Conservancy of Southwest Florida et al v. United States Fish and Wildlife Service et al

Filing 100

OPINION AND ORDER granting 45 Motion to dismiss; granting 46 Motion to dismiss; granting 59 Motion to dismiss; adopting in part and rejecting in part 85 Report and Recommendations as set forth in the Opinion and Order. The Amended Complaint is dismissed without prejudice for failing to state claims upon which relief may be granted. The Clerk shall enter judgment accordingly, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 4/6/2011. (RKR)

Conservancy of Southwest Florida et al v. United States Fish and Wildlife Service et al

Doc. 100

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION CONSERVANCY OF SOUTHWEST FLORIDA; SIERRA CLUB; CENTER FOR BIOLOGICAL DIVERSITY; PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY; AND COUNCIL OF CIVIL ASSOCIATIONS, INC;, Plaintiffs, vs. UNITED STATES FISH AND WILDLIFE SERVICE; ROWAN GOULD, in his official capacity as Director of the U.S. Fish and Wildlife Service; UNITED STATES DEPARTMENT OF INTERIOR; AND KENNETH SALAZAR, in his official capacity as Secretary of the Department of Interior;, Defendants. ___________________________________ OPINION AND ORDER On November 12, 2010, United States Magistrate Judge Sheri Polster Chappell submitted a Report and Recommendation (Doc. #85) to the Court recommending Eastern Collier Property Owners', Federal Defendants', and Intervenor Seminole Tribe of Florida's Motions to Dismiss (Docs. ## 45; 46; 59) be denied. All parties filed Case No. 2:10-cv-106-FtM-SPC

Objections to the Report and Recommendation (Docs. ## 90; 91; 92) and Responses to the Objections. (Docs. ## 93, 96; 97; 98; 99.)

For the reasons set forth below, the Court finds that it has subject matter jurisdiction and that plaintiffs have standing, but that none of the counts state claims upon which relief may be granted.

Dockets.Justia.com

I. After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C.

§ 636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir. 2010). A district judge "shall make a de novo determination

of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C.

§ 636(b)(1)(C); see also United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n.1 (11th Cir. 2009). This requires that the district

judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of

Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609, 94th Cong., § 2 (1976)). The district judge reviews legal See

conclusions de novo, even in the absence of an objection.

Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994). II1. The Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1531 et seq., is intended to protect and conserve endangered and threatened species and their habitats. The Fish and Wildlife Service (FWS or

Service) administers the ESA with respect to species under the

The Court fully adopts Recommendation. (Doc. #85.)

1

pages
-2-

1-12

of

the

Report

and

jurisdiction

of

the

Secretary

of

the

Interior,

including The Court

designating critical habitat.2

50 C.F.R. § 402.01(b).

uses Service and Secretary interchangeably in its discussion below. The Florida Panther (Felis concolor coryi or puma concolor coryi) has been listed as an endangered species since 1967, 32 Fed. Reg. 4001 (Mar. 11, 1967), and retained its status after the 1973 passage of the ESA. The Florida Panther, a subspecies of the

cougar, is "one of the rarest large mammals in the United States," 71 Fed. Reg. 30156-01 (May 25, 2006), and "one of the most endangered large mammals in the world." Fund for Animals, Inc. v.

Rice, 85 F.3d 535, 538 (11th Cir. 1996)(quoting a FWS Biological Opinion). "Although the Florida Panther once ranged throughout the Southeastern United States, it Id. has been reduced to a single

population in south Florida."

Critical habitat, however, has

never been designated for the Florida Panther. In January 2009, the Conservancy of Southwest Florida

(Conservancy) filed a petition with the Service under the ESA,

"Critical habitat" is defined as: (i) the specific areas within the geographical area occupied by the species . . . on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species . . . upon a determination of the Secretary that such areas are essential for the conservation of the species. 16 U.S.C. § 1532(5)(A).
-3-

2

Service regulations, and the Administrative Procedures Act (APA), asking the Service to establish critical habitat for the Florida Panther. The Sierra Club and numerous other environmental On September

organizations joined in that petition in July 2009.

