Defenders of Wildlife v. U.S. Fish & Wildlife Serv.

• Decision Date: 12 May 2021
• Docket Number: Civil Action No. 2:20-cv-3657-BHH
• Parties: DEFENDERS OF WILDLIFE, Plaintiff, v. U.S. FISH AND WILDLIFE SERVICE, Defendant, and Charles River Laboratories International, Inc., Intervenor/Defendant.
• Court: U.S. District Court — District of South Carolina

539 F.Supp.3d 543

DEFENDERS OF WILDLIFE, Plaintiff,

v. U.S. FISH AND WILDLIFE SERVICE, Defendant,andCharles River Laboratories International, Inc., Intervenor/Defendant.

Civil Action No. 2:20-cv-3657-BHH

United States District Court, D. South Carolina, Charleston Division.

Signed May 12, 2021

Catherine Moore Wannamaker, Pro Hac Vice, Southern Environmental Law Center, Charleston, SC, Lindsay Paige Dubin, Pro Hac Vice, Defenders of Wildlife, Washington, DC, for Plaintiff.

Andrew Robert de Holl, Jacqueline LaPan Edgerton, US Attorneys Office, Charleston, SC, Shampa A. Panda, Jessica Held, US Department of Justice (ENRD), Environment and Natural Resources Division, Washington, DC, for Defendant.

J. Ashley Twombley, Lee Anne Walters, Twenge and Twombley, Beaufort, SC, Julius M. Redd, Pro Hac Vice, Wilson Parker Moore, Pro Hac Vice, Beveridge and Diamond PC, Washington, DC, for Intervenor/Defendant.

ORDER

Bruce H. Hendricks, United States District Judge

This is an action filed by Plaintiff Defenders of Wildlife ("Plaintiff" or "Defenders"), challenging Defendant U.S. Fish and Wildlife Service's ("Defendant" or "Service") alleged allowance of commercial harvesting of horseshoe crabs from the Cape Romain Wildlife Refuge ("Cape Romain" or "Refuge") in violation of: (1) the National Wildlife Refuge System Improvement Act of 1997 ("Refuge Improvement Act"), 16 U.S.C. §§ 668dd – 668ee, (2) the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 – 44, and (3) the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. §§ 703 – 12.

PROCEDURAL BACKGROUND

Plaintiff filed its complaint on October 19, 2020, asserting the following seven claims against the Service:

(1) violation of the Refuge Improvement Act for failure to make a compatibility determination for commercial horseshoe crab harvesting in Cape Romain;

(2) violation of the Refuge Improvement Act for failure to issue a special use permit for commercial activity on the Refuge;

(3) violation of the Refuge Improvement Act for failing to provide for conservation and undermining the purposes of the Refuge;

(4) violation of the ESA for failure to consult with the appropriate wildlife agency on horseshoe crab harvesting authorization;

(5) violation of the ESA for failure to reinitiate consultation on the Cape Romain Comprehensive Conservation Plan after the rufa red knot ("red knot") shorebird and loggerhead sea turtle were listed as threatened species;

(6) violation of the ESA for the unpermitted "take" of the red knot; and

(7) violation of the MBTA based on the death of migratory shore birds due to horseshoe crab harvesting on the Refuge.

(See ECF No. 1.)

The Service filed a motion for an extension of time to respond to Plaintiff's complaint, which the Court granted, giving the Service until January 18, 2021, to respond. Before the Service responded to Plaintiff's complaint, however, Charles River Laboratories International, Inc. ("Charles River Labs"), which relies on the harvest of horseshoe crabs in South Carolina and uses the bacteria-detecting Limulus Amebocyte Lysate ("LAL") in the horseshoe crabs’ blood to test the safety of injectable pharmaceutical drugs and vaccines, filed a motion to intervene. The Court granted Charles River Labs’ motion as unopposed on February 3, 2021.

On January 18, 2021, the Service responded to Plaintiff's complaint by filing a motion to dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. In its motion, the Service asserts that the State of South Carolina, and not the Service, authorizes the harvesting of horseshoe crabs on the Refuge, and that the Service has not taken any final agency action authorizing the commercial harvesting of horseshoe crabs on the Refuge.

On March 3, 2021, Charles River Labs filed a motion for judgment on the pleadings, raising many of the same arguments the Service raised in its motion to dismiss but going one step further by arguing that the Service has absolutely no jurisdiction to regulate the commercial harvesting of horseshoe crabs on the Refuge because the State of South Carolina reserved the "exclusive" right to regulate such activity through state-issued permits.

On March 5, 2021, almost five months after filing its complaint, Plaintiff filed a motion for preliminary injunction. In its motion, Plaintiff seeks a preliminary injunction with respect to the first five claims in its complaint, which address the Service's alleged violations of the Refuge Improvement Act and the ESA. Specifically, Plaintiff seeks an order (1) temporarily enjoining the Service from allowing commercial horseshoe crab harvesting within Cape Romain until it can remedy the statutory violations identified in Claims 1-5 and (2) temporarily enjoining Charles River Labs and its contractors and agents from harvesting or purchasing horseshoe crabs from Cape Romain.

