Case 1:20-cv-02714-TSC Document 1 Filed 09/23/20 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`DISTRICT OF COLUMBIA
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`Case No.: 1:20-cv-2714
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`CENTER FOR BIOLOGICAL
`DIVERSITY,
` 378 N. Main Street,
` Tucson, AZ 85701
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` Plaintiff,
` v.
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`DAVID BERNHARDT, in his official
`capacity as Secretary of the U.S. Department
`of Interior,
` 1849 C Street NW
` Washington, DC 20240, and
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`U.S. FISH AND WILDLIFE SERVICE
` 1849 C Street N.W.
` Washington, D.C. 20240
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` Defendants.
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`INTRODUCTION
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`1.
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`The Center for Biological Diversity (Center) brings this case challenging the U.S.
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`Fish and Wildlife Service’s (FWS) failure to determine whether eight species of Caribbean skink
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`(collectively, Skinks) warrant protection as endangered or threatened, in violation of the
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`Endangered Species Act’s nondiscretionary, congressionally mandated deadlines. 16 U.S.C.
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`§ 1533(b)(3). This failure delays crucial, lifesaving protections for these rare lizards that now
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`suffer an even greater risk of extinction because of FWS’s delay.
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`2.
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`The Skinks are endemic to a few islands in the Caribbean Sea and found nowhere
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`else on earth. Yet they are in steep decline from threats including habitat destruction and
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`degradation, human-introduced predators, climate change, and accelerating sea level rise.
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`3.
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`Because of these substantial threats, on February 11, 2014, the Center submitted a
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`petition asking FWS to list the Skinks as endangered or threatened. In response to the petition,
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`FWS determined there was substantial scientific or commercial information indicating that
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`listing the Skinks may be warranted. Endangered and Threatened Wildlife and Plants; 90-Day
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`Findings on 17 Petitions, 81 Fed. Reg. 1,368 (Jan. 12, 2016); Endangered and Threatened
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`Wildlife and Plants; 90-Day Findings on 10 Petitions, 81 Fed. Reg. 63,160 (Sept. 14, 2016).
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`4.
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`These findings trigger a deadline for FWS to determine if listing the species is
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`“warranted” within 12 months of receiving the Center’s petition on February 11, 2014. 16 U.S.C.
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`§ 1533(b)(3)(B).
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`5.
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`FWS has failed to make the requisite final determination for the Skinks, violating
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`the statutory deadline and withholding the Endangered Species Act’s lifesaving protections from
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`species that are hanging on the brink of extinction.
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`6.
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`The Center brings this action for declaratory relief to affirm that FWS is in
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`violation of the Endangered Species Act for failing to make a timely 12-month finding and to
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`compel FWS to issue its final determination on whether to list each of the Skinks as endangered
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`or threatened so they may receive the protections they need to survive and recover in the wild.
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`JURISDICTION AND VENUE
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`7.
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`The Center brings this action under the Endangered Species Act, 16 U.S.C.
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`§§ 1533, 1540(g).
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`8.
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`The Court has jurisdiction over this action under 28 U.S.C. § 1331 (federal
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`question jurisdiction), 28 U.S.C. § 1346 (United States as a defendant), 16 U.S.C. § 1540(c)
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`(actions arising under the Endangered Species Act), and 16 U.S.C. § 1540(g) (citizen suit
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`provision of the Endangered Species Act).
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`Case 1:20-cv-02714-TSC Document 1 Filed 09/23/20 Page 3 of 13
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`9.
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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) (Endangered Species Act citizen
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`suits).
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`10.
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`The Center notified Defendants of its intent to file suit under the Endangered
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`Species Act on March 10, 2020, more than 60 days prior to filing this complaint, consistent with
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`the Endangered Species Act’s notice requirement. 16 U.S.C. § 1540(g)(2). Because Defendants
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`have not remedied the legal violations outlined in the notice, an actual, justiciable controversy
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`exists between the parties within the meaning of the Declaratory Judgment Act. 28 U.S.C.
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`§ 2201.
