Defenders of Wildlife v. Jewell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DEFENDERS OF WILDLIFE, et al., :
:
:
Plaintiffs, : Civil Action No.: 13-0919 (RC)
:
v. : Re Document Nos.: 19, 33, 36, 39
:
SALLY JEWELL, :
Secretary, U.S. Department of the Interior, :
et al., :
:
Defendants, :
:
and :
:
SUSAN COMBS, :
Comptroller of Public Accounts :
for the State of Texas, et al., :
:
Intervenor Defendants. :

MEMORANDUM OPINION

GRANTING FEDERAL DEFENDANTS’ AND INTERVENOR DEFENDANTS’ CROSS-MOTIONS FOR
SUMMARY JUDGMENT AND DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

In 2012, the U.S. Fish and Wildlife Service (“FWS” or “Service”) withdrew a proposed

rule that would have listed the dunes sagebrush lizard as an endangered species. Subsequently,

the Defenders of Wildlife and the Center for Biological Diversity (“Plaintiffs”) brought suit

against the Secretary of the Interior and the Director of the FWS (“Federal Defendants”) to

challenge the withdrawal decision. The Texas Comptroller of Public Accounts and several oil

and gas industry associations intervened as defendants (“Intervenor Defendants”). Plaintiffs

moved for summary judgment, contending that the withdrawal decision failed to account for all
of the statutory listing factors provided in the Endangered Species Act (“ESA”), did not rely on

the best available science as mandated by the ESA, and was arbitrary and capricious in violation

of both the ESA and Administrative Procedure Act (“APA”). Federal Defendants and Intervenor

Defendants cross-moved for summary judgment, arguing that the FWS’s withdrawal decision

was lawful. Because the FWS’s decision complied with the ESA and APA, the Court grants

Federal Defendants’ and Intervenor Defendants’ cross-motions for summary judgment and

denies Plaintiffs’ motion for summary judgment.

II. BACKGROUND

A. Statutory and Regulatory Framework

Congress enacted the ESA “to provide a means whereby the ecosystems upon which

endangered species and threatened species depend may be conserved, [and] to provide a program

for the conservation of such endangered species and threatened species . . . .” 16 U.S.C.

§ 1531(b). The ESA defines an endangered species as “any species which is in danger of

extinction throughout all or a significant portion of its range,” and defines a threatened species as

one that is “likely to become an endangered species within the foreseeable future throughout all

or a significant portion of its range.” Id. §§ 1532(6), 1532(20).

Section 4(a) of the ESA provides that the Secretary of the Interior, through the FWS,

“shall by regulation . . . determine whether any species is an endangered species or a threatened

species because of any” of five enumerated listing factors. Id. § 1533(a)(1). These listing

factors are:

(A) the present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or
educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or

2
 (E) other natural or manmade factors affecting its continued
existence.

Id. § 1533(a)(1)(A)‒(E). Additionally, section 4(b) of the ESA requires the Secretary to make

listing decisions “solely on the basis of the best scientific and commercial data available to him

after conducting a review of the status of the species and after taking into account those efforts, if

any, being made by any State . . . to protect such species . . . .” Id. § 1533(b)(1)(A).

In 1999, the FWS and National Marine Fisheries Service (“NMFS”) established a policy

to encourage states and private actors to undertake voluntary efforts to conserve candidate

species—those being considered for ESA listing. Under the Candidate Conservation

Agreements with Assurances (“CCAA”) framework, in 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.” Announcement of Final Policy for Candidate Conservation Agreements with

Assurances, 64 Fed. Reg. 32,726, 32,727 (June 17, 1999). While CCAAs are designed to

“remov[e] any need to list the covered species,” the mere existence of a CCAA will not preclude

listing. Id. Nonetheless, CCAAs have over time become a common mechanism for promoting

conservation of numerous candidate species. 1

In 2003, the FWS and NMFS announced their Policy for Evaluation of Conservation

Efforts When Making Listing Decisions (“PECE”). See PECE, 68 Fed. Reg. 15,100 (Mar. 28,

2003). Pursuant to section 4(b)’s requirement that listing decisions be made “after taking into

account those [conservation] efforts, if any, being made by any State,” 16 U.S.C.

§ 1533(b)(1)(A), the PECE allows FWS personnel making listing decisions to consider

1
See, e.g., 78 Fed. Reg. 76,639 (Dec. 18, 2013) (announcing CCAA availability for
lesser prairie chicken); 78 Fed. Reg. 43,912 (July 22, 2013) (announcing CCAA availability for
Rio Grande cutthroat trout).

3
conservation efforts that have not yet been implemented, so long as the Service evaluates “the

certainty that the conservation effort will be implemented,” 68 Fed. Reg. at 15,114. 2 Similarly,

the PECE enables the FWS to consider conservation efforts that have not yet demonstrated

effectiveness, if the Service evaluates “the certainty that the conservation effort will be

effective.” Id. 3 In sum, the FWS must conclude that future efforts are “sufficiently certain to be

implemented and effective.” Id. at 15,115.

B. The Dunes Sagebrush Lizard

The dunes sagebrush lizard (Sceloporus arenicolus), also known as the sand dune lizard,

is a light-brown lizard under three inches in length. It is found only in its shinnery oak dune

habitat, where wind patterns create parabolic dunes dependent on shinnery oak in areas with

sandy soils. See AR8230. The lizard’s habitat spans approximately 745,000 acres, of which

roughly 73% is found in New Mexico, and 27% in Texas. See AR8305. Additionally, much of

2
With respect to certainty of implementation, PECE outlines the following nine criteria
to direct the agencies’ analysis: (1) the conservation effort, the parties to the effort, and funding
and resources to implement the effort; (2) the legal authority of the parties to the conservation
effort and their commitment to proceed; (3) the legal procedural requirements necessary to
implement the effort; (4) the authorizations necessary to implement the conservation effort; (5)
identification of the “type and level of voluntary participation . . . necessary to implement the
conservation effort,” and a “high level of certainty” that participation will occur; (6) the
existence of regulatory mechanisms necessary to implement the conservation effort; (7) a high
level of certainty that the parties will obtain the necessary funding; (8) an implementation
schedule; and (9) approval by all parties to the agreement or plan. 68 Fed. Reg. at 15,114‒
15,115.
3
With respect to certainty of effectiveness, the agencies use the following criteria to
direct the analysis: (1) the nature and extent of threats being addressed by the conservation effort
and the method for reducing the threats; (2) explicit incremental objectives and dates for
achieving them; (3) detailed identification of the steps necessary to implement the conservation
effort; (4) identification of quantifiable, scientifically valid parameters that will demonstrate
achievement of objectives; (5) provisions for monitoring and reporting progress on
implementation and effectiveness; and (6) incorporation of “principles of adaptive management.”
68 Fed. Reg. at 15,115.

