Emmet G. Sullivan, United States District Court Judge
Plaintiffs are four organizations
Rather, Plaintiffs claim that the Agreements require the Service to violate procedures to list species that are mandated by Section 4 of the ESA. Compl. ¶¶ 80-95.
The Service and Secretary of Interior ("Defendants") have moved to dismiss for lack of Article III standing, inter alia.
As to Safari Club's alleged procedural injury, the Court concluded that Safari Club failed to identify any part of the Agreements that required the Service to violate procedural requirements. Id. at 7. Safari Club I was subsequently affirmed by this Circuit, which found that "Safari Club has failed to identify a violation of a procedural right afforded by the ESA that is designed to protect its interests." Safari Club II, 704 F.3d at 979.
Even more recently, this Circuit considered, and rejected, nearly identical standing arguments in Defenders of Wildlife v. Perciasepe, 714 F.3d 1317 (D.C.Cir.2013), reh'g en banc denied (June 10, 2013). In that case, a trade association moved to intervene on behalf of its members to oppose a consent decree reached between environmental groups and the Environmental Protection Agency ("EPA").
Taken together, the above cited cases constitute precedent that binds this Court on the issue of Article III standing. Plaintiffs' arguments for standing are indistinguishable
The Endangered Species Act was enacted "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] a program for the conservation of such endangered species and threatened species." Endangered Species Act of 1973 § 2, 16 U.S.C. § 1531(b) (2012). Section 4 of the ESA directs the Service, acting on behalf of the Secretary of Interior, to determine whether a particular species should be listed as endangered or threatened, id. § 1533(a), and when such a determination is made, to designate "critical habitat" for the species, id. § 1533(a)(3)(A)(i). The Service must decide whether to list a species "solely on the basis of the best scientific and commercial data available." § 1533(b)(1)(A). The ESA's protections apply only after a species is listed as endangered or threatened. Id. § 1538(a).
Members of the public may petition the Service to list a species. See id. § 1533(b)(3). For every petition to list a species, the Service must find whether listing is (1) not warranted, (2) warranted, or (3) warranted but precluded by pending proposals to list other species. Id. § 1533(b)(3)(B). If listing is warranted, the Service must (1) promptly publish a proposed rule, id. § 1533(b)(3)(B)(ii), and (2) within one year publish a final rule, withdraw the proposed rule, or delay a final decision for up to six months to solicit more scientific information, id. § 1533(b)(6)(A)(i), 1533(b)(6)(B)(i).
The Service must annually review the species whose listing is warranted-but-precluded, id. § 1533(b)(3)(C)(i), and implement a system to monitor their status and "prevent a significant risk to the well being of any such species," id. § 1533(b)(3)(C)(iii). In addition, the Service must also establish guidelines that include a ranking system to help identify species that should receive priority review for listing. Id. § 1533(h)(3).
The Service annually publishes its latest findings on warranted-but-precluded species ("candidate species") in a Candidate Notice of Review ("CNOR") published in the Federal Register. See, e.g., 2010 CNOR, 75 Fed.Reg. 69,222 (Nov. 10, 2010). Because the number of warranted-but-precluded findings has outpaced the number of listings, the backlog of candidate species had grown to 251 as of 2010. See id. at 69,224. The species are afforded no protection under the ESA while on the candidate list. See 16 U.S.C. § 1538(a).
The Agreements reached in the MDL and at issue in this case seek to clear the backlog of species on the 2010 CNOR. They do not dictate that the Service reach any particular substantive outcome on any petition or listing determination. Safari Club I, 277 F.R.D. at 4. They only require the Service to make some determination — to publish either proposed listing rules or not-warranted findings — for the backlog of species by the end of September 2016. Guardians Agreement, MDL, ECF No. 31-1 at 6; CBD Agreement, MDL, ECF No. 42-1 at 5-6.
Plaintiffs sued Defendants on December 17, 2012, soon after the Service published its proposed rules for the Mazama pocket gopher and salamander species. Importantly, Plaintiffs do not challenge any final rules to list species covered by the Agreements. Rather, all of Plaintiffs' claims arise from the timelines, set by the Agreements, for the Service to determine whether or not listing is warranted. Compl. ¶¶ 80-95.
