Center for Biological Diversity, Inc. et al v. Bernhardt et al

Filing 1

COMPLAINT against David Bernhardt, Margaret Everson ( Filing fee $ 400, receipt number 0971-13373596.). Filed byCenter for Biological Diversity, Inc., San Francisco Baykeeper. (Attachments: #1 Civil Cover Sheet, #2 Summons, #3 Summons, #4 Summons, #5 Summons)(Loda, Jennifer) (Filed on 5/23/2019)

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Jennifer L. Loda (CA Bar No. 284889)
Center for Biological Diversity
1212 Broadway, Suite 800
Oakland, CA 94612-1810
Phone: [phone]
Facsimile: [phone]
[e-mail]
Amy R. Atwood (OR Bar No. 060407)*
Center for Biological Diversity
P.O. Box 11374
Portland, OR 97211-0374
Phone: [phone]
[e-mail]
Attorneys for Plaintiffs
*Seeking admission pro hac vice
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CENTER FOR BIOLOGICAL
DIVERSITY; SAN FRANCISCO
BAYKEEPER;
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
Plaintiffs,
v.
DAVID BERNHARDT, Secretary of the
Interior; MARGARET EVERSON, Acting
U.S. Fish and Wildlife Service Director;
Defendants.
1.

The Earth is undergoing an unprecedented human-caused extinction crisis. In a

recent landmark report, an international scientific organization representing 130 member nations
issued a dire warning that, without drastic action, approximately one million species worldwide

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face extinction in the foreseeable future as a direct consequence of human-caused habitat loss
and climate change, among many other threats.
2.

This case concerns eight such highly imperiled species in the United States: the

longfin smelt (San Francisco Bay-Delta population), Hermes copper butterfly, Marron bacora (a
plant), Sierra Nevada red fox, red tree vole (North Coast population), gopher tortoise (eastern
population), Berry Cave Salamander, and Puerto Rico harlequin butterfly (collectively, “eight
species”). The U.S. Fish and Wildlife Service (“FWS” or “Service”) has found that all of the
species warrant protection under the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (“ESA”
or “Act”), due to myriad threats to their continued existence, and yet it has refused to afford them
the protections the ESA mandates. This refusal is predicated on FWS’s finding that listing these
species is “warranted but precluded” (“WBP”) by the FWS’s purported work on other, even
higher priority species. Under the ESA, a WBP finding can only be made if FWS is in fact
making “expeditious progress” to “add qualified species” to the lists of endangered and
threatened species, and if the time and resources necessary to make such “progress” precludes
work on other imperiled species. Id. § 1533(b)(3)(B)(iii)(II). In addition, to avoid listing an
otherwise deserving species, FWS is required every year to make a fresh determination that
listing the species is warranted, not warranted, or warranted yet continues to be precluded by the
Service’s expeditious progress in listing other species. Id. § 1533(b)(3)(C)(i).
3.

FWS is in flagrant violation of its ESA obligations with regard to the eight species

at issue in this case. First, the species are being deprived of urgently needed ESA protections
despite the fact that the Service is not making expeditious progress in listing other species. To
the contrary, the Service is listing far fewer species under the Trump administration than the
Obama administration was able to accomplish with an equivalent level of resources, and the rate

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of listing has now plummeted to the lowest level in decades. Second, and relatedly, the FWS is in
ongoing violation of its obligation to publish new findings regarding whether listing of the eight
species is, in fact, precluded by the Service’s expeditious progress in listing other species—a
finding the agency cannot lawfully make under the circumstances.
4.

Plaintiffs Center for Biological Diversity (“Center”)—the nation’s leading

organization devoted to the protection of endangered and threatened species—and San Francisco
Baykeeper bring this lawsuit to challenge the Service’s refusal to protect the eight species as a
violation of the ESA and as agency action unlawfully delayed in violation of the Administrative
Procedure Act (“APA”). 5 U.S.C. § 706(1).
JURISDICTION, VENUE AND INTRADISTRICT ASSIGNMENT
5.

