BERYL A. HOWELL, District Judge.
This case involves issues surrounding the most effective ways under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., to conserve three antelope species — the scimitar-horned oryx, dama gazelle, and addax — whose herds have dwindled, if not disappeared, from their native environments in North Africa. The U.S. Fish and Wildlife Service ("FWS"), which is vested with the authority to designate the three antelope species as endangered under the ESA, has spent two decades considering these issues with input from both commercial and non-profit groups interested in conserving the species for different ends. These efforts culminated with the issuance, in 2005, of two rules, one of which listed the three antelope species as endangered and the other of which provided a blanket exemption for U.S. captive-bred herds of the same species. In
This is a consolidated case with two sets of plaintiffs challenging two separate, but related, FWS final rules regarding the U.S. captive-bred populations of the three antelope species at issue.
The plaintiffs in Exotic Wildlife Association v. United States Department of the Interior, 12-cv-00340 ("EWA Action"), brought suit under the APA to challenge a final rule, see Removal of the Regulation that Excludes U.S. Captive-Bred Scimitar Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions ("Removal Rule"), 77 Fed.Reg. 431 (Jan. 5, 2012), which removed a 2005 regulation, see Exclusion of U.S. Captive-bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions ("Captive-bred Exemption"),
This Court denied the plaintiffs' motions for a preliminary injunction in the SCI Action and the EWA Action that would have essentially enjoined enforcement of the endangered species listing of the three antelope species pending the outcome of this litigation. See Safari Club Int'l v. Salazar, 852 F.Supp.2d 102, 103-04 ("SCI P.I. Decision")
Pending before the Court are ten motions: four motions in the SCI Action, namely (1) SCI's Motion for Summary Judgment, ECF No. 45, (2) Federal Defendants' Cross-Motion for Summary Judgment, ECF No. 68, (3) DOW Intervenor-Defendants' Cross-Motion for Summary Judgment, ECF No. 70, and (4) Defendant-Intervenor Friends of Animals' Cross-Motion for Summary Judgment, ECF No. 73; and six motions in the EWA Action, namely (1) EWA's Motion to Supplement the Administrative Record
The Court will address each set of motions in turn, first addressing the motions pending in the SCI Action and then proceeding to the motions pending in the EWA Action.
The Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., enacted in 1973, is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation" in the world. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Indeed, it is landmark legislation, the purpose of which is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section." 16 U.S.C. § 1531(b). A brief review of the history of the ESA is helpful in understanding the context of the plaintiffs' challenges to the Listing and Removal Rules.
The legislative history of the ESA reveals "[t]he long and painstaking development of the Federal endangered and threatened species program[.]" S.Rep. No. 97-418, at 3 (1982). The development of the program began in earnest in the 1960s, with the Endangered Species Preservation Act of 1966, which was the first comprehensive attempt at species conservation. See S.Rep. No. 97-418, at 1. That Act "[d]eclar[ed] the preservation of endangered species a national policy[.]" Tenn. Valley Auth., 437 U.S. at 174-75, 98 S.Ct. 2279. While "the 1966 Act was an important step toward conserving endangered species, it had serious drawbacks including its failure to prohibit the taking of endangered species." S.Rep. No. 97-418, at 2. Thus, Congress subsequently enacted the Endangered Species Conservation Act of 1969 to "correct[ ] several of the weaknesses of the 1966 Act." Id.; see also Tenn. Valley Auth., 437 U.S. at 175, 98 S.Ct. 2279 (noting that the 1969 legislation, for example, "empowered [the Secretary] to list species threatened with worldwide extinction" (citation and internal quotation marks omitted)).
Yet, "[e]ven with the 1966 and 1969 Acts, the endangered species program was far from adequate [because] [t]here still were no prohibitions on the taking of endangered species, and the habitat protection provisions were limited[.]" S.Rep. No. 97-418, at 2; see also Tenn. Valley Auth., 437 U.S. at 176, 98 S.Ct. 2279 (explaining that while "the 1966 and 1969 legislation represented `the most comprehensive of its type to be enacted by any nation' ... a more expansive approach was needed if the newly declared national policy of preserving endangered species was to be realized" (footnote omitted) (citation omitted)). Thus, although "the Acts of 1966 and 1969 [had] laid the framework for an increasingly effective endangered species conservation program, ... the Department of the Interior ha[d] indicated some difficulties in expanding the practical effect of the program to the spirit of the original legislation[.]" S.Rep. No. 93-307, at 3, 1973 U.S.C.C.A.N. 2989, 2991 (1973).
Responding to these difficulties, Congress promulgated the ambitious ESA,
Congress enacted the ESA for reasons "beyond the aesthetic[,]" including to ensure the continued existence of species to "perform vital biological services to maintain a `balance of nature' within their environments" and provide "for biological diversity for scientific purposes." S.Rep. No. 93-307, at 2, 1973 U.S.C.C.A.N. 2989, 2990. By the time the ESA was enacted in 1973, there had been "`a dramatic rise in the number and severity of the threats faced by the world's wildlife.'" Tenn. Valley Auth., 437 U.S. at 177, 98 S.Ct. 2279 (quoting Endangered Species: Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Env't of the H. Comm. on Merchant Marine and Fisheries, 93rd Cong. 202 (1973) (statement of Nathaniel P. Reed, Ass. Sec. for Fish and Wildlife and Parks, Dept. of the Interior)). Wary that continued threats would result in future species extinction, Congress determined that endangered "species and their preservation is of value and a matter of concern to the United States for educational and scientific reasons and because the nation has made sovereign commitments... to protect such species of fish and wildlife facing extinction." S.Rep. No. 93-307, at 6, 1973 U.S.C.C.A.N. 2989, 2994; see also H.R.Rep. No. 97-567, at 9. Underpinning the promulgation of the ESA was the belief that "`it is in the best interest of mankind to minimize the losses of genetic variations'" because endangered species "`are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask.'" Tenn. Valley Auth., 437 U.S. at 178, 98 S.Ct. 2279 (quoting H.R.Rep. No. 93-412, at 5 (1973)). There was also apprehension that loss of endangered species would impact "the unknown uses that endangered species might have and ... the unforeseeable place such creatures may have in the chain of life on this planet[,]" Tenn. Valley Auth., 437 U.S. at 178-79, 98 S.Ct. 2279 (emphasis in original), and there was recognition that "species do not exist in isolation, but evolve and fluctuate in abundance because of their relationships with other species and the physical environment[,]" Eugene H. Buck et al., Cong. Research Serv., R41608, The Endangered Species Act (ESA) in the 112th Congress: Conflicting Values and Difficult Choices ("CRS-ESA-112th Congress"), at 3 (2012). It was these interests that led to the creation of the ESA.
As noted, the ESA has three purposes, as enumerated in 16 U.S.C. § 1531(b):
16 U.S.C. § 1531(b).
"A major goal of the ESA is the recovery of species to the point at which the protection of the ESA is no longer necessary." M. Lynne Corn et al., Cong. Research Serv., RL31654, The Endangered Species Act: A Primer ("CRSESA
In promulgating the ESA, Congress recognized that, in order to be successful, the ESA must in particular "provide the Secretary[
In order to make a listing determination, "the [FWS] must first define the species so the agency can estimate its population." Am. Wildlands v. Kempthorne, 530 F.3d 991, 994 (D.C.Cir.2008). The ESA explains that 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).
As used in this definition, the term "distinct population segment" ("DPS") is not itself defined. See Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act ("DPS Policy"), 61 Fed.Reg. 4722, 4722 (Feb. 7, 1996). The FWS thus promulgated its own policy, in 1996, to define this term and detail the myriad of factors — including the "[d]iscreteness of the population segment[,]" the "[s]ignificance of the population segment[,]" and
In promulgating the DPS Policy, the FWS acknowledged Congress's direction that the Secretary should use its authority with respect to designating DPSs "`sparingly'" and only in instances "`when the biological evidence indicates that such action is warranted.'" Id. at 4722 (quoting S.Rep. No. 96-151, at 1397 (1979)). While Congress recognized "that there may be instances in which FWS should provide for different levels of protection for populations of the same species[,]" S.Rep. No. 96-151, at 1397, it did not intend for this exception to swallow the general rule of listing species as a whole under the ESA. Indeed, Congress expressed its reluctance to allow the DPS authority to be used widely, and noted that it was "aware of the great potential for abuse of this authority." Id. The FWS, in promulgating the policy, noted specifically that "[t]he Services have used this authority relatively rarely; of over 300 native vertebrate species listed under the Act, only about 30 are given separate status as DPS's." DPS Policy, 61 Fed.Reg. at 4722.
An endangered species is a species that "is in danger of extinction throughout all or a significant portion of its range[.]" 16 U.S.C. § 1532(6). While "[s]pecies may be listed on the initiative of the appropriate Secretary or by petition from an individual, group, or state agency[,]" CRS — ESA Primer at 8, and "[t]he public may play an active role in this process .... [t]he final decision on whether or not to list the species as endangered or threatened rests with the Secretary[,]" H.R.Rep. No. 97-567, at 10, 1982 U.S.C.C.A.N. 2807, 2810; see also 16 U.S.C. § 1533(b)(3).
The ESA states that "[t]he Secretary shall ... determine whether any species is an endangered species or a threatened species because of any of the following factors:
16 U.S.C. § 1533(a).
The Secretary makes a listing determination:
16 U.S.C. § 1533(b)(1)(A); see also Am. Wildlands, 530 F.3d at 994.
Determining "[w]hether a species has declined sufficiently to justify listing is a biological, not an economic, question[,]" H.R.Rep. No. 97-567, at 12, 1982 U.S.C.C.A.N. 2807, 2812, and thus listing decisions must be made "without reference to economic costs or private property impacts[,]" Robert Meltz, Cong. Research Serv., RL31796, The Endangered Species Act (ESA) and Claims of Property Rights "Takings" ("CRS — ESA — Takings"), at 2 (2013); see also CRS — ESA Primer at 18 ("[T]he ESA makes clear that the question of whether a species is endangered or threatened is a scientific decision in which economic factors must not play a part.").
Under the ESA's listing requirements, "[a]s of February 28, 2012, a total of 1, 199 species of animals and 797 species of plants were listed as either endangered or threatened under the ESA[.]" CRS — ESA — 112th Congress at 2; see also 50 C.F.R. § 17.11(h) ("List of Endangered and Threatened Wildlife"). Such listings are made without "distinction between wild or captive populations, populations of native or non-native species or species that are bred in captivity." SCI AR 135.0004 (FWS Letter to Hunter Schuele, dated May 7, 1993). Indeed, out of all listed species of animals, the FWS has represented to the Court that there is only one instance "in which members of a species held in captivity are designated differently than members of the species in the wild." Fed. Defs.' Notice of the Publication of a Proposed Rule and 12-Month Finding on Chimpanzees, ECF No. 118, at 1. That one instance is the chimpanzee, and recently, on June 12, 2013, the FWS has proposed a rule to list all chimpanzees — captive and wild — as endangered. See id. (citing Listing All Chimpanzees as Endangered, Proposed Rule and 12-month Petition Finding, 78 Fed.Reg. 35,201 (June 12, 2013) (to be codified at 50 C.F.R. pt. 17)). If the FWS finalizes the rule governing chimpanzees, there will be no instances of members of a listed species held in captivity designated differently than members of the species in the wild. See id.
"When a species ... is listed as either `threatened' or `endangered' under the [ESA], it is then subject to a host of protective measures designed to conserve the species." Safari Club Int'l v. Salazar (In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig.-MDL No. 1993), 709 F.3d 1, 2 (D.C.Cir.2013). The species are subject, for example, to the section 9 prohibitions, which make it unlawful "for any person subject to the jurisdiction of the United States" to, inter alia, "import[,]" "export[,]" "possess, sell, deliver, carry, transport, or ship, by any means whatsoever[,]" "take any such species within the United States or the territorial sea of the United States[,]" "deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species[,]" or to "sell or offer for sale in interstate or foreign
The prohibition on "take" means that it is unlawful "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). In particular, the term "harm" refers to "an act which actually kills or injures wildlife[,]" while the term "harass" means "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering." 50 C.F.R. § 17.3. When applied to captive animals, the definition for "harass" does not include the "generally accepted" practices of animal husbandry, breeding, or aspects of veterinary care. Id.
While the ESA contains strict guidelines when it comes to determining whether a species should be listed as endangered, the ESA provides more flexibility to the FWS in assessing how to conserve a species after it has been listed.
Section 10 of the ESA grants authority to the FWS to make certain exceptions to the section 9 prohibitions described above. See 16 U.S.C. § 1539(a)(1)(A). While the "taking" of an endangered species is generally prohibited, the ESA allows some "taking" of endangered species through its permitting program, limited to take that "is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity[,]" 16 U.S.C. § 1539(a)(1)(B), or "for scientific purposes or to enhance the propagation or survival of the affected species," 16 U.S.C. § 1539(a)(1)(A); see also CRS — ESA Primer at 14 ("For actions by private parties that might take a listed species, but without any federal nexus such as a loan or permit, the Secretary may issue permits to allow `incidental take' of species for otherwise lawful actions.").
Section 10(c) requires the FWS to "publish notice in the Federal Register of each application for an exemption or permit which is made under this section," and further provides that "[e]ach notice shall invite the submission from interested parties... of written data, views, or arguments with respect to the application[.]" 16 U.S.C. § 1539(c). "Information received by the Secretary as a part of any application shall be available to the public as a matter of public record at every stage of the proceeding." Id. Section 10(d) additionally provides for "exceptions under subsections 10(a)(1)(A) and (b)" if the Secretary finds and publishes in the Federal Register that the exceptions are (1) "in good faith," (2) "will not operate to the disadvantage of such endangered species," and (3) "will be consistent with the purposes and policy" of the ESA. 16 U.S.C. § 1539(d).
The FWS has promulgated regulations detailing the application requirements for individual permits as well as the criteria for the issuance of permits. See 50 C.F.R. § 17.22. Under the authority of section 10, the FWS has also promulgated a permitting program aimed at "enhanc[ing] the propagation or survival" of captive-bred wildlife. See 50 C.F.R. § 17.21(g). Pursuant to this regulation, a person may "take; export or re-import; deliver, receive, carry, transport or ship in interstate or foreign commerce, in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered wildlife that is bred in captivity in the United States provided that[,]" inter alia, "[t]he purpose of such activity is to
The plaintiffs in the EWA Action claim that the FWS violated not only the APA and ESA but also the National Environmental Policy Act ("NEPA") in promulgating the Removal Rule. NEPA represents "a broad national commitment to protecting and promoting environmental quality." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (citing 42 U.S.C. § 4331). It was created to advance "three major purposes[,]" namely:
S.Rep. No. 94-152, at 3 (1975).
NEPA requires federal agencies "to the fullest extent possible" to prepare an environmental impact statement ("EIS") in "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment[.]" 42 U.S.C. § 4332(C); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 15-16, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The EIS is a "detailed statement of environmental consequences[.]" Kleppe v. Sierra Club, 427 U.S. 390, 394, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). "The statutory requirement that a federal agency contemplating a major action prepare such an environmental impact statement serves NEPA's `action-forcing' purpose in two important respects[,]" Robertson, 490 U.S. at 349, 109 S.Ct. 1835, by (1) "`ensur[ing] that the agency, in reaching its decision, will have available and will carefully consider, detailed information concerning significant environmental impacts'" and (2) "`guarantee[ing] that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision[,]'" Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 188 (D.C.Cir.2013) (quoting Robertson, 490 U.S. at 349, 109 S.Ct. 1835).
