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National Association of Home Builders v. Ken Salazar

December 8, 2011


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiff National Association of Home Builders ("NAHB") brings this suit against Defendants, Secretary of the Interior Ken Salazar (the "Secretary") and the U.S. Fish and Wildlife Service ("FWS"), for declaratory and injunctive relief, pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 7061 et seq., and the Endangered Species Act ("ESA"), 16 U.S.C. § 1540(g). NAHB challenges the validity of a memorandum drafted by the Solicitor of the Department of the Interior that interprets a phrase in the definitions of "endangered species" and "threatened species" under the ESA.

This matter is now before the Court on Plaintiff's Request for Entry of Final Judgment ("Pl.'s Request") [Dkt. No. 21], and Defendants' Second Motion to Dismiss ("Defs.' Mot.") [Dkt. No. 22]. Upon consideration of the Motions, Oppositions, and Replies, and the entire record herein, and for the reasons stated below, the Court finds that NAHB's claims are now moot, and therefore Plaintiff's Request for Entry of Final Judgment is denied and Defendants' Second Motion to Dismiss is granted.


The ESA is the "'most comprehensive legislation for the preservation of endangered species ever enacted by any nation.'" Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 698 (1995) (quoting Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978)). When Congress enacted the statute in 1973, it intended to bring about the "better safeguarding, for the benefit of all citizens, [of] the Nation's heritage in fish, wildlife, and plants." 16 U.S.C. § 1531(a)(5). Having found that a number of species of fish, wildlife, and plants in the United States had become extinct "as a consequence of economic growth and development untempered by adequate concern and conservation," Congress enacted the ESA in order to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species." Id. §§ 1531(a)(1), (b).

The ESA imposes certain responsibilities on the Secretary of the Interior, who has delegated day-to-day authority for its implementation to FWS. See 16 U.S.C. § 1531(b); 50 C.F.R. § 402.01(b). The ESA's protection of a species and its habitat is triggered only when FWS "lists" a species in danger of becoming extinct as either "endangered" or "threatened." See 16 U.S.C. § 1533.*fn2

A species is "endangered" when it is in "danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6).*fn3 On March 16, 2007, the then Solicitor for the Department of the Interior, David Longly Bernhardt, issued a memorandum defining "a significant portion of its range." Mem. M-37013 (March 16, 2007) (the "SPR Memorandum") [Dkt. No. 9-2]. According to NAHB, the SPR Memorandum improperly "allows the Secretary to list a population of a species as endangered or threatened under the ESA irrespective of whether that population consists of a species of vertebrate fish or wildlife and whether it qualifies as a distinct population segment" under previous policy. Compl. ¶ 38 [Dkt. No. 1].

On May 19, 2010, NAHB filed its Complaint. It alleges that Defendants have violated both the APA and ESA by failing to issue a notice of proposed rulemaking in the Federal Register and failing to provide interested persons an opportunity to comment before publishing the SPR Memorandum. NAHB also alleges that the interpretation of a "significant portion of its range" embodied in the SPR memorandum was in excess of the Secretary's statutory authority and was arbitrary, capricious, or otherwise not in accordance with law. NAHB seeks a declaratory judgment that Defendants' issuance of the SPR Memorandum violated the APA and ESA. NAHB further requests an order vacating the Memorandum and enjoining Defendants from applying its interpretation when determining a species' eligibility for listing as endangered or threatened.

This case is not the only one in which the SPR Memorandum has played a central role. According to NAHB, FWS has applied the SPR Memorandum more than twenty-five times when considering whether the range of a species or a portion of its range should be listed or delisted under the ESA. Pl.'s Opp'n 20 [Dkt. No. 25]. As a result of lawsuits challenging these decisions, two district courts have now rejected the SPR Memorandum's interpretation, as applied to specific species. Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1218-19 (D. Mont. 2010); WildEarth Guardians v. Salazar, No. CV-09-00574-PHX-FJM, 2010 WL 3895682, at *3-6 (D. Ariz. Sept. 30, 2010). The SPR Memorandum is also involved in two other cases, not including this one. Center for Native Ecosystems v. Salazar, No. 09-cv-01463 (JLK) (D. Colo.);*fn4 Center for Biological Diversity v. Salazar, No. 09-cv-2233 (PLF) (D.D.C.).

In response to these lawsuits, the current Solicitor of the Department of the Interior, Hilary C. Tompkins, announced, on May 4, 2011, that she was withdrawing the SPR Memorandum. Mem. M-37024 (May 4, 2011) (the "Withdrawal Memorandum"), Ex. B to Pl.'s Request [Dkt. No. 21-1]. In the Withdrawal Memorandum, the Solicitor stated that the SPR Memorandum was withdrawn in order "to facilitate FWS's review of the SPR phrase and issuance of new guidance." Id.

On May 5, 2011, the parties jointly informed the Court that the SPR Memorandum had been withdrawn and asked the Court to cancel a scheduled motion hearing on Defendants' first Motion to Dismiss. Notice of Withdrawal of Challenged Memorandum [Dkt. No. 17]. After nearly two months of negotiation, the parties informed the Court that they could not reach a settlement and that they would file renewed dispositive motions. Stipulated Briefing Schedule and Proposed Order (July 1, 2011) [Dkt. No. 19].

On July 7, 2011, NAHB filed its Request for Entry of Final Judgment. On July 11, 2011, Defendants filed their second Motion to Dismiss. On August 5, 2011, Defendants filed an Opposition to NAHB's Request for Final Judgment ("Defs.' Opp'n") [Dkt. No. 23]. On August 18, NAHB filed both a Reply to Defendants' Opposition ("Pl.'s Reply") [Dkt. No. 24] and an Opposition to Defendants' Motion to Dismiss ("Pl.'s Opp'n") [Dkt. No. 25]. Finally, on September 6, Defendants filed a Reply to NAHB's Opposition to the Motion to Dismiss ("Defs.' Reply") [Dkt. No. 26].


Under Rule 12(b)(1), Plaintiff bears the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction. See Shuler v. U.S., 531 F.3d 930, 932 (D.C. Cir. 2008). In reviewing a motion to dismiss for lack of subject matter jurisdiction, the Court must accept as true all of the factual allegations set forth in the Complaint; however, such allegations "will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wilbur v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C. 2003) (citations and quotations omitted). The Court may consider matters outside the ...

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