`
`
`
`
`
`
`
`
`
`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 1 of 26
`
`UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF COLUMBIA
`
`NEW MEXICO CATTLE GROWERS’
`ASSOCIATION
`2231 Rio Grande Blvd. NW
`Albuquerque, NM 87104
`
`
`
`
`
`Civil Action Case No. 1:21-cv-3263
`
`
`
`
`Plaintiff,
`
`
` v.
`
`UNITED STATES FISH AND WILDLIFE
`SERVICE
`1849 C Street, N.W.
`Washington, DC 20240
`
`UNITED STATES DEPARTMENT OF THE
`INTERIOR
`1849 C Street, N.W.
`Washington, DC 20240
`
`DEBRA HAALAND, in her official capacity as
`Secretary of the Department of the Interior
`1849 C Street, N.W.
`Washington, DC 20240
`
`MARTHA WILLIAMS, in her official capacity as
`Principal Deputy Director and Acting Director of
`the United States Fish and Wildlife Service
`1849 C Street, N.W.
`Washington, DC 20240
`
`
`
`
`Defendants.
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`
`
`1
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 2 of 26
`
`INTRODUCTION
`
`Plaintiff New Mexico Cattle Growers’ Association’s (Cattle Growers) membership
`
`1.
`
`is comprised of the hard-working individuals and families who earn their livelihoods raising cattle.
`
`Cattle Growers’ membership includes the McKeen family, who for generations have raised cattle
`
`on the rugged terrain of western New Mexico. Ranching families like the McKeens must contend
`
`with drought, wildfire, and the many other realities of raising cattle in the harsh conditions of the
`
`arid west. They must also contend with burdensome federal regulations such as those imposed by
`
`the Defendants (collectively the “Service”), under the Endangered Species Act (ESA).
`
`2.
`
`ESA regulations impose significant burdens on ordinary land use. They increase
`
`the costs of federal permitting, reduce the market value of affected lands, and expose landowners
`
`to potentially ruinous civil and even criminal penalties. It is therefore crucially important that
`
`federal decisionmakers are guided by sound data-driven science and objective, publicly disclosed
`
`standards. Yet, in many instances the Service is guided by no such standards when making key
`
`decisions that impact landowners. For example, when determining whether a population
`
`constitutes a “subspecies” (making it eligible for listing under the ESA), the Service relies upon
`
`ad-hoc determinations, without resort to any definition or standard for identifying “subspecies.”
`
`This leaves ranching families like the McKeens—who have had their property values and
`
`livelihoods harmed by the endangered subspecies listing of the southwestern willow flycatcher—
`
`with little choice other than to comply with arbitrary and unsupported regulations.
`
`3.
`
`In 2015—on behalf of affected members like the McKeen family—Cattle Growers,
`
`along with other groups, petitioned the Service to remove the southwestern willow flycatcher from
`
`the federal list of threatened and endangered species. See Petition of the Center for Environmental
`
`Science, Accuracy, and Reliability et al. to Remove the “Southwestern” Willow Flycatcher From
`
`2
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 3 of 26
`
`the List of Endangered Species Under the Endangered Species Act Due to Significant New Data
`
`that Demonstrates Original Data Error, Fed. Doc. No. FWS-R2-ES-2016-0039-0002, at 9
`
`(Aug. 19, 2015) (the “Petition”). The grounds for the Petition were that, among other things, the
`
`best scientific and commercial data prove the flycatcher is not a distinct subspecies and is therefore
`
`ineligible for listing under the ESA.
`
`4.
`
`The Service denied the Petition, determining in relevant part that the southwestern
`
`willow flycatcher is a subspecies. See 82 Fed. Reg. 61,725 (Dec. 29, 2017) (the “Final Rule”).
`
`That denial was illegal. In denying the Petition the Service violated the fundamental administrative
`
`law principle of reasoned decision-making. It set forth no definition of “subspecies;” provided no
`
`governing criteria for determining whether any given population or group of populations qualifies
`
`as a subspecies; and ignored crucial scientific evidence bearing on the flycatcher’s subspecies
`
`designation.
