Case 1:21-cv-00770-ABJ Document 1 Filed 03/24/21 Page 1 of 32
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Civil Case No. 21-00770
`ECF Case
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`NATURAL RESOURCES DEFENSE
`COUNCIL, INC.,
`40 West 20th Street, 11th Floor
`New York, NY 10011-4231
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`CENTER FOR BIOLOGICAL
`DIVERSITY,
`P.O. Box 710
`Tucson, AZ 85702
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`and
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`FRIENDS OF MINNESOTA SCIENTIFIC
`AND NATURAL AREAS,
`2854 Cambridge Lane
`Mound, MN 55364
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`Defendants.
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`________________________________________ )
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Plaintiffs,
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` v.
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`UNITED STATES FISH & WILDLIFE
`SERVICE,
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`MARTHA WILLIAMS, in her official
`capacity as the Acting Director of the U.S.
`Fish & Wildlife Service,
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`and
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`UNITED STATES DEPARTMENT OF
`THE INTERIOR,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Civil Case No. 21-00770
`ECF Case
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`NATURAL RESOURCES DEFENSE
`COUNCIL, INC.,
`40 West 20th Street, 11th Floor
`New York, NY 10011-4231
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`CENTER FOR BIOLOGICAL
`DIVERSITY,
`P.O. Box 710
`Tucson, AZ 85702
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`and
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`FRIENDS OF MINNESOTA SCIENTIFIC
`AND NATURAL AREAS,
`2854 Cambridge Lane
`Mound, MN 55364
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`Defendants.
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`________________________________________ )
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Plaintiffs,
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` v.
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`UNITED STATES FISH & WILDLIFE
`SERVICE,
`
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`MARTHA WILLIAMS, in her official
`capacity as the Acting Director of the U.S.
`Fish & Wildlife Service,
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`and
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`UNITED STATES DEPARTMENT OF
`THE INTERIOR,
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`Case 1:21-cv-00770-ABJ Document 1 Filed 03/24/21 Page 2 of 32
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`INTRODUCTION
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`1.
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`This action challenges the failure of the U.S. Fish & Wildlife Service,
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`Acting Director Martha Williams, and the U.S. Department of the Interior
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`(collectively, the Service) to designate critical habitat for the endangered rusty
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`patched bumble bee (the bee). Despite a statutory mandate that such habitat must
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`generally be designated when a species is listed as endangered, and
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`notwithstanding ample evidence that habitat safeguards would be beneficial for—
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`and indeed necessary to—the bee’s survival and recovery, the Service refused to
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`designate critical habitat on the basis that doing so would be “not prudent.”
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`2.
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`Once common throughout the midwestern and northeastern United
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`States, northward into Canada, the bee has disappeared from the vast majority of
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`its native range and now stands on the brink of extinction, owing to habitat loss and
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`destruction, pesticide use, disease, parasites, and climate change.
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`3.
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`As a result, in 2017, the Service listed the bee as an “endangered
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`species” under the Endangered Species Act (ESA). Endangered Species Status for
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`Rusty Patched Bumble Bee, 82 Fed. Reg. 3186, 3205 (Jan. 11, 2017).
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`4.
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`The bee’s listing triggered the Service’s duty to designate critical
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`habitat for the bee “to the maximum extent prudent and determinable.” 16 U.S.C.
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`§ 1533(a)(3)(A)(i). However, despite continued threats to the bee from habitat loss
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`and degradation, in September 2020 the Service determined that designating
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`critical habitat for the bee would be “not prudent” and declined to protect any
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`critical habitat for the bee. Determination That Designation of Critical Habitat is
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`Case 1:21-cv-00770-ABJ Document 1 Filed 03/24/21 Page 3 of 32
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`Not Prudent for the Rusty Patched Bumble Bee, 85 Fed. Reg. 54,281, 54,284 (Sept.
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`1, 2020).
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`5.
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`But the ESA allows the Service to withhold critical-habitat designation
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`as “not prudent” only in those rare instances where designation would not benefit a
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`species.
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`6.
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`In withholding designation as “not prudent” for reasons other than
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`lack of benefit to the bee, the Service stretched this narrow exception far beyond its
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`legal limits, and ignored abundant evidence that protecting habitat facilitates the
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`species’ survival and recovery. If permitted to stand, the Service’s unlawfully broad
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`interpretation of the “not prudent” exemption may also deprive countless other
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`vulnerable species of crucial habitat protections.
