No IN THE United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT. NATIONAL ASSOCIATION OF HOME BUILDERS, et al

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No. 14-5121

IN THE

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

NATIONAL ASSOCIATION OF HOME BUILDERS, et al., Plaintiffs-Appellants, v. United States Fish and Wildlife Service , et al., Defendants-Appellees. ________________________________________________________________ Appeal from the U.S. District Court for the District of Columbia Case No. 12-CV-02013-EGS (Hon. Emmet Sullivan) ________________________________________________________________ PETITION FOR REHEARING EN BANC ________________________________________________________________ HOLLAND & KNIGHT LLP /s/ Rafe Petersen Rafe Petersen (Bar # 465542) 800 17th Street, N.W., Suite 1100 Washington, D.C. 20006 Telephone: (202) 955 3000 Facsimile: (202) 955 5564 E-mail: [email protected] Attorneys for Appellants

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TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................. i TABLE OF AUTHORITIES ....................................................................................................... ii GLOSSARY OF ABBREVIATIONS ........................................................................................ iv INTRODUCTION AND RULE 35(B) STATEMENT ...............................................................1 BACKGROUND ............................................................................................................................2 A.

Statutory Background: The Endangered Species Act ...............................................2

B.

The Settlement Agreements ..........................................................................................4

C.

Appellants' Injuries .......................................................................................................5

SPECIFIC GROUNDS FOR REHEARING ...............................................................................6 A.

The Panel Ignored Appellants' Procedural Standing.................................................6

B.

The Opinion is Inconsistent with Other Circuits ......................................................11

CONCLUSION ............................................................................................................................14 CERTIFICATE OF SERVICE ..................................................................................................15

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TABLE OF AUTHORITIES

CASES

Page(s)

**Am. Farm Bureau Fed'n v. U.S. E.P.A., No. 13-4079, 2015 WL 4069224 (3d Cir. July 6, 2015)..........................................................15 **Bennett v. Spear, 520 U.S. 154 (1997) .................................................................................................................11 **Catron Cnty. Bd. of Comm'rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996) .................................................................................................12 **Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d 961 (9th Cir. 2003) .............................................................................................11, 12 Contender Farms, L.L.P. v. U.S. Dep't of Agric., 779 F.3d 258 (5th Cir. 2015) ...................................................................................................13 Ctr. for Bio. Diversity v. U.S. Dept. of Interior, 563 F.3d 466 (D.C. Cir. 2009) ...................................................................................................8 Defenders of Wildlife v. Jewell, No. CV 13-0919 (RC), 2014 WL 4829089 (D.D.C. Sept. 30, 2014) ................................10, 11 Defenders of Wildlife v. Perciasepe, 714 F.3d 1317 (D.C. Cir. 2013) ...............................................................................................11 In re Endangered Species Act Section 4 Deadline Litigation, 704 F.3d 972 (D.C. Cir. 2013) .............................................................................................1, 11 **Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992) .................................................................................................12 Idaho Power Co. v. Fed. Energy Regulatory Comm., 312 F.3d 454 (D.C. Cir. 2002) .................................................................................................13 **Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...................................................................................................6, 8, 10, 13 Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) .................................................................................................8

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**NAHB v. U.S. Army Corps of Eng'rs, 663 F.3d 470 (D.C. Cir. 2011) ...................................................................................................9 Sierra Club v. EPA, 699 F.3d 530 (D.C. Cir. 2012) ...................................................................................................8 **Sierra Club v. Marita, 46 F.3d 606 (7th Cir. 1995) .....................................................................................................12 STATUTES 16 U.S.C. § 1532(6) .........................................................................................................................3 16 U.S.C. § 1533(b)(3)(B) ...............................................................................................................3 16 U.S.C. § 1533(b)(3)(B)(iii) .........................................................................................................3 16 U.S.C. § 1533(b)(3)(C)(i) ...........................................................................................................3 16 U.S.C. § 1533(b)(3)(C)(iii) .........................................................................................................3 16 U.S.C. § 1533(h)(3) ..............................................................................................................3, 10 RULES & REGULATIONS 48 Fed. Reg. 43098 (September 21, 1983) ....................................................................................10 76 Fed. Reg. 66370-66439 (October 26, 2011) .........................................................................9, 10 77 Fed. Reg. 15352-01 (March 15, 2012) ........................................................................................4 Fed. R. App. P. 35(b)(1)(A) .............................................................................................................2 Fed. R. App. P. 35(b)(1)(B) .......................................................................................................2, 13

*Authorities chiefly relied upon.

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GLOSSARY OF ABBREVIATIONS Administrative Procedure Act

APA

Appendix

App.

Candidate Notice of Review

Notice of Review

Defendants-Appellees

Appellees

Endangered Species Act

the Act

May 26, 2015 Opinion

the Opinion

Plaintiffs-Appellants

Appellants

United States Fish and Wildlife Service

the Service

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INTRODUCTION AND RULE 35(b) STATEMENT Appellants National Association of Home Builders, Olympia Master Builders, Home Builders Association of Greater Austin, and Texas Salamander Coalition, Inc. petition for rehearing en banc of the Opinion issued in this case on May 26, 2015. (copy reproduced in Addendum 1)(the "Opinion"). The Opinion is inconsistent with Supreme Court and circuit decisions governing Article III standing when a procedural injury is alleged. See, e.g., In re Endangered Species Act Section 4 Deadline Litigation, 704 F.3d 972, 976 (D.C. Cir. 2013) (explaining the "special treatment" afforded procedural injuries under Article III, following Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)). Appellants alleged that the United States Fish and Wildlife Service (the "Service") violated the Administrative Procedure Act, 5 U.S.C. §§ 701- 706 ("APA"), and the Endangered Species Act, 16 U.S.C. §§ 1531-1544 ("the Act") by entering into two settlement agreements with environmental advocacy groups. Specifically, Appellants alleged that the agreements essentially amend two regulations without notice and comment and abdicate a statutorily required process. Appellants properly pled several types of injury directly resulting from the settlement agreements and their pleadings were bolstered by declarations in the record. The Opinion ignored or discounted such injuries, concluding that Appellants

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failed to allege cognizable harm. This is a serious error that warrants review for consistency with Supreme Court precedent. See Fed. R. App. P. 35(b)(1)(A). Further, the narrow interpretation of Article III standing adopted by this Court is inconsistent with other circuits, which have held that Article III's injury-in-fact requirement is satisfied where there is a reasonable probability that a procedural violation will impact a party's concrete interests. This inconsistency presents a question of "exceptional importance" warranting en banc consideration. See Fed. R. App. P. 35(b)(1)(B). BACKGROUND Appellants have challenged two settlement agreements that fundamentally alter the process by which the Service considers a species proposed for listing as "endangered" or "threatened" under the Act. By entering into the agreements, the Service has altered the manner and order in which the Service considers the regulatory status of 251 species and has effectively amended the listing regulations. A.

Statutory Background: The Endangered Species Act

Under the Act, a species will be added to the list of "endangered" species if it is "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). The Act provides that within 12 months of receiving a petition to have a species listed, the Service must complete its review and must make a finding that listing the species as endangered is either: (1) not warranted; (2) warranted (in

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which case the Service must publish a proposed rule to list the species in the Federal Register); or (3) warranted, but precluded by higher listing priorities. 16 U.S.C. § 1533(b)(3)(B). If the Service decides a listing is warranted but precluded, the Act requires the Federal Register notice to include "a description and evaluation of the reasons and data on which the finding is based." 16 U.S.C. § 1533(b)(3)(B)(iii). Such species are commonly known as a "candidate" species. When the Service makes a warranted but precluded finding on a petition, the Act requires that the petition be treated as one that is resubmitted each year on the date of such a finding. 16 U.S.C. § 1533(b)(3)(C)(i). The Service is required to have in place a system to monitor effectively the status of all candidate species. 16 U.S.C. § 1533(b)(3)(C)(iii). The Service is also required to formerly enact guidelines that set forth "a ranking system to assist in the identification of species that should receive priority review" for listing. 16 U.S.C. § 1533(h)(3). On this basis, the Service assigns each candidate species a "listing priority number" (which ranges from 1 to 12 depending on the magnitude of the threat, the immediacy of the threat and taxonomic status of the species) that essentially determines when a candidate species will be considered for listing. Whether a species is listed as an "endangered" species or is characterized as a "candidate" to be proposed as endangered has a direct impact on the use of private property on which such species feeds, breeds or shelters. Consequently, the Service

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incentivizes private landowners, such as Appellants, to protect species by reducing threats to their habitat in order to delay listing or make listing unnecessary. The Service has made clear that "everyone benefits" from such actions -- species benefit from early action to address threats to their survival, landowners avoid the imposition of potentially costly restrictions on their activities, and the Service avoids the need to dedicate scarce government resources to regulate additional species.1 At the same time, the Service coerces private property owners and state and local land use authorities to undertake species conservation measures (such as setting aside land) due to the presence of candidate species on property in anticipation of listing it as endangered. It is undisputed that Appellants' members have set aside land and engaged in other species conservation activities both at the request and demand of the Service. B.

