Case 1:21-cv-00884-EGS Document 1 Filed 04/01/21 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Case No: ________________
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`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
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`CENTER FOR BIOLOGICAL DIVERSITY,
`378 N. Main Avenue
`Tucson, AZ 85701,
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`Plaintiff,
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`v.
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`U.S. FISH AND WILDLIFE SERVICE,
`1849 C Street, N.W.
`Washington, DC 20240,
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`MARTHA WILLIAMS,
`in her official capacity as acting Director of
`the U.S. Fish and Wildlife Service,
`1849 C Street, N.W.
`Washington, DC 20240,
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`SECRETARY, U.S. DEPARTMENT OF THE
`INTERIOR,
`1849 C Street, N.W.
`Washington, DC 20240,
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`Defendants.
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`______________________________________
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`
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`and,
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`INTRODUCTION
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`1.
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`The Earth is in the midst of an ongoing and unprecedented human-caused
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`extinction crisis. The United Nations’ Intergovernmental Science-Policy Platform on
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`Biodiversity and Ecosystem Services warns that the current rate of global species extinction is
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`tens to hundreds of times greater than average over the last 10 million years, and is accelerating.
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`Approximately one million species are headed toward extinction.
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`1
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`2.
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`The Endangered Species Act, 16 U.S.C. §§ 1531–1544 (“ESA” or “Act”), is
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`successful at stopping species’ extinction, but the Act can only succeed after species are listed
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`and thus protected as “endangered” or “threatened” by the U.S. Fish and Wildlife Service
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`(“Service”) under section 4 of the ESA. Id. § 1533(a), (b). During the Trump administration,
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`however, the Service listed the fewest number of species as “endangered” or “threatened,” on
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`average, of any administration.
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`3.
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`Despite this abysmal record, the Service claims that it has been making
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`“expeditious progress” in adding species to the lists of endangered and threatened species, as the
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`agency must show under the ESA, id. § 1533(b)(3)(B)(iii), to justify dragging its feet in listing,
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`at this time, 10 “candidate” species—i.e., 10 species that the Service has determined “warrant”
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`protection as endangered or threatened but which are awaiting final listing rules. These 10
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`candidate species are the: northern spotted owl (Strix occidentalis caurina); monarch butterfly
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`(Danaus plexippus plexippus); Peñasco least chipmunk (Tamias minimus atristriatus); gopher
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`tortoise (eastern population) (Gopherus polyphemus); longfin smelt (San Francisco Bay-Delta
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`population) (Spirinchus thaleichthys); Texas pimpleback (a mussel) (Cyclonaias petrina); Texas
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`fawnsfoot (a mussel) (Truncilla macrodon); Texas fatmucket (a mussel) (Lampsilis bracteate);
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`magnificent ramshorn (a snail) (Planorbella magnifica); and bracted twistflower (Streptanthus
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`bracteatus) (collectively “10 species”). The Service’s baseless claims—that it is making
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`expeditious progress to add species to the lists of endangered and threatened species, and that the
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`immediate listing of these 10 species is precluded by other higher priorities—are set forth in
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`three administrative documents. See Review of Domestic Species That Are Candidates for
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`Listing as Endangered or Threatened; Annual Notification of Findings on Resubmitted Petitions;
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`Annual Description of Progress on Listing Actions, 85 Fed. Reg. 73,164 (Nov. 16, 2020)
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`2
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`(warranted but precluded finding for the Peñasco least chipmunk, gopher tortoise (eastern
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`population), longfin smelt (San Francisco Bay-Delta population), Texas pimpleback, Texas
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`fawnsfoot, Texas fatmucket, magnificent ramshorn, and bracted twistflower) (“2020 CNOR”);
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`12-Month Finding for the Northern Spotted Owl, 85 Fed. Reg. 81,144 (Dec. 15, 2020); 12-
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`Month Finding for the Monarch Butterfly, 85 Fed. Reg. 81,813 (Dec. 17, 2020) (collectively
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`“warranted but precluded findings”).
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`4.
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`The Service claims its ability to complete the ESA rulemakings for these 10
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`species is being impeded by the agency’s focus on higher priority listing activities (including
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`removing species from the lists of endangered and threatened species). Yet the Service is
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`consistently missing its own internal deadlines for these priorities which are set forth in agency
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`“workplans.”
