Center for Biological Diversity v. United States Forest Service et al

Filing 24

ORDERED that the Motion to Dismiss (Doc. 18 ) is DENIED. It is further ordered that the Application for Intervention (Doc. 16 ) is GRANTED, and the Intervenors shall file their Answer within 7 days of the filing date of this Order. It is further ordered that, within 21 days of the filing date of this Order, the Defendants shall file an Answer. Signed by Senior Judge David C Bury on 11/13/2020. (ARC)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Center for Biological Diversity, Plaintiff, 10 11 ORDER v. 12 No. CV-20-00020-TUC-DCB United States Forest Service, et al., 13 Defendants. 14 15 Plaintiff, Center for Biological Diversity, sues the Defendants, the U.S. Forest 16 Service (“USFS”) and U.S. Fish and Wildlife Service (“FWS”), for allegedly violating the 17 Endangered Species Act (“ESA”), Section 7, provisions which according to the Plaintiffs 18 require consultation on more than 30 grazing allotments on the Apache-Sitgreaves and Gila 19 National Forests within the upper Gila River watershed. The Plaintiffs allege that there has 20 been widespread unauthorized cattle grazing within streamside and riparian areas that 21 provide essential habitat for several threatened and endangered species. 22 On March 12, 2020, the Court granted an unopposed motion to extend the deadline 23 for the Defendants’ answer or responsive pleading to April 16, 2020. (Order (Doc. 14)). 24 Also unopposed, a Motion to Intervene is pending by Spur Ranch Cattle Company, Arizona 25 Cattle Growers Association, Grant County Cattle Growers, and Arizona/New Mexico 26 Counties for Stable Economic Growth. For all the reasons stated in the Intervenor’s motion, 27 the Court grants intervention as a right, pursuant to Rule 24(a)(2). 28 1 On April 16, the Defendants filed a Motion to Dismiss Defendant FWS from Count 2 I. (Doc. 18)). The Defendants also seek confirmation that allegations in Count II are 3 brought only against USFS. The Plaintiff confirms the latter but objects to the former. For 4 clarity, the Court notes the Plaintiff’s confirmation that Count II claims are not made 5 against FWS. It denies the Motion to Dismiss Count I against FWS for the reasons that 6 follow. 7 8 9 Motion to Dismiss Defendants challenge this Court’s jurisdiction to order the FWS to initiate Section 7 consultation because the ESA places this duty only on the USFS, not on FWS. 10 ESA provides “a means whereby the ecosystems upon which endangered species 11 and threatened species depend may be conserved” and brought “to the point at which the 12 measures provided pursuant to [the ESA] are no longer necessary.” 16 U.S.C. §§ 1531(b), 13 1532(3). Under ESA Section 4, species are “listed” as “endangered,” if “in danger of 14 extinction throughout all or a significant portion of its range,” id. § 1532(6), or 15 “threatened,” if it is “likely to become an endangered species within the foreseeable future 16 throughout all or a significant portion of its range,” id. § 1532(20). “Any habitat of such 17 species which is then considered to be critical habitat” is designated. Id. § 1533(a). “Critical 18 habitat” includes occupied areas that contain the “physical or biological features essential 19 to the conservation of the species and that may require special management considerations 20 or protection,” as well as unoccupied areas that themselves are essential to the species’ 21 conservation. Id. § 1532(5)(A)(i)-(ii). 22 FWS is responsible for administering ESA for terrestrial and freshwater species. 50 23 C.F.R. § 222.23(a).1 Section 7(a)(2)of ESA directs each federal agency, in consultation 24 with FWS, to “insure” that agency actions are not likely to jeopardize the continued 25 existence of any listed species or destroy or adversely modify designated critical habitat. 26 27 1 28 The National Marine Fisheries Service (“NMFS”) administers ESA for marine species. -2- 1 16 U.S.C. § 1536(a)(2). “Jeopardize” means an action that “reasonably would be expected, 2 directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery 3 of a listed species in the wild by reducing the reproduction, numbers, or distribution of that 4 species.” 