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National Association of Home Builders v. U.S. Fish & Wildlife Service

United States District Court, D. Columbia.

March 31, 2014

U.S. FISH AND WILDLIFE SERVICE, et al., Defendants

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For National Association of Home Builders, Olympia Master Builders, Home Builders Association of Greater Austin, Texas Salamander Coalition Inc, Plaintiffs: Rafe Petersen, HOLLAND & KNIGHT, LLP, Washington, DC.

For United States Fish And Wildlife Service, Kenneth Lee Salazar, In his official capacity as Secretary of the Interior U.S. Dept. of Interior, Defendants: Hao-Chin Hubert Yang, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

For Center For Biological Diversity, Movant: Amy R. Atwood, LEAD ATTORNEY, CENTER FOR BIOLOGICAL DIVERSITY, Portland, OR; John T. Buse, PRO HAC VICE, CENTER FOR BIOLOGICAL DIVERSITY, San Francisco, CA.

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Emmet G. Sullivan, United States District Judge.


Plaintiffs are four organizations [1] representing member landowners and businesses in Central Texas and Washington state. They seek injunctive and declaratory relief to set aside and void two Court-approved agreements (" Agreements" ) that were made between environmental advocacy groups and the Fish and Wildlife Service (" Service" ) in 2011 to settle multi-district litigation (" MDL" ). See In re ESA Section 4 Deadline Litig. - MDL No. 2165, 270 F.R.D. 1 (D.D.C. 2010) , WildEarth Guardians Settlement Agreement (" Guardians Agreement" ), ECF No. 31-1; and Center for Biological Diversity Settlement Agreement (" CBD Agreement" ), ECF No. 42-1. The Agreements require the Service to determine by certain deadlines whether to list 251 species as endangered or threatened under the Endangered Species Act (" ESA" ), or find that listing these species is not warranted. Certain of the 251 species either live on, or could live on, land owned or used by Plaintiffs' members. Compl. ¶ ¶ 32-36. Plaintiffs do not challenge any particular listing decision. Pl.'s Opp'n to Defs.' Mot. to Dismiss 13.

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.[2] The Center for Biological Diversity (" CBD" ), one of the plaintiffs in the MDL, has moved to intervene in support of the defendants. In their opposition to the motion to dismiss, Plaintiffs argue that they have standing on the grounds that the Agreements have caused injury to their members' conservation, property, and business interests. Pl.'s Opp'n 12.

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This case marks the latest in a series of challenges to the MDL. This Court and the Circuit Court have considered and rejected nearly identical standing arguments in three prior decisions concerning the MDL. In re Endangered Species Act Deadline Litig. (" Safari Club I " ), 277 F.R.D. 1 (D.D.C. 2011), aff'd 704 F.3d 972, 403 U.S.App.D.C. 276 (D.C. Cir. 2013) (hereinafter " Safari Club II " ), reh'g en banc denied (Apr. 29, 2013); In re ESA Section 4 Deadline Litig. (" Tejon Ranch " ), 270 F.R.D. 1 (D.D.C. 2010). In Tejon Ranch, TRC, a landowning corporation, moved to intervene in the MDL on the claim that the Service's decision to list a species encompassed by the litigation would injure its conservation, property and business interests by precipitating restrictions on the use of its land. Tejon Ranch, 270 F.R.D. at 5. The Court denied TRC's motion to intervene for lack of standing. Id. Because the MDL was limited to whether the Service had followed listing procedures under the ESA, and not whether the Service had made the correct substantive decision to list any species, the Court concluded that TRC's potential injuries were neither caused by, nor redressable in, the MDL. Id. In Safari Club I, this Court denied a hunting group's motion to intervene in the MDL for the same reason. Safari Club I, 277 F.R.D. at 3. The hunting group, Safari Club, alleged that the since-finalized Agreements injured its members' conservation and procedural interests by requiring the Service to decide by certain dates whether to list three species that they hunted. Id. at 4-7. The Court found that Safari Club's asserted conservation injury was indistinguishable from TRC's because it was also based entirely on the potential substantive outcome of the Service's listing determinations. Id. at 3.

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, 404 U.S.App.D.C. 395 (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" ).[3] The consent decree required the EPA to propose rulemaking under the Clean Water Act (" CWA" ) by certain dates. Perciasepe, 714 F.3d at 1321. The trade association alleged that the consent decree caused injury to its members by providing too little time for its members to participate in the CWA rulemaking, id. at 1323, and requiring its members to spend money to respond to the EPA's information requests, id. at 1326. Again, the Circuit denied the motion to intervene for lack of standing, holding that the consent decree did not cause injury to the trade association's members because it only established a timeline by which the EPA must conduct a rulemaking--it did not dictate the substantive content of that rulemaking. Id. at 1324-26.

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

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from those squarely addressed and rejected by the four decisions described above. Therefore, for the reasons below, the Court will DENY Plaintiffs' prayer for injunctive and declaratory relief and GRANT Defendants' motion to dismiss. Accordingly, the Court will DENY as moot Center for Biological Diversity's motion to intervene.


A. Statutory Background

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).

B. Factual and Procedural Background

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 ...

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