United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE.
National Marine Fisheries Service (the Service) determined in
2014 that the queen conch, a marine mollusk that inhabits the
Caribbean Sea and the Gulf of Mexico, did not warrant listing
as an endangered or threatened species under the Endangered
Species Act (ESA). The plaintiffs, Friends of Animals
(Friends) and WildEarth Guardians (WildEarth), challenge that
listing decision as unlawful under § 706 of the
Administrative Procedure Act (APA). They ask this Court to
vacate the listing decision and order the Service to issue a
new one within 60 days. The parties' cross-motions for
summary judgment are before the Court. See Dkts. 20, 23. For
the reasons that follow, the Court concludes that the Service
erred in relying on a vacated agency policy in determining
that no portion of the queen conch's range was
significant. On that basis, the Court will grant
plaintiffs' motion in part, deny the Service's
motion, vacate the listing decision, and remand to the
Service for further proceedings.
The Queen Conch
Caribbean Sea and the Gulf of Mexico are home to “a
large gastropod mollusk” that is shrouded in a
“large, whorl-shaped shell with multiple spines at the
apex and [a] pink interior of the shell lip.”
QC40000415. This creature, called the queen conch (or
Strombus gigas), starts life as one of the several million
eggs that an adult female lays each year. Id.;
QC40000417. A few days after they are laid, the eggs hatch as
planktonic larva that float in the water column for fourteen
to sixty days; many do not survive. Id. Those that
do then settle either locally or elsewhere, depending on the
currents, and bury into the sea floor. Id. They
emerge about a year later as juveniles each with a shell
about 2.5 inches long. Id. They become sexually
mature at around four years old. Id. Left
undisturbed, a healthy queen conch lives for about 30 years.
queen conch “is one of the most important fishery
resources in the Caribbean.” QC20000016. The demand for
queen conch meat, from both the Caribbean markets and markets
abroad, drives queen conch fishing activity. Id.
Thanks to rising international demand, commercial catch rates
have increased since the 1980s. Id. Queen conch
exports peaked in the late 1990s but have since stabilized
below those levels. QC20000016-17.
The Endangered Species Act and Related Regulations
exists to conserve endangered species, threatened species,
and those species' ecosystems. 16 U.S.C. § 1531(b);
see Tennessee Valley Auth. v. Hill, 437 U.S. 153,
184 (1978). A species is endangered if it “is in danger
of extinction throughout all or a significant portion of its
range.” 16 U.S.C. § 1532(6). A species is
threatened if it “is likely to become an endangered
species”-i.e., be in danger of extinction-“within
the foreseeable future throughout all or a significant
portion of its range.” Id. § 1532(20).
authorizes the Secretary of Commerce to determine whether a
marine species like the queen conch warrants listing as
endangered or threatened. Id. § 1533(a)(1). The
Secretary has delegated this task to the Service. 50 C.F.R.
§ 402.01(b). The Service must base its listing
determination on five listing factors: “(A) the present
or threatened destruction, modification, or curtailment of
[the species'] habitat or range; (B) overutilization [of
the species] 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 [the species']
continued existence.” Id.
making a listing determination, the Service must first
“conduct a review of the status of the species”
and “take into account those efforts, if any, being
made by any State or foreign nation . . . to protect such
species.” 16 U.S.C. § 1533(b)(1)(A). And the
Service must base its listing decision “solely on . . .
the best scientific and commercial data available.”
Id.; see 50 C.F.R. § 424.11.
party can petition the Service to list a species. 16 U.S.C.
§ 1533(b)(3)(A). Once the Service receives a petition,
it has 90 days to publish in the Federal Register a finding
on whether the petition “presents substantial
scientific or commercial information indicating that the
petitioned action may be warranted.” Id. If
this “90-day finding” determines that the
petition presents such information, the Service must
“promptly commence” a status review of the
species. Id. The Service then has 12 months to
publish in the Federal Register a preliminary finding on
whether listing the species is warranted. Id. §
1533(b)(3)(B). If this “12-month finding”
concludes that listing is warranted, the Service has two
options: (1) find that listing is warranted but
“precluded by [other] pending [listing]
proposals” and thus delay publishing a proposed listing
rule; or (2) publish a proposed rule to list the species.
Id. § 1533(b)(3)(B)(ii)- (iii). If the Service
publishes a proposed listing rule, it has one year to choose
from three options: (1) extend the one-year period, if there
is substantial disagreement about the underlying data; (2)
withdraw the proposed rule; or (3) publish a final listing
rule. Id. § 1533(b)(6)(A)-(B).
The Petition to List the Queen Conch as Threatened or
petitioned the Service on February 27, 2012 to list the queen
conch as endangered or threatened under the ESA.
QC10000055-76. The Service published a positive 90-day
finding on August 27, 2012, determining that “there is
substantial information indicating that the petitioned action
may be warranted, based on the threats of overutilization for
commercial, recreational, scientific or education purposes
and other natural or manmade factors.” 77 Fed. Reg. 51,
763, 51, 767. Based on this positive 90-day finding, the
Service commenced a status review of the species.
status review started with “a biological review of the
species' taxonomy, distribution, abundance, life history,
biology, and available information on threats affecting the
species' status.” QC40000415. The Service compiled
this information “into a status report.”
Id. Once it had completed the status report, the
Service “established a group of biologists and marine
mollusk experts” called the Extinction Risk Analysis
(ERA) group. Id.
group “conduct[ed] a threats assessment for the queen
conch, using information from the status report.”
Id. This threats assessment required each ERA group
member to “independently evaluate the severity, scope,
and certainty for [each] threat [to the queen conch]
currently and in the foreseeable future.” QC40000420.
The ERA group members scored their “perceived severity
of each threat” based on five levels of extinction
risk, ranging from “no or very low risk” to
“very high risk.” Id.
score and rank these threats, “[t]he ERA group used the
‘likelihood point' method.” Id. This
method required each group member to distribute five
“likelihood points” among the five levels of
extinction risk for each threat. Id. A group member
could assign, for example, two points to “very high
risk” and three points to “increasing risk”
for a particular threat. This approach let the team
“express levels of uncertainty when assigning risk
categories.” Id. If the risk level was
altogether “unknown, ” the group member was
required to assign all five points to the
“unknown” category. Id.
group's threats assessments were not
“recommendations as to whether the species should be
listed as threatened or endangered.” Id. Each
member instead “drew his or her own scientific
conclusions, based on the information in the status report,
about the risk of extinction faced by the queen conch under