Case 1:21-cv-05706-LJL Document 1 Filed 07/01/21 Page 1 of 24
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
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`Case No. 1:21-cv-5706
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`CENTER FOR BIOLOGICAL DIVERSITY,
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`WATERKEEPER ALLIANCE, INC.,
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`WATERKEEPERS CHESAPEAKE, INC.,
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`LOWER SUSQUEHANNA RIVERKEEPER
`ASSOCIATION,
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`and MIDDLE SUSQUEHANNA RIVERKEEPER
`ASSOCIATION,
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`Plaintiffs,
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`v.
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`U.S. FISH AND WILDLIFE SERVICE,
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`MARTHA WILLIAMS, in her official capacity as
`Acting Director of the U.S. Fish and Wildlife
`Service,
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`and
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`DEBRA HAALAND, in her official capacity as
`Secretary of the Interior,
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`Defendants.
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`INTRODUCTION
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`1.
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`Plaintiffs Center for Biological Diversity, Waterkeeper Alliance, Inc.,
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`Waterkeepers Chesapeake, Inc., Lower Susquehanna Riverkeeper Association, and Middle
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`Susquehanna Riverkeeper Association challenge the decision of the U.S. Fish and Wildlife
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`Service (“the Service”) that the eastern hellbender (Cryptobranchus alleganiensis alleganiensis)
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`does not warrant listing as a threatened or endangered species under the Endangered Species Act
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`(“ESA”), 16 U.S.C. § 1531 et seq.; 84 Fed. Reg. 13223 (April 4, 2019).
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`2.
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`The eastern hellbender is a large, fully aquatic salamander that was historically
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`widespread across 15 eastern states, ranging from northeastern Mississippi, northern Alabama,
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`and northern Georgia northeast to New York’s southern tier. Despite its ominous name, and
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`although it is large and slimy, the hellbender is a harmless, non-venomous, and beloved species
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`with a variety of colorful nicknames including water dog, mud puppy, old lasagna sides,
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`grampus, and Allegheny river monster.
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`Photo Credit: Tierra Curry/Center for Biological Diversity
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`3.
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`More than a decade ago, in April 2010, Plaintiff Center for Biological Diversity
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`(“the Center”) petitioned the Service to list the eastern hellbender as a threatened or endangered
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`species under the ESA. The Center submitted its listing petition because the best available
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`science shows that the hellbender, once relatively common throughout its range, has disappeared
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`from many rivers and streams, and that the stressors driving the species’ decline are expected to
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`continue unabated or even intensify in the future.
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`4.
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`The hellbender is an “indicator species” for aquatic habitats, needing free-
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`flowing, cool, clean, highly oxygenated streams with boulders and crevasses to survive and
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`reproduce. Unfortunately, the majority of streams within the hellbender’s range have been
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`degraded by disturbances including agricultural and industrial water pollution, sedimentation,
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`dams and other impoundments, warming waters, deforestation, and destruction of riverine
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`habitat. Reflecting these losses, an estimated 80 percent of historic hellbender populations have
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`already been extirpated or are in decline. In the foreseeable future, these pervasive threats are
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`expected to increase, meaning that most of the remaining hellbender populations are expected to
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`suffer a similar fate without increased protections for the species and its aquatic habitat.
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`5.
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`Nonetheless, when the Service finally issued a long overdue finding on the
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`Center’s petition on April 4, 2019, it concluded that listing the eastern hellbender under the ESA
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`is not warranted. As detailed in this Complaint, the Service’s decision is unlawful and failed to
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`rely on the best scientific and commercial data available in several respects, including: (1)
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`arbitrarily relying on admittedly unproven and ineffective conservation measures; (2) failing to
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`consider the adequacy of existing regulatory mechanisms; (3) arbitrarily concluding that the
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`hellbender is not endangered or threatened in a significant portion of its range; (4) failing to
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`provide a rational explanation for its choice to limit the foreseeable future analysis regarding the
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`hellbender and its threats to 25 years (shorter than a single generation’s expected lifespan); and
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`(5) conflating the Act’s definitions of endangered and threatened such that it did not determine
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`whether the species was threatened. For these and other reasons, the Service’s disregard for the
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`legal requirements of the ESA and the best available scientific information about the species led
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`to an arbitrary and unlawful decision.
