The opinion of the court was delivered by: FRIEDMAN
"Fairy shrimp" are tiny crustaceans found primarily, although not exclusively, in California's Central Valley region. Named for their delicate elongated bodies and wing-like thrashing legs, fairy shrimp are endemic to "vernal pools," sometimes known as seasonal wetlands, which are seasonally wet, isolated water bodies that pond in the winter and spring and evaporate during the summer. Fairy shrimp, the collective term for several similar shrimp species, constitute an important link in the vernal pool ecosystem, providing food for other animals and maintaining various aspects of the vernal pool ecological balance.
As a general matter, vernal pool habitat stretches from southern Oregon down the west coast into Baja California, although fairy shrimp are not found throughout this region. Final Rule, 59 Fed. Reg. at 48136. Since vernal pools occur throughout the farmlands of the Central Valley as well as in other areas of heavy agricultural and urban economic development, much of the fairy shrimp's habitat has been destroyed over the years, and it continues to disappear at a rate of about two to three percent per year. Id. at 48137.
Plaintiffs challenge the listing of these four species of fairy shrimp, arguing that the listings violate the ESA, the Administrative Procedure Act, 5 U.S.C. §§ 501 et seq., and the Fifth Amendment, the Tenth Amendment and the Commerce Clause of the United States Constitution.
Defendants and defendant-intervenors maintain that the listings are well supported by law and the best available science, and that in any event plaintiffs lack standing to challenge the listings because their interests do not fall within the zone of interests that Congress intended to protect with the ESA. The case is before the Court on cross-motions for summary judgment.
An "endangered species" is "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A "threatened species" is "any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). "To the maximum extent practicable," within 90 days after receiving a petition of an interested person to list a species, the Secretary of the Department of the Interior shall make a finding whether the listing may be warranted. 16 U.S.C. § 1533(b)(3)(A). If the listing may be warranted, within 12 months of receiving the petition the Secretary shall make a determination either that the petitioned action is not warranted, warranted, or warranted but precluded. 16 U.S.C. § 1533(b)(3)(B).
In so doing, the Secretary, through the FWS,
shall . . . determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
16 U.S.C. § 1533(a)(1). The Secretary shall make such determinations "solely on the basis of the best scientific and commercial data available . . . ." 16 U.S.C. § 1533(b)(1)(A).
On November 19, 1990, Roxanne Bittman petitioned the FWS to list the Conservancy fairy shrimp, the longhorn fairy shrimp, the vernal pool fairy shrimp, and the California linderiella as endangered species. On April 28, 1991, Dee Warenycia petitioned the FWS to list the vernal pool tadpole shrimp as endangered. The FWS found that the petitions "may be warranted," 56 Fed. Reg. 426968 (Aug. 30, 1991), and published a Proposed Rule proposing to list the five species as endangered. 57 Fed. Reg. 19856 (May 8, 1992), A.R. at 480. An initial public comment period lasted from May 8 through July 7, 1992, and a public hearing was held on August 31, 1992. The public comment period was reopened and extended until September 18, 1992. 57 Fed. Reg. 36380 (Aug. 13, 1992). On September 18, 1992, Representative Vic Fazio organized a public meeting in Red Bluff, California, which representatives of the FWS also attended. By the end of the public notice and comment period, the FWS had received 117 comments from public and private parties including, inter alia, the California Department of Parks and Recreation, the California Department of Fish and Game, and 41 private parties, all supporting the listing; it received comments from 34 private parties (including Sugnet and Associates, a consultant retained by plaintiff BIA), and two Congresspersons opposing the listing. 59 Fed. Reg. at 48139.
On February 9, 1994, conservation groups brought suit to compel the Secretary to list the fairy shrimp species as endangered. Environmental Defense Center v. Babbitt, Case No. 94-0788, Complaint (N.D. Cal. Feb. 9, 1994), A.R. at 19. In compliance with an agreement reached in settlement of that suit, the FWS published its Final Rule on September 19, 1994. See A.R. at 185. The FWS determined that three fairy shrimp species were endangered -- the Conservancy fairy shrimp, the longhorn fairy shrimp and the vernal pool tadpole shrimp -- and that one species, the vernal pool fairy shrimp, was threatened. It based its determination primarily on the present and threatened destruction, modification and curtailment of the fairy shrimp's habitat and range, the inadequacy of existing regulatory mechanisms, and other natural and man-made factors. 59 Fed. Reg. at 48147-50; see 16 U.S.C. § 1533(a)(1).
Judicial review of agency decisions under the ESA is governed by Section 706 of the APA. 5 U.S.C. § 706; see City of Las Vegas v. Lujan, 282 U.S. App. D.C. 57, 891 F.2d 927, 932 (D.C. Cir. 1989). Agency actions may be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The Supreme Court has described the principles governing review as follows:
The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choices made. . . . The reviewing court . . . may not supply a reasoned basis for the agency's action that the agency itself has not given. [The court] will, however, uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.
Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983) (internal quotations and citations omitted). Review is based on the entire administrative record. Camp v. Pitts, 411 U.S. 138, 142, 36 L. Ed. 2d 106, 93 S. Ct. 1241 (1973); see San Luis Obispo Mothers For Peace v. Nuclear Regulatory Commission, 243 U.S. App. D.C. 68, 751 F.2d 1287, 1325-26 (D.C. Cir 1984).
Although the Court may not substitute its judgment for that of the agency, Marsh v. Oregon Natural Resources Defense Council, 490 U.S. 360, 378, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989), the Court's review must nevertheless be "searching and careful." Id.
In this case, much of the dispute revolves around the defendants' scientific conclusions about the state of the fairy shrimp species. The Supreme Court has made clear that under such circumstances where a determination "requires a high level of technical expertise, [a court] must defer to the informed discretion of the responsible federal agencies." Marsh v. Oregon Natural Resources Defense Council, 490 U.S. at 377; see Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103, 76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983) ("When examining this kind of scientific determination . . . a reviewing court must generally be at its most deferential."). In the same vein, "when specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. Oregon Natural Resources Defense Council, 490 U.S. at 378.
Defendants and defendant-intervenors argue that plaintiffs lack Article III standing because they have failed to articulate injury in fact. Defendant-intervenors also argue that plaintiffs lack standing under the ESA and under the APA because they have asserted no interest in protecting the fairy shrimp and therefore do not fall under the "zone of interests" protected by Congress in passing the ESA. The Court concludes that plaintiffs have standing under both tests.
In order to withstand defendants' and defendant-intervenors' suggestion that they lack standing, plaintiffs must demonstrate that they have suffered "injury in fact," that is, injury "fairly traceable" to the actions of defendants and that the injury will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992); Navegar, Inc. v. United States, 322 U.S. App. D.C. 288, 103 F.3d 994, 997-98 (D.C. Cir. 1997). Plaintiffs have provided evidence that the listing of the fairy shrimp has depressed their land values and development prospects, has halted or impeded specific developments, and has already cost them thousands of dollars for sampling surveys as well as the costs of delay. See Declaration of Robert Shattuck PP 5, 7 (Jan. 27, 1996); Declaration of Larry D. Kelley PP 3-12 (Jan. 27, 1996); Declaration of Randy Schaber PP 5-9 (Jan. 26, 1996); Affidavit of Robert Ryan PP 4-6 (Dec. 15, 1995); Declaration of Lorraine Garcy PP 4-12 (Jan. 11, 1996), Pls.' Opposition to Defs.' Motions for Summary Judgment, Exs. A-E.
Defendant-intervenors argue that plaintiffs' injuries are not "fairly traceable" to the listing decision but rather that their injuries will be caused in the future, if at all, by yet-to-be-published regulations promulgated pursuant to the listing. The Supreme Court has recently made clear, however, that the "fairly traceable" requirement does not mean that plaintiffs must show that the listing was "the very last step in the chain of causation." Bennett v. Spear, 137 L. Ed. 2d 281, 117 S. Ct. 1154, 1164 (1997). Rather, plaintiffs can meet their burden by demonstrating that the listing had a "determinative or coercive effect on the action of someone else" who, in turn, caused plaintiffs injury. Id. In this case, the listing has already had significant effects on the Army Corps of Engineers and the various regulatory entities that govern land use in California, which in turn, as the affidavits and declarations demonstrate, have forced plaintiffs to incur costs and delays. Plaintiffs therefore have standing under Article III to challenge the listing.
Under the APA and some parts of the ESA, a plaintiff must meet both Article III standing requirements and prudential standing requirements. Prudential standing is a "judicially self-imposed limit on the exercise of federal jurisdiction," Bennett v. Spear, 117 S. Ct. at 1161, and it "applies unless it is expressly negated." Id. at 1162 (holding that the citizen-suit provision of the ESA, which permits suits by "any person," expands the zone-of-interests for certain claims); see State of Idaho v. ICC, 308 U.S. App. D.C. 268, 35 F.3d 585, 592 (D.C. Cir. 1994). One of the requirements of prudential standing is "that a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit." Bennett v. Spear, 117 S. Ct. at 1161 (citing Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984)).
The Court first held that the citizen-suit provision of the ESA, which authorizes suit by "any person," negates the zone-of-interests test altogether because it manifests a clear congressional intent to permit anyone to sue, no matter the nature of their interest. Bennett v. Spear, 117 S. Ct. at 1162. In other words, an affected interested business that thinks that the FWS has gone too far in seeking to protect and preserve the environment may be a "person" under the ESA on equal footing with a preservationist or environmentalist who challenges an FWS decision not to preserve or conserve the environment sufficiently.
The Court also recognized in Bennett v. Spear, however, that not all suits can be brought under the citizen-suit provision of the ESA; 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. Bennett v. Spear, 117 S. Ct. at 1167. The Court held that such APA plaintiffs are indeed subject to the zone-of-interests test but that the Bennett plaintiffs ...