Case 1:20-cv-02439 Document 1 Filed 09/01/20 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Case No: 1:20-cv-2439
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`CENTER FOR BIOLOGICAL DIVERSITY
` 378 Main Street
` Tucson, AZ 85701,
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`WILDEARTH GUARDIANS
` 301 N. Guadalupe Street, Suite 201
` Santa Fe, NM 87501, and
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`MIAMI WATERKEEPER
` 2103 Coral Way
` Miami, FL 33145,
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`Plaintiffs,
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` v.
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`WILBUR ROSS, Secretary of the
`U.S. Department of Commerce
` 1401 Constitution Ave., NW
` Washington, DC 20230,
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`CHRIS OLIVER, Assistant Administrator
`for Fisheries at the National Oceanic
`Atmospheric Administration
` 1315 East-West Highway
` Silver Spring, MD 20910, and
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`NATIONAL MARINE FISHERIES
`SERVICE
` 1315 East-West Highway
` Silver Spring, MD 20910,
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` Defendants.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`INTRODUCTION
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`1.
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`In this civil action for declaratory and injunctive relief, Plaintiffs Center for
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`Biological Diversity, WildEarth Guardians, and Miami Waterkeeper (collectively, Conservation
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`Organizations) challenge the National Marine Fisheries Service’s (Service) failure to comply
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`with the nondiscretionary deadlines set forth in Section 4 of the Endangered Species Act, 16
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`U.S.C. §§ 1531–1544.
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`2.
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`Specifically, the Service failed to designate critical habitat for the Nassau grouper
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`(Epinephelus striatus) concurrently with its decision to list the species as threatened or within
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`one additional year from the date of the proposed listing after making a “not determinable”
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`finding. Id. § 1533(a)(3), (b)(6)(A)(ii), (b)(6)(C). Nassau groupers, one of the largest coral reef
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`fish, form spawning aggregations that make them particularly vulnerable to overfishing. They
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`also face the loss of habitat, including from human activities affecting coastal mangroves,
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`seagrass beds, estuaries, and coral reefs.
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`3.
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`Nassau groupers are protected under the Endangered Species Act because they are
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`threatened by habitat loss from global warming, sea-level rise, ocean acidification, and loss of
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`structural habitat in coral reef ecosystems. Designated habitat would identify the most important
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`areas for Nassau groupers and prevent federal activities that would destroy them. The Nassau
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`grouper remains at risk until the Service fulfills its statutory duties to designate the critical
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`habitat necessary to support the grouper’s survival and recovery.
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`4.
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`To ensure that the Endangered Species Act can provide lifesaving protections for
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`the Nassau grouper, the Conservation Organizations bring this action for declaratory relief
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`against Wilbur Ross, in his official capacity as the Secretary of Commerce; Chris Oliver, in his
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`official capacity as Assistant Administrator for Fisheries at the National Oceanic Atmospheric
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`Administration Service; and the National Marine Fisheries Service (collectively, Defendants).
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`The Conservation Organizations ask this Court to find that the Defendants are in violation of the
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`Endangered Species Act for failing to timely designate critical habitat for the Nassau grouper
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`and order the Defendants to issue a rule designating critical habitat to safeguard the habitat the
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`species need to survive.
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`JURISDICTION AND VENUE
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`5.
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`The Conservation Organizations bring this action under the Endangered Species
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`Act, 16 U.S.C. §§ 1533, 1540(g). The Court has jurisdiction over this action under 28 U.S.C.
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`§ 1331 (federal question jurisdiction), 28 U.S.C. § 1346 (United States as a defendant), and 16
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`U.S.C. § 1540(g) (citizen suit provision of the Endangered Species Act).
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`6.
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`The relief sought is authorized under 28 U.S.C. § 2201 (declaratory relief), 28
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`U.S.C. § 2202 (injunctive relief), and 16 U.S.C. § 1540(g).
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`7.
