Case 1:21-cv-01045 Document 1 Filed 04/15/21 Page 1 of 26
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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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`))))))))))))))))))))))))))))
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`
`CENTER FOR BIOLOGICAL DIVERSITY,
`378 N. Main Avenue
`Tucson, AZ 85701,
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`
`
`
`
`Plaintiff,
`
`
`v.
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`
`
`U.S. FISH AND WILDLIFE SERVICE,
`1849 C Street, N.W.
`Washington, DC 20240,
`
`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,
`
` and
`
`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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`INTRODUCTION
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`This lawsuit concerns defendants’ failure to carry out their mandatory duties
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`1.
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`under the Endangered Species Act, 16 U.S.C. § 1531-1544 (“ESA” or “Act”). The lead
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`defendant in this matter, the U.S. Fish and Wildlife Service, (“the Service”), has failed to classify
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`nine species as endangered or threatened, and has failed to designate “critical habitat” for 10
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`listed species, as mandated under section 4 of the ESA. 16 U.S.C. § 1533(b)(3), (5). These 19
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`Case 1:21-cv-01045 Document 1 Filed 04/15/21 Page 2 of 26
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`species include five insects, 11 plants, a mammal, and two aquatic species that are at risk of
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`extinction due to habitat degradation and destruction, climate change, and other threats.
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`2.
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`Therefore, plaintiff the Center for Biological Diversity (“Center”), a national
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`nonprofit conservation organization, brings this action under the ESA’s citizen-suit provision, id.
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`§ 1540(g)(1), to obtain remedies for defendants’ failures to comply with the law by directing
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`them to issue the overdue findings by Court-ordered deadlines.
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`3.
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`Specifically, the Center seeks enforceable deadlines for defendants: (1) to publish
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`overdue “12-month” listing determinations for the Mojave poppy bee, Las Vegas bearpoppy,
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`Gulf Coast solitary bee, and the Bethany Beach firefly as endangered or threatened; (2) publish
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`final rules listing the Franklin’s bumble bee, Sierra Nevada red fox, and Bartram’s stonecrop; (3)
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`publish final rules listing and designating critical habitat for the Hermes copper butterfly and
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`Beardless chinchweed; (4) designate critical habitat for the Big Pine partridge pea, Blodgett’s
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`silverbush, sand flax, wedge spruge, Everglades bully, Florida pineland crabgrass, Florida
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`prairie-clover, Pineland sandmat, and Pearl darter; and (5) publish a final rule implementing the
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`Service’s designation of critical habitat for the Suwannee moccasinshell.
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`JURISDICTION AND VENUE
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`4.
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`The Court has jurisdiction over this action pursuant to 16 U.S.C. § 1540(c) and
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`(g)(1)(C) (action arising under ESA citizen suit provision) and 28 U.S.C. § 1331 (federal
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`question jurisdiction).
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`5.
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`The Court may grant the relief requested under the ESA, 16 U.S.C. § 1540(g) and
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`28 U.S.C. §§ 2201 and 2202 (declaratory and injunctive relief).
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`6.
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`The Center provided 60 days’ notice of the violations alleged herein by letters to
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`defendants dated January 6, 2021 (Big Pine partridge pea, Blodgett’s silverbush, sand flax,
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`Case 1:21-cv-01045 Document 1 Filed 04/15/21 Page 3 of 26
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`wedge spurge, Everglades bully, Florida pineland crabgrass, Florida prairie-clover, and pineland
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`sandmat); January 7, 2021 (Mojave poppy bee, Las Vegas bearpoppy, Gulf Coast solitary bee,
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`Bethany Beach firefly, and Franklin’s bumble bee); January 12, 2021 (Suwannee moccasinshell);
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`January 15, 2021 (Hermes copper butterfly, a “distinct population segment” or “DPS” of the
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`Sierra Nevada red fox, Bartram’s Stonecrop, and beardless chinchweed); and January 19, 2021
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`(Pearl darter). Defendants have not remedied their continuing ESA violations by the date of this
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`Complaint. Therefore, an actual controversy exists between the parties under 28 U.S.C. § 2201.
