Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 1 of 32
`
`
`Michael R. Lozeau (CA State Bar No. 142893)
`Brian B. Flynn (CA State Bar No. 314005)
`LOZEAU DRURY LLP
`1939 Harrison Street, Suite 150
`Oakland, CA 94612
`Tel: (510) 836-4200
`Fax: (510) 836-4205
`E-mail: michael@lozeaudrury.com
`brian@lozeaudrury.com
`
`
`M. Benjamin Eichenberg (CA State Bar No. 270893)
`SAN FRANCISCO BAYKEEPER
`1736 Franklin Street, Suite 800
`Oakland, CA 94612
`Tel: (510) 735-9700
`Fax: (510) 735-9160
`E-mail: ben@baykeeper.org
`
`Attorneys for Plaintiff
`SAN FRANCISCO BAYKEEPER
`
`
`UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`OAKLAND DIVISION
`
`
`SAN FRANCISCO BAYKEEPER, a non-profit
`corporation,
`
`
`
`Civil No.
`
`
`
`COMPLAINT FOR DECLARATORY AND
`INJUNCTIVE RELIEF
`
`(Administrative Procedure Act, Endangered
`Species Act)
`
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
` Plaintiff,
`v.
`
`UNITED STATES FISH AND WILDLIFE
`SERVICE, a United States Government Agency;
`MARTHA WILLIAMS, in her official capacity
`as Acting Director of U.S. Fish and Wildlife
`Service; and DEB HAALAND, in her official
`capacity as Secretary of the U.S. Department of
`the Interior;
`
` Defendants.
`
`29
` COMPLAINT
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 2 of 32
`
`
`
`Plaintiff SAN FRANCISCO BAYKEEPER (“Baykeeper”), by and through its counsel, alleges
`
`as follows:
`
`INTRODUCTION
`
`1.
`
`Baykeeper brings this action for declaratory and injunctive relief against the UNITED
`
`STATES FISH AND WILDLIFE SERVICE (“Service”), MARTHA WILLIAMS in her official
`
`capacity as Acting Director of U.S. Fish and Wildlife Service, and DEB HAALAND in her official
`
`capacity as U.S. Secretary of the Interior, (collectively, “Defendants”) pursuant to the judicial review
`
`provision of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 and 16 U.S.C.
`
`1533(B)(3)(C)(ii).
`
`2.
`
`Baykeeper seeks a declaratory judgment, injunctive relief, and the award of costs,
`
`including reasonable attorneys’ fees, for Defendants’ determinations in the Service’s most recent
`
`Candidate Notice of Review published on November 16, 2020 (“2020 CNOR”), 85 Fed. Reg. 73164-
`
`73179, that the Longfin Smelt (Spirinchus thaleichthys) (San Francisco Bay-Delta distinct vertebrate
`
`population segment) (“Longfin Smelt DPS”) warranted listing as either an endangered or threatened
`
`species under the Endangered Species Act (“ESA”) but (1) that listing of the Longfin Smelt DPS was
`
`precluded by higher priority listing actions and (2) that expeditious progress is being made by the
`
`Service to add or remove species from the endangered and threatened species lists.
`
`3.
`
`The Longfin Smelt DPS is on the brink of extinction. The Service has recognized the
`
`dire plight of the Longfin Smelt DPS since 2012 when, after several years of litigation, the agency
`
`determined that listing was warranted. However, beginning in 2012 and carrying forward through the
`
`2020 CNOR, Defendants have claimed that listing the Longfin Smelt DPS has been precluded by other
`
`pending listing proposals. As a result, the Longfin Smelt DPS has languished on the Service’s listing
`
`candidate list for almost a decade. During that time, none of the safeguards and protections afforded
`
`listed species under ESA have been brought to bear on the dramatic social and environmental forces
`
`that continue to drive the Longfin Smelt’s slide toward extinction.
`
`4.
`
`Beginning in 2016, the Service has announced its intention to complete the listing
`
`process for the Longfin Smelt DPS by specific fiscal years. As each of those fiscal years has come and
`
` COMPLAINT
`
`
`
`1
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 3 of 32
`
`
`
`gone, the Service has repeatedly pushed off completing the listing. In its 2016 Workplan, the Service
`
`scheduled the listing to be completed by FY 2019. In its 2019 Workplan, the Service indicated it
`
`would finish the Longfin Smelt listing by FY 2020 and included the work in its budget at that time.