Defendants move to dismiss for lack of Article III standing. Defs.' Mem. 16-23. Plaintiffs oppose Defendants' motion and assert representational standing on behalf of its members. Pl's Opp'n 10. Plaintiffs assert three bases for their members' standing: (1) the Agreements will impair members' existing and future conservation efforts; (2) they will increase regulatory restrictions on members' use of private land, causing economic harm; and (3) the Agreements cause FWS to breach its legally required procedures, and those breaches harm members' concrete interests. Pl.'s Opp'n 9, 12-13, 22.
Standing is the threshold question in every federal case that determines the Court's power to entertain the suit. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To establish representational standing, an association must demonstrate that "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Nat'l Ass'n of Home Builders v. E.P.A., 667 F.3d 6, 12 (D.C.Cir.2011) (quotation marks omitted). The government disputes the first of these elements:
To establish that their members have Article III standing in their own right, Plaintiffs must demonstrate that their members have suffered 1) an injury in fact, 2) fairly traceable to the challenged action, that is 3) redressable by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An injury in fact must be "(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Id. at 560, 112 S.Ct. 2130 (citations and internal quotation marks omitted). The injury "must be certainly impending," and "`[a]llegations of possible future injury' are not sufficient." Clapper v. Amnesty Intern., ___ U.S. ___, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (emphasis in original).
Plaintiffs allege two types of injury resulting from the Agreements' effect on the listing process. At the outset, the Court notes that this Circuit in Perciasepe rejected standing based on similar assertions of injury resulting from a settlement agreement's effect on the rulemaking process. In Perciasepe, appellant-intervenor sought standing based on asserted injury resulting from a consent decree that required the Environmental Protection Agency ("EPA") to propose rulemaking by a certain date. 714 F.3d at 1321-1322. The Circuit found that:
Id. at 1324 (emphasis in original). Perciasepe thus rejected intervenor's standing, because "Article III standing requires more than the possibility of potentially adverse regulation." Id. at 1324-25.
The same reasoning applies here. Like the consent decree in Perciasepe, the Agreements "do not dictate that [the Service] reach any particular substantive outcome on any petition or listing." Safari Club I, 277 F.R.D. at 4. They merely require the Service to determine — according to a specific schedule — whether listing of the species is warranted or not. Id. "That the consent decree prescribes a date by which regulation could occur does not establish Article III standing." Perciasepe, 714 F.3d at 1325 (emphasis in original). Similarly, that the Agreements set dates by which the Service could list warranted species does not establish Article III standing for Plaintiffs. This reasoning informs the following discussion of Plaintiffs' asserted injuries.
Plaintiffs first argue that their members have standing because the
Plaintiffs' "conservation interest" basis for standing is similar to that rejected by this Court in Tejon Ranch. In that case, private property owners ("TRC") sought standing to intervene in litigation seeking to compel the Service to determine by a certain date whether listing of the Tehachapi slender salamander species was warranted. See Tejon Ranch, 270 F.R.D. at 2. TRC owned land that the Tehachapi slender salamander lived on, and had spent years working with the Service on a conservation plan for the species. Id. at 3. TRC claimed that the timing of the Service's listing determination would injure its interest in ensuring that the conservation plan would be approved and properly considered prior to listing the species. Id. at 5. This Court found that:
Id. at 5. Another judge on this court reached a similar conclusion in Envt'l Defense v. Leavitt, in which a coal industry group attempted to challenge a consent decree which required the EPA to issue certain clean air regulations within a specified timeframe, but did not address the substance of those regulations. 329 F.Supp.2d 55 (D.D.C.2004). The industry group claimed that its interests were harmed because the regulations would be "artificially expedited" which would prevent "due deliberation." Id. at 68. The court rejected the claim, holding that the industry group "fail[ed] to show that the suggested timetable is inadequate or that modifications to the timetable are likely to be necessary, or that any such inadequacies or modifications would result in injury or impairment to" the industry group. Id.
The same analysis applies here. Plaintiffs do not show that their members' conservation efforts will be found sufficient or insufficient to protect the species as a result of the deadlines set forth in the Agreement. They also do not show that the Service will ignore or discount their conservation efforts as a result of the Agreements. Nor do Plaintiffs show the time-frames set forth in the Agreement are inadequate for the Service to make a determination whether or not listing is warranted. Nor could they, since the gopher and salamander species at issue have been on the candidate list for at least ten years.