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`6.
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`To remedy these violations, Plaintiffs seek declaratory relief declaring the
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`Service’s not warranted finding unlawful under the ESA, vacatur of the illegal finding, and
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`injunctive relief remanding the matter to the Service with direction to promptly issue a new
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`determination regarding whether the eastern hellbender warrants protection under the ESA as an
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`endangered or threatened species.
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`JURISDICTION AND VENUE
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`7.
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`Plaintiffs bring this action under the ESA, 16 U.S.C. §§ 1533, 1540(g), and the
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`Administrative Procedure Act (“APA”), 5 U.S.C. § 706.
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`8.
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`This Court has jurisdiction to hear this case pursuant to 16 U.S.C. § 1540(c) and
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`(g) (action arising under citizen suit provision of the ESA), 5 U.S.C. § 702 (APA), and 28 U.S.C.
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`§ 1331 (federal question jurisdiction).
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`9.
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`The Court may grant the relief requested under the ESA, 16 U.S.C. § 1540(g), the
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`APA, 5 U.S.C. §§ 702–706, and 28 U.S.C. § 2201 (declaratory relief) and § 2202 (injunctive
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`relief).
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`10.
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`Plaintiffs provided sixty (60) days’ notice of their intent to file this suit pursuant
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`to the citizen suit provision of the ESA, 16 U.S.C. § 1540(g)(2)(C), by letter to Defendants dated
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`March 4, 2021. Defendants have not provided any response to, or acknowledgment of, Plaintiffs’
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`notice letter, and have not taken action to remedy their continuing ESA violations by the date of
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`this complaint’s filing. Therefore, an actual controversy exists between the parties under 28
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`U.S.C. § 2201.
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`11.
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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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`12.
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`Venue is proper in the United States District Court for the Southern District of
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`New York pursuant to 16 U.S.C. § 1540(g)(3)(A) and 28 U.S.C. § 1391(e) because Plaintiff
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`Waterkeeper Alliance resides in and has its principal place of business in this district.
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`PARTIES
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`13.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (“the Center”) is a non-
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`profit conservation organization dedicated to the protection of endangered species and their
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`habitats through science, policy, and environmental law. The Center is headquartered in Tucson,
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`Arizona, with offices in numerous other locations in the country, including New York. The
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`Center has more than 84,000 members.
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`14.
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`Plaintiff WATERKEEPER ALLIANCE, INC., (“Waterkeeper”) is a not-for-profit
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`corporation organized under the laws of New York. Waterkeeper is a member-supported,
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`international environmental advocacy organization with its headquarters in New York.
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`Waterkeeper strengthens and grows a global network of grassroots leaders protecting everyone’s
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`right to clean water. Composed of more than 350 member and affiliate organizations around the
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`world—including Plaintiffs Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper
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`Association, and Middle Susquehanna Riverkeeper Association—as well as more than 15,000
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`individual supporting members, Waterkeeper is the largest and fastest growing non-profit
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`focused solely on clean water. Waterkeeper's goal is drinkable, swimmable, and fishable water
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`everywhere, and the protection of native species that also depend on clean water such as the
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`eastern hellbender.
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`15.
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`Plaintiff WATERKEEPERS CHESAPEAKE, INC. is a nonprofit watershed
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`advocacy organization headquartered in Takoma Park, Maryland. It operates as a coalition of 18
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`independent Waterkeeper programs working throughout the Chesapeake and Coastal Bays
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`Watersheds. The coalition works to protect and improve the health of the Chesapeake Bay and
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`the waterways in the region, including the Lower Susquehanna. Waterkeepers Chesapeake aims
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`to stop pollution throughout the region that affects the Chesapeake and the species that live
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`within it.
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`16.
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`Plaintiff LOWER SUSQUEHANNA RIVERKEEPER ASSOCIATION is a non-
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`profit environmental organization dedicated to improving the ecological health of the Lower
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`Susquehanna River Watershed and the Chesapeake Bay. The association is headquartered in
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`Wrightsville, Pennsylvania. Lower Susquehanna Riverkeeper utilizes education, chemical and
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`biological monitoring, pollution patrols, research, and legal action to improve the health of the
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`Susquehanna River on behalf of the communities and species that depend on the river’s
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`waterways.