50 C.F.R. § 402.02. “Destruction or adverse modification” means “a direct or 5 indirect alteration that appreciably diminishes the value of critical habitat as a whole for 6 the conservation of a listed species.” Id. 7 Consultation is required if an action agency, like USFS, determines that its proposed 8 action “may affect” listed species or critical habitat. 50 C.F.R. § 402.14(a). If the action 9 agency determines, with FWS’s written concurrence, that the action “is not likely to 10 adversely affect” listed species or critical habitat, the consultation is terminated. Id. §§ 11 402.13(c), 402.14(b)(1). If the action agency or FWS determines that the proposed action 12 is “likely to adversely affect” listed species or designated critical habitat, the agencies must 13 engage in formal consultation. Id. §§ 402.13(a), 402.14(a)-(b). During formal consultation, 14 FWS analyzes the agency’s proposed action to identify, among other things, the current 15 status of the species or critical habitat, the environmental baseline, and the direct and 16 indirect effects of the action. Id. §§ 402.14(g), 402.02. At the conclusion of formal 17 consultation, FWS issues a Biological Opinion (“BiOp”) determining whether the 18 proposed action is likely to jeopardize the continued existence of any listed species or 19 destroy or adversely modify critical habitat. Id. § 402.14(g)(4); 16 U.S.C. § 1536(b)(3)(A). 20 “Reinitiation of consultation is required and shall be requested by the Federal 21 agency [USFS] or by the Service [FWS], where discretionary Federal involvement or 22 control over the action has been retained or is authorized by law” if enumerated triggers 23 occur as follows: (1) the amount or extent of taking specified in the incidental take 24 statement is exceeded; (2) new information reveals effects of the action to an extent not 25 previously considered; (3) the identified action is subsequently modified or (4) a new 26 species is listed or critical habitat designated. 50 C.F.R. § 402.16(a). 27 The Defendants’ Motion to Dismiss argues that the express provisions of this 28 regulation require only the USFS to initiate consultation because “[t]he ESA places the -3- 1 authority and, hence, any duty to reinitiate consultation solely on the action agency.” 2 (Motion (Doc. 18) at 9.) By motion, the Defendants argue that because there is no duty on 3 FWS under ESA to initiate consultation, the Plaintiff’s allegations cannot support a claim 4 that FWS has violated a duty under ESA therefor, the Complaint fails to invoke a waiver 5 of sovereign immunity, and the Plaintiff cannot state a claim against FWS. 6 Background 7 “Livestock grazing is a leading contributor to riparian habitat loss and degradation 8 within the western United States, causing widespread and significant adverse impacts to 9 watershed hydrology, stream channel morphology, soils, vegetation, water quality, and 10 fish and wildlife habitat.” (Ps’ Response (Doc. 19) (citing Complaint (Doc. 1) ¶¶ 41-45.) 11 These riparian ecosystems comprise less than 1% of the surface area within the eleven 12 western states but are highly desirable to both imperiled native species and domestic 13 livestock. These riparian areas support native fish, a higher diversity of breeding songbirds 14 than any other habitat, and many species of small mammals, amphibians, and reptiles. They 15 have also been prime areas for providing food and water for domestic livestock. This land- 16 use dichotomy is not new. 17 In the late 1990s, through litigation USFS and FWS were compelled to conduct ESA 18 Section 7 consultation with respect to USFS’s authorization of grazing on 158 grazing 19 allotments providing habitat for listed species including Southwestern willow flycatcher, 20 spikedace, and loach minnow. (Response (Doc. 19) (citing Sw. Ctr. For Biological 21 Diversity v. United States Forest Serv., CV-97-666-TUC-JMR, consolidated with CV-97- 22 2562-PHX-SMM; 2001 U.S. Dist. LEXIS 25027, at *4-6 (D. Ariz. Mar. 30, 2001)). 