Plaintiffs' reliance on County of San Miguel v. MacDonald, 244 F.R.D. 36 (D.D.C. 2007), is unavailing. In San Miguel, trade associations sought standing to intervene in an action seeking injunctive relief to order the Service to list a species of bird as "endangered" after the Service had determined that listing was "not warranted." Id. at 38. The trade association-intervenors argued that the relief sought would
In an effort to show that the voluntary conservation efforts of their members are consistent with the ESA, Plaintiffs point out that the Service has issued an advance notice of proposed rulemaking to create incentives for landowners to take voluntary conservation actions. Pl.'s Opp'n 16 (citing 77 Fed.Reg. at 15,352 (March 15, 2012)). However, referencing the Service's intent to promote voluntary conservation does nothing to confer standing where the alleged conservation injury is neither traceable to, nor redressable by, the Agreements that Plaintiffs seek relief from. Put otherwise, Plaintiffs fail to establish that the Agreements, not the Service's alleged failure to recognize their members' conservation efforts, cause the injury that their members complain of. See Perciasepe, 714 F.3d at 1325 n. 7 (finding that the EPA's statements that it intended to update regulation did not confer standing, because "[intervenor] has the burden to establish that the consent decree — not EPA's throat clearing — will cause the injury of which it complains."). Furthermore, as Defendants point out, "voluntary efforts to undertake pre-listing [conservation actions] provide no basis for Plaintiffs' purported injury." Def.'s Reply 9. Plaintiffs "cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is certainly not impending." Clapper, 133 S.Ct. at 1143 (finding no standing for respondents whose alleged injury consisted of costs incurred to avoid risk of harm by the Government).
Because Plaintiffs fail to show that the injury is fairly traceable to the Agreements or redressable by an order to set them aside, the Court finds that Plaintiffs do not have standing based on a purported injury to their members' conservation efforts.
Plaintiffs also assert that the Agreements precipitate additional pre-listing regulatory restrictions by local authorities that injure their members' property and business interests. Pl.'s Opp'n 22. Plaintiffs illustrate this claim with a declaration by John Kaufman, a Plaintiff-member land developer in Washington state. Kaufman Decl. ¶¶ 1-4, ECF No. 14-2. Kaufman states that in the years before the Agreements, he engaged in efforts to protect the Mazama pocket gopher candidate species on his land in order to comply with state and local conservations and potentially obviate federal listing. See Kaufman Decl. ¶¶ 8-16. He states that his habitat management plan was "on track for final approval" by state and local authorities. Id. ¶ 17. According to Kaufman, once the Service entered into the Agreements, local authorities asked the Service to comment on his plan, id. ¶ 19, the Service recommended that the plan be modified, id. ¶ 20, and the local authorities then required Kaufman to implement these recommendations before they approved the plan, id. ¶ 20. From this sequence of events, Kaufman infers that "[w]hat [local authorities] deemed adequate protection for a `candidate' species was suddenly not enough" once the Agreements were approved. Id. ¶ 24.
An action by a third party not before the court may cause injury for Article III standing when that action is a result of a determinative or coercive effect upon that third party. See Bennett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). In Bennett, the Supreme Court held that Oregon ranchers had standing to challenge a Biological Opinion issued by the Service because the Opinion caused the Bureau of Reclamation to reduce water flows, which injured the ranchers. Id. at 169-71, 117 S.Ct. 1154. The Supreme Court found that the Biological Opinion had a determinative or coercive effect on the Bureau because the Bureau would be subject to the Service's enforcement action if it did not comply with the Opinion. Id. at 170, 117 S.Ct. 1154. Here, Plaintiffs do not show that the Service's recommendations had a determinative or coercive effect on local authorities such that they were compelled to implement the recommendations. Def.'s Reply 16, n.10 (explaining that the local authorities faced "no legal consequences if they disagreed with the Service's recommendations" regarding Plaintiff's proposed habitat management plan). That the local authorities independently sought out and incorporated the Service's recommendations once the Agreements were announced does not establish that the Agreements caused them to do so.
Injury cannot be the result of "the independent action of some third party not before the court." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Plaintiffs fail to show that the Agreements — as opposed to the Service's actions separate from the Agreements, or the independent action of local authorities — caused or will cause increased regulatory restrictions. Again, the Agreements "only require the Service to determine whether or not to list the [251 candidate] species within the next several years,
Plaintiffs' alleged injuries are based on the underlying claim that by acting pursuant to the Agreements, the Service fails to follow ESA-mandated procedures. See Compl. ¶ 80-95. To establish standing to challenge the Service's failure to abide by a statutory procedure, Plaintiffs must show that the procedures in question are "designed to protect some threatened concrete interest" of their members. Florida Audubon Soc. v. Bentsen, 94 F.3d 658, 667 (D.C.Cir.1996) (quoting Lujan, 504 U.S. at 573 n. 8, 112 S.Ct. 2130). Plaintiffs must also show "not only that the defendant's acts omitted some procedural requirement, but also that it is substantially probable that the procedural breach will cause the essential injury to the plaintiff's own interest." Id. at 664-665. For the reasons below, the Court finds that Plaintiffs fail to do so, and therefore lack standing on the basis of alleged procedural violations.