4
the lizard’s New Mexico habitat lies on federal land managed by the Bureau of Land

Management (“BLM”). See AR8341.

The lizard’s shinnery oak dune habitat also happens to be located in the Permian Basin,

one of the most significant sources of oil and gas in the United States. See 77 Fed. Reg. 36,872,

36,887. Over time, oil and gas development, along with the use of herbicides, began to threaten

and fragment the lizard’s shinnery oak dune habitat. Having noted significant habitat loss in the

1980s and 1990s, the Service identified the lizard in 2001 as a candidate species. 66 Fed. Reg.

54,808, 54,811 (Oct. 30, 2001).

In December 2010, the FWS issued a proposed rule listing the lizard as endangered,

“based on the immediacy, severity, and scope of the ongoing significant threats.” Proposed

Rule: Endangered and Threatened Wildlife and Plants; Endangered Status for Dunes Sagebrush

Lizard, 75 Fed. Reg. 77,801, 77,813 (Dec. 14. 2010). As explained in the Proposed Rule, the

lizard is considered to be a “habitat specialist because it has adapted to thrive only in a narrow

range of environmental conditions that exist within shinnery oak dunes,” and its survival “is

directly linked to the quality and quantity of available shinnery oak dune habitat.” Id. at 77,803.

FWS noted that 40% of the lizard’s habitat in New Mexico was no longer suitable, that oil and

gas development further threatened the habitat, and that habitat fragmentation was causing

population loss. See id. at 77,805. Following publication of the proposed rule, the Service held

hearings in New Mexico and Texas during the sixty-day public comment period. The Service

twice reopened the comment period, which ultimately closed in March 2012. See 77 Fed. Reg.

11,061 (Feb. 24, 2012).

In June 2012, the FWS withdrew its proposed rule listing the lizard. See Withdrawal of

the Proposed Rule to List Dunes Sagebrush Lizard, 77 Fed. Reg. 36,872 (June 19, 2012). In

5
summarizing its conclusions, the Service explained that “the threats to the species . . . no longer

are as significant as believed at the time of the proposed rule” and that this finding rested on

“analysis of current and future threats and conservation efforts” and “the best scientific and

commercial data available.” Id. at 36,872. In particular, the FWS relied upon “significant

ongoing and future conservation efforts, in combination with new information on the status and

distribution of the species.” Id. at 36,898.

C. The Conservation Agreements

In declining to list the dunes sagebrush lizard as endangered, the FWS assessed the

protections afforded to the lizard by three distinct conservation mechanisms: (1) the Bureau of

Land Management’s Special Status Species Resource Management Plan Amendment (“BLM’s

RMPA”), (2) New Mexico’s Candidate Conservation Agreement and Candidate Conservation

Agreement with Assurances (collectively “New Mexico Agreement”), and (3) the Texas

Candidate Conservation Agreement with Assurances and Habitat Conservation Plan (“Texas

Plan”). Collectively, the three mechanisms covered approximately 89% of the lizard’s habitat.

AR8333, 8305.

Since 2008, the BLM’s RMPA has provided internal guidance to BLM staff for

conserving the dunes sagebrush lizard on land managed by the BLM in New Mexico—54% of

the lizard’s entire range, as of the withdrawal decision. 77 Fed. Reg. at 36,896. Among other

measures, the RMPA allows the BLM to place oil and gas development up to 200 meters (650

feet) outside the lizard habitat, prioritizes habitat reclamation, and prohibits herbicide usage. Id.

Additionally, pursuant to the RMPA, BLM identified 53,657 ha (132,590 ac) that were

“currently unleased dunes sagebrush lizard habitat that will be closed to future leasing.” Id.

6
 The New Mexico Agreement took effect in 2008. AR7720. At the time of the FWS’s

withdrawal decision, the New Mexico Agreement covered 83% of the lizard’s habitat in that

state, and combined with lands covered by the BLM’s RMPA, 95% of the habitat in New

Mexico was enrolled in some conservation agreement. AR8256, 8289, 8333. Parties subject to

the New Mexico Agreement agree to (1) refrain from undertaking new oil and gas development

in the lizard’s habitat, (2) reclaim the lizard’s habitat to remedy fragmentation, (3) refrain from

new pipeline construction in the habitat, (4) refrain from using herbicide treatments in the

habitat, and (5) prevent mesquite encroachment into the habitat. AR7725. 4

Concluded in February 2012, the Texas Plan aims “to facilitate continued and

uninterrupted economic activity in the Permian Basin . . . and to promote conservation of the

[dunes sagebrush lizard] . . . in response to the proposed listing of the [lizard] by the FWS.”