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`7.
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`Plaintiffs seek an order setting aside the Service’s decision not to
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`designate critical habitat for the bee and requiring the Service to designate such
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`habitat within one year.
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`PARTIES
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`8.
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`Plaintiff Natural Resources Defense Council, Inc. (NRDC) is a non-
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`profit membership organization dedicated to safeguarding the earth—its people, its
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`plants and animals, and the natural systems on which all life depends. Promoting
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`and enforcing strong protections for endangered and threatened species is central to
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`NRDC’s work to protect wildlife and ecosystems.
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`9.
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`NRDC is headquartered in New York, NY, and has additional offices in
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`Washington, DC; Chicago, IL; Santa Monica and San Francisco, CA; Bozeman, MT;
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`and Beijing, China.
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`10. NRDC brings this lawsuit on behalf of its hundreds of thousands of
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`members nationwide. Many of these members regularly observe, visit, study, or
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`otherwise enjoy threatened and endangered species, including the bee. Leaving the
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`habitat of such species without critical-habitat protection harms the interests of
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`these members in viewing listed species in the future.
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`11. For example, NRDC member Clay Bolt of Livingston, Montana, is a
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`professional photographer, documentarian, and leader in the conservation field who
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`has on several occasions photographed the bee in its habitat. Mr. Bolt plans to
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`continue visiting the bee’s habitat, including areas in Wisconsin, Minnesota, and
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`Appalachia, to seek out and photograph the bee. Mr. Bolt plans to use these
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`photographs to publish a field guide to bumble bees of the Americas.
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`12. Mr. Bolt derives aesthetic, recreational, and economic benefits from the
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`bee’s continued existence and his visits to the bee’s habitat. Those interests are
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`threatened by the Service’s decision not to designate critical habitat for the bee
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`under the ESA.
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`13. Additionally, NRDC member Jason Taylor is the Executive Director of
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`the Bur Oak Land Trust (the Land Trust), which owns and maintains twelve
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`properties spanning about 500 acres, predominantly in Johnson County, Iowa. Mr.
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`Taylor developed a personal and professional interest in the bee in 2018, soon after
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`he learned it was listed as a federal endangered species, and he identified one in the
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`prairie he planted in his backyard. As a result, he began developing habitat
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`restoration projects for the bee on Land Trust properties and continues to train
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`volunteers to identify the bee throughout Johnson County. These volunteers have
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`identified rusty patched bumble bee populations on five Land Trust properties.
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`14. Mr. Taylor also regularly visits the Coralville Reservoir, a federally
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`owned recreational area in Johnson County. He visits Coralville Reservoir about
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`twice a month and searches for the bee every time he visits. Although he has not
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`been successful yet, one of his goals for 2021 is to spot the bee at Coralville
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`Reservoir. The Land Trust owns two properties adjacent to Coralville Reservoir,
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`Turkey Creek and Big Grove Nature Preserves, each containing rusty patched
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`bumble bee populations. Mr. Taylor and the Land Trust seek to preserve land
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`surrounding the Coralville Reservoir because the Reservoir creates a natural
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`corridor home to myriad native species, from bobcats to bees. Mr. Taylor values the
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`Coralville Reservoir and these surrounding nature areas as important recreational
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`fixtures of the community.
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`15. Through his work at the Land Trust and regular visits to Coralville
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`Reservoir and other areas of Johnson County to search for the bee, Mr. Taylor
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`derives professional and recreational benefits from the bee and its habitat. Mr.
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`Taylor is concerned that continued failure to designate critical habitat for the bee
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`will result in the bee’s extinction.
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`16. NRDC’s members, including Mr. Bolt and Mr. Taylor, derive aesthetic,
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`recreational, professional, economic, and personal benefits from the bee and its
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`habitat. The Service’s failure to designate critical habitat decreases the bee’s
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`chances of survival and recovery, thereby harming NRDC members’ interests in the
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`bee. These injuries are caused by the Service’s violations of the ESA and the
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`Administrative Procedure Act (APA) and are redressable through the relief
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`requested by Plaintiffs.
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`17. Plaintiff Center for Biological Diversity (Center) is a non-profit
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`organization dedicated to the preservation, protection, and restoration of
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`biodiversity, native species, and ecosystems. The Center was founded in 1989 and is
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`based in Tucson, Arizona, with offices throughout the country, including
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`Washington, DC. The Center has more than 84,000 members, including many who
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`reside in, explore, and enjoy the areas in which the bee and its current and historic
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`habitat are found. The Center’s mission is to protect and conserve endangered
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`species, including the bee, and their habitats.
