MEMORANDUM OPINION
TREVOR
N. MCFADDEN, U.S.D.J.
The
U.S. Fish and Wildlife Service (“FWS”) designated
over 1.8 million acres in California as critical habitat for
three amphibian species. The California Cattlemen's
Association, the California Wool Growers Association, and the
California Farm Bureau Federation (collectively, the
“Cattlemen”) now challenge this designation. They
argue that the FWS did not evaluate the effects of the
critical habitat designation on “small entities,
” as required by the Regulatory Flexibility Act, 5
U.S.C. § 601, et seq. But because the groups
lack standing to sue, the Court will dismiss their Complaint
for lack of subject matter jurisdiction.
I.BACKGROUND
The
Sierra Nevada yellow-legged frog and the mountain
yellow-legged frog live in California's Sierra Nevada
mountain range. 79 Fed.Reg. 24, 256, 24, 258-59 (April 29,
2014) (“Listing Regulation”). The color on their
upper bodies varies, but they are known for their yellow
bellies and hind legs. Id. at 24, 259. These small
frogs inhabit lakes, ponds, marshes, meadows, and streams
high in the Sierra Nevadas. Id. at 24, 259-60. These
highly aquatic species rarely hop more than a meter from
water. Id. at 24, 259.
Yosemite
toads also inhabit the upper elevations of the Sierra
Nevadas. Id. at 24, 286. They are “[r]obust
and stocky with dry, uniformly warty
skin.”[1] These toads live near wet meadows because
of their breeding habits, and adults typically stay near
water. Id. at 24, 285. They can, however, range more
than half-a-mile from their breeding meadows-by walking, not
hopping. Id.
In
2013, the FWS proposed to designate land in California as
critical habitat for these amphibians under the Endangered
Species Act (“ESA”), 16 U.S.C. § 1531,
et seq. 78 Fed.Reg. 24, 516 (proposed Apr. 25, 2013)
(“Proposed Rule”). Under the Regulatory
Flexibility Act (“RFA”), 5 U.S.C. § 601,
et seq., whenever an agency publishes a general
notice of proposed rulemaking, it typically must also prepare
an initial regulatory flexibility analysis. 5 U.S.C. §
603(a). The regulatory flexibility analysis must describe the
effect of the proposed rule on small entities.[2] Id. The
FWS, however, certified that the proposed rule would not
significantly impact a substantial number of small entities.
Proposed Rule, 78 Fed.Reg. at 24, 543. So a regulatory
flexibility analysis was unnecessary under 5 U.S.C. §
605(b).
A year
later, the FWS listed the two frog species as
“endangered” and the Yosemite toad as
“threatened” under the ESA. Listing Regulation,
79 Fed. Reg. at 24, 256. After the FWS listed the species,
the U.S. Forest Service recognized that some activities it
authorizes, including livestock grazing, may affect the
newly-listed species. ESA Section 7 requires federal agencies
to ensure that their actions neither “jeopardize the
continued existence” of any listed species nor
“result in the destruction or adverse
modification” of critical habitat. 16 U.S.C. §
1536(a)(2). So the Forest Service requested a consultation
with the FWS to determine whether forest programs would
jeopardize the species, and after the consultation the FWS
issued a biological opinion explaining their findings.
See 2014 BiOp, ECF No. 52-2.
The
agencies concluded that with appropriate conservation
measures the Forest Service's programs would not
jeopardize the amphibians. Id. at 66. The Forest
Service applied the “standards and guidelines”
(“S&Gs”) and “best management
practices” from the 2004 Sierra Nevada Forest Plan
Amendment (“2004 SNFPA”). See Id. at 2,
15. The agency implemented some S&Gs specifically for the
Rangeland Management Program. Id. at 25-28. For
example, “[l]ivestock utilization of grass and
grass-like plants [was] limited to . . . 40 percent in late
seral stage meadows to minimize the impact of livestock
grazing.” Id. at 25 (derived from S&G
120).
In
2016, the FWS issued the Final Rule designating critical
habitat for the amphibians. See 81 Fed. Reg. 59, 046
(Aug. 26, 2016) (“Final Rule”). The FWS
designated as critical habitat land that the three species
already occupied and that contained the physical and
biological features essential to conservation. Id.
at 59, 066. The FWS designated no areas as critical habitat
outside the geographical area occupied by the species because
it determined that “occupied areas are sufficient for
the [species'] conservation.” Id.
The FWS
again certified that a regulatory flexibility analysis was
unnecessary, because the “final critical habitat
designation w[ould] not have a significant economic impact on
a substantial number of small entities.” See
Id. at 59, 088. The FWS reasoned that Section 7
consultations, the regulatory means for effectuating critical
habitat designations, require only that federal
agencies ensure that any proposed agency action is
unlikely to jeopardize a species or adversely impact critical
habitat. See Final Rule, 81 Fed. Reg. at 59, 088.
