Case 2:21-cv-08660-CAS-AFM Document 1 Filed 11/03/21 Page 1 of 13 Page ID #:1
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`
`Camila Cossio (OR Bar No. 191504)
`Center for Biological Diversity
`P.O. Box 11375
`Portland, OR 97211
`Phone: (971) 717-6727
`ccossio@biologicaldiversity.org
`pro hac vice admission pending
`
`Brian Segee (Bar No. 200795)
`Center for Biological Diversity
`660 S. Figueroa St. Suite 1100
`Los Angeles, CA 90017
`Phone: (805) 750-8852
`bsegee@biologicaldiversity.org
`
`Attorneys for Plaintiff
`
`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
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`
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`CENTER FOR BIOLOGICAL
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`DIVERSITY,
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`U.S. FISH AND WILDLIFE
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`SERVICE; MARTHA WILLIAMS, in
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`her official capacity as Principal Deputy
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`Director of the U.S. Fish and Wildlife
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`Service; and DEB HAALAND, in her
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`official capacity as Secretary of the U.S.
`)
`Department of the Interior,
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`
`)
`)
`)
`)
`)
`)
`
`Plaintiff,
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`v.
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`
`Case No. 2:21-cv-08660
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`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
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`Defendants.
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`Case 2:21-cv-08660-CAS-AFM Document 1 Filed 11/03/21 Page 2 of 13 Page ID #:2
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`INTRODUCTION
`1.
`Plaintiff Center for Biological Diversity (“Center”) brings this case
`challenging the U.S. Fish and Wildlife Service’s (“Service”) failure to determine
`whether the Santa Ana speckled dace (Rhinichthys osculus ssp.) and the Long
`Valley speckled dace (Rhinichthys osculus ssp.) warrant protection as endangered
`or threatened species, in violation of the Endangered Species Act’s (“ESA” or
`“Act”) nondiscretionary, congressionally mandated deadlines. 16 U.S.C. §
`1533(b)(3). The agency’s failure delays crucial, lifesaving protections for these
`imperiled fish, increasing their risk of extinction.
`2.
`The Santa Ana speckled dace is a tiny fish endemic to a handful of
`southern California river systems. It is found nowhere else on earth. Due to the
`widespread destruction of their native habitat, Santa Ana speckled dace now
`occupy only remnants of their historical range and are largely restricted to
`headwater tributaries. The Santa Ana speckled dace is at risk of extinction due to
`multiple significant threats, including urban development, impacts from dams,
`and climate change.
`3.
`The Long Valley speckled dace is a tiny fish endemic to the Long
`Valley volcanic caldera, east of Mammoth Lakes, in Mono County, California.
`Long Valley speckled dace are adapted to spring habitats. They have largely
`disappeared from suitable habitats, including Hot Creek, Little Alkali Lake, and
`various isolated springs and ponds in Long Valley. The Long Valley speckled
`dace is at risk of extinction due to multiple significant threats, including urban
`development, impacts from river channelization, and climate change.
`4.
`The Center brings this lawsuit for declaratory and injunctive relief,
`seeking an Order declaring that the Service is in violation of the ESA by failing to
`make required 12-month findings and directing the Service to publish their
`overdue 12-month listing determinations for the Santa Ana speckled dace and
`Long Valley speckled dace by a date certain.
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`Case 2:21-cv-08660-CAS-AFM Document 1 Filed 11/03/21 Page 3 of 13 Page ID #:3
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`JURISDICTION
`5.
`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).
`6.
`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 July 19, 2021 (Santa Ana speckled dace notice) and a letter to the Service
`dated July 30, 2021 (Long Valley speckled dace notice). Defendants have not
`remedied the violations set out in the notices and an actual controversy exits
`between the parties within the meaning of the Declaratory Judgment Act, 28
`U.S.C. § 2201.
`7.
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e)
`because Defendants reside in this judicial district and a substantial part of the
`violations of law by Defendants occurred in this district.
`PARTIES
`8.
`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 incorporated in
`California and headquartered in Tucson, Arizona, with offices throughout the
`United States, including in Washington, D.C. The Center has more than 81,000
`active members throughout the country, including approximately 18,765
`members in California, where the historic and remaining habitats of the Santa
`Ana and Long Valley speckled dace are found.
`9.