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`7.
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`The federal government has waived sovereign immunity in this action pursuant to
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`16 U.S.C. § 1540(g) and 5 U.S.C. § 702.
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`8.
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`Venue is proper in the United States 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 defendants reside in the
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`district and a substantial part of the events giving rise to the Center’s claims occurred in this
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`district.
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`PARTIES
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`9.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY is a nonprofit organization
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`that works through science, law, and creative media to secure a future for all species, great or
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`small, hovering on the brink of extinction. The Center is incorporated in California and
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`headquartered in Tucson, Arizona, with field offices throughout the United States and Mexico,
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`including in Washington, D.C. The Center has over 84,000 members. The Center and its
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`members are concerned with the conservation of imperiled species, including the ones at issue in
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`this suit, and with the Service’s effective implementation of the ESA.
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`10.
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`The Center’s members and staff include individuals with a broad range of
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`scientific, professional, educational, recreational, aesthetic, moral, and spiritual interests in the
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`Suwannee moccasinshell, Big Pine partridge pea, Blodgett’s silverbush, sand flax, wedge spurge,
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`Everglades bully, Florida pineland crabgrass, Florida prairie-clover, Pineland sandmat, Mojave
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`poppy bee, Las Vegas bearpoppy, Gulf Coast solitary bee, Bethany Beach firefly, Franklin’s
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`bumble bee, Pearl darter, Hermes copper butterfly, Sierra Nevada red fox, Bartram’s stonecrop,
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`and the beardless chinchweed. In addition, the Center’s members and staff use and enjoy these
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`species’ habitats for biological, scientific, research, educational, conservation, recreational, and
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`aesthetic purposes. The Center’s members have concrete plans to visit these species’ habitats in
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`the future.
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`11.
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`The Center and its members’ interests in these species and their habitats depend
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`upon the conservation of these species in the wild. Yet, unless these species and their habitats are
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`promptly protected under the ESA, they will continue to decline and may go extinct. Out of these
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`concerns, the Center and other interested persons have submitted petitions to the Service to
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`extend the substantive protections of the ESA to these species by listing them as “endangered” or
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`“threatened.” Defendants’ failure to comply with their nondiscretionary duties under the ESA
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`deprives these species of statutory protections that are necessary to their survival and recovery.
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`Until these species are protected under the ESA, the Center and its members’ future interests in
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`these species and/or their habitat are impaired.
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`12.
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`The Center and its members are injured by defendants’ failure to publish timely
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`listing decisions and critical habitat designations. Defendants’ failure to act has delayed the
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`application of the ESA’s protections to these species, making the conservation of these species
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`more difficult. These injuries are actual, concrete injuries that are presently suffered by the
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`Center and its members, are directly caused by defendants’ acts and omissions, and will continue
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`unless the Court grants relief. The relief sought would redress these injuries. The Center and its
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`members have no adequate remedy at law.
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`13.
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`Defendant UNITED STATES FISH AND WILDLIFE SERVICE is the agency
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`within the Department of the Interior charged with implementing the ESA for the species at issue
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`in this suit, including through prompt compliance with the ESA’s mandatory listing and critical
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`habitat deadlines. The Secretary has delegated administration of the ESA to the Service. 50
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`C.F.R. § 402.01(b).
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`14.
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`Defendant MARTHA WILLIAMS is the acting Director of the U.S. Fish and
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`Wildlife Service and is charged with ensuring agency decisions comply with the ESA. Plaintiff
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`sues Defendant Williams in her official capacity.
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`15.
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`Defendant SECRETARY, U.S. DEPARTMENT OF THE INTERIOR
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`(“Secretary”) has the ultimate responsibility to administer and implement the provisions of the
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`ESA regarding these species. Plaintiff sues the Secretary in their official capacity.
