Friends of Animals v. Williams
| Docket Number | Civil Action No.: 21-2081 (RC) |
| Decision Date | 29 August 2022 |
| Citation | 628 F.Supp.3d 71 |
| Parties | FRIENDS OF ANIMALS, Plaintiff, v. Martha WILLIAMS, et al., Defendant. |
| Court | U.S. District Court — District of Columbia |
Jennifer Best, Stephen Russel Hernick, Friends of Animals, Centennial, CO, for Plaintiff.
Shampa Panda, U.S. Department of Justice Wildlife and Marine Resources, Washington, DC, for Defendant.
GRANTING IN PART DEFENDANTS' MOTION FOR VOLUNTARY REMAND WITHOUT VACATUR
Plaintiff Friends of Animals filed this suit in order to ask the Court to set aside the United States Fish and Wildlife Service's decision to list a rare species of parrot as merely threatened, rather than fully endangered, and to allow limited import and export of the bird without an Endangered Species Act permit. Fish and Wildlife and its Principal Deputy Director now ask the Court to remand the challenged decisions for reconsideration after an intervening district court decision suggested that Fish and Wildlife's original analysis may have been incomplete. The Court agrees that remand is appropriate, and concludes that the equities do not weigh in favor of vacating the permit-free trade rule during the remand. However, the Court will retain jurisdiction over the action to ensure that the remand reconsideration proceeds apace and to facilitate speedy resolution of any of Friends of Animals's claims that a remand does not moot.
A.m. macao, the southern subspecies of the scarlet macaw, is a type of "large neotropical parrot species, with an average length of 89 centimeters." Compl. ¶¶ 1, 63. The southern subspecies consists of two distinct population segments ("DPS"), the Northern DPS and the Southern DPS. See id. ¶¶ 1, 113. The range of the Northern DPS extends across "mainland Panama, northwest Colombia," and certain portions of Costa Rica. Id. ¶ 70.
In 2008, Friends of Animals, an animal advocacy organization, petitioned the United States Fish and Wildlife Service to list the Northern DPS as protected under the Endangered Species Act ("ESA"). Id. ¶¶ 20, 77. This kicked off a process in which Fish and Wildlife examined whether the Northern DPS merited listing under the ESA and, if so, whether it should be listed as endangered or merely threatened. An endangered species is one that is "in danger of extinction throughout all or a significant portion of its range," while a threatened species is one that is "likely to become an endangered species within the foreseeable future." Id. ¶ 29 (quoting 16 U.S.C. § 1532(6), (20)). Once listed as endangered, a species automatically benefits from a variety of laws prohibiting trade or taking (e.g., hunting, killing, capturing) of the species. Id. ¶ 52; Mem. Supp. Federal Defs.' Mot. Voluntary Remand Without Vacatur at 4 ("Mem."), ECF No. 17 (collecting citations). Section 4(d) of the ESA leaves the protections applicable to merely threatened species to the discretion of Fish and Wildlife, which may by regulation apply to a particular threatened species any of the protections that would apply were the species listed as endangered. Mem. at 4 (citing 16 U.S.C. § 1533(d)). For all species listed before September 26, 2019, Fish and Wildlife issued a "blanket protection" regulation that automatically extends to threatened species the import/export and "take" regulations applicable to endangered species. Compl. ¶ 54; 50 C.F.R. § 17.31(a). However, for any particular threatened species, Fish and Wildlife may issue a "special rule" specifying the specific protections and prohibitions that apply. Compl. ¶ 54 (citing 50 C.F.R. § 17.31(c)).
Friends of Animals's 2008 petition eventually culminated in Fish and Wildlife's 2012 decision to list the Northern DPS as endangered because of habitat loss, poaching, and the inadequacy of existing regulations to address these threats. Id. ¶¶ 79, 82, 111. However, after a notice-and-comment rulemaking process commenced in 2016, Fish and Wildlife downgraded the listing of the Northern DPS from endangered to threatened on February 26, 2019. Id. ¶¶ 112, 116. Fish and Wildlife explained that it had reviewed additional information since the 2012 listing that "indicate[d] the populations in Costa Rica in the northern DPS of the southern subspecies of scarlet macaw (A. m. macao) are likely increasing." Endangered and Threatened Wildlife and Plants; Listing the Scarlet Macaw, 84 Fed. Reg. 6278, 6279, 6281 (Feb. 2016, 2019).