The Court held a video hearing on Plaintiff's motion for preliminary injunction on April 15, 2021, and took the matter under advisement. At the conclusion of the hearing, the Court asked Plaintiff to submit a proposed order, which Plaintiff did the same day. The Court gave the Service and Charles River Labs until April 23 to comment on the contents of Plaintiff's proposed order, and both the Service and Charles River Labs did so on April 23.

On April 22, 2021, however, the State of South Carolina, ex rel. Alan Wilison, Attorney General ("the State"), filed a motion to intervene in this case as a matter of right or, in the alternative, permissively, pursuant to Rule 24(a) and (b) of the Federal Rules of Civil Procedure. In its motion, the State asks the Court to defer ruling on Plaintiff's motion for preliminary injunction until the Court rules on the State's motion to intervene (and permits the State to respond to the motion, should the Court grant the motion to intervene).¹

Plaintiff immediately responded to the State's motion to intervene, first objecting to the State's request for deferral of a ruling on Plaintiff's motion for preliminary injunction. Plaintiff filed a subsequent response on May 6, 2021, specifically objecting to the State's request to intervene. In essence, Plaintiff asserts that the State did not timely submit its motion to intervene because it learned of the case when it was filed in October of 2020.

The aforementioned matters are ripe for the Court's review, and for the reasons set forth on the record during the hearing on April 15, 2021, and for the additional reasons set forth herein, the Court denies the Service's motion to dismiss; the Court denies without prejudice Charles River Labs’ motion for judgment on the pleadings; the Court grants in part Plaintiff's motion for a preliminary injunction; and the Court grants the State's motion to intervene but denies the State's request that the Court defer ruling on Plaintiff's motion for preliminary injunction.

FACTUAL BACKGROUND

Cape Romain, which is located in Charleston County, South Carolina, was created by Congress in 1932 "for use as an inviolate sanctuary, or for any other management purpose, for migratory birds." 16 U.S.C. § 715d. Pursuant to the Refuge Improvement Act, Cape Romain is now administered by the Secretary of the Interior and the United States Fish and Wildlife Service as part of the National Wildlife Refuge System. Through various acquisitions since its inception, Cape Romain has grown to include approximately 66,000 acres, primarily composed of bays and estuarine emergent wetlands, with barrier islands that run along 22 miles of the South Carolina coast. (ECF No. 1-2 at 24, 33 (Cape Romain National Wildlife Refuge 2010 Comprehensive Conservation Plan ("CCP")).) One such acquisition occurred in 1991, when the federal government entered into a 99-year lease ("1991 Lease") with the State of South Carolina acquiring:

all of the State of South Carolina's interest in all marsh lands, sand banks, shores, edges, lands uncovered by water at low tide, and all water bottoms and waters which are included within the boundaries of the [Refuge], or which are contiguous and adjacent to the easterly boundary and fronting on the Atlantic Ocean at mean low tide.

(ECF No. 1-1.) Importantly, the 1991 Lease specifically provides that it is "subject to [ ] [t]he right of the State of South Carolina to authorize the taking of shellfish, finfish, and other salt water species within the refuge boundary." (Id. )

Among other species listed in the Endangered Species Act, the threatened red knot, the threatened piping plover, and the threatened Northwest Atlantic Ocean Distinct Population Segment ("DPS") of the loggerhead sea turtle all reside in Cape Romain. Between approximately April and June of each year, horseshoe crabs spawn on the beaches of Cape Romain's islands, where the red knot and other migratory birds rely on the crabs’ nutrient-rich eggs as a critical food source during their northward migration from South America to the Arctic.²

In this action, Plaintiff contends that since at least 2014 the Service has allowed and facilitated the commercial harvesting of horseshoe crabs in the intertidal zone of the Refuge's islands by harvesters contracted by Charles River Labs, which relies on the harvest of horseshoe crabs in South Carolina and uses the LAL in the crabs’ blood to test the safety of injectable pharmaceutical drugs and vaccines.³ Plaintiff alleges that the commercial horseshoe crab harvesting imperils the threatened red knot, which has been visiting the Refuge in declining numbers in recent years, and that the harvesting also imperils the piping plover population, as the bird is sensitive to human disturbances. In addition, Plaintiff asserts that the commercial harvesting negatively impacts the endangered Northwest Atlantic Ocean DPS of the loggerhead sea turtle, which relies on horseshoe crabs as a source of prey. Overall, Plaintiff asserts that commercial horseshoe crab harvesting by Charles River Labs’ contractors and/or agents has adversely affected the above-mentioned threatened species’...