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`11.
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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 Defendants reside in this judicial district and a substantial part of the
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`violations giving rise to the claim occurred in this district. FWS’s headquarters in the District of
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`Columbia had the principal role of approving and publishing the 90-day findings for the Skinks
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`and has the ultimate responsibility to make the 12-month findings for the Skinks.
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`PARTIES
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`12.
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`Plaintiff Center for Biological Diversity is a national, nonprofit conservation
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`organization that works through science, law, and policy to protect imperiled species and their
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`habitats. The Center has more than 81,000 active members across the country. It is incorporated
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`in California and headquartered in Tucson, Arizona, with offices throughout the United States,
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`including Alaska, Arizona, California, Colorado, Florida, Hawaii, Idaho, Minnesota, Nevada,
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`New York, North Carolina, Oregon, Washington, and Washington, D.C., and in Mexico. The
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`Center brings this action on behalf of itself and its members.
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`13.
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`Center members are concerned with the conservation of imperiled species like the
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`Skinks and have an interest in the effective implementation of the Endangered Species Act to
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`protect these species. They use and enjoy areas vital to the survival of these species for scientific
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`study, observation of the species, nature photography, aesthetic enjoyment, recreation, and
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`spiritual fulfillment. Center members derive recreational, scientific, aesthetic, spiritual, and
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`educational benefit from the continued existence of the Skinks and their habitat. Center members
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`have concrete plans to continue to travel to and recreate in areas where they can observe these
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`species and will maintain an interest in the species in the future.
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`14.
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`In addition to submitting a petition to list the Skinks under the Endangered
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`Species Act, the Center and its members have participated in conservation efforts that affect
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`these species. For example, the Center has campaigns to curb the mass extinction of reptiles and
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`amphibians and protect wildlife and plants from climate change. These campaigns seek to help
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`the Skinks.
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`15.
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`Because of these well-established interests in conservation of the Skinks, FWS’s
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`failure to timely determine whether the Skinks warrant listing as endangered or threatened
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`injures the Center and its members. The Center and its members will continue to suffer these
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`actual, concrete injuries unless this Court grants relief and issues an order compelling listing
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`decisions for these species. The Center and its members have no other adequate remedy at law.
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`16.
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`Defendant David Bernhardt is the Secretary of the Interior. As Secretary of the
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`Interior, he has the ultimate responsibility to administer and implement the Endangered Species
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`Act, and to comply with all other federal laws applicable to the U.S. Department of the Interior.
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`Plaintiff sues Defendant Bernhardt in his official capacity.
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`17.
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`Defendant U.S. Fish and Wildlife Service is a federal agency within the
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`Department of the Interior. The Secretary of the Interior has delegated his authority to administer
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`the Endangered Species Act to FWS for non-marine wildlife. 50 C.F.R. § 402.01(b). This
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`authority encompasses proposed and final listing decisions for the Skinks.
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`18.
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`The citizen suit provision of the Endangered Species Act, 16 U.S.C. § 1540(g),
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`authorizes this lawsuit and thus waives sovereign immunity of Defendants David Bernhardt, in
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`his official capacity as Secretary of the Interior, and the U.S. Fish and Wildlife Service.
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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. To that end, 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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`Before an imperiled animal can receive the Endangered Species Act’s protections,
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`Section 4 of the Act directs FWS to classify it into a list of “endangered” or “threatened” species,
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`a process known as “listing.” Id. § 1533(a). A “species” includes “any subspecies of fish or
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`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). An endangered species is any species
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`that “is in danger of extinction throughout all or a significant portion of its range,” id. § 1532(6),
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`and a threatened species is any species that “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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`FWS must list a species if it is endangered or threatened because of any one or a
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`combination of five factors:
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`(A) the present or threatened destruction, modification, or
`curtailment of its habitat or range;
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`(B) overutilization for commercial, recreational, scientific, or
`educational purposes;
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`(C) disease or predation;
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`(D) the inadequacy of existing regulatory mechanisms; or
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`(E) other natural or manmade factors affecting its continued
`existence.