`
`5.
`
`Therefore, the Final Rule is arbitrary, capricious, an abuse of discretion, or
`
`otherwise not in accordance with law, in violation of the Endangered Species Act, 16 U.S.C.
`
`§§ 1531–1544, and the Administrative Procedure Act, 5 U.S.C. §§ 701–706. The Final Rule should
`
`be vacated, and the matter remanded to the Service.
`
`JURISDICTION AND VENUE
`
`6.
`
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
`
`§ 1331 (federal question jurisdiction); § 2201 (authorizing declaratory relief); § 2202 (authorizing
`
`injunctive relief); 16 U.S.C. § 1540(c) and (g) (actions arising under the ESA); 5 U.S.C. § 702
`
`(providing for judicial review of agency action under the APA); 5 U.S.C. § 706 (authorizing courts
`
`to set aside unlawful agency action).
`
`3
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 4 of 26
`
`7.
`
`On April 13, 2020, more than 60 days before the filing of this complaint, Cattle
`
`Growers provided the Secretary of the Interior and the Director of the United States Fish and
`
`Wildlife Service with written notice of the violations that are the subject of this lawsuit, in
`
`accordance with 16 U.S.C. § 1540(g)(2)(C). The notice is attached as Exhibit 1 and is incorporated
`
`herein by reference. Neither the Secretary nor the Director have responded to this notice or taken
`
`any action to withdraw the Final Rule at issue here or otherwise remedy the violations of law
`
`identified therein.
`
`8.
`
`Cattle Growers seeks relief under 28 U.S.C. § 2201 (authorizing declaratory relief)
`
`and § 2202 (authorizing injunctive relief).
`
`9.
`
`Cattle Growers asserts that the Service’s denial of the Petition constitutes unlawful,
`
`arbitrary and capricious agency action. An actual, justiciable controversy now exists between
`
`Cattle Growers and the Service.
`
`10.
`
`The federal government has waived sovereign immunity in this action pursuant to
`
`16 U.S.C. § 1540(g) and 5 U.S.C. § 702.
`
`11.
`
`12.
`
`Cattle Growers has exhausted all available administrative remedies.
`
`Cattle Growers is injured by the denial of the Petition. Invalidation of the Final Rule
`
`denying the Petition will redress those injuries.
`
`13.
`
`Venue in the District of the District of Columbia is proper under 5 U.S.C. § 703
`
`and 28 U.S.C. § 1391(e), because Defendants are agencies and officers of the United States,
`
`Defendants reside in the District of the District of Columbia, and a substantial part of the events
`
`or omissions giving rise to the claim occurred in the District of the District of Columbia.
`
`4
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 5 of 26
`
`DESCRIPTION OF PARTIES AND STANDING ALLEGATIONS
`
`Plaintiff
`
`14.
`
`New Mexico Cattle Growers’ Association is a nonprofit organization that
`
`represents roughly 1,400 ranchers and landowners throughout 32 New Mexico counties and 19
`
`states. Since 1914, its primary purpose has been to serve as an advocate for New Mexico ranchers
`
`and landowners and to protect ranching from a variety of threats, including overreaching
`
`environmental regulation.
`
`15.
`
`Leadership and committee positions are open to all Cattle Growers members.
`
`Although Cattle Growers represents the interests of all New Mexico ranchers, an annual fee is
`
`required for membership.
`
`16. Many of Cattle Growers’ members have been, and continue to be, burdened by
`
`onerous environmental regulations. These include regulations imposed under the ESA, such as the
`
`flycatcher’s endangered listing. Cattle Growers therefore devotes substantial resources to ensuring
`
`that ESA regulations are consistently and transparently imposed.
`
`17.