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`18. The Center brings this action on behalf of its members who derive
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`aesthetic, recreational, emotional, spiritual, and scientific benefits from the bee and
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`its continued existence in its native habitat.
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`19. The Center’s members, including Bryan Newman and Andrew Wedel,
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`visit rusty patched bumble bee habitat on an ongoing basis in the hopes of viewing
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`and enjoying the bee and its native habitat.
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`20. Mr. Newman, Mr. Wedel, and other Center members derive aesthetic,
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`recreational, inspirational, emotional, and spiritual benefits from their visits to
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`rusty patched bumble bee habitat in the hopes of viewing the bee. Mr. Newman, Mr.
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`Wedel, and other Center members intend to continue their frequent visits to the
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`bee’s habitat. For Mr. Newman, this includes occupied habitat along the shore of
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`Como Lake in St. Paul, Minnesota, where he has frequently observed the bee. He
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`plans to revisit these areas on an ongoing basis, including this coming spring,
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`summer, and fall when the bee is active. Mr. Wedel frequently searches for the bee
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`on his family’s prairie land in southwestern Wisconsin, where he and his family
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`work to preserve and restore the bee’s habitat. Many of the areas that Mr. Newman,
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`Mr. Wedel, and other Center members intend to continue using and enjoying
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`include areas that may be suitable for designation as critical habitat and that could
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`play an essential role in the bee’s survival and recovery if they were designated as
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`such.
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`21. The aesthetic, recreational, inspirational, emotional, spiritual, and
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`scientific interests of Mr. Newman, Mr. Wedel, and other Center members have
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`been and will continue to be adversely and irreparably affected if the Service’s
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`ongoing violations of the ESA continue. These are actual, concrete injuries caused
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`by the Service’s violations of the ESA. The relief sought will redress the Center’s
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`members’ injuries.
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`22. Plaintiff Friends of Minnesota Scientific and Natural Areas (FMSNA)
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`is a Minnesota non-profit, tax-exempt corporation organized to advocate for the
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`protection, management, and perpetuation of Minnesota’s Scientific and Natural
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`Areas in an undisturbed natural state. These more than 160 scientific and natural
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`areas represent a diverse set of natural habitats containing rare and sensitive plant
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`and animal species. FMSNA vigorously defends against actions that threaten the
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`ecological integrity of these areas, including those that threaten resident species
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`that FMSNA members cherish.
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`23. FMSNA brings this action on behalf of its members who derive
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`aesthetic, artistic, recreational, spiritual, and other interests from the bee and its
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`habitat. For example, Thomas E. Casey of Mound, Minnesota, a longstanding
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`member of FMSNA and the Chair of FMSNA’s Board of Directors, has sought out,
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`and continues to regularly seek out, the bee. Mr. Casey is an amateur photographer
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`and has on two occasions photographed the bee in Lone Lake Park in Minnetonka,
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`MN, and within the city of St. Paul, MN. He hikes nearly every day, visiting
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`regional parks in the Twin City region, the Minnesota Valley National Wildlife
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`Refuge, and other natural areas in Minnesota where the bee may be present or to
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`which the bee may disperse. Mr. Casey brings his camera on every hike and always
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`seeks out rare and interesting wildlife, including the bee.
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`24. Mr. Casey’s aesthetic, recreational, and artistic interests in the bee
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`have been and will continually be threatened by the Service’s failure to designate
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`critical habitat for the bee. These injuries are caused by the Service’s violations of
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`the ESA and APA, and are redressable through the relief requested by Plaintiffs.
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`25. Defendant U.S. Fish & Wildlife Service is an agency of the United
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`States government, within and under the jurisdiction of the U.S. Department of the
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`Interior. The Secretary of the Interior has delegated authority to administer and
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`implement the ESA to the Fish & Wildlife Service. The Service is legally responsible
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`for the failure to designate critical habitat for the bee.
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`26. Defendant Martha Williams is sued in her official capacity as Acting
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`Director of the U.S. Fish & Wildlife Service. Through delegation of authority from
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`the Secretary, Ms. Williams is legally responsible for the failure to designate critical
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`habitat for the bee.
