National Association of Home Builders v. United States Fish and Wildlife Service

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.

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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.
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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. 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

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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.
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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,

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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

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

2010). 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. Safari Club I,

277 F.R.D. at 4. They only require the Service to make some

determination—-to publish either proposed listing rules or not-

warranted 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
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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. Pl’s

Opp’n 10. 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. Warth

v. Seldin, 422 U.S. 490, 498 (1975). To establish

salamander as endangered and the Salado salamander as threatened.
79 Fed. Reg. 10,236.
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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. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992). An injury in fact must be “(a) concrete and

particularized, and (b) actual or imminent, not conjectural or

hypothetical.” Id. at 560 (citations and internal quotation

marks omitted). 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
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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.” Perciasepe, 714

F.3d at 1325 (emphasis in original). 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.”)
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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. See Tejon Ranch, 270

F.R.D. at 2. 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

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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. 77

Fed. Reg. at 73,770. 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

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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

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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).
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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. Kaufman Decl. ¶¶ 1-4, ECF No.

14-2. 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. See

Bennett v. Spear, 520 U.S. 154, 169 (1997). 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.

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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

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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 finding-
are 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).

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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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