`
`Acting on behalf of its membership, Cattle Growers—through its elected leadership
`
`and various committees—acts as an advocate on ESA issues, publishes information on related
`
`issues for members, performs research pertaining to ESA regulation, submits comments to
`
`government agencies addressing concerns about how regulations under the ESA affect members,
`
`and engages in litigation when members are threatened by illegal government action taken under
`
`the ESA. For example, Cattle Growers has been involved in prior litigation over the flycatcher’s
`
`critical habitat, see N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife Service, 248 F.3d 1277,
`
`1285 (10th Cir. 2001), and remains actively involved in current debates regarding the gray wolf.
`
`5
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 6 of 26
`
`18.
`
`The Service’s illegal denial of the Petition to delist the southwestern willow
`
`flycatcher under the ESA frustrates Cattle Growers’ objectives and forces Cattle Growers to
`
`expend additional resources advocating for and educating its affected members. As the
`
`representative of New Mexico ranchers, Cattle Growers, through this lawsuit, seeks to protect its
`
`members’ interests germane to its purpose.
`
`19.
`
`Cattle Growers’ members would have standing to challenge the Final Rule in their
`
`own right but their participation is not required for this lawsuit. Cattle Growers’ annual dues-
`
`paying membership includes New Mexico rancher and landowner Mr. Hugh McKeen, whose
`
`property overlaps with the flycatcher’s critical habitat, and whose livelihood, property values, and
`
`property rights are threatened by the flycatcher’s listing. On behalf of affected members like Hugh
`
`McKeen, Cattle Growers joined the Petition.
`
`20. Mr. McKeen owns a 700-acre private cattle ranch in Catron County, New Mexico.
`
`Mr. McKeen also holds permitted grazing rights on the adjacent 11,467-acre Cedar Breaks
`
`Allotment within the Gila National Forest, and adjudicated water rights from existing wells and
`
`ditches diverted from the San Francisco River. Mr. McKeen’s ranch and grazing allotment overlap
`
`substantially with designated critical habitat for the flycatcher within the San Francisco
`
`Management Unit. See 78 Fed. Reg. 344, 378, 529 (Jan. 3, 2013).
`
`21.
`
`The listing and designation impose significant regulatory burdens on the use of Mr.
`
`McKeen’s ranch property and adjoining grazing allotment. The direct effect of these regulatory
`
`burdens has been a substantial diminution in the appraised value of Mr. McKeen’s ranch.
`
`22.
`
`The listing and critical habitat designation also subject Mr. McKeen to the risk of
`
`citizen suits and agency enforcement actions under the ESA, further adding to his operational
`
`costs.
`
`6
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 7 of 26
`
`23.
`
`The designation has also led to additional reductions in the market value of Mr.
`
`McKeen’s property, due to public perceptions of the burdens imposed by endangered species
`
`regulations.
`
`24.
`
`These economic injuries are traceable to the designation of critical habitat for the
`
`flycatcher and thus to the Final Rule denying the Petition to delist the flycatcher. Setting aside that
`
`illegal denial will redress these injuries by requiring the Service to properly consider the
`
`information contained in the Petition and revisit the propriety of the flycatcher’s listing.
`
`Defendants
`
`25.
`
`The United States Fish and Wildlife Service is an agency of the Department of the
`
`Interior. The Service has been delegated responsibility by the Secretary of the Interior for the day-
`
`to-day administration of the ESA with respect to most terrestrial and freshwater plant and animal
`
`species. This includes listing species and designating critical habitat. The Service’s Final Rule
`
`denying the Petition to delist the southwestern willow flycatcher is the subject of this action.
`
`26.
`
`The United States Department of the Interior is an agency of the United States that
`
`administers and implements the ESA with respect to most terrestrial and freshwater plant and
`
`animal species. This includes listing species and designating critical habitat. The Department’s
`
`Final Rule denying the Petition to delist the southwestern willow flycatcher is the subject of this
`
`action.
`
`27.
`
`Debra Haaland is the Secretary of the United States Department of the Interior. In
`
`that capacity Secretary Haaland is responsible for the administration of the ESA with respect to
`
`most terrestrial and freshwater plant and animal species. She is sued in her official capacity.