There are exceptions to the NEPA requirement that agencies prepare an EIS, however, including that an agency need not prepare an EIS (1) "if it finds, on the basis of a shorter `environmental assessment' (EA), that the proposed action will not have a significant impact on the environment[,]" Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 2750, 177 L.Ed.2d 461 (2010) (citing 40 C.F.R. §§ 1508.9, 1508.13 (2009)), (2) "[w]here an agency lacks discretion concerning the action to be taken," see EWA Fed. Defs.' Mem. in Supp. of Cross-Mot. for Summ. J. and in Opp'n to Pls.' Mot. for Summ. J. ("EWA Fed. Defs.' Mem."), ECF No. 84, at 25 (citing Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1151 (D.C.Cir.2001) (explaining that where "the agency does not have sufficient discretion to affect the outcome of its actions, and its role is merely ministerial, the information that NEPA provides can have no affect [sic] on the agency's actions, and therefore NEPA is inapplicable")), and (3) where the agency action falls under a "categorical exclusion," Reed v. Salazar, 744 F.Supp.2d 98, 103 (D.D.C.2010).
The history of the FWS's regulatory efforts with respect to the three antelope species reaches back more than two decades, and litigation over those efforts reaches back nearly as long. The Court reviews this complex web of regulatory efforts and litigation challenges below.
As a preliminary matter, however, the Court first briefly describes the three antelope species, all native to the continent of Africa, at the center of these regulatory efforts. The scimitar-horned oryx, which once had an extensive range in North Africa, stands about 47 inches tall and weighs about 450 pounds with a generally pale coat and dark reddish brown neck and chest. See Listing Rule, 70 Fed.Reg. at 52,319. Adult oryx possess a pair of horns curving back in an arc up to 50 inches. See id. The addax, which once existed throughout the deserts and sub-deserts of North Africa, from the Atlantic Ocean to the Nile River, stands about 42 inches tall and weighs around 220 pounds with a grayish white coat and spiral horns which twist up to 43 inches long. See id. The dama gazelle, the largest of the gazelles and the smallest of the three antelope species at issue in this suit, was once common and widespread in arid and semi-arid regions of the Sahara. This animal is about 39 inches tall at the shoulder and weighs about 160 pounds with a mostly reddish brown body, but a white head, rump, and underparts. See id. The dama gazelle's horns extend back and up, reaching a length of about 17 inches long. See id.
"Wild numbers of the three antelopes have declined drastically over the past 50 years" as a result of "habitat loss, uncontrolled killing, and the inadequacy of existing regulatory mechanisms." Captive-bred Exemption, 70 Fed.Reg. at 52,310. As of the 2005 Listing Rule, there had been no sightings of wild scimitar-horned oryx since the mid-1980s, and there were estimates that the addax "probably numbers fewer than 600 in the wild[,]" and the dama gazelle numbers "fewer than 700 in the wild." Id.
Captive populations of the three antelope species exist in the United States and other parts of the world, including on ranches owned by some of the plaintiffs in this consolidated case. As of the Listing Rule in 2005, the FWS cited estimates from the Sahelo-Saharan Interest Group that there were "about 4,000-5,000 scimitar-horned oryx, 1,500 addax, and 750 dama gazelle in captivity worldwide." Listing Rule, 70 Fed.Reg. at 52,322. As to the captive populations within the United States, a 2004 study conducted by Dr. Elizabeth Mungall for the EWA regarding population and habitat conditions of the three antelope species indicated that the population of these animals held privately in Texas had soared over time, with the population of scimitar-horned oryx increasing from 32 in 1979, to 1,006 in 1994, to 2,145 in 1996; the population of addax increasing from 2 in 1971, to 587 in 1994, to 1,824 in 1996; and the population of dama gazelle increasing from 9 in 1979, to 149 in 1994, to 91 in 1996, to 369 in 2003. See SCI Mem. in Supp. of Mot. for Summ. J. ("SCI Mem."), ECF No. 45, at 4-5 (citing SCI AR 221.0005, Ex. A, ECF No. 45-2, Elizabeth Cary Mungall, Submission for the Comment Period on Proposed Listing
It is in the context of dwindling numbers of the three antelope species in the wild that, in 1991, the FWS began a decades-long pursuit to protect the three antelope species under the ESA by proposing an endangered status listing for these animals. See Proposed Endangered Status for Scimitar-horned Oryx, Addax, and Dama Gazelle, 56 Fed.Reg. 56,491 (Nov. 5, 1991) (to be codified at 50 C.F.R. pt. 17). That proposal recognized that the three antelope species "were declining in numbers and had been eliminated in much of their range[,]" and sought feedback as the agency considered alternatives such as listing the species "as endangered, as threatened with special regulations, or as threatened by reason of similarity of appearance." Id. at 56,491-92.
As a critical part of the deliberations, the FWS opened comment periods on the proposed rule on three additional occasions: on June 8, 1992, July 24, 2003, and November 26, 2003. See Reopening of Comment Period on Proposed Endangered Status for Scimitar-horned Oryx, Addax, and Dama Gazelle, 57 Fed.Reg. 24,220 (June 8, 1992) (to be codified at 50 C.F.R. pt. 17); Endangered Status for Scimitar-Horned Oryx, Addax, and Dama Gazelle, 68 Fed.Reg. 43,706 (July 24, 2003) (to be codified at 50 C.F.R. pt. 17); Endangered Status for Scimitar-Horned Oryx, Addax, and Dama Gazelle, 68 Fed.Reg. 66,395 (Nov. 26, 2003) (to be codified at 50 C.F.R. pt. 17). Over the course of those comment periods, the agency received a total of 56 comments, mostly from U.S. game ranchers (who accounted for 62.5% of the comments), as well as zoos and zoo organizations (8.9% of comments), governments of range countries (7.1%), hunting organizations (7.1%), exotic wildlife breeding organizations (5.4%), the general public (5.4%), and international scientific organizations (3.6%). See Listing Rule, 70 Fed. Reg. at 52,320. In summarizing the comments from that period, the FWS found that "[n]o comments were submitted that demonstrate that the three antelope species do not qualify as endangered under the [ESA]." Id. (emphasis added).
As early as 1991, the FWS considered that "[c]aptive and free-roaming groups, outside of the natural ranges of the species, may be covered separately from natural populations in any final rule." Proposed Endangered Status for Scimitar-horned Oryx, Addax, and Dama Gazelle, 56 Fed. Reg. at 56,491; SCI AR 56.0001. Indeed, over the next decade, the FWS debated this issue internally, entertained possibilities within the agency of listing the captive members of the species differently than wild members of the species, and "drafted a number of final listing rules based on these alternatives." SCI Fed. Defs.' Mem. in Opp'n to Pl.'s Mot. for Summ. J. and in Supp. of Cross-Mot. for Summ. J. ("SCI Fed. Defs.' Mem."), ECF No. 68, at 14 (citing SCI AR 65.0005 (draft rule to list only wild members of the three antelope species as endangered); SCI AR 83-109 (draft rule to list captive and wild members of the three antelope species in their native ranges as endangered); SCI AR 109.002 (draft rule to list only wild members of the three antelope species as endangered); SCI AR 135.0014, 135.0044, 135.0071 (draft rule to list wild members of the three antelope species as endangered and captive animals as threatened); SCI AR 140.0013 (draft rule to list all members of the three antelope species as endangered)).
The agency was keenly aware that, while there was widespread agreement that the three antelope species were endangered
The Listing Rule's drafting period appears to have stretched over a period of fourteen years for two primary reasons. First, the agency engaged in an active debate during which the "proposal was never finalized due to issues about how best to address captive populations of these species under a Section 4 listing." SCI AR 153 (Note from Eleanora Babij, Division of Scientific Authority ("DSA") to Reviewer, dated Oct. 28, 2002). The SCI AR indicates that the agency was sensitive to the concerns of the exotic ranchers, noting the "legitimate desire to avoid imposing unnecessary restrictions on U.S. ranchers with large populations of these three species and at the same time not creating unnecessary permit issuance work." SCI AR 136.0004 (Memorandum from Charles Dane, Chief of the Office of Scientific Authority ("OSA") to Chief, Division of Endangered Species, dated Mar. 14, 1994, stating "extreme[ ] frustrat[ion]" with "efforts to provide appropriate protection to the obviously endangered African antelopes"); see also SCI Mem. in Supp. of Mot. for Summ. J. ("SCI Mem."), ECF No. 45, at 12 ("The [FWS's] protracted deliberation over the listing status of the three species was due in great part to the agency's dilemma as to how to protect the species in the wild without severely undermining the trade and use that had so benefitted the U.S. population numbers and health of the captive herds."). Indeed, the SCI AR is replete with documents asserting proposed means to deal with the U.S. captive-bred three antelope species in the face of the need to list the wild three antelope species as endangered. See, e.g., SCI AR 135.0008 (Memorandum from Ronald Nowak, OSA, to Charles Dane, Chief, OSA, dated Oct. 25, 1993, discussing various "alternatives for proceeding (or not proceeding)" with a final listing rule).
Second, a lack of funding for the FWS, beginning in 1995, resulted in a work backlog. See Biodiversity Legal Found. v. Norton, 285 F.Supp.2d 1, 5-6 (D.D.C. 2003); SCI Fed. Defs.' Mem. at 1 ("In the years following [the initial 1991] proposal, the [FWS] deliberated over the proper listing status for the species in light of the large numbers of the species held in captivity, including in the United States, and then took no further action on the proposed listing rule due to funding constraints."). Beginning in April 1995, "a number of spending moratoria ... prohibit[ed] the [FWS] from listing species as endangered or threatened and prohibit[ed] the designation of critical habitats for species already listed." Forest Guardians v. Babbitt, 174 F.3d 1178, 1183 (10th Cir. 1999); see also Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Pub.
After environmental and animals rights groups sued the FWS for failing to complete the rulemaking process for the three antelope species, see SCI Fed Defs.' Mem. at 1, 16, the agency, on September 2, 2005, listed the three antelope species as a whole, including wild and captive populations worldwide, as endangered under the ESA. See Listing Rule, 70 Fed.Reg. at 52,321-22. As noted, species may be listed as endangered or threatened based on one or more of the five listing factors in ESA section 4(a)(1). In the case of the three antelope species, the FWS determined that the three antelope species were in danger of extinction based on four of the five factors, namely: (1) present or threatened destruction, modification, or curtailment of habitat or range, (2) overutilization for commercial, recreational, scientific, or educational purposes, (3) inadequacy of existing regulatory mechanisms, and (4) other natural or manmade factors. See id. Of the five factors, the FWS determined that the three antelope species were not in danger of extinction based on disease or predation. See id.
The Listing Rule, citing relevant scientific research, summarized in detail how these factors applied to the three antelope species, and concluded that "[b]ecause these threats place the species in danger of extinction throughout all or a significant portion of their ranges (in accordance with the definition of `endangered species' in section 3(6) of the Act), we find that the scimitar-horned oryx, addax, and dama gazelle are endangered throughout their ranges, pursuant to the [ESA]." Id. at 53,322-23. Accordingly, the Listing Rule applied an endangered classification to the species "wherever they occur[,]" including in the captive-breeding programs which had documented success in "increas[ing]
With respect to the question of whether the captive members of the species would be listed separately or with some other designation, the FWS recognized "the role of captive breeding in the conservation of these species," but noted that "continued habitat loss and wonton killing have made reintroduction nonviable in most cases[,]" and concluded, consistent with its policy and practice of listing species as a whole as endangered, that "[i]t would not be appropriate to list captive and wild animals separately." Id. at 52,320, 52,322; see, e.g., SCI AR 155.0001 (Note to reviewers, dated Aug. 28, 2002, explaining that "[i]n order to be consistent in the way with which other listed species are treated, we propose in this notice that our most viable option is not to treat captive populations differently from the wild populations and to list all 3 antelopes species as Endangered").
While the FWS determined that the three antelope species must be classified as endangered and that "[i]t would not be appropriate to list captive and wild animals separately[,]" Listing Rule, 70 Fed.Reg. at 52,320, the agency simultaneously promulgated a Captive-bred Exemption, codified at 50 C.F.R. § 17.21(h), that would permit "otherwise prohibited activities that enhance the propagation or survival of the species[,]" including "take; export or reimport; delivery, receipt, carrying, transport or shipment in interstate or foreign commerce, in the course of commercial activity; or sale or offering for sale in interstate or foreign commerce." See Captive-bred Exemption, 70 Fed.Reg. at 52,311, 52,317.
The FWS recognized that subjecting the captive-breeders of the three antelope species to the normal permitting process under ESA's section 10 could deter the breeders from continuing their breeding operations. The FWS explained that "[i]t was critical that development of a rule that provides an incentive to continue captive breeding of these species proceed concurrently with the determination of their legal status under the [ESA] to ensure that no breeding programs would be disrupted by a final listing determination[.]" Id. at 52,313. Indeed, in the Record of Compliance the FWS prepared for the Captive-bred Exemption, the agency acknowledged that "[l]isting the species without exempting the U.S. captive-bred population could be a deterrent to further captive breeding." SCI AR 237.0122, Ex. S, ECF No. 45-20, at 2 (United States Department of the
In promulgating the exemption of the U.S. captive-bred three antelope species from certain prohibitions, on September 2, 2005, the FWS acknowledged that captive breeding in the U.S. had been helpful for the survival of the three antelope species, noting that "[c]aptive breeding in the United States has enhanced the propagation or survival" of the three antelope species "by rescuing these species from near extinction and providing the founder stock necessary for reintroduction." Id. at 52,310. The FWS elaborated, explaining, inter alia, that "[c]aptive-breeding programs operated by zoos and private ranches have effectively increased the numbers of these animals while genetically managing their herds" and that "[a]s future opportunities arise for reintroduction in the antelope range countries, captive-breeding programs will be able to provide genetically diverse and otherwise suitable specimens." Id. at 52,310-11. Thus, although the Listing Rule deemed the three antelope species to be endangered, the FWS specifically responded to commenters' concerns by proposing, and ultimately issuing, the Captive-bred Exemption, to provide a blanket exemption from the enforcement of endangered species status for U.S. captive-bred scimitar-horned oryx, addax, and dama gazelle.
The FWS explained in response to a comment that while it "typically authorizes activities under section 10(a)(1)(A) of the [ESA] on a case-by-case basis through the issuance of individual permits or authorizations, there is no requirement that we may do so only via this process" and that "[t]he requirements for notification and opportunity for public comment under section 10(c) and publication of final determinations under section 10(d) have been satisfied through this rulemaking process." Id. at 52,313. It commented that exempting the U.S. captive-bred members of the three antelope species from the prohibitions of section 9 of the ESA would "reduce the regulatory impacts on captive-breeding operations" and "reduce economic costs of the listing" and that the "economic effect of the rule is a benefit to the captive-breeding operations for the three antelope species because it allows the take and interstate commerce of captive-bred specimens." Id. at 52,317. Thus, recognizing the contributions of captive-breeders, the agency attempted to accommodate the concerns of commercial breeders and others that the agency's default permitting system would be too burdensome by providing a blanket exemption from otherwise prohibited activities.
The Captive-bred Exemption was almost immediately challenged in court by two sets of plaintiffs, including all of the defendant-intervenors in this case as well as an individual plaintiff, who filed lawsuits in the United States District Court for the Northern District of California and the United States District Court for the District of Columbia. Those lawsuits were consolidated in this jurisdiction, and SCI and EWA intervened as defendants. See Friends of Animals v. Salazar, 626 F.Supp.2d 102, 105-06 (D.D.C.2009). In the consolidated lawsuit, the plaintiffs alleged that the FWS unlawfully promulgated the Captive-bred Exemption in violation of several sections of the ESA and the NEPA. See id. at 106.