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`STATUTORY FRAMEWORK
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`16.
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`The ESA is a comprehensive federal statute declaring that endangered and
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`threatened species are of “esthetic, ecological, educational, historical, recreational, and scientific
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`value to the Nation and its people.” 16 U.S.C. § 1531(a)(3). The purpose of the ESA is to
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`“provide a means whereby the ecosystems upon which endangered species and threatened
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`species depend may be conserved, [and] to provide a program for the conservation of such
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`endangered species and threatened species.” Id. § 1531(b).
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`17.
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`The ESA has a suite of substantive legal protections that apply to “species,” id. §
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`1532(16) (defining “species”) once they are listed as endangered or threatened. For example,
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`section 4(a)(3) of the Act requires the Service to designate “critical habitat” for each endangered
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`and threatened species. Id. § 1533(a)(3).
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`18.
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`In addition, ESA section 7(a)(2) requires all federal agencies to ensure that their
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`actions do not “jeopardize the continued existence” of any endangered or threatened species or
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`“result in the destruction or adverse modification” of any listed species’ “critical habitat.” Id. §
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`1536(a)(2). ESA section 9 prohibits, among other actions, “any person” from causing the “take”
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`of any protected fish or wildlife without lawful authorization from the Service. Id. §§
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`1538(a)(1)(B), 1539; see also id. § 1532(19) (defining “take”). Other provisions require the
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`Service to “develop and implement” recovery plans for listed species, id. § 1533(f); authorize the
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`Service to acquire land for the protection of listed species, id. § 1534; and authorize the Service
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`to make federal funds available to states to assist in the conservation of endangered and
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`threatened species, id. § 1535(d).
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`A.
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`Listing Species as Endangered or Threatened Under the ESA
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`19.
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`The ESA defines a “species” as “any subspecies of fish or wildlife or plants, and
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`any distinct population segment of any species of vertebrate fish or wildlife which interbreeds
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`when mature.” Id. § 1532(16). A “distinct population segment” of a species is also known as a
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`“DPS.”
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`20.
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`A species is “endangered” when it “is in danger of extinction throughout all or a
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`significant portion of its range.” 16 U.S.C. § 1532(6). A species is “threatened” when it is “likely
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`to become an endangered species within the foreseeable future throughout all or a significant
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`portion of its range.” Id. § 1532(20).
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`21.
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`To ensure that endangered and threatened species are protected before it is too
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`late, ESA section 4 sets forth a detailed process that requires that the Secretary list species as
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`“endangered” or “threatened” based on five statutory categories of threats. Id. § 1533(a)(1).
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`22.
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`To ensure that listing decisions are timely, interested persons may petition the
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`Service to list a species as endangered or threatened. In response, the Service must publish a
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`series of three decisions according to statutory deadlines.
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`23.
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`First, within 90 days of receipt of a listing petition, the Service must, “to the
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`maximum extent practicable,” publish an initial finding as to whether the petition “presents
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`substantial scientific or commercial information indicating that the petitioned action may be
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`warranted.” Id. § 1533(b)(3)(A). This is known as the “90-day finding.” If the Service finds in
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`the 90-day finding that the petition does not present substantial information indicating that listing
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`may be warranted, the petition is rejected and the process concludes.
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`24.
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`If, as in this case, the Service determines that a petition does present substantial
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`information indicating that listing “may be warranted,” the agency must publish that finding and
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`proceed with a scientific review of the species’ status, known as a “status review.” Id.
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`25.
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`Upon completing the status review, and within 12 months from receiving the
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`petition, the Service must publish a “12-month finding” with one of three listing determinations,
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`i.e. that either: (1) listing is “warranted”; (2) listing “not warranted”; or (3) listing is “warranted
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`but precluded” by other proposals for listing species, provided certain circumstances are met. Id.
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`§ 1533(b)(3)(B). This is known as a listing determination.
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`26.