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`5.
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`Languishing in regulatory limbo without a final listing decision can be a death
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`sentence for these endangered and threatened species. At least 47 species have gone extinct
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`while waiting for protection under the Act. But despite this dark history, the Service has failed to
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`provide these 10 species with urgently needed protections under the ESA for years.
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`6.
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`There is no legal justification for the Service’s foot-dragging and bureaucratic
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`delays. Rather, the Service’s warranted but precluded findings for these 10 species violate the
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`ESA because the Service has not made “expeditious progress” in adding qualified species to the
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`endangered or threatened species lists, and because the Service has not shown that the immediate
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`proposal and prompt final listing of these 10 species is “precluded” by higher-priority imperiled
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`species. 16 U.S.C. § 1533(b)(3)(B)(iii).
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`3
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`7.
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`Plaintiff Center for Biological Diversity (“Center”) thus brings this lawsuit under
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`the ESA’s citizen-suit provision to challenge the Service’s arbitrary and capricious refusal to
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`protect these 10 species in violation of the ESA. Id. § 1540(g)(1)(C).
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`JURISDICTION AND VENUE
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`8.
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`This Court has jurisdiction pursuant to the citizen suit provision of the ESA. Id. §
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`1540(c), (g) (“The several district courts of the United States… shall have jurisdiction over any
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`actions arising under this Act.”). The Court also has jurisdiction pursuant to 28 U.S.C. § 1331
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`and 28 U.S.C. § 1346 because this action involves the United States as a defendant and arises
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`under the laws of the United States, including the ESA or, alternatively, the Administrative
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`Procedure Act (“APA”). The requested relief is proper under 16 U.S.C. § 1540(g)(1); 28 U.S.C.
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`§§ 2201–2202; and 5 U.S.C. §§ 704, 706.
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`9.
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`The U.S. District Court for the District of Columbia is the proper venue for this
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`action, pursuant to 16 U.S.C. § 1540(g)(3)(A) and 28 U.S.C. § 1391(e), because Defendants
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`reside in this district.
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`10.
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`In compliance with 16 U.S.C. § 1540(g)(2)(C), the Center gave notice to
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`Defendants of the Center’s intent to file suit under the Act for the violations described in this
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`complaint more than 60 days ago. These violations have not been remedied.
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`PARTIES
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`11.
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`The Center is a non-profit corporation headquartered in Tucson, Arizona, with
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`offices throughout the country, including Washington, D.C. The Center works through science,
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`law, and creative media to secure a future for all species, great or small, hovering on the brink of
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`4
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`extinction. The Center is actively involved in species and habitat protection issues. The Center
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`has more than 84,000 members throughout the United States and the world.
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`12.
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`The Center routinely petitions for the listing of imperiled species as endangered or
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`threatened, including species such as the longfin smelt, magnificent ramshorn, monarch
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`butterfly, and many more. On behalf of itself and its members, the Center has an interest in the
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`effective implementation of the ESA and the timely listing of endangered or threatened species,
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`including the timely listing of imperiled species for which the Center and others have submitted
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`listing petitions.
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`13.
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`The Center brings this action on behalf of itself and its many members who derive
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`aesthetic, recreational, scientific, spiritual, and other concrete benefits from the 10 species and
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`their habitats. The Center has members that endeavor to observe these species and have ongoing
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`interests in the species and their habitats. The Center has members who have concrete plans to
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`visit these species’ habitats and try to observe them. Defendants’ actions have harmed and
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`continue to harm the Center’s members’ interests in observing, studying, and otherwise enjoying
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`the species and their habitats. The relief sought in this case would redress this harm.
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`14.
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`Defendants’ ESA violations are also subverting the Center’s core mission to
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`safeguard endangered and threatened species. As a consequence of Defendant’s unlawful delay
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`in protecting the species at issue in this suit, the Center has been compelled to expend resources
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`(exclusive of this litigation) on alternative means of protecting the species, which has diverted
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`time and resources that could and would have been spent on other activities that are central to the
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`Center’s mission to conserve imperiled species.
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`5
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`15.
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`Defendant U.S. Fish and Wildlife Service is a federal agency within the U.S.
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`Department of the Interior with delegated primary authority for administration of the ESA with
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`respect to terrestrial species. 50 C.F.R. § 402.01(b).