The Court first determined that the plaintiffs only had standing "to pursue their claim that the FWS violated subsection 10(c) of the [ESA] when it promulgated the [Captive-bred Exemption.]" Id. at 114-15. The Court then granted summary judgment in favor of the plaintiffs because the Captive-bred Exemption violated section 10(c), which provides that "[t]he Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section." 16 U.S.C. § 1539(c) (emphasis added). Specifically, the Court determined "that the text, context, purpose and legislative history of [section 10] make clear that Congress intended permits for the enhancement of propagation or survival of an endangered species to be issued on a case-by-case basis following an application and public consideration of that application" rather than in the form of a blanket exemption. Friends of Animals, 626 F.Supp.2d at 115. The Court provided several reasons for its decision. First, the Court considered the plain language of the statute, concluding that "Congress clearly contemplated that the FWS would exercise its authority to grant exceptions under `this section' (i.e., section 10) by responding to individual applications." Id. at 117. Second, the Court found that the Captive-bred Exemption undermines the purpose of section 10(c) by "hinder[ing] the ability of individuals and groups to participate in the meaningful way contemplated by the ESA" by not engaging in a case-by-case issuance of permits and thus rendering it "impossible to evaluate whether each permitted act will enhance the propagation or survival of the species." Id. at 118-19 (explaining that under the Captive-bred Exemption, the "plaintiffs are deprived of the information they would otherwise be provided to assess whether individual facilities will or are in fact maintaining the antelope species in a manner that contributes to their propagation or survival and thus are entitled to the exception" and that the Captive-bred Exemption "flies in the face of the `meaningful opportunity' that subsection 10(c) was intended to provide" (citation omitted)). Finally, the Court considered the legislative history of section 10, concluding that "the FWS's interpretation that it may permit broad exceptions, as opposed to individual permits, does appear to be at odds with this legislative history" and that "[b]lanket exemptions under regulations are anathema to this intention because they allow the FWS to permit a great number of exemptions at once without providing the detailed information to the public that would be required in an individualized analysis." Id. at 119.
The Court recognized that the FWS issued the Captive-bred Exemption "[a]t the same time that the FWS listed the antelope as endangered" so as to exempt captive-bred members of the three antelope species from the Listing Rule regulations. Id. at 107. The Court further acknowledged that "`[b]ased on information available to the [FWS], captive breeding in the
In response to the Court's decision that the Captive-bred Exemption was invalid, certain plaintiffs in this consolidated case sought to delist the three antelope species, and the FWS took steps to revoke the Captive-bred Exemption. Specifically, in 2010, both the SCI plaintiff and the Owen plaintiffs petitioned the FWS to delist the U.S. captive-bred herds of the three antelope species from the endangered species list because "enforcement of endangered status would `remove all economic incentive to conserve the species by discouraging captive-breeding.'" SCI Mem. at 25 (citation omitted); see also SCI Compl. ¶ 10; Owen Compl. at 2.
Meanwhile, before the FWS acted on the petitions to delist the U.S. captive-bred herds, on July 7, 2011, the FWS published a proposed rule to withdraw in full the Captive-bred Exemption. See Removal of the Regulation that Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions, 76 Fed.Reg. 39,804 (July 7, 2011). This rule would eliminate the exclusion of the three antelope species from certain prohibitions in the ESA and require any person intending to engage in otherwise prohibited activity to qualify for an exemption or obtain a permit authorizing such activity. See id. at 39,804. The FWS opened the proposed rule for a 30-day comment period in which it received 93 comments, 2 from state agencies, 8 from nongovernment organizations, and 86 from individuals, most of whom were ranchers or individuals associated with ranches. The vast majority of the comments opposed the proposed regulation to repeal the Captive-bred Exemption. See Removal Rule, 77 Fed Reg. at 432.
Shortly after the FWS issued the proposed Removal Rule, the SCI Action was filed in this jurisdiction on August 31, 2011. The plaintiff alleged that the federal defendants violated the ESA and the APA by including U.S. captive-bred herds of the three antelope species in the 2005 listing determination, failing to remove U.S. captive herds from endangered species status after the 2009 Decision, and failing to respond in a timely manner to SCI's 2010 petition for delisting. See SCI Compl. ¶¶ 2, 10.
On January 5, 2012, the FWS issued its final rule removing the Captive-bred Exemption, effective on April 4, 2012. See Removal Rule, 77 Fed.Reg. 431. The agency issued the Removal Rule as a necessary step to comply with the 2009 Decision. See EWA Fed. Defs.' Mem. at 14 n. 4 (explaining that "the [FWS] did not support or base its decision on whether or not holders of U.S. captive-bred members of the Three Antelope species would reduce or eliminate their herds ... [r]ather ... it based its decision on a need to take a rule off the books"). Indeed, the Removal Rule explained that:
Removal Rule, 77 Fed.Reg. at 431.
Speaking directly to "whether there were alternative means to comply with the Court's ruling without requiring ranches or other facilities holding these species to obtain a permit or other authorization[,]" the Removal Rule stated that the FWS determined there was no alternative "other than the currently established regulations at 50 C.F.R. §§ 17.21(g) and 17.22 — providing for the registration of captive-bred wildlife or issuance of a permit — that would provide the public an opportunity to comment on proposed activities being carried out with these species." Id. at 432. The Removal Rule also noted that the FWS "did not receive any comments or suggestions from the public that presented a viable alternative." Id. The FWS provided an "extended effective date" of April 4, 2012 for the Removal Rule in order to "allow the affected community to either legally sell their specimens, if they choose to divest themselves of these species, or to apply for authorization or permits to continue carrying out previously approved activities." Id. at 431.
The FWS discounted the concern "that ranchers or other holders of these species that are working for the conservation of the species will reduce or eliminate their herds just because a permit or other authorization will now be required." Id. at 433. Rather, if a ranch were authorized under the Captive-bred Exemption to carry out activities with respect to the three antelope species, the FWS stressed that "the ranch should be able to continue those activities under a permit or registration." Id. Furthermore, the FWS explained that ranches with other endangered animals "already obtain permits for the same activities with ... other species." Id. Thus, the agency reasoned that "[t]here should be no reduction in herds that were actually being used for conservation purposes." Id.
The EWA Action was filed on March 2, 2012, to invalidate and set aside the Removal Rule. See EWA Compl. at 4.
In 2012, the plaintiffs in both the SCI and EWA Actions sought preliminary injunctive relief to enjoin enforcement of the Removal Rule, see EWA Mem. in Supp. of
Moreover, the Court found that the public interest weighed against granting injunctive relief, both because it was impossible to ignore the risks of complete deregulation of the captive-bred members of the three antelope species as identified by the FWS and because the FWS's permitting process allowed for the continued culling and sport hunting of the three antelope species. See id. at 125-26 (citing Decl. of Timothy Van Norman ("Van Norman Decl."), ECF No. 35, Ex. 1, ¶ 3 ("Registration under the [captive-bred wildlife] program also allows a facility to cull animals in its herd to maintain a viable and healthy herd."), ¶ 5 ("In order to allow outside hunters to come on to a ranch to hunt animals, the facility must obtain an interstate commerce/take permit.... Through the permit application process, the ranch would identify the number of animals that would likely be culled to maintain a healthy population over a one-year period [and][i]f the application were approved, ... a single permit ... would authorize all approved activities for a one-year period. This single permit would allow the facility to advertise all proposed hunts being anticipated during the one-year period to facilitate herd management, since most advertisements would be considered interstate commerce, and it would authorize individuals other than employees of the facility to lethally take listed specimens.")). Furthermore, as to the EWA plaintiffs' motion in particular, the Court was cognizant that the 2009 Decision found the Captive-bred Exemption unlawful and that "to effectuate the over-arching goal of the ESA to conserve endangered species, the law expressly requires the FWS to publish in the Federal Register notice, with a 30 day comment period, of applications for permits to handle listed species in a manner otherwise contrary to the law." SCI P.I. Decision, 852 F.Supp.2d at 126.
Following the denial of the plaintiffs' motions for injunctive relief, the Removal Rule went into effect on April 4, 2012. See Removal Rule, 77 Fed.Reg. at 431. As noted, since the Captive-bred Exemption was issued at the same time as the Listing Rule, removing the Captive-bred Exemption has meant that the three antelope species are subject, for the first time, to full enforcement of the regulations governing endangered species.
After the Removal Rule went into effect, the federal defendants reached a settlement agreement with the SCI plaintiff and
The federal defendants subsequently made a 90-day finding on the parties' delisting petitions. See 90-Day Findings on Petitions to Delist U.S. Captive Populations of the Scimitar-Horned Oryx, Dama Gazelle, and Addax, 77 Fed.Reg. 58,084 (Sept. 19, 2012). In that finding, the FWS determined that the petitions "present[ed] substantial information indicating that delisting the U.S. captive animals or U.S. captive-bred members of these species may be warranted," and that the FWS was therefore "initiating a review of the status of the U.S. captive members of these species to determine if delisting the U.S. captive specimens is warranted." Id. at 58,084.
Following a "thorough status review of the captive antelopes covered by these petitions," the FWS agreed to issue a 12-month finding, on or before May 31, 2013, determining whether the delisting was warranted. Id. at 58,086; see also Stipulated Settlement Agreement, ECF No. 94, at 3.
The FWS, on June 5, 2013, published its 12-month findings on the SCI and Owen plaintiffs' delisting petitions. See 12-Month Findings on Petitions to Delist U.S. Captive Populations of the Scimitar-horned Oryx, Dama Gazelle, and Addax, 78 Fed. Reg. 33,790 (June 5, 2013). The FWS denied the delisting petitions, concluding that "the U.S. captive, or U.S. captive-bred specimens of, scimitar-horned oryx, dama gazelle, and addax, do not qualify as separate `species' or otherwise qualify for separate legal status under the [ESA]." Id. at 33,797. The agency reasoned that "although the [ESA] does not expressly address whether captive-held specimens of wildlife can have separate legal status, the language, purpose, operation, and legislative history of the [ESA], when considered together, indicate that Congress did not intend for captive-held specimens of wildlife to be subject to separate legal status on the basis of their captive state." Id. Accordingly, the FWS determined that "delisting the U.S. captive, or U.S. captive-bred specimens of, scimitar-horned oryx, dama gazelle, and addax, is not warranted." Id.
Notably, the FWS also made clear that the listing of the three antelope species "does not necessarily ban the hunting of these individuals on game ranches in the United States[,]" id., explaining: "[w]e recognized at the time of listing the species that allowing ranches to continue in their management efforts for these species could help to ensure that a viable group of antelope would be available for reintroduction purposes if conditions in the species' native range improved[,]" id. The FWS therefore supported these efforts by "authorizing well-managed ranches to conduct various management practices, including limited hunting, through our Captive-Bred Wildlife Registration regulation and permitting process." Id. In assessing the effectiveness of this permitting program, the FWS noted that, "[s]ince the current regulations
The parties' ten motions are now ripe and pending before the Court.
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also FED.R.CIV.P. 12(b)(6). "[A] complaint [does not] suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration in original) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Instead, the complaint must plead facts that are more than "`merely consistent with' a defendant's liability." Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). "[T]he plaintiff [must] plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; accord Rudder v. Williams, 666 F.3d 790, 794 (D.C.Cir.2012). The Court "must assume all the allegations in the complaint are true (even if doubtful in fact) ... [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans, Inc., 525 F.3d 8, 17 (D.C.Cir.2008) (citations and internal quotation marks omitted).
In actions under the APA, summary judgment is the appropriate mechanism for "deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Oceana, Inc. v. Locke, 831 F.Supp.2d 95, 106 (D.D.C.2011) (citing Richards v. INS, 554 F.2d 1173, 1177 & n. 28 (D.C.Cir.1977)). "In such cases, a federal district court `sits as an appellate tribunal' to review the purely legal question of whether the agency acted in an arbitrary and capricious manner." Franks v. Salazar, 816 F.Supp.2d 49, 55-56 (D.D.C. 2011) (quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir. 2001)). Judicial review is limited to the administrative record, and the burden is on the plaintiff to prove how the decision was arbitrary and capricious. Id.
Under the APA, a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. § 706(2). In evaluating agency actions under this standard, courts must consider "whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment."
"[T]he arbitrary and capricious standard is `highly deferential' and `presumes agency action to be valid[.]'" Am. Trucking Ass'ns v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 245 (D.C.Cir. 2013) (quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 997-98 (D.C.Cir. 2008)); Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C.Cir.1981). If an agency, however, "failed to provide a reasoned explanation, or where the record belies the agency's conclusion, [the court] must undo its action." Cnty. of Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C.Cir.1999). At the very least, the agency must have reviewed relevant data and articulated a satisfactory explanation establishing a "rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856 (internal quotation marks omitted); see also Pub. Citizen, Inc. v. Fed. Aviation Admin., 988 F.2d 186, 197 (D.C.Cir.1993) ("The requirement that agency action not be arbitrary or capricious includes a requirement that the agency adequately explain its result.").
"[A]n agency acts arbitrarily or capriciously if it `has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Am. Wildlands, 530 F.3d at 997-98 (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856). While the agency's explanation cannot "run[ ] counter to the evidence," Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856, courts should "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned[,]" Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). Furthermore, where an agency has acted in an area in which it has' "special expertise,'" the court must be particularly deferential to the agency's determinations. Sara Lee Corp. v. Am. Bakers Ass'n Ret. Plan, 512 F.Supp.2d 32, 37 (D.D.C.2007) (quoting Bldg. & Constr. Trades Dep't, AFL-CIO v. Brock, 838 F.2d 1258, 1266 (D.C.Cir.1988)). "Deferring as appropriate to the agency's expertise and looking only for `a rational connection between the facts found and the choice made,'" Am. Trucking Ass'ns, 724 F.3d at 249 (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856), "we remain ever mindful that in performing `a searching and careful inquiry into the facts, we do not look at the [agency's] decision as would a scientist, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality[.]'" Id. (quoting Nat'l Envtl. Dev. Ass'ns Clean Air Project v. EPA, 686 F.3d 803, 810 (D.C.Cir.2012)).
As a preliminary matter, the Court addresses the standing of the parties to bring suit and the ripeness of the dispute between the parties. In assessing the parties' standing, the Court draws from the
Although this Court concluded that the plaintiffs had Article III standing in its evaluation of the plaintiffs' motions for preliminary injunctions, see SCI P.I. Decision, 852 F.Supp.2d at 111 n. 7, the Court revisits this issue in order to assure itself that it has jurisdiction over this matter, see Conf. Group v. FCC, No. 12-1124, 2013 U.S.App. LEXIS 13469, at *12-13 (D.C.Cir. July 2, 2013); Am. Library Ass'n v. FCC, 401 F.3d 489, 492 (D.C.Cir.2005); accord Am. Trucking Ass'ns, 724 F.3d at 246-49 (where Court evaluates standing of plaintiffs on third round of litigation). While no party specifically challenges the SCI plaintiff's Article III standing, the defendant-intervenors, as explained below, challenge the EWA plaintiffs' Article III standing. Nevertheless, the Court evaluates the standing of both sets of plaintiffs.