The Settlement Agreements

In 2011, the United States District Court for the District of Columbia approved two separate stipulated settlement agreements that mandate the order in which the Service must submit proposed listing rules or not warranted findings to the Federal Register. Under the Agreements, the Service has eradicated the "warranted but precluded" provision of the Endangered Species Act with respect to any candidate

1

See Fish and Wildlife Service, Endangered and Threatened Wildlife and Plants; Expanding Incentives for Voluntary Conservation Acts Under the Endangered Species Act, 77 Fed. Reg. 15352-01, 15353 (March 15, 2012). 4 (Page 9 of Total)

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species that it has agreed to consider for a rulemaking that year regardless of the species status or priority. Therefore, the Complaint alleges that Service effectively amended the listing process in violation of the APA notice and comment requirements and the Act's mandatory procedures. C.

Appellants' Injuries

As a result of the Settlement Agreements, certain species are characterized as candidate and endangered species under a different, more expedited process, than provided for in the Act and listing guidelines (which were subject to notice and comment). It is undisputed that the agreements change the procedures governing the listing process. By entering into the agreements, the Service ended over 35 years of public process and significantly impacted Appellants' property rights. Appellants properly alleged concrete injuries to their members' property interests, which are caused by the agreements. They then bolstered those allegations with declarations about the specific harm incurred. Yet, the Opinion erred by holding that Appellants lack Article III standing under the theory that the Act has an effect on private property only after the Service lists a species as "endangered." (Op. at 6). In turn, the Opinion held that none of Appellants' conservation efforts "were dictated by the Service," concluding that any harm was self-inflicted. (Op. at 7). Finally, the Opinion rejected Appellants' evidence of coercion by the Service, concluding that "Appellants' declarations simply indicate that local officials

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forwarded the declarant's proposal to the Service for comment. (Id.) (discussing Kaufman Declaration). These conclusions are inconsistent with the facts alleged and ignore settled precedent on injury. SPECIFIC GROUNDS FOR REHEARING This Petition should be granted because: (1) the Opinion conflicts with well settled Supreme Court precedent on procedural standing; and (2) the Opinion's narrow interpretation of standing is inconsistent with other circuits. A.

The Panel Ignored Appellants' Procedural Standing

It is well-settled that, in cases alleging harms relating to a procedural violation by an agency, the "injury in fact" element of Article III standing is established if the plaintiff can identify a concrete interest that is or will be adversely affected by the denial of a procedural right. See, e.g., Lujan, 504 U.S. at 572 n. 7 ("[T]here is much truth to the assertion that 'procedural rights' are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy."). Appellants' Complaint demonstrated their specific role in the listing process and alleged that the Service's failure to follow the statutorily required procedure for consideration of candidate species violates both the Endangered Species Act and the Administrative Procedure Act. (Compl. Counts I-IV). The Complaint set forth how Appellants' property interests and investments in conservation efforts were harmed

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by the Service's action. Appellants further set forth, in sworn declarations, some of the specific injuries incurred by their members, as a result of the Settlement Agreements. For example, John Kaufman's declaration explains that once the Service agreed to consider a listing action for the Mazama Pocket Gopher -- but before a final determination was made about the species -- his company's development projects were subjected to increased regulation by the Service and state and local land use agencies. (See App. 95-98.) As a result of this increased regulation, Mr. Kaufman incurred substantial costs. (Id. at 96.) The Opinion held that Appellants have no procedural right (1) to comment at the warranted-but-precluded stage, and (2) against withdrawals of the warrantedbut-precluded status or the acceleration of listing determinations. (Op. at 4). On that basis, the Opinion said that this is not a "procedural injury" case. (Op. at 5). This decision is inconsistent with the facts, Supreme Court precedent and with the decisions of this and other circuits. In Lujan, the Supreme Court made clear, where a procedural injury is alleged, a plaintiff is not required to demonstrate that its concrete interests will be harmed immediately or with certainty. More specifically, the Court said: "one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental

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impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years." Lujan v. Defenders of Wildlife, 504 U.S. 555, 573(1992). Consistent with the Supreme Court's directive in Lujan, this Circuit has repeatedly recognized that that the denial of an opportunity to comment or to advocate for a position (when the contrary position would carry adverse consequences to concrete interests) qualifies as an injury in fact for Article III purposes. See, e.g., Mendoza v. Perez, 754 F.3d 1002, 1012-13 (D.C. Cir. 2014)(plaintiff had standing to challenge regulations issued in violation of APA's notice and comment requirements); Sierra Club v. EPA, 699 F.3d 530, 533 (D.C. Cir. 2012) (petitioner had standing to assert violations of the notice-and-comment requirements); Ctr. for Bio. Diversity v. U.S. Dept. of Interior, 563 F.3d 466, 479 (D.C. Cir. 2009) (petitioner had standing to challenge agency's failure to comply with NEPA procedures). See also NAHB v. U.S. Army Corps of Eng'rs, 663 F.3d 470, 475 (D.C. Cir. 2011) (noting that if NAHB had claimed defects in the Corps' nationwide permit-development process, "it would likely have standing") (citing Lujan, 504 U.S. at 572 n.7). Yet, here, the panel overlooked the procedural harm that Appellants have suffered. The Settlement Agreements have the effect of denying Appellants the right

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to advocate for candidate species status and to meaningfully participate in the listing process as they had since 1975. While the Opinion held that the listing process is "not an escape hatch for beleaguered landowners," (Op. at 5), this is the very role that the Act contemplates landowners play, as recognized and embraced by the Service. 76 Fed. Reg. 66370-66439 (October 26, 2011).2 And, nowhere does the Opinion address the fact that the listing priority guidelines, 16 U.S.C. § 1533(h)(3), were subject to notice and comment when first implemented, see 48 Fed. Reg. 43098 (September 21, 1983), and therefore the Service may only modify them using that same procedure. The agreements amend this process and effectively preclude any role for Appellants' members. As a result, Appellants face increased regulation of their

2

The Candidate Notice of Review, published annually, provides “an updated list of plant and animal species native to the United States that we regard as candidates for or have proposed for addition to the Lists of Endangered and Threatened Wildlife and Plants under the Endangered Species Act of 1973, as amended. Identification of candidate species can assist environmental planning efforts by providing advance notice of potential listings, allowing landowners and resource managers to alleviate threats and thereby possibly remove the need to list species as endangered or threatened. Even if we subsequently list a candidate species, the early notice provided here could result in more options for species management and recovery by prompting candidate conservation measures to alleviate threats to the species.” 76 Fed. Reg. at 69370. Indeed, the Service explains that it seeks (1) to "stimulate and guide conservation efforts that will remove or reduce threats to these species and possibly make listing unnecessary," (2) "input from interested parties to help us identify those candidate species that may not require protection under the Act," and (3) "necessary information for setting priorities for preparing listing proposals." Id. at 69370-71. 9 (Page 14 of Total)

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property and loss of their investment in conservation efforts. This is precisely the kind of harm contemplated by the Supreme Court in Lujan. Considering the record before the Court, the panel erred in finding that Appellants lack standing, creating a conflict with the Circuit's standing jurisprudence. Further, the panel erred when it found that the that the Service did not dictate the conservation efforts. (Op. at 6). As explained by the district court in Defenders of Wildlife v. Jewell, the Service has well-developed policies designed "to encourage states and private actors to undertake voluntary efforts to conserve candidate species—those being considered for ESA listing….[I]n return for implementing agreed-upon conservation measures, state and private entities receive 'assurances from the Services that additional conservation measures will not be required ... should the species become listed in the future.'" Defenders of Wildlife v. Jewell, No. CV 13-0919 (RC), 2014 WL 4829089, at *1 (D.D.C. Sept. 30, 2014). Courts have long recognized "injury produced by determinative or coercive effect upon the action of someone else" is sufficient for standing. See Bennett v. Spear, 520 U.S. 154 (1997)

(upholding challenge to agency action that had

"coercive effect" and rendered the consequences of the agency action significantly more likely). As set forth in the Kaufman Declaration, there is a demonstrable change in the actions of both the Service and the local land use authorities when a

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species is moved from a candidate species to proposed for listing. (See App. 95-98) (explaining the changes to development plan and costs associated with Service's involvement in the decision-making process in anticipation of listing decision). B.