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`16.
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`Defendant Martha Williams is the acting Director of the U.S Fish and Wildlife
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`Service and is charged with ensuring agency decisions comply with the law. Plaintiff sues
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`Defendant Williams in her official capacity.
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`17.
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`Defendant Secretary of the Interior (“Secretary”) has the ultimate responsibility to
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`administer and implement the provisions of the ESA regarding the 10 species at issue in this suit,
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`and to comply with all other federal laws applicable to the U.S. Department of the Interior.
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`Plaintiff sues Defendant Secretary in their official capacity.
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`STATUTORY AND REGULATORY FRAMEWORK
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`18.
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`Congress passed the ESA “to provide a program for the conservation of . . .
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`endangered species and threatened species,” and to “provide a means whereby the ecosystems
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`upon which endangered species and threatened species depend may be conserved.” 16 U.S.C. §
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`1531(b). The Supreme Court has stated that the ESA is “the most comprehensive legislation for
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`the preservation of endangered species ever enacted by any nation[,]” and that the “plain intent
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`of Congress in enacting th[e] statute was to halt and reverse the trend toward species extinction,
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`whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 184 (1978).
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`19. When enacting the ESA, Congress declared that “all Federal departments and
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`agencies shall seek to conserve endangered species and threatened species and shall utilize their
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`authorities in furtherance of the purposes of this [Act].” 16 U.S.C. § 1531(c)(1).
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`20.
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`The ESA provides substantive protection for “species” once they are listed as
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`“endangered” or “threatened.” Id. § 1533. A “species” is defined as “any subspecies of fish or
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`wildlife or plants, and any distinct population segment [“DPS”] of any species of vertebrate fish
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`or wildlife which interbreeds when mature.” Id. § 1532(16). An “endangered species” is “any
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`species which is in danger of extinction throughout all or a significant portion of its range,” and a
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`“threatened species” is “any species which 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(6), (20).
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`21.
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`The Service must list a species as endangered or threatened based on the presence
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`of any one or more of five statutory factors: “(A) the present or threatened destruction,
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`modification, or curtailment of its habitat or range; (B) overutilization for commercial,
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`recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of
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`existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued
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`existence.” Id. § 1533(a)(1). In making its listing determinations, the Service must use the “best
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`scientific and commercial data available . . .” Id. § 1533(b)(1)(A); 50 C.F.R. § 424.11(b).
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`22.
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`The ESA applies a suite of substantive legal protections once species are listed as
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`endangered or threatened. For example, ESA section 7(a)(2) requires all federal agencies to
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`ensure that their actions do not “jeopardize the continued existence” of any endangered or
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`threatened species or “result in the destruction or adverse modification” of any listed species’
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`“critical habitat.” 16 U.S.C. § 1536(a)(2). ESA section 9 prohibits, among other actions, “any
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`person” from “taking” protected wildlife without lawful authorization from the Service. Id. §§
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`1538(a)(1)(B), 1539. Other provisions require the Service to designate “critical habitat” for listed
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`species, id. § 1533(a)(3); require the Service to “develop and implement” recovery plans for
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`listed species, id. § 1533(f); authorize the Service to acquire land for the protection of listed
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`species, id. § 1534; and authorize the Service to make federal funds available to states in order to
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`assist in the conservation of endangered and threatened species, id. § 1535(d).
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`23.
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`The ESA includes a process with mandatory deadlines for responding to a petition
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`from any “interested person” to list a species as endangered or threatened. Id. § 1533(b)(3).
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`Within 12 months after receiving a petition which is found to “present substantial information
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`indicating that the petitioned action may be warranted,” the Service must make one of three
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`findings: (1) the petitioned action is “not warranted,” (2) the petitioned action is “warranted,” or
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`(3) the petitioned action is “warranted, but . . . precluded.” Id. § 1533(b)(3)(B)(i)–(iii).
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`24.