"[T]he irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, the plaintiff must have suffered an "injury in fact" that is (a) "concrete and particularized[,]" and (b) "actual or imminent, not conjectural or
The plaintiffs have the burden of establishing that they have standing to proceed with their claims. Am. Library Ass'n, 401 F.3d at 492 (citing KERM, Inc. v. FCC, 353 F.3d 57, 59 (D.C.Cir.2004)). In the case of an association, such as SCI and EWA, the association "has standing to sue under Article III of the Constitution of the United States only if (1) at least one of its members would have standing to sue in his own right; (2) the interest it seeks to protect is germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the member to participate in the lawsuit." Am. Trucking Assns, 724 F.3d at 247; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
The Court first evaluates the Article III standing of the SCI plaintiff and then turns to the Article III standing of the EWA plaintiffs.
As the Court explains below, the SCI plaintiff has established that it has Article III standing to bring its claims challenging the 2005 Listing Rule. The Court addresses each of the three elements of the standing analysis in turn.
First, the Court provides a brief background about the SCI plaintiff and its membership and then turns to the question of whether the SCI plaintiff has established an injury-in-fact.
The SCI plaintiff is a non-profit corporation with its principal offices in Tucson, Arizona and Washington, D.C. and 53,000 members worldwide. See Decl. of Rew R. Goodenow ("Goodenow Decl."), ECF No. 45-28, Ex. AA, ¶¶ 3-4. The organization's missions are "the conservation of wildlife, protection of the hunter, and education of the public concerning hunting and its use as a conservation tool." Id. ¶ 5. According to the Chairman of the Legal Task Force of SCI, the organization "promotes the principle and practice of sustainable use conservation, including the ability of its members to participate in a system in which private ranchers are able to raise, breed, trade and sell hunts for [the three antelope species] for the conservation benefit of those species." Id. ¶ 7. Under the SCI umbrella, individual SCI members own, manage, breed, and trade the three antelope species, and sell and guide hunts for them in the United States. See id. ¶¶ 8-9. Before the listing of the three antelope species as endangered, SCI members were able to hunt the three antelope species on private ranches in the United States without permits, and SCI argues that the populations of the antelope species were "growing and thriving" at that time. SCI Mem. at 4. As a result of the Listing Rule, however, SCI members are now subject to permitting requirements and restrictions in their ownership and use of the three antelope species.
The SCI plaintiff has established through a series of declarations submitted from SCI members that these restrictions, directly traceable to the Listing Rule, constitute an "injury-in-fact" by reducing financial incentives and making it more difficult for the SCI members to continue "owning and sustainably using and conserving" these animals. SCI Mem. at 25.
Indeed, numerous SCI members provided declarations to demonstrate the injury that enforcement of the endangered species status of the three antelope species has had and was expected to have on their lives. For example, Laurent Delagrange, a member of SCI and president of a ranch in Texas where scimitar-horned oryx and addax are bred, asserted that "[t]he endangered listing status of these [antelope species] has already caused me harm by significantly decreasing the financial value of my herds," precipitously from $700,000 to $300,000 as a result of the then impending permitting requirements. Decl. of Laurent Delagrange ("Delagrange Decl."), ECF No. 45-35, Ex. HH, ¶¶ 11-12. He not only expressed concerns about the financial implications of these requirements but also that he would "los[e his] ability to help conserve these three species." Id. ¶ 25. Similarly, SCI member Travis Weir, a hunter, ranch owner, and hunting guide, explains that "[t]he value of [his] scimitarhorned oryx started to drop around May 2011, when the ranching/hunting community got wind" of the impending FWS enforcement of the endangered species listing of these animals. Decl. of Travis Weir ("Weir Decl."), ECF No. 45-29, Ex. BB, ¶ 11; see id. ¶ 19 ("When it became clear that the FWS intended to impose permit requirements, hunting conditions changed. Practically everyone I know who owns these animals have [sic] been reducing and/or eliminating their herds.").
These concerns about predicted and actual injuries were echoed by many other SCI members. SCI member Steve Wright, for example, provided declarations both before and after the publishing of the Removal Rule explaining, first, the injury he anticipated from the Removal Rule, and second, the injury he actually experienced. See Decl. of Steve Wright ("Wright Decl."), ECF No. 45-36, Ex. JJ, ¶ 21 (explaining that "[t]he classification of U.S. scimitar-horned oryx as an endangered species, and the restrictions, limitations and bureaucracy that comes with the listing will lower their value, reduce the clientele willing to purchase hunts, undermine the species ability to generate revenue for their continued upkeep and will make it impossible for me to afford to continue to keep these animals on our ranch"); Supplemental Decl. of Steve Wright ("Wright Supp. Decl."), ECF No. 45-37, Ex. KK, ¶ 2 ("As predicted, as a result of the [FWS] publishing the rule that will end the permit exemption for the trade and hunting of the scimitar-horned oryx, I decided I could no longer participate in the ownership, breeding and conservation of the species" and "no longer own any of these animals."). SCI member Timothy Mark Terry explained that he felt compelled to transfer his entire herd of animals — 45 scimitarhorned oryx and 35 addax — because "it would not have been financially possible for [him] to continue to raise and provide for these animals" after permits were required for selling hunts, and he chose to sell the animals "rather than take on the additional costs, risks, responsibilities, obstacles
While all parties agree that the SCI plaintiff has established standing, the DOW defendant-intervenors "feel compelled to point out that, while they do not contest SCI's standing in this case, that standing stems only from the economic harm that SCI's members will purportedly suffer as a result of the fact that they can no longer breed or use endangered antelopes for recreational hunting, and not from the `conservation' harm that SCI has proffered here." DOW Intervenor-Defs.' Mem. in Opp'n to Pl.'s Mot. for Summ. J. and Intervenor-Defs.' Cross-Mot. for Summ. J. ("SCI DOW Defendant-Intervenors' Mem."), ECF No. 70, at 20. The DOW defendant-intervenors elaborate that "while it is clear that those who cannot satisfy the strict requirements of Section 10 of the ESA ... will no longer be able to sell canned hunts of these antelopes for profit — as a direct result of the captive members of the species being listed as `endangered,' ... this is not the injury that has been alleged by SCI in support of its standing in this case." Id. (citation and emphasis omitted). The Court construes the SCI plaintiff's assertion of injury somewhat differently and understands that the SCI plaintiff is asserting standing both based on economic harm as well the concomitant conservation harm that it believes results from that economic harm. See, e.g., SCI Mem. at 27-28 (emphasizing that, as a result of permitting requirements, SCI member Travis Weir's female scimitar-horned oryx "dropped in value from $2,000-$2,500 to $600-700 per cow," that "[h]is dream of someday selling these animals as his retirement fund has disappeared," and that the enforcement of endangered species status of these animals would result in a "devastating conservation reversal" (citations omitted)); SCI Reply in Supp. of Mot. for Summ. J. and Opp'n to Cross-Mot. for Summ. J. of Defs. and Def. Intervenors ("SCI Reply"), ECF No. 80, at 16 (asserting both economic and conservation injury). The Court finds that the declarations that the SCI plaintiff has proffered in support of its standing, as explained above, sufficiently demonstrate both an economic and conservation injury that is both concrete and particularized, and thereby satisfy the plaintiffs' burden to establish injury-in-fact.
The Court next addresses the second and third prongs of the standing analysis — whether the injury is fairly traceable to the challenged action of the defendants and whether the injury will be redressed by a favorable decision. The SCI plaintiff demonstrates both of these elements. First, the SCI plaintiff has demonstrated that the FWS's listing of the three antelope species as endangered has resulted in economic and conservation injury to them by eliminating financial incentives for ranchers to breed, herd, and organize hunts of the three antelope species. Second, since a decision to invalidate the listing of the three antelope species would remove permitting restrictions for these animals, a favorable decision could redress the injuries of the members of SCI. Accordingly, on those bases, the SCI plaintiff has Article III standing to bring suit.
The Court next addresses whether the EWA plaintiffs have established Article III standing to bring their claims challenging the 2012 Removal Rule. Although this Court concluded that the EWA plaintiffs had Article III standing in its denial of the plaintiffs' Motion for a Preliminary Injunction, see SCI P.I. Decision, 852 F.Supp.2d at 111 n. 7, the defendant-intervenors contest this conclusion. The defendant-intervenor Friends of Animals, in fact, moves for summary judgment on the basis that the EWA plaintiffs "have failed to demonstrate Article III standing necessary to bring this action[,]" because these plaintiffs "have not demonstrated that [the FWS's] regulatory actions have caused injury-in-fact to them that could be redressed by the Court." EWA Defendant-Intervenor Friends of Animals' Cross-Mot. for Summ. J., ECF No. 87, at 2; see also EWA DOW Intervenor-Defs.' Cross-Mot. for Summ. J. ("EWA DOW Mem."), ECF No. 83, at 14 n. 4; Friends of Animals' Resp. to Pls. EWA's Supplemental Brief, ECF No. 114, at 2; DOW Intervenor-Defs.' Supplemental Brief Concerning Pls.' Prudential Standing, ECF No. 112, at 2.
First, the Court provides a brief background about the EWA and its membership as well as the individual plaintiffs in the EWA matter and then turns to the question of whether the EWA plaintiffs have established an injury-in-fact to bring their challenge to the Removal Rule.
The plaintiffs are the EWA and nine named members of the EWA. The EWA is a trade organization of ranchers, headquartered in Texas, with approximately 5,000 members throughout several states. See EWA Compl. at 7, ¶ 10.
As an organization, the EWA "promotes `conservation through commerce' and the need for `sustainable utilization' of wildlife as a conservation tool on privately owned" ranches. Id. Indeed, the EWA plaintiffs assert that "[a] primary activity of Exotic Wildlife Ranchers is to conserve and recover the stocks of these three antelope species so they can eventually be reintroduced to their native habitat in Africa." Id. ¶ 11. The EWA plaintiffs explain that "Exotic Wildlife Ranchers have even shipped animals back to Africa for reintroduction into their native habitats, and are prepared to provide more animals for reintroduction as soon as it is safe and prudent to so." Id. ¶ 41. The EWA plaintiffs' Complaint also provides a description of each of the named plaintiffs, who own or
The Court finds that the EWA plaintiffs have demonstrated an injury-in-fact that is both "concrete and particularized" and "actual or imminent[.]" Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks omitted). Specifically, the EWA plaintiffs provided declarations showing that even before the Removal Rule was finalized and was merely announced, they suffered both economic and environmental injuries. First, the declarations demonstrate that the announcement of the Removal Rule resulted in the prices of the three antelope species dropping "dramatically." See, e.g., Decl. of Eddy Blassingame ("Blassingame Decl."), 12-cv-00340, ECF No. 3-6, Ex. D, ¶ 5; Decl. of Ed Valicek ("Valicek Decl."), 12-cv-00340, ECF No. 3-14, Ex. L, ¶ 4. Second, ranchers have felt "force[d] to reduce" their herds as a result of the news that the permitting requirements would go into effect. See e.g., Decl. of Ray Dockery ("Dockery Decl."), 12-cv-00340, ECF No. 3-9, Ex. G, ¶ 2; Decl. of Joe Green ("J. Green Decl."), 12-cv-00340, ECF No. 3-10, Ex. H, ¶ 5; Decl. of Charly Seale ("Seale Decl."), 12-cv-00340, ECF No. 3-5, Ex. C, ¶ 11; Decl. of Nancy Green ("N. Green Decl."), 12-cv-00340, ECF No. 3-11, Ex. I, ¶ 4; Decl. of Thomas E. Oates ("Oates Decl."), 12-cv-00340, ECF No. 3-13, Ex. K, ¶ 2. Third, the declarations demonstrate the EWA plaintiffs' interest in and concern for the environment. See, e.g., Decl. of Dr. Pat Condy ("Condy Decl."), 12-cv-00340, ECF No. 3-8, Ex. F, ¶ 14 (explaining that the Removal Rule "changes the forces of the market place, such that they get out of sync with the forces of nature. Not simply does this seriously jeopardize the very survival of these species, but it is also greatly demoralizing to the voluntary participation of private landowners in endangered species conservation of exotic and/or native wildlife species"). These declarations, together, establish an injury-in-fact. Although the record is bare as to the experience of the EWA plaintiffs with the permitting process following the issuance of the Removal Rule, the announcement of the Removal Rule had already caused a measurable drop in the value of the antelope herds, which form a basis for the EWA plaintiffs' livelihood. This drop in the value of the antelope herds has prompted some EWA plaintiffs to sell their herds, an action which ranchers believe will lead to environmental harm.
Defendant-intervenor Friends of Animals is incorrect in arguing that the EWA plaintiffs have "fail[ed] to allege with any clarity a specific injury that the Plaintiffs have incurred (or may incur) as a direct result of the FWS'[s] promulgation of the [Removal Rule]." EWA Friends of Animals Mem. in Supp. of Cross-Mot. for Summ. J., ECF No. 87-1, at 9. Friends of Animals also argues that the Removal Rule "did not require the Plaintiffs to sell off their animals" and that "such a self-inflicted injury cannot be used to form the basis of standing." Id. at 10. The Court disagrees. For the purposes of evaluating standing, the EWA plaintiffs have alleged a concrete injury, namely that the Removal Rule actually caused a precipitous decline in the value of the animals that have formed a basis of their livelihood. This alleged injury, supported by numerous declarations, is sufficient to establish Article III standing.
The Court next addresses the second and third prongs of the standing analysis — whether the injury is fairly traceable to the challenged action and whether the injury will be redressed by a favorable decision. The Court concludes that the EWA plaintiffs demonstrate both of these elements.
Second, for the purposes of standing, these injuries could conceivably be redressed by this Court, for example, by a decision that the FWS needs to go back to the drawing board to respond to the 2009 Decision in a way that not only complies with the 2009 Decision that the Captive-bred Exemption is invalid but also addresses the FWS's underlying rationale for promulgating the Captive-bred Exemption alongside of the Listing Rule in 2005. While a decision by this Court would not negate the 2009 Decision, it would leave the Captive-bred Exemption in place until the FWS reevaluated its response to the 2009 Decision. In sum, the Court finds that the EWA plaintiffs have demonstrated Article III standing. Accordingly, the Court denies the Defendant-Intervenor Friends of Animals' Cross-Motion for Summary Judgment, ECF No. 87, which is based solely on the alleged lack of standing of the EWA plaintiffs.
While the Court considered the Article III standing of the plaintiffs in deciding the motions for preliminary injunctions, see Safari P.I. Decision, 852 F.Supp.2d at 111 n. 7, the Court did not consider the prudential standing of the plaintiffs. The Court must do so here because the D.C. Circuit has made it clear that prudential standing is a jurisdictional requirement. See Ass'n of Battery Recyclers v. EPA, 716 F.3d 667, 674 (D.C.Cir. 2013) ("[T]his Circuit treats prudential standing as `a jurisdictional issue which cannot be waived or conceded[.]'" (citation omitted)); Deutsche Bank Nat'l Trust Co. v. FDIC, 717 F.3d 189, 194 n. 4 (D.C.Cir. 2013) ("Prudential standing, like Article III standing, is a threshold, jurisdictional concept."). Even where plaintiffs have established Article III standing, considerations of prudential standing may prevent a court from allowing plaintiffs to proceed with their legal challenge.
