Ctr. for Biological Diversity, Inc. v. Haaland

• Decision Date: 20 October 2021
• Docket Number: 21-cv-01182-JCS
• Court: U.S. District Court — Northern District of California
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, INC., et al., Plaintiffs, v. DEBRA HAALAND, et al., Defendants.

CENTER FOR BIOLOGICAL DIVERSITY, INC., et al., Plaintiffs,
v.
DEBRA HAALAND, et al., Defendants.

No. 21-cv-01182-JCS

United States District Court, N.D. California

October 20, 2021

ORDER REGARDING MOTION TO DISMISS RE: DKT. NO. 17

JOSEPH C. SPERO CHIEF MAGISTRATE JUDGE

I. INTRODUCTION

Plaintiffs Center for Biological Diversity (“CBD”) and Turtles Island Restoration Network (“TIRN”) bring this case against Defendants the Secretary of the U.S. Department of Interior, Debra Haaland, ^[1] in her official capacity and the U.S. Fish and Wildlife Service (the “Service”), asserting that Defendants failed to revise the Stock Assessment Reports (“SARs”) for nine stocks of protected mammals-certain populations of sea otters, polar bears, walruses, and manatees-as required by the Marine Mammals Protection Act (“MMPA”) and the Administrative Procedure Act (“APA”). Compl. (dkt. 1) ¶ 1. Defendants move to dismiss for lack of Article III standing and failure to state a claim on which relief may be granted, citing only Rule 12(b)(6) of the Federal Rules of Civil Procedure in their motion, but also addressing Rule 12(b)(1) in their reply.

The Court held a hearing on July 23, 2021, where the parties agreed that the case is moot as to three of the stocks at issue (the southern sea otter, Chukchi/Bering Seas polar bear, and Southern Beaufort Sea polar bear) because Defendants have now published revised SARs for

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those stocks. Defendants' motion to dismiss is therefore GRANTED to the extent Plaintiffs' claim is based on those stocks. As for the other stocks at issue, while Plaintiffs have sufficiently alleged constitutional standing, Defendants' motion is GRANTED under Rule 12(b)(6) for the reasons discussed below, and Plaintiffs' claims are DISMISSED with leave to amend.^[2]

II. BACKGROUND

A. Statutory Framework

Under the MMPA's framework, the Service has a nondiscretionary duty to review SARs for strategic stocks on an annual basis and for non-strategic stocks on a triennial basis. 16 U.S.C. § 1386(c)(1)(A)-(B). To conduct these internal reviews, the Service must utilize the “best scientific information available” to assess whether a SAR should be revised for each stock. Id. § 1386(a), (c)(2); see Mot. (dkt. 17) at 5 (acknowledging that the “best scientific information” standard applies to internal reviews). If the Service's review indicates that “the status of the stock has changed or can be more accurately determined, ” the Service must issue a revised stock assessment report. 16 U.S.C. § 1386(c)(2). In doing so, the Service must publish “a notice of availability”-which “include[s] a summary of the assessment and a list of the sources of information or published reports upon which the assessment is based”-“of a draft stock assessment report or any revision thereof and provide an opportunity for public review and comment during a period of 90 days.” Id. § 1386(b)(1). The Service shall then publish in the Federal Register “a notice of availability and a summary of the final stock assessment or any revision thereof, not later than 90 days after . . . the close of the public comment period on a draft stock assessment or revision thereof.” Id. § 1386(b)(3).

Under the APA, a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof, ” meaning that an underlying statutory claim must be sufficiently pleaded to give rise to a cause of action. 5 U.S.C. § 702. For the purpose of an APA claim, an agency action includes the “failure to act, ” and the court is vested with the authority to remedy such a

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failure by “compel[ling] agency action unlawfully withheld or unreasonably delayed.” Id. §§ 551(13), 706(1). Under 5 U.S.C. § 706(1), “federal courts may order agencies to act only where the agency fails to carry out a mandatory, nondiscretionary duty.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61 (2004) (citation and internal quotation marks omitted). Judicial review of an agency's failure to carry out a non-discretionary duty is limited to specific statutory requirements, because enforcing compliance with broad statutory terms would amount to the court's overseeing an agency's “day-to-day” management. Id. at 66-67. A court may also remedy an APA claim by “hold[ing] unlawful and set[ting] aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ” among other potential defects that can warrant such relief. 5 U.S.C. § 706(2).