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`If the Service determines that listing is “warranted,” the agency must publish that
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`finding in the Federal Register along with the text of a proposed regulation to list the species as
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`endangered or threatened, and take public comments on the proposed listing rule. Id. §
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`1533(b)(3)(B)(ii).
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`27. Within one year of publication of the proposed listing rule, the Service must
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`publish in the Federal Register the final rule implementing its determination to list the species.
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`Id. § 1533(b)(6)(A). This is known as a “final listing rule.”
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`28.
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`If the Service finds there is substantial disagreement regarding the sufficiency or
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`accuracy of the available data relevant to a listing determination, the Service may extend this
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`one-year period by six months to solicit additional data. Id. § 1533(b)(6)(B)(i). However, before
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`the expiration of that six months, the Service must publish either a final regulation or a notice of
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`withdrawal. Id. § 1533(b)(6)(B)(ii)-(iii).
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`B.
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`Critical Habitat Designations
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`29.
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`“Critical habitat” includes specific areas occupied by the species with the
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`“[p]hysical or biological features” that are “essential to the conservation of the species” and
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`which “may require special management considerations or protection,” as well as specific areas
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`unoccupied by the species that “are essential for the conservation of the species.” Id. §
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`1532(5)(A). “Conservation” means “the use of all methods and procedures which are necessary
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`to bring any endangered species or threatened species to the point at which the measures
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`provided pursuant to [the Act] are no longer necessary.” Id. § 1532(3).
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`30.
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`Critical habitat is crucial for the protection and recovery of listed species,
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`particularly those threatened by historic and ongoing habitat loss or fragmentation. However, the
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`ESA does not safeguard a species’ critical habitat until the Service designates it. Accordingly, it
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`is essential that the Service follow the Act’s procedures and deadlines to ensure it designates
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`critical habitat on a timely basis.
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`31. With limited exceptions, the Service must designate critical habitat for a species
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`“concurrently” with a listing determination, “to the maximum extent prudent and determinable,”
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`id. § 1533(a)(3)(A)(i).
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`32.
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`The Service may avoid designating critical habitat on the basis that it is “not
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`prudent” only when: (1) the species is threatened by taking or other human activity and critical
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`habitat may increase the risks to the species; (2) habitat loss is not a threat to the species, or
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`cannot be addressed through section 7(a)(2) of the Act; (3) areas within U.S. jurisdiction provide
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`negligible conservation value for species outside U.S. jurisdiction; (4) no areas qualify as
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`“critical habitat”; or (5) the Service determines, based on the best scientific data available, that
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`critical habitat would not be prudent. 50 C.F.R. § 424.12(a)(1).
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`33.
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`Unless the agency determines that critical habitat for a species is “not then
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`determinable,” the Service must publish the final rule designating critical habitat “concurrently
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`with the final regulation implementing the determination that such species is endangered or
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`threatened.” Id. § 1533(b)(6)(C)(ii). If critical habitat is “not then determinable,” the Service has
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`up to one additional year to publish a final rule designating critical habitat. Id.
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`34.
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`Designation of critical habitat is “not determinable” only when “[d]ata sufficient
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`to perform required analyses are lacking, or . . . [t]he biological needs of the species are not
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`sufficiently well known to identify any area that meets the definition of ‘critical habitat.’” 50
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`C.F.R. § 424.12(a)(2). If the Service decides that critical habitat is “not . . . determinable” at the
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`time of listing the species, the agency may extend final rule by up to “one additional year,” but
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`by that point, it must publish the rule “based on such data as may be available at that time.” 16
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`U.S.C. § 1533(b)(6)(C)(ii).
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`35.
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`If the Service finds that designating critical habitat is “not determinable” or “not
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`prudent,” it must “state the reasons for not designating critical habitat in the publication of
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`proposed and final rules listing a species.” Id. § 424.12(a).
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`36.