But federal agencies are not “small entities.”
Id. So FWS concluded that “no small entities
are directly regulated by this rulemaking.”
Id.
In June
2017, the Forest Service reinitiated consultation with the
FWS to analyze the effects of forest programs on the
newly-designated critical habitat. See Three
Amphibians BO, ECF No. 52-4. And the FWS ultimately concluded
that the forest programs, as proposed, were unlikely to
jeopardize the species or adversely modify critical habitat.
Id. at 58. The Three Amphibian BO adopted the same
S&Gs from the 2004 SNFPA that were incorporated in the
2014 BiOp. Compare Id. at 2, 14 with 2014
BiOp at 2, 15.
The
Cattlemen sued, alleging that the FWS's 2016 failure to
conduct a regulatory flexibility analysis violated the RFA
and the Administrative Procedure Act. See Compl.
¶¶ 45- 50, ECF No. 1. They challenge the FWS's
assertion that designating critical habitat regulates only
federal agencies, not small entities. Id. ¶ 46.
Section 7 consultations, they argue, can cause restrictions
on grazing permits and other hardships. So the RFA required
the FWS to conduct a regulatory flexibility analysis, because
such consultations ultimately impact “small entities,
” like farmers, ranchers, and landowners. They ask for
declaratory and injunctive relief. See Compl. at
13-14.
The
Defendants sought dismissal of the Cattlemen's claims,
arguing that the Cattlemen lack standing, their claims are
not ripe for review, and they are not within the zone of
interests protected by the RFA. See Gov't Mot.
Dismiss, ECF No. 11; Def.-Int. Mot. Dismiss, ECF No. 36. The
Court denied these motions, with one exception. See Cal.
Cattlemen's Ass'n v. U.S. Fish & Wildlife
Serv., 315 F.Supp.3d 282 (D.D.C. 2018) (“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.”).
The
parties have now filed cross-motions for summary judgment.
The Cattlemen maintain that the FWS's failure to conduct
a regulatory flexibility analysis violates the RFA and
continue to seek declaratory and injunctive relief.
See Pl.'s Mot. Summ. J. at 13-25, ECF No. 49-1.
And the Defendants again claim that the Cattlemen lack
standing to sue. See Gov't Cross-Mot Summ. J
(“Gov't Mot.”) at 14-28, ECF No. 51-1;
Def.-Int. Cross Mot. Summ. J. (“Def.-Int. Mot.”)
at 11-18, ECF No. 52-1. Alternatively, the Defendants argue
that the FWS reasonably determined that no regulatory
flexibility analysis was required. See Gov't
Mot. at 28-38; Def.-Int. Mot. at 18-22. And in any event,
they argue that any relief should be more tailored than the
relief the Cattlemen request. See Gov't Mot. at
38-44; Def.-Int. Mot. at 22-25.
II.
LEGAL STANDARDS
“[T]he
‘irreducible constitutional minimum' of standing
consists of three elements.” Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1547 (2016) (quoting Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
“The plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Id. And
“[t]he party invoking federal jurisdiction bears the
burden of establishing these elements.” Lujan,
504 U.S. at 561.
Organizations
may establish associational standing to sue on their
members' behalf. See Sierra Club v. FERC, 827
F.3d 59, 65 (D.C. Cir. 2016). “An organization has
associational standing to bring suit on its members'
behalf when: (1) at least one of its members would have
standing to sue in his or her own right; (2) ‘the
interests it seeks to protect are germane to the
organization's purpose'; and (3) ‘neither the
claim asserted nor the relief requested requires the
participation of individual members in the
lawsuit.'” Id. (quoting WildEarth
Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir.
2013)).
A
plaintiff must establish standing at the outset of each phase
of litigation. Scenic Am., Inc. v. U.S. Dep't of
Trans., 836 F.3d 42, 48 (D.C. Cir. 2016). “[A]
court's determination that a plaintiff has established
standing at the motion to dismiss stage by alleging
sufficient facts in her pleadings is only the first step,
because that finding does not obviate the court's
responsibility to ensure that the plaintiff can actually
prove those allegations when one or both parties
seek summary judgment.” Id. (emphasis in
original). So “[a] plaintiff's burden to
demonstrate standing grows heavier at each stage of the
litigation.” Osborn v. Visa Inc., 797 F.3d
1057, 1063 (D.C. Cir. 2015). At the summary judgment stage,
“[i]f . . . the court determines that the plaintiff has
not introduced sufficient evidence into the record to at
least raise a disputed issue of fact as to each element of
standing, the court has no power to proceed and must dismiss
the case.” Scenic Am., Inc., 836 F.3d at
48-49.[3]
III.
ANALYSIS
The
Cattlemen have failed to establish standing. They must
“show a ‘substantial probability' that [they]
ha[ve] been injured, that the defendant caused [their]
injury, and that the court [can] redress that injury.”
Sierra Club v. EPA, 292 F.3d 895, 899 ...