UNITED sTATES DISTRICT COURT
FoR THE _DISTRICT oF CoLUMBIA
CALIFORNIA CATTLEMEN’S
ASSOCIATION, et al., _
Plaintiffs,
v. _ . Case No. 1:17-cv-01536 {TNM)
UNI'I`ED STATES FISH AND WILDLIFE n
SERVICE, et al., '
Defendants,
and
CENTER FOR BIOLOGICAL DIVERSITY, et
al.,
Defendant-
Intervenors
MEMORANDUM OPINION
In this suit, three associations representing California ranchers land farmers challenge the
federal designationof over 1.8 million acres in the Sierra Nevada mountains as critical habitat
'for three amphibian species. Before me are two Motions to Disrniss: one from the Government
. and one from Defendant-Intervenors (collectively, Defendants), each raising jurisdictional and
pleading arguments At this initial stage, l conclude with one exception that I have jurisdiction,
and that the Complaint survives applicable pleading standards
l I. BACKGROUND
The Cotnplaint contains two causes of action. In the first, the Plaintiffs contend that the
Government violated the Regulatory Flexibility Act, 5 U.S.C`_. §§ 601-612 (RFA), by issuing
l proposed and final critical habitat designations (the Proposed and Final Rule) under the
Endangered Species Act, 16 U.S. § 1531 et seq., Without conducting regulatory flexibility
analyses of the impact of the designation on small entities Compl. 12-1`3. In the _second, the
Plaintiffs argue that violating the RFA in turn violates the Administrative Procedure Act (APA),
5 U.S.C. § 706. Compl. 13. The Complaint seeks declaratory, injunctive, and other forms of -
relief. Id. 1 1-14. _After the Government moved to dismiss, ECF No. 11, l granted three
environmental groups leave to intervene as defendants, ECF No. 34, and-they also filed their own
Motion to Dismiss, ECF No. 36. The motions are fully briefed,` and the parties have
- supplemented the record With affidavits and documentary evidence. l
II. lLEGAL STANDARDS
The Defendants seek dismissal for lack of jurisdiction under Fed. R. Civ. P. lZ(b)(l), on
‘ standing and-ripeness grounds, and for failure to state a claim under Fed. R. Civ. P. lQ(b)(o). A
plaintiff bears the burden of establishing subject-matter jurisdiction fujan v. Defs. of Wildlz'fe,
t 504 U.S. 555, 561 (1992). “[G]eneral factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss We.presurn[e] that general allegations embrace
those specific facts that are necessary to support the claim.” lai (internal quotation,marks and
citations omiuedji “While the district court may consider materials outside the pleadings in _
deciding whether to grant a motion to dismiss for lack of jurisdiction . . . the court must still
l accept all of the factual allegations in [the] complaint as true.” -Jerome -Stevens Pharm., Inc. v.
Food &Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (intemal quotation marks and
citations omitted). Ultimately, the jurisdictional claims must be plausible, not speculative Tozzi
-v. U.S._Dep ’t ofHealth & Human Servs.i 271 F.3d 301,` 307 (D.C. Cir. 2001). l
To avoid dismissal under Fed. 'R. Civ. P. 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Iqbal,
556 U.S. at 678 (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). _“A claim
crosses from conceivable to plausible When it contains factual allegations that, if proved, Would
‘alloW the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”’ Banneker Venru_res, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration .
omitted) (quoting Iqbal, 556 U.S. at 678). A court must c‘dra-vv all reasonable inferences from l
' those allegations in the plaintist favor,” but not “assume the'truth of legal conclusions.” Id.
j III. ANALYSIS.