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`In requiring the designation of critical habitat concurrently with the species’
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`listing determination, the ESA aims to ensure that all species at risk of extinction receive the
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`Act’s essential habitat protections in a timely manner. Id. § 1533(a)(3)(A), (b)(6)(A)(ii),
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`(b)(6)(C); see also id. § 1531(b) (statutory directive to “provide a means whereby the ecosystems
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`upon which endangered . . . and threatened species depend may be conserved.”).
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`FACTUAL BACKGROUND
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`A.
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`Overdue 12-Month Listing Determinations
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`Mojave poppy bee
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`37.
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`The Mojave poppy bee is a rare pollen specialist that collects pollen from certain
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`poppies that produce pollen but not nectar. Grazing, recreation, gypsum mining, competition
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`from non-native honeybees, and insufficient regulatory mechanisms threaten the Mojave poppy
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`bee. Due to these threats, the Center filed a petition seeking ESA protections for the Mojave
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`poppy bee on October 17, 2018.
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`38.
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`On September 6, 2019, the Service issued a positive 90-day finding that listing the
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`Mojave poppy bee may be warranted. 84 Fed. Reg. 46,927 (Sept. 6, 2019). This positive 90-day
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`finding triggered defendants’ duty to issue a 12-month finding by October 17, 2019. To date,
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`defendants have failed to issue a 12-month listing determination for the Mojave poppy bee. Until
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`defendants publish the 12-month listing determination and final listing rule, the Mojave poppy
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`bee will decline toward extinction. There is no legal excuse for defendants’ failure to act.
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`Las Vegas bearpoppy
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`39.
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`The Las Vegas bearpoppy is a plant that aids in soil retention and is essential to
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`native bee species like the Mojave poppy bee. Grazing, gypsum mining, recreation, and
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`insufficient regulatory mechanisms threaten the Las Vegas bearpoppy. Due to these threats, on
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`August 19, 2019, the Center filed a petition seeking ESA protection for the Las Vegas
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`bearpoppy.
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`40.
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`On July 22, 2020, the Service issued a positive 90-day finding that listing the Las
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`Vegas bearpoppy may be warranted. 85 Fed. Reg. 44,265 (July 22, 2020). This positive 90-day
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`finding triggered defendants’ duty to issue a 12-month finding by August 19, 2020. To date,
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`defendants have failed to issue a 12-month listing determination for the Las Vegas bearpoppy.
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`Until defendants publish the 12-month listing determination and final listing rule, the Las Vegas
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`bearpoppy will decline toward extinction. There is no legal excuse for defendants’ failure to act.
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`Gulf Coast solitary bee
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`41.
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`The Gulf Coast solitary bee is a floral specialist that feeds exclusively on the
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`Coastal Plain honeycombhead. Ongoing threats from urban expansion, climate change,
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`recreation, pesticides, and insufficient regulatory mechanisms threaten the Gulf Coast solitary
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`bee. Due to these threats, the Center filed a petition seeking ESA protection for the Gulf Coast
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`solitary bee on April 2, 2019.
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`42.
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`On December 19, 2019, the Service issued a positive 90-day finding that listing
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`the Gulf Coast solitary bee may be warranted. 84 Fed. Reg. 69,713 (Dec. 19, 2019). This positive
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`90-day finding triggered defendants’ duty to issue a 12-month finding by April 2, 2020. To date,
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`defendants have failed to issue a 12-month listing determination for the Gulf Coast solitary bee.
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`Until defendants publish the 12-month listing determination and final listing rule, the Gulf Coast
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`solitary bee will decline toward extinction. There is no legal excuse for defendants’ failure to act.
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`Bethany Beach firefly
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`43.
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`The Bethany Beach firefly is a critically imperiled beetle that has been
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`documented at just seven locations along the Delaware coast. Climate change, urban
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`development, recreation, pesticides, and insufficient regulatory mechanisms threaten the Bethany
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`Beach firefly. Due to these threats, on May 20, 2019, the Center filed a petition seeking ESA
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`protection for the Bethany Beach firefly.