`
`However, in 2020, its workplan pushed off the listing for another two years until FY 2022. Given the
`
`Service’s budgeting and rulemaking priority for the Longfin Smelt, the Service has failed to show how
`
`other higher priority listings could have caused the most recent delay.
`
`5.
`
`Nor can the delay in listing the Longfin Smelt be justified by the required showing
`
`under ESA that the Service is making expeditious progress in adding qualified species to the
`
`endangered and threatened lists or removing successfully protected species. Instead, over the last four
`
`years, the average number of species for which final listing actions were completed by the Service has
`
`dropped precipitously by over 80 percent from the preceding five-year period. The average number of
`
`species for which the Service has issued 90-day findings on petitions for listing has dropped by over
`
`90 percent during those same time periods. Looking at the rate of all species-specific listing actions,
`
`the number of actions between 2017 and 2020 dramatically declined by over 77 percent. Slower
`
`progress is not expeditious progress.
`
`6.
`
`By arbitrarily delaying the listing of the Longfin Smelt, Defendants are denying the
`
`Longfin Smelt the only protections capable of counteracting the powerful interests arrayed against this
`
`critically endangered fish. Whether the Longfin Smelt will be extirpated from the San Francisco Bay
`
`Estuary is directly related to whether various resource agencies will be required to allow sufficient
`
`water flows through the Sacramento-San Joaquin River Delta. As long as Defendants continue to
`
`arbitrarily delay adding the Longfin Smelt to the threatened or endangered lists, the powerful entities
`
`and interests that are diverting and diminishing the Smelt’s aquatic habitat will continue to also drive
`
`the Longfin Smelt further towards extermination.
`
`7.
`
`Plaintiff Baykeeper brings this lawsuit to challenge Defendants’ unjustified delay in
`
`providing the full protections of ESA to the Longfin Smelt.
`
`
`
` COMPLAINT
`
`
`
`
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 4 of 32
`
`
`
`JURISDICTION AND VENUE
`
`8.
`
`This action is brought pursuant to the APA, 5 U.S.C. §§ 701-706. This Court has
`
`jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 2201 (declaratory relief).
`
`9.
`
`Venue is proper in the Northern District of California pursuant to 28 U.S.C. § 1391(e)
`
`as Baykeeper is incorporated in California and its headquarters are located within the district,
`
`Baykeeper’s members reside in this district, and no real property is involved in this action.
`
`INTRADISTRICT ASSIGNMENT
`
`10.
`
`Intradistrict assignment of this matter to the Oakland Division of the Court is
`
`appropriate pursuant to Civil Local Rule 3-2(e) because the events or omissions which give rise to
`
`Baykeeper’s claims occurred in Alameda County.
`
`PARTIES
`
`11.
`
`Plaintiff SAN FRANCISCO BAYKEEPER is a non-profit public benefit corporation
`
`organized under the laws of the State of California with its office located at 1736 Franklin Street, Suite
`
`800, Oakland, California, 94612.
`
`12.
`
`Baykeeper has approximately 5,000 members and supporters who live and/or recreate
`
`in and around the San Francisco Bay area. Baykeeper’s mission is to defend San Francisco Bay from
`
`the biggest threats and hold polluters and government agencies accountable to create healthier
`
`communities and help wildlife thrive. Baykeeper patrols on the water, investigates and stops polluters,
`
`and strengthens laws that protect the Bay. Baykeeper is dedicated to preserving, protecting, and
`
`defending the environment, wildlife, and natural resources of San Francisco Bay and its tributaries for
`
`the benefit of its ecosystems and communities. Baykeeper furthers its goals through education,
`
`advocacy, restoration, and directly initiates enforcement of environmental laws on behalf of itself and
`
`its members.
`
`13.
`
`Baykeeper and its members are concerned with, and have concrete interests in, the
`
`conservation of imperiled species, including the Longfin Smelt DPS.
`
`14.