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`If the Service finds that a petitioned action is “warranted but precluded,” it must
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`show that “the immediate proposal and timely promulgation” of a final regulation is both
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`“precluded by pending proposals to determine whether any species is an endangered species or a
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`threatened species,” and that the Service is making “expeditious progress . . . to add qualified
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`species” to the endangered and threatened species lists “and to remove from such lists species for
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`which the protections of the Act are no longer necessary.” Id. § 1533(b)(3)(B)(iii). A “warranted
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`but precluded” listing determination and the Service’s delay in publication of the final regulation
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`listing a species is lawful only under these “limited conditions,” and may not be used to justify
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`“the foot-dragging efforts of a delinquent agency.” H. Rep. No. 97-835, at 22 (1982) (Conf.
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`Rep.), as reprinted in 1982 U.S.C.C.A.N. 2860, 2863.
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`25.
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`If the Service determines that a petition to list a species is “warranted but
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`precluded,” the Service must treat that petition “as a petition that is resubmitted to the [the
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`Service] . . . on the date of such finding.” 16 U.S.C. § 1533(b)(3)(C)(i). Hence, the Service must
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`make a new determination within 12 months as to whether the species will finally be listed or
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`again denied the Act’s protections on the grounds that its listing is “precluded” by other listing
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`activities. Id. The Service typically publishes these “recycled” 12-month findings for “warranted
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`but precluded” species annually, in a document called a “Candidate Notice of Review”
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`(“CNOR”) which is published in the Federal Register. The ESA provides that any “warranted but
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`precluded” finding “shall be subject to judicial review.” Id. § 1533(b)(3)(C)(ii).
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`26.
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`CNORs include all species that the Service has determined to be “candidates” for
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`listing. Candidates are species for which the Service has “on file sufficient information on
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`biological vulnerability and threats to support issuance of a proposal for listing as endangered or
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`threatened, but for which preparation and publication of a proposal is precluded by higher
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`priority listing actions.” 85 Fed. Reg. at 73,164. Candidate species include species which have
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`received “warranted but precluded” listing determinations. Although the agency has determined
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`that all candidate species should be listed, based on the best available data—meaning the Service
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`has determined the species need ESA protections to survive—candidates receive none of the
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`Act’s substantive protections.
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`27.
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`The Service applies “listing priority guidelines” to “determine relative priorities
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`of outstanding actions.” 85 Fed. Reg. 73,168. Under this system, the Service assigns candidates a
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`“listing priority number” of 1 to 12. Id. Lower numbers signify higher listing priority.
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`FACTUAL BACKGROUND
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`28.
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`On November 16, 2020, the Service published the 2020 CNOR and determined
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`that eight species continued to warrant listing as endangered or threatened species: the eastern
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`population of gopher tortoise, Texas fatmucket, Texas fawnsfoot, and Texas pimpleback,
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`magnificent ramshorn, bracted twistflower, Peñasco least chipmunk, and the Bay-Delta DPS of
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`the longfin smelt. See id. at 73,173–75. Despite each species facing serious imminent threats to
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`their continued existence, the Service has left them in regulatory limbo for years.
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`29.
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`The eastern population of gopher tortoise, for instance, has awaited listing for
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`nearly a decade, after the Service first found that it warranted listing in 2011 due to threats
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`including habitat fragmentation and loss from agricultural and silvicultural practices inhospitable
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`to the tortoise, urbanization, and the spread of invasive species. 76 Fed. Reg. 45,130, 45,154–155
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`(July 27, 2011).
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`30.
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`Similarly, the Service first found that three freshwater mussels in central Texas—
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`the Texas fatmucket, Texas fawnsfoot, and Texas pimpleback—warranted listing in 2011 due to
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`the degradation of their freshwater habitat and habitat loss from dams and impoundments. 76
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`Fed. Reg. 62,166, 62,177 (Oct. 6, 2011). The Service, then and again in the 2020 CNOR,
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`assigned these species the highest possible listing priority number. Id. at 62,187, 62,201, 62,205.
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`31.
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`The magnificent ramshorn, a freshwater mussel endemic to the lower Cape Fear
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`River basin in North Carolina, was also found to warrant listing in 2011 and appears to be
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`extirpated from the wild due to habitat loss and degradation, with only a small captive population
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`remaining in existence. 76 Fed. Reg. 66,370, 66,372–73. (Oct. 26, 2011).
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`32.
