, the Conservancy of Southwest Florida (Conservancy) filed a petition with the Service under the ESA,Service regulations, and the Administrative Procedures Act (APA), asking the Service to establish critical habitat for the Florida Panther. The Sierra Club and numerous other environmental organizations joined in that petition in July 2009. On September 17, 2009, the Center for Biological Diversity and the Public Employees for Environmental Ethics and Counsel of Civil Associations petitioned the Service to designate critical habitat for the Florida Panther. In November 2009, the Sierra Club filed a supplemental petition with the Service to establish critical habitat for the Florida Panther, specifically to account for habitat loss due to climate change. Plaintiffs assert that these petitions were based on scientific reports submitted with their petitions which identified three priority zones for Panther habitat conservation. Plaintiffs' petitions asked the Service to designate these zones as critical habitat because this would provide landscape-level protection of the entire area recognized by the best available science as essential to the survival and recovery of the species.

Because the Service had not granted or denied the petitions, on December 16, 2009, Conservancy and the Sierra Club gave a 60-day notice of intent to sue under the ESA's citizen-suit provision, 16 U.S.C. § 1540(g), and notified the Service by certified mail that they intended to file suit against it under the ESA and APA to compel responses to the petitions. That letter also included anotice of intent to sue for violations of ESA § 7. Plaintiff Center for Biological Diversity served a citizen-suit notice on December 22, 2009. Conservancy and the Sierra Club sent a supplemental notice letter on January 26, 2009. In addition, plaintiffs sent another 60-day notice of intent to sue on March 1, 2010. More than 60 days passed from the date of that letter to the filing of the Complaint.

On February 11, 2010, in three separate but virtually identical letters, the Service denied the Conservancy's January 2009 petition, the Center for Biological Diversity's September 2009 petition, and the Sierra Club's November 2009 petition, and refused to designate critical habitat for the Florida Panther. In denying the petitions, the Service noted that it was in the process of working with several conservation organizations and private landowners in Collier County, Florida "to implement a landscape-scale Habitat Conservation Plan for which the landowners would seek a permit from the Service in accordance with Section 10 of the Act." The Service noted that this process, referred to as the "Florida Panther Protection Program," may provide a framework for conservation and recovery efforts in other locations.

On June 25, 2010, plaintiffs filed a shotgun3 four-count Amended Complaint (Doc. #42) alleging that the Service's denials of plaintiffs' several petitions to designate critical habitat for the Florida Panther violated the ESA and APA. (Doc. #85, p. 2.) Count I alleges the denials were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the APA, 5 U.S.C. §§ 706(2)(A), (D). Count II alleges that the denials were in violation of the requirements of §§ 2, 3, and 7 of the ESA and §§ 706(2)(A), (D) of the APA. Count III alleges that the denials were in violation of the ESA because they were not based on the best scientific data available, as required by § 1533(b)(2). Count IV alleges that the denials were in violation of the ESA because the Service failed to comply with their non-discretionary duties for designation and revision of critical habitat. Plaintiffs seek a declaratory judgment that the denials of the petition were in violation of the law for the reasons set forth in the Amended Complaint; an order vacating the denials of the petitions; an injunction remanding the matter to defendants and ordering defendants to make all necessary findings, initiate rulemaking to designate critical habitat, and set reasonabledeadlines to complete the tasks; and an award of attorneys fees and costs.


The motions to dismiss collectively raise four arguments: (1) the Court lacks subject-matter jurisdiction over the ESA claims because the decision whether to designate critical habitat for the Florida Panther is discretionary and therefore the Secretary is exempt from suit under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(C); (2) alternatively, the ESA counts fail to state a claim upon which relief may be granted; (3) plaintiffs lack standing because the Court cannot redress their claims; and (4) the APA counts fail to state a claim upon which relief may be granted because the decision to designate critical habitat for the Florida Panther is committed to the agency's discretion by law. The first and third arguments implicate the jurisdiction of the Court to decide the case, and will therefore be discussed first.

A. Subject Matter Jurisdiction

Defendants raise a facial challenge to the subject matter jurisdiction of the court. Subject matter jurisdiction relates to the court's power to adjudicate a case. Morrison v. Nat'l Austl. Bank Ltd., 130 S. Ct. 2869, 2877 (2010); Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243 (2010). Plaintiffs assert federal jurisdiction under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2201-02 (declaratory judgment and further relief), 16 U.S.C.§ 1540(g)(ESA citizen suit), and 5 U.S.C. § 701-06 (APA). (Doc. #42, 56.)

Subject matter jurisdiction is clearly not created by 28 U.S.C. §§ 2201-02. The Declaratory Judgment Act is a procedural statute which grants no jurisdiction where jurisdiction does not otherwise exist. Vaden v. Discover Bank, 129 S. Ct. 1262, 1278 n.19 (2009); Christ v. Beneficial Corp., 547 F.3d 1292, 1299 (11th Cir. 2008); Household Bank , F.S.B. v. JFS Group, 320 F.3d 1249, 1253 (11th Cir. 2003)("The operation of the Declaratory Judgment Act is procedural only.").

The APA does not itself serve as an implied grant of federal subject matter jurisdiction. Califano v. Sanders, 430 U.S. 99, 105 (1977). Jurisdiction over APA challenges to federal agency action, however, is vested in federal district courts by virtue of 28 U.S.C. § 1331 unless another statute specifically bars judicial review in the district court. Alabama v. EPA, 871 F.2d 1548, 155960 (11th Cir. 1989); see also Chrysler Corp. v. Brown, 441 U.S. 281, 317 n.47 (1979)("Jurisdiction to review agency action...

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