`
`On behalf of itself and its members, Baykeeper has an interest in the effective
`
`implementation of the ESA and the timely listing of endangered or threatened species, including the
`
` COMPLAINT
`
`
`
`
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 5 of 32
`
`timely listing of imperiled species for which listing petitions have been submitted.
`
`15.
`
`Baykeeper’s members include citizens, taxpayers, property owners, and residents, with
`
`recreational, educational, scientific, conservation, aesthetic, and/or spiritual interests in the species at
`
`issue in this suit and are similarly interested in the health of these species’ habitat.
`
`16.
`
`The interests of Baykeeper and its members in the Longfin Smelt DPS and its habitat
`
`are dependent upon the persistence of healthy and sustainable populations of the species in the wild.
`
`Unless the Longfin Smelt DPS is promptly protected under the ESA, it will continue to decline and
`
`likely will go extinct. Thus, the interests of Baykeeper’s members have been, are being, and will
`
`continue to be adversely affected by Defendants’ failure to protect the Longfin Smelt DPS under the
`
`ESA.
`
`17.
`
`Defendants’ failure to protect the Longfin Smelt DPS under the ESA is also subverting
`
`Baykeeper’s core mission to protect the Bay and its wildlife. As a consequence of Defendant’s
`
`unlawful delay in protecting Longfin Smelt, Baykeeper has been compelled to expend resources
`
`(exclusive of this litigation) on alternative means of protecting the species, which has diverted time
`
`and resources that could and would have been spent on other activities that are central to Baykeeper’s
`
`mission.
`
`18.
`
`Continuing commission of the acts and omissions alleged herein will irreparably harm
`
`Baykeeper and one or more of its members, for which harm they have no plain, speedy or adequate
`
`remedy at law.
`
`19.
`
`Baykeeper has one or more members who use, explore, research, and recreate in areas
`
`impacted by the Longfin Smelt DPS decision herein at issue and could sue in their own right.
`
`Baykeeper’s members are suffering recreational, aesthetic, scientific, conservational, or other
`
`environmental injuries due to Defendants’ unlawful decision and delay in adding the Longfin Smelt
`
`to the ESA’s endangered or threatened species list. Baykeeper has one or more members that
`
`endeavor to observe Longfin Smelt and have ongoing interests in the species and its habitat.
`
`Baykeeper has one or more members who have concrete plans to visit these species’ habitats and try
`
`to observe them. Defendants’ actions have harmed and continue to harm Baykeeper’s members’
`
`interests in observing,
`
` COMPLAINT
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 6 of 32
`
`
`
`studying, and otherwise enjoying the species and their habitats. Baykeeper’s injuries-in-fact are fairly
`
`traceable to Defendants’ conduct and would be redressed by the requested relief.
`
`20.
`
`Defendant U.S. FISH AND WILDLIFE SERVICE is an agency of the U.S. Department
`
`of the Interior, charged by the U.S. Department of the Interior with administering the ESA with respect
`
`to listing threatened and endangered plant and animal species.
`
`21.
`
`Defendant MARTHA WILLIAMS is the Principal Deputy Director of the U.S. Fish
`
`and Wildlife Service, the agency within the Department of the Interior that is charged with
`
`implementing the ESA for the species at issue in this suit. Deputy Director Williams is designated to
`
`exercise the delegable authority of the Director. The Secretary has delegated administration of the
`
`ESA to the Service. 50 C.F.R. § 402.01(b). The prior Director signed the 2020 CNOR. Acting Director
`
`Williams is sued in her official capacity.
`
`22.
`
`Defendant DEB HAALAND is the Secretary of the Department of the Interior and is
`
`the federal official in whom the ESA vests final responsibility for making decisions and promulgating
`
`regulations required by and in accordance with the ESA, including listing decisions. Secretary Haaland
`
`is sued in her official capacity.
`
`LEGAL BACKGROUND
`
`The Endangered Species Act
`
`23.
`
`The ESA is a comprehensive federal statute declaring that endangered and threatened
`
`species are of “esthetic, ecological, educational, historical, recreational, and scientific value to the
`
`Nation and its people.” 16 U.S.C. § 1531(a)(3). The purpose of the ESA is 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.” Id. § 1531(b).