`The Center and its members have deep and long-standing interests in
`the preservation and recovery of imperiled species, including the Santa Ana and
`Long Valley speckled daces and their habitats, and in the full and effective
`implementation of the ESA. The Center’s members include individuals with
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`scientific, professional, educational, recreational, aesthetic, moral, and spiritual
`interests in the Santa Ana and Long Valley speckled daces, and who use the
`habitat of these species for a broad range of reasons. Plaintiff’s interests in
`protecting and recovering these species are directly harmed by the Service’s
`failure to issue timely 12-month findings on the petitions to list the Santa Ana
`speckled dace and the Long Valley speckled dace.
`10. The Center’s members include individuals who regularly visit areas
`that are occupied or were formerly occupied by Santa Ana and Long Valley
`speckled dace and seek to observe or study these fish in their natural habitat.
`Plaintiff’s members derive recreational, spiritual, professional, scientific,
`educational, and aesthetic benefit from these activities, and intend to continue to
`use and enjoy these areas in the future.
`11. For example, Center member Ileene Anderson, Deserts Director and
`Senior Scientist for the Center’s Urban Wildlands Program, visits the Santa Ana
`speckled dace’s habitat for professional projects and spends time in the area for
`personal and recreational reasons. She regularly visits the Santa Ana speckled
`dace’s habitat within the upper Santa Ana River watershed, including the streams
`and tributaries of this watershed. Most recently, she looked for Santa Ana
`speckled dace at Lytle Creek and the Tujunga Wash stream in Los Angeles. She
`enjoys visiting the Angeles and San Bernardino National Forests and looking for
`Santa Ana speckled dace in the streams and creeks of these forests.
`12. Center member Ileene Anderson also cares deeply about the Long
`Valley speckled dace and often looks for them in the wild. Most recently, in
`October 2021, she was performing field work in the Long Valley area and looked
`for the Long Valley speckled dace along the Hot Creek geological site. She was
`unable to find any dace, which caused her worry and stress regarding the future of
`the species and the impact its extirpation has on her professional goals and
`projects in the Long Valley area.
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`13. The above-described interests of the Center’s members in these
`species and their habitat depends upon their conservation in the wild. Yet, unless
`they are promptly listed under the ESA, the Santa Ana and Long Valley speckled
`dace will remain unprotected by the Act and may go extinct. Accordingly, the
`Center submitted petitions to the Service to extend the substantive protections of
`the ESA by listing these species as “endangered” or “threatened.” Defendants’
`failure to comply with their nondiscretionary duties under the ESA deprives the
`Santa Ana and Long Valley speckled dace of statutory protections that are
`necessary for their survival and recovery.
`14. The Center and its members are injured by Defendants’ failure to
`publish timely 12-month findings. Defendants’ failure to act has delayed the
`application of the ESA’s protections to the Santa Ana and Long Valley speckled
`dace, making the conservation of these species more difficult. These injuries are
`actual, concrete injuries that are presently suffered by the Center’s members, are
`directly caused by Defendants’ acts and omissions, and will continue unless the
`Court grants relief. The relief sought would redress these injuries. The Center and
`its members have no adequate remedy at law.
`15. 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).
`16. Defendant MARTHA WILLIAMS is the Principal Deputy Director
`of the U.S. Fish and Wildlife Service and is charged with ensuring that agency
`decisions comply with the ESA. Defendant Williams is sued in her official
`capacity.
`17. 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.
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`STATUTORY FRAMEWORK
`The Endangered Species Act
`18. 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).
`19. The ESA has a suite of substantive and procedural legal protections
`that apply to species once they are listed as endangered or threatened. Id. §
`1532(16) (defining “species”). For example, section 4(a)(3) of the Act requires
`the Service to designate “critical habitat” for each endangered and threatened
`species. Id. § 1533(a)(3).
`20.
`In addition, ESA section 7(a)(2) requires all federal agencies to
`ensure that their actions do not “jeopardize the continued existence” of any
`endangered or threatened species or “result in the destruction or adverse
`modification” of any listed species’ critical habitat.” Id. §1536(a)(2).
`21. ESA section 9 prohibits, among other actions, “any person” from
`causing the “take” of any protected fish or wildlife without lawful authorization
`from the Service. Id. §§ 1538(a)(1)(B), 1539; see also id. § 1532(19) (defining
`“take”). Other provisions require the Service 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 the conservation of endangered
`and threatened species, id. § 1535(d).