AR4372. 5 Participants in the Texas Plan must implement and maintain conservation measures to

which they contractually agree in a Certificate of Inclusion. AR4376. These measures aim to

avoid activities that would degrade habitat; if avoidance is not possible, participants must

minimize habitat impacts, or alternatively mitigate habitat loss. See 77 Fed. Reg. at 36,885. 6 On

4
The New Mexico Agreement consists of a Candidate Conservation Agreement (“CCA”)
and a CCAA. Under the CCA, the BLM, the FWS, and the non-profit organization Center for
Excellence for Hazardous Materials Management (“CEHMM”) agreed “to ensure that lessees of
federal public lands managed by BLM take additional conservation measures for [the] lizard
which are not currently required by law.” AR7724. In the CCAA, the FWS and CEHMM
agreed “to enlist private landowners, lessees of private lands, and the State of New Mexico and
its lessees to undertake voluntarily the same conservation measures on private and state lands
that are contained in the CCA for federal lands.” AR7725.
5
The Texas Plan is implemented in two ways—through a CCAA program and a Habitat
Conservation Plan that would take effect if the lizard is ever listed as endangered. AR4377.
Because the lizard has not been listed, only the CCAA is relevant to this case.
6
The Texas Plan provides that “[w]hen feasible in the reasonable judgment of the
Participant, Well Sites should be developed outside of [dunes sagebrush lizard] habitat,” and
“when feasible in the reasonable judgment of the Participant, [Participants should] avoid [dunes
sagebrush lizard] Habitat.” AR4411‒12. Mitigation measures include reclaiming abandoned

7
a monthly reporting basis, a third party tracks impacts to the lizard habitat. AR4425. In the first

three years of the Texas Plan’s implementation, habitat loss coming within 7.5% of the allowed

1% loss in total habitat “will trigger a review between the Permit Holder and the FWS through

the Adaptive Management process” outlined in the Texas Plan. AR4426. In return for

participation, the FWS issues permits authorizing incidental takes of the lizard, should it ever be

listed as an endangered species. AR4396–97.

* * *

In June 2013, Plaintiffs commenced this action against Federal Defendants, challenging

the FWS’s withdrawal of its proposed rule listing the dunes sagebrush lizard as endangered. See

Compl. ¶¶ 62‒75, ECF No. 1. This Court granted the Intervenor Defendants’ motion to

intervene given their role in developing the various conservation plans upon which the FWS

relied in deciding not to list the lizard. 7 Plaintiffs subsequently moved for summary judgment,

contending that the withdrawal decision failed to account for all of the statutory listing factors

provided in the ESA, did not rely on the best available science as mandated by the ESA, and was

arbitrary and capricious in violation of both the ESA and APA. See Pls.’ Mot. Summ. J., ECF

No. 19. Federal Defendants and Intervenor Defendants cross-moved for summary judgment,

arguing that the withdrawal decision was lawful. See Fed. Defs.’ Cross-Mot. Summ. J., ECF No.

33; Comptroller’s Cross-Mot. Summ. J., ECF No. 36; API’s Cross-Mot. Summ. J., ECF No. 39.

locations, removing abandoned service roads and equipment from abandoned locations,
removing abandoned or unused fencing, establishing preservation lands, and conducting research
and monitoring programs to assess the impacts of mitigation efforts. AR4418.
7
The Court granted unopposed motions to intervene as of right, filed by the Texas
Comptroller of Public Accounts Susan Combs, the American Petroleum Institute, the
Independent Petroleum Association of America, the New Mexico Oil and Gas Association, the
Permian Basin Petroleum Association, and the Texas Oil & Gas Association. See ECF No. 11.

8
 III. STANDARD OF REVIEW

Typically, a court may grant summary judgment when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). But when assessing a summary judgment motion in an APA case,

“the district judge sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d

1077, 1083 (D.C. Cir. 2001). “The entire case on review is a question of law, and only a

question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir.

1993). “In such a case, summary judgment merely serves as the mechanism for deciding, as a

matter of law, whether the agency action is supported by the administrative record and otherwise

consistent with the APA standard of review.” Oceana, Inc. v. Locke, 831 F. Supp. 2d 95, 106

(D.D.C. 2011). “Moreover, the party challenging an agency’s action as arbitrary and capricious

bears the burden of proof.” See San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory

Comm’n, 789 F.2d 26, 37 (D.C. Cir. 1986) (en banc).

Under the APA, a reviewing court may set aside agency action if it is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). An agency acts in an arbitrary and capricious manner if it “has relied on factors

which Congress has not intended it to consider, entirely failed to consider an important aspect of

the problem, offered an explanation for its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to a difference in view or the product of

agency expertise.” Motor Vehicle Ass’n v. State Farm Mut. Auto Ins., 463 U.S. 29, 43 (1983).

“Although this inquiry into the facts is to be searching and careful, the ultimate standard of

review is a narrow one. The court is not empowered to substitute its judgment for that of the

agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

9
 Judicial review of agency action under the ESA is similarly governed by the arbitrary and

capricious standard. See Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 685 (D.C.

Cir. 1982) (“Since the ESA does not specify a standard of review, judicial review is governed by

section 706 of the Administrative Procedure Act . . . .”); accord WildEarth Guardians v.

Salazar, 670 F. Supp. 2d 1, 4 (D.D.C. 2009).

“The Court will give an extreme degree of deference to the agency when it ‘is evaluating

scientific data within its technical expertise.’” Oceana, Inc. v. Pritzker, No. 11-1896, 2014 WL

912364, at *5 (D.D.C. Mar. 10. 2014) (quoting Huls Am., Inc. v. Browner, 83 F.3d 445, 452

(D.C. Cir. 1996)). And “[w]hen examining a scientific determination, as opposed to simple

findings of fact, a reviewing court must generally be at its most deferential.” Id. (quoting Balt.

Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983)).

IV. ANALYSIS

Plaintiffs contend that, in withdrawing its proposed rule listing the dunes sagebrush lizard

as endangered, the FWS failed to account for all of the statutory listing factors provided in the

ESA, did not rely on the best available science as mandated by the ESA, and acted in an arbitrary

and capricious manner in violation of the ESA and APA. The Court addresses each argument in

turn.

A. The FWS properly considered the five ESA listing factors both individually and
cumulatively.

Plaintiffs argue that the FWS’s withdrawal of the proposed rule violated the ESA because

the Service failed to consider adequately the five ESA listing factors. See Pls.’ Mot. Summ. J.