17, 2009, the Center for Biological Diversity and the Public Employees for Environmental Ethics and Counsel of Civil

Associations petitioned the Service to designate critical habitat for the Florida Panther. In November 2009, the Sierra Club filed

a supplemental petition with the Service to establish critical habitat for the Florida Panther, specifically to account for habitat loss due to climate change. Plaintiffs assert that these

petitions were based on scientific reports submitted with their petitions which identified three priority zones for Panther habitat conservation. Plaintiffs' petitions asked the Service to designate these zones as critical habitat because this would provide

landscape-level protection of the entire area recognized by the best available science as essential to the survival and recovery of the species. Because the Service had not granted or denied the petitions, on December 16, 2009, Conservancy and the Sierra Club gave a 60-day notice of intent to sue under the ESA's citizen-suit provision, 16 U.S.C. § 1540(g), and notified the Service by certified mail that they intended to file suit against it under the ESA and APA to compel responses to the petitions. That letter also included a

-4-

notice of intent to sue for violations of ESA § 7.

Plaintiff

Center for Biological Diversity served a citizen-suit notice on December 22, 2009. Conservancy and the Sierra Club sent a

supplemental notice letter on January 26, 2009.

In addition,

plaintiffs sent another 60-day notice of intent to sue on March 1, 2010. More than 60 days passed from the date of that letter to the

filing of the Complaint. On February 11, 2010, in three separate but virtually

identical letters, the Service denied the Conservancy's January 2009 petition, the Center for Biological Diversity's September 2009 petition, and the Sierra Club's November 2009 petition, and refused to designate critical habitat for the Florida Panther. In denying

the petitions, the Service noted that it was in the process of working with in several conservation County, organizations Florida "to and private a

landowners

Collier

implement

landscape-scale Habitat Conservation Plan for which the landowners would seek a permit from the Service in accordance with Section 10 of the Act." The Service noted that this process, referred to as

the "Florida Panther Protection Program," may provide a framework for conservation and recovery efforts in other locations.

-5-

On June 25, 2010, plaintiffs filed a shotgun3 four-count Amended Complaint (Doc. #42) alleging that the Service's denials of plaintiffs' several petitions to designate critical habitat for the Florida Panther violated the ESA and APA. (Doc. #85, p. 2.) Count

I alleges the denials were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the APA, 5 U.S.C. §§ 706(2)(A), (D). Count II alleges that the

denials were in violation of the requirements of §§ 2, 3, and 7 of the ESA and §§ 706(2)(A), (D) of the APA. Count III alleges that

the denials were in violation of the ESA because they were not based on the best scientific data available, as required by § 1533(b)(2). Count IV alleges that the denials were in violation of the ESA because the Service failed to comply with their nondiscretionary duties for designation and revision of critical habitat. Plaintiffs seek a declaratory judgment that the denials

of the petition were in violation of the law for the reasons set forth in the Amended Complaint; an order vacating the denials of the petitions; an injunction remanding the matter to defendants and ordering defendants to to make all necessary habitat, findings, and set initiate

rulemaking

designate

critical

reasonable

Plaintiffs have improperly incorporated all allegations of each count in every successive count. Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001); Cramer v. State of Florida, 117 F.3d 1258, 1263 (11th Cir. 1997).
-6-

3

deadlines to complete the tasks; and an award of attorneys fees and costs. III. The motions to dismiss collectively raise four arguments: (1) the Court lacks subject-matter jurisdiction over the ESA claims because the decision whether to designate critical habitat for the Florida Panther is discretionary and therefore the Secretary is exempt from suit under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(C); (2) alternatively, the ESA counts fail to state a claim upon which relief may be granted; (3) plaintiffs lack standing because the Court cannot redress their claims; and (4) the APA counts fail to state a claim upon which relief may be granted because the decision to designate critical habitat for the Florida Panther is committed to the agency's discretion by law. The first

and third arguments implicate the jurisdiction of the Court to decide the case, and will therefore be discussed first. A. Subject Matter Jurisdiction Defendants raise a facial challenge to the subject matter jurisdiction of the court. Subject matter jurisdiction relates to Morrison v. Nat'l Austl.

the court's power to adjudicate a case.