Indeed, the D.C. Circuit's decision in Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169, 180 (D.C.Cir.2012), which was decided after this Court issued its Memorandum Opinion denying the plaintiffs' motions for preliminary injunctions, highlighted that prudential standing is a jurisdictional
Since the parties had not explicitly addressed the question of prudential standing of either set of plaintiffs at any length in their briefs, the Court ordered the parties to supplement their briefing to explain the bases for prudential standing in light of this Circuit's clarification that prudential standing is a jurisdictional requirement. See Minute Order (Mar. 22, 2013). The parties all filed supplementary briefs in accordance with this Minute Order, which the Court has considered. See Supplemental Brief of Pls. EWA in Supp. of Mot. for Summ. J. and Opp'n to Def.-Intervenor's Mot. to Dismiss, ECF No. 110; SCI's Brief to Explain Bases for Its Prudential Standing, ECF No. 111; DOW Intervenor Defs.' Supplemental Brief Concerning Pls.' Prudential Standing, ECF No. 112; Fed. Defs.' Response to Pls.' Supplemental Briefs on Prudential Standing, ECF No. 113; Friends of Animals' Response to Pls. EWA's Supplemental Brief, ECF No. 114. In those briefs, the parties concede that the SCI plaintiff has met or is not required to meet prudential standing requirements, but contest whether or not the EWA plaintiffs have demonstrated prudential standing.
Prudential standing "embodies `judicially self-imposed limits on the exercise of federal jurisdiction[.]'" United States v. Windsor, ___ U.S. ___, 133 S.Ct. 2675, 2685, 186 L.Ed.2d 808 (2013) (citations omitted). "[B]y contrast" to the requirements of Article III standing, the Supreme
As is relevant here, in order to demonstrate prudential standing, a group "`must show that the interest it seeks to protect is arguably within the zone of interests to be protected or regulated by the statute ... in question' or by any provision `integral[ly] relat[ed]' to it." Grocery Mfrs. Ass'n, 693 F.3d at 179 (quoting Nat'l Petrochem. & Refiners Ass'n v. EPA, 287 F.3d 1130, 1147 (D.C.Cir.2002)). "The essential inquiry [of the zone of interests test] is whether Congress `intended for [a particular] class [of plaintiffs] to be relied upon to challenge agency disregard of the law.'" Clarke, 479 U.S. at 399-400, 107 S.Ct. 750 (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 347, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984)); see also Ass'n of Battery Recyclers, 716 F.3d at 676 (Silberman, J., concurring) (suggesting that prudential standing doctrine involving the zone of interests test is more appropriately called "statutory standing" and explaining that "[t]his particular type of prudential standing is thus typically tied to at least two statutes — the organic statute underlying a complaint and the APA itself" and that "[t]he question of whether a plaintiff has statutory standing ... depends on Congressional intent — does Congress intend that this particular class of persons have a right to sue under this substantive statute?"). The zone of interests requirement operates as "`a gloss on the meaning of [5 U.S.C] § 702,' which limits the universe of persons permitted to sue under the APA to those `adversely affected or aggrieved by agency action within the meaning of a relevant statute[.]'" Bloomberg L.P. v. CFTC, No. 13-523, 949 F.Supp.2d 91, 124 n. 23, 2013 WL 2458283, at *26 n. 23, 2013 U.S. Dist, LEXIS 80275, at *90 n. 23 (D.D.C. June 7, 2013) (quoting Clarke, 479 U.S. at 395, 107 S.Ct. 750). In short, under the zone of interests test, plaintiffs asserting causes of action under the APA must be "within the `zone of interests' of the relevant substantive statute." Id. (emphasis in original) (quoting Ass'n of Battery Recyclers, 716 F.3d at 676 (Silberman, J., concurring)).
The Court first turns to a discussion of the SCI plaintiff, and then to the EWA plaintiffs, and concludes that both sets of plaintiffs have demonstrated prudential standing.
In this action, the SCI plaintiff has four remaining claims: three under the APA
As the SCI plaintiff acknowledges, however, it must have prudential standing to raise Counts I through III under the APA as the "citizen suit provision does not apply to cases involving the Secretary of the Interior/FWS's `maladministration' of the ESA." SCI's Brief to Explain the Bases for Its Prudential Standing, ECF No. 111, at 3 n. 1 (quoting Bennett, 520 U.S. at 174, 117 S.Ct. 1154); see also Building Indus. Ass'n v. Babbitt, 979 F.Supp. 893, 900 (D.D.C.1997) (explaining that "suits (such as the instant action) to compel the Secretary to perform his statutory responsibilities under the ESA, for example, are cognizable only under the APA" and that plaintiffs bringing APA claims "are indeed subject to the zone-of-interests test").
Here, the relevant substantive statutory provisions at issue are section 4 of the ESA related to the listing of species as endangered and threatened, see 16 U.S.C. § 1533, and section 9 of the ESA related to prohibitions on taking, see 16 U.S.C. § 1538. Since the declarations submitted by SCI members establish that these members are "directly regulated by the listing of the three antelope species[,]" and subject to any prohibitions regarding treatment of listed species, SCI members, and SCI as an association, fall "within the zone of interests" of these ESA provisions. SCI's Brief to Explain Bases For Its Prudential Standing, ECF No. 111 at 3. Accordingly, like the federal defendants, the Court is satisfied that the SCI plaintiff has established its burden to demonstrate prudential standing. See Fed. Defs.' Resp. to Pls.' Supplemental Briefs on Prudential Standing, ECF No. 113, at 2 (noting that "[i]f SCI's ESA claims arise under the APA, SCI's declarations filed in support of its motion for summary judgment are likely sufficient to satisfy its burden"); see also Bldg. Indus. Ass'n, 979 F.Supp. at 901 (concluding that entities "directly regulated by the listing of the fairy shrimp" had prudential standing to challenge the listing of these shrimp as endangered).
The Court next turns to the question of the prudential standing of the EWA plaintiffs. While the federal defendants had not earlier raised a challenge to the EWA plaintiffs' prudential standing, the federal defendants in their supplemental briefing argue that the EWA plaintiffs do not demonstrate prudential standing for at least two of their claims, Counts I and II. See Fed. Defs.' Resp. to Pls.' Supplemental Briefs on Prudential Standing, ECF No. 113, at 3. The defendant-intervenors,
In their Complaint, the EWA plaintiffs assert four causes of action under the APA: two claims under the APA (Counts I and II), one claim under the APA and ESA (Count III), and one claim under the APA and NEPA (Count IV). The Court will discuss the causes of action in turn, beginning with the EWA plaintiffs' claims brought solely under the APA.
Although the EWA plaintiffs' causes of action in Counts I and II do not specifically reference an ESA statutory provision, the most relevant substantive statutory provisions are section 9 of the ESA, which is related to prohibitions on taking, see 16 U.S.C. § 1538, and section 10, which allows the FWS to permit "any act otherwise prohibited by [Section 9] for scientific purposes or to enhance the propagation or survival of the affected species[,]" see 16 U.S.C. § 1539(a)(1)(A). In reviewing both the Complaint and the declarations, for the reasons explained below, the Court concludes that the EWA plaintiffs have prudential standing to raise the APA claims in Counts I and II.
First, the Court finds fundamentally flawed the federal defendants' argument that "EWA's prudential standing is not self-evident because it is not challenging the regulation (the listing determination) that directly regulates it. Instead, EWA is challenging [the Removal Rule] regulation that does not regulate it at all." See Fed. Defs.' Resp. to Pls.' Supplemental Brief on Prudential Standing, ECF No. 113, at 4. The Removal Rule directly regulates the EWA plaintiffs in that it has the purpose and effect of removing the broad section 10 Captive-bred Exemption and subjecting the EWA plaintiffs to the section 9 Listing Rule restrictions, for the first time since the Listing Rule was created. See, e.g., EWA Compl. ¶ 47 ("[O]n January 5, 2012, FWS issued its final rule, removing the exemption and subjecting Exotic Wildlife ranchers to the permit requirements (as well as the civil and criminal penalties for violation) applicable to all endangered species." (footnote omitted)). As with the SCI plaintiff, the EWA plaintiffs are now directly regulated by the requirements in section 9 under the Listing Rule as the direct and intended result of the Removal Rule. Since the Removal Rule's purpose and impact "adversely affected or aggrieved" the plaintiffs, see Bloomberg L.P., 949 F.Supp.2d at 124 n. 23, 2013 WL 2458283, at *26 n. 23, 2013 U.S. Dist. LEXIS 80275, at *90 n. 23 (quoting Clarke, 479 U.S. at 395, 107 S.Ct. 750)
Second, the federal defendants argue that "the only ESA provision that EWA could rely on is ESA section 10, which was the basis for the regulatory permit that allowed EWA to engage in activities that otherwise are prohibited for endangered species." Fed. Defs.' Resp. to Pls.' Supplemental Briefs on Prudential Standing, ECF No. 113, at 5. Yet, the federal defendants argue in conclusory fashion that "EWA's interest in having a regulatory permit cannot be within the zone of interests to be protected by ESA Section 10, given that this Court previously determined that the [FWS] promulgated the regulatory permit in violation of ESA Section 10(c)." Id. at 5-6 (citing 2009 Decision); see also Friends of Animals' Resp. to EWA Pls.' Supplemental Brief, ECF No. 114, at 5 (asserting that while "there is no doubt that EWA would be able to assert an interest in obtaining a Section 10(a)(1)(A) permit and even challenge the denial of such a permit[,]" here, the EWA plaintiffs do not have prudential standing because "EWA claims an interest in an interpretation of Section 10 already held by this court to be illegal and contrary to Congressional intent").
The Court disagrees. As discussed in consideration of the EWA plaintiffs' Article III standing, while the 2009 Decision concluded that the Captive-bred Exemption was promulgated in violation of subsection 10(c), this ruling did not specifically vacate the regulation but instead left it to the FWS to determine how to proceed in a manner consistent with the decision. That is, that decision did not foreclose reconsideration of other mechanisms to regulate the three antelope species in light of the benefits of U.S. captive herding of these animals. The fact that the EWA plaintiffs believe that the FWS too narrowly construed the 2009 Decision by simply repealing the flawed Captive-bred Exemption, rather than reevaluating why it had promulgated the exemption with the Listing Rule in the first place, is enough to place the EWA plaintiffs in the zone of interests to challenge the Removal Rule. In other words, it must be the case that where plaintiffs are within the zone of interests of a regulation that has directly regulated them for years and on which they have relied, and the agency interprets a subsequent judicial ruling related to that regulation, the plaintiffs remain within the regulation's zone of interests and may challenge the agency interpretation where they believe the agency has misinterpreted or misapplied the judicial decision. See, e.g., Nat'l Petrochem. & Refiners Ass'n, 287 F.3d at 1147 ("In determining whether a petitioner falls within the zone of interests to be protected by a statute, we do not look at the specific provision said to have been violated in complete isolation, but rather in combination with other provisions to which it bears an integral relationship." (citation and internal quotation marks omitted)). In sum, the Court concludes that the EWA plaintiffs' APA claims under the ESA are within the zone of interests regulated by sections 9 and 10. The EWA plaintiffs have thus demonstrated prudential standing to challenge the FWS's decision to remove the Captive-bred Exemption that has caused the EWA plaintiffs to be subject to the Listing Rule regulations under the APA.
The Court next turns to the EWA plaintiffs' third claim under the ESA. The Court agrees with the federal defendants
Finally, the Court turns to the EWA plaintiffs' fourth claim under NEPA. The D.C. Circuit has explained that "NEPA, of course, is a statute aimed at the protection of the environment." ANR Pipeline Co. v. FERC, 205 F.3d 403, 408 (D.C.Cir.2000). Thus, in order to demonstrate prudential standing to raise the claim under NEPA, the EWA plaintiffs must allege that they will suffer an environmental injury. See id. Here, the EWA plaintiffs supplemented their Motion for Preliminary Injunction with declarations providing support for their position that they will suffer an environmental injury from the Removal Rule. See, e.g., Condy Decl. ¶ 10 (explaining that "the highly successful recovery results achieved by the Exotic Wildlife ranchers will all come to an end if there is no longer a market force monetary incentive for these ranchers to keep hosting and breeding these species. And that's exactly what this FWS rule means — no more economic incentive. And to these species, it means a rapid decline in numbers, a loss of genetic diversity, and likely extinction"). The federal defendants essentially concede that "[i]f the Court determines that EWA can rely on the declarations it provided with its motion for preliminary injunction, Federal Defendants believe it is likely that at least some of EWA's declarations would suffice to demonstrate a sufficient interest in the environment to satisfy the prudential standing requirement for a NEPA claim." Fed. Defs.' Resp. to Pls.' Supplemental Briefs on Prudential Standing, ECF No. 113, at 6. The Court agrees.
The Court must also address one other prudential issue in the SCI Action. As summary judgment briefing in this case was drawing to a close, defendant-intervenor Friends of Animals, in its Reply in Support of its Motion for Summary Judgment and Notice of Supplemental Authority, set forth a new argument, in addition to the argument that the SCI plaintiff's claims lack merit, that "this case is not ripe for review." SCI Friends of Animals' Reply in Supp. of Mot. for Summ. J. and Notice of Supplemental Authority ("FOA Reply and Notice"), ECF No. 92, at 2 (emphasis omitted); see also Friends of Animals' Response to EWA Pls.' Supplemental Brief, ECF No. 114, at 2 n. 1 ("This Court ... should dismiss SCI's claims for a lack of ripeness[.]")
Specifically, Friends of Animals argues that, as in the recent D.C. Circuit decision in Am. Petroleum Inst. v. Envtl. Protection Agency, 683 F.3d 382, 384 (D.C.Cir. 2012), here, given the FWS's legal obligation under section 4 of the ESA to respond to SCI's pending delisting petition, "the issues raised by SCI's remaining claims, which directly seek to set aside the 2005 listing rule, are not fit for judicial decision." FOA Reply and Notice at 2-3. Since the FWS has recently completed its 12-month findings on the SCI plaintiff's delisting petition, the Friends of Animals' ripeness argument is moot, and the Court concludes that this matter is ripe for review. Accordingly, the Court now turns to the merits of the SCI plaintiff's claims.
Although the SCI and the EWA Actions are consolidated, the merits of each action must be evaluated separately because the plaintiffs challenge different rules with separate administrative records. The Court first addresses the SCI plaintiff's challenges to the 2005 Listing Rule, and then proceeds to the EWA plaintiffs' challenges to the 2012 Removal Rule.
In the SCI Action, the plaintiff challenges the FWS's decision to include U.S. non-native captive-bred populations of the three antelope species in the 2005 endangered species classification of the species as a whole. In moving for summary judgment, the SCI plaintiff argues that the FWS (1) "acted arbitrarily and capriciously and in a manner inconsistent with ongoing agency decision-making made for other similarly situated species," and (2) "ignored the conservation mandates of the ESA and the fact that inclusion of the captive populations would harm rather than serve the conservation of populations of the three antelope species." SCI Mem. at 31-32. The federal defendants argue in response, and in support of their Cross-Motion for Summary Judgment, that (1) the FWS's "decision to list all members of the Three Antelope species is consistent with [FWS] policy and practice and was based on years of deliberation over the appropriate way to list these particular species," (2) the FWS was not obligated to designate the three antelope species located in the U.S. as a distinct population segment ("DPS") and was not required to provide a reason for not doing so, and (3) the decision to list as endangered the three antelope species held captive in the U.S. was consistent with the purposes of the ESA. SCI Fed. Defs.' Mem. at 13-25.