A. The Plaintiffs Have Largely Sa_tisfied Applicable Jurisdictional Standards
“Where, as here, -a plaintiff alleges that it Will suffer future economic harm as the result
of a government action, the complaint and declarations must together demonstrate a substantial
probabilityof injury-in-fact, causation, and redressability.” Carpenrers Indus. Council v. Zz`nke,
854 F.3d l, 5 (D.C. Cir. 2017).1- Even one dollar of “[e]conornic harm to a business clearly
constitutes an injury-in-fact.” Id. On the “more difficult question"’ of causation and the linked
' issue ofredressability, “common sense can be a useth tool.”_ Carpenters In`dus. Council, 854
F.3d at 5-6, & n.v -1. Although the Defendants dispute each prong? common sense is on the
Plaintiffs’ side, and I conclude that they have satisfied the motion to dismiss standards
-The Final Rule designates over 1.8 million acres as critical habitat, Compl. jl 1, identifies
“inappropriate grazing” as a threat to the'three amphibians, Gov. Mot. ‘Dismiss Ex. l (Final Rule)
nat 59065, and.creates a legal requirement that federal agencies consult With the U.S. Forest
Service to jointly “insure’? that federally-authorized activities (such as grazing) do not “result in
the destruction or adverse modification of [critical] habitat.” 16 U.S.C. § 1536(a)(2). The
f An organization has standing to raise a claim if even one of its members has .standing, Sierra
Club v. EPA, 754 F.3_d 995, 999 (D.C. Cir. 2014), and if at least one organization has standing, a
court “need not consider the standing of the other plaintiffs.” Mountain States Legal Found_ v.
_ Glickman, _92_ F.3d 1228, 1232'(D.C. Cir. 1996). n `
3
Plaintiffs allege that “a significant number of -CCA [California Cattlernen’s Associ`ation]
members have been impacted or stand to be impacte ” by this designation, because the land
“includes 59 active [U.S.] Forest Service [grazing] allotments . . . [with] significant overlap l
between . . . grazing permittees and CCA members.” Decl. of Kirk Wilbur, Opp. Ex. 1,‘ ECF No.
38-2 _(Wilber Decl.). I must credit the Plaintiffs’ general allegations at this stage. Lujan, 504
U.S. at 561. 7 n
The Defendants argue, among other things, that the Plaintiffs have failed to provide a
relevant example of actual or impending injury, and that the critical habitat designation Will only
marginally increase consulting requirements With no reduction to grazing rights But. the
Government is restricting land use on 1.8 million acres, citing potentially inappropriate grazing. _
The Plaintiffs use at least some of that land to “obtain” feed for their livestock, “a necessary raw
material.” Carpenrars Indus. Council, 854 F.3d at 6; Wilb'ur Decl. jj 12. And even when
consultations allow grazing permits to continue, associated delays and requirements impose
economic costs. Wilbur Decl. 2-5; Leinassar Decl. 2-6. Existing protections for these species
may have been extensive, but common sense tells me that a 1.8 million acre land'use rule will _
have some impact on ranchers and farmers who utilize the land. l find a “substantial probability”
(l) that this action will at least marginally decrease-the supply of feed, (2)'that the Plaintiffs
obtain feed from these lands, and (3) that the Plaintiffs will suffer at least one dollar of economic
harm as a result.` See Carpanters Indus. l Council,- 854 F.?)d-at 6.2 invalidating the Final Rule
would redress this harm.
3 The Plaintiffs have also shown the “imminent future injury” required for_injunctive relief
standing Swansor`z Grp. Mfg. LLC v. Jewei’l, 790 F.3d 235, 240 (D.C. Cir. 20-15) (“to shift[]
injury from conjectural to imminent, the [cornpanies] must show that there is a substantial . . .
probability of injury”) (internal quotation marks and citation omitted) (alterations original). _
4
The Plainti`ffs" claims are also ripe. Ripeness requires evaluation of “both the fitness of
the issues for judicial decision and the hardship to the parties of`_ withholding court
consideration.” Abbott Labomtorz'es v. Gardner, 387 U.S.'136, 149 (1987). “[F]itness of an
issue for judicial decision depends on [1] Whether it is purely legal, [2] whether consideration of
the issue would benefit from a more concrete setting, and [3] whether the agency’ s action is
sufficiently fina. ” Energy Future Coal v. EPA, 793 F. 3d 141, 146 (D. C. Circ. 2014) (quoting
Nat’l Assoc. of Home Builders v. Army Corps ofEngineers, 417 F.3d 1272-, 1281 (D.C. Cir.