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`27. Defendant U.S. Department of the Interior is an agency of the United
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`States government charged with implementing and administering the ESA. The
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`Secretary has delegated that authority to the Service, which is a government agency
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`within the Department of the Interior. The Department of the Interior is legally
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`responsible for the failure to designate critical habitat for the bee.
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`JURISDICTION AND VENUE
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`28. This Court has jurisdiction over this action pursuant to 16 U.S.C.
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`§ 1540(c), (g) (ESA citizen suit provision), 5 U.S.C. § 704 (APA), and 28 U.S.C.
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`§ 1331 (federal question jurisdiction).
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`29. This Court has the authority to issue the requested declaratory and
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`injunctive relief pursuant to 16 U.S.C. § 1540(g) (ESA), 5 U.S.C. § 706(2) (APA), and
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`28 U.S.C. §§ 2201–02.
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`30. Plaintiffs provided all Defendants with written notice of Plaintiffs’
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`intent to file this suit more than sixty days prior to the commencement of this
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`action. See 16 U.S.C. § 1540(g)(2). This written notice is attached as Exhibit A to
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`this Complaint.
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`31. Defendants have not remedied their violations of the law in response to
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`Plaintiffs’ written notice.
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`32. Venue is proper in the U.S. District Court for the District of Columbia
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`pursuant to 16 U.S.C. § 1540(g)(3)(A) and 28 U.S.C. § 1391(e) because a substantial
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`part of the events giving rise to the Plaintiffs’ claims occurred in this district.
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`Specifically, the U.S. Department of the Interior and Fish & Wildlife Service are
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`headquartered in Washington, DC. Further, Defendant Martha Williams—an
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`official responsible for applying and interpreting the ESA, including as it applies to
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`the challenged decision—is located here. Plaintiffs NRDC and the Center also have
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`offices in Washington, D.C. Finally, Washington, DC is within the bee’s historic
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`range.
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`STATUTORY AND REGULATORY FRAMEWORK
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`The Endangered Species Act
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`Background and purpose
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`33. Congress enacted the ESA in 1973 in response to growing concern
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`about the extinction of species. The ESA’s purpose is to “conserv[e] . . . endangered
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`species” and provide “a means whereby the ecosystems upon which endangered
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`species . . . depend may be conserved,” 16 U.S.C. § 1531(b) (emphasis added). An
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`endangered species is “any species which is in danger of extinction throughout all or
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`a significant portion of its range.” Id. § 1532(6).
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`34. Almost since the ESA’s inception, courts have recognized Congress’s
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`plain intent to give the benefit of the doubt to imperiled species. “Congress has
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`spoken in the plainest of words, making it abundantly clear that the balance has
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`been struck in favor of affording endangered species the highest of priorities,
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`thereby adopting a policy which it described as ‘institutionalized caution.’” Tenn.
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`Valley Auth. v. Hill, 437 U.S. 153, 194 (1978).
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`Protection of critical habitat
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`35.
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`Safeguarding habitat is a central component of species conservation
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`under the ESA. Upon listing a species as endangered, the Service must designate
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`any habitat that is considered to be “critical habitat” for that species “to the
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`maximum extent prudent and determinable.” 16 U.S.C. § 1533(a)(3)(A). The Service
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`must make that determination based on the “best scientific and commercial data
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`available.” Id. § 1533(b)(2).
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`36. Congress defined “critical habitat” to include both areas that are
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`occupied by the species and those that are unoccupied. Occupied critical habitat is
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`defined as “the specific areas within the geographical area occupied by the
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`species . . . on which are found those physical or biological features (I) essential to
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`the conservation of the species and (II) which may require special management
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`considerations or protection.” Id. § 1532(5)(A)(i). Unoccupied critical habitat means
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`“specific areas outside the geographical area occupied by the species . . . upon a
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`determination by the Secretary that such areas are essential for the conservation of
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`the species.” Id. § 1532(5)(A)(ii). Unoccupied critical habitat may include, for
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`example, areas with abundant food sources and nesting sites that could
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`accommodate new members of a species as its population recovers.
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`37.
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`If, at the time of listing, the Service finds that critical habitat is not yet
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`determinable, the agency may extend the deadline for designating such habitat by
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`one additional year. At the end of that year, the Service must “publish a final
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`regulation, based on such data as may be available at that time, designating, to the
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`maximum extent prudent, such habitat.” Id. § 1533(b)(6)(C)(ii).
