Ctr. for Biological Diversity v. Bernhardt

• Decision Date: 12 February 2020
• Docket Number: Civil Action No.: 18-2576 (RC)
• Citation: 442 F.Supp.3d 97
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. David BERNHARDT, et al., Defendants.
• Court: U.S. District Court — District of Columbia

442 F.Supp.3d 97

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,

v.David BERNHARDT, et al., Defendants.

Civil Action No.: 18-2576 (RC)

United States District Court, District of Columbia.

Signed February 12, 2020

Amy R. Atwood, Ryan Adair Shannon, Center For Biological Diversity, Portland, OR, for Plaintiff.

Andrea Gelatt, Devon Lea Flanagan, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

GRANTING DEFENDANTS' MOTION TO DISMISS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

The Center for Biological Diversity ("Center") brings this suit pursuant to the citizen suit provision of the Endangered Species Act ("ESA"), 16 § U.S.C. 1540(g)(1), alleging that the Acting Secretary of the Department of Interior ("Secretary") and the United States Fish and Wildlife Service ("Service") failed to provide public notice of and an opportunity for comment on programmatic guidelines for species-specific species status assessments ("SSAs"). The Center contends that Defendants' conduct contravenes both the ESA and the Administrative Procedure Act ("APA"). Defendants moved to dismiss the suit for lack of jurisdiction and failure to state a claim for relief. For the reasons set forth below, the Court grants Defendants' motion to dismiss.

II. BACKGROUND

To contextualize the factual allegations and the specific claims asserted, the Court begins with a brief review of the two statutes under which the Center brings its claims before summarizing the facts of the instant suit in more detail.

A. Statutory Background

1. Endangered Species Act

The ESA has been 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, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). This extensive statutory framework includes substantive definition of matters such as, inter alia , what qualifies a species as "endangered," 16 U.S.C. § 1532(6), how a "species" is defined, id. § 1532(16) ; 50 C.F.R. § 424.11(a), and on what basis the Secretary of the Interior is to determine whether a species is endangered, 16 U.S.C. § 1533(a)(1). What is known as section 4 of the ESA, 16 U.S.C. § 1533, also establishes a mandatory procedural framework. Before a species may receive the ESA's substantive protections, it must be listed as endangered or threatened. Id. § 1533(a)(1). A species may be so listed or, alternatively, removed from protected status either based on the Service's own evaluation of "the best scientific and commercial data available," id. , or in response to an interested person's petition to list a species, id. § 1533(b)(3)(A).¹ To the maximum extent practicable, within 90 days of receiving the petition, the Service must make an initial finding as to whether the petition presents substantial scientific and commercial information indicating that the action may be warranted. Id. Within twelve months of receiving a petition that is found to present such information, the Service must make a final determination as to whether the listing change is in fact supported by the statutorily-authorized factors. Id. § 1533(b)(3)(B). The statute separately requires regular review of the list of endangered and threatened species to determine whether any changes in status are warranted. Id. § 1533(c) ; see also 50 C.F.R. § 424.11.

In addition to establishing this decision-making process, section 4 of the ESA includes the notice and comment provisions at issue in this suit. Specifically, section 4(h) provides that the Service "shall establish, and publish in the Federal Register, agency guidelines to insure that the purposes of this section are achieved efficiently and effectively." 16 U.S.C. § 1533(h). This section stipulates that "[s]uch guidelines shall include," inter alia , "procedures for recording the receipt and the disposition of petitions submitted" by interested persons (as provided in subsection b(3)) and "criteria for making the findings required under such subsection with respect to petitions." Id. § 1533(h). The examples of guidelines listed in this section are non-exhaustive. Id. (stating that the guidelines subject to this subsection's mandates are "not limited to" the enumerated categories). Finally, section 4(h) mandates that the Service "shall provide to the public notice of, and opportunity to submit written comments on, any guideline (including any amendment thereto) proposed to be established under this subsection." Id.