Bank Ltd., 130 S. Ct. 2869, 2877 (2010); Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243 (2010). Plaintiffs assert federal

jurisdiction under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2201-02 (declaratory judgment and further relief), 16 U.S.C.

-7-

§ 1540(g)(ESA citizen suit), and 5 U.S.C. § 701-06 (APA). #42, ¶6.)

(Doc.

Subject matter jurisdiction is clearly not created by 28 U.S.C. §§ 2201-02. The Declaratory Judgment Act is a procedural

statute which grants no jurisdiction where jurisdiction does not otherwise exist. Vaden v. Discover Bank, 129 S. Ct. 1262, 1278

n.19 (2009); Christ v. Beneficial Corp., 547 F.3d 1292, 1299 (11th Cir. 2008); Household Bank , F.S.B. v. JFS Group, 320 F.3d 1249, 1253 (11th Cir. 2003)("The operation of the Declaratory Judgment Act is procedural only."). The APA does not itself serve as an implied grant of federal subject matter jurisdiction. Califano v. Sanders, 430 U.S. 99, 105 (1977). Jurisdiction over APA challenges to federal agency action, however, is vested in federal district courts by virtue of 28 U.S.C. § 1331 unless another statute specifically bars judicial review in the district court. Alabama v. EPA, 871 F.2d 1548, 1559-

60 (11th Cir. 1989); see also Chrysler Corp. v. Brown, 441 U.S. 281, 317 n.47 (1979)("Jurisdiction to review agency action under the APA is found in 28 U.S.C. § 1331."); 5 U.S.C. § 701(a)(1)(APA does not apply where "statutes preclude judicial review"). Title 28 U.S.C. § 1331 vests federal district courts with "original jurisdiction" over "all civil actions arising under the Constitution, laws, or treaties of the United States." Empire

HealthChoice Assur., Inc. v. McVeigh, 547 U.S. 677, 689 (2006). "A

-8-

case `aris[es] under' federal law within the meaning of § 1331 . . . if `a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Id. at 690 (quoting Franchise Tax Bd. of Cal. v.

Constr. Laborers Vacation Trust, 463 U.S. 1, 27­28 (1983)). At the very least, in this case plaintiffs' right to relief as to all four counts necessarily depends on resolution of a substantial question of federal law involving the ESA. jurisdiction exists as to all Therefore, subject matter counts unless the ESA

four

specifically bars judicial review. The parties' primary jurisdictional dispute is whether subject matter jurisdiction exists under the ESA citizen-suit provision. This provision grants federal district courts "jurisdiction,

without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision or regulation, or to order the Secretary to perform such act or duty, as the case may be." 16 U.S.C. § 1540(g)(1). The "any such provision or

regulation, or to order the Secretary to perform such act or duty" relates to three specific areas: (1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf(A) to enjoin any person, including the United States any other governmental instrumentality or agency (to extent permitted by the eleventh amendment to Constitution), who is alleged to be in violation of
-9-

and the the any

provision of this chapter or regulation issued under the authority thereof; or (B) to compel the Secretary to apply, pursuant to section 1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this title with respect to the taking of any resident endangered species within any State; or (C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary. 16 U.S.C. § 1540(g)(1)(A)-(C). The defendants argue that because

the Secretary is not "in violation of any provision of this chapter or regulation issued under the authority thereof" and has not failed to perform any non-discretionary act or duty under § 1533, the Court has no subject matter jurisdiction under either

§ 1540(g)(1)(A) or (C). The Supreme Court has cautioned about the imprecise use of the term "jurisdiction" in the case law. Reed Elsevier, Inc., 130

S. Ct. at 1243-44; Henderson v. Shinseki, 131 S. Ct. 1197, 1202-03 (2011). Defendants appear to mix subject matter jurisdiction with Thus, defendants state:

the merits of the underlying claims.