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`17.
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`Plaintiff MIDDLE SUSQUEHANNA RIVERKEEPER ASSOCIATION is a non-
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`profit environmental organization dedicated to protecting and promoting our river-based
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`resources. The association is headquartered in Sunbury, Pennsylvania, working across an 11,000
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`square-mile watershed defined by the North and West branches of the Susquehanna River, and
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`covering a drainage basin that includes 25 counties in central, north-central, and northeast
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`Pennsylvania. Middle Susquehanna Riverkeeper Association works with a large network of
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`media sources to better educate families and individuals across the region about issues facing the
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`Susquehanna River, its tributaries, and the species that depend upon our aquatic resources.
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`18.
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`Plaintiffs bring this action on behalf of their organizations, and their staff and
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`members who derive ecological, recreational, aesthetic, educational, scientific, professional, and
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`other benefits from the eastern hellbender, its aquatic habitat, and the broader watershed health
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`upon which the hellbender relies upon for its continued existence. Plaintiffs’ members and staff
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`live near and/or regularly visit areas where eastern hellbenders are known or believed to exist, in
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`hopes of viewing this increasingly elusive and rare species.
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`19.
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`Center member Tierra Curry has looked for hellbenders in the Cumberland River
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`watershed in Kentucky and Tennessee, the Green River and Rockcastle River watersheds in
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`Kentucky, the Obed River and Tennessee River watersheds in Tennessee, and the Cranberry
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`River in West Virginia. Ms. Curry has specific plans in the next year to visit the Licking River in
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`Kentucky and in the Clinch River in Virginia in an effort to observe hellbenders in their natural
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`habitat. Ms. Curry has also photographed eastern hellbenders at captive breeding facilities in
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`Chattanooga and St. Louis.
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`20. Waterkeeper Alliance has at least a dozen organizational members that work to
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`protect hellbender habitat on behalf of its members—including the three Keepers organizations
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`that are also Plaintiffs in this suit—and also has many individual members who use and enjoy
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`waters within hellbender range and who care deeply about protecting water quality for
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`hellbender survival and propagation. For example, Middle Susquehanna Riverkeeper member
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`Dr. Peter Petokas conducts research in the West Branch watershed. Dr. Petokas is concerned that
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`without protection and conservation measures, the remaining populations, which have been
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`reduced to only three sub-watersheds, will be lost. He regularly visits those populations to
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`monitor their health for evidence of additional declines or human impacts. Andy Hill, the
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`Watauga Riverkeeper, also an individual supporting member of Waterkeeper, has done
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`considerable work with eastern hellbenders in the Watauga and New River watersheds, including
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`species trend counts, habitat surveys, habitat improvements, and environmental impact studies.
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`21.
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`Plaintiffs’ members have been, are being, and will continue to be adversely
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`harmed by the Service’s unlawful determination that listing the eastern hellbender as a
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`threatened or endangered species is not warranted under the ESA, and its failure to afford the
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`species the protections of the Act. The injuries described are actual, concrete injuries presently
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`suffered by Plaintiffs and their members, and they will continue to occur unless this Court grants
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`relief. The relief sought herein—including an Order vacating the not warranted finding and
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`remanding to the Service to issue a new finding based on the best available scientific data—
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`would redress those harms. Plaintiffs and their members have no other adequate remedy at law.
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`22.
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`Defendant U.S. FISH AND WILDLIFE SERVICE is a federal agency within the
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`U.S. Department of the Interior. The Secretary of the Interior has delegated to the Service the
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`authority to conserve non-marine endangered and threatened species under the ESA. 50 C.F.R.
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`§ 402.01(b). This authority encompasses proposed and final listing determinations for the eastern
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`hellbender.
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`23.
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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 law. Plaintiffs
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`sue Defendant Williams in her official capacity.
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`24.