The Court agrees with the federal defendants and defendant-intervenors that
The SCI plaintiff argues specifically that the FWS "acted arbitrarily and capriciously and in a manner inconsistent with ongoing agency decision-making made for other similarly situated species," SCI Mem. at 31, because, in other cases involving captive and/or non-native populations of species, the FWS "dealt separately with those captive and or/non-native populations and in some cases had not listed them at all[,]" id. at 33. The SCI plaintiff alleges that not only did the FWS act inconsistently, and even "erratic[ally]," id., but it also failed to explain its justification for the "inconsistent treatment of similarly situated populations[,]" id. at 34. As this Court found in reviewing the SCI plaintiff's Motion for a Preliminary Injunction, however, these arguments are not persuasive. First, the Court concludes that the FWS's decision to classify the U.S. captive-bred antelope along with the other members of the three antelope species is consistent with the FWS's general policy and practice. Second, the FWS was not required to designate the U.S. captive-bred members of the three antelope species as a DPS and acted within its discretion in not doing so.
In response to the SCI plaintiff's argument that the Listing Rule was inconsistent with agency decision-making for other similarly situated species, the federal defendants respond that the FWS's "general practice" is "for captive members of a species to be afforded the same status as those members of the species in the wild." SCI Fed Defs.' Mem. at 19-20. Indeed, as the Court concluded when denying the SCI plaintiff's Motion for a Preliminary Injunction, the SCI plaintiff has "pointed to no evidence suggesting that differentiating between wild and captive animals in listing decisions is a policy of the FWS[.]" SCI P.I. Decision, 852 F.Supp.2d at 113. Instead, the SCI plaintiff relies on fewer than ten examples where the FWS listed or contemplated listing captive or non-native animals separately from wild populations — ranched nile crocodiles, captive chimpanzee populations, Southern Resident
Contrary to the plaintiff's argument, however, all of these examples are distinguishable from the three antelope species or involve listing statuses that have since been changed so that the captive and wild members of the species are now listed together or are in the process of being listed together. The Court addresses each of the SCI plaintiff's examples in turn. First, the Arkansas River shiner, the arctic grayling, the Santa Ana sucker, and the California golden trout are completely distinguishable from the three antelope species because they do not involve a captive population. Thus, as the defendants argue, "[b]ecause the crux of Plaintiff's argument is that the [FWS] is required to afford captive members of a species different status than wild individuals, this distinction renders [these examples] wholly immaterial here." SCI Fed. Defs.' Mem. at 17-18; SCI Fed. Defs.' Reply at 7 n. 4. Second, the SCI plaintiff's example of the Southern Resident killer whales is also immaterial because it was the National Marine Fisheries Service ("NMFS") that listed the Southern Resident killer whales, not the FWS, and the NMFS' actions "do not establish a norm that the [FWS] is bound to follow." Id. at 17 n. 7. Since these species are either fundamentally different than the three antelope species or not under the purview of the FWS, these examples do not provide any support for the SCI plaintiff's argument that the FWS acted inconsistently by listing the three antelope species as a whole.
The Court agrees that, even in light of the nile crocodile and chimpanzee examples, the agency's Listing Rule was not arbitrary and capricious for several reasons. First, the vast majority of the FWS's decisions reflect the agency's "default" practice of listing all members of a species together. Id. at 2. Indeed, while there was internal debate in the FWS about how to list the three antelope species, the SCI AR reveals that many within the FWS believed that listing the species as a whole was most consistent with precedent. See SCI AR 1.0001 (Memorandum from Ronald M. Nowak, Staff Zoologist, OSA, to Chief, OSA, dated Mar. 11, 1991, explaining that "[m]ost precedent suggests that the classification of a species depends on its status in the wild and that any captive stock takes the same classification" while noting that "it might not be contrary to the intent of the law to issue a classification excepting populations in the United States"); SCI AR 28.0028 (Memorandum from Ronald M. Nowak to Chief, OSA, dated Aug. 5, 1991, stating that "[a] separate classification for captive groups is done only rarely and under very restrictive circumstances"); SCI AR 135.0008 (Memorandum from Ronald M. Nowak to Chief, OSA, dated Oct. 25, 1993, explaining that "[c]lassify[ing] entire species as endangered" would "be in keeping with most listing precedent, by which legal status depends mainly on status of species in the wild"); SCI AR 136.0006 (Note from Larry Mason, Acting Assistant Director of International Affairs, FWS, to Charlie Dane, dated Mar. 25, 1994, expressing "concern" regarding a final listing rule "that if we are to alter an existing policy that we do so separate and apart from any particular listing package and with a full understanding of all of the implications associated with such policy exchange"); SCI AR 155.0001 (Note to reviewers, dated Aug. 28, 2002, explaining that "[i]n order to be consistent in the way with which other listed species are treated, we propose in this notice that our most viable option is not to treat captive populations differently from the wild populations and to list all 3 antelopes species as Endangered"). Second, the chimpanzee and crocodile split-listing decisions were made before the FWS promulgated the DPS Policy in 1996 and thus, to the extent that these decisions represented the agency's early thinking about the appropriate split-listing of a species, the agency altered its approach in 1996 with the DPS Policy.
Moreover, in the cases of both the crocodile and the chimpanzee, the FWS has changed course and reconciled or is in the process of reconciling the listing of the captive and wild members of the species. First, as to the crocodiles, the federal defendants point out that "[t]he disparate listing statuses of the ranched and wild Nile crocodiles were reconciled in less than 18 months ... and remain the same today." SCI Fed. Defs.' Mem. at 19 n. 11 (citing Reclassification of Wild Nile Crocodile Populations in Zimbabwe from Endangered to Threatened, 53 Fed.Reg. 38, 451 (Sept. 30, 1988); 50 C.F.R. § 17.11(h)). Second, as to the chimpanzees, the federal defendants asserted in their Cross-Motion for Summary Judgment that the FWS had "recently petitioned to list all chimpanzees as endangered[.]" Id. at 19 n. 11. The federal defendants have since filed a notice with the Court that the FWS's proposed rule to list all of the chimpanzees as endangered was filed in the Federal Register. See Fed. Defs.' Notice of the Publication of a Proposed Rule and 12-Month Finding on Chimpanzees, ECF No. 118, at 1 (citing Listing All Chimpanzees as Endangered, Proposed Rule and 12-month Petition Finding, 78 Fed.Reg. 35, 201 (June 12, 2013)). As the federal defendants noted, "if the [FWS] finalizes the rule, there will be no instances in which members of a species held in captivity are designated differently than members of the species in the wild." Id.; SCI Fed. Defs.' Mem. at 19 n. 11. Accordingly, these examples do not provide support for the SCI plaintiff's position that the listing of the three antelope species was in any way "erratic" or "inconsistent[.]" SCI Mem. at 32, 39. Instead, these examples serve to highlight that the agency's "default" approach to listing species has been to list captive and wild members of a species together.
The SCI plaintiff argues that the FWS, based on its DPS Policy, see supra note 14, was able, in its discretion, to classify the U.S. captive members of the three antelope species as a population separate and distinct from the antelope species living outside of the United States, yet failed to do so, "offer[ing] no explanation why the FWS could not alternatively designate the population based on a separation from other populations by international boundaries and regulatory mechanisms." SCI Mem. at 36; see also SCI Compl. ¶ 74 (alleging that the FWS "illegally fail[ed] to designate the U.S. populations of the three species separately"). While the FWS recognizes that it may designate a DPS, the federal defendants argue that, if the FWS is not petitioned to designate a DPS, this is a purely discretionary decision by the agency and therefore not reviewable. SCI Fed. Defs.' Mem. at 20-22. The federal defendants argue further that, to the extent the FWS was required to respond to SCI's comment addressing the DPS issue, it did so adequately. The Court agrees.
The FWS may designate a DPS in two instances. First, the agency may designate a DPS on its own initiative, based on the factors set forth in the DPS Policy. See id. at 20 (citing 16 U.S.C. § 1533(a)). Nothing in the DPS Policy suggests that the agency is required to designate a DPS at its own initiative, and, in fact, the policy emphasizes Congress's intent that the DPS authority be used "sparingly." See DPS Policy, 61 Fed.Reg. at 4722-25. Here, the FWS concluded, "in its expert opinion, that designating the Three Antelope species located in the United States as a DPS (or DPSs) was not advisable (and with respect to the oryx, not possible given that the species is thought to be extinct in the wild)." SCI Fed. Defs.' Mem. at 21 (citing Listing Rule, 70 Fed.Reg. at 52, 320). Moreover, the federal defendants argue that "[s]ince the [FWS] determined that the best available science indicated that the Three Antelope species qualified in their entireties as endangered species, it was not required to engage in a DPS analysis under the DPS policy." SCI Fed. Defs.' Reply at 9. The Court agrees with the federal defendants that this "exercise of discretionary judgment" regarding whether to designate a DPS "is not subject to review." SCI Fed. Defs.' Mem. at 21 (citing Cape Hatteras Access Pres. Alliance v. U.S. Dep't of Interior, 731 F.Supp.2d 15, 28-29 (D.D.C.2010) (concluding that a decision whether to exclude areas from a critical habitat designation was "unreviewable pursuant to the APA because there is no standard for the Court to apply to the agency's exercise of discretion to not exclude any areas")).
Second, the federal defendants may be petitioned to designate a population as a DPS under 16 U.S.C. § 1533(b)(3)(A), in which case the ESA mandates that the FWS respond to the petition. See SCI Fed. Defs.' Mem. at 21. In this case, it is undisputed that no party petitioned the FWS to designate the U.S. captive members of the three antelope species as a DPS. See id. at 22 ("[I]n the instant case, neither SCI — nor any other interested
The SCI plaintiff argues, however, that even absent a formal petition, the FWS was under an obligation to respond to its comment regarding the designation of a DPS. See SCI Reply at 16-17 (citing AR 199.0004-5, Ex. Y) (Letter from SCI to Chief, DSA, FWS, dated October 22, 2003, stating, inter alia, that "[t]he populations of these three antelope species qualify as Distinct Population Segments when analyzed under the criteria of the [FWS's] DPS policy. In accordance with the FWS' policy, it is appropriate to assign different classifications to different DPS's of the same vertebrate tax on and therefore, while the DPS' for these antelope for North Africa may require one listing, the DPS' of the United States and South Africa need no listing at all."); see also SCI Mem. at 37 n. 11 (noting generally that "[t]he FWS received adequate notice from the comments submitted by [SCI], other members of the public, and agency officials themselves, to realize that they had an obligation to address this issue."). The SCI plaintiff is correct that there is no explicit discussion in the 2005 Listing Rule of the FWS's DPS analysis. Nevertheless, to the extent that the thrust of the SCI plaintiff's comment was a request to designate differently the U.S. captive members of the three antelope species, the Court agrees with the federal defendants that the FWS, following years of deliberation regarding the appropriate way to classify the three antelope species, and consistent with its policy and practice of listing captive and wild members of a species together, "adequately responded to the comment by stating that it would not be appropriate to separately list wild and captive members of the Three Antelope species." SCI Fed. Defs.' Reply at 9-10; see Listing Rule, 70 Fed.Reg. at 52,320.
Finally, the Court turns to the SCI plaintiff's argument that "[t]he FWS's treatment of the three antelope species is inconsistent with the conservation purposes of the ESA." SCI Mem. at 40. The federal defendants respond, and the defendant-intervenors agree, that the FWS's interpretation of the ESA, as embodied in the Listing Rule, is perfectly consistent with the ESA. See SCI Fed. Defs.' Mem. at 22. The Court agrees. Recognizing that the three antelope species were endangered, the FWS acted consistently with the ESA in listing the species as endangered.
As previously noted, the Endangered Species Act ("ESA") has three purposes, as enumerated in 16 U.S.C. § 1531(b):
16 U.S.C. § 1531(b).
For several reasons, the SCI plaintiff cannot show that the Listing Rule is inconsistent with these purposes. First, the SCI plaintiff interprets the ESA as "focus[ed] on the conservation of species within their native ecosystems [,]" SCI Mem. at 22 (emphasis in original), yet argues that "[t]he inclusion of the U.S. non-native captive herds of the three antelope species does not directly conserve the species in their native ecosystems[,]" and it, in fact, "undermines the conservation that has been achieved for the populations living in the United States[,]" id. at 40 (emphasis added). Under the SCI plaintiff's reading of the ESA, the statute's conservation purpose is focused on the conservation of species only "within their native ecosystems." Id. at 22. Logically, then, even if the Listing Rule has some negative impact on the conservation of the non-native members of the three antelope species in the United States, that would be outside the conservation purposes of the ESA.
The Court reads the purposes of the ESA more broadly than the SCI plaintiff. Conserving species within their ecosystems
The question of whether the FWS contravened the conservation purposes of the ESA with the promulgation of the Listing Rule in 2005 appears, at first blush, to require a more complex analysis because of the agency's decision to issue the Captive-bred Exemption at the same time. The Court, however, finds that the Listing Rule was rational and consistent with FWS policy and practice on its own merits, and not only because it was issued concurrently with the Captive-bred Exemption. Thus, the fact that the Captive-bred Exemption was later ruled unlawful does not mean that the Listing Rule itself was inconsistent with the ESA, where the FWS is entitled to deference in its determination, made after over a decade of deliberation, that the split-listing of the three antelope species "would not be appropriate[.]" Listing Rule, 70 Fed.Reg. at 52,320.
Accordingly, the Court denies the SCI plaintiff's Motion for Summary Judgment, ECF No. 45, and grants the cross-motions for summary judgment of the federal defendants, the DOW defendant-intervenors, and the defendant-intervenor Friends of Animals. ECF Nos. 68, 70, 73.
The Court next turns to the EWA Action. In the EWA Action, the plaintiffs, Exotic Wildlife Association, as well as nine named individual plaintiffs, challenge the 2012 Removal Rule, which removed the Captive-bred Exemption that had provided an exemption for otherwise prohibited activities involving the U.S. captive-bred members of the three antelope species. At a practical level, the removal of the Captive-bred Exemption means that ranchers are required to seek permits to continue their use of these animals. Thus, the EWA plaintiffs' challenge, like the SCI plaintiff's challenge, is an attempt to free U.S. ranchers of captive members of the three antelope species from the prohibitions that follow from the designation of a species as endangered. The Court first addresses the preliminary matter of the EWA plaintiffs' Motion to Supplement the AR before turning to the pending motion to dismiss and motions for summary judgment.
The EWA plaintiffs seek to supplement the AR on grounds that the AR for the Removal Rule "necessarily includes the files on which FWS made its original decision to list these three species — and simultaneously exempt them from the unworkable permit system challenged here." EWA Pls.' Mem. in Supp. of Mot. to Supplement the AR, ECF No. 76-1, at 2. In other words, the EWA plaintiffs argue that the Captive-bred Exemption "cannot be separated from the listing rule adopted that same day." Id. In response to the Motion to Supplement the AR, the federal defendants argue that the FWS "issued the Removal Rule in order to comply with" the remand in the 2009 Decision and that "the records for the Listing and [Captive-bred Exemption] Rules were not relevant to the Service's decision whether to issue the Removal Rule, and the Service did not consider any of the documents from these records in making its decision." EWA Fed. Defs.' Opp'n to Pls.' Mot. to Supplement the AR, ECF No. 79, at 2. The Court agrees with the federal defendants that the AR need not be supplemented in order for the Court to consider the merits of the plaintiffs' challenge.
