Case 4:22-cv-00286-LAB Document 1 Filed 06/23/22 Page 1 of 16
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`Camila Cossío (OR Bar No. 191504)
`Center for Biological Diversity
`P.O. Box 11374
`Portland, OR 97211
`Phone: (971) 717-6727
`ccossio@biologicaldiversity.org
`Pro Hac Vice Admission Pending
`
`Brian Segee (Cal. Bar No. 200795)
`Center for Biological Diversity
`660 S. Figueroa Street, Suite 1000
`Los Angeles, CA 90017
`Phone (805) 750-8852
`bsegee@biologicaldiversity.org
`Pro Hac Vice Admission Pending
`
`Attorneys for Plaintiff
`
`
`
`Center for Biological Diversity, a
`non-profit organization,
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`TUCSON DIVISION
`
`
`Case No.: _____________
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`
`
`
`
`U.S. Fish and Wildlife Service; Deb
`Haaland, in her official capacity as
`Secretary of the Interior,
`
`
`Defendants.
`
`INTRODUCTION
`1.
`Plaintiff Center for Biological Diversity (“Center”) challenges the
`unlawful decision of the U.S. Fish and Wildlife Service (“Service”) to deny Endangered
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`Complaint for Declaratory and Injunctive Relief
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`Case 4:22-cv-00286-LAB Document 1 Filed 06/23/22 Page 2 of 16
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`Species Act (“ESA”) protections to the Tucson shovel-nosed snake (Chionactis annulate
`klauberi).
`2.
`The Tucson shovel-nosed snake is striking in appearance, characterized by
`alternating black-and-red stripes over its cream-colored body. Shovel-nosed snakes are
`well-known habitat specialists, largely to entirely restricted to sand and sandy loam
`substrates on valley floors, and the Tucson shovel-nosed snake is uniquely adapted to
`swim through sandy soils using its spade-shaped snout.
`3.
`The Tucson shovel-nosed snake’s range is geographically restricted to
`northwestern and east-central Maricopa County, Pinal County, and if the species can still
`be found, northeastern Pima County. A preeminent expert estimated that that the species
`has already lost 39 percent of its historic habitat to agriculture and urban development.
`Nearly all of its remaining habitat is unprotected and vulnerable to development.
`4.
`The Center first petitioned to list the Tucson shovel-nosed snake in 2004.
`In 2010, the Service found that listing was warranted, and that the entire remaining range
`of the species was in the path of future development. 75 Fed. Reg. 16,058 (March 31,
`2010). However, in 2014, the Service reversed course and concluded that the Tucson
`shovel-nosed snake does not warrant protection. 79 Fed. Reg. 56,731 (September 23,
`2014).
`5.
`In March 2015, a preeminent expert on the species, the late Dr. Phil Rosen,
`sent the Service a letter identifying 5 fundamental problems with the agency’s not
`warranted determination: 1) the Tucson shovel-nosed snake is a habitat specialist, not a
`habitat generalist; 2) the Tucson shovel-nosed snake has experienced severe population
`declines in the core of its range; 3) the Tucson shovel-nosed snake is vulnerable to
`habitat destruction;4) the agency overestimated the local distribution of the Tucson
`shovel-nosed snake; and 5) the agency’s assumed extent and shape of the Tucson
`shovel-nosed snake’s range is arbitrarily large and inconsistent with the best available
`scientific information.
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`6.
`In 2020, the Center submitted a second listing petition, which incorporated
`the Rosen 2015 letter, as well as a peer-reviewed, 2020 study co-authored by Dr. Rosen,
`and other new scientific information.
`7.
`In 2021, the Service—at the very first step of the listing process—made a
`threshold “90-day finding” that the Center’s 2020 petition failed to present substantial
`information indicating that the listing “may be warranted.” 86 Fed. Reg. 53,941 (Sept.
`29, 2021).
`8.
`The Service’s 90-day finding is arbitrary and capricious in several
`respects. The Service uniformly ignored and refused to address this extensive new
`scientific information directly contradicting the agency’s findings regarding the Tucson
`shovel-nosed snake’s habitat preference, conservation status, and range. The Service’s
`negative 90-day finding also failed to acknowledge new information regarding the
`continued and foreseeable threats to the species from urbanization and roads, agriculture,
`and climate change. Instead, the Service repeats its previous findings and wrongly
`concludes that it already analyzed these threats.
`9.