2005)). The Defendants do not dispute that the issues here are purely legal, or that the Final Rule
is final, only whether the case “would be better litigated in the contest of a . . . consultation
resulting in a biological opinion that restricts members’ grazing allotments.” Gov. Mot. Dismiss
20. But the ultimate issue is'Whether the Government correctly reasoned that no RFA analyses
were required, because “only Federal action agencies will be directly regulated,” Compl. 10, and
thus the critical habitat designation “Will not . . . have a significant economic impact on a
' substantial number of small entities.” 5 U.S.C. § 605(b). This inquiry turns on whether private
parties like the Plaintiffs' are “directly regulated” within the meaning of the RFA, Mid-Tex Elec.
Co#op., Inc. v. F.E.R.C., 773 F.2dl327, 342 (D.C. Cir. 1985),' by a critical habitat designation `
triggering consultation requirements under 16 U.S._C. § 1536.' Because the legal issue has so
little to do with any particular injury, and the Plaintiffs provide at least one concrete example ofa
member using land designated as critical habitat-, Wilbur Decl. 1§ 12, additional concrete facts
would be of little benefit An'd I am satisfied that the hardships imposed on the Plaintiffs are
“sufficiently direct and immediate as to render the issue appropriate for judicial review at this
stage.” Abbotr- Labs, 387 U.S. at 153.
7,,The Defendant-lntervenors also claim that “Pla`intiffs’ [RFA] challenge . . . under 5-
U.S.C. § 603,” is not reviewable under the judicial review provisions in 5 U.S.C. § 61.1. Interv.
Mot. Dismiss 8. To the extent that the Plaintiffs invoke the Rl'"Arl alone to_test compliance with
Section 603, that claim must be dismissed for lack ofjurisdiction. Allied Local & Reg ’I_Mj?s.
Caucus v. EPA`, 215 F.3d 61, 79 (D.C. Cir. 2000) (“.Section 611(a) specifically lists the sections
of the -RFA subject to judicial review, and section 603 is not on the list”); see Cornpl. jljl 45-47.
However, l can consider compliance with Section 603 under APA arbitrary and capricious
_ review. Id.'(finding jurisdiction to “consider`[a Section 603 challenge] in determining whether .' w
EPA complied with the-overall requirement that an agency’s decisionmaking be neither arbitrary
nor capricious.”). l
B. The Plaintiffs Successfully State_ a Claim
The Defendants also argue that the Plaintiffs’ claims do not fall within the zone of
interests protected by the RFA, and therefore fail to satisfy Fed. R. Civ. P. 12(b)(6). Gov. Mot.
Dismiss 21~24; Def. lnterv. -Mot. Dismiss 8-1-0. ln this inquiry, a court must “apply traditional
principles of statutory interpretation” to determine “whether [the Plaintiffs] ha[ve] a cause of
action under the statute.”` Lexmark-Int’l, Inc. v. Statt'c Control Components, Inc., 134 S_.- Ct.
1377, 1387-88 (2014) (explaining that the term “‘prudential standing’ is `a misnomer as applied
to the zone-of-interests analysis, which asks whether “’this particular class of persons ha[s] a
right _to sue under this substantive st'atute.”’) (citatio_n omitted).- “[T]lie"zone of interests’ test is
not meant to be ‘especially demanding,”’ but to prevent suits when a “plaintif`f’s interests are so ,
marginally related to or inconsistent with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress`intended to permit the suit.” Ceinent Kiln Recyclr'ng Coali
l v. EPA, 255 F.3d 855, 871 (D.C. Cir. 2001) (citations omitted). In the context of an APA claim
that invokes another statute, a claim needs only to “arguably” fall within the underlying statute’s
zone of protected interests Id. at 1389.
_ The RFA provides a cause of action for “a small entity that is adversely affected or
aggrieved by final agency action.” 5 U.S.C. § 611. This Circuit has held that the RFA’s
requirements only apply to “small entities that Would be directly regulated”-by a challenged rule.