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`44.
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`On December 19, 2019, the Service issued a positive 90-day finding that listing
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`the Bethany Beach firefly may be warranted. Id. at 69,714-69,715. The positive 90-day finding
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`triggered defendants’ duty to issue a 12-month finding by May 20, 2020. To date, defendants
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`have failed to issue a 12-month listing determination for the Bethany Beach firefly. Until
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`defendants publish the 12-month listing determination and final listing rule, the Bethany Beach
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`firefly will decline toward extinction. There is no legal excuse for defendants’ failure to act.
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`B.
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`Overdue Final Listing Rules
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`Franklin’s bumble bee
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`45.
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`The Franklin’s bumble bee is a generalist forager that holds the distinction of
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`having the narrowest distribution of any bumble bee in the world. Franklin’s bumble bee is
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`feared extinct because of disease from commercial bumble bee colonies, expansion of
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`agriculture, improper and excessive use of pesticides, and invasive species. Due to these threats,
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`on June 28, 2010, The Xerces Society for Invertebrate Conservation and Dr. Robbin W. Thorp
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`filed a petition seeking ESA protection for Franklin’s bumble bee.
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`46.
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`On September 13, 2011, the Service issued a positive 90-day finding that listing
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`Franklin’s bumble bee may be warranted. 76 Fed. Reg. 56,381 (Sept. 13, 2011). On August 13,
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`2019, the Service proposed to list Franklin’s bumble bee as an “endangered” species under the
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`ESA and found that designating critical habitat was not prudent. 84 Fed. Reg. 40,006 (Aug. 13,
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`2019). The Service’s publication of the proposed rule triggered its duty to publish the final listing
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`rule by August 13, 2020. To date, defendants have failed to publish a final listing rule for
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`Franklin’s bumble bee. Until defendants publish the final listing rule, Franklin’s bumble bee will
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`continue to decline toward extinction. There is no legal excuse for defendants’ failure to act.
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`The Sierra Nevada DPS of the Sierra Nevada red fox
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`47.
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`The Sierra Nevada DPS of the Sierra Nevada red fox is a subspecies of red fox
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`and is restricted to a single known population near Sonora Pass, CA. Climate change, habitat
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`destruction, fragmentation, and diseases from domestic dogs continue to harm the Sierra Nevada
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`red fox DPS. Due to these threats, on April 27, 2011, the Center filed a petition seeking ESA
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`protection for the Sierra Nevada red fox DPS.
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`48.
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`On January 3, 2012, the Service issued a positive 90-day finding that listing may
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`be warranted under the ESA for the Sierra Nevada red fox DPS. 77 Fed. Reg. 45 (Jan. 3, 2012).
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`On October 8, 2015, the Service issued a positive 12-month finding. 80 Fed. Reg. 60,990 (Oct. 8,
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`2015). With the 12-month finding, the Service determined that listing was “warranted but
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`precluded” for the Sierra Nevada red fox DPS by higher priority listing actions. Id. The Service
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`continued to recognize that the Sierra Nevada red fox DPS warranted listing due to ongoing and
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`imminent threats in 2015, 2016, and 2019. The Service issued a Candidate Notice of Review
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`(“CNOR”) that included the Sierra Nevada red fox DPS. 80 Fed. Reg. 80,583 (Dec. 24, 2015);
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`81 Fed Reg. 87,246 (Dec. 2, 2016); 84 Fed. Reg. 54,732 (Oct. 10, 2019).
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`49.
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`A proposed listing for the Sierra Nevada red fox DPS as endangered was not
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`issued until January 8, 2020. 85 Fed. Reg. 862 (Jan. 8, 2020). The proposed rule found that the
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`designation of critical habitat was not prudent. Id. The 2020 proposed listing triggered a
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`mandatory duty for the Service to publish the final listing rule by January 8, 2021. 16 U.S.C. §
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`1533(b)(6)(A)(i). To date, defendants have failed to publish a final listing rule on the Sierra
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`Nevada red fox DPS. Until defendants publish the final listing rule and critical habitat
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`designation, the Sierra Nevada red fox DPS will continue to decline toward extinction. There is
`
`no legal excuse for defendants’ failure to act.
