USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 1 of 20 No. 14-5121 IN THE United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT NATIONAL ASSOCIATION OF HOME BUILDERS, et al., v. Plaintiffs-Appellants, 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: rafe.petersen@hklaw.com Attorneys for Appellants (Page 1 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 2 of 20 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 (Page 2 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 3 of 20 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 ii (Page 3 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 4 of 20 **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. iii (Page 4 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 5 of 20 GLOSSARY OF ABBREVIATIONS Administrative Procedure Act Appendix Candidate Notice of Review Defendants-Appellees Endangered Species Act May 26, 2015 Opinion Plaintiffs-Appellants United States Fish and Wildlife Service APA App. Notice of Review Appellees the Act the Opinion Appellants the Service iv (Page 5 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 6 of 20 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 (Page 6 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 7 of 20 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 2 (Page 7 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 8 of 20 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 3 (Page 8 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 9 of 20 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)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 10 of 20 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 5 (Page 10 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 11 of 20 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 6 (Page 11 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 12 of 20 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 7 (Page 12 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 13 of 20 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 8 (Page 13 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 14 of 20 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)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 15 of 20 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 10 (Page 15 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 16 of 20 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 11 (Page 16 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 17 of 20 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 12 (Page 17 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 18 of 20 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). 13 (Page 18 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 19 of 20 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: rafe.petersen@hklaw.com Attorneys for Appellants 14 (Page 19 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 20 of 20 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 Rafe.petersen@hklaw.com Counsel for Appellants 15 (Page 20 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 1 of 46 ADDENDUM 1 (Page 21 of Total)
USCA Case #14-5121 Document #1561896 #1553946 Filed: 07/10/2015 05/26/2015 Page 21 of 46 8 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. (Page 22 of Total)
USCA Case #14-5121 Document #1561896 #1553946 Filed: 07/10/2015 05/26/2015 Page 32 of 46 8 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 (Page 23 of Total)
USCA Case #14-5121 Document #1561896 #1553946 Filed: 07/10/2015 05/26/2015 Page 43 of 46 8 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 (Page 24 of Total)
USCA Case #14-5121 Document #1561896 #1553946 Filed: 07/10/2015 05/26/2015 Page 54 of 46 8 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 (Page 25 of Total)
USCA Case #14-5121 Document #1561896 #1553946 Filed: 07/10/2015 05/26/2015 Page 65 of 46 8 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. (Page 26 of Total)
USCA Case #14-5121 Document #1561896 #1553946 Filed: 07/10/2015 05/26/2015 Page 76 of 46 8 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 (Page 27 of Total)
USCA Case #14-5121 Document #1561896 #1553946 Filed: 07/10/2015 05/26/2015 Page 87 of 46 8 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. (Page 28 of Total)
USCA Case #14-5121 Document #1561896 #1553946 Filed: 07/10/2015 05/26/2015 Page 98 of 46 8 8 IV For the foregoing reasons, the district court s dismissal is Affirmed. (Page 29 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 10 of 46 ADDENDUM 2 (Page 30 of Total)
Case 1:12-cv-02013-EGS Document 18 Filed 06/12/13 Page 1 of 3 USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 11 of 46 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA National Association of Homebuilders, et al., Plaintiffs, Jewell, et al., Defendants, v. 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 (Page 31 of Total)
Case 1:12-cv-02013-EGS Document 18 Filed 06/12/13 Page 2 of 3 USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 12 of 46 P.O. Box 11374 Portland, OR 97211-0374 Tel: (971) 717-6401 Fax: (503) 283-5528 Email: atwood@biologicaldiversity.org John Buse (pro hac vice application pending) CENTER FOR BIOLOGICAL DIVERSITY 351 California Street, Suite 600 Tel: (323) 533-4416 Email: jbuse@biologicaldiversity.org 2 (Page 32 of Total)
Case 1:12-cv-02013-EGS Document 18 Filed 06/12/13 Page 3 of 3 USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 13 of 46 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 (Page 33 of Total)
USCA Case #14-5121 Document #1561896 Filed: 07/10/2015 Page 14 of 46 ADDENDUM 3 (Page 34 of Total)
USCA Case #14-5121 Document #1561896 #1499008 Filed: 07/10/2015 06/23/2014 Page 15 1 of 346 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NATIONAL ASSOCIATION OF ) HOME BUILDERS, et al., ) ) Appellants ) v. ) ) Case No. 14-5121 UNITED STATES FISH AND ) WILDLIFE SERVICE ) and ) SALLY JEWELL, in her official capacity as ) Secretary, U.S. Department of the Interior ) ) ) Appellees. ) ) 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. (Page 35 1 of Total)
USCA Case #14-5121 Document #1561896 #1499008 Filed: 07/10/2015 06/23/2014 Page 16 2 of 346 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 17 th Street, N.W., Suite 1100 Washington, D.C. 20006 Telephone: (202) 955 3000 Facsimile: (202) 955 5564 E-mail: rafe.petersen@hklaw.com (Page 36 2 of Total)
USCA Case #14-5121 Document #1561896 #1499008 Filed: 07/10/2015 06/23/2014 Page 17 3 of 346 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 (Page 37 3 of Total)
USCA Case #14-5121 Document #1561896 #1499008 Filed: 07/10/2015 06/23/2014 Page 18 1 of 246 Exhibit A (Page 38 4 of Total)
Case 1:12-cv-02013-EGS Document 25 Filed 03/31/14 Page 1 of 1 USCA Case #14-5121 Document #1561896 #1499008 Filed: 07/10/2015 06/23/2014 Page 19 2 of 246 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 and it is ORDERED that [10] Defendants motion to dismiss is GRANTED; 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 (Page 39 5 of Total)
USCA Case #14-5121 Document #1561896 #1499008 Filed: 07/10/2015 06/23/2014 Page 20 1 of 27 46 Exhibit B (Page 40 6 of Total)
Case 1:12-cv-02013-EGS Document 26 Filed 03/31/14 Page 1 of 26 USCA Case #14-5121 Document #1561896 #1499008 Filed: 07/10/2015 06/23/2014 Page 21 2 of 27 46 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. ) ) I. INTRODUCTION MEMORANDUM OPINION Plaintiffs are four organizations 1 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 41 7 of Total)
Case 1:12-cv-02013-EGS Document 26 Filed 03/31/14 Page 2 of 26 USCA Case #14-5121 Document #1561896 #1499008 Filed: 07/10/2015 06/23/2014 Page 22 3 of 27 46 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 42 8 of Total)
Case 1:12-cv-02013-EGS Document 26 Filed 03/31/14 Page 3 of 26 USCA Case #14-5121 Document #1561896 #1499008 Filed: 07/10/2015 06/23/2014 Page 23 4 of 27 46 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. Tejon Ranch, 270 F.R.D. at 5. 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. Safari Club I, 277 F.R.D. at 3. 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 43 9 of Total)
Case 1:12-cv-02013-EGS Document 26 Filed 03/31/14 Page 4 of 26 USCA Case #14-5121 Document #1561896 #1499008 Filed: 07/10/2015 06/23/2014 Page 24 5 of 27 46 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 10 44 of Total)