`
`7
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 8 of 26
`
`28. Martha Williams is the Principal Deputy Director and Acting Director of the
`
`United States Fish and Wildlife Service. In that capacity, Acting Director Williams oversees the
`
`Fish and Wildlife Service’s administration of the ESA. She is sued in her official capacity.
`
`LEGAL BACKGROUND
`
`The Endangered Species Act
`
`Listing of Threatened or Endangered Species
`
`29.
`
`To receive protection under the Endangered Species Act, a “species” must be
`
`determined to be “endangered” or “threatened,” based on certain factors. See 16 U.S.C. § 1533(a).
`
`A “species” includes “any subspecies of fish or wildlife or plants, and any distinct population
`
`segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Id.
`
`§ 1532(16).
`
`30.
`
`31.
`
`The ESA does not define the term “subspecies.” See id. § 1532.
`
`A species or subspecies is “endangered” if it “is in danger of extinction throughout
`
`all or a significant portion of its range.” Id. § 1532(6). A species or subspecies is “threatened” if it
`
`“is likely to become an endangered species within the foreseeable future throughout all or a
`
`significant portion of its range.” Id. § 1532(20).
`
`32.
`
`To be listed under the ESA, a bird must be either a threatened or endangered
`
`species, subspecies, or distinct population segment.
`
`33.
`
`The ESA forbids the unpermitted “take” of any endangered species of fish or
`
`wildlife. See id. § 1538(a)(1)(B). The term “take” means to “harass, harm, pursue, hunt, shoot,
`
`wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19).
`
`The term “harm” includes “significant habitat modification or degradation where it actually kills
`
`or injures wildlife by significantly impairing essential behavioral patterns, including breeding,
`
`8
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 9 of 26
`
`feeding or sheltering.” 50 C.F.R. § 17.3. The ESA imposes harsh civil and criminal penalties for
`
`violation of its take prohibition. 16 U.S.C. § 1540(a)–(b).
`
`34.
`
`The ESA provides for citizen enforcement of the Act. 16 U.S.C. § 1540(g).
`
`Critical Habitat Designation
`
`35.
`
`Generally, concurrent with a species’ listing the Service must designate “critical
`
`habitat.” 16 U.S.C. § 1533(a)(3).
`
`36.
`
`Such habitat comprises those occupied areas containing the physical or biological
`
`features essential to the species’ conservation, or any unoccupied area that is itself “essential for
`
`the conservation of the species.” See id. § 1532(5).
`
`37.
`
`Critical habitat designations negatively affect property owners by increasing the
`
`burdens of federal permitting, reducing the value of designated property, and increasing potential
`
`take liability.
`
`Consultation
`
`38. Whenever an agency proposes to issue a permit, fund, or carry out an activity that
`
`may “jeopardize” a listed species’ “continued existence” or will “result in the destruction or
`
`adverse modification of [its critical] habitat,” the agency must “consult” with the Service over
`
`those effects and identify modifications or mitigation measures to ensure that the activity will not
`
`jeopardize the species or adversely modify its critical habitat. 16 U.S.C. § 1536(a)(2).
`
`39.
`
`40.
`
`This consultation requirement applies to activities on both private and public land.
`
`In practice, the result of consultation under the ESA is almost always the imposition
`
`of additional restrictions on the federally funded or permitted activity.
`
`9
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 10 of 26
`
`Petitions to list or delist a species
`
`41.
`
`The APA authorizes interested parties to petition for the enactment or repeal of any
`
`administrative rule. 5 U.S.C. § 553(e).
`
`42.
`
`The ESA requires the Service, to the maximum extent practicable, within 90 days
`
`of the receipt of such a petition seeking the listing or delisting of a species, to determine whether
`
`the petitioned action may be warranted. See 16 U.S.C. § 1533(b)(3)(A). Within one year of the
`
`petition’s receipt, the Service must make a final determination as to whether the petitioned action
`
`is warranted. Id. § 1533(b)(3)(B). If the Service so determines, it must then proceed with
`
`rulemaking. See id. § 1533(b)(5).