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`Endemic to a small portion of the Edwards Plateau of Texas, the Service first
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`found that the bracted twistflower warranted listing in 2011 due to habitat loss from urban
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`development, over-grazing by white-tailed deer, increased woody plant cover, erosion and
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`trampling from recreation, a pathogenic fungus, insufficiently protective regulatory mechanisms,
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`and threats resulting from small remaining population sizes such as insufficient genetic diversity.
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`Id. at 66,373.
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`33.
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`In 2012, the Service found that the Bay-Delta DPS of the longfin smelt warranted
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`listing because the species faces high magnitude threats, including reduced freshwater flows,
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`contaminants, and introduced species. 77 Fed. Reg. 19,756, 19,787–88 (Apr. 2, 2012); see also
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`85 Fed. Reg. at 73,173 (noting that the effects of climate change currently threaten the species).
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`10
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`Currently, “[l]ongfin smelt abundance over the last decade is the lowest recorded in the 40-year
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`history of surveys….” 85 Fed. Reg. at 73,173.
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`34.
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`Finally, the Service in 2012 found that the Peñasco least chipmunk, now gone
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`from one of only two areas it was once known to occur, is threatened by the loss of its native
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`mature ponderosa pine habitat and habitat fragmentation. 77 Fed. Reg. 69,994, 69,996 (Nov. 21,
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`2012). Given the vulnerability of the last remaining population, the Service determined it
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`warranted listing. Id.
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`35.
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`On December 15, 2020, the Service also found that the northern spotted owl
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`warranted reclassification from a threatened species to an endangered species due to declining
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`populations and increased extinction risk due to habitat loss, timber harvest, wildfire, insect and
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`forest disease outbreaks, and invasive competitors. 85 Fed. Reg. 81,145–46. The Service found
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`that these stressors “are of such imminence, intensity, and magnitude” that the northern spotted
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`owl “is now in danger of extinction throughout all of its range.” Id. at 81,146.
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`36.
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` On December 17, 2020, the Service found that the monarch butterfly warranted
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`listing under the ESA due to habitat loss and degradation, herbicides, insecticides, the effects of
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`climate change, and the loss of winter habitat in Mexico and California due to logging, poor
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`management, urban development, and drought. 85 Fed. Reg. 81,814–15. As a result of these and
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`other threats, the “probability of the population abundance reaching the point at which extinction
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`is inevitable” is 24–46 percent in 30 years for the eastern North American population, and 92–95
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`percent in 30 years for the western North American population. Id. at 81,815.
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`37.
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`Despite finding that listing all 10 of these species is currently warranted—i.e., that
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`the species are in danger of extinction now or in the foreseeable future and in need of the Act’s
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`protections—the Service avoided actually doing so. The Service has attempted to justify its foot-
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`dragging by claiming that it has been making expeditious progress in listing (and de-listing)
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`other species, and that listing these 10 species is precluded by these and other actions. Neither of
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`these assertions are supported by the facts.
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`Lack of “Expeditious Progress”
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`38.
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`To justify its “warranted but precluded” determinations for these 10 species, the
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`Service claimed—first in the 2020 CNOR and again in both the northern spotted owl’s and
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`monarch butterfly’s 12-month findings echoing the excuses set forth in the 2020 CNOR—that it
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`has been making expeditious progress in adding qualified species to the lists of endangered and
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`threatened species. See 85 Fed. Reg. 73,169–73; 85 Fed. Reg. at 81,148–52; 85 Fed. Reg. at
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`81,818–22.
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`39.
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`However, the Service listed just seven species in fiscal years 2019 and 2020 as
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`reported in the warranted but precluded findings, see 85 Fed. Reg. 73,169; 85 Fed. Reg. at
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`81,148; 85 Fed. Reg. at 81,818, and listed just 21 species during the entire four years of the
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`Trump administration—a rate of just five species per year.
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`40.
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`By comparison, the Service listed a total of 329 species during the eight years of
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`the Obama administration, a rate of 41 species per year, and 508 species during the eight years of
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`the Clinton administration, a rate of 64 species per year.
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`41.
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`The Service attempted to blame its paltry rate of listings over the last four years
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`on insufficient funding from Congress. 85 Fed. Reg. at 73,169; 85 Fed. Reg. at 81,148; 85 Fed
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`Reg. at 81,818. However, the Service has listed far more species with fewer resources in the past.