32‒38. In response, Federal Defendants and Intervenor Defendants argue that FWS properly

10
analyzed the statutory factors in reaching its conclusion. See Fed. Defs.’ Cross-Mot. Summ. J.

35‒41; Comptroller’s Cross-Mot. Summ. J. 39–43; API’s Cross-Mot. Summ. J. 19–25.

The Court concludes that FWS sufficiently considered the five ESA listing factors—both

individually and cumulatively. First, the FWS addressed at length listing factor A—“the present

or threatened destruction, modification, or curtailment of its habitat or range.” 16 U.S.C. §

1533(a)(1)(A). The Service recognized that habitat loss was “[t]he greatest threat” to the species

but ultimately found that “more than 50 percent of the dunes sagebrush lizard’s habitat is not

fragmented, and provides adequate core habitat . . . .” 77 Fed. Reg. at 36,887–89. Based on

several studies, the FWS further concluded that larger, less fragmented habitat patches would

“support higher populations and decrease the chance of local population loss and extinction.”

Id. 8 The FWS also cited a 2011 effort undertaken by scientists at Texas A&M University that

delineated the lizard’s habitat in Texas, based on fifty surveys throughout its in-state range. Id.

at 36,874.

The FWS further explained that the threat of habitat loss was sufficiently ameliorated by

the three conservation mechanisms—the BLM’s RMPA, the New Mexico Agreement, and the

Texas Plan—which “provide conservation measures . . . to restore degraded habitat, and to

reduce fragmentation or restore connectivity. . . .” Id. at 36,894. 9 The FWS reasoned that

8
The FWS cited studies regarding the Coachella Valley fringe-toed lizard (also a sand-
dwelling lizard) and the Florida scrub lizard (also part of the Sceloporus genus), which found
that larger patch sizes “significantly influenced recruitment and survivorship.” 77 Fed. Reg. at
36,887. Additionally, a 2011 study “showed [that] habitat quantity and quality for the dunes
sagebrush lizard were positively correlated,” and that “more dunes sagebrush lizards were found
in large areas of abundant habitat, regardless of whether the overall landscape was fragmented.”
Id. at 36,888. FWS also cited a 2009 study finding that “dunes sagebrush lizards were captured
at much lower frequencies on fragmented grids compared to unfragmented grids.” Id.
9
Discounting the reclamation aspects of the various plans, Plaintiffs argue that the FWS
stated it could not create shinnery oak dune habitat. See Pls.’ Mot. Summ. J. 31. Plaintiff
misreads the FWS’s PECE analysis, which states: “We do not have the ability to create shinnery

11
“[b]ecause of these agreements, the RMPA, and the habitat that has been removed from leasing,

the Service concludes that oil and gas development will not continue within dunes sagebrush

lizard habitat at historical rates.” Id. 10 Accordingly, because “current habitat conditions will be

maintained or improved,” the FWS “no longer finds this factor to be a threat, either now or in the

future.” Id. at 36,895. In sum, the FWS reasonably concluded that because of the conservation

agreements and the efforts to mitigate habitat loss and reclaim habitat, listing factor A no longer

warranted listing the lizard. 11

oak dune habitat. However, restoring connectivity between currently suitable shinnery oak
dunes by removing unsuitable habitat is instrumental in restoring larger contiguous habitat
patches. Reclaiming roads and pads should restore connectivity and reduce fragmentation.”
AR7732. Thus, while the FWS conceded it could not create new shinnery oak dune habitat, it
recognized that certain measures could defragment and restore existing habitat.
10
Specifically, the FWS relied on a 2011 BLM survey finding that “[t]he presence of
[dunes sagebrush lizards] in reclaimed areas associated with oil and gas activities implies
reclamation efforts can successfully contribute to the defragmentation of [dunes sagebrush
lizard] habitat.” R205.
11
Plaintiffs further argue that the FWS failed to consider other habitat threats—mesquite
encroachment, herbicide usage, and grazing. This claim is belied by the record. The FWS found
that each of the conservation agreements employ “measures . . . to control [mesquite
encroachment] as necessary.” 77 Fed. Reg. at 36,894. Specifically, in its PECE analysis, the
FWS explained that in New Mexico, “mesquite removal near shinnery oak dunes has already
been done and future locations that could benefit from mesquite removal have been identified.”
AR7729. And while mesquite removal was not mandated by the New Mexico Agreement, the
FWS found that no participant had yet declined to undertake these efforts. AR7730. The Texas
Plan, for its part, addressed the “prevalence of mesquite in west Texas” by creating incentives for
participants in the form of a Certificate of Inclusion “that targets mesquite removal on their
lands.” AR7742. The FWS addressed grazing threats as well, concluding that the “New Mexico
[Agreement] include[s] conservation measures that are focused on . . . decreasing impacts that
may occur from grazing.” See 77 Fed. Reg. at 36,892. The Texas Plan similarly aims to
“manag[e]” grazing such that the lizard habitat is avoided. AR4411. As for herbicide usage, the
FWS found that the BLM’s RMPA prohibits herbicide treatment in the dunes sagebrush lizard
habitat, see id., and that the New Mexico Agreement “direct[s] new development and herbicide
treatments outside of suitable and occupied habitat,” id. at 36,886; see also AR7095 (explaining
that New Mexico Agreement enrollees must agree that “[n]o herbicide treatments will be applied
in dune complexes . . . .”). The Texas Plan also prohibits herbicide application on shinnery oak
within habitat areas and imposes limits on other herbicide applications. AR4413–14.

12
 Likewise, the FWS gave sufficient consideration to listing factor D—“the inadequacy of

existing regulatory mechanisms.” 16 U.S.C. § 1533(a)(1)(D). The Service’s analysis under

factor D centered on the BLM’s RMPA, which had “exist[ed]” since 2008. 12 The FWS first

found that in accordance with the RMPA, BLM identified 53,657 ha (132,590 ac) that were

“currently unleased dunes sagebrush lizard habitat that will be closed to future leasing.” 77 Fed.