"Because the Service's decision regarding designation of critical habitat for the panther is committed to the agency's discretion, the ESA citizen-suit provision does not provide jurisdiction for review of Plaintiff's claims. Thus, even accepting as true all

allegations in Plaintiffs' Amended Complaint, they are not entitled to any relief under the ESA." (Doc. #46, p. 8.)

-10-

Subject

matter

jurisdiction

is

"quite

separate

from

the

question whether the allegations the plaintiff makes entitle him to relief." Morrison, 130 S. Ct. at 2877. "Jurisdiction . . . is not

defeated . . . by the possibility that the averments might fail to state a recover." cause of action on which petitioners could actually

Bell v. Hood, 327 U.S. 678, 682 (1946).

Rather, the District Court has jurisdiction if the right of petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another, [ ] unless the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous. [ ] Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89

(1998)(internal quotation marks and citations omitted).

Here,

plaintiffs win under one construction of the ESA and lose under another, and the claims are not implausible, frivolous or

immaterial.

The Court therefore concludes that the ESA does not

preclude judicial review otherwise available under § 1331, and that it also has subject matter jurisdiction under the ESA citizen-suit provision. Thus, the Court finds that it has subject matter jurisdiction over all claims in the Amended Complaint. The motions to dismiss

will be denied to the extent they assert the contrary.

-11-

B.

Constitutional Standing The intervenor defendants argue that plaintiffs have no

standing because the Court cannot fashion a meaningful remedy. They essentially assert that the decision to designate or not designate critical habitat will always be within the discretion of the Service, the Court cannot make or compel the decision, and therefore no constitutional standing exists. The "`irreducible constitutional minimum' of standing

requires: (1) that the plaintiff have suffered an `injury in fact' - an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of - the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 167 (1997); see also

Arizona Christian School Tuition Org. v. Winn, Nos. 09-987,09-991, 2011 WL 1225707 at *6 (U.S. Apr. 4, 2011)(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). dispute is redressibility. To determine if the redressability prong is satisfied, the Court examines the relief requested in the complaint to determine The only element in

-12-

whether it will compensate for or eliminate any effects of the alleged wrongdoing. Steel Co., 523 U.S. at 105-09. Plaintiffs'

relevant requested relief is for: a declaration that the denial of plaintiffs' petitions did not comply with the ESA, the Service's regulations and the APA; a declaration that the denial of

plaintiffs' petitions was in violation of ESA §§ 2,3,and 7 and/or that the denials were arbitrary and capricious, an abuse of

discretion and not in accordance with law; an order vacating the denial of the petitions; and an injunction remanding the matter to defendants, ordering defendants to make all necessary findings on the petitions, ordering defendants to initiate rulemaking to

designate critical habitat and setting a reasonable deadline for these tasks to be completed. Since the parties (Doc. #42, p. 35.) whether the Service's denials

dispute

constitute a violation of the ESA, a declaratory judgment is of value to plaintiffs, unlike the situation in Steel Co. U.S. at 106. Injunctive relief would also be of See 523 value to

plaintiffs, since the Service's future conduct is otherwise likely to continue to inflict the alleged injury - failure to designate critical habitat. Id. at 109. The remedy need not obtain the

ultimate goal - designation of critical habitat - so long as it relieves a discrete injury to plaintiff. Massachusetts v. EPA, 549 U.S. 497, 525-26 (2007). sufficient to satisfy The remedies available to the Court are the redressability requirement for

-13-

constitutional standing. standing are denied. C.

The motions to dismiss for lack of

Failure to State A Claim Defendants argue in the alternative that the ESA counts fail

to state a claim upon which relief may be granted. Defendants also argue that the APA counts fail to state a claim upon which relief may be granted. (1) The Endangered Species Act

Defendants argue that the counts under the ESA fail to state a claim upon which relief may be granted because (1) the denials of the requests to designate critical habitat were not done in

violation of the ESA within the meaning of § 1540(g)(1)(A), and (2) the denials of the requests to designate critical habitat were discretionary actions and therefore outside the scope of

§ 1540(g)(1)(C), which applies only to acts or duties which are "not discretionary with the Secretary." (a) Count II: Count II of the Complaint alleges that denying the petitions to declare critical habitat for the Florida Panther violated various provisions of ESA. Specifically, plaintiffs assert that The Court agrees.

defendants violated: (1) the policy of Congress that "all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter" under 16 U.S.C.

