Case 6:22-cv-00044-ADA-JCM Document 1 Filed 01/12/22 Page 1 of 25
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`GENERAL LAND OFFICE OF THE STATE
`OF TEXAS,
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`Plaintiff,
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`v.
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`UNITED STATES DEPARTMENT OF THE
`INTERIOR, THE HONORABLE DEB
`HAALAND
`in her official capacity as
`Secretary of the Interior, UNITED STATES
`FISH AND WILDLIFE SERVICE, MARTHA
`WILLIAMS in her official capacity as Acting
`Director of the United States Fish and Wildlife
`Service, and AMY LUEDERS in her official
`capacity as Southwest Regional Director of the
`United States Fish and Wildlife Service,
`Defendants.
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`Case No. 6:22-CV-00044
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`COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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`THEODORE HADZI-ANTICH
`ROBERT HENNEKE
`CONNOR MIGHELL (Application for
`Admission Pending)
`TEXAS PUBLIC POLICY FOUNDATION
`901 Congress Avenue
`Austin, Texas 78701
`Telephone:
`(512) 472-2700
`Facsimile:
`(512) 472-2728
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`Attorneys for Plaintiff
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`Case 6:22-cv-00044-ADA-JCM Document 1 Filed 01/12/22 Page 2 of 25
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`I.
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`INTRODUCTION
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`1.
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`The defendants named above (collectively, the “Federal Defendants” or the
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`“Service”) have disobeyed the vacatur and remand orders of the Fifth Circuit and this court by
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`continuing to violate the Endangered Species Act (the “ESA”) and its implementing regulations.
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`Once again, the Federal Defendants have used an impermissibly stringent standard to deny the 90-
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`day Petition to remove the Golden-Cheeked Warbler (the “Warbler”) from the ESA list of
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`endangered species. Accordingly, Plaintiff General Land Office of the State of Texas (‘TXGLO”)
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`files this Complaint seeking declaratory judgment and injunctive relief.
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`II.
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`PARTIES
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`2.
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`Plaintiff TXGLO is the oldest state agency in Texas and, among other things, is
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`charged with maximizing revenues from Texas public lands dedicated to the Permanent School
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`Fund. TXGLO derives those revenues by selling public school lands and leasing their mineral
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`rights, which flow to the Permanent School Fund under the Texas Constitution. See Tex. Const.
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`Art. VII § 5(g). TXGLO also owns and maintains state veterans’ homes that provide care and
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`dignity for veterans, their spouses, and Gold Star parents, as well as state veterans’ cemeteries to
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`honor those who have served. TXGLO owns or maintains public school lands which contain
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`Warbler habitat. The federal government undermines TXGLO’s ability to maximize revenues by
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`imposing restrictions due to Warbler population or habitat on TXGLO property, lowering the
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`property’s market value and subjecting TXGLO to onerous, costly, and time-consuming ESA
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`review. Delisting the Warbler will therefore provide immediate relief for TXGLO.
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`3.
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`Defendant United States Department of the Interior (“Interior”) is a department-
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`level agency of the United States. Congress has charged Interior with administering the ESA for
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`terrestrial species.
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`4.
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`Defendant United States Fish and Wildlife Service (the “FWS” or the “Service”) is
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`a bureau of Interior. The FWS has responsibility for the day-to-day administration of the ESA,
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`including listing and delisting terrestrial species and designating their critical habitat.
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`5.
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`Defendant Deb Haaland is the Secretary of the Interior. She oversees Interior’s
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`administration of the ESA.
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`6.
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`Defendant Martha Williams is the Acting Director of the FWS. She oversees the
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`Service’s administration of the ESA.
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`7.
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`Defendant Amy Lueders is the Southwest Regional Director of the FWS. She
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`oversees the Service’s administration of the ESA in a region that includes the State of Texas.
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`III.
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`JURISDICTION AND VENUE
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`8.
