WildEarth Guardians v. Haaland

• Decision Date: 30 September 2021
• Docket Number: Civil Action 20-1035 (CKK)
• Parties: WILDEARTH GUARDIANS, Plaintiff v. DEB HAALAND[1], Secretary, U.S. Department of the Interior, et al., Defendants
• Court: U.S. District Court — District of Columbia

WILDEARTH GUARDIANS, Plaintiff
v.
DEB HAALAND^[1], Secretary, U.S. Department of the Interior, et al., Defendants

Civil Action No. 20-1035 (CKK)

United States District Court, District of Columbia

September 30, 2021

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY United States District Judge

Plaintiff WildEarth Guardians (“Plaintiff”) brings this action against Defendants Deb Haaland, in her official capacity as Secretary of the U.S. Department of the Interior (“Secretary”), Martha Williams, in her official capacity as Principal Deputy Director of the U.S. Fish and Wildlife Service, and the U.S. Fish And Wildlife Service (the “Service”) (collectively “Defendants”). Plaintiff petitioned the Service to list four freshwater aquatic species-the Rio Grande chub, the Rio Grande sucker, the sturgeon chub, and the sicklefin chub-as threatened or endangered species under the Endangered Species Act (“ESA”), 16 U.S.C. § 1533. Plaintiff's petitions triggered a 12-month statutory deadline for the Service to determine whether or not listing the species as threatened or endangered is “warranted.” 16 U.S.C. § 1533(b)(3). There is no dispute that the Service has failed to meet this 12-month deadline with respect to each petition. The only issue for the Court to decide is the appropriate remedy for the Service's failure to comply this statutory deadline.

Presently before the Court are Plaintiff's [21] Motion for Summary Judgment and Defendants' [23] Cross-Motion for Summary Judgment. Plaintiff seeks injunctive relief

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compelling the Service to complete and publish the 12- month findings and listing determinations for the four species at issue within nine months of the close of summary judgment briefing (or, October 8, 2021). Defendants argue that Plaintiffs proposed deadline is not practicable in light of staffing and budget constraints, the Service's workload, and its other listing priorities. Defendants indicate that pursuant to the Service's listing priorities, it intends to complete the 12-month findings for the Sicklefin Chub and Sturgeon Chub by September 30, 2023, and for the Rio Grande Chub and Rio Grande Sucker by June 14, 2024.

Upon review of the pleadings, ^[2] the relevant legal authority, and the record as a whole, the Court concludes that Defendants' proposed remedy is the more equitable solution. Accordingly, the Court DENIES Plaintiffs Motion for Summary Judgment to the extent it seeks injunctive relief compelling Defendants to issue 12-month findings within nine months of the close of summary judgment briefing. The Court GRANTS summary judgment to Defendants and shall order Defendants to comply with the dates they propose for determining whether or not listing the four fish species at issue as threatened or endangered is “warranted.”

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I. BACKGROUND

A. Statutory Background

The Endangered Species Act (“ESA”) “provide[s] a means whereby the ecosystem upon which endangered species and threatened species depend may be conserved” in an effort “to conserve endangered species and threatened species[.]” 16 U.S.C. § 1531(b), (c)(1). As the Supreme Court has explained, the “plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978). To accomplish this goal, the ESA provides two methods by which a species can be listed as “endangered” or “threatened”: the internal process and the petition process. 16 U.S.C. § 1533(a), (b)(3). The latter of those methods is implicated in this case.

Under the ESA, an interested citizen may petition the Service in accordance with 5 U.S.C. § 553(e) to list a species as endangered or threatened. 16 U.S.C. § 1533(b)(3). Upon receipt of a petition, the Secretary must, “[t]o the maximum extent practicable, within 90 days after receiving [the] petition . . . make a finding as to 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) (emphasis added). If the Service concludes in its “90-day finding” that the listing requested in the citizen's petition “may be warranted, ” then it must “promptly commence a review of the status of the species concerned.” Id. The statute then requires that, “[w]ithin 12 months after receiving a petition . . . present[ing] substantial information, ” that listing “may be warranted, ” the Service must make a finding that the petitioned action is: (a) warranted; (b) not warranted or (c) warranted but further action is precluded by other pending listing proposals and expeditious progress is being made to list and delist species (referred to as a “warranted but precluded”

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finding). § 1533(b)(3)(B)(i)-(iii). This so-called “12-month finding” must be made “solely on the basis of the best scientific and commercial data available to [the Secretary] 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 . . . to protect [the] species.” § 1533(b)(1)(A).