-14-

§ 1531(c)(1); (2) the definition of "conserve" and its variants as used in the ESA, which means "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary," as set forth in 16 U.S.C. § 1532(3); and (3) the requirement that the Secretary "review other programs administered by him and utilize such

programs in furtherance of the purposes of this chapter," and that "[a]ll other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out

programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title," as provided in 16 U.S.C. § 1536(a)(1)(emphasis added). No private cause of action is created for simply violating the policy provision in § 1531(c)(1) or the definition of "conserve" and its variations in § 1532(3). Neither provision creates any

substantive duties, see Nat'l Wildlife Fed'n v. Marsh, 721 F.2d 767, 773 (11th Cir. 1983), and nothing in the statutory scheme suggests Congressional intent to create a private cause of action for such conduct. See Astra USA, Inc. v. Santa Clara County, Cal.,

No. 09-1273, 2011 WL 1119021 at *5 (U.S. Mar. 29, 2011)(recognition of any private right of action for violating a federal statute must ultimately rest on congressional intent to provide a private

-15-

remedy); Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 164 (2008)(implied cause of action exists only if Congress intended to create such a cause of action). The

§ 1536(a)(1) requirement that the Secretary utilize programs he administers in furtherance of the purposes the ESA chapter creates no specific affirmative obligations on the Service. In the context of the Amended Complaint, the allegation is essentially a challenge to the merits of the determination not to designate critical habitat. In the circumstances alleged in this case, such a

challenge is not subject to judicial review under the ESA. Bennett, 520 U.S. at 173-74. The Bennett Court found that while

§ 1540(g)(1)(A) is a means to enforce substantive provisions of the ESA against regulated parties, it "is not an alternative avenue for judicial review of the Secretary's implementation of the statute." Id. at 173. Bennett concluded that to allow suit pursuant to other sections of the ESA essentially challenging the Secretary's

discretionary duties would make the existence of § 1540(g)(1)(C) "superfluous--and, worse still, its careful limitation to § 1533 would be nullified . . ." § 1536(a)(1) refers to Id. the Further, the second portion of of other government

obligations

agencies, not defendants. The Court finds that Count II fails to state a claim for which relief may be granted under the ESA. the extent it relies upon the ESA. Count II will be dismissed to

-16-

(b) Count III: Count III alleges a claim that defendants failed to perform acts or duties under § 1533 which were not discretionary with the Secretary, in violation of § 1540(g)(1)(C). More specifically,

Count III alleges that the Secretary did not comply with 16 U.S.C. § 1533(b)(2), requiring him to designate and make revisions to critical habitat on the basis of the best scientific data

available, and pertinent regulations thereunder. subject to judicial review.

Such a claim is

Bennett, 520 U.S. at 172.

The difficulty with Count III is that, as discussed below, the decision to designate critical habitat for a species declared endangered prior to the 1978 amendments to the ESA is not "not discretionary" within the meaning of § 1540(g)(1)(C). Rather, the

statute allows the Secretary to declare critical habitat for such endangered species, but does not require it. Therefore,

§ 1533(b)(2) is inapplicable to the requests made by plaintiffs in this case. In Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978) the Supreme Court traced the history of Congressional treatment of endangered species. major congressional The Endangered Species Act of 1966, the first action concerning the preservation of

endangered species, gave the Secretary power to identify the names of the species of native fish and wildlife found to be threatened with extinction; authorized the purchase of land for the

-17-

conservation, protection, restoration, and propagation of selected species of native fish and wildlife threatened with extinction; declared the preservation of endangered species a national policy; and directed all federal agencies both to protect these species and insofar as is practicable and consistent with their primary

purposes, preserve the habitats of such threatened species on lands under their jurisdiction. Id. at 174-75.