`
`24. When enacting the ESA, Congress declared that “all Federal departments and agencies
`
`shall seek to conserve endangered species and threatened species and shall utilize their authorities in
`
`furtherance of the purposes of this Act.” 16 U.S.C § 1531(c)(1). Congress further specifically
`
`mandated that the Secretary “review other programs administered by him and utilize such programs in
`
` COMPLAINT
`
`
`
`
`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 7 of 32
`
`
`
`furtherance of the purposes of this Act.” Id. § 1536(a)(1).
`
`25.
`
`The ESA has a suite of substantive legal protections that apply to “species,” 16 U.S.C §
`
`1532(16) (defining “species”), once they are listed as endangered or threatened. For example, 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). ESA section 9 prohibits, among
`
`other actions, “any person” from “taking” protected animals without 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); 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 in order to assist in the
`
`conservation of endangered and threatened species, id. § 1535(d).
`
`Listing Species as Endangered or Threatened Under the ESA
`
`26.
`
`Section 4 of the ESA requires that the Service list species as “endangered” or
`
`“threatened” if one or more of five listing factors is met—such as the present or threatened destruction
`
`of habitat—based on the best available science. 16 U.S.C § 1533(a)(1), (b)(1)(A). “The term
`
`‘endangered species’ means any species which is in danger of extinction throughout all or a significant
`
`portion of its range[,]” id. § 1532(6), while “[t]he term ‘threatened species’ means any species which
`
`is likely to become an endangered species within the foreseeable future throughout all or a significant
`
`portion of its range.” Id. § 1532(20).
`
`27.
`
`To ensure that listing decisions are timely, Section 4 of the ESA sets forth a detailed
`
`process and timetable whereby interested persons may petition the Service to list a species as
`
`endangered or threatened. This process includes nondiscretionary deadlines that require the Service to
`
`make up to three decisions in response to listing petitions within prescribed time frames. These three
`
`findings, described below, are the 90-day finding, the 12-month finding, and the final listing
`
`determination. 16 U.S.C § 1533(b)(3)-(6).
`
`28. Within 90 days of receipt of a listing petition, the Service must, “to the maximum
`
` COMPLAINT
`
`
`
`
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 8 of 32
`
`
`
`extent practicable,” make an initial finding as to whether the petition “presents substantial scientific or
`
`commercial information indicating that the petitioned action may be warranted.” 16 U.S.C. §
`
`1533(b)(3)(A).
`
`29.
`
`If the Service determines in this “90-day finding” that the petition does not present
`
`substantial information indicating that listing may be warranted, the petition is denied and the process
`
`concludes.
`
`30.
`
`If 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, which is known as a “status review.” 16 U.S.C. § 1533(b)(3)(A).
`
`31.
`
`Upon completion of the status review, and within one year from the date that it receives
`
`the petition, the Service must make a “12-month finding” with one of three determinations: (1) listing
`
`is “warranted”; (2) listing is “not warranted”; or (3) listing is “warranted but precluded.” 16 U.S.C §
`
`1533(b)(3)(B).
`
`32. When the Service determines that a listing is “warranted but precluded,” the Service
`
`must find (1) that the listing “is precluded by pending proposals to determine whether any species is an
`
`endangered species or a threatened species” and (2) that “expeditious progress is being made to add
`
`qualified species . . . and to remove from such lists species for which the protections of this chapter are
`
`no longer necessary.” 16 U.S.C § 1533(b)(3)(B)(iii). “[T]he Secretary shall promptly publish such
`
`finding in the Federal Register, together with a description and evaluation of the reasons and data on
`
`which the finding is based.” Id.
`
`33.
`
`“The Secretary may make a ‘warranted but precluded’ finding only in narrow
`
`circumstances.” Wildwest Institute v. Kurth, 855 F.3d 995, 1005 (9th Cir. 2017). The warranted action
`
`“must be precluded by pending proposals and expeditious progress must be being made to list
`
`qualified species and delist those for whom ESA’s protections are no longer necessary.” Ctr. for
`
`Biological Diversity v. Kempthorne, 466 F.3d 1098, 1102 (9th Cir. 2006) (emphasis in original); see
`
`also 16 U.S.C. § 1533(b)(3)(B)(iii). The Service “must show that [it] is ‘actively working on other
`
`listings and delistings and must determine and publish a finding that such work has resulted in pending
`
` COMPLAINT
`
`
`
`
`
`7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 9 of 32
`
`
`
`proposals which actually preclude[ ] [the Service] proposing the petitioned action at that time.’ ” Ctr.