Reg. at 36,896. FWS further found that the BLM’s RMPA “prioritizes the reclamation of

nonfunctioning oilfield development in areas that will most benefit the dunes sagebrush lizard.”

Id.

Plaintiffs claim that because the FWS found the BLM’s RMPA to be inadequate when it

issued the proposed rule in 2010, the 2012 withdrawal decision’s reliance on the RMPA was

arbitrary and capricious. But in its withdrawal decision, the FWS explained that when it initially

proposed listing the lizard, it “did not have a full understanding of how BLM implements the

RMPA,” and that subsequently, the BLM provided additional “detailed information” about this

implementation. Id. The FWS found particularly salient the fact that “no exceptions have been

made to the conservation measure that keeps development outside” of the lizard habitat. Id. 13

The Service further concluded that “BLM does not treat the RMPA as discretionary guidance,

but instead implements it with all activities” in the habitat. Id. On the basis of this additional

12
In New Mexico and Texas, there were no laws in place to protect the dunes sagebrush
lizard. 77 Fed. Reg. at 36,896. However, as set forth below, the FWS properly assessed the
New Mexico Agreement and Texas Plan under its PECE. See infra Part IV.C.2.
13
In the proposed rule, the Service assumed that an RMPA provision providing that the
BLM “may move development out of dunes sagebrush lizard habitat up to 200 meters”
established an optional, unenforceable rule. 77 Fed. Reg. at 36,896. The BLM’s comments,
however, explained that the provision authorizes the BLM to move development up to 200
meters “without further analysis,” and that if the BLM moves development beyond 200 meters,
“further analysis and documentation must first occur.” Id. The FWS noted in its withdrawal
decision that “[t]he BLM has not issued exceptions to this conservation measure, and exceptions
. . . are very difficult to obtain.” Id.

13
information, the FWS was satisfied that the BLM’s RMPA functioned as an adequate regulatory

mechanism. 14

As for the cumulative impacts of all five listing factors, the FWS concluded that although

the potential threats to the lizard “could work in concert with one another . . . to the point that

they may, in combination, become significant threats, . . . the suite of conservation efforts in the

RMPA, the New Mexico Agreement, and Texas Plan address and alleviate all of the threats to

the dunes sagebrush lizard adequately for the species to continue to be viable into the future.”

Id. at 36,897. Plaintiffs challenge the FWS’s cumulative analysis, drawing comparisons to the

analysis found deficient in WildEarth Guardians v. Salazar, 741 F. Supp. 2d 89 (D.D.C. 2010).

In that case, the FWS’s statement on cumulative impacts consisted of: “Although we agree that

these factors are hindering recovery of the species, we disagree that the level of threat is

significant enough to warrant endangered status.” Id. at 101. The court found this analysis to be

conclusory and unsupported by the record, and therefore concluded that the withdrawal decision

was arbitrary and capricious. Id. at 101–103. Here, while the FWS’s cumulative impacts

analysis is rather terse, it is based on more than an unsupported conclusion, as in WildEarth. The

FWS relied on the panoply of conservation efforts taken by the BLM, Texas, and New Mexico,

14
Plaintiffs do not challenge the FWS’s consideration of the other listing factors
individually—factors B, C, and E. 16 U.S.C. § 1533(a)(1)(B), (C), (E). In any event, the FWS’s
analysis was sound. In assessing listing factor B—“overutilization for commercial, recreational,
scientific, or educational purposes,” the FWS found that the lizard was not a commercially
valuable species. 77 Fed. Reg. at 36,895. Under listing factor C—disease or predation—the
FWS found that because the lizard’s predator is found in higher numbers “along edge habitats
than in interior habitat patches,” “remaining unfragmented interior habitat will have decreased
predation pressure, and thus predation does not pose a significant threat to the species as a whole
now or in the future.” Id. As for listing Factor E—other natural or manmade factors affecting
the species’ continued existence—the FWS found that because the conservation agreements
would direct development away from the lizard’s habitat, “the risk of competition, and exposure
to pollutants, will only be localized stressors, and will not pose significant threats to the species
as a whole.” Id. at 36,897.

14
and found that such efforts alleviated and addressed those threats. 77 Fed. Reg. at 36,897.

Plaintiffs present no evidence that the cumulative effect of the various factors changes the

analysis. Given that the FWS thoroughly assessed a wide range of conservation efforts, its

withdrawal decision was not arbitrary and capricious.

B. FWS relied on the best available science in its assessment of the various conservation
efforts.

Plaintiffs also argue that the FWS’s withdrawal decision violated the ESA by not resting

“solely on . . . the best scientific and commercial data available . . . .” 16 U.S.C. §

1533(b)(1)(A); see also Pls.’ Mot. Summ. J. 38–40. Plaintiffs argue that the withdrawal decision

was driven instead by “considerable political pressure,” id. at 38–39, as evinced by the temporal

proximity between the Texas Plan’s adoption and the subsequent withdrawal decision. Federal

Defendants and Intervenor Defendants contend that the FWS’s analysis amply satisfied the “best

available science” standard. See Fed. Defs.’ Cross-Mot. Summ. J. 41–43; Comptroller’s Cross-

Mot. Summ J. 43–44; API’s Cross-Mot. Summ. J. 30–34.

The D.C. Circuit has determined that the “best data available” standard imposes no

obligation to conduct independent studies or “to find and consider any information [that may be]

susceptible to discovery.” Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58, 61 (D.C. Cir.

2000). Instead, an agency is prohibited only from disregarding scientifically superior evidence

available at the time. See Friends of Blackwater v. Salazar, 691 F.3d 428, 435 (D.C. Cir. 2012)

(“[T]he Service is entitled to rely upon the best data available . . . .”). 15 When a party challenges

15
See also City of Las Vegas v. Lujan, 891 F.2d 927, 933 (D.C. Cir. 1989)
(acknowledging that § 1533 “merely prohibits [an agency] from disregarding available scientific
evidence that is in some way better than the evidence . . . relie[d] on”).