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`The Conservation Organizations provided formal notice to the Defendants of their
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`intent to file suit under the Endangered Species Act on April 6, 2020, more than 60 days prior to
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`filing this complaint, consistent with the Endangered Species Act’s statutory requirements. 16
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`U.S.C. § 1540(g)(2). Because the Defendants have not remedied the legal violations outlined in
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`the notice, there exists an actual, justiciable controversy between the parties within the meaning
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`of the Declaratory Judgment Act. 28 U.S.C. § 2201.
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`8.
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`Venue in this Court is proper according to 28 U.S.C. § 1391(e) and 16 U.S.C.
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`§ 1540(g)(3)(A) because at least one Defendant resides in this judicial district and because a
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`substantial part of the events giving rise to the Conservation Organization’s claims occurred in
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`this district.
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`PARTIES
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`9.
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`Plaintiff Center for Biological Diversity is a national, nonprofit conservation
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`organization incorporated in California and headquartered in Tucson, Arizona, with offices in
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`Mexico and throughout the United States, including California, Florida, Hawaii, North Carolina,
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`and Washington, D.C. The Center works through science, law, and policy to secure a future for
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`all species, great and small, hovering on the brink of extinction. The Center has 81,843 members
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`dedicated to the protection of endangered species and wild places. The Center and its members
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`are concerned with the conservation of imperiled species, including the Nassau grouper, through
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`effective implementation of the Endangered Species Act. The Center brings this action on behalf
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`of itself and its members.
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`10.
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`Plaintiff WildEarth Guardians (Guardians) is a conservation nonprofit whose
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`mission is to protect and restore the wildlife, wild places, wild rivers, and health of the American
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`West. Guardians has offices in Arizona, Colorado, Idaho, Montana, New Mexico, Oregon, and
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`Washington, with over 6,700 members worldwide. As part of its conservation mission, between
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`approximately 2010 and 2016, Guardians undertook a Wild Oceans campaign that sought to
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`protect marine biodiversity, with actions including submitting Endangered Species Act listing
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`petitions. As part of that campaign, Guardians petitioned for a suite of grouper species, including
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`the Nassau grouper. Guardians continues to push for the conservation of these species.
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`Guardians’ members have a current and continuing interest in the Nassau grouper; its members
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`enjoy observing them in the wild—and enjoy snorkeling with them in particular—and intend to
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`continue doing so in the future.
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`11.
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`Plaintiff Miami Waterkeeper, Inc. (Waterkeeper), is a non-profit organization
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`serving more than 4.5 million people across Miami-Dade and Broward counties. Waterkeeper’s
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`mission is to defend, protect, and preserve South Florida’s watersheds through citizen
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`engagement and community action rooted in sound science and research. The organization works
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`to ensure swimmable, drinkable, fishable water for all. Waterkeeper is also dedicated to
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`protecting South Florida’s marine ecosystems and the marine life that depend on them, such as
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`the Nassau grouper. Waterkeeper’s “Protect Florida’s Corals” campaign includes the goal of
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`preventing damage to corals and marine ecosystems that the Nassau grouper calls home.
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`Waterkeeper’s 137 members have an interest in protecting South Florida’s marine ecosystems
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`for recreational diving, sport fishing, boating, scientific research, and resiliency benefits.
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`Waterkeeper’s approach combines education and outreach, scientific research, advocacy, and,
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`when necessary, legal action.
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`12.
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`The Conservation Organizations have members with concrete interests in the
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`conservation of Nassau groupers and the protection of their critical habitat. The Conservation
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`Organizations’ members and staff have researched, studied, observed, and sought protection for
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`the Nassau grouper. In addition, the members and staff have visited Nassau grouper habitat and
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`observed or sought to observe the species in the wild. Conservation Organizations’ members
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`derive recreational, scientific, professional, aesthetic, spiritual, and ethical interests in the Nassau
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`grouper and its habitats. For example, Conservation Organizations’ members regularly go
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`snorkeling and SCUBA diving in southern Florida, the Florida Keys, and the Caribbean with the
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`intention and hope of seeing Nassau grouper and plan to do so in the future. Members know that
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`Nassau groupers are an important part of coral reef ecosystems and that their extirpation would
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`diminish these ecosystems and associated species that they study and enjoy viewing.
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`13.