23 Subsequently, USFS and FWS, pursuant to ESA Section 7, acted with respect to all 962 24 grazing allotments within the USFS Southwestern Region. Id. (citations omitted). 25 “Of the 962 grazing allotments in the southwestern region, USFS concluded that 26 there would be no effect to listed species or their critical habitat on nearly two-thirds, or 27 619 allotments. Sw. Ctr. for Biological Diversity, 2001 U.S. Dist. LEXIS 25027, at *9- 28 11)). An additional 321 allotments concluded with ‘may affect, not likely to adversely -4- 1 affect’ determinations.” (Response (Doc. 19) at 4.) “USFS made ‘likely to adversely affect’ 2 findings for only 22 allotments (comprising just over 2 percent of all allotments in USFS 3 R3).” Id. (citing Sw. Ctr. for Biological Diversity, 2001 U.S. Dist. LEXIS 25027, at *10)). 4 “FWS prepared a final Biological Opinion for these 22 allotments in February 1999,” with 5 “only one of the Region’s 962 individual grazing allotments violat[ing] Section 7’s 6 substantive jeopardy and critical habitat requirements. Id. at *11. “Importantly, these no 7 jeopardy and not likely to adversely affect determinations depended heavily on USFS 8 commitments to exclude cattle from hundreds of miles of riparian areas. Id. at *12 (finding 9 USFS undertaking numerous mitigation measures “to ensure that cattle grazing will have 10 little, if any, impact on the loach minnow and spikedace while formal consultation is taking 11 place,” including “exclusion of livestock from watersheds and frequent monitoring and 12 enforcement of these livestock exclusions. Exclusion of livestock from [streams] in the 13 national forests has eliminated any direct adverse effects to the loach minnow and/or 14 spikedace and minimized any indirect adverse impacts to these species.”) 15 “For more than two decades since that initial consultation, grazing riparian 16 exclusions, as well as regular monitoring to ensure the effectiveness of those exclusions, 17 have continued to serve as a cornerstone for ESA compliance in relation to the USFS 18 grazing program and site-specific decisions authorizing grazing on individual grazing 19 allotments.” (Response (Doc. 19) at 5) (citing see Forest Guardians v. Veneman, 392 F. 20 Supp. 2d 1082, 1090, 1092 (D. Ariz. 2005) (in reaching no jeopardy decision, FWS relied 21 on implementation of mitigation measures to exclude livestock from areas of critical 22 habitat, loach minnow habitat, and riparian areas of tributaries” because “FWS recognized 23 that one of the most effective methods for eliminating the effects of grazing on aquatic 24 habitat is to keep livestock out of riparian areas, which the Forest Service has done on the 25 critical habitat along the Blue and San Francisco Rivers.”) See also Final Rule “Uplisting” 26 Spikedace and Loach Minnow from Threatened to Endangered and Designating Critical 27 Habitat, 77 Fed. Reg. 10,810 (Feb. 13, 2012) (noting that livestock grazing “is one of the 28 few threats where adverse effects to species such as spikedace and loach minnow are -5- 1 decreasing, due to improved management on Federal lands. This improvement occurred 2 primarily by discontinuing grazing in the riparian and stream corridors.”) “Concerned that USFS was failing to monitor and maintain riparian grazing 3 4 exclusions, in 2017 Plaintiff Center for Biological Diversity conducted on-the-ground 5 assessments in order to verify whether cattle continue to be excluded on allotments 6 within Apache-Sitgreaves and Gila National Forest lands within the upper Gila River 7 watershed.” (Response (Doc. 19) at 5-6 (citing Complaint (Doc. 1) ¶¶ 51-53.) These 8 surveys allegedly documented the allegations in the Complaint of extensive, widespread, 9 and egregious streamside and riparian degradation in the Blue River, San Francisco River, 10 Tularosa River, Gila River, Eagle Creek, and numerous tributary streams. “Plaintiff 11 compiled these survey results into detailed reports and provided the reports to USFS, but 12 USFS did not take responsive action.” Id. at 6. Plaintiff gave notice to both agencies that it 13 intended to sue under the citizen suit provisions of ESA unless they met their legal duties 14 to reinitiate consultation on approximately 30 allotments; Plaintiff asked USFS to take 15 immediate action to remove cattle from riparian areas, to remediate damage caused by the 16 unauthorized grazing, and to conduct more frequent monitoring of riparian and streamside 17 areas. 