B. Plaintiffs' Complaint

1. Claim Asserted

Plaintiffs allege that Defendants: (1) did not complete timely reviews for six of the nine stocks at issue (the northern sea otters of southwest, southcentral, and southeast Alaska, Florida manatee, Antillean manatee of Puerto Rico, and Pacific walrus); and (2) did not produce a timely final draft for three of the nine stocks at issue (the southern sea otter, Chukchi/Bering Sea polar bear, and Southern Beaufort Sea polar bear). Compl. at 10-13. Because the parties agree that Plaintiffs' claim as to the latter three stocks is now moot, this order does not address them in detail. Four of the six stocks that remain at issue (the northern sea otter of southwest Alaska, Florida manatee, Antillean manatee, and Pacific walrus) are designated by the MMPA as strategic and must be reviewed on an annual basis, while the other two stocks that remain at issue (the northern sea otters of both southcentral Alaska and southeast Alaska) are designated as non-strategic and must be reviewed every three years. Id. at 9-10.

Plaintiffs allege that this failure constitutes agency action which is unlawfully withheld or unreasonably delayed, which has caused them and their members informational and procedural injuries, and which ought to be compelled by this Court. Id. at 14. In the alternative, Plaintiffs also allege that the Service's failure to act is “arbitrary and capricious and not in accordance with procedures required by law.” Id.

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2. Marine Mammal Stocks at Issue

The Service has not published a revised SAR for the northern sea otters of southwest Alaska (a strategic stock), southeast Alaska, and southcentral Alaska (non-strategic stocks) since 2014. Id. at 10 (citing 79 Fed.Reg. 22, 154 (Apr. 21, 2014)). Plaintiffs allege the stocks of each of these species has changed in the interim, and provide as examples that “the Secretary of the Interior has issued offshore oil and gas leases and approved seismic surveys in Alaska that negatively affect northern sea otter stocks, ” and that “new information has become available regarding climate-induced changes to sea otter habitat and food availability as well as the impacts of the fishing industry on food availability and sea otter mortality.” Id. at 11.

The Service has not published a revised SAR for the Pacific walrus (a strategic stock) since 2014. Id. at 11. Plaintiffs allege that new population estimates suggest this stock's population is declining due to the loss of sea ice upon which the walruses depend, and that studies also indicate “melting sea ice will continue to have increasingly detrimental consequences to the Pacific walrus.” Id. at 12. Plaintiffs add that researchers report observing female walruses “spending more time in the southwestern region of the Chukchi Sea due to changes in sea ice availability, resulting in less time resting and foraging, and likely resulting in reduced female walrus body condition, ” a trend which will likely continue as sea ice retreats to higher latitudes. Id. Lastly, Plaintiffs allege “new information regarding the impacts of ocean acidification on Pacific walrus populations has been published by the scientific community, ” and that oceanic “acidification is driving changes in prey availability for walruses and therefore negatively impacting walrus populations.” Id. at 13.

The Service has not published a revised SAR for the Florida manatee and Antillean manatee (both strategic stocks) since 2014. Id. at 11. Plaintiffs allege that “[m]anatees face increasing threats to their existence, including from watercraft-collision-related deaths, ” which resulted in at least 637 manatee deaths in Florida's waterways in 2020 and “one of the deadliest years for manatees” in 2019. Id. at 13. Plaintiffs add that “[m]anatees in both the southeastern United States and Puerto Rico also face increasing threats from habitat loss and climate change” which negatively impacts the manatees and their surrounding habitat, the loss of the manatee's

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warm water refuge is being worsened by climate-change-induced cold fronts, harmful algal blooms are being worsened by increased precipitation and temperature, and tropical storms in increasing frequency and intensity may cause stranding and calf separation as well as the destruction of their seagrass feeding grounds. Id.

3. Allegations Regarding Standing

a. Representational and Organizational Injury

Plaintiffs allege that their interests and those of their members are harmed by the Service's failure to publish revised SARs.

CBD is a nonprofit conservation organization headquartered in Oakland, California which is “dedicated to the preservation of biodiversity, native species, and ecosystems, ” and which has 84, 000 members, many of whom “reside in and/or visit the coastal areas of California, Florida, Puerto Rico, and Alaska and adjoining marine waters where the marine mammals in this case occur, ” and all of whom “use the ocean and coastal areas for research, aesthetic enjoyment, observation, and other recreational scientific, and educational activities.” Id. at 3. Plaintiffs allege that CBD and its staff and members review scientific information about “marine mammals and regularly comment on actions affecting marine mammals, including draft stock assessment reports.” Id...