15
the validity of data cited by an agency, the court is responsible for assessing the evidence, but

may not “impos[e] an obligation upon the Secretary to find better data.” Babbitt, 215 F.3d at 61.

At the outset, the Court notes that although the withdrawal decision followed soon after

the Texas Plan’s adoption, the FWS had in fact been working on drafts of the Plan since July

2011—almost a year before its decision. See AR1739. The Plaintiffs do not deny that the

Service addressed new information about the implementation of the BLM’s RMPA or that it

undertook PECE evaluations of both the New Mexico Agreement and Texas Plan, which

collectively covered 89% of the species habitat at the time. See AR7732 (analysis of BLM’s

RMPA); AR7720–7758 (PECE analyses). In addition, the FWS reviewed input from experts,

state governments, and other government agencies, and considered extensive scientific studies of

the dunes sagebrush lizard and its habitat. AR8090–93, 8234‒35, 8238–8252; 8284–8292. This

Court’s review is further constrained by the principle that “[t]he rationale for deference is

particularly strong when the agency is evaluating scientific data within its technical expertise.”

See Am. Wildlands v. Kempthorne, 530 F.3d 991, 1000 (D.C. Cir. 2008) (internal alteration

omitted).

Moreover, the presence of political pressure alone says nothing about whether the FWS’s

scientific data was indeed the “best available.” Plaintiffs proffer no scientifically superior data

from the administrative record that FWS failed to consider; rather, they simply assert that

“considerable political pressure” caused FWS to “rel[y] upon voluntary conservation agreements

and assurances from the oil and gas industry interests . . . .” Pls.’ Mot. Summ. J. 39–40.

Accordingly, the Court finds that the FWS’s withdrawal decision rested on “the best

scientific and commercial data available,” as required by the ESA. 16 U.S.C. § 1533(b)(1)(A).

16
 C. Because the FWS’s withdrawal decision reasonably relied on the Texas Plan and
complied with the Service’s policies, the decision was not arbitrary and capricious.

Plaintiffs argue that the FWS’s decision not to list the lizard was arbitrary and capricious

under the ESA and APA on two related but independent grounds. First, they claim that the

Service irrationally relied on a vague and unproven Texas Plan. Second, they argue that

Service’s confidence in the success of the various conservation mechanisms violated the PECE’s

requirement that FWS, when assessing future conservation efforts, must confirm the “certainty”

of implementation and effectiveness. See Pls.’ Mot. Summ. J. 17‒32. The Court rejects both

claims and concludes that the FWS’s withdrawal decision was not arbitrary and capricious.

1. Because the Texas Plan had sufficiently clear objectives and enabled regular
monitoring, the FWS’s reliance upon the Texas Plan was reasonable, notwithstanding
the confidentiality of the Certificates of Inclusion.

Plaintiffs argue that the FWS’s reliance on the Texas Plan was arbitrary and capricious

because the Service did not—and could not—review the Certificates of Inclusion detailing

conservation measures adopted by each participant, which are confidential under Texas law. See

Tex. Gov’t Code Ann. §§ 403.454, 552.101 (West 2011). Without access to the Certificates,

they claim, the Service “could not rationally have concluded that the Texas [Plan] is sufficiently

certain to be implemented and effective . . . .” See Pls.’ Mot. Summ. J. 28 (internal quotation

marks omitted). Federal Defendants and Intervenor Defendants submit that access to each

individual Certificate is unnecessary given that the FWS is fully able to monitor the Texas Plan

at an aggregate level. Fed. Defs.’ Cross-Mot. Summ. J. 16–21; Comptroller’s Cross-Mot.

Summ. J. 38.

Having reviewed the administrative record, the Court cannot agree with Plaintiffs’

assertion. First, prior to the withdrawal decision, the Service had learned that most Certificates

17
of Inclusion would require avoidance of lizard habitat. See AR7742 (explaining that most

development “occurs or will likely occur either outside of habitat complexes or within the spaces

in between where habitat does not occur”). Where avoidance and minimization efforts are not

feasible, each Texas Plan participant is obligated, at the minimum, to mitigate habitat loss. See

supra note 6. Moreover, the Comptroller must submit to the FWS monthly and annual reports to

enable it to adequately monitor implementation and compliance. See AR4512‒13.

Plaintiffs assert that the FWS could only have been certain of the Texas Plan’s efficacy if

it had known “on which property [habitat] disturbance is occurring,” Pls.’ Reply Supp. Mot.

Summ. J. 5, ECF No. 41, and whether “any particular landowner will implement conservation

measures,” id. at 9. This heightened precision is necessary, they submit, because certain “high

quality, unfragmented habitat parcels” are more critical than others, but under the Texas Plan, the

amount of “incidental take” is reported at the “Habitat Classification” level, of which there are

only four. Id. However, as the Service explains, the four Habitat Classification levels actually

correspond to habitat quality and the likelihood of lizard occurrence. 16 Because the Texas Plan

limits habitat loss within each level, AR4535–36, and because the amount of habitat enrolled in

each level is known, AR8044, the FWS can monitor losses within each quality level, thereby

protecting the most critical areas about which Plaintiffs are concerned. 17

16
The four levels are: “very high” likelihood, “high” likelihood, “low” likelihood,” and
“very low” likelihood. AR4583–85.
17
Moreover, the required annual reports will provide other data at the level of each
individual dune complex: For each “numbered and individually identified” dune complex,
AR4513, the Service will be provided data “at a scale-of-resolution appropriate for assessing
status/trends as well as operational decisions regarding compliance, effectiveness and adaptive
management,” AR7750. This information will include the number of participants and
Certificates of Inclusion obtained, a description of the activities undertaken in lizard habitat, an
update on the quantity and quality of the habitat, justification where exceptions were granted to
the requirement to avoid lizard habitat, a description of the overall effectiveness of the Texas
Plan, and instances of noncompliance and remedies. AR4512.