`The Center brings this lawsuit for declaratory and injunctive relief, seeking
`an Order declaring that the Service is in violation of the ESA and APA, vacating the
`negative 90-day finding, and ordering the Service to undertake a species status review
`immediately, and to issue a 12-month determination within one year of the entry of
`judgment.
`
`JURISDICTION AND VENUE
`10.
`This Court has jurisdiction over this action pursuant to 16 U.S.C. §
`1540(c), (g) (ESA citizen suit provision) and 28 U.S.C. § 1331 (federal question). This
`Court has authority to issue declaratory and injunctive relief pursuant to the ESA, 16
`U.S.C. § 1540(g); 28 U.S.C. §§ 2201-2202; and 5 U.S.C. § 706(2).
`11.
`Plaintiff provided Defendants with 60-days’ notice of the ESA violation,
`as required by 16 U.S.C. § 1540(g)(2)(A), by a letter to the Service dated January 3,
`2022 (received January 10, 2022). Defendants have not remedied the violations set out
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`in the notices and an actual controversy exists between the parties within the meaning of
`the Declaratory Judgment Act, 28 U.S.C. § 2201.
`12. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because
`Plaintiff resides in this judicial district and a substantial part of the violations of law by
`Defendants occurred in this district.
`
`PARTIES
`13.
`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY is a national, non-
`profit conservation organization that works through science, law, and policy to protect
`imperiled wildlife and their habitat. The Center is headquartered in Tucson, Arizona,
`with offices throughout the United States, and an office in Mexico. The Center has more
`than 81,000 active members throughout the country.
`14.
`The Center brings this action on behalf of its organization, and its staff and
`members who derive ecological, recreational, aesthetic, educational, scientific,
`professional, and other benefits from the Tucson shovel-nosed snake, and its Sonoran
`Desert habitat. The Center’s headquarters are in Pima County, within the Tucson shovel-
`nosed snake’s range, and its members and staff live near and/or regularly visit areas
`where Tucson shovel-nosed snakes are known or believed to exist, in hopes of viewing
`this increasingly elusive and rare species.
`15. Center member Noah Greenwald, Director for the Center for Biological
`Diversity’s Endangered Species Program, has concrete plans to search for the snake in
`October 2022. He was the lead author for two federal ESA petitions to list the Tucson
`shovel-nosed snake and has worked on projects to protect the species from various
`threats. He cares deeply about the conservation of this unique species in the wild.
`Ongoing threats from rampant development and the threats of the escalating climate
`crisis on the future existence of this lizard and its habitat harm his interests in the
`species.
`16.
`The Center’s members have been, are being, and will continue to be
`adversely harmed by the Service’s unlawful determination that the Center’s 2020 listing
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`petition failed to present substantial information indicating that listing the Tucson
`shovel-nosed snake as a threatened or endangered species may be warranted, and its
`failure to afford the species the protections of the Act. The injuries described are actual,
`concrete injuries presently suffered by the Center and its members, and they will
`continue to occur unless this Court grants relief. The relief sought herein—including an
`Order vacating the 90-day finding and ordering the Service to undertake a species status
`review immediately, and to issue a 12-month determination within one year of the entry
`of judgment—would redress those harms. The Center and its members have no other
`adequate remedy at law.
`17. Defendant U.S. FISH AND WILDLIFE SERVICE is the agency within
`the Department of the Interior charged with implementing the ESA for the species at
`issue in this suit. The Secretary of the Interior has delegated administration of the ESA
`to the Service. 50 C.F.R. § 402.01(b).
`18. Defendant DEB HAALAND is the Secretary of the U.S. Department of the
`Interior and has the ultimate responsibility to administer and implement the provisions of
`the ESA. Defendant Haaland is sued in her official capacity.
`STATUTORY FRAMEWORK
`The Endangered Species Act
`19.
`The Endangered Species Act, 16 U.S.C. §§ 1531–1544, is “the most
`comprehensive legislation for the preservation of endangered species ever enacted by
`any nation.” TVA v. Hill, 437 U.S. 153, 180 (1978). Its fundamental purposes are “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).
`20.
`The ESA’s substantive protections generally apply only once the Service
`lists a species as threatened or endangered. For example, section 7 of the ESA requires
`all federal agencies to ensure that their actions do not “jeopardize the continued
`existence” of any listed species or “result in the destruction or adverse modification” of a
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`species’ “critical habitat.” Id. § 1536(a)(2). Section 9 of the ESA prohibits, among other
`things, “any person” from intentionally taking listed species, or incidentally taking listed
`species, without a lawful authorization from the Service. Id. §§ 1538(a)(1)(B), 1539.