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`38. Once the Service designates an area as critical habitat, that area is
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`subject to the interagency consultation requirements of section 7 of the ESA, id.
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`§ 1536.
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`39.
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`Section 7 requires all federal agencies to consult with either the
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`Service or National Marine Fisheries Service (NMFS) to “insure” that their actions
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`are not likely to “jeopardize the continued existence” of listed species or “result in
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`the destruction or adverse modification” of critical habitat. Id. § 1536(a)(2). Agencies
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`must consult with the Service regarding impacts to terrestrial and freshwater
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`species and critical habitat, and with NMFS regarding impacts to marine species
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`and critical habitat.
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`40. With respect to critical habitat, a federal agency generally must
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`formally consult with the Service or NMFS regarding any action that “may affect”
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`such habitat. 50 C.F.R. § 402.14(a). Formal consultation culminates in a biological
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`opinion written by the Service or NMFS, which describes whether the action at
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`issue will destroy or adversely modify critical habitat and identifies any reasonable
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`and prudent measures and alternatives necessary to avoid this result. Id.
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`§ 402.14(h).
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`41. Designation of critical habitat—and the consultations triggered by
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`designation—provides mandatory, substantive protections for species’ habitat. In
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`occupied critical habitat, protection against destruction or adverse modification of
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`habitat is separate from, and additional to, protection against jeopardy to a species.
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`See 16 U.S.C. § 1536(a)(2) (separately prohibiting actions that are likely to
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`“jeopardize the continued existence” of species and those that “result in the
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`destruction or adverse modification” of critical habitat). In unoccupied critical
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`habitat, protection against adverse modification of habitat is the most significant
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`form of conservation that the Service provides under the ESA.
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`The “not prudent” exception to designating critical habitat
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`42.
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` In requiring the Service to designate critical habitat to the “maximum
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`extent prudent,” Congress created a limited exception for circumstances when
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`designation would be not prudent. Id. § 1533(b)(6)(C)(ii).
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`43. While the ESA does not define the term “prudent,” Congress plainly
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`intended the “not prudent” exception to be narrow and applied only where
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`designating critical habitat would not benefit a species. See, e.g., H.R. Rep. No. 95-
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`1625, at 16-17 (1978) (designation of critical habitat is not prudent where it “would
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`not be in the best interests of the species”); id. at 17 (explaining that “[n]ot prudent”
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`determinations are reserved for “rare circumstances where the specification of
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`critical habitat . . . would not be beneficial to the species”).
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`44.
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`“Prudent” is commonly defined as “careful and avoiding risks,”
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`Prudent, Cambridge Dictionary, https://dictionary.cambridge.org/us/ (last visited
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`Mar. 22, 2021); and “acting with or showing forethought; . . . circumspect, discreet,
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`cautious; [and] far-sighted,” Prudent, Oxford English Dictionary,
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`https://www.oed.com/ (last visited Mar. 22, 2021).
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`45. For years, the Service abided by Congress’s intent and the ordinary
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`meaning of “prudent” by defining the “not prudent” exception to apply in only two
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`limited circumstances. First, designating critical habitat was not prudent where it
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`would increase the threat of harm to a species. 50 C.F.R. § 424.12(a)(1)(i) (2018).
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`This exemption might apply, for example, where a species is threatened by illegal
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`hunting, and mapping the species’ habitat would increase that threat. Second,
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`designating critical habitat was considered not prudent where doing so “would not
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`be beneficial for the species.” Id. § 424.12(a)(1)(ii) (2018). Relevant factors included
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`“whether the present or threatened destruction, modification, or curtailment of a
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`species’ habitat or range is not a threat to the species, or whether any areas meet
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`the definition of ‘critical habitat.’” Id.
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`46.
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`In 2019, the Service amended its regulation implementing the “not
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`prudent” exception. The amended regulation, currently in effect, provides five
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`circumstances in which designation might not be prudent:
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`(i) The species is threatened by taking or other human
`activity and identification of critical habitat can be expected to
`increase the degree of such threat to the species;
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`(ii) The present or threatened destruction, modification, or
`curtailment of a species’ habitat or range is not a threat to the
`species, or threats to the species’ habitat stem solely from causes
`that cannot be addressed through management actions resulting
`from consultations under section 7(a)(2) of the Act;
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`(iii) Areas within the jurisdiction of the United States
`provide no more than negligible conservation value, if any, for a
`species occurring primarily outside the jurisdiction of the United
`States;
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`(iv) No areas meet the definition of critical habitat; or
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`(v) The Secretary otherwise determines that designation of
`critical habitat would not be prudent based on the best scientific
`data available.