`
`for Biological Diversity v. Norton, 254 F.3d 833, 838 (9th Cir. 2001) (“Gila Chub”) (emphasis in
`
`original) (quoting H.R. Rep. No. 97-835, at 22 (1982) (Conf. Rep.)); see also Wildwest Institute, 855
`
`F.3d at 1008; Kempthorne, 466 F.3d at 1102. The Service must “determine and present evidence that
`
`[it] is, in fact, making expeditious progress in the process of listing and delisting other species.” Gila
`
`Chub, 254 F.3d at 838 (quoting H. Rep. No. 97-835 at 22); see also Wildwest Institute, 855 F.3d at
`
`1008; Kempthorne, 466 F.3d at 1102. “In cases challenging the Secretary’s claim of inability to
`
`propose an otherwise warranted petitioned action, the court will, in essence, be called on to separate
`
`justifications grounded in the purposes of the act from the foot-dragging efforts of a delinquent
`
`agency.” H. Rep. No. 97-835, at 22.
`
`34.
`
`If the Service determines that a petition to list a species is “warranted but precluded” by
`
`other “pending proposals to determine whether any species” is endangered or threatened, the petition
`
`must “be treated as a petition that is resubmitted to the [Service] . . . on the date of such finding.” 16
`
`U.S.C. § 1533(b)(3)(C)(i). Hence, the ESA requires the Service to make a new determination within
`
`one year as to whether the species should be listed or instead may again be denied the Act’s
`
`protections on the grounds that its listing is “precluded” by other pending listing actions. Id. The
`
`Service commonly refers to new findings on previously filed petitions as “recycled petition findings,”
`
`and they are included in a “Candidate Notice of Review” (“CNOR”) published approximately
`
`annually by the Service.
`
`35.
`
`The ESA provides that any “warranted but precluded” finding “shall be subject to
`
`judicial review.” 16 U.S.C. § 1533(b)(3)(C)(ii).
`
`36.
`
`Although the Service acknowledges that listing all candidates is warranted based on the
`
`best available data—i.e., such species need the protections of the Act to avoid near- or long-term
`
`extinction—candidates that are not listed do not receive the extensive safeguards of the ESA.
`
`Judicial Review under the APA
`
`37.
`
`The APA governs judicial review of a “warranted but precluded” determination made
`
`pursuant to ESA, 16 U.S.C § 1533(b)(3)(B)(iii). The APA provides a right of judicial review to
`
` COMPLAINT
`
`
`
`
`
`8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 10 of 32
`
`persons “adversely affected or aggrieved by an agency action within the meaning of a relevant
`
`statute[.]” 5 U.S.C. § 702.
`
`38.
`
`Under the APA, an agency action is invalid if it is “arbitrary, capricious, an abuse of
`
`discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Arbitrary and capricious
`
`review under the APA requires a court to determine “whether the agency considered the relevant
`
`factors and articulated a rational connection between the facts found and the choice made.” Pac. Coast
`
`Fed’n of Fishermen’s Ass’n, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001)
`
`(internal quotations omitted).
`
`FACTUAL BACKGROUND
`
`The Longfin Smelt
`
`39.
`
`The Longfin Smelt is a semi-anadromous fish found in Pacific Coast bay, estuary, and
`
`nearshore coastal environments, from San Francisco Bay north to Cook Inlet, in south-central Alaska.
`
`The San Francisco Bay Estuary (“Estuary”) supports the largest Longfin Smelt population in
`
`California, which is also a distinct population segment, and the species is a key part of the estuarine
`
`food web. Longfin Smelt were once one of the most abundant open-water fishes in the Estuary and
`
`were fished commercially. In recent years, the species’ numbers have plummeted to record lows in the
`
`Estuary, and it is thought to be extirpated or nearing extirpation in other Northern California estuaries.
