Friends of Animals v. Williams

• Court: U.S. District Court — District of Columbia
• Writing for the Court: RUDOLPH CONTRERAS, United States District Judge
• Docket Number: Civil Action 21-2081 (RC)
• Decision Date: 10 July 2024
• Citation: Friends of Animals v. Williams, Civil Action 21-2081 (RC) (D. D.C. Jul 10, 2024)
• Parties: FRIENDS OF ANIMALS, Plaintiff, v. MARTHA WILLIAMS, et al., Defendants.
• topic: Administrative Law,Environmental Law,Civil Procedure

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FRIENDS OF ANIMALS, Plaintiff, v. MARTHA WILLIAMS, et al., Defendants.

Civil Action No. 21-2081 (RC)

United States District Court, District of Columbia

July 10, 2024

Re Document Nos.: 28, 29

MEMORANDUM OPINION

Granting in Part and Denying in Part Plaintiff's Motion for Summary Judgment; Granting in Part and Denying in Part Defendants' Motion for Summary Judgment

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff Friends of Animals filed this suit in order to ask the Court to set aside the United States Fish and Wildlife Service's (the “Service”) decision to list a rare species of parrot as merely threatened, rather than fully endangered, as well as the Service's corresponding decision to allow limited import, export, and interstate trade of the bird without an Endangered Species Act permit. Generally speaking, Friends of Animals alleges that the Service's decisions violated the Administrative Procedure Act (“APA”) and the Endangered Species Act (“ESA”). The parties have cross-moved for summary judgment. For the reasons that follow, the Court grants in part and denies in part Plaintiff's motion for summary judgment, and grants in part and denies in part the Service's motion for summary judgment.

II. BACKGROUND

A. The Endangered Species Act

Congress enacted the ESA “to conserve species and their ecosystems, 16 U.S.C. § 1531(b), and to ‘halt and reverse the trend toward species extinction, whatever the cost.'” Ctr. for Biological Diversity v. E.P.A., 56 F.4th 55, 61 (D.C. Cir. 2022) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978)). The ESA requires the Secretary of the Interior to maintain a list of all “species” she determines to be “endangered” or “threatened.” 16 U.S.C. § 1533(c)(1). A “species” can be broad or narrow; as relevant here, it can “include[] any subspecies of . . . wildlife . . ., and any distinct population segment of any species of . . . wildlife which interbreeds when mature.” Id. § 1532(16). The ESA defines an “endangered” species as one “which is in danger of extinction throughout all or a significant portion of its range,” id. § 1532(6), and a “threatened” species as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range,” id. § 1532(20). The Secretary of the Interior has delegated her responsibility for determining whether terrestrial species are endangered or threatened to the Service. See Ctr. for Biological Diversity v. Haaland, No. 20-cv-573, 2023 WL 2401662, at *1 n.4 (D.D.C. Mar. 8, 2023).

The ESA allows any “interested person[s]” to petition the Service to list a species as endangered or threatened. 16 U.S.C. § 1533(b)(3)(A); see N.M. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., No. 21-cv-3263, 2024 WL 894911, at *2 (D.D.C. Feb. 28, 2024). Once an interested party submits a petition to list a species, the Service has ninety days to determine “whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” 16 U.S.C. § 1533(b)(3)(A). If the Service decides that the petition meets this standard, it then has twelve months to “review . . . the status of the species concerned” and determine whether an endangered or threatened listing is warranted. Id. § 1533(b)(3)(A)-(B). If such listing is warranted, the Service is required to publish in the Federal Register “a proposed regulation to implement” the listing, and the agency must also give the public an opportunity to comment on the proposal. Id. § 1533(b)(3)(B)(ii), (b)(5). Within one year of publishing the proposed rule, the Service must publish a final regulation placing the species on the endangered or threatened list, withdraw the proposed rule, or provide notice that an extension of up to six months is required. Id. § 1533(b)(6)(A)-(B).

Section 4(a)(1) of the ESA requires the Service to assess five factors in determining whether to list a species as endangered or threatened, any one of which may provide a sufficient basis upon which the Service may conclude that a species should be so listed. See Defs. of Wildlife v. Zinke, 849 F.3d 1077, 1079 (D.C. Cir. 2017). Those factors are: “(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; [and] (E) other natural or manmade factors affecting its continued existence.” 16 U.S.C. § 1533(a)(1). In evaluating these factors, the Service is required to act “solely on the basis of the best scientific and commercial data available . . . after conducting a review of the status of the species and after taking into account those efforts, if any,” by any government “to protect such species.” Id. § 1533(b)(1)(A); see Defs. of Wildlife, 849 F.3d at 1079.