If the Service concludes in its 12-month finding that listing a species is “warranted, ” then the Service must publish a rule proposing the species' listing as endangered or threatened. § 1533(a)(3)(A), (b)(3)(B)(ii), (c). “Listing a species as threatened or endangered triggers substantive and procedural protections under the ESA.” WildEarth Guardians v. Haaland, __F.Supp.3d __, 2021 WL 4263831, at *1 (C.D. Cal. Sept. 20, 2021) (citing 16 U.S.C. §§ 1536, 1538). If the Service concludes that the petitioned action is “not warranted, ” the listing process terminates. The Service's conclusion that a petitioned listing is “warranted but precluded, ” means that listing the species is warranted, but “the immediate proposal and timely promulgation of a final regulation implementing the petitioned action. . . is precluded by pending proposals to determine whether any species is an endangered species or a threatened species” and that “expeditious progress is being made to add qualified species” to the lists of threatened and endangered species, and to remove species that are no longer qualified. § 1533(b)(3)(B)(iii). Species for which the proposed listing is deemed “warranted but precluded” are also referred to as “candidate species.” See Defs.' Cross-Mot. & Opp'n at 4.

Pursuant to the ESA's provision for “citizen suits, ” “any person may commence a civil suit on his own behalf . . . against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary. “ 16 U.S.C. § 1540(g)(1)(C). “This includes an injunctive action to force the Secretary to comply with the above deadlines.” Ctr. for Biological Diversity v. Haaland, No. 20 C 1227,

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2021 WL 4169567, at *2 (N.D. Ill. Sept. 14, 2021). This provision grants federal district courts jurisdiction “to enforce any such provision . . . or to order the Secretary to perform such act or duty, as the case may be.” § 1540(g)(1).

B. Factual Background

Plaintiff WildEarth Guardians is a non-profit, 501(c)(3) membership organization with approximately 275, 000 members nationwide. Compl. ¶ 9, ECF No. 1. Plaintiff filed four petitions^[3] with the Service, seeking to list four species as threatened or endangered under the ESA. Id. ¶¶ 33, 44, 51. The Court shall first address the factual background regarding each petition, and then shall present background information about the Service's present caseload and its process to address a significant backlog of listing petitions.

1. Plaintiff's Petitions to List Species as Threatened or Endangered

a. Rio Grande Chub

The Rio Grande Chub (Gila pandora) is a small fish located primarily in the Rio Grande Basin in Colorado, New Mexico, and Texas. FWS0029.^[4] Plaintiff submitted a petition to list the Rio Grande Chub as “threatened” or “endangered” to the Service on September 27, 2013. See FWS0028-48. Plaintiff indicated in its petition that listing the Rio Grande Chub as “threatened or endangered” is “necessary to prevent its extinction, ” due to “the multiple and cumulative threats of habitat destruction and modification, predation from non-native species, and climate change. FWS0044.

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The Service received Plaintiff's petition to list the Rio Grande Chub on September 30, 2013. FWS0049; see Defs.' Cross-Mot. & Opp'n Ex. C, Declaration of Shawn Sartorius (“Sartorius Decl.”) ¶ 5, ECF No. 23-4. On March 16, 2016, the Service published its 90-day finding, concluding that Plaintiff's petition to list the Rio Grande Chub as endangered or threatened presented substantial scientific and commercial evidence indicating that the species “may warrant” protection under the ESA. See FWS0049, 0056 FWS0070. To date, the Service has not made a 12-month finding. See Answer ¶ 34, ECF No. 13 (admitting that Defendants have not completed 12-month finding for the Rio Grande Chub). The Service's deadline to issue its 12-month finding was September 30, 2014, § 1533(b)(3)(B), meaning that its determination is now seven years overdue.

b. Rio Grande Sucker

The Rio Grande Sucker (Catostomus plebeuis) is a fish found in the Rio Grande River and its tributaries in southern Colorado, New Mexico, and Mexico. FWS0075. Plaintiff submitted a petition to list the Rio Grande Sucker as “threatened” or...