`
`40.
`
`Catastrophic declines in the Longfin Smelt population have been caused by poor
`
`management of the Estuary by Federal and State water regulators, which have allowed excessive water
`
`diversions and drastically reduced freshwater flow into San Francisco Bay. During the 1987-1992
`
`drought, which coincided with a period of relatively large water diversions and exports from the
`
`Estuary and its watershed, Longfin Smelt abundance declined dramatically, reaching historically low
`
`levels in the early 1990s. The species partially recovered during the mid-to-late 1990s, when
`
`hydrological conditions improved, but the population decline resumed when dry conditions and
`
`increased water diversions prevailed during the early part of this century. The Estuary’s Longfin Smelt
`
`population reached a record low in 2015. Longfin Smelt abundance in 2020 (the most recent year of
`
`sampling) was less than 0.1 percent of the levels detected when sampling began in 1967, and the
`
` COMPLAINT
`
`9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 11 of 32
`
`
`
`population has declined approximately 80 percent since it was listed as threatened by the State of
`
`California in 2009.
`
`41.
`
`Longfin Smelt population abundance in the Estuary is directly related to the amount of
`
`fresh water flowing out of the Delta (a.k.a., Delta outflow) during the winter and spring. In years when
`
`winter and spring flows are high, Longfin Smelt have better juvenile recruitment success and relatively
`
`high population abundance, as measured later in the year, while low winter-spring flows strongly
`
`correspond to declines in abundance. Longfin Smelt are about to be extirpated from the Estuary, and
`
`the only thing that will save the species is quick, decisive action to keep enough water flowing out of
`
`the Delta to allow the smelt to survive.
`
`Delays by the Service to List the Longfin Smelt as Endangered or Threatened
`
`42.
`
`In November 1992, San Francisco Baykeeper and seven other organizations filed the
`
`original petition requesting the Service to list the Longfin Smelt DPS. On June 24, 1993, the Service
`
`published a 90-day finding that the petition presented substantial information indicating that the
`
`requested action may be warranted and triggering a formal status review for the Longfin Smelt. 58
`
`Fed. Reg. 36184 (July 6, 1993). The Service then concluded that the Longfin Smelt DPS was not a
`
`distinct population segment and the original petition was ultimately denied.
`
`43.
`
`In 2007, several organizations petitioned the Service to list the Longfin Smelt DPS as
`
`endangered under the federal ESA. Initially, the Service responded by denying federal protection to
`
`the Longfin Smelt DPS while promising to look at the status of the species as a whole.
`
`44.
`
`In 2009, several organizations sued the Service for its denial, and in 2011, the Service
`
`announced it would rethink its decision on the Longfin Smelt DPS.
`
`45.
`
`In 2012, the Service determined that the Longfin Smelt DPS was a distinct population
`
`segment and that protection of this population was warranted but listing was precluded because the
`
`listing of other species was a higher priority. 77 Fed. Reg. 19756 (Apr. 2, 2012). Thus, the Service
`
`added the Longfin Smelt DPS to the “candidate” list.
`
`46.
`
`Since 2012, the Longfin Smelt DPS has remained on the candidate list. The Service has
`
`taken no further action to reconsider or move the listing forward. Instead, the Service has repeatedly
`
` COMPLAINT
`
`
`
`
`
`10
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 12 of 32
`
`
`
`found, in every year, that protection of the Longfin Smelt DPS is warranted under the ESA, but (1)
`
`that such protection is precluded by other pending listing determinations and (2) that the Service is
`
`making expeditious progress to add or remove other species from the lists.
`
`47.
`
`In September 2016, the Service released its National Listing Workplan (“2016
`
`Workplan”) for the subsequent seven-year period. The 2016 Workplan identified the Longfin Smelt
`
`DPS as one of 11 candidate species for listing that would either be proposed for listing or found not
`
`warranted for listing during FY 2019.
`
`48.
