United States District Court, District of Columbia
N. MCFADDEN UNITED STATES DISTRICT JUDGE
suit, three associations representing California ranchers and
farmers challenge the federal designation of over 1.8 million
acres in the Sierra Nevada mountains as critical habitat for
three amphibian species. Before me are two Motions to
Dismiss: one from the Government and one from
Defendant-Intervenors (collectively, Defendants), each
raising jurisdictional and pleading arguments. At this
initial stage, I conclude with one exception that I have
jurisdiction, and that the Complaint survives applicable
Complaint contains two causes of action. In the first, the
Plaintiffs contend that the Government violated the
Regulatory Flexibility Act, 5 U.S.C. §§ 601-612
(RFA), by issuing proposed and final critical habitat
designations (the Proposed and Final Rule) under the
Endangered Species Act, 16 U.S. § 1531 etseq.,
without conducting regulatory flexibility analyses of the
impact of the designation on small entities. Compl. 12-13. In
the second, the Plaintiffs argue that violating the RFA in
turn violates the Administrative Procedure Act (APA), 5
U.S.C. § 706. Compl. 13. The Complaint seeks
declaratory, injunctive, and other forms of relief.
Id. 11-14. After the Government moved to dismiss,
ECF No. 11, 1 granted three environmental groups leave to
intervene as defendants, ECF No. 34, and they also filed
their own Motion to Dismiss, ECF No. 36. The motions are
fully briefed, and the parties have supplemented the record
with affidavits and documentary evidence.
Defendants seek dismissal for lack of jurisdiction under
Fed.R.Civ.P. 12(b)(1), on standing and ripeness grounds, and
for failure to state a claim, under Fed.R.Civ.P. 12(b)(6). A
plaintiff bears the burden of establishing subject-matter
jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992). "[G]eneral factual allegations of
injury resulting from the defendant's conduct may
suffice, for on a motion to dismiss we presum[e] that general
allegations embrace those specific facts that are
necessary to support the claim." Id. (internal
quotation marks and citations omitted). "While the
district court may consider materials outside the pleadings
in deciding whether to grant a motion to dismiss for lack of
jurisdiction ... the court must still accept all of the
factual allegations in [the] complaint as true."
Jerome Stevens Pharm., Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (internal
quotation marks and citations omitted). Ultimately, the
jurisdictional claims must be plausible, not speculative.
Tozzi v. U.S. Dep 't of Health &Human
Servs., 271 F.3d 301, 307 (D.C. Cir. 2001).
avoid dismissal under Fed.R.Civ.P. 12(b)(6), "a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Iqbal, 556 U.S. at 678 (quoting
BellAtl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim crosses from conceivable to plausible
when it contains factual allegations that, if proved, would
' allow the court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged.'" Banneker Ventures, LLC v.
Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration
omitted) (quoting Iqbal, 556 U.S. at 678). A court
must "draw all reasonable inferences from those
allegations in the plaintiffs favor, " but not
"assume the truth of legal conclusions."
The Plaintiffs Have Largely Satisfied Applicable
as here, a plaintiff alleges that it will suffer future
economic harm as the result of a government action, the
complaint and declarations must together demonstrate a
substantial probability of injury-in-fact, causation, and
redressability." Carpenters Indus. Council v.
Zinke, 854 F.3d 1, 5 (D.C. Cir. 2017). Even one dollar
of "[e]conomic harm to a business clearly constitutes an
injury-in-fact." Id. On the "more
difficult question" of causation and the linked issue of
redressability, "common sense can be a useful
tool." Carpenters Indus. Council, 854 F.3d at
5-6, & n. 1. Although the Defendants dispute each prong,
common sense is on the Plaintiffs' side, and I conclude
that they have satisfied the motion to dismiss standards.
Final Rule designates over 1.8 million acres as critical
habitat, Compl. ¶ 1, identifies "inappropriate
grazing" as a threat to the three amphibians, Gov. Mot.
Dismiss Ex. 1 (Final Rule) at 59065, and creates a legal
requirement that federal agencies consult with the U.S.