`Other provisions require the Service to designate “critical habitat” for listed species, id.
`§ 1533(a)(3); to “develop and implement” recovery plans for listed species, id. §
`1533(f); authorize the Service to acquire land for the protection of listed species, id. §
`1534; and authorize the Service to make federal funds available to states to assist in its
`efforts to preserve and protect threatened and endangered species, id. § 1535(d).
`21.
`The ESA defines a “species” as “any subspecies of fish or wildlife or
`plants, and any distinct population segment of any species of vertebrate fish or wildlife
`which interbreeds when mature.” Id. § 1532(16). A species is “endangered” when it “is
`in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. §
`1532(6). A species is “threatened” when it is “likely to become an endangered species
`within the foreseeable future throughout all or a significant portion of its range.” Id. §
`1532(20).
`22.
`The ESA requires the Service to determine whether any species is
`endangered or threatened because of any of the following factors: (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 (E) other
`natural or manmade factors affecting its continued existence. Id. § 1533(a)(1).
`23.
`If a species meets the definition of “endangered” or “threatened” because
`of any one or a combination of these five factors, the Service must list the species. Id.;
`50 C.F.R. § 424.11(c). In evaluating these factors, the Service must make listing
`determinations “solely on the basis of the best scientific and commercial data available.”
`16 U.S.C. § 1533(b)(1)(A).
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`24. Congress set forth a detailed process whereby citizens may petition the
`Service to list a species as endangered or threatened. In response, the Service must
`publish a series of three decisions according to statutory deadlines.
`25.
`First, within 90 days of receipt of a listing petition, the Service must, “to
`the maximum extent practicable,” publish an initial finding as to whether the petition
`“presents substantial scientific or commercial information indicating that the petitioned
`action may be warranted.” Id. § 1533(b)(3)(A). This is known as the “90-day finding.”
`26.
`The 90-day finding is a threshold review of an ESA listing petition. In
`making a 90-day finding, “substantial information” is “that amount of information that
`would lead a reasonable person to believe that the measure proposed in the petition may
`be warranted.” 50 C.F.R. § 424.14(b)(1). In the specific situation where the Service has
`issued a decision on a previous petition to list a species, substantial information is
`generally limited to “new information not previously considered.” 50 C.F.R. §
`424.14(h)(iii).
`27.
`If the Service finds in the 90-day finding that the petition does not present
`substantial information indicating that listing may be warranted, as it did in this case, the
`Service makes a decision to reject the petition and the process concludes.
`28.
`If the Service instead determines that a petition does present substantial
`information indicating that listing “may be warranted,” the agency must publish that
`finding and proceed with a scientific review of the species’ status, known as a “status
`review.” § 1533(b)(3)(A).
`29. Upon completing the status review, and within 12 months of receiving the
`petition, the Service must publish a “12-month finding” with one of three listing
`determinations: (1) listing is “warranted”; (2) listing is “not warranted”; or (3) listing is
`“warranted but precluded” by other proposals for listing species, provided certain
`circumstances are met. § 1533(b)(3)(B).
`30.
`If the Service determines that listing is “warranted,” the agency must
`publish that finding in the Federal Register along with the text of a proposed regulation
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`to list the species as endangered or threatened and take public comments on the proposed
`listing rule. Id. § 1533(b)(3)(B)(ii).
`31. Within one year of publication of the proposed listing rule, the Service
`must publish a final listing rule in the Federal Register. Id. § 1533(b)(6)(A).
`Administrative Procedure Act
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`32.
`The APA provides the standard of review in lawsuits challenging the
`Service’s ESA listing decisions. Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d
`1015, 1023 (9th Cir. 2011).
`33. Under the APA’s standard, a court must hold unlawful and set aside
`“agency actions found to be ‘arbitrary, capricious, an abuse of discretion, or otherwise
`not in accordance with law.’” Id. (quoting 5 U.S.C. § 706(2)(A)).
`34. An agency’s rule is arbitrary and capricious if the agency, “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
`Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
`FACTUAL BACKGROUND
`The Tucson Shovel-nosed Snake and Threats to its Continued Existence
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`35.
`The Tucson shovel-nosed snake is a small, beautiful snake that depends on
`specific habitat requirements, including flat, sandy soils found on level terrain of valley
`floors. It has a long, slender, and slick body that is adapted to swim through soils using
`its spade-shaped snout, a unique behavior known as sand swimming.