`22. 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
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`wildlife which interbreeds when mature.” Id. § 1532(16). A “distinct population
`segment” of a species is also known as a “DPS.” When considering whether a
`population segment qualifies as a DPS under the Act, Service policy requires the
`agency to determine whether the population is “discrete” and “significant.” If the
`Service determines that a population segment is both discrete and significant, then
`the population qualifies as a DPS and meets the ESA’s definition of a “species”
`that may be classified as threatened or endangered.
`23. 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).
`24. 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).
`25. To ensure the timely protection of species at risk of extinction,
`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. 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.” If the Service finds in the 90-day finding that the petition does not
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`present substantial information indicating that listing may be warranted, the
`petition is rejected and the process concludes.
`26.
`If, as in this case, the Service 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.” Id.
`27. 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 m et. Id. § 1533(b)(3)(B). This
`is known as a listing determination.
`28.
`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 to list the species as endangered or threatened and take public
`comments on the proposed listing rule. Id. § 1533(b)(3)(B)(ii).
`29. Within one year of publication of the proposed listing rule, the
`Service must publish in the Federal Register the final rule implementing its
`determination to list the species. Id. § 1533(b)(6)(A). This is known as a “final
`listing rule.”
`30.
`If the Service finds there is substantial disagreement regarding the
`sufficiency or accuracy of the available data relevant to a listing determination,
`the Service may extend this one-year period by six months to solicit additional
`data. Id. § 1533(b)(6)(B)(i). However, before the expiration of that six months,
`the Service must publish either a final regulation or a notice of withdrawal. Id. §
`1533(b)(6)(B)(ii)-(iii).
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`FACTUAL BACKGROUND
`Santa Ana Speckled Dace
`31. The Santa Ana speckled dace is a small, freshwater fish. Historically,
`it was distributed throughout several river systems in Southern California,
`including the Santa Ana, Los Angeles, San Gabriel, and San Yacinto Rivers.
`32. Today, the Santa Ana speckled dace only occupies remnants of its
`historical range. Santa Ana speckled dace have been eliminated from most of the
`Los Angeles River basin, including tributaries Little Tujunga Creek, Pacoima
`Creek, and Santa Anita Canyon Creek. They have also disappeared from most of
`the Santa Ana River basin, including the middle reaches of the Santa Ana River,
`and tributaries Mill Creek, East Twin Creek, Santiago Creek, Silverado Canyon,
`Harding Canyon, and San Antonio Creek. Speckled dace no longer live in the San
`Jacinto River, South Fork San Jacinto River, or tributaries Herkey Creek and
`Strawberry Creek.
`33. Santa Ana dace are threatened by dams, reservoirs, and water
`diversions because these systems lead to stream diversions that isolate them.
`There are seven dams and numerous water-diversion facilities on the Southern
`California rivers where the dace lives. Dams and diversions both deplete stream
`flows and isolate fish populations. Reservoirs and dams also favor introduced
`species that prey upon and compete with dace.
`34. Other threats include river channelization and other flood control
`measures that harm the species migration patterns, urbanization, roads, runoff
`from agriculture into speckled dace habitat, mining, pollution, and climate
`change.
`35. Santa Ana speckled dace remain in small, fragmented populations in
`only about one-fourth of their historical range and are restricted mainly to
`headwater tributaries within national forests.
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`Long Valley Speckled Dace
`36. The Long Valley speckled dace is a small, freshwater fish.
`Historically, it was found within the Long Valley volcanic caldera east of
`Mammoth Lakes in Mono County, including in Hot Creek and isolated springs
`and ponds.
`37. Today, the Long Valley speckled dace only occupies remnants of its
`historical range. The last remaining population found within its native range, in
`Whitmore Hot Springs, has disappeared, based on survey results conducted in
`2019 that failed to locate any dace. This former habitat has been developed and is
`now a recreational swimming pool.
`38. Long Valley speckled dace are threatened by geothermal energy
`development; dams and water diversions, especially surface water diversions;
`habitat alteration, including recreational development of their water sources and
`habitat, urban development, and rural development; livestock grazing; disease;
`predation; and climate change.
`39. Long Valley speckled dace may now be extirpated from the wild.
`They appear to only exist in a refugium managed by the California Department of
`Fish and Wildlife Service.
`Listing Petition and Response
`40. Due to these threats and others, on May 11, 2020, the Center
`petitioned the Service to list the Santa Ana speckled dace as threatened or
`endangered under the ESA. At the request of the Service, the Center submitted
`supplemental support for the Santa Ana petition on May 18, 2020. On June 8,
`2020, the Center also petitioned to list the Long Valley speckled dace as
`threatened or endangered under the ESA.