18
 In sum, the FWS reasonably concluded that, even if it could not review each individual

Certificate of Inclusion, it would have access to sufficient aggregate data “to ensure that all of

the conservation measures are implemented as planned, and are effective at removing threats to

the lizard and its habitat.” 77 Fed. Reg. at 36,886. 18 Thus, the confidentiality of the Certificates

of Inclusion does not render the FWS’s reliance on the Texas Plan arbitrary and capricious.

2. Because the FWS properly found that the conservation efforts’ implementation and
effectiveness were “sufficiently certain,” the withdrawal decision complied with its
PECE.

Plaintiffs contend that in declining to list the lizard, the FWS failed to verify the

“certainty” of various conservation efforts’ implementation and effectiveness, as required by its

own PECE. 19 68 Fed. Reg. at 15,114; see Pls.’ Mot. Summ. J. 28–32.20 In response, Federal

Defendants and Intervenor Defendants contend that the implementation and effectiveness of the

conservation mechanisms were “sufficiently certain,” as the Service found in its withdrawal

18
Plaintiffs also claim that the Texas Plan is administered by the oil and gas industry.
See Pls.’ Mot. Summ. J. 10. This claim misapprehends the facts. The Texas Comptroller of
Public Accounts—who holds the Texas Plan’s ESA permit—contracted with Texas A&M
University to administer the Plan. The University in turn assigned administrative functions to
the Texas Habitat Conservation Foundation, whose Executive Director—at the time of the
FWS’s PECE analysis—was a former Texas Parks and Wildlife biologist. See AR7745.
Although the Foundation was originally created by lobbyists for the Texas Oil and Gas
Association, see Comptroller’s Answer ¶¶ 36 & 37, this fact does not demonstrate that the
FWS’s reliance on the Texas Plan was arbitrary and capricious.
19
Plaintiffs challenge not the facial validity of the PECE, but the “Service’s application
of its PECE policy to the lizard.” Pls.’ Reply Supp. Mot. Summ. J. 7 n.5; see also Pls.’ Mot.
Summ. J. 28 n.11. Because Plaintiffs do not facially challenge the PECE, the Court need not
consider whether the PECE merits Chevron or Skidmore deference. Rather, the Court need only
decide whether the FWS’s application of the PECE was arbitrary and capricious, in violation of
the APA and ESA.
Furthermore, the Court assumes (without deciding) that if the FWS were to violate its
PECE, this violation would indeed constitute arbitrary and capricious agency action, as no party
disputes this proposition advanced by Plaintiffs. See Pls.’ Reply Supp. Mot. Summ. J. 7 (arguing
that PECE violation is independent basis for finding arbitrary and capricious action).
20
See supra notes 2, 3 (criteria for assessments of implementation and effectiveness).

19
decision. 68 Fed. Reg. at 15,115 (emphasis added); Fed. Defs.’ Cross-Mot. Summ. J. 21–32;

Comptroller’s Cross-Mot. Summ. J. 35–39.

The Court concludes that the administrative record demonstrates that the FWS’s

withdrawal decision fully complied with its PECE. The FWS concluded that the New Mexico

Agreement, Texas Plan, and BLM’s RMPA “put in place conservation efforts that have been

implemented by the States, BLM, private landowners, and oil and gas companies, and have a

high level of certainty of continuing to be implemented in the future and of being effective.” 77

Fed. Reg. at 36,898 (emphasis added). The Service supported this conclusion by assessing

enrollment and compliance trends, the commitment and resources of participants, and monitoring

and evaluation mechanisms. 21

Plaintiffs contend that the FWS should not have credited the Texas Plan’s commitment to

capping overall habitat loss at 1% over the first three years of the Plan. AR7742. Plaintiffs

contend that although this 1% goal might have been realistic if 99% of the Texas lizard habitat

had been enrolled in the Plan, only 64‒71% of the Texas acreage was enrolled at the time of the

withdrawal decision. See Pls.’ Mot. Summ. J. 27, 29. Furthermore, they contend that incentives

for participation would only weaken after the withdrawal decision. Id. at 30. But the FWS

reasonably expected participation in the Texas Plan to increase, based on its experience in New

Mexico. See 77 Fed. Reg. at 36,886 (“The high level of participation and compliance with the

New Mexico [Agreement] and additional voluntary conservation efforts prescribed by the Texas

[Plan] supports our determination that similar enrollment, implementation, and success is [sic]

21
As of the FWS’s May 2012 PECE analysis, the New Mexico Agreement had an 83%
enrollment rate and no incidence of non-compliance. See AR7739–40. And even though the
Texas Plan had only become effective in February 2012, the FWS still analyzed that plan’s
implementation and effectiveness in its May 2012 PECE analysis and found that 71% of private
landowners in Texas had already enrolled in the Texas Plan, and had already remitted $773,000
in participation fees. See AR7752.

20
likely to be achieved in Texas.”). In any event, the FWS further found that not every acre of the

species’ Texas habitat needed to be covered in order to meet the 1% target. 22

Plaintiffs also claim in passing that the Service’s inability to access the Certificates of

Inclusion precludes finding any “certainty” in the Texas Plan’s implementation or effectiveness.

See Pls.’ Mot. Summ. J. 29. For reasons discussed above, this claim is without merit. See supra

Part IV.C.1. Similarly, Plaintiffs’ contention that the adaptive management model is

inapplicable in this context presumes incorrectly that the FWS has no access to “the data

necessary to evaluate the effectiveness of conservation measures.” Pls.’ Mot. Summ. J. 30.

Plaintiffs also misread Alaska v. Lubchenco, 825 F. Supp. 2d 209 (D.D.C. 2011), for the

proposition that “PECE requires certainty that current conservation measures are actually being

implemented and effectively aiding the species.” Pls.’ Mot. Summ. J. 29 (emphasis added). In

that case, Alaska challenged the NMFS’s decision to list the beluga whale as endangered. In its

motion for summary judgment, Alaska contended that the NMFS failed to consider the state’s

conservation efforts prior to making its listing decision, in violation of Section 4(b)(1)(A). See

16 U.S.C. § 1533(b)(1)(A). The court noted that the NMFS “considers a State’s conservation

efforts in accordance with its [PECE], which requires that current conservation efforts

demonstrate some degree of certainty as to their ‘implementation’ and ‘effectiveness.’”