`36.
`The Tucson shovel-nosed snake is endemic to just three counties in the
`upper Sonoran Desert of south-central Arizona: Pima, Pinal, and Maricopa. These
`counties include Phoenix and Tucson, and they are experiencing some of the most rapid
`development in the country: Arizona’s population is projected to more than double from
`almost 6 ½ million in 2010 to more than 14 million by 2050. Rosen and Bradley (2020)
`estimate that at least 39 percent of the snake’s habitat has been destroyed by
`development and roads driven by rapid urban expansion of Tucson and Phoenix, as well
`as agricultural conversion.
`37.
`The large majority of the snake’s remaining habitat remains unprotected,
`while rapid urbanization and other development within its range is expected to continue.
`The Tucson shovel-nosed snake is also vulnerable to additional threats, including
`industrial solar development, wildfires, climate change, and drought.
`2004 Listing Petition
`38.
`The Center submitted a petition to list the Tucson shovel-nosed snake on
`December 15, 2004. On July 29, 2008, the Service issued a positive 90-day finding on
`the Center’s petition, determining that protection of the species may be warranted under
`the ESA. 73 Fed. Reg. 43,907. Specifically, the Service found the Center’s petition
`“provides substantial information to support the claim that agricultural and urban
`development present direct and indirect threats to the Sonoran Desert scrub habitat upon
`which the Tucson shovel-nosed snake currently depends.” Id. at 43,908. The Service
`found that the Center’s claims regarding loss and degradation of Tucson shovel-nosed
`snake habitat “relating to threats from agricultural and urban development are credible
`and substantial” and that existing regulatory mechanisms on state and private lands were
`inadequate to conserve the snake. Id.
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`39. Moreover, the Service noted the expertise of Dr. Rosen, the herpetologist
`the Center worked with in drafting its petition. The Service stated that Dr. Rosen studied
`shovel-nosed snakes for over 17 years, authored articles on the snake, and, among other
`notable achievements in the study of the species, “[Rosen] has been instrumental in
`various aspects of conservation of reptiles and amphibians in the southwestern United
`States.” Id.
`40. On March 31, 2010, the Service issued its 12-month finding, determining
`that listing was warranted based on the snake’s “limited geographic distribution” and its
`finding that because the snake’s “entire range lies within the path of future
`development,” it is likely to become in danger of extinction within the foreseeable
`future. 75 Fed. Reg. 16,058.
`41. However, instead of protecting the snake, the Service determined that
`ESA-protections were precluded by higher priority listings and placed it on the candidate
`list. Id. A candidate species is one that qualifies for protection as an endangered or
`threatened species, yet it receives no protection while it waits—often for years—for the
`Service to promulgate a regulation listing the species as endangered or threatened. The
`Service subsequently reaffirmed the need for listing the Tucson shovel-nosed snake,
`reconfirming its status as a candidate species in 2011, 2012, and 2013. 76 Fed. Reg.
`66,396 (October 26, 2011); 77 Fed. Reg. 70,018 (November 21, 2012); 78 Fed. Reg.
`70,123 (November 22, 2013).
`42. On September 9, 2011, the Center reached a settlement with the Service
`requiring the agency to make overdue decisions on 757 species, including the Tucson
`shovel-nosed snake. In Re Endangered Species Act Section 4 Deadline Litigation, Case
`No. 1:10-mc-00377-EGS (Docket No. 42-1). Under the settlement agreement, the
`Service was required to issue a proposed listing rule or not warranted determination for
`the species by the end of Fiscal Year 2014.
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`2014 Species Status Assessment and Not-Warranted Determination
`43.
`In 2014, the Service completed a Species Status Assessment (“SSA”) to
`inform its required decision regarding the Tucson shovel-nosed snake. In the SSA, the
`Service relied heavily upon a genetic study that at that time was in press (Wood et al.
`2014) to expansively redraw and expand the species’ range. See, e.g., SSA p. 49 (“Based
`on recent genetic work . . . the range of the Tucson shovel-nosed snake is substantially
`larger than previously thought.”). The SSA also presented a new and inaccurate
`characterization of the species as a habitat generalist.