18 The Plaintiff sued the agencies for failing to act. USFS generally denies Plaintiff’s 19 allegations about the extent and nature of unauthorized livestock intrusion into these 20 riparian areas. (Motion (Doc. 18) at 7 n.4.) “FWS provided no response at all.” Id. 21 (Response (Doc. 19) at 6.) 22 Conclusion 23 After reading all the briefs, especially the Defendants’ Reply, it is clear they are 24 swimming upstream with their argument that a consulting agency, here FWS, “‘lacks the 25 authority to require the initiation of consultation under the ESA,” (Motion (Doc. 18) at 10 26 (quoting Defenders of Wildlife v. Flowers, 414 F.3d 1066, 1070 (9th Cir. 2005)), and “[t]his 27 is true with regard to initiating consultation in the first instance as well as reinitiating a 28 prior consultation.” (Motion (Doc. 18) at 10.) Equally, challenging is the argument that -6- 1 “the plain language of the reinitiation regulations ‘require an action agency to reinitiate 2 formal consultation with the consulting agency’ when the enumerated triggers are met.’” 3 Id. at 11 (quoting Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1264 (9th Cir. 2017) (so 4 construing 50 C.F.R. § 402.16(b) (renumbered § 402.16(a)(2)) (emphasis added)); see also: 5 Or. Nat. Res. Council v. Allen, 476 F.3d 1031, 1040 (9th Cir. 2007) (noting that “the action 6 agency must reinitiate consultation with the FWS”) (emphasis added); Ctr. for Biological 7 Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1108 (9th Cir. 2012) (observing 8 that, pursuant to 50 C.F.R. § 402.16(a) and (c) (renumbered § 402.16(a)(1) and (3)), “the 9 action agency must . . . reinitiate consultation”) (emphasis added); accord Native Fish 10 Soc’y v. NMFS, 992 F. Supp. 2d 1095, 1103 (Or. 2014) (same); Greenpeace Found. v. 11 Mineta, 122 F. Supp. 2d 1123, 1130 (Hawaii 2000) (same); 50 C.F.R. § 402.14(i)(v)(4) 12 (ESA consultation regulation stating that, “[i]f during the course of the action the amount 13 or extent of incidental taking . . . is exceeded, the Federal [action] agency must reinitiate 14 consultation immediately”); 51 Fed. Reg. at 19,954 (explaining that “Paragraph (i)(4) 15 requires the Federal [action] agency or the applicant to immediately request reinitiation of 16 formal consultation if the specified amount or extent of incidental take is exceeded”). 17 The cases relied on by the Defendants say what Defendants say they say, but the 18 law in the Ninth Circuit also makes it clear that ESA establishes a coterminous authority 19 for both the action agency (USFS) and the consulting agency (FWS) to reinitiate 20 consultation when one of the triggering events occur under 50 C.F.R. § 402.16(a). Then, 21 “[r]einitiation of consultation is required and shall be requested by the Federal agency 22 [USFS] or by the Service [FWS].” 50 C.F.R. § 402.16(a). 23 The Plaintiff criticizes the Defendant’s reliance on Flowers because it addresses the 24 duty to consult in the first instance, which is governed by a different regulation, which 25 focuses on the duties of the action agency, 50 C.F.R. 402.14: “Each Federal agency shall 26 review its actions at the earliest possible time to determine whether any action may affect 27 listed species or critical habitat.” Wildearth Guardians v. United States, 2020 WL 2239975 28 *5 (May 7, 2020 (citing Alliance for Wild Rockies v. Probert, 412 F.Supp.3d 1188, 1201 -7- 1 (Mont. 2019) (expressly rejecting reliance on Flowers (citing Pacificans for a Scenic Coast 2 v. California DOT, 204 F. Supp.3d 1075, 1093 (Calif. 2016)). “In contrast, the plain 3 language of 402.16, the reinitiation regulation . . ., ‘describes the Fish and Wildlife 4 Services’ obligation in the same terms as the action agency’s obligation’” (Response (Doc. 5 19) at 8 (quoting Pacificans for a Scenic Coast, 204 F. Supp.3d at 1094). 