The Opinion is Inconsistent with Other Circuits

To the extent that the Opinion is consistent with the Circuit's prior decisions in In re Endangered Species Act Section 4 Deadline Litig.-MDL No. 2165, 704 F.3d 972, 974 (D.C. Cir. 2013) and Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1323 (D.C. Cir. 2013), this Circuit's standing decisions have significantly diverged from the standard adopted by other circuits. Specifically, the Third, Seventh, Ninth, and Tenth Circuits have all imposed much less stringent standing requirements in procedural rights cases. See Am. Farm Bureau Fed'n v. U.S. E.P.A., No. 13-4079, 2015 WL 4069224, at *7 (3d Cir. July 6, 2015) ("regulated entities that assert likely economic injury have standing even before the challenged regulatory action fully takes effect"); Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d 961, 972 (9th Cir. 2003) (organization suffered injury in fact where it established reasonable probability that new national forest management policies would threaten their concrete interest in enjoying national forests around the country); Catron Cnty. Bd. of Comm'rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1433 (10th Cir. 1996) ("That the Secretary may ultimately make the same decision and designate critical habitat within the same geographical parameters is immaterial; the County's alleged injury

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results from Secretarial failure substantively to consider the environmental ramifications of its actions."); Sierra Club v. Marita, 46 F.3d 606, 611 (7th Cir. 1995) (conferring standing to challenge forest plans as they "clearly require certain projects to be undertaken"); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1518 (9th Cir. 1992) (conferring standing to challenge a "failure to make wilderness recommendations," despite the fact that an injury-producing event "might never take place or that redrafting an environmental impact statement might not in any way change

the

Secretary's

recommendations," because

"[t]he nonwilderness

recommendation is. . . . the primary factor making possible subsequent development"). Under these cases, courts may address a procedural injury before the threatened injury occurs. See, e.g. Marita, 46 F.3d at 611 ("Unless a plaintiff's purported interest in the matter is wholly speculative, waiting any longer to address that injury makes little sense."); Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d 961, 975 (9th Cir. 2003)("The relevant inquiry for the immediacy requirement in the procedural context is whether there is a 'reasonable probability' that the challenged procedural violation will harm the plaintiffs' concrete interests, not how many steps must occur before such harm occurs.") (internal citations omitted). See also Idaho Power Co. v. Fed. Energy Regulatory Comm., 312 F.3d 454, 460 (D.C. Cir. 2002) (upholding Idaho Power's standing to challenge a FERC

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regulation that could have resulted in lost revenue, and noting that "an agency ruling that replaced a certain outcome with one that contains uncertainty causes an injury that is felt immediately and confers standing"); Contender Farms, L.L.P. v. U.S. Dep't of Agric., 779 F.3d 258, 266 (5th Cir. 2015) (upholding plaintiffs' standing to challenge regulation affecting a third-party, which would result in increased regulatory burden on plaintiff). Indeed, the Supreme Court has repeatedly noted that if "the plaintiff is himself an object of the [challenged] action.... there is ordinarily little question that the action or inaction has caused him injury...." See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Yet, under the panel's reasoning, the regulated community has no standing to challenge agency actions directly affecting their property. This is inconsistent with the law in other circuits and presents a question of "exceptional importance" warranting en banc consideration. See Fed. R. App. P. 35(b)(1)(B).

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CONCLUSION For the foregoing reasons, the Court should grant the petition and reverse the panel's decision. Dated: July 10, 2015 HOLLAND & KNIGHT LLP /s/ Rafe Petersen Rafe Petersen (Bar # 465542) 800 17th Street, N.W., Suite 1100 Washington, D.C. 20006 Telephone: (202) 955 3000 Facsimile: (202) 955 5564 E-mail: [email protected] Attorneys for Appellants

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CERTIFICATE OF SERVICE I hereby certify that on this 10th day of July 2015, a true and correct copy of the foregoing was served via ECF upon the following:

Nicholas Andrew DiMascio U.S. Department of Justice (DOJ) Civil Division, Appellate Staff 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Counsel for United States Fish and Wildlife Service and Sally Jewel, in her official capacity as Secretary, U.S. Department of the Interior

Respectfully submitted, HOLLAND & KNIGHT LLP /s/ Rafe Petersen Rafe Petersen (Bar # 465542) 800 17th Street NW, Ste 1100 Washington, D.C. 20006 (202) 955-3000 Phone (202) 955-5564 Fax [email protected] Counsel for Appellants

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ADDENDUM 1

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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2015

Decided May 26, 2015 No. 14-5121

NATIONAL ASSOCIATION OF HOME BUILDERS, ET AL., APPELLANTS v. UNITED STATES FISH AND WILDLIFE SERVICE AND SALLY JEWELL, IN HER OFICIAL CAPACITY AS SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, APPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:12-cv-02013)

Rafe Petersen argued the cause and filed the briefs for appellant. Nicholas A. DiMascio, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were John C. Cruden, Assistant Attorney General, and Joan M. Pepin, Attorney. Before: BROWN, SRINIVASAN and PILLARD, Circuit Judges.

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2 BROWN, Circuit Judge: Four associations challenge consent decrees that require the U.S. Fish and Wildlife Service to determine, in accordance with a settlement-defined schedule for action, whether 251 species should be listed as endangered or threatened. Because the associations lack standing to raise their challenge, we affirm the district court’s dismissal. I Under the Endangered Species Act (“ESA” or “Act”), the public may petition the U.S. Fish and Wildlife Service (“Service”) to list a particular species as endangered or threatened. The Service is required to determine, within twelve months, if listing is (1) not warranted, (2) warranted, or (3) warranted-but-precluded. 16 U.S.C. § 1533(b)(3)(B). A warranted-but-precluded determination allows the Service to defer action on a candidate species in order to focus agency resources on higher priority determinations. The Service must monitor precluded candidate species and annually revisit the determination. On revisiting, the Service may continue to identify the species as precluded. See id. § 1533(b)(3)(C). “[T]he number of warranted-but-precluded findings has outpaced the number of listings, [and] the backlog of [precluded] candidate species had grown to 251 as of 2010.” Nat’l Ass’n of Home Builders v. U.S. Fish & Wildlife Serv., 34 F. Supp. 3d 50, 54 (D.D.C. 2014). Two environmental groups brought suits seeking “to compel the . . . [agency] to comply with deadlines set forth in the Endangered Species Act.” In re Endangered Species Act Section 4 Deadline Litig.-MDL No. 2165, 704 F.3d 972, 974 (D.C. Cir. 2013). Under the terms of subsequent settlements, the Service must meet strict deadlines for submitting either a warranted or not-warranted finding for

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3 all 251 candidate species. The Service maintains discretion regarding the substance of each listing determination. Appellants, four membership associations involved in building and developing land, filed suit under the APA and the ESA’s citizen-suit provision, 16 U.S.C. § 1540(g), seeking to set aside the consent decrees implementing the Service’s settlements. The district court granted the Service’s motion to dismiss for lack of standing. Our review is de novo. LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011). II As we have noted, the practical effect of the Service’s heavy reliance on warranted-but-precluded determinations was an “average delay in candidate species listings” of more than ten years. Section 4 Deadline Litig., 704 F.3d at 975. Appellants’ members were apparently able to exploit this leisurely pace to seek cooperative solutions to the problem of habitat destruction and thus ameliorate the impact of the ESA on their commercial activities. But from the environmentalists’ perspective, going slow was a perversion of the Act. Soon after the ESA became law, the Supreme Court recognized that “Congress intended endangered species to be afforded the highest of priorities,” and “[t]he plain intent of Congress in enacting th[e] statute was to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 174, 184 (1978). And the 1982 amendments, which added the warranted-but-precluded procedures, were designed to force the Service to pick up the pace. The consent decrees acknowledge this core purpose. Appellants assert procedural injuries based on loss of opportunity to comment at the warranted-but-precluded stage, withdrawal of the warranted-but-precluded classification, and