`
`43.
`
`The Service has a nondiscretionary duty to list and delist species in accordance with
`
`Section 4 of the Act. Id. §§ 1533; 1540(g)(1)(C).
`
`Administrative Procedure Act
`
`44.
`
`The Administrative Procedure Act provides that “[a]gency action made reviewable
`
`by statute and final agency action for which there is no other adequate remedy in a court are subject
`
`to judicial review.” 5 U.S.C. § 704.
`
`45.
`
`Pursuant to the APA, a court must set aside agency action that fails to meet
`
`statutory, procedural, or constitutional requirements; or is arbitrary, capricious, an abuse of
`
`discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A)–(D).
`
`FACTUAL ALLEGATIONS
`
`The Service’s Listing of the Flycatcher as a “Subspecies”
`
`46.
`
`In 1995, the Service listed the southwestern willow flycatcher as an endangered
`
`subspecies. 60 Fed. Reg. 10,694 (Feb. 27, 1995). The Service most recently designated 1,227
`
`10
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 11 of 26
`
`stream miles and 208,973 acres of revised critical habitat for the flycatcher in 2013. 78 Fed. Reg.
`
`344 (Jan. 3, 2013).
`
`47.
`
`The flycatcher is a small, neotropical migrant bird that, during its breeding season
`
`of May to September, can be found in riparian habitats of the southwestern United States. 82 Fed.
`
`Reg. 61,725, 61,727 (Dec. 29, 2017). These include parts of California, Nevada, Utah, Colorado,
`
`Arizona, New Mexico, and Texas. Id. The bird has a “grayish-green back and wings, whitish
`
`throat, light grey-olive breast, and pale yellowish belly.” 60 Fed. Reg. at 10,694.
`
`48.
`
`The Service considers the southwestern willow flycatcher (Empidonax trailli
`
`extimus) to be a subspecies of the widely distributed willow flycatcher (Empidonax trailli).
`
`Empidonax trailli is a common species with a range that spans the North American continent.
`
`Empidonax trailli is not threatened or endangered and meets none of the criteria for listing as either
`
`threatened or endangered under the ESA.
`
`49.
`
`The Service’s original subspecies designation for the flycatcher was based on
`
`“subtle differences in color and morphology.” 60 Fed. Reg. at 10,696.
`
`50. More recently, the Service has relied on morphological (coloration) data derived
`
`from “core” areas within the putative subspecies, see E.H. Paxton et al., Geographic Variation in
`
`the Plumage Coloration of Willow Flycatchers Empidonax Traillii, 41. J. Avian Biology 128
`
`(2010) (Paxton et al. (2010)), on vocalization data similarly collected in areas that did not
`
`correspond to areas of geographic division, J.A. Sedgwick, Geographic Variation in the Song of
`
`Willow Flycatchers: Differentiation Between Empidonax traillii adastus and E. t. extimus, 118 The
`
`Auk 366 (2001) (Sedgwick 2001), and on patterns of genetic differentiation among putative
`
`flycatcher subspecies that nevertheless lack clear and distinctive geographic boundary lines, E.H.
`
`Paxton et al., Using Molecular Genetic Markers to Resolve a Subspecies Boundary: The Northern
`
`11
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 12 of 26
`
`Boundary of the Southwestern Willow Flycatcher in the Four-corner States, U.S. Geological
`
`Survey Open-File Report 2008-1117 (2008) (Paxton et al. (2008)).
`
`The Absence of any Regulatory Definition of “Subspecies”
`
`51.
`
`The Service has never promulgated a rule defining the term “subspecies.”
`
`52. Most recently, on November 10, 2021, the Service denied a 2017 petition
`
`requesting that the Service promulgate a regulatory definition of the term “subspecies.” In denying
`
`that petition the Service maintained its commitment to leaving that term undefined.
`
`53.