6 The Court agrees with the Plaintiff that the Defendants are splitting hairs that do not 7 exist under the ESA regulation. “Consistent with the plain text of the regulation, the Ninth 8 Circuit has stated that ‘[t]he duty to reinitiate consultation lies with both the action agency 9 and the consulting agency.’” Pacificans for a Scenic Coast, 204 F. Supp.3d at 1093 10 (quoting Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1229 (9th 11 Cir. 2008)); see also Wild Fish Conservancy v. United States EPA, 331 F. Supp. 3d 1210, 12 1226 (Wash. 2018) (denying motion to dismiss, finding question amply settled in Ninth 13 Circuit that plain language of ESA obligation to reinitiate consultation applies equally to 14 NMFS and EPA); Hoopa Valley Tribe v. Nat’l Marine Fisheries Serv., 230 F. Supp. 3d 15 1106, 1117 (N.D. Cal. 2017) (finding “the Ninth Circuit has already addressed this precise 16 issue multiple times and confirmed that both the action agency and the consulting agency 17 have a duty to reinitiate consultation”); Wild Fish Conservancy, 331 F. Supp. 3d at 1226 18 (citing overwhelming weight of authority finding the consulting agency’s duty to reinitiate 19 consultation is coterminous with that of the action agency); Alliance for the Wild 20 Rockies¸412 F. Supp. 3d. at 1201 (rejecting argument that reinitiation claim cannot be made 21 against the FWS because it lacks the authority to require an action agency to reinitiate 22 consultation as inconsistent with the Ninth Circuit’s view). 23 Put another way, when one of the triggering events occur under 50 C.F.R. § 24 402.16(a), either agency shall request reinitiation of consultation which is required. Like 25 these other district courts, this Court rejects the notion that FWS must sit by when a 26 triggering event occurs, unless or until the action agency chooses to reinitiate consultation. 27 Under such circumstances, FWS has the dual responsibility to reintitate consultation by 28 requesting it. -8- 1 The difficulty with the Defendants’ argument becomes clear in the Reply where 2 Defendants urge “[t]his Court must not make the same error as Plaintiff and other courts in 3 asserting that the “plain language’ of ‘[r]einitiation of consultation is required’ imposes a 4 duty on FWS, when that provision does not expressly impose the requirement for 5 reinitiation of consultation on FWS, and when FWS’s decades-long interpretation of that 6 clause and the operation of the ESA both indicate that any duty to reinitiate consultation 7 rests with the action agency, not FWS.” (Reply (Doc. 21) at 3) (emphasis added). This 8 Court is, however, bound, just like the “other courts” to which Defendants refer, to follow 9 clearly established Ninth Circuit law, Salmon Spawning & Recovery Alliance, 545 F.3d at 10 1229. Wild Fish Conservancy, 331 F. Supp. 3d at 1226–27 (following also: Gifford Pinchot 11 Task Force v. USFWS, 378 F.3d 1059, 1076–77 (9th Cir. 2004) (holding that discovery of 12 new facts “mandates reinitiating formal consultations” and that “[the consulting agency] 13 was obligated to reinitiate consultation”), amended for another reason; EPIC v. Simpson 14 Timber Co., 255 F.3d 1073, 1076 (9th Cir. 2001) (“The duty to reinitiate consultation lies 15 with both the action agency and the consultation agency.”) 16 The Defendants’ reliance on Flowers is distinguishable because it involved a 17 different regulation, which as noted above, focuses on the action agency and is 18 distinguishable from 50 CFR 402.16(a) which treats action agencies and consulting 19 agencies the same. The Defendants also rely on Sierra Club v. March, 816 F.2d 1376, 1386 20 (9th Cir. 1987), which according to the Defendants recognized that the action agency had 21 “declined the FWS’s request to reinitiate the consultation process” and “held, however, 22 that “‘[t]he ESA does not give the FWS the power to order other agencies to comply with 23 its requests or to veto their decision.’” (Reply (Doc. 21) at 6.) The Defendants argue that 24 the Marsh court “reviewed whether the Corps [the action agency] violated the ESA “by 25 refusing