`41. On June 17, 2021, the Service issued a positive 90-day finding that
`the petition to list the Santa Ana speckled dace presented “substantial scientific or
`commercial information indicating that the petitioned actions may be warranted.”
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`Specifically, the Service found that the species may be a distinct population
`segment and that listing may be warranted due to various human-induced threats.
`86 Fed. Reg. 32,241-32,243 (June 17, 2021). Some of the threats the Service
`included in their 90-day finding are threats from: dams, reservoirs, water
`diversions, barriers to migration and movement, roads, pollution, mining,
`concentrated recreational use, off-road vehicle use, predation, drought, wildfires,
`flooding, introduced species, climate change, and population fragmentation.
`Further, the Service found that the petition presented “substantial scientific or
`commercial information indicating that existing regulatory mechanisms may be
`inadequate to fully ameliorate the identified threat.” Id.
`42. Although Defendants issued a 90-day finding, they had a mandatory
`duty to publish their 12-month finding by May 11, 2021. Until Defendants
`publish the legally required 12-month listing determination and final listing rule,
`the Santa Ana speckled dace will continue to lack necessary protections under the
`ESA.
`
`43. On September 29, 2021, the Service issued a positive 90-day finding
`that the petition to list the Long Valley speckled dace presented “substantial
`scientific or commercial information indicating that the petitioned actions may be
`warranted.” Specifically, the Service found that the Long Valley speckled dace
`may warrant endangered species listing due to various threats. 86 Fed. Reg.
`53,937.
`44. Although Defendants issued a 90-day finding, they had a mandatory
`duty to publish their 12-month finding by June 8, 2021. Until Defendants publish
`the legally required 12-month listing determination and final listing rule, the Long
`Valley speckled dace will continue to lack necessary protections under the ESA.
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`CLAIMS FOR RELIEF
`Violation of the ESA for Failure to Publish a Timely 12-Month Listing
`Determination for the Santa Ana speckled dace
`45. Plaintiff re-alleges and incorporates all allegations set forth in the
`preceding paragraphs.
`46.
`If, as in this case, the Service finds that listing may be warranted, the
`ESA requires the Service to publish a “12-month finding” with a listing
`determination within one year of receiving a listing petition. Defendants failed to
`perform their nondiscretionary duty to publish a timely 12-month listing
`determination on the petition to list the Santa Ana speckled dace as endangered or
`threatened, in violation of the ESA. 16 U.S.C. § 1533(b)(3)(B).
`Violation of the ESA for Failure to Publish a Timely 12-Month Listing
`Determination for the Long Valley speckled dace
`47. Plaintiff re-alleges and incorporates all allegations set forth in the
`preceding paragraphs.
`48.
`If, as in this case, the Service finds that listing may be warranted, the
`ESA requires the Service to publish a “12-month finding” with a listing
`determination within one year of receiving a listing petition. Defendants failed to
`perform their nondiscretionary duty to publish a timely 12-month listing
`determination on the petition to list the Long Valley speckled dace as endangered
`or threatened, in violation of the ESA. 16 U.S.C. § 1533(b)(3)(B).
`REQUEST FOR RELIEF
`WHEREFORE, Plaintiff respectfully requests that the Court enter
`judgment providing the following relief:
`1. Declare that Defendants have violated the ESA by failing to issue a
`timely 12-month listing determination in response to the petitions to
`list the Santa Ana speckled dace and Long Valley speckled dace;
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`2. Provide injunctive relief compelling Defendants to publish in the
`Federal Register 12-month listing determinations on the petitions to
`list the Santa Ana speckled dace and Long Valley speckled dace by a
`date certain;
`3. Retain continuing jurisdiction to review Defendants’ compliance
`with all judgments and orders herein;
`4. Grant Plaintiff its reasonable attorneys’ fees and costs as provided by
`the ESA, 16 U.S.C. § 1540(g)(4); and
`5. Provide such other relief as the Court deems just and proper.
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`Respectfully submitted and dated this 2nd day of November, 2021.
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`/s/ Camila Cossío
`Camila Cossio (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
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`/s/ Brian Segee
`Brian Segee (Cal. Bar No. 200795)
`Center for Biological Diversity
`660 S. Figueroa Street, Suite 1000
`Los Angeles, CA 90017
`tel: (805) 750-8852
`bsegee@biologicaldiversity.org
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`Attorneys for Plaintiff
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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