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`Defendant DEBRA HAALAND is the Secretary of the U.S. Department of the
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`Interior (“Secretary”) and has the ultimate responsibility to administer and implement the
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`provisions of the ESA regarding the eastern hellbender and to comply with all other federal laws
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`applicable to the U.S. Department of the Interior. Plaintiffs sue Defendant Haaland in her
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`official capacity.
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`LEGAL FRAMEWORK
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`Endangered Species Act
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`25.
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`The ESA, 16 U.S.C. §§ 1531–1544, “represent[s] the most comprehensive
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`legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley
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`Auth. v. Hill, 437 U.S. 153, 180 (1978). Its fundamental purposes are “to provide a means
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`whereby the ecosystems upon which endangered species and threatened species depend may be
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`conserved [and] to provide a program for the conservation of such endangered species and
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`threatened species.” 16 U.S.C. § 1531(b).
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`26.
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`The Secretary has delegated its administration of the ESA to the Service for
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`freshwater aquatic species such as the eastern hellbender. 50 C.F.R. § 402.01(b).
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`27.
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`ESA section 4 requires that the Service protect imperiled species by listing them
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`as either “endangered” or “threatened.” 16 U.S.C. § 1533(a)(1).
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`28.
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`A species is “endangered” if it “is in danger of extinction throughout all or a
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`significant portion of its range.” Id. § 1532(6). A species is “threatened” if it is “likely to become
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`an endangered species within the foreseeable future.” Id. § 1532(20).
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`29.
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`The ESA does not define what constitutes a “significant portion” of a species’
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`range. In 2014, the Service promulgated a “Final Policy on Interpretation of the Phrase
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`‘Significant Portion of Its Range’ in the ESA’s Definitions of ‘Endangered Species’ and
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`“Threatened Species.’” 79 Fed. Reg. 37578 (July 1, 2014) (“SPR Policy”). The SPR Policy
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`provides that “a key part” of the Service’s analysis of whether a species is at risk in a significant
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`portion of its range is “whether the threats are geographically concentrated in some way.” Id. at
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`37586. This definition of “significant portion of range” saying that a portion is significant only
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`if, without that portion, the entire species would go extinct (or become endangered) has been
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`judicially invalidated. The Service now “identif[ies] portions that may be significant by looking
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`for portions of the species’ range that could be significant under any reasonable definition of
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`‘significant.’” 84 Fed. Reg. at 13230.
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`30.
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`The ESA does not define “foreseeable future.” The Service interprets the
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`“foreseeable future” to “extend[] only so far into the future as the Services can reasonably
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`determine that both the future threats and the species’ responses to those threats are likely.” 50
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`C.F.R. § 424.11(d). The Service determines “the foreseeable future on a case-by-case basis,
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`using the best available data and taking into account considerations such as the species’ life-
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`history characteristics, threat-projection timeframes, and environmental variability.” Id.
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`31.
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`The definition of “species” includes “subspecies” and “distinct population
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`segments [“DPS”] of any species of vertebrate fish or wildlife which interbreeds when mature.”
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`16 U.S.C. § 1532(16). When considering whether a population segment qualifies as a DPS under
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`the Act, Service policy requires the agency to determine whether that population is “discrete”
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`and “significant.” If the Service determines that a population segment is both discrete and
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`significant, then the population segment qualifies as a DPS and meets the ESA’s definition of a
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`“species” that may be classified as threatened or endangered.
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`32.
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`The ESA requires the Service to “determine whether any species is an endangered
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`species or a threatened species because of any of the following factors:
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`(A) the present or threatened destruction, modification, or curtailment of its habitat
`or range;
`(B) overutilization for commercial, recreational, scientific, or educational purposes;
`(C) disease or predation;
`(D) the inadequacy of existing regulatory mechanisms; or
`(E) other natural or manmade factors affecting its continued existence.”
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`Id. § 1533(a)(1).
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`33.
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`The Service’s determination as to whether existing regulatory mechanisms are
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`inadequate to protect the species pursuant to section 1533(a)(1)(D) is guided in part by its Policy
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`on Evaluation of Conservation Efforts When Making Listing Determinations (“PECE”). 68 Fed.