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`Defendants’ failure to comply with the Endangered Species Act’s
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`nondiscretionary deadline to designate critical habitat for the Nassau grouper denies the grouper
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`vital protections that are necessary for its survival and recovery. For example, while the
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`Defendants withhold final critical habitat designations, oil exploration, development activities,
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`and commercial fishing continue to impact the Nassau grouper’s habitat. Critical habitat is
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`necessary to ensure these and other federally permitted activities do not result in the adverse
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`modification or destruction of the Nassau grouper’s essential habitat areas.
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`14.
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`The Conservation Organizations’ members are injured by the Defendants’ failure
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`to timely designate critical habitat, which delays significant protections for the grouper and
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`harms its survival and recovery. Until Defendants protect the Nassau grouper’s critical habitat
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`under the Endangered Species Act, the Conservation Organizations and their members’ interests
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`in the groupers are injured. These are actual, concrete injuries presently suffered by the
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`Conservation Organizations and their members; are directly caused by the Defendants’ inaction;
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`and will continue to occur unless this Court grants relief.
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`15.
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`The relief sought herein—an order compelling the Defendants to designate critical
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`habitat—would redress these injuries by protecting the Nassau grouper’s habitat before it can be
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`further degraded or destroyed, thereby protecting the grouper from extinction. This will allow the
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`Conservation Organizations and their members to continue pursuing their educational, scientific,
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`recreational, aesthetic, and spiritual interests in the grouper and its habitats. The Conservation
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`Organizations and their members have no other adequate remedy at law.
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`16.
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`Defendant Wilbur Ross, U.S. Secretary of Commerce, is the highest-ranking
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`official within the Department of Commerce, and in that capacity, he has responsibility for its
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`administration and implementation of the Endangered Species Act, including the timely
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`designation of critical habitat, and for the compliance with all other federal laws applicable to the
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`Department of Commerce. The Conservation Organizations sue Defendant Ross in his official
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`capacity.
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`17.
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`Defendant Chris Oliver is the Assistant Administrator for Fisheries at the National
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`Oceanic Atmospheric Administration. As Assistant Administrator, Defendant Oliver is a federal
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`official with responsibility for implementing and enforcing the Endangered Species Act and its
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`regulations, including the timely designation of critical habitat, and to comply with all other
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`federal laws applicable to the agency. The Conservation Organizations sue Defendant Oliver in
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`his official capacity.
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`18.
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`Defendant National Marine Fisheries Service is a federal agency within the
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`Department of Commerce. Through delegation of authority from the Secretary of Commerce, the
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`National Marine Fisheries Service administers and implements the Endangered Species Act and
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`is legally responsible for complying with its mandatory deadlines when making decisions and
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`promulgating regulations, including designating critical habitat for the Nassau grouper.
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`STATUTORY AND REGULATORY FRAMEWORK
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`19.
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`The Endangered Species Act “represent[s] the most comprehensive legislation for
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`the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill,
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`437 U.S. 153, 180 (1978). Indeed, “Congress intended endangered species be afforded the
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`highest of priorities.” Id. at 174. Accordingly, the Act’s purpose is “to provide a program for the
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`conservation of . . . endangered species and threatened species” and “to provide a means
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`whereby the ecosystems upon which endangered . . . and threatened species depend may be
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`conserved.” 16 U.S.C. § 1531(b).
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`20.
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`To that end, the Endangered Species Act requires the Service to protect imperiled
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`species by listing them as “endangered” or “threatened.” 16 U.S.C. § 1533(a)(1). A species is
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`endangered if it “is in danger of extinction throughout all or a significant portion of its range.”
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`Id. § 1532(6). A species is threatened if it “is likely to become an endangered species within the
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`foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20).
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`21.
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`A “species” includes “any subspecies of fish or wildlife or plants, and any distinct
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`population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”
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`16 U.S.C. § 1532(16).
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`22.
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`Once a species is listed, it receives a host of important protections designed to
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`prevent its extinction and aid its recovery, including one of the most crucial protections:
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`safeguards for its “critical habitat.” 16 U.S.C. § 1533(a)(3)(A).
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`23.