The Florida Panther (Puma concolor coryi) was listed as an endangered species in 1967 and has remained on the Endangered Species List. See 32 Fed. Reg. 4,001 (Mar. 11, 1967). In 1969,

Congress enacted the Endangered Species Conservation Act, which broadened federal involvement in the preservation of endangered species. Pub. L. No. 91-35, 83 Stat. 275 (1969). The Endangered

Species Act of 1973 "represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." determine Hill, 437 U.S. at 180. by regulation The ESA required the Secretary to species were endangered or

whether

threatened based upon specific factors and the best scientific and commercial data available, Pub. L. No. 93-205, §§ 3(A), (B), and to publish a list of such species. Id. at § 3(C)(1). Species which

had been listed under the Endangered Species Conservation Act of 1969 were deemed to be an endangered species under the ESA until republished to conform to the classifications under the ESA. at § 4(C)(3). Id.

The original version of the ESA did not require the

-18-

Secretary threatened

to

designate but

critical rather

habitat

for

endangered that

or the

species,

generically

directed

Secretary "shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species." Id. at § 3(D). Congress amended the ESA in 1978 in reaction to the Hill decision, which upheld the Secretary's decision to protect the critical habitat of snail darters by halting construction of a virtually completed $100 million dam. The Endangered Species Act

Amendments of 1978, Pub. L. No. 95-632, 92 Stat. 3751 (1978), added a more restrictive statutory definition of "critical habitat," and amended § 1533(a)(1) to add the new sentence: "At the time any such [listing] regulation is proposed, the Secretary shall also by regulation, to the maximum extent prudent, specify any habitat of such species which is then considered to be critical habitat. The

requirement of the preceding sentence shall not apply with respect to any species which was listed prior to enactment of the

Endangered Species Act Amendments of 1978."

Id. at § 11.

The 1978

Amendments also provided that "critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph." Thus, after the

1978 amendments, the ESA required a designation of critical habitat at the time the Secretary proposed listing a new species as

-19-

endangered or threatened, but did not require designation of critical habitat for species previously listed. Congress developed second thoughts about the 1978 amendments requiring critical habitat designation at the time of the proposed listing when it was determined that "only one new species proposed for listing successfully navigated both the listing and habitat designation processes" in three years. Alabama-Tombigbee Rivers In

Coalition v. Kempthorne, 477 F.3d 1250, 1265 (11th Cir. 2007).

the Endangered Species Act Amendments of 1982, Congress switched to a "concurrently" requirement which stated that the Secretary must designate critical habitat at the time the species is listed, not when such a listing is proposed. (1982). Pub. L. No. 97-304, 96 Stat. 1411

"After those amendments, . . . no part of the [ESA]

required the Service to propose critical habitat at the time of the proposed listing of the species as endangered. [ ] The only requirement was that the Service designate critical habitat

concurrently with its final listing decision, if doing so then would be prudent and if the habitat would be determinable at that time." Kempthorne, 477 F.3d at 1266 (internal citations omitted). "The use of the word `concurrently' refers to the final decisions, not to the initial proposals." Id. at 1268. As before, nothing

required a designation of critical habitat for species which had already been listed as endangered or threatened.

-20-

The current version of the ESA, in effect at the time of the petitions in this case, defines "critical habitat," § 1532(5)(A)4, then provides: "Critical habitat may be established for those

species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph." (emphasis added). 16 U.S.C. § 1532(5)(B)

The ESA requires that the Secretary "shall"

determine whether any species is an endangered or threatened species following five factors, "by regulation promulgated in accordance with subsection (b) of this section." 16 U.S.C.

§ 1533(a)(1).