`
`The Service has promulgated other rules for defining important ESA terms. For
`
`example, in 1996, the Service defined “distinct population segment” and stated that “it is important
`
`that the term ‘distinct population segment’ be interpreted in a clear and consistent fashion” because
`
`“[a]vailable scientific information provides little specific enlightenment in interpreting the
`
`phrase.” 61 Fed. Reg. 4722, 4722 (Feb. 7, 1996).
`
`54.
`
`Like the term “distinct population segment,” there is little scientific information
`
`available to interpret the term “subspecies,” even among taxonomists. See Holly Doremus, Listing
`
`Decisions Under the Endangered Species Act: Why Better Science Isn’t Always Better Policy, 75
`
`Wash. U. L.Q. 1029, 1100–01 (1997).
`
`Zink (2015) and Shortcomings in the Service’s
`Subspecies Determination for the Southwestern Willow Flycatcher
`
`55.
`
`Shortcomings in the current subspecies designation of the southwestern willow
`
`flycatcher were demonstrated in a 2015 study which reanalyzed many of the sources relied upon
`
`by the Service. See Robert M. Zink, Genetics, Morphology, and Ecological Niche Modelling Do
`
`Not Support the Subspecies Status of the Endangered Southwestern Willow Flycatcher
`
`(Empidonax trailli extimus), 117 The Condor 76 (2015) (Zink 2015).
`
`12
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 13 of 26
`
`56.
`
`Zink (2015) reanalyzed the molecular-genetic data from Paxton et al. (2008) and
`
`the morphological (coloration) data from Paxton et al. (2010). The study also refuted the
`
`vocalization data in Sedgwick (2001) and examined the ecological distinctiveness of the flycatcher
`
`through niche modelling techniques.
`
`57.
`
`Zink (2015) demonstrated that there exists no statistically valid morphological,
`
`genetic, vocal, or ecological basis for designating the flycatcher as a separate subspecies.
`
`58.
`
`Zink (2015) further highlighted the error in the Service’s reliance on confirmatory
`
`studies, such as Sedgwick (2001), Paxton et al. (2008), and Paxton et al. (2010), which validate
`
`rather than test existing putative flycatcher subspecies. Zink (2015), supra, at 79. In particular,
`
`Zink (2015) demonstrated that these studies have not shown whether distinctions among existing
`
`flycatcher subspecies are any more significant than differences among randomly divided flycatcher
`
`populations. After studying this question, Zink (2015) concluded that, when viewed species wide,
`
`there is no significant genetic or morphological variation in flycatchers that corresponds to existing
`
`subspecies divisions (or any other geographically based division). Id. at 80–82.
`
`Cattle Growers’ Petition to Delist the Flycatcher
`
`The Petition
`
`59.
`
`In August 2015, a coalition of interested groups, including Cattle Growers,
`
`submitted a delisting petition for the southwestern willow flycatcher for—among other things—
`
`taxonomic error. See Petition, supra, at 10.
`
`60.
`
`The Petition relied in part on Zink (2015) and demonstrated that morphological,
`
`genetic, vocal, and ecological data do not support the subspecies designation for the flycatcher.
`
`13
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 14 of 26
`
`61.
`
`Initially, the Service made a positive determination, finding that the Petition
`
`presented substantial information indicating that delisting of the flycatcher may be warranted
`
`because the bird did not constitute a subspecies. See 81 Fed. Reg. 14,058, 14,070 (Mar. 16, 2016).
`
`Zink (2017)
`
`62.
`
`Following submission of the Petition, another critical study was published. See
`
`Robert M. Zink, Current Topics in Avian Conservation Genetics With Special Reference to the
`
`Southwestern Willow Flycatcher, 9 The Open Ornithology J. 60 (2016) (Zink 2017).1
`
`63.
`
`Zink (2017) expanded on the analysis of Zink (2015) and contained three key pieces
`
`of additional genetic information demonstrating the erroneous nature of the Service’s flycatcher
`
`subspecies designation. Most notably, Zink (2017) revealed critically misleading elements of
`
`Theimer et al. (2016), a preferred genetic study of the Service. Zink (2017), supra at 64–66.