In conjunction with downgrading the Northern DPS to threatened status, Fish and Wildlife issued a species-specific Section 4(d) rule, which, under certain circumstances, allows the import and export of Northern DPS macaws without an ESA permit. Specifically, a Northern DPS macaw may be imported or exported without an ESA permit if it was held in captivity prior to the date of the listing of the species or was bred in captivity and is importable or exportable under the terms of the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES") and the Wild Bird Conservation ACT ("WBCA"). 84 Fed. Reg. at 6309. Additionally, certain interstate commercial activities are allowed without an ESA permit. Decl. Gary Frazer ¶¶ 24, 30 ("Frazer Decl."), ECF No. 18-1.
Friends of Animals filed suit against Fish and Wildlife and Martha Williams, FWS's Principal Deputy Director (together, "FWS"), seeking vacatur of FWS's finding that the Northern DPS should be listed as threatened (the "Threatened Finding") and of the Section 4(d) rule. Compl. at 23. The Complaint includes two counts, one alleging that the Threatened Finding violates the ESA and is arbitrary and capricious under the Administrative Procedure Act ("APA") and one alleging that the Section 4(d) rule violates the ESA and is arbitrary and capricious under the APA. Id. ¶¶ 171-74. In support of these claims, Friends of Animals pointed to the following five alleged shortcomings in FWS's decisionmaking process:
After filing and then withdrawing a motion to dismiss, the government now moves for voluntary remand of the Threatened Finding and the Section 4(d) rule so that it can further consider the impact of a decision from another court in this district, Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020), that came down after FWS issued the Threatened Finding and the Section 4(d) rule. Mem. at 10. To explain, the ESA provides that 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) (emphasis added). Before Center for Biological Diversity, FWS's policy was to, as a first step, determine if a species was endangered or threatened throughout all of its range. Ctr. for Biological Diversity, 435 F. Supp. 3d at 89. If the answer was yes, the species was either endangered or threatened throughout all of its range, FWS would simply list the species as either endangered or threatened and not go forward with analyzing whether the species was endangered or threatened in any particular significant portion of its range ("SPR"). Thus, if FWS determined at the first step that a species was threatened throughout its entire range, it would not analyze whether the species, while merely threatened throughout its entire range, was endangered in a significant portion of its range. Id. at 89-92. The court in Center for Biological Diversity held that this policy (the "2014 SPR Policy") was inconsistent with the ESA's plain text, which requires FWS to evaluate whether a species should be listed as endangered because it is in danger of extinction in any significant portion of its range. Id. at 93, 98. In other words, Center for Biological Diversity suggests that Friends of Animals may very well be right about one of its claims: that the Threatened Finding rested on incomplete analysis because "FWS utterly failed to consider whether the Northern DPS is endangered in a significant portion of its range." Opp'n at 7.
In response to this intervening legal development, FWS moves for voluntary remand of the Threatened Finding and the "accompanying" Section 4(d) rule in order to "reconsider its SPR analysis based on the plain language of the ESA" and Center for Biological Diversity and to solicit notice and comment on these issues. Mem. at 10-11. Friends of Animals opposes a remand, and in the alternative argues that any remand should be accompanied by vacatur of the Section 4(d) Rule. Opp'n at 10-21. The parties also dispute what sort of schedule should govern any remand. Id. at 22-24; Mem. at 21-22.
The standards courts rely on to guide their discretion whether to grant an agency defendant's voluntary remand motion generally favor remand. "Usually, courts 'grant an agency's motion to remand so long as the agency intends to take further action with respect to the original agency decision on review.' " Rural...
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