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`Plaintiff brings this action under the Administrative Procedure Act (“APA”), 5
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`U.S.C. §§ 701-706, and the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1540(g)(1)(A).
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`9.
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`This court has subject matter jurisdiction pursuant to 5 U.S.C. §§ 701-706 (APA);
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`28 U.S.C. § 2201 (Declaratory Judgment Act); and 16 U.S.C. §§ 1540(g)(1)(A) and (C) and
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`(g)(2)(A) and (B) (ESA citizen suit provisions).
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`10.
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`Pursuant to the citizen suit provisions of ESA, Plaintiff sent a 60-day notice of
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`intent (“NOI”) to sue the Federal Defendants over their respective failures to comply with the ESA
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`and the orders of the Fifth Circuit and this Court. The NOI was sent to the Federal Defendants on
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`October 11, 2021, and was received by the last of them on October 12, 2021. A copy of the NOI
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`is included in Exhibit A. A copy of the receipts showing delivery of the NOI is included in Exhibit
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`B. Accordingly, Plaintiff has complied with the 60-day notice requirements of the ESA.
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`11.
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`The relief requested is authorized by 28 U.S.C. § 2201 (declaratory judgment), 28
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`U.S.C. § 2202 (injunctive relief), 5 U.S.C. §§ 701-706 (APA), and 16 U.S.C. § 1540(g) (ESA
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`citizen suit provision).
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`12.
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`This Court also has jurisdiction pursuant to 28 U.S.C. § 1331, which grants the
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`district courts “original jurisdiction of all civil actions arising under the . . . laws . . . of the United
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`States,” and 16 U.S.C. § 1533(b)(3)(C)(ii) (authorizing judicial review of negative 90-day findings
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`made under the ESA).
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`13.
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`Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391(e)(1) because a
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`substantial part of the events or omissions giving rise to the claims occurred in this district, a
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`substantial part of the property that is the subject of the action is situated in this district, or the
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`plaintiff resides in this district. In addition, venue is appropriate under 16 U.S.C. § 1540(g)(3)(A)
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`because the violation occurred in this district. Venue is appropriate also under 5 U.S.C. § 703.
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`14.
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`An actual, justiciable controversy exists between the parties within the meaning of
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`28 U.S.C. § 2201.
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`15.
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`The federal Government has waived sovereign immunity in this action pursuant to
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`5 U.S.C. § 702 and 16 U.S.C. § 1540.
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`16.
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`Plaintiff TXGLO has exhausted all administrative remedies, the Federal
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`Defendants’ action is final and ripe for review, and Plaintiff has standing because it is injured in
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`fact because of the Federal Defendants’ denial of the 90-day Petition, which continues the burdens
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`of the ESA on Plaintiff’s properties located in Texas, and this court has the power to redress that
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`injury by vacating the denial of the 90-day Petition and providing the requested declaratory and
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`injunctive relief.
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`IV.
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`LEGAL BACKGROUND
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`A.
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`Endangered Species Act and Implementing Regulations
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`17.
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`Congress passed the ESA to protect species vulnerable to extinction and conserve
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`the ecosystems upon which endangered and threatened species depend. See 16 U.S.C. § 1531(b).
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`Before a species receives full protection under the ESA, it must be listed as “threatened” or
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`“endangered.” A “threatened” species is “any species which is likely to become an endangered
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`species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C.
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`§ 1532(20). An “endangered” species is “in danger of extinction throughout all or a significant
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`portion of its range.” 16 U.S.C. § 1532(6). The government determines whether to list a species
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`based on certain factors using the “best scientific and commercial data available.” 16 U.S.C. §
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`1533(b)(1)(A).
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`18.
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`Under regulations in effect on the date the 90-day Petition was filed by the Plaintiff,
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`a species was to be listed if it was endangered or threatened based on any one or a combination of
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`these factors:
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`a.
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`The present or threatened destruction, modification, or curtailment of its
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`habitat or range;
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`b.
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`Overutilization for commercial, recreational, scientific, or educational
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`c.