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`Reg. 15100 (March 28, 2003). The PECE directs that “conservation efforts that are not
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`sufficiently certain to be implemented and effective cannot contribute to a determination that
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`listing is unnecessary or a determination to list as threatened rather than endangered.” Id. at
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`15115.
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`34.
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`The Service’s listing determinations must be based “solely on the basis of the best
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`scientific and commercial data available.” 16 U.S.C. § 1533(b)(1)(A).
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`35.
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`The ESA’s substantive protections generally apply only once the Service lists a
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`species as threatened or endangered. For example, section 7 of the ESA requires all federal
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`agencies to ensure that their actions do not “jeopardize the continued existence” of any listed
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`species or “result in the destruction or adverse modification” of a species’ “critical habitat.” Id.
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`§ 1536(a)(2). Section 9 of the ESA prohibits, among other things, “any person” from
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`intentionally taking listed species, or incidentally taking listed species, without a lawful
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`authorization from the Service. Id. §§ 1538(a)(1)(B), 1539. Other provisions require the Service
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`to designate “critical habitat” for listed species, id. § 1533(a)(3); to “develop and implement”
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`recovery plans for listed species, id. § 1533(f); authorize the Service to acquire land for the
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`protection of listed species, id. § 1534; and authorize the Service to make federal funds available
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`to states to assist in its efforts to preserve and protect threatened and endangered species, id.
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`§ 1535(d).
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`36.
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`To ensure the timely protection of species at risk of extinction, Congress set forth
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`a detailed process whereby citizens may petition the Service to list a species as endangered or
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`threatened. The process includes mandatory, nondiscretionary deadlines that the Service must
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`meet. The three required findings, described below, are the 90-day finding, the 12-month finding,
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`and for species that the Service determines warrant protection, the final listing determination.
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`37.
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`Upon receipt of a listing petition, the Service must “to the maximum extent
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`practicable, within 90 days” make 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). If the Service finds that the petition does not present substantial
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`information indicating that listing may be warranted, the petition is rejected and the process ends.
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`38.
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`If on the other hand, as in this case, the Service determines that a petition does
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`present substantial information indicating that listing may be warranted, then the agency must
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`publish that finding and proceed to conduct a full scientific review of the species’ status. Id.
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`39.
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`Upon completion of this status review, and within twelve (12) months from the
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`date that it receives the petition, the Service must make a listing determination, or “12-month
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`finding,” with one of three determinations: (1) listing is “not warranted”; (2) listing is
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`“warranted”; or (3) listing is “warranted but precluded” by other pending proposals for listing
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`species, provided certain circumstances are present. Id. § 1533(b)(3)(B).
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`40.
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`Under internal policy created without public notice and comment, the Service
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`uses a “species status assessment” to inform the agency’s listing decision. U.S. Fish & Wildlife
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`Service, Species Status Assessment Framework: An Integrated Framework for Conservation,
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`FWS.gov (Aug. 2016), at https://fws.gov/endangered/improving_esa/pdf/SSA_Fact_Sheet-
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`August_2016.pdf.
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`41.
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`If the Service issues a 12-month finding that listing the species is “warranted,” it
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`must publish a proposed rule to list the species as endangered or threatened in the Federal
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`Register. 16 U.S.C. § 1533(b)(5). Within one year of the publication of a proposed rule to list a
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`species, the Service must issue a final rule listing the species along with a final designation of
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`critical habitat for the species. Id. §§ 1533(a)(3), (b)(6)(A), (C).
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`42.
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`If on the other hand, as in this case, the Service issues a 12-month finding that
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`listing the species is “not warranted,” the Service rejects the petition, and the process ends. A not
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`warranted finding is subject to judicial review. Id. § 1533(b)(3)(C)(ii).
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`Administrative Procedure Act
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`43. While the ESA provides for judicial review of a “not warranted” 12-month
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`finding, id. § 1540(g), the APA generally governs the standard and scope of judicial review. 5
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`U.S.C. §§ 701–706.
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`44.
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`Under the APA, a reviewing court “shall hold unlawful and set aside agency
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`action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
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`otherwise not in accordance with law.” Id. § 706(2)(A).
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`45.