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`The Service’s budget for listing has remained consistently between approximately $18–22
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`million since 2008 and remained so during the Trump administration. Yet during the Trump
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`administration the Service listed a fraction of the species listed during the Obama administration.
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`42.
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`The Service also attempted to justify its delay in giving essential protections to
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`the species at issue in this suit by pointing to the agency’s work to remove species from the lists
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`of endangered and threatened species, including de-listing seven species and “down-listing”
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`another species from “endangered” to “threatened.” 85 Fed. Reg. at 73,169; 85 Fed. Reg. at
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`81,148; 85 Fed Reg. at 81,818. However, the number of species that lose protections under the
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`Act cannot, by itself, support a “warranted but precluded” finding, which requires the Service to
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`demonstrate that it is making “expeditious progress” both in adding species to the lists of
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`endangered and threatened species and in removing any recovered species from the list. 16
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`U.S.C. § 1533(b)(3)(B)(iii)(II). In addition, the appropriations for de-listing are separate from
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`those for listings, so the amount of money spent on the former cannot, as a factual as well as a
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`legal matter, detract from the funds available for listing. See 85 Fed. Reg. at 73,167 (noting that
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`removing species from the list is not subject to the same funding cap).
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`Supposed “Preclusion”
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`43.
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`The Service also fails to detail what higher priority species preclude “the
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`immediate proposal and timely promulgation of a final” listing determination for each of these
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`10 species, 16 U.S.C. § 1533(b)(3)(B)(iii)(I), and instead vaguely points to a workplan for
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`completing outstanding status assessments and 12-month findings. 85 Fed. Reg. at 73,167–69; 85
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`Fed. Reg. at 81,146–48; 85 Fed. Reg. at 81,816–18. But the Service never demonstrates how this
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`work actually precludes the immediate listing of these 10 species.
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`44.
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`Even if the Service had identified specific species in its workplan that preclude
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`listing these 10 species, it has largely failed to implement the workplan. The Service failed to
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`make findings scheduled in the workplan for 30 species in Fiscal Year 2017, the first year the
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`workplan was in effect. In Fiscal Year 2018, that number rose to 78. And in Fiscal Years 2019
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`Case 1:21-cv-00884-EGS Document 1 Filed 04/01/21 Page 14 of 17
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`and 2020, it was 46 and 58 species, respectively. The Service certainly cannot rely on a workplan
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`that it has failed to implement to justify precluding the listing of these 10 severely imperiled
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`species.
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`45.
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`Compounding its error, the Service also stated that the listing of these 10 species
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`is precluded by the development of proposed and final critical habitat regulations. 85 Fed. Reg.
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`at 73,168–69; 85 Fed. Reg. at 81,148; 85 Fed. Reg. at 81,817. But the immediate listing of these
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`10 species can only be precluded “by pending proposals to determine whether any species is an
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`endangered species or a threatened species[,]” and not other work the Service deems to be a
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`higher priority.
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`CLAIMS FOR RELIEF
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`First Claim for Relief
`(ESA Citizen Suit Claim)
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`The Service’s “Warranted but Precluded” Findings Fail to Show the Service is Making
`Expeditious Progress to Add Species to the Lists of Endangered or Threatened Species, and
`that Listing These Species is Precluded by Pending Proposals to Determine Whether Any
`Species is an Endangered or Threatened Species
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`The Center re-alleges and incorporates by reference the allegations set forth in the
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`46.
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`preceding paragraphs.
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`47.
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`The Service can find the prompt listing of a petitioned for species is “warranted
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`but precluded” only if “expeditious progress is being made to add qualified species to [the lists of
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`endangered or threatened species] and to remove from such lists species for which the
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`protections of the Act are no longer necessary,” and “the immediate proposal and timely
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`promulgation of a final regulation implementing the petitioned action … is precluded by pending
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`proposals to determine whether any species is an endangered species or a threatened species[.]”
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`16 U.S.C. § 1533(b)(3)(B)(iii).
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`Case 1:21-cv-00884-EGS Document 1 Filed 04/01/21 Page 15 of 17
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`48.
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`If the Service is not making expeditious progress to add species to the lists of
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`endangered and threatened species, or the listing of a species is not precluded by other pending
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`proposals, the Service must immediately propose and timely promulgate a final listing
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`determination. Id. § 1533(b)(3)(B)(iii)(I).