`
`In May 2019, the Service released its National Listing Workplan (“2019 Workplan”)
`
`for the subsequent five-year period. The 2019 Workplan indicated that 12-month findings for 62
`
`identified species would be completed by FY 2020. The Service failed to complete the 12-month
`
`findings in FY 2020 for 19 of those 62 species and instead has now further delayed them until FY
`
`2021 for 15 of those species and until FY 2022 for 4 of the species.
`
`49.
`
`The 2019 Workplan identified the Longfin Smelt DPS as one of 11 candidate species
`
`(“2020 Candidate Species”) for listing that would either be proposed for listing or found not warranted
`
`for listing during FY 2020.
`
`50.
`
`On November 6, 2019, the Service e-mailed a notice of status review to parties who had
`
`indicated an interest in the Longfin Smelt. The Service stated that it “has been gathering and analyzing
`
`available information about the Longfin Smelt DPS to assist us in making a listing determination.”
`
`The notice indicated that “[t]he Bay-Delta Fish and Wildlife Office is the lead field office working on
`
`the status review of the Longfin Smelt Bay-Delta DPS.” The notice further stated that, “[a]t this time,
`
`we expect the proposed listing rule will be delivered to the Federal Register no later than September
`
`2020.”
`
`51.
`
`On November 16, 2020, the Service published its Candidate Notice of Review (“2020
`
`CNOR”) to “present an updated list of domestic plant and animal species that [the Service] regard[s]
`
`as candidates for or have proposed for addition to the Lists of Endangered and Threatened Wildlife
`
`and Plants under the Endangered Species Act of 1973.” 85 Fed. Reg. 73164.
`
`52.
`
`The 2020 CNOR concluded that all eleven of the 2020 Candidate Species, including the
`
` COMPLAINT
`
`
`
`
`
`11
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:21-cv-02566-JCS Document 1 Filed 04/08/21 Page 13 of 32
`
`
`
`Longfin Smelt DPS, warranted protection under the ESA, but (1) that such protection was precluded
`
`by other pending listing determinations and (2) that the Service is making expeditious progress to add
`
`or remove other species from the lists.
`
`53.
`
`According to the 2020 CNOR, new proposed listing rules or not warranted findings
`
`remained incomplete as of September 30, 2020 for five of the 11 candidate species (45%), including
`
`the Longfin Smelt DPS, identified in the 2019 Workplan.
`
`54.
`
`The 2020 CNOR identified three of the above five species as “Candidates in Review”
`
`for which the Service has “funded these actions and intend[s] to complete [its] classification decision
`
`in the near future.” 85 Fed. Reg. 73175.
`
`55.
`
`The 2020 CNOR stated that the planned work for the Longfin Smelt DPS listing action
`
`was funded and initiated but not completed as of September 30, 2020. 85 Fed. Reg. 73171.
`
`56.
`
`The 2020 CNOR listed the following factors that the Service applied in determining
`
`whether a listing is warranted but precluded by other pending listing actions: “(1) The amount of
`
`resources available for completing the listing function, (2) the estimated cost of completing the
`
`proposed listing regulation, and (3) the Service’s workload, along with the Service’s prioritization of
`
`the proposed listing regulation, in relation to other actions in its workload.” 85 Fed. Reg. 731167.
`
`57.
`
`The 2020 CNOR did not explain—in general or in a focused discussion of the Longfin
`
`Smelt DPS—how the above factors affected the Service’s completion of a listing rule for the Longfin
`
`Smelt DPS given its placement on the 2019 Workplan and prior decisions by the Service to budget
`
`funds for such work.
`
`58.
`
`The 2020 CNOR discussed how “the amount of resources available for completing the
`
`listing function” supported preclusion by focusing on the Service’s overall budget for listing actions
`
`and its general insufficiency. 85 Fed. Reg. 73167. However, the 2020 CNOR did not explain how the
`
`Service’s overall budget precluded a listing rule for the Longfin Smelt, especially given that the
`
`Service funded the work for completion in FY 2020. The 2020 CNOR provided no evidence that
`
`budget restrictions precluded listing the Longfin Smelt DPS, which had previously been budgeted
`
`according to the 2020 CNOR and 2019 Workplan.
`
` COMPLAINT
`
`
`
`
`
`12
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`29
`
`30
`
`

`

`Case 3:2