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4 acceleration of final listing determinations. See generally Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005) (relaxing certain standing requirements in cases of procedural injury). These theories of procedural harm are foreclosed by binding precedent from our Circuit. We have previously held there is no procedural right to comment at the warranted-but-precluded stage. Section 4 Deadline Litig., 704 F.3d at 979. There may be benefit in information obtained through comments submitted after species are classified as precluded, but “neither the ESA nor the implementing regulations require the Service to invite comment when [] it makes a warranted-but-precluded finding.” Id. Appellants likewise have no procedural right against withdrawal of the warranted-but-precluded status or the acceleration of listing determinations. Appellants identify no plausible statutory basis for such rights and fail to show that the procedures are “designed to protect some threatened concrete interest of [theirs] that is the ultimate basis of [their] claim of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n.8 (1992); Section 4 Deadline Litig., 704 F.3d at 978–79 (the only purpose of the warranted-but-precluded provisions is to allow the Service to delay a rulemaking to focus resources on other species facing greater threats). 1 In

1

Appellants argue the procedures need not be designed to protect their members’ interests because suit was brought under the ESA’s citizen-suit provision, as well as the APA, thus negating the APA’s zone-of-interest test. Any negation of the APA’s zone-of-interest test is beside the point. Appellants must still satisfy the “irreducible constitutional minimum of [Article III] standing,” Lujan, 504 U.S. at 560, and “[t]he grant of a procedural right cannot serve as the basis for Article III standing unless the procedures in question are designed to protect some threatened concrete interest of [the plaintiff] that is the ultimate basis of his standing.” Fund

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5 practice, prolonged delay of final listing decisions may have benefited Appellants’ members’ interests, but the procedures at issue are not designed to protect such interests. The warranted-but-precluded “procedures . . . [are instead intended] to expedite the listing process consistent with the Service’s available resources.” Id. at 979. 2 Unfortunately for Appellants, the warranted-but-precluded determination is a safety valve for the Service, not an escape hatch for beleaguered landowners. III This is therefore “not a ‘procedural injury’ case.” Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1323 (D.C. Cir. 2013). Appellants must show actual or imminent, concrete and particularized injury-in-fact; causation, such that the injury is fairly traceable to the challenged conduct; and redressability. See generally Lujan, 504 U.S. at 572–73. Appellants assert harm to the property interests of members who own land where subject species or their

Democracy, LLC v. SEC, 278 F.3d 21, 28 (D.C. Cir. 2002) (internal quotation marks omitted). 2 Appellants also suggest the Service failed to use the best available science by determining listing priority pursuant to the settlements’ schedule. Because the warranted-but-precluded status is not designed to protect Appellants’ members’ interests, any such failure is not the basis of a valid procedural injury. To the extent Appellants’ theory is that later “warranted” determinations were not based on the best available science, this argument is misplaced in a challenge against the consent decrees that includes no challenge to the merits of any listing determination. Cf. infra Part III.

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6 habitats are present. 3 Notably, “[t]he ESA’s protections apply only after a species is formally listed,” Section 4 Deadline Litig., 704 F.3d at 974, but Appellants do not challenge the warranted determination as to any candidate species. They instead challenge the consent decrees implementing the Service’s settlements. “[T]he consent decree[s] do[] not require [the Service] to promulgate a . . . [listing] rule.” Perciasepe, 714 F.3d at 1324 (emphasis omitted). As in Perciasepe, the settlements simply require the agency to render a final listing decision—warranted or not-warranted— using a specific timeline, without dictating the agency’s substantive judgment. Accordingly, Appellants have failed to allege cognizable harm, see id. at 1324–25; Appellants’ “members face only the possibility of regulation, as they did before.” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 13 (D.C. Cir. 2011). “Article III standing requires more than the possibility of potentially adverse regulation. . . . That the consent decree[s] prescribe[] a date by which regulation could occur does not establish . . . standing.” Perciasepe, 714 F.3d 1324–25. Appellants also contend their members have been harmed because they have expended resources on conservation efforts to reduce risk to candidate species, and the purpose of such expenditures is obviated 4 with the withdrawal of the 3

Appellants specifically claim their members’ properties are occupied by, or are habitats suitable for, nine subspecies of Mazama pocket gopher and four Central Texas salamander species. 4 Although Appellants have understandable concerns about the potentially serious economic ramifications for landowners of a listing under the Act, the ESA has offered limited traction to support weighing such economic factors in some cases. See, e.g., Thomas Sarver, Note, Salmon, Suckers and Sorrow: Rural Cleansing Under the Shadow of the Endangered Species Act, 8 DRAKE J. AGRIC. L. 455, 461–65 (2003); Editorial, Can Congress

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7 warranted-but-precluded status. Yet, none of the expenditures specifically identified in the complaint and declarations were dictated by the Service. Appellants’ members expended resources to satisfy various state and local requirements, see Worf Aff. ¶¶ 6–9, or as a voluntary effort to reduce harm in the hopes of persuading the Service that listing was unwarranted. As to state requirements, “independent action of some third party not before the court” is not fairly traceable to challenged actions by the Service. Lujan, 504 U.S. at 560. 5 And, as to volitional expenditures, Appellants’ members cannot show injury by “inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1151 (2013).

help the Klamath Basin restore itself? It must, OREGONIAN, Nov. 22, 2014 (describing how a 2001 shutoff of the water supply to irrigators in the Klamath Basin caused over $40 million in losses to farmers and ranchers); John Kass, California Gives Up Its Swatters’ Rights, CHI. TRIBUNE, Sept. 2, 1999 (noting the discovery of perhaps a dozen endangered flies stopped a $500 million building project and cost a hospital about $4 million in added construction costs). See also San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 593 (9th Cir. 2014) (“We recognize the enormous practical implications of this decision[,] . . . [b]ut the . . . law prohibits us from . . . balanc[ing] the [delta] smelt’s interests against the interests of the citizens of California.”). 5 Appellants argue the Service coerced state and local officials, but Appellants’ declarations simply indicate that local officials “forward[ed] the proposal to the local [Service] office for comment, notwithstanding the fact that the proposal had already received [state agency] approval.” Kaufman Aff. ¶ 19. As the district court concluded, this is insufficient to create an inference of coercion.

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8 IV For the foregoing reasons, the district court’s dismissal is Affirmed.

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ADDENDUM 2

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

National Association of Homebuilders, et al., Plaintiffs, v. Jewell, et al., Defendants,

Center for Biological Diversity, Intervenor-Defendant Applicant. ______________________________________

) ) ) Civil Case No: 12-02013 (EGS) ) ) ) ) ) ) ) ) ) ) ) ) )

CORPORATE DISCLOSURE CERTIFICATE Certificate required by LCvR 7.1 of the Local Rules of the United States District Court for the District of Columbia: I, the undersigned, counsel of record for Intervenor-Defendant Applicant Center for Biological Diversity (the “Center”), certify that to the best of my knowledge and belief, the Center has no parent companies, subsidiaries or affiliates that have any outstanding securities in the hands of the public. These representations are made in order that judges of this court may determine the need for recusal.

DATED: June 12, 2013.

Respectfully submitted,

/s/ Amy R. Atwood Amy R. Atwood CENTER FOR BIOLOGICAL DIVERSITY

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P.O. Box 11374 Portland, OR 97211-0374 Tel: (971) 717-6401 Fax: (503) 283-5528 Email: [email protected] John Buse (pro hac vice application pending) CENTER FOR BIOLOGICAL DIVERSITY 351 California Street, Suite 600 Tel: (323) 533-4416 Email: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on June 12, 2013, I electronically filed the foregoing CORPORATE DISCLOSURE CERTIFICATE with the Clerk of the Court using the CM/ECF system which will send notification of this filing to all attorneys of record.

/s/ Amy R. Atwood Amy R. Atwood

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ADDENDUM 3

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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

NATIONAL ASSOCIATION OF HOME BUILDERS, et al., Appellants v. UNITED STATES FISH AND WILDLIFE SERVICE and SALLY JEWELL, in her official capacity as Secretary, U.S. Department of the Interior

Appellees.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 14-5121

APPELLANTS' CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to the Court's May 22, 2014 Order, D.C. Cir. Rule 12, and D.C. Cir. Rule 28(a)(1), Appellants National Association of Home Builders, Olympia Master Builders, Home Builders Association Of Greater Austin, and Texas Salamander Coalition, Inc. submit the following Certificate as to the Parties, Rulings, and Related Cases: 1.

Parties

Appellants are the National Association of Home Builders, Olympia Master Builders, Home Builders Association Of Greater Austin, and Texas Salamander Coalition, Inc.

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Appellees are the United States Fish and Wildlife Service and Sally Jewell, in her official capacity as Secretary of the U.S. Department of the Interior. 2.

Ruling Under Review

The ruling under review is Judge Emmet G. Sullivan's March 31, 2014 Memorandum Opinion and Order granting Appellees'/Plaintiffs' Motion to Dismiss (Dkt. 25 and 26). Copies of the Opinion and Order are attached as Exhibits A and B. 3.