This Court has jurisdiction pursuant to section 11(g) of the ESA, 16 U.S.C. §

1540(g), and 28 U.S.C. § 1331 (federal question).
6.

The U.S. District Court for Northern California is the proper venue for this action,

pursuant to 28 U.S.C. § 1391(e). San Francisco Baykeeper is incorporated in California and its
headquarters are located within this district. The Center is incorporated in California and
maintains an office in this district.
7.

Pursuant to Civil Local Rule 3-2(c), assignment to the San Francisco Division is

appropriate because Plaintiff San Francisco Baykeeper is incorporated in California and
maintains its headquarters in Alameda County. The Center is also incorporated in California and
maintains an office in Alameda County.
PARTIES
8.

The Center is a non-profit corporation headquartered in Tucson, Arizona, with

offices in various locations throughout the country, including Oakland, California. The Center

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works through science, law, and policy to secure a future for all species, great or small, hovering
on the brink of extinction. The Center is actively involved in species and habitat protection
issues. The Center has more than 63,000 members throughout the United States and the world,
including thousands of members in California.
9.

The Center brings this action on its own institutional behalf and on behalf of its

members, many of whom derive aesthetic, recreational, scientific, spiritual, and other concrete
benefits from the eight species and their habitats. The Center has members that endeavor to
observe these species in the wild and have ongoing interests in the species and their habitats.
The Center has members who have concrete plans to visit these species’ habitats and try to
observe them in the wild. Defendants’ actions have harmed and continue to harm the interests of
the Center and its members in observing, studying, and otherwise enjoying the species and their
habitats, and in obtaining and disseminating information regarding the survival of these species.
The relief sought in this case would redress this harm. In addition, Defendants’ ESA violations
are subverting the Center’s core mission to safeguard endangered and threatened species. As a
consequence of Defendants’ unlawful delay in protecting the species under the ESA, the Center
has been compelled to expend resources (exclusive of this litigation) on alternative means of
protecting the species, which has diverted time and resources that could and would have been
spent on other activities that are central to the Center’s mission to conserve imperiled species.
10.

San Francisco Baykeeper (“Baykeeper”) is a non-profit public benefit corporation

organized under the laws of the State of California with its main office in Oakland, California.
Baykeeper is dedicated to protecting the water quality of San Francisco Bay-Delta Estuary (BayDelta) for the benefit of its ecosystems and its human and wildlife communities. Baykeeper’s
approximately 1,500 members live and/or recreate in and around Bay-Delta, its tributaries, and

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its shoreline. These members use the waters that provide habitat for longfin smelt for
recreational, educational, scientific, conservation, aesthetic, and spiritual purposes. For years,
Baykeeper has advocated for policies and legal requirements that would protect longfin smelt in
the Bay-Delta, including decreased water diversions, increased freshwater flows through the
Bay-Delta, habitat restoration, and mitigation measures to reduce take of the imperiled species.
Thus, the interests of Baykeeper and its members are directly, adversely, and irreparably harmed
by FWS’ continued failure to consider the listing of longfin smelt. This harm will continue until
and unless this Court provides the relief prayed for in this Complaint.
11.

Defendant David Bernhardt is the Secretary of the Interior. He has overall

responsibility for overseeing the implementation of the ESA. Secretary Bernhardt is sued in his
official capacity.
12.

Defendant Margaret Everson is the Acting Director of the U.S. Fish and Wildlife

Service, a federal agency within the U.S. Department of the Interior that has been delegated
primary authority for day-to-day administration of the ESA with respect to terrestrial species.
Acting Director Everson is sued in her official capacity.
STATUTORY AND REGULATORY FRAMEWORK
11.

Congress passed the ESA “to provide a program for the conservation of . . .

endangered species and threatened species,” and to “provide a means whereby the ecosystems
upon which endangered species and threatened species depend may be conserved.” 16 U.S.C.
§ 1531(b). The ESA is “the most comprehensive legislation for the preservation of endangered
species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).
12.