`
`Bartram’s stonecrop
`
`50.
`
`Bartram’s stonecrop is a rare succulent severely threatened by collection and
`
`habitat destruction. Four populations were recently lost due to the drying of habitat. Drying,
`
`livestock grazing, and recreation continue to harm the species. Due to these threats, on July 7,
`
`2010, the Center filed a petition seeking ESA protection for Bartram’s stonecrop.
`
`51.
`
`On August 8, 2012, the Service issued a positive 90-day finding that listing may
`
`be warranted under the ESA for Bartram’s stonecrop. 77 Fed. Reg. 47,352 (Aug. 8, 2012). On
`
`December 6, 2019, Bartram’s stonecrop was proposed for listing as threatened. 84 Fed. Reg.
`
`67,060 (Dec. 6, 2019). The proposed rule found the designation of critical habitat not prudent. Id.
`
`The 2019 proposed listing triggered a mandatory requirement that the Service publish a
`
`determination by December 6, 2020. 16 U.S.C. § 1533(b)(6)(A)(i) To date, defendants have
`
`failed to publish the final listing rule on Bartram’s stonecrop. Until defendants publish the final
`
`listing rule, Bartram’s stonecrop will continue to decline toward extinction. There is no legal
`
`excuse for defendants’ failure to act.
`
`14 
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`

`

`Case 1:21-cv-01045 Document 1 Filed 04/15/21 Page 15 of 26
`
`C.
`
`Publish the final listing rules and Critical Habitat Designations
`
`Beardless chinchweed
`
`52.
`
`The beardless chinchweed is a perennial of the sunflower family. Nonnative
`
`species invasion, drought, and livestock grazing continue to harm the species. Due to these
`
`threats, on July 7, 2010, the Center filed a petition seeking ESA protection for the beardless
`
`chinchweed.
`
`53.
`
`On August 8, 2012, the Service issued a positive 90-day finding that listing the
`
`beardless chinchweed may be warranted. 77 Fed. Reg. 47,352. On December 6, 2019, the
`
`Service published a determination and proposed rule to list the beardless chinchweed as
`
`endangered along with a proposed rule to designate approximately 10,604 acres in southern
`
`Arizona as critical habitat. 84 Fed. Reg. 67,060. The 2019 proposals triggered a mandatory duty
`
`to publish final listing rule and final rule designating critical habitat for the beardless chinchweed
`
`by December 6, 2020. 16 U.S.C. § 1533(b)(6)(A). To date, defendants have failed to publish the
`
`final listing rule or critical habitat designation on the beardless chinchweed. Until defendants
`
`publish the final listing rule and critical habitat designation, the beardless chinchweed will
`
`continue to decline toward extinction. There is no legal excuse for defendants’ failure to act.
`
`Hermes copper butterfly
`
`54.
`
`The Hermes copper butterfly is a species of butterfly only found in Mexico and
`
`California. Urban development, climate change, fire, and drought continue to harm the species.
`
`Due to these threats, on October 26, 2004, the Center filed a petition seeking ESA protection for
`
`the Hermes copper butterfly.
`
`55.
`
`On May 4, 2010, the Service published a positive 90-day finding that listing the
`
`Hermes copper butterfly under the ESA may be warranted. 75 Fed. Reg. 23,654 (May 4, 2010).