2. Administrative Procedure Act

In addition to its ESA claim, the Center brings two claims pursuant to the APA. The APA includes provisions that control federal agencies' promulgation of proposed and final rules that carry the "force and effect of law." Perez v. Mortg. Bankers Ass'n , 575 U.S. 92, 135 S. Ct. 1199, 1203–04, 191 L.Ed.2d 186 (2015) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302–303, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) ). "[F]or so-called ‘notice-and-comment rulemaking," the APA "prescribes a three-step procedure:" (1) the agency must "issue a ‘[g]eneral notice of proposed rule making,’ ordinarily by publication in the Federal Register;" (2) if " ‘notice [is] required,’ the agency must give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments" and then "consider and respond to significant comments received during the period for public comment;" and (3) "when the agency promulgates the final rule, it must include in the rule's text ‘a concise general statement of [its] basis and purpose.’ " Id. (quoting 5 U.S.C. §§ 553(b), (c) ) (citing Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ; Thompson v. Clark , 741 F.2d 401, 408 (D.C. Cir. 1984) ).

Under the APA, an individual who is "adversely affected or aggrieved by agency action within the meaning of a relevant statute[ ] ... is entitled to judicial review thereof." 5 U.S.C. § 702. Not every action by an agency is subject to such review. "Agency action" is defined by the APA itself and includes—as relevant here—"the whole or part of an agency rule ... or failure to act." Id. § 551(13). In addition, judicial review under the APA is appropriate only in cases involving "final agency action for which there is no other adequate remedy in a court." Id. § 704. In such instances, the APA permits a court to "compel agency action unlawfully withheld or unreasonably delayed." Id. § 706(1). The APA also permits a reviewing court to "hold unlawful and set aside agency action, findings, and conclusions found to be[,]", inter alia , "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706(2).

B. Factual Background²

This case centers on the Fish and Wildlife Service's species-specific SSAs, which "purport to synthesize all the scientific information about a species" and "subsequently inform every species-specific decision taken pursuant to" the ESA. Am. Compl. ¶ 2, ECF No. 14. The Service began to use species-specific SSAs in 2012, the same year that it "began drafting SSA guidelines" to inform its development of these documents. Id. ¶ 43. After continuing "internal review" into 2015, in August 2016, the Service published the USFWS Species Status Assessment Framework ("2016 SSA Framework").³ Id. ¶¶ 43–44; see Defs.' Mot. Dismiss Ex. A, 2016 SSA Framework, ECF No. 17-1. This document "is an analytical approach" that "lays out the basic concepts in the Species Status Assessment (SSA) Framework and the minimum requirements for an SSA." 2016 SSA Framework 4. As such, it represents "one of many support tools for implementing" the Service's "new approach for assessing the biological status of species" and operates along with other tools that "include a team of trained regional staff ... to assist field and regional staff" and "a[n] SSA Google Site for Staff." Id. Prior to finalizing the document in August 2016, the Service did not publish the 2016 SSA Framework, and it at no point provided public notice of or an opportunity for comment on the document. Am. Compl. ¶ 44.

In addition, in 2017, the Service's principal deputy director issued a document entitled the "State Representation on Species Specific Status Assessment Teams Memorandum" ("Memorandum") that addressed the interaction between state governors' offices and SSA teams.⁴ Id. ¶ 48; see Defs.' Mot. Dismiss Ex. B, Oct. 13, 2017 Memorandum, ECF No. 17-2 at 2.⁵ This Memorandum, which was amended after its initial issuance, set out the principal deputy director's "expectation" "that any SSA developed to support an ESA classification decision should invite participation from at least one state representative per state." Def.'s Mot. Dismiss Ex. B, Jan. 16, 2018 Memorandum, ECF No. 17-2 at 3. This "guidance," which was "effective immediately," required that any such state representatives possess "relevant expertise in the ecology of the species (or similar species), the ecosystem, or the relevant biological stressors being analyzed." Id. Neither the original Memorandum nor the updated version included further specificity regarding the makeup or role of "SSA teams." Apart from the 2016 SSA Framework and both versions of the Memorandum, no other specific components of the Service's SSA program are identified in the Center's filings or otherwise included in the record before the Court.

Plaintiff presses several claims concerning the Service's development of and reliance on the "SSA program and its implementing guidelines, including the [2016] SSA Framework." Id. ¶ 51. First, the Center alleges that the Service failed to conduct the notice and comment procedures required by section 4(h) of the ESA for the guidelines that implement its SSA program. Id. ¶ 54. Second, the Center argues that the same programmatic guidelines are rules as defined by the APA, such that the Service violated the notice and comment requirements for a proposed rulemaking set forth...