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`Critical habitat includes specific areas occupied by the threatened or endangered
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`species with “physical or biological features . . . essential to the conservation of the species
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`and . . . which may require special management considerations or protection,” as well as specific
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`areas unoccupied by the species that “are essential for the conservation of the species.” 16 U.S.C.
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`§ 1532(5)(A). “Conservation” of a species means “the use of all methods and procedures which
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`are necessary to bring any endangered species or threatened species to the point at which the
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`measures provided pursuant to [the Endangered Species Act] are no longer necessary.” Id.
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`§ 1532(3). Accordingly, critical habitat includes areas that require proper management to ensure
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`a listed species cannot only survive but also recover.
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`24.
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`Protecting a species’ critical habitat is crucial for the protection and recovery of
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`many listed species—particularly those that have become endangered or threatened because of
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`historical and ongoing habitat loss or degradation. For example, Section 7 of the Endangered
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`Species Act requires all federal agencies to ensure their actions do not “jeopardize the continued
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`existence” of any listed species or “result in the destruction or adverse modification” of their
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`designated “critical habitat.” 16 U.S.C. § 1536(a)(2). In this way, a critical habitat designation
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`provides increased protections beyond those provided by listing alone.
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`25.
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`To ensure species at risk of extinction receive these essential habitat protections in
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`a timely manner, Congress prioritized the designation of critical habitat. 16 U.S.C. § 1533(a)(3),
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`(b)(6); see also id. § 1531(b) (statutory directive to “provide a means whereby the ecosystems
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`upon which endangered . . . and threatened species depend may be conserved”). The Service is
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`required, “to the maximum extent prudent and determinable,” to designate critical habitat for a
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`species “concurrently with making a determination” that it is endangered or threatened,” id.
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`§ 1533(a)(3)(A), (b)(6)(C), and within one year of issuing a rule proposing critical habitat, id.
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`§ 1533(b)(6)(A)(ii). The critical habitat designation must be based on “the best scientific data
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`available.” Id. § 1533(b)(2).
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`26.
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`Designation of critical habitat is not determinable when “[d]ata sufficient to
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`perform required analyses are lacking; or . . . [t]he biological needs of the species are not
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`sufficiently well known to identify any area that meets the definition of ‘critical habitat.’” 50
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`C.F.R. § 424.12(a)(2).
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`27.
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`If the Service finds it is not prudent to designate critical habitat or that critical
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`habitat is not determinable at the time of listing, they must “state the reasons for not designating
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`critical habitat in the publication of proposed and final rules listing a species.” 50 C.F.R.
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`§ 424.12(a).
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`28.
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`If critical habitat is not determinable at this mandatory decision point, the Service
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`may extend the deadline to designate critical habitat “by not more than one additional year,” at
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`which point it must publish a final regulation “based on such data as may be available at that
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`time.” 16 U.S.C. § 1533(b)(6)(C)(ii).
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`29.
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`The Endangered Species Act does not safeguard a species’ habitat until the
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`Service designates critical habitat. Accordingly, it is essential that the Service dutifully follow
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`the Endangered Species Act’s procedures and deadlines to ensure it designates critical habitat in
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`a timely manner. Species with critical habitat designations are twice as likely to recover as
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`species without designated critical habitat.
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`FACTS GIVING RISE TO PLAINTIFFS’ CLAIMS FOR RELIEF
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`30.
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`The Nassau grouper, pictured below, is a friendly fish with a playful personality,
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`and is known to interact with scuba divers. Nassau groupers are one of the largest reef fish and
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`have a recorded lifespan of 29 years. They are intelligent and have demonstrated the ability to
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`differentiate between people and recognize familiar divers. They are a favorite subject of
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`underwater photographers due to their zebra-like coloration. “The Nassau grouper is typically
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`considered a reef fish, but it transitions through a series of developmental shifts in habitat.” 81
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`Fed. Reg. 42,268, 42,272 (June 29, 2016). The Nassau grouper’s continued existence is
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`threatened by global warming, sea-level rise, ocean acidification, and loss of structural habitat in
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`coral reef ecosystems. Recovery of the species will require the conservation of important habitats
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`for all its life stages. In the United States, this habitat exists in coastal waters around southern
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`Florida, the U.S. Virgin Islands, and Puerto Rico.