Related Cases

Wildearth Guardians v. Salazar, Case No. 1:10-MC-00377-EGS (D.D.C.) is related to the case on appeal: It grows out of the same event or transaction.

Respectfully submitted, HOLLAND & KNIGHT LLP By: /s/ Rafe Petersen Rafe Petersen (Bar # 465542) 800 17th Street, N.W., Suite 1100 Washington, D.C. 20006 Telephone: (202) 955 3000 Facsimile: (202) 955 5564 E-mail: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on June 23, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of this filing to the attorneys of record.

By:

/s/ Rafe Petersen Rafe Petersen

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Exhibit A

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________ ) NATIONAL ASSOCIATION OF HOME ) BUILDERS, et al. ) ) Plaintiffs, ) ) Civ. Action No. 12-2013 (EGS) v. ) ) U.S. FISH AND WILDLIFE SERVICE, ) et al., ) ) Defendants. ) ________________________________) ORDER For the reasons set forth in the accompanying Memorandum Opinion issued this day, it is hereby ORDERED that [10] Defendants’ motion to dismiss is GRANTED; and it is FURTHER ORDERED that [17] Center for Biological Diversity’s motion to intervene is DENIED as moot; and it is FURTHER ORDERED that this case is DISMISSED WITH PREJUDICE. SO ORDERED.

SIGNED:

Emmet G. Sullivan United States District Court Judge March 31, 2014

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Exhibit B

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________ ) NATIONAL ASSOCIATION OF HOME ) BUILDERS, et al. ) ) Plaintiffs, ) ) Civ. Action No. 12-2013 (EGS) v. ) ) U.S. FISH AND WILDLIFE SERVICE, ) et al., ) ) Defendants. ) ________________________________) MEMORANDUM OPINION I.

INTRODUCTION Plaintiffs are four organizations1 representing member

landowners and businesses in Central Texas and Washington state. They seek injunctive and declaratory relief to set aside and void two Court-approved agreements (“Agreements”) that were made between environmental advocacy groups and the Fish and Wildlife Service (“Service”) in 2011 to settle multi-district litigation (“MDL”).

See In re ESA Section 4 Deadline Litig. – MDL No. 2165,

Misc. Action No. 10-377 (D.D.C. 2010), WildEarth Guardians Settlement Agreement (“Guardians Agreement”), ECF No. 31-1; and Center for Biological Diversity Settlement Agreement (“CBD Agreement”), ECF No. 42-1.

The Agreements require the Service

1

Plaintiffs are: the National Association of Home Builders, Olympia Master Builders, Home Builders Association of Greater Austin, and the Texas Salamander Coalition, Inc. Compl. ¶ 1. - 1 (Page (Page41 7 of Total)

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to determine by certain deadlines whether to list 251 species as endangered or threatened under the Endangered Species Act (“ESA”), or find that listing these species is not warranted. Certain of the 251 species either live on, or could live on, land owned or used by Plaintiffs’ members.

Compl. ¶¶ 32-36.

Plaintiffs do not challenge any particular listing decision. Pl.’s Opp’n to Defs.’ Mot. to Dismiss 13. Rather, Plaintiffs claim that the Agreements require the Service to violate procedures to list species that are mandated by Section 4 of the ESA.

Compl. ¶¶ 80-95.

The Service and Secretary of Interior (“Defendants”) have moved to dismiss for lack of Article III standing, inter alia.2 The Center for Biological Diversity (“CBD”), one of the plaintiffs in the MDL, has moved to intervene in support of the defendants.

In their opposition to the motion to dismiss,

Plaintiffs argue that they have standing on the grounds that the Agreements have caused injury to their members’ conservation, property, and business interests.

Pl.’s Opp’n 12.

This case marks the latest in a series of challenges to the MDL.

This Court and the Circuit Court have considered and

rejected nearly identical standing arguments in three prior 2

Defendants also move to dismiss for failure to state a claim under the Administrative Procedure Act and the Endangered Species Act. Defs.’ Mot. to Dismiss at 34-44. Because the Court concludes plaintiffs have no Article III standing, it need not reach these alternative arguments. - 2 (Page (Page42 8 of Total)

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decisions concerning the MDL.

In re Endangered Species Act

Deadline Litig. (“Safari Club I”), 277 F.R.D. 1 (D.D.C. 2011), aff'd 704 F.3d 972 (D.C. Cir. 2013) (hereinafter “Safari Club II”), reh’g en banc denied (Apr. 29, 2013); In re ESA Section 4 Deadline Litig. (“Tejon Ranch”), 270 F.R.D. 1 (D.D.C. 2010). In Tejon Ranch, TRC, a landowning corporation, moved to intervene in the MDL on the claim that the Service’s decision to list a species encompassed by the litigation would injure its conservation, property and business interests by precipitating restrictions on the use of its land. 5.

Tejon Ranch, 270 F.R.D. at

The Court denied TRC’s motion to intervene for lack of

standing.

Id.

Because the MDL was limited to whether the

Service had followed listing procedures under the ESA, and not whether the Service had made the correct substantive decision to list any species, the Court concluded that TRC’s potential injuries were neither caused by, nor redressable in, the MDL. Id.

In Safari Club I, this Court denied a hunting group’s

motion to intervene in the MDL for the same reason. I, 277 F.R.D. at 3.

Safari Club

The hunting group, Safari Club, alleged

that the since-finalized Agreements injured its members’ conservation and procedural interests by requiring the Service to decide by certain dates whether to list three species that they hunted.

Id. at 4-7.

The Court found that Safari Club’s

asserted conservation injury was indistinguishable from TRC’s - 3 (Page (Page43 9 of Total)

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because it was also based entirely on the potential substantive outcome of the Service’s listing determinations.

Id. at 3.

As to Safari Club’s alleged procedural injury, the Court concluded that Safari Club failed to identify any part of the Agreements that required the Service to violate procedural requirements.

Id. at 7.

Safari Club I was subsequently

affirmed by this Circuit, which found that “Safari Club has failed to identify a violation of a procedural right afforded by the ESA that is designed to protect its interests.”

Safari Club

II, 704 F.3d at 979. Even more recently, this Circuit considered, and rejected, nearly identical standing arguments in Defenders of Wildlife v. Perciasepe, 714 F.3d 1317 (D.C. Cir. 2013), reh’g en banc denied (June 10, 2013).

In that case, a trade association moved to

intervene on behalf of its members to oppose a consent decree reached between environmental groups and the Environmental Protection Agency (“EPA”).3

The consent decree required the EPA

to propose rulemaking under the Clean Water Act (“CWA”) by certain dates.

Perciasepe, 714 F.3d at 1321.

The trade

association alleged that the consent decree caused injury to its members by providing too little time for its members to participate in the CWA rulemaking, id. at 1323, and requiring 3

The National Association of Home Builders, one of the plaintiffs in this case, participated in Perciasepe as amicus curiae in support of the trade association. Id. - 4 (Page 44 10 of Total)

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its members to spend money to respond to the EPA’s information requests, id. at 1326.

Again, the Circuit denied the motion to

intervene for lack of standing, holding that the consent decree did not cause injury to the trade association’s members because it only established a timeline by which the EPA must conduct a rulemaking—it did not dictate the substantive content of that rulemaking.

Id. at 1324-26.

Taken together, the above cited cases constitute precedent that binds this Court on the issue of Article III standing. Plaintiffs’ arguments for standing are indistinguishable from those squarely addressed and rejected by the four decisions described above.

Therefore, for the reasons below, the Court

will DENY Plaintiffs’ prayer for injunctive and declaratory relief and GRANT Defendants’ motion to dismiss.

Accordingly,

the Court will DENY as moot Center for Biological Diversity’s motion to intervene. II.

BACKGROUND A. Statutory Background The Endangered Species Act was enacted “to provide a means

whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] a program for the conservation of such endangered species and threatened species.”

Endangered Species Act of 1973 § 2, 16 U.S.C. §

1531(b) (2012).

Section 4 of the ESA directs the Service, - 5 (Page 45 11 of Total)

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acting on behalf of the Secretary of Interior, to determine whether a particular species should be listed as endangered or threatened, id. § 1533(a), and when such a determination is made, to designate “critical habitat” for the species, id. § 1533(a)(3)(A)(i).

The Service must decide whether to list a

species “solely on the basis of the best scientific and commercial data available.”

§ 1533(b)(1)(A).

The ESA’s

protections apply only after a species is listed as endangered or threatened.