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`Id. § 1533(a)(1).
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`22.
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`The Endangered Species Act’s protective measures apply to species only after
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`FWS lists them as threatened or endangered. For instance, Section 4 of the Act requires FWS to
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`designate habitat essential to the conservation of a species as “critical habitat” at the same time it
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`lists the species. Id. §§ 1533(a)(3)(A), 1532(5)(A). FWS must also develop a comprehensive
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`recovery plan with site-specific management actions and objectives to guide its conservation
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`efforts. Id. § 1533(f). Section 7 of the Act requires all federal agencies to ensure their actions do
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`not “jeopardize the continued existence” of any listed species or “result in the destruction or
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`adverse modification” of habitat that is essential to a listed species’ conservation. Id.
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`§ 1536(a)(2). Section 9 of the Act prohibits unauthorized trade and “taking” of endangered
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`wildlife, which includes harming, harassing, or killing. Id. §§ 1538(a)(1)(B); 1533(19). The Act
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`also authorizes FWS to acquire land for the protection of listed species and make federal funding
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`available to assist states in their efforts to preserve and protect listed species. Id. §§ 1534(a)(2),
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`1535(d).
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`23.
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`To ensure species at risk of extinction receive these protections in a timely
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`manner, Congress set forth a detailed process so citizens may petition FWS to list a species as
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`endangered or threatened. The process includes mandatory, non-discretionary deadlines FWS
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`must meet for three required findings: the 90-day finding, the 12-month finding, and the final
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`listing determination. Id. § 1533(b)(3)–(6).
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`24.
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`Upon receiving a listing petition, FWS must “to the maximum extent practicable,
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`within 90 days after receiving [a] petition,” make an initial finding of whether the petition
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`“presents substantial scientific or commercial information indicating the petitioned action may
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`be warranted.” Id. § 1533(b)(3)(A).
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`25.
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`If FWS finds the petition does not present substantial information indicating a
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`species’ listing may be warranted, it rejects the petition. Id.
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`26.
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`If FWS finds the petition does present substantial information indicating that
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`listing may be warranted, it must conduct a full scientific review of the species’ status. Id.
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`27. Within 12 months from the date it receives the petition, FWS must make one of
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`three findings: (1) listing is not warranted; (2) listing is warranted; or (3) listing is “warranted but
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`precluded” by other pending proposals for listing species, providing certain requirements are
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`met. Id. § 1533(b)(3)(B)
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`28.
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`If FWS’s 12-month finding is that listing is warranted, the agency must publish
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`notice of the proposed regulation to list the species as endangered or threatened in the Federal
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`Register for public comment. Id. § 1533(b)(3)(B)(ii).
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`29. Within one year of publishing the proposed regulation, FWS must render its final
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`determination on the proposal, either finalizing the proposed listing rule, withdrawing the
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`proposed listing rule, or if there is substantial disagreement about scientific data, delaying a final
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`determination for up to six months to solicit more information. Id. § 1533(b)(6)(A)–(B).
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`30.
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`The Endangered Species Act does not safeguard species at risk of extinction until
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`FWS lists them as endangered or threatened. Accordingly, it is critical that FWS meticulously
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`follow the Act’s listing procedures and deadlines to ensure species are listed in a timely manner.
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`FACTS GIVING RISE TO PLAINTIFF’S CLAIMS FOR RELIEF
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`Caribbean Skinks
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`31.
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`The Caribbean is a major biodiversity hotspot—rich in species found nowhere
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`else on earth. Among these are an astonishing diversity of smooth, shiny lizards with pointy
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`snouts called skinks, many of which have been formally identified only recently.
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`32.
