State v. Bernhardt

• Decision Date: 18 May 2020
• Docket Number: Case No. 19-cv-06013-JST
• Citation: 460 F.Supp.3d 875
• Court: U.S. District Court — Northern District of California
• Parties: State of CALIFORNIA, et al., Plaintiffs, v. David BERNHARDT, et al., Defendants.

460 F.Supp.3d 875

State of CALIFORNIA, et al., Plaintiffs,

v.David BERNHARDT, et al., Defendants.

Case No. 19-cv-06013-JST

United States District Court, N.D. California.

Signed May 18, 2020

Tara Lynn Mueller, George Matthew Torgun, California Office of the Attorney General, Oakland, CA, for Plaintiff State of California.

Matthew Ireland, Pro Hac Vice, Turner H. Smith, Massachusetts Attorney General's Office, Boston, MA, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff Commonwealth of Massachusetts.

Steven Jay Goldstein, Pro Hac Vice, Office of the Attorney General of Maryland, Baltimore, MD, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff State of Maryland.

Eric Reuel Olson, Pro Hac Vice, Office of the Attorney General, Denver, CO, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff State of Colorado.

Daniel Salton, Pro Hac Vice, CT Attorney General's Office, Hartford, CT, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff State of Connecticut.

Jason Elliott James, Pro Hac Vice, Illinois Attorney General's Office, Chicago, IL, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff State of Illinois.

Nathan A. Gambill, Pro Hac Vice, Lansing, MI, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for PlaintiffPeople of the State of Michigan.

Tori Nicole Sundheim, State of Nevada, Office of the Attorney General, Carson City, NV, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff State of Nevada.

Lisa Jo Morelli, Office of the Attorney General, Trenton, NJ, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff State of New Jersey.

William G. Grantham, Pro Hac Vice, NM Attorney General's Office, Albuquerque, NM, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff State of New Mexico.

George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiffs State of New York, State of North Carolina, State of Rhode Island, District of Columbia.

Paul Andrew Garrahan, Oregon Department of Justice Natural Resources Section, Salem, OR, Steven Novick, Oregon Department of Justice, Portland, OR, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff State of Oregon.

Aimee Diane Thomson, Pro Hac Vice, Pennsylvania Office of Attorney General Impact Litigation Section, Philadelphia, PA, Turner H. Smith, Pro Hac Vice, MA Office of the Attorney General, Boston, MA, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff Commonwealth of Pennsylvania.

Ryan Patrick Kane, Pro Hac Vice, Vermont Attorney General's Office, Montpelier, VT, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff State of Vermont.

Aurora Janke, Pro Hac Vice, Washington State Attorney General's Office, Seattle, WA, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff State of Washington.

Antonia Freire Pereira, NYC Law Department, New York, NY, George Matthew Torgun, Office of the Attorney General, Oakland, CA, for Plaintiff City of New York.

Gabe Johnson-Karp, Pro Hac Vice, State of Wisconsin Department of Justice, Madison, WI, for Plaintiff State of Wisconsin.

Peter N. Surdo, Pro Hac Vice, Office of the Minnesota Attorney General, Saint Paul, MN, for Plaintiff State of Minnesota.

Coby Healy Howell, U.S. Dept. of Justice, Portland, OR, Michael Richard Eitel, U.S. Department of Justice, Denver, CO, for DefendantsDavid Bernhardt, Wilbur Ross, United States Fish And Wildlife Service, National Marine Fisheries Service.

Tom Joel Boer, Hunton & Williams LLP, San Francisco, CA, for Defendant Utility Water Act Group.

ORDER DENYING MOTION TO DISMISS

Re: ECF No. 46

JON S. TIGAR, United States District JudgeBeforethe Court is U.S. Secretary of the Interior David Bernhardt, Secretary of Commerce Wilbur Ross, U.S. Fish and Wildlife Service, and National Marine Fisheries Service ("Federal Defendants")'s motion to dismiss.ECF No. 46.The Court will deny the motion.

I.BACKGROUND¹

A.Endangered Species Act

"The Endangered Species Act("ESA") was enacted in 1973 to prevent the extinction of various fish, wildlife, and plant species."Turtle Island Restoration Network v. Nat'l Marine Fisheries Serv. , 340 F.3d 969, 974(9th Cir.2003).The Act aims "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" and "to provide a program for the conservation of such endangered species and threatened species."16 U.S.C. § 1531(b).The ESA represents "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation."Tenn. Valley Auth. v. Hill , 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117(1978).It reflects "a conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies."Id. at 185, 98 S.Ct. 2279."The responsibility for administration and enforcement of the ESA lies with the Secretaries of Commerce and Interior, who have delegated the responsibility to the [National Marine Fisheries Service ("NMFS") ] with respect to marine species, and to the Fish and Wildlife Service ("FWS") with respect to terrestrial species."Turtle Island , 340 F.3d at 973-74(citing50 C.F.R. § 402.01 ).