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`50 C.F.R. § 424.12(a)(1).
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`47. Despite specifying additional circumstances under which designation
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`of critical habitat might be “not prudent,” the Service and NMFS explained that the
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`amendment was “not intended to expand the circumstances in which the Services
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`determine that designation of critical habitat is not prudent.” Final Regulations for
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`Listing Species and Designating Critical Habitat, 84 Fed. Reg. 45,020, 45,040 (Aug.
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`27, 2019); see also id. at 45,041 (“[T]he Services anticipate that not prudent findings
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`will remain rare and would be limited to situations in which designating critical
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`habitat would not further the conservation of the species.”).
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`14
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`Case 1:21-cv-00770-ABJ Document 1 Filed 03/24/21 Page 16 of 32
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`The Administrative Procedure Act
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`
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`48. The APA provides that courts “shall . . . hold unlawful and set aside
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`agency action, findings, and conclusions found to be . . . arbitrary, capricious, an
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`abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2).
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`49. Agency action is arbitrary and capricious if “the agency has relied on
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`factors which Congress has not intended it to consider, entirely failed to consider an
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`important aspect of the problem, offered an explanation for its decision that runs
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`counter to the evidence before the agency, or is so implausible that it could not be
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`ascribed to a difference in view or the product of agency expertise.” Motor Vehicle
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`Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
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`50. Moreover, under the APA, an agency must “explain the evidence which
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`is available, and must offer a ‘rational connection between the facts found and the
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`choice made.’” State Farm, 463 U.S. at 52 (quoting Burlington Truck Lines, Inc. v.
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`United States, 371 U.S. 156, 168 (1962)).
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`STATEMENT OF FACTS
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`Life cycle and habitat needs of the rusty patched bumble bee
`51. The rusty patched bumble bee (Bombus affinis) is a unique and prolific
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`pollinator named for the rusty reddish patch on its abdomen. It uses “buzz
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`pollination,” meaning it vibrates its body to release pollen from flowers. This
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`technique makes the species a more effective pollinator than honey bees for many
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`native plants, as well as for crops like tomatoes, cranberries, and peppers.
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`52. The bee’s life cycle shapes the species’ habitat needs. Like many
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`species of bumble bee, all workers and male rusty patched bumble bees in a colony
`15
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`Case 1:21-cv-00770-ABJ Document 1 Filed 03/24/21 Page 17 of 32
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`die each fall, leaving a single hibernating queen to carry the colony over to the
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`following year. Queens typically hibernate underground in forested areas near floral
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`resources.
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`53. Rusty patched bumble bees are among the first bee species to emerge
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`from hibernation each spring, and among the last to enter hibernation each fall. To
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`survive, the bees collect pollen and nectar from nearby flowers; floral resources
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`must, therefore, be available throughout the species’ lengthy active season.
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`54. Because many plants flower for only a portion of the bee’s active
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`season, the species relies on a broad diversity of flowering plants for sustenance.
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`Floral diversity is especially crucial for the bee because it is a short-tongued species,
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`meaning it can only forage from a subset of plant species with more easily accessible
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`nectar.
`
`55.
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`In addition, the formation of rusty patched bumble bee colonies is
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`affected by the number of fertile males and whether the landscape is conducive to
`
`their dispersal. The bee typically disperses over one kilometer, but the landscape
`
`must be “permeable and free of hazards” for males to find and mate with unrelated
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`females with reproductive capacity. U.S. Fish & Wildlife Service, Rusty Patched
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`Bumble Bee (Bombus affinis) Species Status Assessment: Final Report, Version 1
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`17 (2016) (Status Assessment), https://ecos.fws.gov/ServCat/DownloadFile/120109.
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`56. Consistent with the bee’s life cycle, the Service has identified a number
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`of habitat features that the bee needs to survive. These include “areas that support
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`sufficient food (nectar and pollen), undisturbed nesting habitat in proximity to floral
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`
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`16
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`Case 1:21-cv-00770-ABJ Document 1 Filed 03/24/21 Page 18 of 32
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`
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`resources, and overwintering habitat for hibernating queens,” as well as “a constant
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`and diverse supply of blooming flowers to meet its nutritional needs.” 85 Fed. Reg.
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`at 54,282.