to reinitiate consultation” under the regulation, not FWS’s request.” Id. (quoting 26 Marsh, 816 F.2d at 1386-87). This is true, but it also held that the Section 7 duty to consult 27 required the court to determine whether the Corps abused its discretion or acted arbitrarily, 28 capriciously, or otherwise not in accordance with law by refusing to reinitiate consultation. -9- 1 Marsh, 816 F.2d at 1386-87. In other words, the court in Marsh deferred to the FWS request 2 for reinitiation of consultation as being determinative to trigger the required consultation 3 under 402.16(a) because “it is primarily responsible for protecting endangered species and 4 it drafted the regulations at issue here.” Id. at 1388 5 As Plaintiff points out, the Defendants ignore Bennett v. Spear, 520 U.S. 154, 169 6 (1997), describing the theoretical advisory function of FWS’s BiOp as in reality having a 7 powerful coercive effect on the action agency. While the “‘action agency is technically 8 free to disregard the Biological Opinion and proceed with its proposed action . . . it does 9 so at its own peril,’ because ‘of the virtually determinative effect of [FWS’s] biological 10 opinion.’” (Response (Doc. 19) at 11 (quoting Bennett, 520 U.S. at 170). 11 The Plaintiff notes the equally coercive provisions in Section 7, explained in the 12 Consultation Handbook relied on by the Defendants: “‘[w]hen consultation needs to be 13 reinitiated but the action agency neither agrees nor responds, [FWS] should send a letter 14 clearly outlining the change of circumstances supporting the need for reinitiation,’ and 15 ‘present[ing] a clear case for why [FWS has] determined that one or more of the four 16 general conditions for reinitiating consultation have been triggered.’” (Response (Doc. 19) 17 at 11 (quoting “Endangered Species Consultation Handbook, Procedures for Conducting 18 Consultation and Conference Activities Under Section 7 of Endangered Species Act” 2 at 19 2-11). “If the action agency ‘still refuses to consult, the issue should be elevated to . . . 20 [FWS’s Regional Office] and may ultimately be referred to . . . the FWS Law Enforcement 21 Division and the Office of the Solicitor.’” Id. (citing Consultation Handbook at 2-10 and 22 2-11). So as noted by the Court in Bennett in the context of an FWS BiOp, it is equally true 23 in the context of reinitiating consultation under 402.16(a) that the “action agency is 24 technically free to disregard the [FWS request] and proceed with its proposed action . . . it 25 does so at its own peril,” because “of the virtually determinative effect of the [FWS 26 request].” Supra above. In short, the regulatory scheme involves procedures for 27 interagency cooperation rather than solely placing the duties of consultation on either the 28 2 - 10 - 1 action agency or consulting agency. (Response (Doc. 19) at 10 (citing Hoopa Valley Tribe, 2 230 F. Supp. 3d at 1117 (both have clear obligation to participate in and complete required 3 consultation process). 4 Defendants argue that, notably, the Ninth Circuit has never addressed whether a 5 consulting agency is a proper party to a failure to reinitiate claim because in Salmon 6 Spawning & Recovery, the consulting agency never argued that it was not a proper 7 defendant because it lacked the authority to compel the action agency to reinitiate 8 consultation. Instead, the two agencies jointly argued their defense. (Reply (Doc. 22) at 7.) 9 The Court finds that while the precise argument made by Defendants here may not have 10 previously been presented, this is not a matter of first impression because unlike Flowers, 11 which did not even address the regulation at issue in this case, the Ninth Circuit cases relied 12 on by the Plaintiff have answered the precise question which is at the heart of the argument 13 made by the Defendants. In the Ninth Circuit, 50 C.F.R. 402.16 places a coterminous duty 14 on both the acting agency and consulting agency to consult, if any of the enumerated 15 criteria are met. 16 More notably, the Court finds that Defendants’ challenge to the applicability of 17 Salmon Spawning