`44. Based upon its incorrect description of the Tucson shovel-nosed snake as a
`habitat generalist with a much larger range than previously believed, the SSA concluded
`“that the current condition of the Tucson shovel-nosed snake, range wide, is more than
`adequate for what the subspecies need to maintain long term viability.” (p. 49)
`45. Based on the SSA findings, rather than issuing a proposed listing rule, the
`Service reversed course from its many prior determinations, since 2010, that the Tucson
`shovel-nosed snake warranted ESA protections due to the species dire status and grave
`threats, and instead issued a not-warranted determination. 79 Fed. Reg. 56,731
`(September 23, 2014).
`Rosen 2015 Letter
`46. Dr. Phil Rosen, a preeminent expert on the species, and who the Service
`itself identified as “instrumental” in the conservation of Southwestern species, wrote the
`Service on March 16, 2015, to identify “five problems with the agency’s ‘not warranted’
`finding and the SSA Report.” As detailed in that letter, these five problems are: (1) the
`Tucson shovel-nosed snake, like all members of the C. occipitalis complex, are habitat
`specialists, not generalists as stated by the Service; (2) the Tucson shovel-nosed snake
`has experienced severe population declines and extirpation in the core of its genetic
`distribution, including the loss of the Avra Valley population, contradicting statements
`by the Service; (3) the Tucson shovel-nosed snake is vulnerable to habitat fragmentation;
`(4) the Service’s habitat model overestimates the distributional boundaries of the taxon;
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`and (5) “most critically,” the Service’s assumed extent and shape of the Tucson shovel-
`nosed snake’s range is arbitrarily large, and inconsistent with the key source referenced
`(Wood et al. 2014). Based on these errors, Dr. Rosen recommended that the Service re-
`evaluate the status of the species based on a “narrower” and “geographically restricted”
`concept of the taxon.
`2020 Habitat and Conservation Status Study
`47. Dr. Rosen also co-authored a peer-reviewed study on the habitat and
`conservation status of the Tucson shovel-nosed snake published in 2020 (Bradley and
`Rosen 2020). This study found that the model used by the Service in its 2014 not-
`warranted determination yielded an estimated area of suitable habitat 2.4 times greater
`than the authors’ estimates. The authors identified several reasons for the Service’s
`overestimation of habitat in their model.
`48.
`First, the Service’s model only includes two habitat variables, elevation
`and land cover, and neglects to include slope, which is an important variable because the
`snake is known to inhabit valley bottoms and not steep hillsides.
`49.
`Second, the Service’s model includes areas of up to 1,500 meters (4,921
`feet) in elevation, which is over twice the maximum elevation for any Tucson shovel-
`nosed snake record within Arizona.
`50.
`Third, the Service relied on land cover to predict habitat. The authors
`found that variable to be lacking because climate variables that included precipitation
`and temperature performed better at predicting the snake’s habitat.
`51.
`Finally, the authors noted that the Service’s model relied on snake
`observations in La Paz County that were presumed to be Tucson shovel-nosed snakes
`based on limited DNA and morphological evidence. The Service’s inclusion of these
`questionable records greatly expanded their range boundary for the species to the west,
`whereas the authors used a preponderance of evidence approach to determine the
`observations used in their model.
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`Complaint for Declaratory and Injunctive Relief
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`Case 4:22-cv-00286-LAB Document 1 Filed 06/23/22 Page 13 of 16
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`52.
`The study also noted that the Service failed to address the species’
`extirpation in Avra Valley and corresponding range reduction in its 2014 not-warranted
`determination. Further studies have determined that the snake has also become rare in
`the Scottsdale, Florence, and Casa Grande regions. Finally, the study found 60 percent
`less habitat available to the snake compared to the Service’s model, not including habitat
`that has already been rendered unsuitable due to urbanization and agricultural
`conversion. The study concludes by noting that the remaining habitat available to the
`Tucson shovel-nosed snake are typical sitings for solar energy fields and are rapidly
`being urbanized. Id.
`2020 Listing Petition
`53. On September 24, 2020, the Center submitted a new petition to list the
`Tucson shovel-nosed snake as threatened or endangered under the ESA. The 2020
`Petition incorporates the Rosen 2015 letter, Bradley and Rosen 2020 habitat and
`conservation status study, as well as new information regarding habitat threats not
`previously considered by the Service in its 2014 not warranted determination. As
`detailed in the 2020 Petition, this previously unconsidered new information shows that
`the Service’s 2014 decision adopted an overly expansive definition of the Tucson
`shovel-nosed snake’s range based on an erroneous interpretation of the genetics study
`(Wood et al. 2004), as well as other errors.
`54.