Lubchenco, 825 F. Supp. 2d at 219. “In other words,” the court explained, “it is not enough for

the State to identify conservation efforts that may be beneficial to a species’ preservation; those

22
See, e.g., AR7740 (“We are satisfied that the conservation efforts evaluated will be
effective in reducing threats to the lizard; however, in order to do so they do not need to be
applied on every acre of suitable lizard habitat. For instance, not all of the mesquite encroaching
on occupied dune complexes needs to be removed.”); AR8334 (“Currently, greater than 50
percent of the dunes sagebrush lizard’s habitat is unfragmented and provides large areas of core
shinnery oak dunes. These large core areas, along with the adaptive management provisions of
the conservation agreements, will provide refugia to help maintain adequate habitat for the lizard
with changing climactic conditions.”).

21
efforts must actually be in place and have achieved some measure of success in order to count

under the Service’s [PECE] policy.” Id. Applying these principles, the court reasoned that

certain state efforts were not targeted specifically at beluga whales, while others were

underfunded. Id. In denying Alaska’s motion for summary judgment, the court ultimately

agreed with the NMFS that conservation efforts “had not demonstrated a degree of effectiveness

sufficient to alleviate concern” about the beluga whales. Id.

Consistent with the PECE, Lubchenco permits agencies to consider state programs that

are not yet fully implemented or proven. The Lubchenco court understood that agencies may

take into account preliminary “efforts” that meet with some early “success” in planning and

preparation, id., though conservation efforts at issue in that case “had not demonstrated a degree

of effectiveness sufficient” to withhold listing. Id. (emphasis added). 23 Thus, the PECE, as

explicated in Lubchenco, recognizes that implementation and effectiveness are often assessed in

relative rather than absolute terms; when faced with regulatory uncertainty and risk to certain

species, the Service can still chart a course of action, provided it assesses and controls for that

uncertainty and risk. 24 Here, the FWS did just this, when confronted with the newly concluded

Texas Plan. 25

23
To the extent that a footnote in In re Polar Bear Endangered Species Act Listing and
Section 4(d) Rule Litigation suggests that much more is required by the PECE, the Court does
not find that dicta to be persuasive. See 794 F. Supp. 2d 65, 113 n.56 (D.D.C. 2011) (“[The
PECE] requires that in making a listing determination FWS may only consider formalized
conservation efforts that have been implemented and have been shown to be effective.”).
24
Because Plaintiffs do not challenge the PECE, they are mistaken in relying on pre-
PECE cases that disallowed consideration of conservation efforts not yet fully implemented or
effective. See, e.g., Or. Natural Res. Council v. Daley, 6 F. Supp. 2d 1139, 1154 (D. Or. 1998)
(“[T]he Secretary may not rely on plans for future actions to reduce threats and protect a species
as a basis for deciding that listing is not currently warranted.”); Save Our Springs v. Babbitt, 27
F. Supp. 2d 739, 747 (W.D. Tex. 1997) (“The Secretary cannot use promises of proposed future
actions as an excuse for not making a determination based on the existing record.”).

22
 Having analyzed each factor required by its PECE, the FWS reasonably concluded that

the New Mexico and Texas conservation measures were “sufficiently certain” to be implemented

and effective. 77 Fed. Reg. at 36,882 (citing PECE); see also AR7720‒7759 (PECE analyses).

Accordingly, the Service’s reliance on those measures complied fully with its PECE.26

V. CONCLUSION

The FWS’s withdrawal decision was neither arbitrary and capricious under the ESA and

APA, nor contrary to ESA requirements governing listing decisions. The FWS examined the

conservation measures in place and determined that they would be effective and would continue

to eliminate threats to the lizard. Of course, if the measures prove ineffective, the FWS is free to

revisit its decision and list the lizard as endangered.

For the foregoing reasons, Federal Defendants’ and Intervenor Defendants’ cross-motions

for summary judgment are GRANTED, and Plaintiffs’ motion for summary judgment is

Moreover, to the extent that the PECE’s allowance of reliance on unrealized future efforts
comes into tension with listing factor D’s emphasis on “existing regulatory mechanisms,” see 16
U.S.C. § 1533(a)(1)(D), this tension is found within the ESA itself, which also requires that
listing decisions be based on assessments of “any” state conservation efforts, see id. §
1533(b)(1)(A). The parties do not ask this Court to resolve this tension, and it suffices to
observe that the ESA’s listing factor D and section 4(b)(1)(A) impose “separate . . . but similar”
obligations, which give rise to distinct inquiries. Lubchenco, 825 F. Supp. 2d at 219.
25
In contrast to the Texas Plan, the New Mexico Agreement had been in place since 2008
and had a “documented track record” of compliance. AR8294. Plaintiffs thus focus their PECE
challenge on the much newer Texas Plan.
26
In its motion for summary judgment, Plaintiffs appeared to take issue with the
voluntary nature of the conservation efforts cited by the FWS. See Pls.’ Mot. Summ. J. 20
(“Because the [New Mexico and Texas] Agreements are voluntary, the Service unreasonably
relied upon them in withdrawing the Proposed Rule.”). However, in reply, Plaintiffs conceded
that “the issue is not whether the Service may consider voluntary conservation efforts,” but
rather the unproven and speculative nature of the particular efforts at issue here. See Pls.’ Reply
Supp. Mot. Summ. J. 3–4. As explained above, the Court rejects Plaintiffs’ contention that the
conservation efforts here were too speculative to support the withdrawal decision.

23
DENIED. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: September 30, 2014 RUDOLPH CONTRERAS
United States District Judge

24