Friends Animals v. Ross

• Decision Date: 26 August 2019
• Docket Number: No. 16-cv-1540 (DLF),16-cv-1540 (DLF)
• Citation: 396 F.Supp.3d 1
• Court: U.S. District Court — District of Columbia
• Parties: FRIENDS OF ANIMALS, et al., Plaintiffs, v. Wilber ROSS, in His Official Capacity as Secretary of the Department of Commerce, et al., Defendants.

396 F.Supp.3d 1

FRIENDS OF ANIMALS, et al., Plaintiffs,

v.Wilber ROSS,¹ in His Official Capacity as Secretary of the Department of Commerce, et al., Defendants.

No. 16-cv-1540 (DLF)

United States District Court, District of Columbia.

Signed August 26, 2019

Michael Ray Harris, Courtney Renee McVean, Jennifer Best, Friends of Animals, Centennial, CO, Samantha Ruscavage-Barz, Wildearth Guardians, Santa Fe, NM, for Plaintiffs.

Devon Lea Flanagan, Kristen Byrnes Floom, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge The National Marine Fisheries Service (the Service) determined in 2014 that the queen conch, a marine mollusk that inhabits the Caribbean Sea and the Gulf of Mexico, did not warrant listing as an endangered or threatened species under the Endangered Species Act (ESA). The plaintiffs, Friends of Animals (Friends) and WildEarth Guardians (WildEarth), challenge that listing decision as unlawful under § 706 of the Administrative Procedure Act (APA). They ask this Court to vacate the listing decision and order the Service to issue a new one within 60 days. The parties' cross-motions for summary judgment are before the Court. See Dkts. 20, 23. For the reasons that follow, the Court concludes that the Service erred in relying on a vacated agency policy in determining that no portion of the queen conch's range was significant. On that basis, the Court will grant plaintiffs' motion in part, deny the Service's motion, vacate the listing decision, and remand to the Service for further proceedings.

I. BACKGROUND

A. The Queen Conch

The Caribbean Sea and the Gulf of Mexico are home to "a large gastropod mollusk" that is shrouded in a "large, whorl-shaped shell with multiple spines at the apex and [a] pink interior of the shell lip." QC40000415.² This creature, called the queen conch (or Strombus gigas ), starts life as one of the several million eggs that an adult female lays each year. Id. ; QC40000417. A few days after they are laid, the eggs hatch as planktonic larva that float in the water column for fourteen to sixty days; many do not survive. Id. Those that do then settle either locally or elsewhere, depending on the currents, and bury into the sea floor. Id. They emerge about a year later as juveniles each with a shell about 2.5 inches long. Id. They become sexually mature at around four years old. Id. Left undisturbed, a healthy queen conch lives for about 30 years. Id.

The queen conch "is one of the most important fishery resources in the Caribbean." QC20000016. The demand for queen conch meat, from both the Caribbean markets and markets abroad, drives queen conch fishing activity. Id. Thanks to rising international demand, commercial catch rates have increased since the 1980s. Id. Queen conch exports peaked in the late 1990s but have since stabilized below those levels. QC20000016–17.

B. The Endangered Species Act and Related Regulations

The ESA exists to conserve endangered species, threatened species, and those species' ecosystems. 16 U.S.C. § 1531(b) ; see Tennessee Valley Auth. v. Hill , 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). A species is endangered if it "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is threatened if it "is likely to become an endangered species"—i.e. , be in danger of extinction—"within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20).

The ESA authorizes the Secretary of Commerce to determine whether a marine species like the queen conch warrants listing as endangered or threatened. Id. § 1533(a)(1). The Secretary has delegated this task to the Service. 50 C.F.R. § 402.01(b). The Service must base its listing determination on five listing factors: "(A) the present or threatened destruction, modification, or curtailment of [the species'] habitat or range; (B) overutilization [of the species] for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting [the species'] continued existence." Id.

In making a listing determination, the Service must first "conduct[ ] a review of the status of the species" and "take[ ] into account those efforts, if any, being made by any State or foreign nation ... to protect such species." 16 U.S.C. § 1533(b)(1)(A). And the Service must base its listing decision "solely on ... the best scientific and commercial data available." Id. ; see 50 C.F.R. § 424.11.