calls into question the Defendants’ argument that the Court should defer 18 to the agency’s assertedly 30-year consistent interpretation that “the regulation ‘does not 19 impose an affirmative obligation on the Service to reinitiate consultation if any of the 20 criteria have been met,’ but that ‘[i]t is ultimately the responsibility of the Federal action 21 agency to reinitiate consultation with the relevant Service when warranted.” (Reply (Doc. 22 21) at 8) (citing 84 Fed. Reg. 44,976, 44,980 (August 27, 2019)). The Court compares the 23 arguments in the Salmon Spawning genre of cases with the recently adjudicated district 24 court cases, Pacificans, Wild Fish Conservancy, Hoopa Valley Tribe, Alliance for the Wild 25 Rockies¸ and Wildearth Guardians v. USFS, 2020 WL 2239975 (Idaho May 7, 2020). 26 These recent cases reflect that FWS is making an argument based on a new regulatory- 27 interpretation. 28 - 11 - 1 This conclusion is supported by a comparison of the 1986 and 2019 Final Rules. 2 The agency interpretation from 1986 reflects only that “reinitiation of formal consultation 3 is required in certain instances as specified in § 402.16” and in a comment to the proposed 4 rule, the Service [FWS] noted “its lack of authority to require Federal agencies to reinitiate 5 consultation if they choose not to do so. Nevertheless, the Service shall request reinitiation 6 when it believes that any condition described in this section applies.” 51 Fed. Reg. 29,926, 7 19,956 (June 3, 1986). The argument made by Defendants now is based on the Final Rule, 8 Endangered and Threatened Wildlife and Plants: Regulations for Interagency Cooperation, 9 “revisions to the regulations to clarify, interpret, and implement portions of the Act 10 concerning the interagency cooperation procedures,” effective September 26, 2019. 84 11 Fed. Reg. 44,976 (Summary). The regulation remains the same. 12 The FWS’s interpretation of its regulation governing reinitiation of Section 7 13 consultation is entitled to deference because it represents the agency’s official position, 14 after having been published in the Federal Register and subjected to public review and 15 comment, and implicates the agency’s substantive expertise and fair and considered 16 judgment. (Motion (Doc. 17 n. 7 (citing Kisor v. Wilkie, 139 S. Ct. 240, 2416-17 (2019)). 17 The Plaintiff, however, points out that there is no need for and agencies are not afforded 18 deference “unless the language of the regulation is genuinely ambiguous.” Id. at 2415. 19 (reinforcing limits inherent to doctrine of deference, Auer v. Robbins, 519 U.S. 452 (1997); 20 first, court must find that the regulation is genuinely ambiguous). The lack of any 21 ambiguity in the regulation for over 20 years advises against the need for interpretive 22 deference. 23 The FWS’s new take on the regulation is not persuasive because it flies in the face 24 of the clear language of the regulation as established under the law of this circuit. Plaintiff 25 has properly alleged a legal duty under ESA against FWS for its failure to reinitiate and 26 complete Section 7 consultation. The Administrative Procedures Act (APA) provides a 27 cause of action for enforcing a legal duty, and the FWS has waived its sovereign immunity 28 from suit. San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1096 (9th Cir 2005) - 12 - 1 see also (Motion (Doc. 18) at 16-17 (explaining jurisdictional waiver of sovereign 2 immunity)). The Court finds that the Plaintiff has carried its burden to establish subject 3 matter jurisdiction over the Count I claim against FWS. 4 Accordingly, 5 IT IS ORDERED that the Motion to Dismiss (Doc. 18) is DENIED. 6 IT IS FURTHER ORDERED that the Application for Intervention (Doc. 16) is 7 GRANTED, and the Intervenors shall file their Answer within 7 days of the filing date of 8 this Order. 9 10 11 IT IS FURTHER ORDERED that, within 21 days of the filing date of this Order, the Defendants shall file an Answer. Dated this 13th day of November, 2020. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -

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