`
`Denial of the Petition
`
`64.
`
`In December 2017, the Service denied the Petition, and determined that the
`
`southwestern willow flycatcher is a distinct subspecies and should remain on the federal list of
`
`threatened and endangered species. See 82 Fed. Reg. 61,725 (Dec. 29, 2017).
`
`65.
`
`Addressing whether the flycatcher is a subspecies, the Service cited to several
`
`conflicting definitions of “subspecies,” conceded that “[v]arious definitions or descriptions of
`
`subspecies exist,” and noted that “[c]ontroversy over the utility and definition of subspecies has a
`
`long history.” U.S. Fish & Wildlife Serv., 12 Month Finding on a Petition to Delist the
`
`
`1 As noted in Cattle Growers’ 60-day Notice of Intent to Sue, although Zink’s letter was published
`in the 2016 volume of The Open Ornithology Journal, it was made available to the Service in final
`form on January 5, 2017. U.S. Fish & Wildlife Serv., 12 Month Finding on a Petition to Delist the
`Southwestern Willow Flycatcher Under the Endangered Species Act and 5-Year Review, Fed.
`Doc. No. FWS-R2-ES-2016-0039-0024, at 7 (Dec. 28, 2017). As such, the Finding & Status
`Review refers to this letter as “Zink’s 2017 letter.” Id. In order to avoid confusion, this Complaint
`will continue to refer to this letter as Zink (2017), despite its 2016 publication date.
`
`14
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 15 of 26
`
`Southwestern Willow Flycatcher Under the Endangered Species Act and 5-Year Review, Fed.
`
`Doc. No. FWS-R2-ES-2016-0039-0024, at 9 (Dec. 28, 2017) [hereafter “Finding & Status
`
`Review”].
`
`66.
`
`In denying the Petition, the only standard for subspecies determinations announced
`
`by the Service was that “[t]he differences between subspecies are usually less distinct than the
`
`differences between species.” Id.
`
`67.
`
`Although the Service identified certain “differences” between the “southwestern”
`
`willow flycatcher and other willow flycatcher populations, the Service provided no rule for
`
`gauging the significance of those purported “differences.” Id. at 10–24.
`
`68.
`
`In its Final Rule denying the Petition, the Service assessed several studies. One
`
`study which played a critical role in the Service’s final decision to maintain the flycatcher’s listing
`
`was Theimer et al. (2016). See Finding & Status Review at 17–21, 23–24 (citing Tad C. Theimer
`
`et al., Available Data Support Protection of the Southwestern Willow Flycatcher Under the
`
`Endangered Species Act, 118 The Condor 289, 296 (2016)).
`
`69.
`
`Of the other available studies, the Service gave significant attention to Zink (2015)
`
`but refused to engage Zink (2017). See Finding & Status Review at 7.
`
`70.
`
`Zink (2017) provides three key pieces of additional data that directly contradicted
`
`the Service’s position and highlighted critically misleading aspects of the Service’s preferred
`
`study, Theimer et al. (2016).
`
`71.
`
`Documents produced from the Service’s response to a FOIA request reveal that one
`
`of the Service’s own avian experts recommended, to no effect, that the Finding & Status Review
`
`engage with Zink (2017). See Email from Gjon Hazard, Fish & Wildlife Biologist, U.S. Fish &
`
`Wildlife Serv., to Angela Picco et al. (May 9, 2017, 5:04 PM PDT) (“There is one topic I would
`
`15
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 16 of 26
`
`like to elaborate on . . . [Z]ink’s rebuttal (Zink 2016, The Open Ornithology Journal 9(1):60–69)
`
`to the Theimer et al. (2016) critique of Zink (2015) is not presented in the document. . . . It seems
`
`to me that the Service should acknowledge and include this document in our evaluation, given that
`
`it is available and that Zink (2015) and Theimer et al. (2016) play such a central role to the petition
`
`and our response.”).
`
`72.
`
`However, when provided with the contradictory information presented in Zink
`
`(2017), the Service refused to provide it the necessary attention. See Finding & Status Review at 7.