The ESA provides for the protection of “species” that are listed as “endangered”

or “threatened.” 16 U.S.C. § 1533. A “species” is defined to “include[ ] any subspecies of fish or

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wildlife or plants, and any distinct population segment [“DPS”] of any species of vertebrate fish
or wildlife which interbreeds when mature.” Id. § 1532(16). The Act defines an “endangered
species” as “any species which is in danger of extinction throughout all or a significant portion of
its range,” and a “threatened species” as “any species which is likely to become an endangered
species within the foreseeable future throughout all or a significant portion of its range.” Id.
§ 1532(6), (20).
13.

The Service must list a species as endangered or threatened based on the presence

of any one or more of five factors: “(A) the present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization 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 its continued existence.” 16
U.S.C. § 1533(a)(1). In making its listing determinations, the Service must use the “best
scientific and commercial data available . . . ” Id. § 1533(b)(1)(A); 50 C.F.R. § 424.11(b).
14.

For any species of wildlife listed as endangered, the ESA makes it unlawful for

any person to, among other activities, “import any such species into, or export any such species
from the United States,” or to “take any such species within the United States.” 16 U.S.C.
§ 1538(a)(1)(A), (B). The term “take” includes “to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). The
Secretary also may, by regulation, extend these take and export prohibitions to species listed as
threatened under the Act.
15.

The ESA requires the FWS to “develop and implement . . . ‘recovery plans’ . . .

for the conservation and survival of endangered species and threatened species . . . ” Id.
§ 1533(f)(1). Such plans must include, among other items, “objective, measurable criteria

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which, when met, would result in a determination, in accordance with the provisions of this
section, that the species be removed from the list” of endangered and threatened species. Id.
§ 1533(f)(1)(B)(ii).
16.

When the Service lists a species as endangered or threatened, a “final regulation

designating critical habitat of an endangered species or a threatened species shall be published
concurrently with the final regulation” listing the species, unless the Service determines that
“critical habitat of such species is not then determinable.” Id. § 1533(b)(6)(C). In that event, the
Service “must publish a final regulation” designating critical habitat “to the maximum extent
prudent” within one year of the final listing decision. Id. The Act defines “critical habitat” to
include the “specific areas within the geographical area occupied by the species, at the time it is
listed . . . on which are found those physical or biological features (I) essential to the
conservation of the species and (II) which may require special management considerations or
protection . . . .” Id. § 1532(5)(A)(i).
17.

Under section 7(a)(2) of the Act, “[e]ach Federal agency shall, in consultation

with and with the assistance of the Secretary, insure that any action authorized, funded, or carried
out by such agency . . . is not likely to jeopardize the continued existence of any endangered or
threatened species or result in the destruction or adverse modification” of the species’ designated
critical habitat. Id. § 1536(a)(2). Under section 7(a)(1) of the Act, “all . . . Federal agencies
shall, in consultation with and with the assistance of the Secretary, utilize their authorities in
furtherance of the purposes [of the ESA] by carrying out programs for the conservation of
endangered species and threatened species listed pursuant to” section 4 of the ESA. Id.
§ 1536(a)(1).

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18.

Any “interested person” may petition the Service to list a species as endangered

or threatened. Id. § 1533(b)(3)(A). Within 12 months after receiving a petition that is found to
“present substantial information indicating that the petitioned action may be warranted,” the
Service must make one of three findings: (1) the “petitioned action is not warranted, in which
case the Secretary shall promptly publish such finding in the Federal Register,” (2) “the
petitioned action is warranted, in which case the Secretary shall promptly publish in the Federal
Register a general notice and the complete text of a proposed regulation to implement such
action[;]” or (3) “the petitioned action is warranted, but . . . the immediate proposal and timely
promulgation of a final regulation implementing the petitioned action . . . is precluded by
pending proposals to determine whether any species is an endangered species or a threatened
species, and . . . expeditious progress is being made to add qualified species” to the lists of
endangered and threatened species, “in which case the Secretary shall promptly publish such
finding in the Federal Register, together with a description and evaluation of the reasons and data
on which such finding is based.” Id. § 1533(b)(3)(B).
19.