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`49.
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`The Service is not making expeditious progress to add species to the lists of
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`endangered and threatened species, and the Service has failed to show that the prompt listing of
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`the northern spotted owl, monarch butterfly, Peñasco least chipmunk, eastern population of
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`gopher tortoise, San Francisco Bay-Delta population longfin smelt, Texas pimpleback, Texas
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`fawnsfoot, Texas fatmucket, and magnificent ramshorn is precluded by pending proposals to
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`determine whether any species is an endangered or threatened species.
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`50.
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`The Service is denying vital ESA protections to these 10 species in violation of its
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`mandatory duties imposed by the ESA, and its failure to make prompt listing determinations for
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`the 10 species is arbitrary and capricious, and in violation of the ESA. Id. § 1533(b)(3)(B)(iii); 5
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`U.S.C. § 706(2)(A).
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`Second Claim for Relief
`(in the Alternative to Plaintiff’s First Claim for Relief)
`(APA Claim)
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`The Service’s “Warranted but Precluded” Findings are Arbitrary and Capricious
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`51.
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`The Center re-alleges and incorporates by reference the allegations set forth in the
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`preceding paragraphs.
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`52. When making the “warranted but precluded” findings, the Service is required to
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`articulate a satisfactory explanation for its actions, including a rational connection between the
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`facts found and the choice made. It cannot rely on factors Congress did not intend the agency to
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`consider, ignore an important aspect of the problem, offer an explanation that runs counter to the
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`Case 1:21-cv-00884-EGS Document 1 Filed 04/01/21 Page 16 of 17
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`evidence before the agency, or issue a finding so implausible that it cannot be ascribed to a
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`difference in view or the product of agency expertise.
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`53.
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`The Service is not making expeditious progress to add species to the lists of
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`endangered and threatened species, and has not shown that listing of the northern spotted owl,
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`monarch butterfly, Peñasco least chipmunk, eastern population of gopher tortoise, San Francisco
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`Bay-Delta population longfin smelt, Texas pimpleback, Texas fawnsfoot, Texas fatmucket, and
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`magnificent ramshorn is precluded by pending proposals to determine the status of other species.
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`54.
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`The Service has failed to articulate a satisfactory explanation for its “warranted
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`but precluded” findings, failed to articulate how the agency is making expeditious progress to
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`add species to the lists of endangered and threatened species, and failed to articulate how the
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`prompt listing of the 10 species was precluded by pending proposals to determine whether any
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`species is an endangered or threatened species. The Service similarly relied on factors Congress
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`did not intend for it to consider, ignored important aspect of the problems, offered an explanation
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`that runs counter to the evidence before it, and issued finding so implausible that they cannot be
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`ascribed to a difference in view or the product of agency expertise.
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`55.
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`Accordingly, the Service’s “warranted but precluded” findings are arbitrary,
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`capricious, an abuse of discretion, and not in accordance with law. 5 U.S.C. § 706(2).
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`REQUEST FOR RELIEF
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`
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`1.
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`WHEREFORE, Plaintiff respectfully requests that the Court issue an Order:
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`Declaring that Defendants are unlawfully depriving the 10 species of protection
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`under the ESA;
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`2.
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`Ordering Defendants to immediately publish proposed rules for the 10 species
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`according to a schedule to be fashioned by the Court;
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`Case 1:21-cv-00884-EGS Document 1 Filed 04/01/21 Page 17 of 17
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`Awarding Plaintiff its attorneys’ fees and costs; and
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`Awarding Plaintiff such other relief as the Court deems just and proper.
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`3.
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`4.
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`DATED: April 1, 2021
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`Respectfully submitted,
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`/s/ Ryan Adair Shannon
`Ryan Adair Shannon (D.C. Bar No. OR0007)
`CENTER FOR BIOLOGICAL DIVERSITY
`P.O. Box 11374
`Portland, OR 97211
`Tel: (917)717-6407
`rshannon@biologicaldiversity.org
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`Amy R. Atwood (D.C. Bar No. 470258)
`CENTER FOR BIOLOGICAL DIVERSITY
`P.O. Box 11374
`Portland, OR 97211
`Tel: (917) 717-6401
`atwood@biologicaldiversity.org
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`Attorneys for Plaintiff
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`17
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