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`An agency’s action is arbitrary and capricious if the agency has relied on factors
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`that Congress has not intended it to consider, entirely failed to consider an important aspect of
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`the problem, offered an explanation for its decision that runs counter to the evidence before the
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`agency, or is so implausible that it could not be ascribed to a difference in view or the product of
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`agency expertise. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
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`(1983).
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`BACKGROUND
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`The Eastern Hellbender and Threats to Its Continued Existence
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`The eastern hellbender is a large, fully aquatic salamander that lives in clear,
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`46.
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`clean streams of the eastern United States. Reaching nearly two feet in length, it is the largest
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`amphibian in North America.
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`47.
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`The hellbender is primarily nocturnal and remains under cover during the day. At
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`night, it uses ambush tactics to hunt crayfish, and occasionally small fish, insects, and frogs.
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`Though it can move quickly to avoid predators, the hellbender generally leads a minimally active
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`life. Its home range is relatively small, from approximately 30 to 2,200 square meters.
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`48.
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`The hellbender can live at least 25–30 years in the wild and may in some
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`instances live longer than 50 years. At every life stage, the eastern hellbender has a strong
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`preference for free-flowing, cool, clean, highly oxygenated streams with boulders and crevasses
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`to survive.
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`49.
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`Hellbenders were historically fairly common across 15 eastern states, ranging
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`from northeastern Mississippi, northern Alabama, and northern Georgia northeast through
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`Tennessee, Kentucky, North Carolina, Missouri, Illinois, Indiana, Ohio, West Virginia,
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`Maryland, Virginia, and Pennsylvania, to the southern portion of New York.
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`50.
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`Hellbender abundance has decreased in many parts of the range, with reduced
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`numbers observed beginning in the mid-20th century. These declines have been drastic in most
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`areas of the species’ range.
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`51.
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`Hellbender declines are driven by myriad human-caused impacts. Sedimentation
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`is one of the primary factors most impacting the status of the species throughout its range, arising
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`from multiple sources, including agriculture, deforestation of upland forests, clearing of riparian
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`vegetation, oil and gas development (including enhanced recovery techniques such as hydraulic
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`fracturing), residential development, off-road vehicles, impoundments, and instream gravel
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`mining. Increased sediment fills the interstitial spaces in cobble beds that are used as shelter by
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`larval and juvenile hellbenders as well as their prey, and sediment can also impact habitat use
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`and migration by adults by burying shelter and nest rocks.
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`52.
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`The loss of canopy cover due to deforestation and sedimentation is also associated
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`with increased temperatures in streams and rivers, which negatively impacts hellbender
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`physiology.
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`53.
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`Climate change is predicted to exacerbate the trends of warming stream
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`temperatures and lower flow regimes that negatively impact eastern hellbenders.
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`54.
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`Dam construction and other stream impoundments negatively impact hellbenders
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`throughout much of their range. Because hellbenders breathe primarily through their skin, they
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`depend on well-oxygenated water. Dams stop swift water flow and submerge riffles, causing
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`dissolved water levels to drop and rendering the habitat unsuitable for hellbenders.
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`Impoundments also fragment hellbender habitat, blocking the flow of immigration and
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`emigration between populations.
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`55.
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`Coal mining, streambed gravel mining, and other forms of mining destroy
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`hellbender habitat and degrade water quality through toxic pollution (often caused by acid mine
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`drainage), decreased pH levels, and increased siltation and sedimentation.
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`56.
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`Hellbenders have suffered direct mortality through collection for scientific study
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`and anatomy courses, the illegal pet trade, bounty hunts by sportsman’s clubs, and persecution
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`by anglers holding the misconception that hellbenders impact fish populations, when their
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`primary prey is in fact crayfish. In addition, non-native fish stocked for sports fishing often prey
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`on young or larval hellbenders.
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`57.
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`Compounding the many threats to the hellbender’s continued existence, long-
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`lived species such as eastern hellbenders are slow to recover from perturbations because of their
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`delayed maturity, low fecundity, and other factors. Many of the remaining hellbender
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`populations largely consist of older animals and have little to no recruitment of new animals,
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`suggesting that reproduction is no longer occurring. Such populations may be functionally
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`extirpated.