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`Indeed, the eight Skinks at issue in this case were once considered one species,
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`the slipperyback skink, until biologists identified and described them in 2012. The eight Skink
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`species are listed in the table below:
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`Common Name
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`Culebra skink
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`Mona skink
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`Puerto Rican skink
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`Scientific Name
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`Spondylurus culebrae
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`Spondylurus monae
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`Spondylurus nitidus
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`Greater Virgin Islands skink
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`Spondylurus spilonotus
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`Lesser Virgin Islands skink
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`Spondylurus semitaeniatus
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`Virgin Islands bronze skink
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`Spondylurus sloanii
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`Greater Saint Croix skink
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`Spondylurus magnacruzae
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`Lesser Saint Croix skink
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`Capitellum parvicruzae
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`33.
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`Each of the eight Skink species are characterized by subtle differences in
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`appearance and geographic range.
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`34.
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`The Culebra skink varies in color among shades of brown, gray, bluish-green, and
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`green, with dark and light lateral stripes down its sides. It is found on Culebra Island, east of
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`Puerto Rico.
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`35.
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`The Puerto Rican skink is coppery brown with a dark lateral stripe down each
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`side. It is found on Puerto Rico and some of its satellite islands.
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`36.
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`The Mona skink is paler in color than the Puerto Rican skink with cream-colored
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`lateral lines down its sides and triangular-shaped dark spots on its back. It is found on Mona
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`Island, west of Puerto Rico.
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`37.
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`The greater Saint Croix skink is the largest species in its genus. It has a light
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`brown back with a dark brown and white lateral stripe down each of its sides. It is found on Saint
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`Croix and its satellite island Green Cay in the U.S. Virgin Islands.
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`38.
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`The greater Virgin Islands skink is light brown with narrow, dark, lateral stripes
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`that appear more faded with irregular edges. It is found in Saint John and Saint Thomas in the
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`U.S. Virgin Islands, and possibly in the British Virgin Islands.
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`39.
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`The lesser Saint Croix skink is the only member of its genus in the northern
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`Caribbean. It has small hands and feet, a short head, and no dark lateral stripes, which distinguish
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`it from other skinks in the region. It is found on Saint Croix in the U.S. Virgin Islands.
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`40.
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`The lesser Virgin Islands skink is bronze in color, with thick, dark lateral stripes
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`on each of its sides that fade into a light, sandy colored tail. It is found on Saint Thomas and two
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`islets, Capella and Buck, in the U.S. Virgin Islands, as well as in the British Virgin Islands.
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`41.
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`The Virgin Islands bronze skink looks similar to the lesser Virgin Islands skink,
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`but its stripes are shorter and taper off more quickly. The Virgin Islands bronze skink is found on
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`Saint Thomas and several of its islets, and possibly Saint John, in the U.S. Virgin Islands, and the
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`British Virgin Islands.
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`42.
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`The International Union for the Conservation of Nature (IUCN) Red List
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`categorizes all of the Skinks as critically endangered, except for the Puerto Rican skink, which is
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`considered endangered.
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`43.
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`The Skinks are imperiled because of individual and synergistic threats from
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`habitat loss, predation, climate change, sea level rise, and inadequate laws to protect them from
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`these threats.
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`44.
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`Habitat loss and degradation threaten all of the Skinks, including the species on
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`smaller islands. Development, agriculture, and timbering activities are destroying the Skinks’
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`coastal and interior habitats while the introduction of exotic, invasive plants causes wide-scale
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`degradation. If this destruction and degradation continues, the Skinks are likely to disappear
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`from some areas or become completely extinct in the coming decades.
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`45.
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`Introduced predators like black rats, mongooses, and cats also significantly
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`threaten all eight Skinks. These human-introduced predators have become established across the
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`Caribbean and can eliminate Skinks from entire islands.
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`46.
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`Climate change, and the sea level rise and extreme weather events it causes,
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`currently threaten the Skinks and will continue to threaten them exponentially as temperatures
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`and sea levels rise. As ectothermic (cold-blooded) creatures, the Skinks are highly vulnerable to
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`changes in temperature and precipitation associated with climate change. Rising seas and
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`extreme weather events caused by climate change are likely to destroy habitat and kill individual
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`Skinks. As climate change causes conditions to change, the Skinks are unable to migrate away
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`from their isolated island habitats to escape these threats.
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`47.