Forest Service to jointly "insure" that
federally-authorized activities (such as grazing) do not
"result in the destruction or adverse modification of
[critical] habitat" 16 U.S.C. § 1536(a)(2). The
Plaintiffs allege that "a significant number of CCA
[California Cattlemen's Association] members have been
impacted or stand to be impacted" by this designation,
because the land "includes 59 active [U.S.] Forest
Service [grazing] allotments ... [with] significant overlap
between ... grazing permittees and CCA members." Decl.
of Kirk Wilbur, Opp. Ex. 1, ECF No. 38-2 (Wilber Decl.). I
must credit the Plaintiffs' general allegations at this
stage. Lujan, 504 U.S. at 561.
Defendants argue, among other things, that the Plaintiffs
have failed to provide a relevant example of actual or
impending injury, and that the critical habitat designation
will only marginally increase consulting requirements, with
no reduction to grazing rights. But the Government is
restricting land use on 1.8 million acres, citing potentially
inappropriate grazing. The Plaintiffs use at least some of
that land to "obtain" feed for their livestock,
"a necessary raw material." Carpenters Indus.
Council, 854 F.3d at 6; Wilbur Decl. ¶ 12. And even
when consultations allow grazing permits to continue,
associated delays and requirements impose economic costs.
Wilbur Decl. 2-5; Leinassar Decl. 2-6. Existing protections
for these species may have been extensive, but common sense
tells me that a 1.8 million acre land use rule will have some
impact on ranchers and farmers who utilize the land. I find a
"substantial probability" (1) that this action will
at least marginally decrease the supply of feed, (2) that the
Plaintiffs obtain feed from these lands, and (3) that the
Plaintiffs will suffer at least one dollar of economic harm
as a result. See Carpenters Indus. Council, 854 F.3d
at 6. Invalidating the Final Rule would redress
Plaintiffs' claims are also ripe. Ripeness requires
evaluation of "both the fitness of the issues for
judicial decision and the hardship to the parties of
withholding court consideration." Abbott
Laboratories v. Gardner, 387 U.S. 136, 149 (1987).
"[F]itness of an issue for judicial decision depends on
 whether it is purely legal,  whether consideration of
the issue would benefit from a more concrete setting, and 
whether the agency's action is sufficiently final."
Energy Future Coal v. EPA, 793 F.3d 141, 146 (D.C.
Circ. 2014) (quoting Nat'l Assoc, of Home Builders v.
Army Corps of Engineers, 417 F.3d 1272, 1281 (D.C. Cir.
2005)). The Defendants do not dispute that the issues here
are purely legal, or that the Final Rule is final, only
whether the case "would be better litigated in the
context of a . .. consultation resulting in a biological
opinion that restricts members' grazing allotments."
Gov. Mot. Dismiss 20. But the ultimate issue is whether the
Government correctly reasoned that no RFA analyses were
required, because "only Federal action agencies will be
directly regulated, " Compl. 10, and thus the critical
habitat designation "will not.. . have a significant
economic impact on a substantial number of small
entities." 5 U.S.C. § 605(b). This inquiry turns on
whether private parties like the Plaintiffs are
"directly regulated" within the meaning of the RFA,
Mid-Tex Elec. Co-op., Inc. v. F.E.R. C., 773 F.2d
327, 342 (D.C. Cir. 1985), by a critical habitat designation
triggering consultation requirements under 16 U.S.C. §
1536. Because the legal issue has so little to do with any
particular injury, and the Plaintiffs provide at least one
concrete example of a member using land designated as
critical habitat, Wilbur- Decl. ¶ 12,
additional concrete facts would be of little benefit. And I
am satisfied that the hardships imposed on the Plaintiffs are
"sufficiently direct and immediate as to render the
issue appropriate for judicial review at this stage."
Abbott Labs, 387 U.S. at 153.
Defendant-Intervenors also claim that "Plaintiffs'
[RFA] challenge ... under 5 U.S.C. § 603, " is not
reviewable under the judicial review provisions in 5 U.S.C.
§ 611. Interv. Mot. Dismiss 8. To the extent that the
Plaintiffs invoke the RFA alone to test compliance with
Section 603, that claim must be dismissed for lack of
jurisdiction. Allied Local & Reg'IMfrs. Caucus v.
EPA,215 F.3d 61, 79 (D.C. Cir. 2000) ("Section 61
l(a) specifically lists the sections of the RFA subject to
judicial review, and section 603 is not on the list");
see Compl. ¶¶ 45-47. However, I can
consider compliance with Section 603 under APA arbitrary and
capricious review. Id. (finding jurisdiction to
"consider [a ...