`
`15 
`
`

`

`Case 1:21-cv-01045 Document 1 Filed 04/15/21 Page 16 of 26
`
`On April 14, 2011, the Service published a determination that listing the Hermes copper
`
`butterfly, was warranted but precluded by higher-priority actions. 76 Fed. Reg. 20,918 (Apr. 14,
`
`2011). The Hermes copper butterfly remained a candidate for promulgation of a listing rule until
`
`January 8, 2020, when the Service published a proposed rule to list the Hermes copper butterfly
`
`as a threatened species, along with a proposed rule to designate approximately 14,249 hectares of
`
`critical habitat in San Diego County, California. 85 Fed. Reg. 1018 (Jan. 8, 2020). The Service’s
`
`publication of these proposed rules triggered a mandatory duty to publish the final rules listing
`
`and designating critical habitat for the Hermes copper butterfly by January 8, 2021. 16 U.S.C. §
`
`1533(b)(6)(A). To date, defendants have failed to publish final rules listing the Hermes copper
`
`butterfly or designating critical habitat for this species. Until defendants publish these final rules,
`
`the Hermes copper butterfly will continue to decline toward extinction. There is no legal excuse
`
`for defendants’ failure to act.
`
`D.
`
`Publish Proposed and Subsequent Final Rules Designating Critical Habitat
`
`Big Pine partridge pea, Blodgett’s silverbush, sand flax, and the wedge spurge
`
`56.
`
`On May 11, 2004, the Center filed a petition seeking ESA protection for the Big
`
`Pine partridge pea, Blodgett’s silverbush, sand flax, and the wedge spurge. The Big Pine
`
`partridge pea is a small shrub found only in the pine rocklands of the Big Pine Key and Cudjoe
`
`Key. Blodgett’s silverbush is a woody shrub that grows in the pine rocklands of Monroe and
`
`Miami-Dade counties, but has become increasingly rare. The sand flax is a small, perennial herb
`
`found in pine rocklands in Monroe and Miami-Dade counties, and its populations are declining.
`
`The wedge spurge is a small, perennial herb that is found in pine rocklands and roadsides on Big
`
`Pine Key, where its population is declining.
`
`16 
`
`

`

`Case 1:21-cv-01045 Document 1 Filed 04/15/21 Page 17 of 26
`
`57.
`
`On September 29, 2015, the Service published listing determinations and
`
`proposed rules to list the Big Pine partridge pea, Blodgett’s silverbush, sand flax, and wedge
`
`spurge under the ESA, but did not concurrently publish a proposed rule designating critical
`
`habitat at that time, claiming that the “specific information sufficient to perform the required
`
`analysis...is currently lacking.” 80 Fed. Reg. 58,536 (Sept. 29, 2015). On September 29, 2016,
`
`the Service published final rules listing the Big Pine partridge pea, Blodgett’s silverbush, sand
`
`flax, and wedge spurge, but at that time, the agency did not publish a final rule to designate
`
`critical habitat for these species. 81 Fed. Reg. 66,842 (Sept. 29, 2016). Rather, the Service
`
`maintained that critical habitat was not determinable. Id. at 66,864. The Service’s “not
`
`determinable” findings gave the agency until September 29, 2017 to designate critical habitat. 16
`
`U.S.C. § 1533(b)(6)(C)(ii). To date, defendants have failed to publish proposed or final rules
`
`designating critical habitat for these four plants. Until defendants publish a final rule designating
`
`critical habitat, these four plants will continue to decline toward extinction. There is no legal
`
`excuse for defendants’ failure to act.
`
`Florida pineland crabgrass, Florida prairie clover, pineland sandmat, and the
`Everglades bully
`
`58.
`
`On May 4, 2004, the Service designated the Everglades bully as a candidate
`
`species on its own initiative. 69 Fed. Reg. 24,876 (May 4, 2004). On May 11, 2004, the Center
`
`filed a petition seeking ESA protections for the Florida pineland crabgrass, the Florida prairie-
`
`clover, and the pineland sandmat. The Everglades bully is native to Miami-Dade County and is
`
`only found in pine rocklands. The Florida pineland crabgrass only occurs in the Everglades in
`
`Miami-Dade and Monroe counties. It was first identified