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`31.
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`The Defendants proposed listing the Nassau grouper as threatened in 2014. 79
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`Fed. Reg. 51,929 (Sept. 2, 2014).
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`32.
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`In its final rule, the Defendants made the final determination that the Nassau
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`grouper should be listed as threatened. 81 Fed. Reg. 42,268 (June 29, 2016).
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`33.
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`The Defendants did not designate critical habitat at the time it listed the species.
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`Instead, the final rule stated that critical habitat was not yet determinable and that the Service
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`would designate critical habitat in subsequent rulemaking. 81 Fed. Reg. at 42,270.
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`34.
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`The Defendants had an additional year to publish a final critical habitat
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`determination for the Nassau grouper, making it due by no later than or September 2, 2016. 16
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`U.S.C. § 1533(b)(6)(C)(ii).
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`35.
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`To date, the Defendants have neither proposed nor designated critical habitat for
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`the threatened Nassau grouper. Consequently, the Defendants are in violation of the Endangered
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`Species Act.
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`36.
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`The Defendants’ ongoing failure to designate critical habitat for Nassau groupers
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`deprives these animals of protections to which they are legally entitled and leaves them at
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`increased risk of injury and death in their most important habitat areas.
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`PLAINTIFFS’ CLAIM FOR RELIEF
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`Violation of the Endangered Species Act, 16 U.S.C. § 1533(b)(3)(B)
`Failure to Designate Critical Habitat for the Nassau Grouper
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`The Conservation Organizations reallege and incorporate by reference all the
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`37.
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`allegations set forth in this Complaint as though fully set forth below.
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`38.
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`The Endangered Species Act required the Defendants to designate critical habitat
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`for the Nassau grouper concurrently with its decisions to list the species as threatened, or within
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`one additional year from the date of proposed listing after making a “not determinable” finding.
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`16 U.S.C. § 1533(a)(3), (b)(6)(A)(ii), (b)(6)(C).
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`39.
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`The Defendants asserted critical habitat was not determinable at the time of
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`listing; however, the Defendants did not designate critical habitat within the additional year
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`provided by the Endangered Species Act and still have not done so as of the date of filing this
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`complaint.
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`40.
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`The Conservation Organizations and their members are injured by the
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`Defendants’ failure to designate critical habitat, which violates Congress’s mandate to designate
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`critical habitat concurrently with listing a species and no more than one year after proposing
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`critical habitat.
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`41.
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`The Defendants’ failure to designate critical habitat for the Nassau grouper
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`violates the Endangered Species Act, 16 U.S.C. § 1533(a)(3)(A), (b)(6)(A), (b)(6)(C).
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`REQUEST FOR RELIEF
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`WHEREFORE, the Conservation Organizations request that this Court enter a Judgment
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`for Plaintiffs providing the following relief:
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`(1)
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`Declare that the Defendants violated the Endangered Species Act by failing to
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`designate critical habitat for the Nassau grouper;
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`(2)
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`Order the Defendants to designate, by a date certain, proposed and final critical
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`habitat for the Nassau grouper under the Endangered Species Act, 16 U.S.C.
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`§ 1533(a)(3)(A);
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`(3)
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`Grant Plaintiffs their reasonable attorneys’ fees and costs in this action, as
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`provided by the Endangered Species Act, 16 U.S.C. § 1540(g)(4); and
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`(4)
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`Provide such other relief as the Court deems just and proper.
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`DATED: September 1, 2020
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`Respectfully submitted,
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`/s/ Jaclyn M. Lopez
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`Jaclyn M. Lopez (D.C. Bar No. FL0017)
`Center for Biological Diversity
`P.O. Box 2155
`St. Petersburg, FL 33731
`Tel: (727) 490-9190
`Fax: (520) 623-9797
`jlopez@biologicaldiversity.org
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`Catherine W. Kilduff (D.C. Bar No. 1026160)
`Center for Biological Diversity
`801 Boush St., Ste. 200
`Norfolk, VA 23510
`Tel: (202) 780-8862
`ckilduff@biologicaldiversity.org
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`Attorneys for Plaintiffs
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