If the FWS determines that a petition to list a species is “warranted but precluded”

by other “pending proposals to determine whether any species” is endangered or threatened, the
petition must, under the Act, “be treated as a petition that is resubmitted to the [FWS] . . . on the
date of such finding.” Id. § 1533(b)(3)(C)(i). Hence, the ESA requires FWS to make a new
determination within one year as to whether the species should be listed or instead may again be
denied the Act’s protections on the grounds that its listing is “precluded” by other pending listing
actions. Id. FWS commonly refers to new findings on previously filed petitions as “recycled
petition findings,” and they are included in a “Candidate Notice of Review” (“CNOR”), a
document that, prior to the current administration, FWS published approximately every 12

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months. The ESA provides that any WBP finding “shall be subject to judicial review.” Id.
§ 1533(b)(3)(C)(ii).
20.

CNORs list all species that the FWS considers to be “candidates” for listing.

Candidates are species for which the Service has “on file sufficient information on biological
vulnerability and threat(s) to support issuance of a proposed rule to list, but for which issuance of
the proposed rule is precluded” by higher-priority listing actions. 81 Fed. Reg. 87,246, 87,248
(Dec. 2, 2016). Although the Service acknowledges that listing all “candidates” is “warranted”
based on the best available data—i.e., such species need the protections of the Act to avoid nearor long-term extinction—candidates that are not listed do not receive the extensive safeguards of
the Act.
FACTUAL BACKGROUND
21.

The most recent CNOR was published in the Federal Register on December 2,

2016. See 81 Fed. Reg. 87,246. Accordingly, it has been nearly two-and-a-half years since FWS
published a CNOR with WBP findings for the eight species at issue (or any other species).
22.

In the December 2, 2016 CNOR, FWS determined that, based on the available

information, listing the eight species as endangered or threatened is warranted due to myriad
threats to these species’ continued existence. See id. at 87,257-58 (finding that the Bay-Delta
DPS of the longfin smelt warrants listing because, among other reasons, the species’ “numbers in
the Bay-Delta have declined significantly since the 1980s[;]” the species’ “abundance over the
last decade is the lowest recorded in the 40-year history” of monitoring surveys; and the species
continues to face “imminent” and “high” magnitude threats that “pose a significant risk to the
DPS throughout its range”); id. at 87,255-56 (finding that listing of the red tree vole, a small
rodent that lives in the tops of conifer trees, is warranted because, among other reasons, red tree

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voles “have declined in the DPS and are largely absent in areas where they were once relatively
abundant[;]” [o]lder forests that provide habitat for red tree voles are limited and highly
fragmented[;]” and “[e]xisting regulatory mechanisms on State and private lands are not
preventing continued harvest of forest stands at a scale and extent that would be meaningful for
conserving red tree voles”); id. at 87,255-56 (finding that listing of the Sierra Nevada red fox is
warranted because the population has been reduced to only “approximately 29 adults, including
an estimated 14 breeding individuals[,]” and such a small population “could be extirpated by any
of [a number of] population-level threats,” including the adverse genetic effects of inbreeding,
climate change, and “deleterious chance events such as storms or local disease outbreaks); id. at
87,256-57 (finding that listing the eastern population of the gopher tortoise is warranted because
it is suffering from, among other threats, “habitat fragmentation, destruction, and modification
(either deliberately or from inattention), including conversion of longleaf pine forests to
incompatible silvicultural or agricultural habitats, urbanization, shrub/hardwood
encroachment . . ., and establishment and spread of invasive species”); id. at 87,257 (finding that
listing of the Berry Cave salamander is warranted because the species faces “imminent threats”
to its continued existence, including urban development, water quality impacts, and “confined
distribution of the species and apparent low population densities”); id. at 87,260 (“continu[ing]
to find that listing [the Hermes copper butterfly] is warranted” due to ongoing threats to its
continued existence); id. (finding that listing of the Puerto Rican harlequin butterfly is warranted
because the population has been reduced to “around 50 adults in the northern karst region and
fewer than 20 adults in the volcanic serpentine central mountains” of Puerto Rico, and that the
“primary threats” to the species “are development, habitat fragmentation, and other natural or
manmade factors such as human-induced fires, use of herbicides and pesticides, vegetation