Id. § 1538(a).

Members of the public may petition the Service to list a species.

See id. § 1533(b)(3).

For every petition to list a

species, the Service must find whether listing is (1) not warranted, (2) warranted, or (3) warranted but precluded by pending proposals to list other species.

Id. § 1533(b)(3)(B).

If listing is warranted, the Service must (1) promptly publish a proposed rule, id. § 1533(b)(3)(B)(ii), and (2) within one year publish a final rule, withdraw the proposed rule, or delay a final decision for up to six months to solicit more scientific information, id. § 1533(b)(6)(A)(i), 1533(b)(6)(B)(i). The Service must annually review the species whose listing is warranted-but-precluded, id. § 1533(b)(3)(C)(i), and implement a system to monitor their status and “prevent a significant risk to the well being of any such species,” id. § 1533(b)(3)(C)(iii).

In addition, the Service must also - 6 (Page 46 12 of Total)

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establish guidelines that include a ranking system to help identify species that should receive priority review for listing. Id. § 1533(h)(3). B. Factual and Procedural Background The Service annually publishes its latest findings on warranted-but-precluded species (“candidate species”) in a Candidate Notice of Review (“CNOR”) published in the Federal Register. 2010).

See, e.g., 2010 CNOR, 75 Fed. Reg. 69,222 (Nov. 10,

Because the number of warranted-but-precluded findings

has outpaced the number of listings, the backlog of candidate species had grown to 251 as of 2010.

See id. at 69,224.

The

species are afforded no protection under the ESA while on the candidate list.

See 16 U.S.C. § 1538(a).

The Agreements reached in the MDL and at issue in this case seek to clear the backlog of species on the 2010 CNOR.

They do

not dictate that the Service reach any particular substantive outcome on any petition or listing determination. 277 F.R.D. at 4.

Safari Club I,

They only require the Service to make some

determination—-to publish either proposed listing rules or notwarranted findings—-for the backlog of species by the end of September 2016.

Guardians Agreement, MDL, ECF No. 31-1 at 6;

CBD Agreement, MDL, ECF No. 42-1 at 5-6.

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Of the candidate species on the 2010 CNOR, nine subspecies of Mazama pocket gopher and four species of Texas salamander4 either live on, or could live on, land owned or used by Plaintiffs’ members.

Compl. ¶¶ 32-36.

The Mazama pocket gopher

has been a candidate species since 2001, 66 Fed. Reg. 54,808 (Oct. 30, 2001), and three of the four salamander species have been candidates for more than ten years, see 67 Fed. Reg. 40,657 (June 13, 2002).

In 2012, pursuant to deadlines stipulated in

the Agreements, the Service proposed to list four of the nine subspecies of Mazama pocket gopher as threatened, 77 Fed. Reg. at 73,770 (Dec. 11, 2012), proposed to list the four species of salamander as endangered, 77 Fed. Reg. at 50,768 (Aug. 22, 2012), and also proposed critical habitat in Washington and Texas for the species proposed for listing, 77 Fed. Reg. at 73,770; 77 Fed. Reg. at 50,768.

The Service also concluded that three of the

nine subspecies of Mazama pocket gopher did not warrant listing, one subspecies was extirpated, and one subspecies was not actually a member of the same species (and therefore did not warrant listing).5

77 Fed. Reg. at 73,770.

4

The four species of salamander at issue are the Austin Blind salamander, Jollyville Plateau salamander, Georgetown salamander, and Salado salamander. 77 Fed. Reg. at 50,768. 5 On August 20, 2013, the Service issued a final rule to list the Austin Blind salamander as endangered and the Jollyville Plateau salamander as threatened. 78 Fed. Reg. 51,278. On February 24, 2014, the Service issued a final rule to list the Georgetown - 8 (Page 48 14 of Total)

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Plaintiffs sued Defendants on December 17, 2012, soon after the Service published its proposed rules for the Mazama pocket gopher and salamander species.

Importantly, Plaintiffs do not

challenge any final rules to list species covered by the Agreements.

Rather, all of Plaintiffs’ claims arise from the

timelines, set by the Agreements, for the Service to determine whether or not listing is warranted.

Compl. ¶¶ 80-95.

III. DISCUSSION Defendants move to dismiss for lack of Article III standing. Defs.’ Mem. 16-23.

Plaintiffs oppose Defendants’ motion and

assert representational standing on behalf of its members. Opp’n 10.

Pl’s

Plaintiffs assert three bases for their members’

standing: (1) the Agreements will impair members’ existing and future conservation efforts; (2) they will increase regulatory restrictions on members’ use of private land, causing economic harm; and (3) the Agreements cause FWS to breach its legally required procedures, and those breaches harm members’ concrete interests.

Pl.’s Opp’n 9, 12-13, 22.

A. Article III Standing Standing is the threshold question in every federal case that determines the Court’s power to entertain the suit. v. Seldin, 422 U.S. 490, 498 (1975).

Warth

To establish

salamander as endangered and the Salado salamander as threatened. 79 Fed. Reg. 10,236. - 9 (Page 49 15 of Total)

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representational standing, an association must demonstrate that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

Nat’l Ass’n of Home

Builders v. E.P.A., 667 F.3d 6, 12 (D.C. Cir. 2011) (quotation marks omitted).

The government disputes the first of these

elements: whether Plaintiffs’ members would have standing to sue in their own right. To establish that their members have Article III standing in their own right, Plaintiffs must demonstrate that their members have suffered 1) an injury in fact, 2) fairly traceable to the challenged action, that is 3) redressable by a favorable decision. (1992).

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

An injury in fact must be “(a) concrete and

particularized, and (b) actual or imminent, not conjectural or hypothetical.” marks omitted).

Id. at 560 (citations and internal quotation The injury “must be certainly impending,” and

“‘[a]llegations of possible future injury’ are not sufficient.” Clapper v. Amnesty Intern., 133 S.Ct. 1138, 1147 (2013) (emphasis in original).

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1. Injuries resulting from the rulemaking process Plaintiffs allege two types of injury resulting from the Agreements’ effect on the listing process.

At the outset, the

Court notes that this Circuit in Perciasepe rejected standing based on similar assertions of injury resulting from a settlement agreement’s effect on the rulemaking process.

In

Perciasepe, appellant-intervenor sought standing based on asserted injury resulting from a consent decree that required the Environmental Protection Agency (“EPA”) to propose rulemaking by a certain date.

714 F.3d at 1321-1322.

The

Circuit found that: the consent decree does not require EPA to promulgate a new, stricter rule. Instead, it merely requires that EPA conduct a rulemaking and then decide whether to promulgate a new rule—the content of which is not in any way dictated by the consent decree—using a specific timeline. Id. at 1324 (emphasis in original).

Perciasepe thus rejected

intervenor’s standing, because “Article III standing requires more than the possibility of potentially adverse regulation.” Id. at 1324-25.6

6

A number of decisions in this court, including but not limited to the opinions in the MDL and discussed above, have found no standing in similar circumstances. See, e.g., Ctr. for Biological Diversity v. EPA, 274 F.R.D. 305, 311 (D.D.C. 2011) (finding that aircraft manufacturers had no standing to intervene in action which sought to compel EPA to respond to plaintiffs’ petitions to regulate greenhouse gases, because the - 11 (Page 51 17 of Total)

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The same reasoning applies here.

Like the consent decree

in Perciasepe, the Agreements “do not dictate that [the Service] reach any particular substantive outcome on any petition or listing.”

Safari Club I, 277 F.R.D. at 4.

They merely require

the Service to determine—according to a specific schedule— whether listing of the species is warranted or not.

Id.

“That

the consent decree prescribes a date by which regulation could occur does not establish Article III standing.” F.3d at 1325 (emphasis in original).

Perciasepe, 714

Similarly, that the

Agreements set dates by which the Service could list warranted species does not establish Article III standing for Plaintiffs. This reasoning informs the following discussion of Plaintiffs’ asserted injuries. a. Injury to conservation efforts Plaintiffs first argue that their members have standing because the Agreements impair their members’ existing and future conservation efforts.

Pl.’s Opp’n 14.

Specifically, Plaintiffs

claim that the Agreements require the Service to propose listing candidate species by certain dates without taking into account

court’s decision would only “require EPA to make the determination (whether greenhouse gases endanger public health), not to reach any particular result.”); Envtl. Defense v. Leavitt, 329 F. Supp. 2d 55, 68 (D.D.C. 2004) (holding that coal industry group lacked standing to challenge consent decree requiring the EPA to issue clean air regulations by a date certain, because “the decree does not address the substance of the [regulations] but merely sets a schedule for their promulgation.”) - 12 (Page 52 18 of Total)

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conservation efforts by their members that could reduce or eliminate the need to list the species.