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`57.
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`In its guidance documents, the Service has outlined the species’
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`habitat needs with even greater specificity. It has identified various habitat
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`categories (e.g., upland grassland and shrubland; palustrine wetlands, excluding
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`ponds), specified the uses that the bee has for each habitat category (i.e., nesting,
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`wintering, foraging), noted seasonal variations in the use of each habitat category
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`(e.g., upland forest and woodland used for foraging in the spring but not summer or
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`fall); and provided examples of discrete habitat types that fall within each habitat
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`category (e.g., “native tallgrass prairie, including remnants and
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`restored/reconstructed native prairie; savanna; [and] pine and oak barrens” are
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`examples of upland grassland and shrubland). U.S. Fish & Wildlife Service, Rusty
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`Patched Bumble Bee (Bombus affinis): Endangered Species Act Section 7(a)(2)
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`Voluntary Implementation Guidance, Version 2.1 9 (2019) (Section 7 Guidance),
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`https://bit.ly/3azKHIy. The Service has summarized the bee’s habitat needs in the
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`following table in its Section 7 Guidance:
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`17
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`Case 1:21-cv-00770-ABJ Document 1 Filed 03/24/21 Page 19 of 32
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`
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`Id. at 9 tbl.1.
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`58. One crucial factor for any of this habitat to be usable is that it must
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`not be contaminated by pesticides, which the Service identified as a key factor in
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`the bee’s decline. Specifically, for habitat to be suitable, it must not be treated or
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`otherwise contaminated with the insecticides that cause acute harm like death and
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`subacute harms like disorientation, decreased appetite, and reduced ability to fight
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`off disease and parasites. In addition, for sufficient forage to be present, the bee
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`needs flowers, which may be limited or nonexistent in areas where herbicides have
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`been applied.
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`Habitat destruction and degradation threaten the bee’s survival and
`recovery
`59. The rusty patched bumble bee was once common throughout
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`grasslands and prairies in much of the Midwest and Northeast United States,
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`18
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`Case 1:21-cv-00770-ABJ Document 1 Filed 03/24/21 Page 20 of 32
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`ranging northward into Canada. It was found in 29 states, the District of Columbia,
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`and two Canadian provinces.
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`60.
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`Since the 1990s, the bee has disappeared from about 87 percent of its
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`historical range; the number of documented populations has similarly declined by at
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`least 88 percent. The colonies and populations (which typically are made up of tens
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`to hundreds of colonies) that remain are subject to continued stress, and many are
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`in poor health.
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`61. The bee historically occupied flower-rich grassland and tall-grass
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`prairies throughout its range. Since settlement of the continent by Europeans, an
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`estimated 99.9 percent of grassland in the United States has disappeared.
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`62. Much of this habitat loss has occurred as a result of agricultural
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`intensification, fire suppression, and urbanization.
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`63. Habitat loss is one of the “primary causes attributed to the decline” of
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`the bee, 82 Fed. Reg. at 3186, and has “established negative effects on bumble bees”
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`generally, 85 Fed. Reg. at 54,283.
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`64. Habitat loss and degradation continues to threaten remaining
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`populations of the bee. U.S. Fish & Wildlife Service, Draft Recovery Plan for the
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`Rusty Patched Bumble Bee (Bombus affinis) 1 (2019) (Draft Recovery Plan),
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`https://bit.ly/3axYi4v.
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`65.
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`It is well-established that habitat loss reduces diversity and abundance
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`of bee species. “Given that several kilos of food are needed to support a single nest,
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`. . . the amount of habitat needed to support a population is likely quite large.”
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`19
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`Case 1:21-cv-00770-ABJ Document 1 Filed 03/24/21 Page 21 of 32
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`Status Assessment 17. This is particularly true for the rusty patched bumble bee, as
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`its colonies are large compared to those of most bumble bee species. Id.
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`66. The Service has explained that “even slight changes in resource
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`availability could have significant cumulative effects on colony development and
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`productivity,” Status Assessment 50. Indeed, “even slight improvements in resource
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`availability could . . . improve the bees’ resilience to other stressors, such as
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`pesticides and pathogens,” 85 Fed. Reg. at 54,284.
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`67. Restoring and maintaining large population sizes is crucial because
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`“smaller populations are inherently more vulnerable to extirpation.” Status
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`Assessment 17.
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`68. And quantity of habitat alone is not the only important factor for the
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`bee’s survival and
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