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management, and climate change”); id. at 87,263 (finding that the marron bacora—a dry-forest
shrub in the island of St. John, U.S. Virgin Islands—“is threatened by the lack of natural
recruitment, absence of dispersers, fragmented distribution, lack of genetic variation, climate
change, and habitat destruction or modification by exotic mammal species”).
23.

While finding that ESA protection for each of the eight species is warranted, FWS

also determined in its December 2, 2016 CNOR that listing was precluded by work on other
listing activities. As the ESA requires, FWS’s WBP determination included a finding that “we
are making expeditious progress in listing qualified species.” Id. at 87,252. The Service
explained that “[i]n FY [fiscal year] 2016, we resolved the status of 97 species that we had
determined, or had previously determined, qualified for listing[,]” and “[m]oreover, for 78 of
those species, the resolution was to add them to the Lists.” Id. The CNOR also set forth
additional listing actions that had been taken in FY 2016, including “propos[als] to list an
additional 18 qualified species.” Id. The CNOR explained that many of these actions had been
undertaken as a result of a settlement with the Center regarding the Service’s backlog of
candidate species warranting listing. See id. (explaining that “[b]oth by entering into the
settlement agreement and by making progress towards final listing determinations for those
species proposed for listing, . . . the Service is making expeditious progress to add qualified
species to the lists”).
24.

Although the ESA requires FWS to announce new listing determinations

regarding the eight species within one year following the December 2, 2016 CNOR—and, in
particular, to issue proposed listing rules if listing remained warranted and the Service could not
support findings that proposed rules were precluded by higher priority listings toward which
FWS was purportedly making expeditious progress—the agency did not meet that statutory

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deadline. To date, FWS has not issued any CNOR incorporating WBP findings since December
2, 2016.
25.

Since the onset of the Trump administration in January 2017 and continuing until

today, the FWS has not made expeditious progress in listing species. On the contrary, listing of
species as endangered or threatened has largely ground to a halt. In contrast to the 78 species
listed as endangered or threatened in FY 2016, in the last 26 months the FWS has managed to list
only 17 species in total. This number pales in comparison to the progress on listing that was
made not only during the Obama administration, but during prior administrations as well. For
example, 234 species were listed as endangered or threatened during the George H.W. Bush
administration and 522 species were listed during the Clinton administration.
26.

In addition to publishing CNORs announcing formal WBP findings, the FWS has

issued so-called “national listing workplans” setting forth the agency’s intentions with regard to
various listing actions over a number of fiscal years. In 2016, FWS developed such a workplan to
address a backlog of more than 500 species awaiting listing determinations, including the eight
candidate species. The workplan provided that proposed listing rules would be issued in fiscal
years 2016, 2017, or 2018 for a number of species, including several of the species at issue in
this lawsuit. The FWS, however, has failed to adhere to the schedules set forth in its own
workplan and, of particular relevance, to date the Service has failed to issue proposed rules for
any of the eight species, including those that the agency itself said would be the subject of
proposed rules by now. Consequently, even according to the FWS’s own prior proposed
workplans, the FWS is not making “expeditious progress” in listing and is failing to move
forward in listing the imperiled species at issue in a timely manner.

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27.

On information and belief, one reason why FWS has not issued a CNOR within

the past two-and-a-half years is because the Service cannot lawfully make the expeditious
progress finding that is necessary to invoke the WBP rationale for refusing to list species whose
listing is both warranted and essential to avoid the species’ extinction.
28.