Id. at 18.

Plaintiffs’ “conservation interest” basis for standing is similar to that rejected by this Court in Tejon Ranch.

In that

case, private property owners (“TRC”) sought standing to intervene in litigation seeking to compel the Service to determine by a certain date whether listing of the Tehachapi slender salamander species was warranted. F.R.D. at 2.

See Tejon Ranch, 270

TRC owned land that the Tehachapi slender

salamander lived on, and had spent years working with the Service on a conservation plan for the species.

Id. at 3.

TRC

claimed that the timing of the Service’s listing determination would injure its interest in ensuring that the conservation plan would be approved and properly considered prior to listing the species.

Id. at 5.

This Court found that:

TRC’s claims of injury from the timing of the [Service’s] listing decision . . . fail to establish standing . . . TRC’s purported interest is in ensuring that its [conservation plan] will be approved and properly considered prior to listing the Tehachapi slender salamander. It is unclear how intervening here would protect that interest. TRC does not allege and has not shown that its proposed habitat conservation plan will be approved or denied as a result of the instant lawsuit. . . . Because TRC has failed to show both causation and redressability with respect to this injury . . . the Court finds that TRC does not have standing to intervene in this case. Id. at 5.

Another judge on this court reached a similar

conclusion in Envt’l Defense v. Leavitt, in which a coal - 13 (Page 53 19 of Total)

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industry group attempted to challenge a consent decree which required the EPA to issue certain clean air regulations within a specified timeframe, but did not address the substance of those regulations.

329 F.Supp. 2d 55 (D.D.C. 2004).

The industry

group claimed that its interests were harmed because the regulations would be “artificially expedited” which would prevent “due deliberation.”

Id. at 68.

The court rejected the

claim, holding that the industry group “fail[ed] to show that the suggested timetable is inadequate or that modifications to the timetable are likely to be necessary, or that any such inadequacies or modifications would result in injury or impairment to” the industry group.

Id.

The same analysis applies here.

Plaintiffs do not show

that their members’ conservation efforts will be found sufficient or insufficient to protect the species as a result of the deadlines set forth in the Agreement.

They also do not show

that the Service will ignore or discount their conservation efforts as a result of the Agreements.

Nor do Plaintiffs show

the time-frames set forth in the Agreement are inadequate for the Service to make a determination whether or not listing is warranted.

Nor could they, since the gopher and salamander

species at issue have been on the candidate list for at least ten years.

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Plaintiffs’ reliance on County of San Miguel v. MacDonald, 244 F.R.D. 36 (D.D.C. 2007), is unavailing.

In San Miguel,

trade associations sought standing to intervene in an action seeking injunctive relief to order the Service to list a species of bird as “endangered” after the Service had determined that listing was “not warranted.”

Id. at 38.

The trade association-

intervenors argued that the relief sought would injure their members’ existing and future conservation efforts to avoid listing the species.

Id. at 44.

The Court found that the trade

associations had standing to intervene because the alleged injury to their members’ conservation efforts to avoid a listing was fairly traceable to the relief sought, and redressable by a decision favorable to the intervenors.

Id. at 44-45.

Here, the

Agreements that Plaintiffs oppose do not contemplate or dictate any actual listing decision for the species at issue.

They only

require the Service to find by specific dates whether listing of such species is warranted.

Guardians Agreement, ECF No. 31-1 at

6; CBD Agreement, ECF No. 42-1 at 5-6.

Acting under the

schedule set forth in the Agreements, the Service has since found that listing is actually not warranted for five of the nine candidate subspecies of Mazama pocket gopher at issue. Fed. Reg. at 73,770.

77

Accordingly, the Court does not see how

injury to Plaintiffs’ members is fairly traceable to the Agreements—as opposed to the Service’s actions independent of - 15 (Page 55 21 of Total)

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the Agreements—or redressable by a court order to set them aside. See Perciasepe, 714 F.3d at 1325 (finding no standing where injury was based on the potential substantive outcome of the EPA’s rulemaking); Safari Club I, 277 F.R.D. at 6 (finding no standing where injury was based on the potential substantive outcome of the Service’s listing decision); Tejon Ranch, 270 F.R.D. at 5 (same). In an effort to show that the voluntary conservation efforts of their members are consistent with the ESA, Plaintiffs point out that the Service has issued an advance notice of proposed rulemaking to create incentives for landowners to take voluntary conservation actions.

Pl.’s Opp’n 16 (citing 77 Fed.

Reg. at 15,352 (March 15, 2012)).

However, referencing the

Service’s intent to promote voluntary conservation does nothing to confer standing where the alleged conservation injury is neither traceable to, nor redressable by, the Agreements that Plaintiffs seek relief from.

Put otherwise, Plaintiffs fail to

establish that the Agreements, not the Service’s alleged failure to recognize their members’ conservation efforts, cause the injury that their members complain of.

See Perciasepe, 714 F.3d

at 1325 n.7 (finding that the EPA’s statements that it intended to update regulation did not confer standing, because “[intervenor] has the burden to establish that the consent decree—not EPA’s throat clearing—will cause the injury of which - 16 (Page 56 22 of Total)

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it complains.”).

Furthermore, as Defendants point out,

“voluntary efforts to undertake pre-listing [conservation actions] provide no basis for Plaintiffs’ purported injury.” Def.’s Reply 9.

Plaintiffs “cannot manufacture standing by

choosing to make expenditures based on hypothetical future harm that is certainly not impending.”

Clapper, 133 S. Ct. at 1143

(finding no standing for respondents whose alleged injury consisted of costs incurred to avoid risk of harm by the Government). Because Plaintiffs fail to show that the injury is fairly traceable to the Agreements or redressable by an order to set them aside, the Court finds that Plaintiffs do not have standing based on a purported injury to their members’ conservation efforts.7

8

7

By extension, for the same failure to satisfy the traceability and redressability elements, Plaintiffs would also lack standing to challenge the Agreements if the Service ultimately lists the species covered by the Agreements. Plaintiffs could, of course, directly challenge the final listing decision. See, e.g., Safari Club II, 704 F.3d at 977 (citation omitted). 8

To the extent that Plaintiffs separately allege that their members’ conservation interest is injured by the Service’s warranted-but-precluded findings for candidate species living on their land, see Pl.’s Opp’n 14 (“[t]he presence of candidate species . . . on private property has a palpable effect on . . . Plaintiffs’ members”), the Court fails to see how setting aside the Agreements protects that interest. Plaintiffs could have sought judicial review of the Service’s finding at any point during the up to ten years that the species at issue were warranted-but-precluded. See 16 U.S.C. § 1533(b)(3)(C)(ii) (2012). - 17 (Page 57 23 of Total)

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b. Regulatory restrictions on property use and business operations Plaintiffs also assert that the Agreements precipitate additional pre-listing regulatory restrictions by local authorities that injure their members’ property and business interests.

Pl.’s Opp’n 22.

Plaintiffs illustrate this claim

with a declaration by John Kaufman, a Plaintiff-member land developer in Washington state. 14-2.

Kaufman Decl. ¶¶ 1-4, ECF No.

Kaufman states that in the years before the Agreements,

he engaged in efforts to protect the Mazama pocket gopher candidate species on his land in order to comply with state and local conservations and potentially obviate federal listing. See Kaufman Decl. ¶¶ 8-16.

He states that his habitat

management plan was “on track for final approval” by state and local authorities.

Id. ¶ 17.

According to Kaufman, once the

Service entered into the Agreements, local authorities asked the Service to comment on his plan, id. ¶ 19, the Service recommended that the plan be modified, id. ¶ 20, and the local authorities then required Kaufman to implement these recommendations before they approved the plan, id. ¶ 20.

From

this sequence of events, Kaufman infers that “[w]hat [local authorities] deemed adequate protection for a ‘candidate’ species was suddenly not enough” once the Agreements were approved.

Id. ¶ 24.

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An action by a third party not before the court may cause injury for Article III standing when that action is a result of a determinative or coercive effect upon that third party. Bennett v. Spear, 520 U.S. 154, 169 (1997).

See

In Bennett, the

Supreme Court held that Oregon ranchers had standing to challenge a Biological Opinion issued by the Service because the Opinion caused the Bureau of Reclamation to reduce water flows, which injured the ranchers.

Id. at 169-71.

