United States District Court, D. Columbia.
For DEFENDERS OF WILDLIFE, CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs: Collette L. Adkins Giese, LEAD ATTORNEY, PRO HAC VICE, CENTER FOR BIOLOGICAL DIVERSITY, Circle Pines, MN; Jason C. Rylander , DEFENDERS OF WILDLIFE, Washington, DC.
For SALLY JEWELL, DANIEL M. ASHE, Defendants: Clifford Eugene Stevens, Jr., LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, ENRD, Wildlife and Marine Resources Section, Washington, DC.
For SUSAN COMBS, Comptroller of Public Accounts of the State of Texas, in her official capacity, Intervenor Defendant: Nancie G. Marzulla, LEAD ATTORNEY, MARZULLA LAW, LLC, Washington, DC.
For AMERICAN PETROLEUM INSTITUTE, INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA, NEW MEXICO OIL AND GAS ASSOCIATION, PERMIAN BASIN PETROLEUM ASSOCIATION, Intervenor Defendants: David Earl Frulla, LEAD ATTORNEY, KELLEY, DRYE & WARREN, LLP, Washington, DC; Margaret Elizabeth Peloso, VINSON & ELKINS, LLP, Washington, DC.
For TEXAS OIL & GAS ASSOCIATION, Intervenor Defendant: Michael B. Wigmore, LEAD ATTORNEY, VINSON & ELKINS, LLP, Washington, DC; Margaret Elizabeth Peloso, VINSON & ELKINS, LLP, Washington, DC.
Re Document Nos.: 19, 33, 36, 39
RUDOLPH CONTRERAS, United States District Judge.
Granting Federal Defendants' and Intervenor Defendants' Cross-Motions for Summary Judgment and Denying Plaintiffs' Motion for Summary Judgment
In 2012, the U.S. Fish and Wildlife Service (" FWS" or " Service" ) withdrew a proposed
rule that would have listed the dunes sagebrush lizard as an endangered species. Subsequently, the Defenders of Wildlife and the Center for Biological Diversity (" Plaintiffs" ) brought suit against the Secretary of the Interior and the Director of the FWS (" Federal Defendants" ) to challenge the withdrawal decision. The Texas Comptroller of Public Accounts and several oil and gas industry associations intervened as defendants (" Intervenor Defendants" ). Plaintiffs moved for summary judgment, contending that the withdrawal decision failed to account for all of the statutory listing factors provided in the Endangered Species Act (" ESA" ), did not rely on the best available science as mandated by the ESA, and was arbitrary and capricious in violation of both the ESA and Administrative Procedure Act (" APA" ). Federal Defendants and Intervenor Defendants cross-moved for summary judgment, arguing that the FWS's withdrawal decision was lawful. Because the FWS's decision complied with the ESA and APA, the Court grants Federal Defendants' and Intervenor Defendants' cross-motions for summary judgment and denies Plaintiffs' motion for summary judgment.
A. Statutory and Regulatory Framework
Congress enacted the ESA " to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species . . . ." 16 U.S.C. § 1531(b). The ESA defines an endangered species as " any species which is in danger of extinction throughout all or a significant portion of its range," and defines a threatened species as one that is " likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § § 1532(6), 1532(20).
Section 4(a) of the ESA provides that the Secretary of the Interior, through the FWS, " shall by regulation . . . determine whether any species is an endangered species or a threatened species because of any" of five enumerated listing factors. Id. § 1533(a)(1). These listing factors are:
(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.
Id. § 1533(a)(1)(A)-(E). Additionally, section 4(b) of the ESA requires the Secretary to make listing decisions " solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State . . . to protect such species . . . ." Id. § 1533(b)(1)(A).
In 1999, the FWS and National Marine Fisheries Service (" NMFS" ) established a policy to encourage states and private actors to undertake voluntary efforts to conserve candidate species--those being considered for ESA listing. Under the Candidate Conservation Agreements with Assurances (" CCAA" ) framework, in return for implementing agreed-upon conservation measures, state and private entities receive " assurances from the Services that additional conservation measures will not be required . . . should the species become listed in the
future." Announcement of Final Policy for Candidate Conservation Agreements with Assurances, 64 Fed.Reg. 32,726, 32,727 (June 17, 1999). While CCAAs are designed to " remov[e] any need to list the covered species," the mere existence of a CCAA will not preclude listing. Id. Nonetheless, CCAAs have over time become a common mechanism for promoting conservation of numerous candidate species.
In 2003, the FWS and NMFS announced their Policy for Evaluation of Conservation Efforts When Making Listing Decisions (" PECE" ). See PECE, 68 Fed.Reg. 15,100 (Mar. 28, 2003). Pursuant to section 4(b)'s requirement that listing decisions be made " after taking into account those [conservation] efforts, if any, being made by any State," 16 U.S.C. § 1533(b)(1)(A), the PECE allows FWS personnel making listing decisions to consider conservation efforts that have not yet been implemented, so long as the Service evaluates " the certainty that the conservation effort will be implemented," 68 Fed.Reg. at 15,114. Similarly, the PECE enables the FWS to consider conservation efforts that have not yet demonstrated effectiveness, if the Service evaluates " the certainty that the conservation effort will be effective." Id. In sum, the FWS must conclude that future efforts are " sufficiently certain to be implemented and effective." Id. at 15,115.
B. The Dunes Sagebrush Lizard
The dunes sagebrush lizard ( Sceloporus arenicolus ), also known as the sand dune lizard, is a light-brown lizard under three inches in length. It is found only in its shinnery oak dune habitat, where wind patterns create parabolic dunes dependent on shinnery oak in areas with sandy soils. See AR8230. The lizard's habitat spans approximately 745,000 acres, of which roughly 73% is found in New Mexico, and 27% in Texas. See AR8305. Additionally, much of the lizard's New Mexico habitat lies on federal land managed by the Bureau of Land Management (" BLM" ). See AR8341.
The lizard's shinnery oak dune habitat also happens to be located in the Permian Basin, one of ...