A species listed as endangered receives more statutory protections than one listed as threatened. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., No. 21-cv-791, 2023 WL 6388936, at *1 (D.D.C. Sept. 30, 2023). That is because “[w]hen a species is listed as endangered, several statutory prohibitions automatically apply to it,” id., such as “laws prohibiting trade or taking (e.g., hunting, killing, capturing) of the species,” Friends of Animals v. Williams, 628 F.Supp.3d 71, 73 (D.D.C. 2022); see 16 U.S.C. § 1538(a)(1)(A)-(F).

By contrast, when a species is listed as threatened, the Service may, but is not required to, apply the prohibitions outlined in 16 U.S.C. § 1538(a)(1) to the threatened species. See Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1, 3 (D.C. Cir. 1993); see also 16 U.S.C. § 1533(d) (“Whenever any species is listed as a threatened species . . ., the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title.”). Acting pursuant to its authority under Section 4(d), the Service has issued a blanket regulation that “extend[s] the 16 U.S.C. § 1538(a)(1) prohibitions as to endangered species to all threatened species as well.” Sweet Home, 1 F.3d at 5; see 50 C.F.R. § 17.31(a). The Service reserved the right, however, to create species-specific “special rule[s],” Safari Club Int'l v. Zinke, 878 F.3d 316, 322 (D.C. Cir. 2017), which may withdraw particular protections that would otherwise apply to the threatened species by virtue of the automatic extension, Sweet Home, 1 F.3d at 5 (explaining that the Service “established a regime in which the prohibitions established for endangered species are extended automatically to all threatened species by a blanket rule and then withdrawn as appropriate, by special rule for particular species and by permit in particular situations”).

B. Factual and Regulatory Background

The scarlet macaw (Ara macao) “is one of several large neotropical parrot species commonly referred to as macaws.” Listing the Scarlet Macaw (“2019 Final Rule”), 84 Fed.Reg. 6,278, 6,284 (Feb. 26, 2019). As the name suggests, scarlet macaws “are brilliantly colored and predominantly scarlet red,” with red, yellow, blue, and green bands of color on their wings. Id. There are two different subspecies of scarlet macaw: a northern subspecies and a southern one. Id. The northern subspecies (Ara macao cyanoptera) lives in Mexico, Guatemala, Nicaragua, Honduras, Isla Coiba in Panama, and the Caribbean slope of Costa Rica. Id. The southern species (A. m. macao) ranges from the Pacific slope of Costa Rica southward through parts of Panama and into South America. Id. The southern subspecies consists of two distinct population segments (“DPS”) based on genetic differences. See id. The Northern DPS inhabits the Pacific slope of Costa Rica, mainland Panama, and northwest Colombia. Id. The Southern DPS is made up of scarlet macaws across the remainder of the birds' South American range, including parts of Colombia to the south and east of the Andes Mountains, Ecuador, Peru, Venezuela, Suriname, Guyana, French Guiana, Bolivia, and Brazil.^[1] Id. at 6,284, 6,286.

1. 2012 Proposed Rule

In 2008, Friends of Animals, an animal advocacy organization petitioned the Service to list all scarlet macaws as protected under the ESA. Joint App. (“JA”) at FWS000035-37, ECF No. 33. After receiving Plaintiff's petition, the Service began the process of determining whether to list scarlet macaws-or the subspecies thereof-as endangered or threatened. See 16 U.S.C. § 1533(b)(3). That process initially culminated in a proposed rule in which the Service proposed listing both the northern subspecies and the Northern DPS as endangered. Listing the Scarlet Macaw (“2012 Proposed Rule”), 77 Fed.Reg. 40,222 (July 6, 2012).

In its proposed rule, and as relevant here, the Service assessed in detail the threats facing the Northern DPS pursuant to the factors enumerated in 16 U.S.C. § 1533(a)(1). See id. at 40,229-41, 40,243. The Service explained that “[t]he primary threats to the [N]orthern DPS [include] habitat loss, illegal capture for the pet trade, the inadequacy of regulatory mechanisms that address these threats, and small population size combined with the cumulative effects of threats.” Id. at 40,243. Regarding habitat loss, see 16 U.S.C. § 1533(a)(1)(A), the Service determined that “[h]abitat destruction and modification . . . in the form of deforestation and forest degradation are likely occurring in the range of two of the three populations in this region”: the southern Pacific coast of Costa Rica and Panama, see 2012...