Similarly, the Secretary "shall" designate critical

habitat "concurrently with making a determination under paragraph (1) that a species is" endangered or threatened, "by regulation promulgated in accordance with subsection (b) of this section and to the maximum extent prudent and determinable," and "may" revise such designation from time-to-time thereafter as appropriate. 16

U.S.C. § 1533(3)(A). Subsection (b) requires the Secretary to make the subsection (a)(1) determinations "solely on the basis of the best scientific and commercial data available" after conducting a review of the status of the species, 16 U.S.C. § 1533(b)(1)(A), and to designate and revise critical habitat "on the basis of the best scientific data available" after taking into consideration 16 U.S.C.

economic, national security and other relevant impacts.

4

See footnote 2.
-21-

§ 1533(b)(2).

Once critical habitat is designated for a species,

federal agencies are required to consult with the Service to ensure that their activities do not adversely modify the critical habitat to the point that it will no longer aid in a species' recovery. U.S.C. § 1536(a). On its face, the amended statute does not require the 16

Secretary to designate critical habitat for species already listed as threatened or endangered prior to 1978, such as the Florida Panther. The plain meaning of the "may" in the context of the ESA

is that designation of critical habitat for prior listed species is discretionary with the Secretary. This is confirmed by the

legislative history of the amendments to the statute, summarized above. Dismissal is warranted under Fed. R. Civ. P. 12(b)(6) if, assuming the truth of the factual allegations of plaintiff's complaint, there is a dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v.

Crawford County, Ga., 960 F.2d 1002, 1009-10 (11th Cir. 1992). Because the designation of critical habitat for species such as the Florida panther is discretionary, Count III fails to state a claim upon which relief may be granted. granted as to Count III. The motions to dismiss are

-22-

(c) Count IV: Count IV also alleges that defendants did not comply with certain non-discretionary duties under the ESA. Specifically,

Count IV alleges that the Secretary failed to comply with 50 C.F.R. § 424.14(d), which in turn required compliance with 50 C.F.R. § 424.12(b); the procedures set forth in 16 U.S.C.

§§ 1533(b)(3)(D)(i),(ii); and the procedures set forth in 50 C.F.R. §§ 424.10, 424.14(c)(1), (2), and (3). Count IV alleges that at

least some of these requirements apply to species listed before the 1982 amendments because Pub. L. No. 97-304 § 2(b)(2) states that proposals "to designate critical habitat . . . shall be subject to the [revision procedures]." (Doc. #42, ¶87.)

The Court finds that Count IV fails to state a claim upon which relief may be granted, and it therefore will be dismissed. Section 2(b)(2) of the 1982 amendments does not state that

plaintiffs' proposals or petitions to designate critical habitat are subject to the same procedures as if the Secretary had made the proposal for such designation. Rather, it states that "[t]he

Secretary shall designate critical habitat, or make revisions thereto, under subsection It is the (a)(3) . . ." Pub. L. to 97-304 §

2(b)(2)(1982). critical habitat

Secretary's the

proposal

designate regulatory

that

triggers

statutory

and

obligations, not plaintiffs' requests that the Secretary do so.

-23-

Title 50 C.F.R. § 424.14(b), which requires the Service to publish its finding as well as consider several factors regarding where the critical habitat is designated, is inapplicable in the instant case. designate Plaintiffs' have merely petitioned the Service to There is no petition to revise

critical habitat.

critical habitat, or to list, delist or reclassify species, and no proposed regulation by the Secretary. regarding petitions are applicable. The Court agrees that 50 C.F.R. § 424.14(d) is applicable to plaintiffs' petitions. Section 424.14(d) states: "Petitions to Upon receiving Thus, only the regulations

designate critical habitat or adopt special rules.

a petition to designate critical habitat . . . the Secretary shall promptly conduct a review in accordance with the Administrative Procedure Act (5 and U.S.C. take 553) and applicable action." Departmental 50 C.F.R.

regulations,

appropriate

§ 424.14(d)(emphasis added). 43 C.F.R. § 14 "prescribes procedures for the filing and consideration of petitions for rulemaking." C.F.R. § 14.1. 43

The only requirement is that "[t]he petition will

be given prompt consideration and the petitioner will be notified promptly of action taken." 43 C.F.R. § 14.3. The face of the

Amended Complaint establishes that these procedures were followed. (2) The Administrative Procedures Act APA claims are set forth in Count I and a portion of Count II. In their motions to dismiss, defendants argue that the Service's

-24-

decision not to designate critical habitat for the Florida Panther is committed to the agency's discretion, there are no applicable statutory standards to apply, and therefore the decision is

unreviewable under the APA.

