The opinion of the court was delivered by: Emmet G. Sullivan United States District Court Judge
This Document Relates To: ALL CASES
Plaintiffs Center for Biological Diversity ("CBD") and WildEarth Guardians ("Guardians") filed the actions that comprise this Multi-District Litigation ("MDL"). Plaintiffs bring these actions to compel the Fish and Wildlife Service ("FWS") and the Secretary of the Interior (collectively "federal defendants") to comply with statutory deadlines when making the determination whether to list hundreds of species as endangered or threatened under the Endangered Species Act ("ESA"). These consolidated cases - which are now on the verge of settlement - do not seek to require FWS to reach any particular substantive decision on the petitions to list the species. Rather, plaintiffs only seek, and the settlements only provide, that the FWS be required to make a determination in a somewhat timely fashion.
Pending before the Court is a motion to intervene as of right, or, in the alternative, for permissive intervention filed by Safari Club International ("SCI"). SCI requests intervention so that it may oppose the settlement, because its members hunt three of the species at issue: the greater sage grouse, the New England cottontail, and the lesser prairie-chicken.*fn1 SCI argues that the outcome of the FWS listing determinations -- i.e., if the FWS ultimately decides to list the species as threatened or endangered - may result in their inability to hunt the species.
This Court previously faced a nearly identical motion to intervene in this MDL proceeding. In re Endangered Species Act Section 4 Deadline Litigation, 270 F.R.D. 1 (D.D.C. 2010) (hereinafter "In re ESA Litig."). In that motion, TRC, a corporation with an interest in seeing a particular species not be listed moved to intervene, arguing that a decision to list the species would injure its use of its property and its business operations. The Court denied the motion to intervene because TRC failed to demonstrate Article III standing. It held TRC's "alleged injury is based entirely on the potential substantive outcome of the FWS's listing determination for the [species at issue], which is not before this Court." Id. at 5. Because the MDL is limited to the procedural issue of FWS' alleged failures to timely complete steps in the listing process, the Court found that it would not be in a position to rule on the substantive issue of whether a species should or should not ultimately be listed as threatened or endangered. Accordingly, the Court concluded that TRC's claims of injury were neither caused by, nor redressable in, the MDL. Id.
SCI's motion to intervene is indistinguishable from TRC's: it is based solely on the potential substantive outcome of FWS' endangerment determinations. That substantive outcome was not before the Court in 2010, and it is not before the Court now. Therefore, upon consideration of SCI's motion, the responses and replies thereto, the relevant law and the record as a whole, and for the reasons stated herein, SCI's motion to intervene is DENIED.*fn2
The ESA was enacted for the purpose of providing "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[.]" 16 U.S.C. § 1531(b). The
ESA requires the Secretary of the Interior to publish and maintain a
list of all species
that have been designated as threatened or endangered.*fn3
Id. § 1533(c). Species are added to and removed from this
list through a notice and comment process, either on the initiative of
the Secretary or as a result of a petition submitted by an "interested
person." Id. §§ 1533(b)(1), (3), (5).
The ESA establishes specific procedural steps for making a listing determination. Within 90 days of receiving a listing petition, the United States Fish and Wildlife Service ("FWS") must "[t]o the maximum extent practicable" determine whether "the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted." 16 U.S.C. § 1533(b)(3)(A). If the FWS determines on this basis that listing may be warranted, it must promptly commence a review of the species' status. Id. Within 12 months of receiving the listing petition, the agency must have completed its review and must make a finding that listing is either: (1) not warranted; (2) warranted, but precluded by higher listing priorities; or (3) warranted, in which case the FWS must publish a proposed rule to list the species in the Federal Register. Id.
§ 1533(b)(3)(B). The ESA permits no exceptions to this 12-month mandatory deadline.
For any species that FWS determines falls into the second category - that is, a species that may warrant listing, but is precluded by higher priority actions - the species is considered a candidate for listing under the ESA. See 2010 Candidate Notice of Review ("CNOR"), 75 Fed. Reg. 69,222 (Nov. 10, 2010) ("A candidate species is one for which we have on file sufficient information on biological vulnerability and threats to support a proposal to list as endangered or threatened, but for which preparation of a proposal is precluded by higher priority listing actions.") Petitions for warranted-but-precluded species are treated as petitions that present substantial scientific or commercial information indicating that the petitioned action may be warranted. Id. § 1533(b)(3)(C)(i). The ESA requires the FWS to "implement a system to monitor effectively the status" of warranted but precluded species and to "prevent a significant risk to the well being of any such species." Id. § ...