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Center for Environmental Science, Accuracy & Reliability v. United States Department of Interior

United States District Court, District of Columbia

July 3, 2019

CENTER FOR ENVIRONMENTAL SCIENCE, ACCURACY & RELIABILITY, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF INTERIOR, et al., Defendants.

          MEMORANDUM OPINION

          John D. Bates United States District Judge.

         Plaintiffs-a coalition of advocacy groups focused on science, property rights, and home builders-challenge the denial of their petition to remove the coastal California gnatcatcher from the threatened species list. They bring this lawsuit against the United States Department of Interior and its agency, the Fish and Wildlife Service (“FWS”) (collectively, the “federal defendants”), alleging violations of the Endangered Species Act (the “ESA”), 16 U.S.C. § 1533(b)(3)(B); the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A); and the Federal Advisory Committee Act (“FACA”), 5 U.S.C. App. 2, § 10(a)(1)-(3). But before the Court may consider the merits of their claims, plaintiffs must establish that they have standing to bring them. They have failed to do so. Hence, for the reasons explained below, the Court will deny plaintiffs' motion for summary judgment and grant federal defendants' and defendant-intervenors' cross-motions for summary judgment.

         BACKGROUND

         I. Statutory Background

         The ESA creates a statutory framework for the conservation of “endangered species and threatened species” and the ecosystems on which they depend. 16 U.S.C. § 1531(b). FWS, which has been delegated authority by the Secretary of the Interior to administer the ESA, is responsible for determining whether a species is “endangered” or “threatened, ” and hence whether it is protected by statute. Am. Wildlands v. Kempthorne, 530 F.3d 991, 994 (D.C. Cir. 2008) (citing 50 C.F.R. § 402.01(b)). In considering whether to list a species as threatened or endangered, FWS must determine whether the species satisfies one of five statutorily-provided factors and make its finding “solely on the basis of the best scientific and commercial data available . . . after conducting a review of the status of the species and after taking into account those efforts . . . to protect such species.” 16 U.S.C. § 1533(a)(1), (b)(1)(A).

         Of course, before an animal population may be listed as protected by the ESA, it must first qualify as a “species” under the statute. See Am. Wildlands, 530 F.3d at 994. Although the ESA defines “species” as broadly encompassing “subspecies, ” it does not specify what either term means. 16 U.S.C. § 1532(16). Instead, FWS is instructed to “rely on standard taxonomic distinctions and the biological expertise of the Department [of the Interior] and the scientific community concerning the relevant taxonomic group” to determine whether an animal population is a species (or subspecies) for purposes of the ESA. 50 C.F.R. § 424.11(a). The question whether FWS must itself articulate a definition of “subspecies” drives plaintiffs' claims.

         II. Factual Background

         In 1993, FWS determined that the coastal California gnatcatcher-a small songbird found as far south as 30 degrees north latitude in Baja California-was a threatened subspecies under the ESA. AR 24007.[1] The bird's designation as a distinct subspecies was critical to its listing. While FWS determined that there were only a few thousand coastal California gnatcatcher breeding pairs, gnatcatchers were plentiful at the species level. AR 24007; see Endangered Species Comm. of Bldg. Indus. Ass'n of S. Cal. v. Babbitt, 852 F.Supp. 32, 34 (D.D.C. 1994) (noting that if the costal California gnatcatcher subspecies was found to include gnatcatchers dwelling five degrees further south, “then the bird likely existed in large enough numbers to stay off of the threatened list”).

         In 2014, several of the plaintiffs in this action submitted a petition to delist the coastal California gnatcatcher. AR 1-40. The petition was primarily based on a 2013 nuclear DNA study by Dr. Robert Zink that concluded that “no evolutionarily significant divisions exist within the [gnatcatcher] species.” AR 47. Contending that this study constituted “the best available scientific data” on the gnatcatcher's taxonomy, the petition claimed that the coastal California gnatcatcher was not a valid subspecies eligible for protection under the ESA. AR 15-16; 35-39.

         FWS initiated a review of the petition. AR 323. As part of this process, it hired an independent contractor to convene a scientific review panel to consider the bird's subspecies status. AR 2807. The panelists unanimously rejected the 2013 Zink study, finding that the study's approach was unlikely to reveal whether the coastal California gnatcatcher was in fact a distinct subspecies. AR 2810-12. Relying in part on the panelists' conclusions, FWS denied the delisting petition in 2016. AR 2813.

         A year later, plaintiffs filed the instant lawsuit. They argue that FWS was required to select a definition of “subspecies” to apply before it could determine that the coastal California gnatcatcher qualified as one. Mem. of P. & A. in Supp. of Pls.' Mot. for Summ. J. (“Pls.' Mot.”) [ECF No. 24] at 20-32. Because FWS's listing decision was not based on an articulated standard, plaintiffs contend that the denial of the petition was arbitrary and capricious in violation of the ESA and APA. Id. Plaintiffs also argue that the scientific panel that reviewed the bird's subspecies status qualified as an “advisory group” under FACA, triggering a number of procedural requirements that FWS allegedly failed to meet. Id. at 33-42.

         The parties have now filed cross-motions for summary judgment, which are ripe for consideration.

         DISCUSSION

         In considering the parties' motions, the Court begins, as it must, with the issue of standing. “Standing is an element of this Court's subject-matter jurisdiction under Article III of the Constitution, and requires, in essence, that a plaintiff have ‘a personal stake in the outcome of the controversy.'” Elec. Privacy Info. Ctr. v. Pres. Advisory Comm'n on Election Integrity, 266 F.Supp.3d 297, 306 (D.D.C. 2017) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). To establish that it has standing under Article III, a plaintiff must show (1) that it has suffered an “injury in fact” that is both “concrete and particularized” and “actual or imminent;” (2) that the injury is “fairly traceable” to the defendant's challenged action; and (3) that it is likely “that injury will be ‘redressed by a favorable decision.'” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and alterations omitted). These elements “are not mere ...


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