Under the APA, "the court shall review the whole record or those parts of it cited by a party[.]" 5 U.S.C. § 706; see also Am. Wildlands, 530 F.3d at 1002 ("The record consists of the order involved, any findings or reports on which that order is based and `the pleadings, evidence, and other parts of the proceedings before the agency.'" (quoting FED. R.APP.P. 16(a))). Hence, "[i]t is a widely accepted principle of administrative law that the courts base their review of an agency's actions on the materials that were before the agency at the time its decision was made." IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C.Cir.1997); accord Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ("In applying [the arbitrary and capricious] standard, the focal point for judicial review should be the administrative record already in existence,
"There are exceptional circumstances in which supplementation of the administrative record is appropriate due to some deficiency." Marcum v. Salazar, 751 F.Supp.2d 74, 78 (D.D.C.2010); accord City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C.Cir.2010) ("[W]e do not allow parties to supplement the record `unless they can demonstrate unusual circumstances justifying a departure from this general rule.'" (quoting Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C.Cir.1991))); Cape Hatteras Access Pres. Alliance v. U.S. Dep't of Interior, 667 F.Supp.2d 111, 112 (D.D.C.2009) ("A court that orders an administrative agency to supplement the record of its decision is a rare bird."). The D.C. Circuit has recognized three narrow instances in which supplementation of an administrative record may be appropriate: "(1) if the agency `deliberately or negligently excluded documents that may have been adverse to its decision,' (2) if background information was needed `to determine whether the agency considered all the relevant factors,' or (3) if the `agency failed to explain administrative action so as to frustrate judicial review.'" City of Dania Beach, 628 F.3d at 590 (quoting Am. Wildlands, 530 F.3d at 1002). Underlying these exceptions, however, is the "strong presumption" that an agency has properly compiled the entire record of materials that it considered, either directly or indirectly, in making its decision. See, e.g., Marcum, 751 F.Supp.2d at 78; Maritel, Inc. v. Collins, 422 F.Supp.2d 188, 196 (D.D.C.2006) ("Although an agency may not unilaterally determine what constitutes the administrative record, the agency enjoys a presumption that it properly designated the administrative record absent clear evidence to the contrary."). To overcome that presumption, "a plaintiff must put forth concrete evidence that the documents it seeks to `add' to the record were actually before the decisionmakers." Marcum, 751 F.Supp.2d at 78; accord Nat'l Mining Ass'n v. Jackson, 856 F.Supp.2d 150, 156 (D.D.C.2012).
A doctrine related to "supplementing" the administrative record permits consideration of "extra-record evidence." See, e.g., Nat'l Mining Ass'n, 856 F.Supp.2d at 156 ("A separate standard governs judicial consideration of extra-record evidence, which consists of evidence outside or in addition to the administrative record that was not necessarily considered by the agency." (citation and internal quotation marks omitted)). The D.C. Circuit has explained that "the familiar rule that judicial review of agency action is normally to be confined to the administrative record... exerts its maximum force when the substantive soundness of the agency's decision is under scrutiny[.]" Esch v. Yeutter, 876 F.2d 976, 991 (D.C.Cir.1989). When the procedural validity of an agency's action is in question, however, "it may sometimes be appropriate to resort to extra-record information to enable judicial review to become effective." Id. Recently, the Circuit has cautioned that the exceptions announced in Esch are "narrow" and that, "at most [Esch] may be invoked to challenge gross procedural deficiencies[.]" Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C.Cir.2013); accord Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 514 (D.C.Cir.2010) (acknowledging that consideration of extra-record evidence "is the exception, not the rule").
Here, the Court finds no reason to supplement the EWA AR, nor consider extra-record evidence, where the FWS has made crystal clear that it did not consider the administrative records of the Listing Rule and Captive-bred Exemption and instead solely "issued the Removal Rule in order
Instead, the Court agrees with the federal defendants that the EWA plaintiffs' argument that the "Court cannot review the Removal Rule without referring to the documents from the records for these other rules is an issue for the Court to assess when deciding the merits of Plaintiffs' claims, not a basis for supplementing the record." EWA Fed. Defs.' Opp'n to Pls.' Mot. to Supplement the AR, ECF No. 79, at 3. Indeed, in practical terms, it would make no difference if the agency were ordered to supplement the EWA AR because the agency was fully aware, when it issued the Removal Rule, about the protracted history of the Listing Rule and Captive-bred Exemption.
The Court next turns to the Defendant-Intervenor Friends of Animals' Motion to Dismiss the EWA plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(6).
The Court agrees with the EWA plaintiffs, however, that Friends of Animals' arguments do not test the sufficiency of the Complaint and instead go to the merits of the case. On the merits, Friends of Animals' first two arguments are, as the EWA plaintiffs assert, "flawed." EWA Pls.' Mem. in Supp. of Mot. for Summ. J. and Opp'n to Def.-Intervenor's Mot. to Dismiss ("EWA Mem."), ECF No. 78-1, at 36. First, Friends of Animals argues that the EWA plaintiffs have failed to state a claim in their first two causes of action, which allege APA violations, see EWA Compl. ¶¶ 49-56, because they cannot possibly mount a challenge to the Removal Rule where the FWS "was simply responding to a court decision that required it to repeal the [Captive-bred Exemption]." EWA Friends of Animals' Mot. to Dismiss Mem. at 8. This argument is unavailing. It is premised on the assumption that the 2009 Decision compelled the FWS to issue the "Removal Rule" specifically, and the Court disagrees with this premise. The 2009 Decision concluded that "the text, context, purpose and history of section 10 show a clear Congressional intent that permits must be considered on a case-by-case basis," and the Court therefore granted summary judgment to the plaintiffs "with respect to their claim that the FWS violated subsection 10(c) when it promulgated the [Removal] Rule." Friends of Animals, 626 F.Supp.2d at 120. The 2009 Decision did not, however, simply vacate the Captive-bred Exemption, but instead remanded the Captive-bred Exemption to the FWS "for further proceedings consistent with the memorandum opinion." Order, 04-cv-01660, ECF No. 85-1, at 1. As the EWA plaintiffs argue, "[t]here is simply nothing in either the opinion or order that required FWS to issue the [Removal Rule]." EWA Mem. at 37. Indeed, while the decision to issue the Removal Rule was certainly consistent with the 2009 Decision and deemed to be the only appropriate response by the FWS on remand, there is disagreement between the parties about what the 2009 Decision required of the agency with colorable arguments on both sides. As noted, the 2009 Decision left open to the agency the full panoply of its options under the ESA to address the same policy choice reflected in the Captive-bred Exemption without dictating which option (other than foreclosing the legally barred blanket exemption) the agency should adopt. Thus, the EWA plaintiffs may challenge the final agency rule, and this Court will consider the challenges in the context of deciding the parties' cross-motions for summary judgment.
Finally, Friends of Animals seeks to dismiss the EWA plaintiffs' fourth cause of action, alleging that the FWS failed to comply with NEPA and that this failure "was arbitrary, capricious and otherwise not in accordance with law." EWA Compl. ¶ 63. The Court again believes that the EWA plaintiffs have stated a plausible claim as to the NEPA violation, as explained infra, and the Court therefore denies the motion to dismiss of Friends of Animals, ECF No. 47, in which the DOW defendant-intervenors joined, see ECF No. 83, and proceeds to assess the merits of this claim in deciding the cross-motions for summary judgment.
The Court next turns to the pending cross-motions for summary judgment. In their Motion for Summary Judgment, the EWA plaintiffs argue specifically that (1) the Removal Rule violates the APA because (a) the FWS ignored evidence in the EWA AR that the Removal Rule would result in ranchers being forced to reduce or eliminate their herds, (b) the FWS failed to consider alternatives to the permitting scheme, and (c) the FWS specifically failed to consider the alternative of delisting the U.S. captive-bred populations of antelope even though the Listing Rule and Captive-bred Exemption were not severable; (2) the Removal Rule is contrary to law because it destroys rather than conserves the species as required by the ESA; and (3) the Removal Rule is contrary to law because the FWS failed to consider the environmental impacts as required by NEPA. See EWA Mem. at 16-34.
The federal defendants argue in response and in support of their Cross-Motion for Summary Judgment that (1) the Removal Rule is entirely rational and supported by the EWA AR; (2) the FWS adequately responded to comments and, to the extent required, adequately considered alternatives to the Removal Rule; (3) the FWS did not have to consider delisting the U.S. population of the three antelope species in the context of the removal of the Captive-bred Exemption; (4) the EWA plaintiffs failed to provide the required notice for their section 7 ESA claim, the FWS was not subject to the consulting requirements under ESA section 7, and, in
The Court addresses these arguments in turn, and concludes, after the benefit of reviewing the complete AR in this matter, that the FWS's promulgation of the Removal Rule was rational and was not in violation of the APA, ESA, or NEPA.
The Court first turns to the EWA plaintiffs' argument that the Removal Rule "cannot withstand scrutiny" under the APA and that "[i]n promulgating the challenged Rule, FWS ignored the administrative record for both [the Removal Rule] and the tandem (and inseverable) 2005 listing rule[.]" EWA Mem. at 2-3. The FWS argues in response that the "Removal Rule is [e]ntirely [r]ational and [s]upported by the [r]ecord." EWA Fed. Defs.' Mem. at 13. The Court agrees.
In the 2009 Decision, the court concluded that the Captive-bred Exemption was promulgated in violation of subsection 10(c) of the ESA. See Friends of Animals, 626 F.Supp.2d at 115-20. While the 2009 Decision did not specifically vacate the Captive-bred Exemption, and instead remanded the case to the FWS "for further proceedings consistent with the memorandum opinion[,]" see Order, 04-cv-01660, ECF No. 85-1, at 1; Order, 06-cv-02120, ECF No. 44-1, at 1, it is clear from that decision that the Captive-bred Exemption was invalid, could not be enforced, and had to either be removed or modified in some way, see Friends of Animals, 626 F.Supp.2d at 120 ("Because the court concludes that the text, context, purpose and history of section 10 show a clear Congressional intent that permits must be considered on a case-by-case basis, the court grants summary judgment to plaintiffs with respect to their claim that the FWS violated subsection 10(c) when it promulgated the Rule."). While the 2009 Decision left it to the FWS's discretion as to how exactly to remove or modify the Captive-bred Exemption, the FWS was required to respond in a manner consistent with the court's Order. Since the agency's response, in the form of the Removal Rule, was perfectly consistent with the court's Order, the Court concludes that the Removal Rule was rational.
In issuing the Removal Rule, the FWS was clear that it was removing the Captive-bred Exemption specifically "in response to a court order that found that the rule for these three species violated section 10(c) of the Act." Removal Rule, 77 Fed.Reg. at 431; see id. at 432 (noting that the FWS issued the proposed Removal Rule "[t]o comply with the Court's order"); id. (noting that "the reason for which the proposal was made" was "that the exclusion violated the provisions of section 10(c) of the [ESA]"); id. (explaining that "the Court's finding left us no options but to rescind the current regulation"); id. at 434 (noting that the FWS is "taking this action as necessary to comply with the Court's order"); id. at 435 ("The removal of the regulation at 50 C.F.R. § 17.21(h) is based on the Court decision that the regulation is in violation of section 10(c) of the [ESA]."); id. at 436 ("The proposed rule only addressed the Court's finding that the regulations
The EWA plaintiffs insist, however, that the FWS erred in not considering the ARs of the Listing Rule and the Captive-bred Exemption, which were issued in tandem, as well as comments in the record that ranchers would reduce or eliminate their herds in response to the Removal Rule. See EWA Mem. at 17-18. While the agency could have devised another way to respond to the 2009 Decision, one that perhaps more clearly revisited why the agency promulgated the Captive-bred Exemption in the first place, the Court concludes that it was not required to do so in the face of a Court decision ruling that regulation invalid. Indeed, even if the Court were to disagree with the FWS's narrow construction of the 2009 Decision, it finds that construction and the FWS's response in the form of the Removal Rule rational. Accordingly, the Court will not disturb the FWS's decision. See, e.g., Envtl. Def. Fund, Inc., 657 F.2d at 283 (explaining that the "highly deferential" arbitrary and capricious standard "mandates judicial affirmance if a rational basis for the agency's decision is presented ... even though we might otherwise disagree").
The Court appreciates the plaintiffs' view that the FWS construed the 2009 Decision too narrowly as focused on the illegal aspect of the Captive-bred Exemption, and did not properly account for the needs and benefits of the U.S. captive-bred herds of the three antelope species. Indeed, the agency was faced with the legitimate and important equities presented by commercial groups and the success of conservation efforts by these groups. Yet, while the agency could have responded to these equities in some other manner, it was not required to do so where it was faced with the necessity of complying with a court Order in removing an invalid rule.
The EWA plaintiffs suggest that the Removal Rule was improperly based on the agency's erroneous factual findings that ranchers would not be forced to reduce or eliminate their herds in response to the Removal Rule. See EWA Mem. at 17-18. But the federal defendants could not be clearer that they did not base the Removal Rule on any such findings, but instead "on a need to take a rule off the books that a Court had held did not comply with the ESA." EWA Fed. Defs.' Mem. at 14 n. 4. While the plaintiffs may find the FWS's narrow rulemaking frustrating, they have not shown any way in which it was arbitrary and capricious.
The EWA plaintiffs also suggest that it was arbitrary and capricious for the FWS to "impose an arbitrary, one-size-fits-all Rule never meant to apply to these three antelope species." EWA Mem. at 19. The FWS responds that it did not "impose" a permitting system, but rather that the permitting system "simply goes into place in the absence of the [Captive-bred Exemption][,]" and that, furthermore, it was irrelevant if the Removal Rule would lead to negative effects, as the agency had no discretion to leave the Captive-bred Exemption in place. EWA Fed. Defs.' Mem. at 14. The Court again agrees with the FWS. In light of the procedural posture following the 2009 Decision, the agency was required to comply with the 2009 Decision and had to remove or modify the Captive-bred Exemption consistent with
The D.C. Circuit has explained that "`an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.'" Lone Mountain Processing v. Sec'y of Labor, 709 F.3d 1161, 1164 (D.C.Cir.2013) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970)). "Failing to supply such analysis renders the agency's action arbitrary and capricious." Id. (citing Ramaprakash v. FAA, 346 F.3d 1121 (D.C.Cir.2003)). Here, where the agency was clear that it was removing the Captive-bred Exemption in response to the Court Order (and following litigation in which it had zealously advocated to save that very regulation), and that it had considered, but ultimately found no alternatives, the Court finds the agency's rulemaking was rational.
The Court next turns to the EWA plaintiffs' argument that the "FWS also completely failed to consider any alternative to the permitting scheme it announced in the proposed rule and adopted in the Final Rule." EWA Mem. at 19. The FWS argues in response that it was not required to consider alternatives to the standard permitting process, that it was only required to respond to comments to the extent that the comments were "significant," and that, even though it found the commenters' suggestions regarding alternatives "outside the scope of [the Removal Rule] rulemaking," it did consider alternative means of complying with the 2009 Decision. EWA Fed. Defs.' Mem. at 15-18.
For several reasons, the Court agrees with the FWS that its consideration of alternatives was reasonable and not arbitrary and capricious. First, as the FWS contends, the EWA plaintiffs point to no "authority to support the proposition that the [FWS] was required to consider alternatives to the standard endangered species permitting scheme[,]" which provides a robust alternative to the blanket exemption codified in the invalid Captive-bred Exemption. Id. at 15. To the extent that the EWA plaintiffs believed, for example, that it was appropriate for the agency to delist the antelope species as a result of the 2009 Decision that the Captive-bred Exemption was invalid, the appropriate recourse was to challenge the Listing Rule, as did the SCI plaintiffs, or petition for the delisting of members of the species, as EWA plaintiffs did along with other named plaintiffs in the Owen Action.