Any party can petition the Service to list a species. 16 U.S.C. § 1533(b)(3)(A). Once the Service receives a petition, it has 90 days to publish in the Federal Register a finding on whether the petition "presents substantial scientific or commercial information indicating that the petitioned action may be warranted." Id. If this "90-day finding" determines that the petition presents such information, the Service must "promptly commence" a status review of the species. Id. The Service then has 12 months to publish in the Federal Register a preliminary finding on whether listing the species is warranted. Id. § 1533(b)(3)(B). If this "12-month finding" concludes that listing is warranted, the Service has two options: (1) find that listing is warranted but "precluded by [other] pending [listing] proposals" and thus delay publishing a proposed listing rule; or (2) publish a proposed rule to list the species. Id. § 1533(b)(3)(B)(ii)–(iii). If the Service publishes a proposed listing rule, it has one year to choose from three options: (1) extend the one-year period, if there is substantial disagreement about the underlying data; (2) withdraw the proposed rule; or (3) publish a final listing rule. Id. § 1533(b)(6)(A)–(B).

C. The Petition to List the Queen Conch as Threatened or Endangered

WildEarth petitioned the Service on February 27, 2012 to list the queen conch as endangered or threatened under the ESA. QC10000055–76. The Service published a positive 90-day finding on August 27, 2012, determining that "there is substantial information indicating that the petitioned action may be warranted, based on the threats of overutilization for commercial, recreational, scientific or education purposes and other natural or manmade factors." 77 Fed. Reg. 51,763, 51,767. Based on this positive 90-day finding, the Service commenced a status review of the species. Id.

The status review started with "a biological review of the species' taxonomy, distribution, abundance, life history, biology, and available information on threats affecting the species' status." QC40000415. The Service compiled this information "into a status report." Id. Once it had completed the status report, the Service "established a group of biologists and marine mollusk experts" called the Extinction Risk Analysis (ERA) group. Id.

The ERA group "conduct[ed] a threats assessment for the queen conch, using information from the status report." Id. This threats assessment required each ERA group member to "independently evaluate the severity, scope, and certainty for [each] threat [to the queen conch] currently and in the foreseeable future." QC40000420. The ERA group members scored their "perceived severity of each threat" based on five levels of extinction risk, ranging from "no or very low risk" to "very high risk." Id.

To score and rank these threats, "[t]he ERA group used the ‘likelihood point’ method." Id. This method required each group member to distribute five "likelihood points" among the five levels of extinction risk for each threat. Id. A group member could assign, for example, two points to "very high risk" and three points to "increasing risk" for a particular threat. This approach let the team "express levels of uncertainty when assigning risk categories." Id. If the risk level was altogether "unknown," the group member was required to assign all five points to the "unknown" category. Id.

The ERA group's threats assessments were not "recommendations as to whether the species should be listed as threatened or endangered." Id. Each member instead "drew his or her own scientific conclusions, based on the information in the status report, about the risk of extinction faced by the queen conch under present conditions and in the foreseeable future based on an evaluation and assessment of threats." Id.

On top of the status report and the ERA group's assessment, the Service "undertook additional analysis to help [it] better consider the species' current status and extinction risk." QC40000415. "The Southeast Fisheries Science Center (SEFC) and the Southeast Region's Sustainable Fisheries Division (SFD) provided: (1) Queen conch abundance estimates; (2) a meta-analysis of factors affecting the status and health of queen conch; (3) mapping of queen conch densities and oceanographic currents for evaluating dispersal and recruitment of queen conch; and (4) a sustainability index." Id. The Service explained that because this information "was prepared after the extinction risk analysis was conducted" the "ERA group did not take into account this information." Id.

Based on the status report, the ERA group assessment, and the SEFC and SFD data and analysis, the Service evaluated "whether the queen conch qualifies for threatened or endangered status throughout all of a significant range" based on "any one or a combination of the [five listing] factors." Id. In doing so, it defined the "foreseeable future" to be "3 queen conch generations, or 15 years." QC40000419. And it "followed the final policy interpreting the phrase ‘significant portion of its range’ " to determine that no portion of the queen conch's range was significant. QC4000028–29.

The Service published its listing decision on November 5, 2014. 79 Fed. Reg. 65,628 (Nov. 5, 2014). It determined that "[b]ased on the best scientific and commercial information available ......