`
`DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS
`
`73.
`
`Cattle Growers incorporates herein by reference the allegations set forth in the
`
`preceding paragraphs.
`
`74.
`
`Individual members of Cattle Growers have been injured by the Final Rule denying
`
`the Petition. By denying the Petition, the Service leaves intact the flycatcher’s listing and critical
`
`habitat designation. If an injunction does not issue against the Service’s Final Rule, these Cattle
`
`Growers members will be irreparably harmed. Harms attributable to the flycatcher’s listing and
`
`subsequent critical habitat designation include, but are not limited to, devaluation of their property
`
`and the continued imposition of significant regulatory burdens on their property. A delisting of the
`
`flycatcher would result in the immediate rescission of the critical habitat designation, which would
`
`remedy the economic and other land-use-related injuries suffered by Cattle Growers’ flycatcher-
`
`habitat-affected members.
`
`75.
`
`Cattle Growers has no plain, speedy, and adequate remedy at law for these injuries.
`
`Damages in this case are not available.
`
`76.
`
`Cattle Growers’ claims for relief are ripe.
`
`16
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 17 of 26
`
`77.
`
`If not enjoined by this Court, the Service’s decision to deny the Petition without
`
`reference to any cognizable subspecies standard, in violation of fundamental administrative law
`
`principles, will be left unremedied, in derogation of Cattle Growers’ rights and interests.
`
`78.
`
`If not enjoined by this Court, the Service’s decision to deny the Petition without
`
`considering relevant evidence, in violation of fundamental administrative law principles, will be
`
`left unremedied, in derogation of Cattle Growers’ rights and interests.
`
`79.
`
`An actual and substantial controversy exists between Cattle Growers and the
`
`Service over the latter’s duty to comply with the ESA and the APA in ruling on Cattle Growers’
`
`Petition.
`
`80.
`
`This case is currently justiciable because the Service’s failure to comply with these
`
`laws is the direct result of final agency action that has caused and will continue to cause immediate
`
`and concrete injury to Cattle Growers’ members. Because the listing of the flycatcher has devalued
`
`the property of Cattle Growers’ members and continues to impose substantial regulatory burdens
`
`upon them, Cattle Growers has a keen interest in knowing whether the denial of its Petition to
`
`delist the flycatcher is legal.
`
`81.
`
`Therefore, declaratory and injunctive relief is appropriate to resolve this
`
`controversy.
`
`FIRST CLAIM FOR RELIEF
`Failure to Articulate “Subspecies” Standard
`(ESA, 16 U.S.C. §§ 1533(b)(3)(B), 1540(g)(1)(C))
`
`Cattle Growers incorporates herein by reference the allegations set forth in the
`
`82.
`
`preceding paragraphs.
`
`83.
`
`An agency’s articulation of a standard to guide its decision-making is essential to
`
`reasoned administrative decision-making. This rule derives from the requirement that an agency
`
`17
`
`

`

`Case 1:21-cv-03263 Document 1 Filed 12/13/21 Page 18 of 26
`
`identify a rational connection between the facts found and the decision made. See Motor Vehicle
`
`Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
`
`84.
`
`The Endangered Species Act authorizes the Service to list “subspecies.” See 16
`
`U.S.C. § 1532(16). However, the statute does not define the term, and the term does not have a
`
`commonly accepted meaning among taxonomists. Thus, for the Service to determine whether to
`
`list or to delist a “subspecies,” it must itself decide upon a standard or definition for the term.
`
`85.
`
`86.
`
`The Service has not adopted a generally applicable definition of “subspecies.”
`
`In denying the Petition, the Service accepted certain studies and rejected others. See
`
`Finding & Status Review at 9–24.
`
`87.
`
`In doing so, it set forth what it considers to be relevant types of data and methods
`
`for making a taxonomic determination. However, merely identifying and discussing pertinent data
`
`and methodology do not define what is to be established by that data and methodology.
`
`88.
`