Third, the result of the Removal Rule, as noted, is that the ranchers and others previously subject to the Captive-bred Exemption are now subject to the FWS's section 10 permitting process. This regulatory process provides an opportunity for notice and comment that allows the agency the benefit of public input, which is valuable to the agency because it cannot be in all places at all times on its own. While the permitting process may be more burdensome for the ranchers who now must individually apply for permits to keep the three antelope species, the section 10 permitting process has numerous benefits, including (1) providing discretion to the FWS about how many permits to approve for "takes" of the three antelope species, (2) providing information to the agency and to the public about which ranches are acting consistently with the ESA's conservation purposes in running businesses involving members of endangered species, and (3) preventing ranchers, who perhaps decide to retire or are frustrated with decreasing prices of the three antelope species, from simply killing off members of the species. Given that the agency already had this permitting process in place, it was rational that the FWS would default to this process in light of the 2009 Decision.
Finally, the agency noted in the Removal Rule that it did "consider[] whether
The Court next turns to the EWA plaintiffs' argument that the Removal Rule "will prevent continued conservation and recovery of these species of endangered antelope," including under Section 7(a)(2) of the ESA, which requires agencies to ensure that their actions are "`not likely to jeopardize the continued existence of any endangered species or threatened species.'" EWA Mem. at 29; see also EWA Compl. at ¶¶ 57-59 ("Third Cause of Action"). The federal defendants argue that the EWA plaintiffs' section 7 citizen-suit claim must be dismissed because the EWA plaintiffs did not provide the FWS with notice of this particular claim sixty days in advance of filing suit. See EWA Fed. Defs.' Mem. at 22; EWA Fed. Defs.' Reply in Supp. of Fed Defs.' Cross-Mot. for Summ. J., ECF No. 99, at 4-5. The Court will grant summary judgment to the federal defendants as to this claim, Count III of the EWA plaintiffs' Complaint, for two reasons.
First, section 7 states that "[n]o action may be commenced" under the citizen-suit provision of the ESA "prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation[.]" 16 U.S.C. § 1540(g)(2)(A); see also Common Sense Salmon Recovery v. Evans, 329 F.Supp.2d 96, 104 (D.D.C.2004) (finding letter that failed to mention permitting claims did not satisfy notice requirement). The notice requirement "`put[s] the agencies on notice of a perceived violation of the statute and an intent to sue.'" Research Air, Inc. v. Norton, No. 05-623, 2006 WL 508341, at *10 (D.D.C. Mar. 1, 2006) (quoting Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998)); see also Conservation Force v. Salazar, 715 F.Supp.2d 99, 104 (D.D.C.2010) (finding letter that did not specifically indicate intent to challenge 12-month finding was insufficient because "it would be unfair [to the agency] to permit this claim to proceed"). "[T]his sixty-day notice requirement is mandatory and jurisdictional." See Research Air, Inc., 2006 WL 508341, at *10 (dismissing ESA citizen-suit claim where plaintiffs' letter did not "give[] notice of what conduct allegedly violated the ESA"); Hallstrom v. Tillamook Cnty., 493 U.S. 20, 26-28, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989). The EWA plaintiffs failed to provide any evidence that they gave the federal defendants sixty days written notice of their intent to bring their section 7 claim. Second, the EWA plaintiffs do not refute the federal defendants' argument, nor even address it. Compare EWA Pls.' Reply in Supp. of Mot. for Summ. J., ECF No. 93, with Owen Pls.' Mem. in Supp. of Mot. for Summ. J., ECF No. 43-1, at 6 (citing Owen AR 1269) (Owen plaintiffs' asserting that they provided proper notice by serving the Secretary with written notice of
The federal defendants also suggest that the EWA plaintiffs' other ESA claims should also be dismissed if the Court construes them as citizen-suit provision claims. See Fed. Defs.' Response to Pls.' Supplemental Briefs on Prudential Standing, ECF No. 113, at 2. The Court does not, however, view those claims in this manner as explained, supra, in this Court's discussion of the EWA plaintiffs' prudential standing. The EWA plaintiffs add confusion to this issue by appearing to argue that the ESA citizen-suit provision applies to all of their ESA claims. See EWA Pls.' Supplemental Brief in Supp. of Their Mot. for Summ. J. and Opp'n to Def.-Intervenor's Mot. to Dismiss, ECF No. 110, at 12 (suggesting that Bennett v. Spear rule negating the zone-of-interests test, which only applies to claims brought under the ESA citizen-suit provision, applies to all of the EWA plaintiffs' claims). The Court does not construe the EWA claims in that way and instead construes the EWA plaintiffs' claims in Counts I and II as arising under the APA, and thus not subject to the citizen-suit provision, nor the 60-day notice of intent to sue requirement.
Finally, the Court turns to the EWA plaintiffs' argument that the Removal Rule was contrary to law because the FWS was required under NEPA to consider the environmental impacts of the Removal Rule. See EWA Mem. at 31-34. Specifically, the EWA plaintiffs claim that the FWS "circumvented compliance" with the NEPA requirement that "`major federal actions significantly affecting the quality of the human environment'" be accompanied by an Environmental Impact Statement ("EIS"), and that a federal action involving "`unresolved conflicts concerning alternative uses of available resources'" should have been preceded by an effort by the agency to develop alternatives to the Removal Rule. Id. at 31 (quoting 42 U.S.C. § 4332).
The federal defendants argue, in response, that the EWA plaintiffs' claim fails for two reasons: "[f]irst, the [FWS] did not have to comply with NEPA because it lacked discretion whether to remove the [Captive-bred Exemption]" and "[s]econd, even if the [FWS] had discretion whether to remove the [Captive-bred Exemption], the [FWS] appropriately determined that the Removal Rule is categorically excluded from NEPA requirements." EWA Fed. Defs.' Mem. at 25. The DOW defendant-intervenors likewise assert that "courts have long held that agencies need not engage in a NEPA analysis — a key part of which is examining alternatives that the agency realistically could select at the end of the process — for nondiscretionary actions such as removing an illegal rule, where the agency has only one option from which to choose." EWA DOW Mem. at 19 (emphasis omitted) (citing Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 770, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004)). The Court agrees with the federal defendants and defendant-intervenors that (1) the FWS lacked discretion in issuing the Removal Rule, and, consequently, (2) the categorical exclusion was properly invoked even if the FWS had discretion to do more
The D.C. Circuit has explained that if an "agency does not have sufficient discretion to affect the outcome of its actions, and its role is merely ministerial, the information that NEPA provides can have no affect on the agency's actions, and therefore NEPA is inapplicable." Citizens Against Rails-To-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1151 (D.C.Cir.2001). Here, since the Court accepts the FWS's argument that "it had no other way to comply with [the 2009 Decision] but to remove" the Captive-bred Exemption as rational, and not arbitrary and capricious, under the APA, it also concludes that it was reasonable for the FWS to believe that NEPA compliance was not required here as a matter of law. See EWA Fed. Defs.' Mem. at 25-26.
The EWA plaintiffs contend that an EIS was required and "[t]he rulemaking does not demonstrate that FWS took a hard look at the problem the permitting requirement will create nor does it make a convincing showing that the impact of the permitting requirement in the challenged rule will be anything other than devastating for the endangered antelope." EWA Mem. at 33. The EWA plaintiffs also insist that NEPA requires "[t]he consideration of alternatives ... independent of the duty to prepare an Environmental Impact Statement" and that "[w]hen no Environmental Impact Statement is prepared, the analysis must still be presented in an Environmental Assessment[,]" but the "FWS prepared neither." Id. Since the Court accepts as rational the FWS's conclusion that it viewed itself as lacking discretion about whether to issue the Removal Rule, however, the NEPA requirements are "inapplicable." Citizens Against Rails-To-Trails, 267 F.3d at 1151; see also Dep't of Transp., 541 U.S. at 770, 124 S.Ct. 2204 (explaining that an agency with "no ability to prevent a certain effect ... did not need to consider the environmental effects").
Even if NEPA applied, the Court agrees with the federal defendants that the FWS "complied with NEPA by determining that its action qualified for a categorical exclusion." EWA Fed. Defs.' Mem. at 26.
Removal Rule, 77 Fed.Reg. at 437.
An agency is not subject to the NEPA requirement to "prepare an EIS and or even an EA if it finds that its proposed action is subject to a `categorical exclusion.'" Reed v. Salazar, 744 F.Supp.2d 98, 103 (D.D.C.2010). A categorical exclusion "means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required." 40 C.F.R. § 1508.4. A variety of actions are categorically excluded from NEPA review, including, as is relevant here, "Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature[,]" 43 C.F.R. § 46.210(i), which the FWS invoked as the applicable categorical exclusion here, see Removal Rule, 77 Fed. Reg. at 437.
Once an agency determines that the action is categorically excluded from NEPA, the "agency's `decision to classify a proposed action as falling within a particular categorical exclusion will be set aside only if a court determines that the decision was arbitrary and capricious.'" Back Country Horsemen of Am. v. Johanns, 424 F.Supp.2d 89, 99 (D.D.C.2006) (quoting Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1023 (10th Cir.2002)); Nat'l Trust for Historic Pres. v. Dole, 828 F.2d 776, 781 (D.C.Cir. 1987). Where, however, "an agency finds that its proposed action falls within a categorical exclusion, the agency must then determine whether there are any `extraordinary circumstances' that nevertheless require the agency to perform an environmental evaluation." Reed, 744 F.Supp.2d at 116; 40 C.F.R. § 1508.4 (explaining that "[a]ny procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect").
The EWA plaintiffs contend that the categorical exclusion does not apply for two reasons: (1) the "FWS's conclusory assertion that the Final Rule is simply a legal change is not supported by the record, is further contradicted by FWS's earlier position with regards to the permits, and is not sufficiently reasoned to allow FWS to apply the exclusion[,]" and (2) "the [FWS's] own regulations remove any possibility that this rulemaking could be exempt from NEPA compliance, because exemptions cannot apply to decisions that have a significant impact on endangered species." EWA Mem. at 32.
The Court finds both of the EWA plaintiffs' arguments unavailing. First, the federal defendants were not required to provide an elaborate explanation of the reasons for applying the categorical exclusion. Rather, the "`[d]ocumentation of reliance on a categorical exclusion ... need only be long enough to indicate to a reviewing court that the agency indeed considered
Second, the EWA plaintiffs have not established that any extraordinary circumstances existed such that an "exception[ ] to the [categorical exclusion] exception" applied in this case. EWA Mem. at 32; see also 40 C.F.R. § 1508.4 ("Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect."). Indeed, where "there is substantial evidence in the record that an extraordinary circumstance might apply, an agency may act arbitrarily and capriciously by failing to explain its determination that a categorical exclusion is applicable." Reed, 744 F.Supp.2d at 116 (citing Brady Campaign to Prevent Gun Violence v. Salazar, 612 F.Supp.2d 1, 17 (D.D.C.2009) (holding that agency's failure to consider reasonably foreseeable impacts renders agency's invocation of a categorical exclusion arbitrary and capricious)). An extraordinary circumstance exists where actions "meet any of the criteria listed" below:
43 C.F.R. § 46.215. In particular, the EWA plaintiffs suggest that the Removal Rule qualifies as an extraordinary circumstance under 43 C.F.R. § 46.215(h) because it "`[h]a[s] significant impacts on species listed, or proposed to be listed, on the List of Endangered or Threatened Species or ha[s] significant impacts on designated Critical Habitat for these species.'" EWA Mem. at 39 (quoting 43 C.F.R. § 46.215(h)).
The Court disagrees. While the declarations submitted by the EWA establish that the plaintiffs have suffered an injury-in-fact from the Removal Rule in the form of a decrease in value and disincentive to continue raising the U.S. captive-bred three antelope species, these declarations do not establish that the Removal Rule will have a "significant impact" on the three antelope species. Indeed, while the analysis for standing required a demonstration of injury-in-fact to the plaintiffs, the NEPA analysis requires that the record contain substantial evidence of the "significant impacts" on the three antelope species themselves or on the "designated Critical
Rather than direct the Court to any "substantial evidence in the record that an extraordinary circumstance might apply" in this instance, Reed, 744 F.Supp.2d at 116, because of any "significant impact" on the three antelope species or their "Critical Habitat[,]" 43 C.F.R. § 46.215(h), the plaintiffs rely on the conclusory argument that "the administrative action exception does not apply to rules that `[h]ave significant impacts on species listed, or proposed to be listed, on the List of Endangered Species or have significant impacts on designated Critical Habitat for these species.'" EWA Mem. at 39 (quoting 43 C.F.R. § 46.215(h)). That unsupported argument is unavailing where the record suggests that the FWS properly invoked the categorical exclusion in this instance, and that, while the FWS believes that the Removal Rule was non-discretionary, the agency nonetheless considered the environmental impact of its decision.
Here, the "`[FWS's] decision to classify a proposed action as falling within a particular categorical exclusion will be set aside only if [the Court] determines that the decision was arbitrary and capricious[.]'" Brady Campaign to Prevent Gun Violence, 612 F.Supp.2d at 15 (internal quotation marks omitted) (quoting Back Country Horsemen of Am. v. Johanns, 424 F.Supp.2d 89, 98 (D.D.C.2006)). In other words, "[t]his Court's function is to `ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious.'" Id. at 17 (quoting City of Olmsted Falls, Ohio v. Fed. Aviation Admin., 292 F.3d 261, 269 (D.C.Cir.2002)). "The scope of this review includes an inquiry into whether the agency has made its decision based on a `consideration of the relevant facts' and whether it has `failed to consider an important aspect' of the issues associated with its decision." Id. (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856).
While invoking the categorical exclusion because it believed that the Removal Rule was subject to a categorical exclusion from NEPA by its very nature, the FWS also acknowledged the potential impact of the regulation on the three antelope species, stating "that there may be an economic impact if people believe that the elimination of [the Captive-bred Exemption] changes the status of the species and therefore creates a change in activities that may be authorized." Removal Rule, 77 Fed.Reg. at 433. The FWS concluded, however, following decades of consideration of the issues at stake, that "[p]rovided that the ranch, zoo, or individual is carrying out activities that benefit or enhance
The EWA plaintiffs, who filed their lawsuit after the statute of limitations had passed to challenge the 2005 Listing Rule, see supra note 20, have aggressively challenged the Removal Rule, which eliminated the Captive-bred Exemption on which they have relied for many years. The Court, however, rejects all of their arguments that the promulgation of the Removal Rule was arbitrary and capricious and contrary to law, and finds that the agency's promulgation of the Removal Rule was a rational response to the 2009 Decision holding the Captive-bred Exemption invalid. Accordingly, the Removal Rule will stand.
For the reasons explained above, in the SCI Action, the Court denies the SCI plaintiff's Motion for Summary Judgment, ECF No. 45, and grants the cross-motions for summary judgment of the federal defendants, the DOW defendant-intervenors, and defendant-intervenor Friends of Animals. ECF Nos. 68, 70, 73. As to the EWA Action, the Court denies the EWA plaintiff's Motion for Summary Judgment, ECF No. 78, the Defendant-Intervenor Friends of Animals' Motion to Dismiss, ECF No. 47, the EWA Plaintiffs' Motion to Supplement the Administrative Record, ECF No. 76, and the Defendant Intervenor Friends of Animals' Cross-Motion for Summary Judgment (Lack of Standing), ECF No. 87, and grants the cross-motions for summary judgment of the federal defendants and the DOW defendant-intervenors. ECF Nos. 84, 83. As to the Owen Action, the Court denies as moot the Owen Plaintiffs' Motion for Summary Judgment, ECF No. 43. An appropriate Order will accompany this Memorandum Opinion.
See Captive-bred Exemption, 70 Fed.Reg. at 52,318-19.
