S.F. Baykeeper v. United States Fish & Wildlife Serv.
| Decision Date | 05 August 2021 |
| Docket Number | 21-cv-02566-JCS |
| Parties | SAN FRANCISCO BAYKEEPER, Plaintiff, v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
ORDER DENYING MOTION TO INTERVENE AND MOTION TO DISMISS RE: DKT. NOS. 13, 15
Plaintiff San Francisco Baykeeper (“Baykeeper”) brings this action against the United States Fish and Wildlife Service (“the Service”); Martha Williams, in her official capacity as Principal Deputy Director of the Service; and Debra Haaland (“the Secretary”), in her official capacity as Secretary of the United States of the Interior (collectively, “Federal Defendants”). Baykeeper alleges that Federal Defendants violated the Administrative Procedure Act (“APA”) by arbitrarily and capriciously finding under the Endangered Species Act (“ESA”) that: (1) listing of the Longfin Smelt (Spirinchus thaleichthys) (San Francisco Bay-Delta distinct vertebrate population segment) (“Longfin Smelt DPS”) as threatened or endangered is warranted but precluded by higher-priority listing actions; and (2) expeditious progress is being made to add or remove species from the endangered and threatened species lists. Baykeeper alleges that both findings are an abuse of the Service's discretionary decision-making powers. Presently before the Court are: (1) a Motion to Intervene by Westlands Water District (“Motion to Intervene); and (2) Federal Defendants' Motion to Dismiss (“Motion to Dismiss”). A hearing on the motions was held on July 30, 2021 at 9:30 a.m. For the reasons discussed below, both motions are DENIED.[1]
The ESA was enacted for the purpose of “providing] a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, ” and “providing] a program for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b). It affords a range of protections for species that are listed as endangered or threatened. See 16 U.S.C. § 1533. “The term ‘endangered species' means any species which is in danger of extinction throughout all or a significant portion of its range . . . .†16 U.S.C. § 1532(6). “The term ‘threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.†16 U.S.C. § 1532(20). “The term ‘species' includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.†16 U.S.C. §1532(16).
“The ESA requires the Service to identify and list species that are ‘endangered' or ‘threatened.'” Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1137-38 (9th Cir. 2007) (citing 16 U.S.C. § 1533). The Service may list a species on its own initiative through “notice-and-comment rule-making.” Id. (citing 16 U.S.C. § 1533(b)(5)). In the alternative, any interested person may petition the Service to list a species under the APA. Id. (citing 5 U.S.C. § 553(e); 16 U.S.C. § 1533(b)(3)(A)). The Service then must determine within 90 days, “[t]o the maximum extent practicable, ” whether the petition is supported by “substantial scientific or commercial information.” 16 U.S.C. § 1533(b)(3)(A). If the Service finds that it is, it must “commence a review of the status of the species concerned.” Id. The Service must make a finding on the status of the species within twelve months and publish its finding (“the 12-month finding”) in the Federal Register. 16 U.S.C. § 1533(b)(3)(B). The Service is required to make its decision
“solely on the basis of the best scientific and commercial data available.” 16 U.S.C. § 1533(b)(1)(A). In the 12-month finding, the Service must determine whether the listing is: (1) “warranted”; (2) “not warranted”; or (3) “warranted but precluded by pending proposals to determine whether any species is an endangered species or a threatened species.” 16 U.S.C. § 1533(b)(3)(A)-(B). If the Service finds that a petitioned action is warranted, it must promptly publish a proposed regulation to implement its finding. 16 U.S.C. § 1533(b)(3)(B)(ii).
The Service may find that a petitioned action is warranted but precluded on the basis that “timely promulgation of a final regulation implementing the petitioned action… is precluded by pending proposals… and expeditious progress is being made to add qualified species.” 16 U.S.C § 1533(b)(3)(B)(iii). Warranted-but-precluded findings are subject to judicial review. 16 U.S.C. § 1533(b)(3)(C)(ii). Under the ESA, when a party commences a civil suit against the Secretary of the Interior alleging a failure to perform a non-discretionary act or duty pursuant to § 1533, the suing party must commence the action at least 60 days after written notice has been given to the Secretary. 16 U.S.C. § 1540(g)(2)(C).
The Service considers five factors in determining whether a species or distinct population segment should be listed: “(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; or (E) other natural or manmade factors affecting its continued existence.” 16 U.S.C. § 1533(a)(1). The ESA requires that the Service “shall make determinations required by subsection (a)(1) of this section 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, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas.” 16 U.S.C.A. § 1533(b)(1)(A). Where a species is found to be threatened or endangered, it is included in a list published in the Federal Register that specifies “over what portion of its range it is endangered or threatened, and . . . any critical habitat within such range.” 16 U.S.C. § 1533(c)(1).
The APA affords a right to seek judicial review of agency action to a person who suffers a legal wrong or is “adversely affected or aggrieved” by that action “within the meaning of the relevant statute.” 5 U.S.C. § 702. 5 U.S.C. § 706.
Baykeeper is a non-profit public benefit corporation located in Oakland, California with the mission of protecting the ecosystems and communities of the San Francisco Bay. Complaint ¶ 11. As part of this mission, Baykeeper seeks to protect the habitat of the Longfin Smelt DPS, a fish with a distinct population found in the San Francisco Bay Estuary (“Estuary”). Id. at ¶ 3. Due to “excessive water diversions and drastically reduced freshwater flow into San Francisco Bay, ” the Longfin Smelt will likely go extinct if the species is not quickly given a protected status under the ESA. Id. at ¶ 40. The Longfin Smelt DPS's Estuary population has decreased by 80 percent since the species was listed as threatened by the state of California in 2009, and, as of 2020, population levels in the Estuary were at less than .1 percent of what they were in 1967. Id. The success of the Longfin Smelt DPS's Estuary population is a consequence of the amount of fresh water flowing from the Sacramento-San-Joaquin River Delta, with increased flow resulting in higher population abundance and decreased flow resulting in population declines. Id. at ¶ 41. The volume of this freshwater flow is affected by the requirements that the Service can impose on various resource management agencies. Id. at ¶ 6.
In November 1992, eight organizations-including Baykeeper-filed a petition requesting the Service list the Longfin Smelt as endangered or threatened. Id. at ¶ 42. Pursuant to the ESA, the Service published a 90-day finding that listing the Longfin Smelt may be warranted, triggering a formal status review. Id. at ¶ 42. The Service ultimately denied the petition based on a determination that the Longfin Smelt DPS was not a distinct population segment of Longfin Smelts. Id. at ¶ 42. In 2007, another petition was filed to list the Longfin Smelt as endangered and was subsequently denied. Id. at ¶ 43. In 2011, the Service announced that it would reconsider its decisions with respect to the Longfin Smelt DPS. Id. In 2012, the Service found that the Longfin Smelt DPS was a distinct population segment, that protection of its population was warranted, but that its listing was precluded because the listing of other species was a higher priority. Id. at ¶ 45.
Since its 2012 findings, the Service has made no progress with respect to listing the Longfin Smelt DPS as an endangered or threatened species, other than annually repeating its 2012 “warranted-but-precluded” determination. Id. at ¶ 46. The Service published National Listing Workplans in 2016 and 2019, each of which identified the Longfin Smelt as a species for which a final listing decision would be made-by the end of 2019 according to the 2016 Workplan and by the end of 2020 according to the 2019 Workplan. Id. at ¶ 47-48. The Service missed...
To continue reading
Request your trial