Mid~T ex Elec. Co-op., Inc., 773 F.2d at 342. The Plaintiffs represent numerous small livestock
operations that meet the RFA definition of “small entity,” -Compl. 111 5-8; see 5 U.S.C. § 601(3)-
- '(6), which the Defendants do not dispute 'Ihe Defendants contend that the Plaintiffs are not
“directly regulated” because the Final Rule requires consultation between federal agencies, and
nothing more. E.g. Gov. Mot. Dismiss 3-4, 23. But that argument understates the Final Rule’s`
impact. The Rule requires not just consultation, but consultation so that federal agencies
l “insure” that federally-authorized actions are not “likelylto . . . result in the destruction or
adverse modification of {critical] habitat.” 16 U.8.C. § 1536(a)(2). If a consulting agency
determines that one of the Plaintiffs’ grazing permits is “likely to . . . result in [] destruction or-
adverse modification” of critical habitat, then the designation itself operates to forbid the
offending permit. Ia'. ln other words, any effects felt by this Final Rule will be direct effects, as
federal agencies determine what the critical habitat designation requires in specific cases l
This is not a case where the Govemment is regulating private entities, with impacts felt
by other entities outside the RFA’s zone of interests that_then seek to challenge the rulemaking
` Cf Mt'd-Tex Elec. Co-op.', Inc., 773 F.2d at330, 342-343 (“petitioners . . . are wholesale
customers of . . . utilities whose wholesale rates are regulated by the Federal Energy Regulatory
Cornmission”); Cemem‘ Ki`ln Recycling Coal., 255 F.3d at 869 (“EPA’s rule regulates hazardous
waste combustors`, not waste generators [like plaintiff]'.”); Permapost P_rod., Inc. v. McHugh, 55
F. Supp. 3d 14, 20 (D.D.C. 2014) (“plai`ntiffs do not allege . . . that they are directly regulated,”
and it is their “custorners” and “'clients”' who are subject to the applicable requirements). Rather,
this is a Final Rule that requires one federal agency to consult with another federal agency about
the Final Rule’s impact on land use, although-the ultimate impact of these consultations will be
felt by small entities like the Plaintiffs and their members Indeed, the Final Rule was
promulgated by the U.S. Fish and Wildlife Service under statutory authority granted to Interior
Secretary Zinke, who also oversees the National Park Service, one of the agencies ordered to
consult with the Fish and Wildlife Service about implementation of the Final Rule on parkland. _
Defendant Zinke may not avoid the requirements of the RFA by passing the condu'ctor’s baton
from his right-hand to his left. The D.C. Circuit has never held that the involvement of multiple
federal agencies breaks the chain of RFA causation, and indeed it would run contrary to the
RFA’s' design if one component of the Department of the lnterior could escape the requirement
that “the agency . . . prepare a regulatory flexibility analysis” for a “iinal rule,” 5 U.S.C. §`604,
by simply“ordering a sister agency to implement the rule on its behalf l3ecause the Plaintiffs
seem to be “precisely the type of entities Congress had iri-mind when it passed the RFA,” N.
Carolina Fz'S/ieries Ass ’n, Irtc. v. Gutierrez, 518 F. _Supp. 2d 62, 84 (D.D.C. 2007), l conclude
that both the RFA and the APA counts survive
lv. CoNcLusIoN
Under binding precedent, on a motion to dismiss l must “presum[e] that general
allegations embrace those specific facts that are necessary to support [a] cl-aim,” Lujan, 504 U.S.
at 561-, and “accept[] [factual allegations] as true.” Iqbal, 556 U-.S. at 678. Under these -
forgiving standards the Government’s Motion to Dismiss Will be denied without prejudice, and '
the Defendant-Intervenor‘s Motion to Dismiss will'be granted as to the Complaint’s 5 U.S.C. §
603l claim, but otherwise denied without prejudice A separate order will issue.
Dated: May 29, 2018 _ n TREVOR N deFA1313EN
United States District Judge