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`The Skinks are even more vulnerable to these threats because their populations
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`are isolated within a small geographic area, which raises the risks of extinction from a major
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`stochastic event. For example, a direct hit by a hurricane to the remaining habitat for any one of
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`the Skink species could lead to swift extinction for that species.
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`48.
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`Continuing declines in all eight Skink species demonstrate that existing laws are
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`inadequate to protect the Skinks from extinction caused by the individual and combined effects
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`of habitat loss and degradation, introduced predators, climate change, and sea level rise.
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`The Center’s Petition to List the Skinks
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`49.
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`Due to its interest in conserving the Skinks from these significant threats, on
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`February 11, 2014, the Center submitted a petition to FWS to list the Skinks as threatened or
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`endangered under the Endangered Species Act. The petition comprehensively substantiated the
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`threats to the Skinks using scientific information about habitat destruction, predation by
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`nonnative mammals, climate change and sea level rise, pollution, and the Skinks’ small, isolated
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`populations. The petition also explained that current regulatory mechanisms were inadequate to
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`curtail the growing threats to the species.
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`50.
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`Nearly two years later in January 2016, FWS published a 90-day finding that the
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`Center’s petition presented substantial scientific or commercial information indicating that listing
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`may be warranted for seven of the skink species—the Culebra skink, Mona skink, Puerto Rican
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`Skink, Virgin Islands bronze skink, greater Saint Croix skink, greater Virgin Islands skink, and
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`the lesser Saint Croix skink. 81 Fed. Reg. 1,368 (Jan. 12, 2016).
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`51.
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`In September 2016, FWS published a 90-day finding that the Center’s petition
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`presented substantial scientific of commercial information indicating that listing the lesser Virgin
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`Islands skink may be warranted. 81 Fed. Reg. 63,160 (Sept. 14, 2016).
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`52.
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`FWS was required to make a 12-month finding determining whether listing the
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`Skinks is warranted, but it still has not made this mandatory finding, in violation of the
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`Endangered Species Act. 16 U.S.C. § 1533(b)(3)(B).
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`PLAINTIFF’S CLAIM FOR RELIEF
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`53.
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`The Center re-alleges and incorporates by reference all the allegations set forth in
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`this Complaint as though fully set forth below.
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`54.
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`FWS’s failure to make timely 12-month findings on the Center’s petition to list
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`the Culebra skink, greater Saint Croix skink, greater Virgin Islands skink, lesser Saint Croix
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`skink, lesser Virgin Islands skink, Mona skink, Puerto Rican skink, and Virgin Islands bronze
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`skink as endangered or threatened species violates the Endangered Species Act, 16 U.S.C.
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`§ 1533(b)(3)(B).
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`REQUEST FOR RELIEF
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`WHEREFORE, Plaintiff prays that this Court enter a Judgment for Plaintiff providing the
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`following relief:
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`(1)
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`Declare that Defendants violated the Endangered Species Act by failing to issue
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`timely 12-month findings determining whether listing the Skinks as endangered or
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`threatened is warranted;
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`(2)
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`Order Defendants to issue, by date certain, findings regarding whether listing the
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`Skinks as endangered or threatened is warranted;
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`(3)
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`Grant Plaintiff its attorneys’ fees and costs in this action, as provided by the
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`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 23, 2020
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`Respectfully submitted,
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`/s/ Elise Pautler Bennett_________
`Elise Pautler Bennett
`D.C. Bar No. FL0018
`Center for Biological Diversity
`P.O. Box 2155
`St. Petersburg, FL 33731
`Tel: (727) 755-6950
`Fax: (520) 623-9797
`ebennett@biologicaldiversity.org
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`/s/ Collette L. Adkins____________
`Collette L. Adkins
`MN Bar. No 035059X
`(seeking admission pro hac vice)
`Center for Biological Diversity
`P.O. Box 595
`Circle Pines, MN 55014-0595
`Tel: (651) 955-3821
`cadkins@biologicaldiversity.org
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`Counsel for Plaintiff Center for Biological Diversity
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`13
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