First, Plaintiffs claim that the Agreements require the Service to abandon statutorily required procedures for determining whether listing a candidate species is precluded. Compl. ¶¶ 76, 81-82. Second, they claim that the Service discards the procedure for prioritizing candidate species for listing. Id. ¶¶ 77, 84-86. Third, Plaintiffs claim that the Agreements change the procedure for listing species without allowing public notice and comment. Id. ¶ 78, 91-95. Finally, they claim that the Agreements require the Service to make decisions that disregard the best scientific and commercial data available. Id. ¶¶ 77, 88-89.
These claims of procedural violations have been considered and rejected by this Court and Circuit in Safari Club I and Safari Club II. In the Safari Club cases, movant-intervenor Safari Club proffered a number of procedural bases for standing to intervene in the MDL that gave rise to the Agreements. Safari Club first claimed that the ESA required the Service to decide whether listing was precluded before proposing to list a species. Safari Club II, 704 F.3d at 977. The Circuit found that:
Safari Club II, 704 F.3d at 977. Plaintiffs have not attempted to distinguish their claim from Safari Club's.
Next, Plaintiffs claim that by entering into the Agreements, the Service modified its priority ranking system such that the Service no longer proposed to list candidate species in the order of their assigned priority number. Id. ¶¶ 77, 84-86. Again, this claim was considered and rejected in the Safari Club decisions. This Court found that:
277 F.R.D. at 7. The same is true here of Plaintiffs' second claim.
Safari Club also asserted that the Service may not modify its priority ranking system without proper notice and comment. Id. As to that assertion, this Court held that the ESA "does not require that [the Service] must provide notice and comment before applying the [priority listing] guidelines to any species." Id. (explaining that when the Service adopted the priority guidelines thirty years ago, the Service stated "the priority systems presented must be viewed as guides and should not be looked upon as inflexible frameworks for determining resource allocations." 48 Fed.Reg. 43,098 (Sept. 21, 1983). On appeal, the Circuit similarly found that "neither the ESA nor the implementing regulations require the Service to invite comment when it makes a warranted-but-precluded finding." See Safari Club II, 704 F.3d at 979 (citing 16 U.S.C. § 1533 (b)(3)(B) (2012)). Again, Plaintiffs' "notice and comment" claim is virtually identical those asserted by Safari Club in this Court and on appeal, and is rejected for the same reasons.
Finally, Plaintiffs claim that the Agreements compel the Service to make warranted findings without regard for the best scientific and commercial data available. Id. ¶¶ 77, 88-89. This Circuit has already found that the ESA does not provide a mechanism for judicially reviewing warranted findings. 16 U.S.C. § 1533(b)(3)(C)(ii) (2012); Safari Club II, 704 F.3d at 977; see, e.g., Bldg. Indus. Ass'n v. Norton, 247 F.3d 1241, 1246-47 (D.C.Cir.2001) (finding that "[a]ppellants misread § 1533(b)(1)(A): the Service must utilize the `best scientific ... data available,' not the best scientific data possible."). "When the Service proposes to formally list a [candidate] species, the ESA provides no means for the Safari Club to assert that formal listing of the species is precluded. Congress' failure to provide the Safari Club with a means to require continued warranted-but-precluded findings reinforces the conclusion that the ESA contains no such procedural right." Safari Club II, 704 F.3d at 977-78.
In short, Plaintiffs' assertions that the Service violates Section 4 procedures for listing species are indistinguishable from those that this Court and Circuit considered and rejected in the Safari Club cases. They neither identify a listing procedure that the Agreements require the Service to violate, nor identify a listing procedure that is designed to protect their members' interests. Therefore, Plaintiffs fail to establish standing based on alleged violations of statutory procedure.
Plaintiffs do not establish injury to their members sufficient for Article III standing. On the theory of injury to their members' conservation interests, the alleged injury is not fairly traceable to the Agreements or redressable by an order to set them aside. On the theory of increased