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`The Center’s Petition and Listing History
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`58.
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`On April 20, 2010, the Center petitioned the Service to list the eastern hellbender
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`as threatened or endangered under the ESA. On September 27, 2011, the Service issued a
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`Case 1:21-cv-05706-LJL Document 1 Filed 07/01/21 Page 17 of 24
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`positive 90-day finding for the eastern hellbender, determining the petition presented substantial
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`scientific information indicating that listing may be warranted because of “habitat loss and
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`overuse,” as well as other factors. 76 Fed. Reg. 59836.
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`59.
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`In June 2013, the Center sued to compel the Service to issue the required but
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`overdue 12-month finding. Ctr. for Biological Diversity v. Jewell, Case No. 1:13-cv-00975-EGS
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`(D.D.C.). On September 23, 2013, the Center and the Service entered a stipulated settlement
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`agreement that the Service would submit to the Federal Register a 12-month finding on the
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`petition to list the hellbender by September 30, 2018. Id. at Dkt. No. 7.
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`The Service’s Unlawful Not Warranted Determination
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`60.
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`On April 4, 2019, the Service issued the 12-month finding concluding that listing
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`the eastern hellbender as threatened or endangered under the ESA is not warranted. 84 Fed. Reg.
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`13223.
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`61.
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`The Service’s not warranted determination was primarily based on a Species
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`Status Assessment Report (“Status Assessment”) dated July 20, 2018.
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`62.
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`The Status Assessment states that the eastern hellbender subspecies was
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`historically broadly distributed with 570 populations occurring in 15 eastern U.S. states. Of these
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`570 populations, more than 70 percent (410 populations) have either unknown status or trend.
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`For these 410 populations, the Service made predictions whether they are extant or extirpated.
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`The Status Assessment predicts that of the 570 populations, approximately 40 percent (225
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`populations) are already extirpated and approximately 60 percent (345 populations) are still
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`extant.
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`63.
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`Of the 345 populations predicted to be extant, nearly two-thirds (219 populations)
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`are declining, while only 126 populations are considered to be healthy. Of the 126 populations
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`Case 1:21-cv-05706-LJL Document 1 Filed 07/01/21 Page 18 of 24
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`considered to be healthy, nearly three-quarters (91 populations) are of unknown status.
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`Accordingly, of the 570 historic eastern hellbender populations, the Service can now identify
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`only 35 remaining known populations that are considered to be healthy.
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`64.
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`The Status Assessment organizes the remaining hellbender populations into four
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`evolutionary lineages, which it characterizes as “adaptive capacity units” or “ACUs”: 1) the
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`Missouri River drainage; 2) the Ohio River-Susquehanna River drainages; 3) the Tennessee
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`River drainage; and 4) the Kanawha River drainage.1 The Service notes that “[e]ach of the
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`evolutionary lineages represents a substantial amount of the [hellbender’s] genetic diversity, as
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`well as diverse ecological and physical conditions, which may provide important sources of
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`adaptive diversity.” 84 Fed. Reg. at 13233. Indeed, the Service concludes that the hellbender’s
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`survival depends on “conserving the full breadth of representation” by “maintaining populations
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`across and within the four distinct lineages.” Status Assessment, at p. 24.
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`65.
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`The remaining hellbender populations known or predicted to still exist are heavily
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`concentrated in the Ohio River-Susquehanna ACU (44 percent of remaining populations) and
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`Tennessee River ACU (45 percent of remaining populations), with smaller numbers in the
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`Kanawha River ACU (10 percent of remaining populations) and Missouri River ACU (1 percent
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`of remaining populations).
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`66.
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`The Status Assessment and not warranted determination both acknowledge that
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`the stressors driving the hellbender’s populations decline are pervasive across the species’ range,
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`and that a continued reduction in its geographic range is anticipated.
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`1 This organization is inherently unclear, as the Tennessee and Kanawha Rivers both drain into
`the Ohio River, while the Susquehanna River is part of the Chesapeake Bay watershed.
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`Case 1:21-cv-05706-LJL Document 1 Filed 07/01/21 Page 19 of 24
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`67.
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`The Status Assessment predicts that the los