`The new petition also presented information making clear the Service had
`misinterpreted Wood et al. (2014) to conclude that the Tucson shovel-nosed snake’s
`range was considerably larger than previously known, noting that the study specifically
`identified northwestern Maricopa County as the limit of the snake’s range (Petition at 7)
`and does not include Yavapai, Yuma, and La Paz Counties as claimed in the Service’s
`2014 not-warranted finding. 79 Fed. Reg. 56,732. In the 2021 negative 90-day finding,
`the Service did not refute this conclusion or explain its reason for relying on Wood et al.
`(2014) to reach a conclusion directly contradicted by the study itself.
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`Case 4:22-cv-00286-LAB Document 1 Filed 06/23/22 Page 14 of 16
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`2021 Negative 90-Day Finding
`55. On September 29, 2021, the Service issued its negative 90-day finding,
`determining that the 2020 Petition did not “present substantial scientific or commercial
`information” or any “new information not previously considered” that would indicate
`listing the Tucson shovel-nosed snake may be warranted. 86 Fed. Reg. 53,937.
`
`CLAIM FOR RELIEF
`Violation of the ESA and APA in Determining that the Center’s Petition
`Did Not Present Substantial Information that Listing the
` Tucson Shovel-Nosed Snake May Be Warranted
`56.
`Plaintiff re-alleges and incorporates all allegations set forth in the
`preceding paragraphs.
`57.
`The Service’s 90-day finding that the Center’s Petition did not present
`substantial information that listing the Tucson shovel-nosed snake may be warranted is
`unlawful. Under the 90-day “reasonable person” standard, in cases involving
`contradictory evidence, the Service must defer to information that supports the
`petitioner’s position. 50 C.F.R. § 424.14(b)(1). Here, the Service failed to address
`extensive new scientific information not previously considered regarding the Tucson
`shovel-nosed snake’s habitat and conservation status, including the detailed critique
`contained in the Rosen 2015 letter and the 2020 study (which was in press at the time the
`2020 Petition was submitted). This new information contradicts several fundamental
`aspects of the Service’s negative 90-day finding, including the agency’s findings
`regarding the size of the species’ range, its habitat preferences, and the extent of its
`population declines.
`58.
`The Service did not evaluate the new information, however. Instead, the
`negative 90-day finding mischaracterizes the 2020 Petition, stating that the agency
`“stand[s] by our previous determination that genetic analysis is a better scientific method
`than color patterns for determining which subspecies a shovel-nosed snake belongs to.”
`86 Fed. Reg. at 53,941. The Center, however, has never argued that color patterns are
`superior to genetic analysis in determining taxonomy. The 2020 Petition makes no such
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`Complaint for Declaratory and Injunctive Relief
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`Case 4:22-cv-00286-LAB Document 1 Filed 06/23/22 Page 15 of 16
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`argument, nor does the Rosen 2015 letter, 2020 study, or any of the other new
`information. The Service failed to adequately address the substantial amount of
`contradictory scientific information undermining its 2014 not-warranted determination,
`or to explain why it believed that new information was unreliable or otherwise wrong.
`59.
`Even if the Service had evaluated it, this new information regarding the
`snake’s conservation status and habitat easily meets the low threshold for 90-day “may
`be warranted” determinations. At the 90-day stage, the question is not whether the
`designation is warranted, only whether it may be. Where there is a disagreement among
`reasonable scientists, the Service must make the “may be warranted” finding and move
`to the more detailed consideration required at the 12-month stage.
`60.
`The Service’s negative 90-day finding contained additional errors,
`including a failure to acknowledge new information and data regarding the continued
`and foreseeable threats to the species from urbanization and roads, agriculture, and
`climate change. Instead, the Service repeats its previous findings and wrongly concludes
`that these threats were already analyzed.
`61.
`The Service’s finding also arbitrarily dismisses several additional elements
`of the 2020 Petition, including the threats of disease and commercial trade.
`62. By ignoring the new scientific information provided with the Center’s
`listing petition, the Service’s 90-day finding also violates the ESA’s substantive mandate
`to make listing determinations “solely on the basis of the best scientific and commercial
`data available.” 16 U.S.C. § 1533(b)(1)(A).
`REQUEST FOR RELIEF
`WHEREFORE, Plaintiff respectfully requests that the Court enter judgment
`providing the following relief:
`1. Declare that the Service’s 90-day finding violates the ESA and the APA, 5
`U.S.C. §§ 701-706;
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`Complaint for Declaratory and Injunctive Relief
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`Case 4:2