The Supreme Court

found that the Biological Opinion had a determinative or coercive effect on the Bureau because the Bureau would be subject to the Service’s enforcement action if it did not comply with the Opinion.

Id. at 170.

Here, Plaintiffs do not show

that the Service’s recommendations had a determinative or coercive effect on local authorities such that they were compelled to implement the recommendations.

Def.’s Reply 16,

n.10 (explaining that the local authorities faced “no legal consequences if they disagreed with the Service’s recommendations” regarding Plaintiff’s proposed habitat management plan).

That the local authorities independently

sought out and incorporated the Service’s recommendations once the Agreements were announced does not establish that the Agreements caused them to do so. Injury cannot be the result of “the independent action of some third party not before the court.”

Lujan, 504 U.S. at 560.

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Plaintiffs fail to show that the Agreements—as opposed to the Service’s actions separate from the Agreements, or the independent action of local authorities—caused or will cause increased regulatory restrictions.

Again, the Agreements “only

require the Service to determine whether or not to list the [251 candidate] species within the next several years, not to reach any particular result.”

See Safari Club I, 277 F.R.D. at 5.

Nor do Plaintiffs show that local authorities were compelled to adopt the Service’s regulatory recommendations.

Accordingly,

Plaintiffs cannot establish their members’ standing based on increased regulatory restrictions resulting from the Agreements. See Perciasepe, 714 F.3d at 1327 (denying standing where trade association did not support its argument that a consent decree, rather than the EPA’s actions apart from the decree, caused the purported injury). 2. Procedural violations underlying Plaintiffs’ injuries Plaintiffs’ alleged injuries are based on the underlying claim that by acting pursuant to the Agreements, the Service fails to follow ESA-mandated procedures.

See Compl. ¶ 80-95.

To establish standing to challenge the Service’s failure to abide by a statutory procedure, Plaintiffs must show that the procedures in question are “designed to protect some threatened concrete interest” of their members.

Florida Audubon Soc. v.

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Bentsen, 94 F.3d 658, 667 (D.C. Cir. 1996) (quoting Lujan, 504 U.S. at 573 n.8).

Plaintiffs must also show “not only that the

defendant's acts omitted some procedural requirement, but also that it is substantially probable that the procedural breach will cause the essential injury to the plaintiff's own interest.” Id. at 664-665.

For the reasons below, the Court finds that

Plaintiffs fail to do so, and therefore lack standing on the basis of alleged procedural violations. First, Plaintiffs claim that the Agreements require the Service to abandon statutorily required procedures for determining whether listing a candidate species is precluded. Compl. ¶¶ 76, 81-82.

Second, they claim that the Service

discards the procedure for prioritizing candidate species for listing.

Id. ¶¶ 77, 84-86.

Third, Plaintiffs claim that the

Agreements change the procedure for listing species without allowing public notice and comment.

Id. ¶ 78, 91-95.

Finally,

they claim that the Agreements require the Service to make decisions that disregard the best scientific and commercial data available.

Id. ¶¶ 77, 88-89.

These claims of procedural violations have been considered and rejected by this Court and Circuit in Safari Club I and Safari Club II.

In the Safari Club cases, movant-intervenor

Safari Club proffered a number of procedural bases for standing to intervene in the MDL that gave rise to the Agreements. - 21 (Page 61 27 of Total)

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Safari Club first claimed that the ESA required the Service to decide whether listing was precluded before proposing to list a species.

Safari Club II, 704 F.3d at 977.

The Circuit found

that: [a]lthough the Service must make one of three findings—that listing a species is not warranted, is warranted, or is warranted but precluded . . . , 16 U.S.C. § 1533(b)(3)(B), the ESA does not require the Service to find that listing a species is precluded under any specific circumstances. Safari Club II, 704 F.3d at 977.

Plaintiffs have not attempted

to distinguish their claim from Safari Club’s. Next, Plaintiffs claim that by entering into the Agreements, the Service modified its priority ranking system such that the Service no longer proposed to list candidate species in the order of their assigned priority number.

Id. ¶¶ 77, 84-86.

Again, this claim was considered and rejected in the Safari Club decisions.

This Court found that:

[while] the [ESA] requires [the Service] to establish guidelines to include “a ranking system to assist in the identification of species that should receive priority review[,]” [16 U.S.C. § 1533(h),] [t]he rankings do not create any requirement—procedural or otherwise—that the agency consider the species in the order they are ranked. 277 F.R.D. at 7.

The same is true here of Plaintiffs’ second

claim. Safari Club also asserted that the Service may not modify its priority ranking system without proper notice and comment.

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Id.

As to that assertion, this Court held that the ESA “does

not require that [the Service] must provide notice and comment before applying the [priority listing] guidelines to any species.”

Id. (explaining that when the Service adopted the

priority guidelines thirty years ago, the Service stated “the priority systems presented must be viewed as guides and should not be looked upon as inflexible frameworks for determining resource allocations.”

48 Fed. Reg. 43,098 (Sept. 21, 1983).

On appeal, the Circuit similarly found that “neither the ESA nor the implementing regulations require the Service to invite comment when it makes a warranted-but-precluded finding.”

See

Safari Club II, 704 F.3d at 979 (citing 16 U.S.C. § 1533(b)(3)(B)(2012)).

Again, Plaintiffs’ “notice and comment”

claim is virtually identical those asserted by Safari Club in this Court and on appeal, and is rejected for the same reasons. Finally, Plaintiffs claim that the Agreements compel the Service to make warranted findings without regard for the best scientific and commercial data available.

Id. ¶¶ 77, 88-89.

This Circuit has already found that the ESA does not provide a mechanism for judicially reviewing warranted findings.

16 U.S.C.

§ 1533(b)(3)(C)(ii)(2012); Safari Club II, 704 F.3d at 977; see, e.g., Bldg. Indus. Ass’n v. Norton, 247 F.3d 1241, 1246-47 (D.C. Cir. 2001) (finding that “[a]ppellants misread § 1533(b)(1)(A): the Service must utilize the ‘best scientific . . . data - 23 (Page 63 29 of Total)

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available,’ not the best scientific data possible.”).

“When the

Service proposes to formally list a [candidate] species, the ESA provides no means for the Safari Club to assert that formal listing of the species is precluded.

Congress’ failure to

provide the Safari Club with a means to require continued warranted-but-precluded findings reinforces the conclusion that the ESA contains no such procedural right.”

Safari Club II, 704

F.3d at 977-78.9 In short, Plaintiffs’ assertions that the Service violates Section 4 procedures for listing species are indistinguishable from those that this Court and Circuit considered and rejected in the Safari Club cases.

They neither identify a listing

procedure that the Agreements require the Service to violate, nor identify a listing procedure that is designed to protect their members’ interests.

Therefore, Plaintiffs fail to

establish standing based on alleged violations of statutory procedure.

9

The Court notes that Plaintiffs aggrieved by a warranted finding—and the proposed rule that issues from such a findingare not without remedy. Plaintiffs may request a public hearing on the proposed rule. 16 U.S.C. § 1533(b)(5)(E)(2012). And Plaintiffs may challenge the Service’s final rule listing the species, if such listing occurs. Safari Club II, 704 F.3d at 977; see, e.g., In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litig., 709 F.3d 1, 2 (D.C. Cir. 2013) (considering challenges to the Service’s listing of the polar bear as a threatened species). - 24 (Page 64 30 of Total)

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IV.

CONCLUSION Plaintiffs do not establish injury to their members

sufficient for Article III standing.

On the theory of injury to

their members’ conservation interests, the alleged injury is not fairly traceable to the Agreements or redressable by an order to set them aside.

On the theory of increased regulatory

restrictions prior to listing, Plaintiffs fail to show that the Agreements cause or will cause those restrictions, or that the Service compelled a third party to adopt them.

Finally,

Plaintiffs do not establish that the Section 4 listing procedures are designed for their members’ benefit, or that the Agreements require the Service to violate any statutory procedure.

The Court notes that Plaintiffs aggrieved by the

listing process are not without remedy.

“Warranted-but-

precluded” findings are judicially reviewable.

In addition,

Plaintiffs aggrieved by a warranted finding may challenge the Service’s final rule listing the species.

Accordingly, for the

reasons stated herein, the Court GRANTS Defendants’ motion to dismiss and DENIES Plaintiffs’ prayer for injunctive and declaratory relief.

In light of the foregoing, the Court DENIES

AS MOOT Center for Biological Diversity’s motion to intervene in

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this action.

An appropriate Order accompanies this Memorandum

Opinion. SO ORDERED. SIGNED:

Emmet G. Sullivan United States District Court Judge March 31, 2014

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