Since the last CNOR was published on December 2, 2016, and continuing to the

present, FWS has had in its possession information indicating that ESA listing of the eight
species is warranted because one or more of the statutory criteria for listing the species is
satisfied.
29.

By letter dated January 15, 2019, the Center formally put Defendants on notice,

pursuant to the provisions of the ESA’s citizen suit provision, 16 U.S.C. § 1540(g)(2)(C), that
Defendants are in violation of the ESA by failing to publish a CNOR in a timely manner and by
failing to move forward with listing of the eight species. To date, the Center has received no
response to its notice, thus rendering this litigation necessary if the requirements and purposes of
the ESA are to be effectuated.
CLAIMS FOR RELIEF
CLAIM ONE (ESA)
30.

Defendants are denying vital ESA protections to the eight species in violation of

Defendants’ mandatory duties by maintaining their classification as warranted but precluded
when (1) “expeditious progress” is not “being made to add qualified species” to the lists of
endangered and threatened species, 16 U.S.C § 1533(b)(3)(B)(iii)(II); (2) the FWS has failed,
within the time frames mandated by the ESA, even to publish any WBP finding for these species
buttressed by a legally supportable expeditious progress finding, id. § 1533(b)(3)(C); and (3) the
Service cannot under the circumstances make a legally supportable expeditious progress finding.

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This violation is injuring, and will continue to injure, Plaintiffs and their members’ concrete
interests in these species.
CLAIM TWO (ESA)
31.

By failing to publish any new findings regarding the eight species since the

December 2, 2016 CNOR, the FWS is in violation of its mandatory duty under the ESA to make
such findings at least once each year. 16 U.S.C. § 1533(b)(3)(C)(i). This violation is injuring,
and will continue to injure, Plaintiffs and their members’ concrete interests in these species.
CLAIM THREE (APA)
32.

FWS failed to issue proposed listing rules for the eight species on the grounds that

their listing is warranted but precluded even though (1) the FWS cannot lawfully support such a
finding in view of the agency’s ongoing failure to make expeditious progress in listing other
species and (2) the FWS has not made any expeditious progress findings within the time frame
mandated by the ESA. Defendants are therefore “unlawfully with[holding] and unreasonably
delay[ing]” publication of the proposed rules in violation of the APA. 5 U.S.C. § 706(1). This
violation is injuring, and will continue to injure, Plaintiffs and their members’ concrete interests
in these species.
CLAIM FOUR (APA)
33.

Defendants are “unlawfully with[holding] and unreasonably delay[ing]” new

findings for the eight species by failing to issue a CNOR within the ESA-mandated timeframe, in
violation of the APA. 5 U.S.C. § 706(1). This violation is injuring, and will continue to injure,
Plaintiffs and their members’ concrete interests in these species.
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully requests that the Court issue an Order:

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1.

Declaring that Defendants are unlawfully depriving the eight species of protection

under the ESA;
2.

Ordering Defendants to publish proposed rules for the eight species according to a

schedule to be fashioned by the Court;
3.

Ordering Defendants to issue a new CNOR within 30 days of the Court’s order;

4.

Awarding Plaintiffs their attorneys’ fees and costs; and

5.

Awarding Plaintiffs such other relief as the Court deems just and proper.

Dated: May 23, 2019

Respectfully submitted,
_/s/ Jennifer L. Loda______________
Jennifer L. Loda (CA Bar No. 284889)
Center for Biological Diversity
1212 Broadway, Suite 800
Oakland, CA 94612-1810
Phone: [phone]
Facsimile: [phone]
[e-mail]
Amy R. Atwood (OR Bar No. 060407)*
Center for Biological Diversity
P.O. Box 11374
Portland, OR 97211-0374
Phone: [phone]
[e-mail]
Attorneys for Plaintiffs
*Seeking admission pro hac vice

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