To accomplish its purposes, the Act"sets forth a comprehensive program to limit harm to endangered species within the United States."California ex rel. Lockyer v. U.S. Dept. of Agriculture , 575 F.3d 999, 1018(9th Cir.2009).Section 4 of the Act requires NMFS and FWS (collectively "the Services") to identify endangered and threatened species and designate their "critical habitats."16 U.S.C. 1533(a)(1)-(3).Section 7"imposes a procedural duty on federal agencies to consult with either the [NMFS] or the FWS before engaging in a discretionary action, which may affect listed species."²Turtle Island , 340 F.3d at 974(citing16 U.S.C. § 1536(a)(2);50 C.F.R. §§ 402.14,402.01(b) ).This consultation procedure aims to allow the Services "to determine whether the federal action is likely to jeopardize the survival of a protected species or result in the destruction of its critical habitat, and if so, to identify reasonable and prudent alternatives that will avoid the action's unfavorable impacts."Id.(citing16 U.S.C. § 1536(b)(3)(A) ).Section 9 prohibits the "take"(e.g. killing, harassing, harming, or collecting) of listed endangered fish and wildlife species and prohibits other actions with respect to listed endangered plant species.16 U.S.C. §§ 1532,1538.Section 4(d) authorizes the extension of Section 9 prohibitions to threatened species.Id.§ 1533(d).

B.Regulatory History

During the 1980s, the Services adopted joint regulations for implementation of Sections 4and7 of the ESA.See, e.g. , 45 Fed. Reg. 13,010(Feb. 27, 1980);49 Fed. Reg. 38,900(Oct. 1, 1984);51 Fed. Reg. 19,926(June 3, 1986)."The Services have not substantially amended these regulations since that time, although the Services adopted minor amendments to the processes for listing species, designating critical habitat, and conducting section 7 consultations in 2015 and 2016."ECF No. 28 ¶ 106;see81 Fed. Reg. 7,439(Feb. 11, 2016);81 Fed. Reg. 7,214(Feb. 11, 2016);80 Fed. Reg. 26,832(May 11, 2015).

"On July 25, 2018, the Services published three separate notices in the Federal Register proposing to revise several key requirements of the ESA's implementing regulations."ECF No. 28 ¶ 107;83 Fed. Reg. 35,193(July 25, 2018)("Proposed Listing Rule");83 Fed. Reg. 35,178(July 25, 2018)("Proposed Interagency Consultation Rule");83 Fed. Reg. 35,174(July 25, 2018)("Proposed 4(d) Rule")(collectively, the "Proposed Rules").The three proposed regulatory changes sought to carry out Executive Order 13777, which directs federal agencies to eliminate allegedly "unnecessary regulatory burdens."ECF No. 28 ¶ 107;82 Fed. Reg. 12,285(Mar. 1, 2017)."The Services characterized the Proposed Rules as changes to assist and increase clarity and efficiency in implementation of the ESA."Id.After accepting comments on the proposed revisions, id.¶ 108, the Services issued three Final Rules: (1) the Listing Rule, 84 Fed. Reg. 45,020;(2) the Interagency Consultation Rule, 84 Fed. Reg. 44,976; and (3)the 4(d) Rule, 84 Fed. Reg. 44,753. Id.¶¶ 108-109.

C.Procedural Background

On September 25, 2019, the State of California, Commonwealth of Massachusetts, State of Maryland, State of Colorado, State of Connecticut, State of Illinois, People of the State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of New York, State of North Carolina, State of Oregon, Commonwealth of Pennsylvania, State of Rhode Island, State of Vermont, State of Washington, State of Wisconsin, District of Columbia, and City of New York(collectively "State Plaintiffs") brought this action to challenge the Services' decision to promulgate the Final Rules which allegedly "undermine key requirements of the [ESA]."³ECF No. 1;ECF No. 28 ¶ 1.The operative first amended complaint ("FAC") alleges that the Services' issuance of the Final Rules violates the ESA, the Administrative Procedure Act("APA"), and the National Environmental Policy Act ("NEPA").Id.¶ 2.In particular, the FAC alleges that in promulgating the Final Rules the Services (1)"acted in a manner that constituted an abuse of discretion, is not in accordance with law, and is in excess of the Services' statutory authority, in violation of the ESA and the APA,"16 U.S.C. §§ 1531,1532,1533,1536;5 U.S.C. § 706;(2)"acted in a manner that was arbitrary, capricious, an abuse of discretion, and not in accordance with law, and failed to follow the procedures required by law, in violation of the APA,"5 U.S.C. §§ 553,706; and (3) failed...