The Court agrees.

"As a general rule, actions taken by federal administrative agencies are subject to judicial review." Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003). The APA

authorizes a court to "set aside agency actions, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.

§ 706(2). "The APA, by its terms, provides a right to judicial review of all final agency action for which there is no other adequate remedy in a court, [ ] and applies universally except to the extent that - (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law § 701(a)." Bennett, 520 U.S. at 175 (internal citations omitted); see also Heckler v. Chaney, 470 U.S. 821, 828 (1985). The exception for

action "committed to agency discretion" is a very narrow one. Heckler, 470 U.S. at 830. "The legislative history of the

Administrative Procedure Act indicates that it is applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply. . . ." Id. (quoting

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)(internal quotation omitted)). "Provisions for agency review

-25-

do

not

restrict

judicial

review

unless

the

statutory

scheme

displays a fairly discernible intent to limit jurisdiction, and the claims at issue are of the type Congress intended to be reviewed within the statutory structure. [ ] Generally, when Congress creates procedures designed to permit agency expertise to be brought to bear on particular problems, those procedures are to be exclusive." Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3150 (2010)(internal quotations and citations omitted). As discussed above, the Secretary is not required to designate critical habitat for the Florida panther. The only action that is

judicially reviewable is whether the petition was given prompt consideration and plaintiffs were promptly notified of the action taken. This is a severely limited review, but a review

nonetheless.

Therefore, the Court finds that plaintiffs can state

a claim for relief under the APA. However, just because plaintiffs' can state a claim for relief under the APA regarding their petition does not mean that they did state a claim in the instant case. In deciding a Rule 12(b)(6)

motion to dismiss, the Court must accept all well-pleaded factual allegations in a complaint as true and take them in the light most favorable to plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 "To

(2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002). survive dismissal, the complaint's allegations must

plausibly

-26-

suggest that the [plaintiff] has a right to relief, raising that possibility above a speculative level; if they do not, the

plaintiff's complaint should be dismissed." v. Ground Down Eng'g, Inc., 540 F.3d

James River Ins. Co. 1274 (11th Cir.

1270,

2008)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); see also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). As stated above, the only claim plaintiffs could have against the Service is a claim that the Service did not give prompt consideration to their petition and notify them promptly of the action taken in violation of 43 C.F.R. § 14.3. According to the

allegations in the Complaint, plaintiffs filed their petitions in January, July and September of 2009, with a supplemental petition filed in November 2009. (Doc. #42, ¶¶ 55-57.) Then, on February

11, 2010, the Service denied the petitions in letters stating the reasons for the denial. (Id. at ¶59.) The Court finds that the

Service substantially complied with 43 C.F.R. § 14.3 and gave prompt consideration to their petition and promptly notified them of its action. Thus, plaintiffs have failed to state a claim for

relief pursuant to the APA. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #85) is hereby is

ADOPTED IN PART AND REJECTED IN PART as set forth above.

-27-

2. Eastern Collier Property Owners' Motion to Dismiss (Doc. #45) is GRANTED. 3. GRANTED. 4. Intervenor Seminole Tribe of Florida's Motion to Dismiss Federal Defendants' Motion to Dismiss (Doc. #46) is

Amended Complaint (Doc. #59) is GRANTED. 5. The Amended Complaint is dismissed without prejudice for The

failing to state claims upon which relief may be granted.

Clerk shall enter judgment accordingly, terminate all deadlines, and close the file. DONE AND ORDERED at Fort Myers, Florida, this April, 2011. 6th day of

Copies: Hon. Sheri Polster Chappell United States Magistrate Judge Counsel of Record

-28-