United States District Court, District of Columbia
CENTER FOR ENVIRONMENTAL SCIENCE, ACCURACY & RELIABILITY, et al., Plaintiffs,
UNITED STATES DEPARTMENT OF INTERIOR, et al., Defendants.
D. Bates United States District Judge.
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
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).
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.
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. 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”).
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
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.
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.
parties have now filed cross-motions for summary judgment,
which are ripe for consideration.
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 ...