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`d.
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`e.
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`purposes;
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`Disease or predation;
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`The inadequacy of existing regulatory mechanisms; or
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`Other natural or manmade factors affecting its continuing existence. 50
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`C.F.R. § 424.11(c)(1)–(5) (2014).
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`19.
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`Once a species is listed as “threatened” or “endangered,” the ESA protects it by
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`making it unlawful for any person to “take” such species. 16 U.S.C. § 1538(a)(1)(B). To “take”
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`means to “harass, harm, hunt, pursue, shoot, wound, kill, trap, capture, or collect, or to attempt to
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`engage in any such conduct.” 16 U.S.C. § 1532(19).
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`20.
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`Federal agencies must consult with the Secretary of the Interior if they believe their
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`projects on any property may affect endangered or threatened species. Every five years the
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`Secretary of the Interior must review each listed species to determine whether a change in the
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`species’ listing status is warranted. 16 U.S.C. § 1533(c)(2)(A). This includes a determination as
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`to whether a species should be delisted or changed in status from endangered to threatened, or vice
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`versa. 16 U.S.C. § 1533(c)(2)(B). Under rules in effect as of the time relevant to this complaint,
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`species may be delisted if, after review of the species, the best scientific and commercial data
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`substantiates that the species is neither threatened nor endangered due to extinction, recovery, or
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`the original scientific or commercial data used at the time the species was classified (or the
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`interpretation of such data) were in error. 50 C.F.R. § 424.11(d)(3) (2014); see General Land
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`Office of Tex. v. United States DOI, 947 F. 3d 309, 320-21 (Fifth Cir. 2020) (holding that the
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`Service must apply the regulations in effect at the time the 90-day Petition was filed with the
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`agency); see also 81 Fed. Reg. 7414, et seq. (February 11, 2016) (amending 50 CFR Part 424,
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`effective as of March 14, 2016). For the convenience of the Court, the codification of the
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`applicable regulations in effect as of the date on which the 90-day Petition was filed is included as
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`Exhibit C of this complaint.
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`21.
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`The factors considered for delisting are the same as those considered when listing
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`a species. Id.
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`22.
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`The government has a duty to specify critical habitat for any threatened or
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`endangered species “to the maximum extent prudent and determinable.” 16 U.S.C. §
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`1533(a)(3)(A)(i). Critical habitat means “the specific areas within the geographical area occupied
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`by the species . . . on which are found those physical or biological features essential to the
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`conservation of the species and which may require special management considerations or
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`protection,” as well as specific areas outside an endangered species’ range “upon a determination
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`by the Secretary [of Commerce] that such areas are essential for the conservation of the species.”
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`16 U.S.C. § 1532(5)(A)–(B) (cleaned up).
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`23.
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`An interested person may petition the federal government to add a species to or
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`remove a species from the endangered or threatened species lists (a “90-day petition”). See 16 U.S
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`§ 1533(b)(3)(A). Within 90 days after receiving such a petition, “the Secretary shall make a
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`finding as to whether the petition presents substantial scientific or commercial information
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`indicating that the petitioned action may be warranted.” Id. When doing so, the Secretary must
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`consider any information within the petition or attached to it that comports with certain regulatory
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`requirements in effect at the time a 90-day Petition is filed. See 50 C.F.R. § 424.11(b) – (f) (2014).
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`If the Secretary finds the petitioned action may be warranted, the Secretary must review the
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`species’ endangered or threatened status. Id. Any negative finding on a petition is subject to
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`judicial review. 16 U.S.C. § 1533(b)(3)(C)(ii).
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`24.
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`The ESA citizen suit provision permits any person to sue on his own behalf under
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`several circumstances, including filing a suit “against the Secretary where there is alleged failure
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`of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary
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`with the Secretary.” 16 U.S.C. § 1540(g)(1)(C). This provision negates the “zone of interests”
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`test for prudential standing. See Bennett v. Spear, 520 U.S. 154, 164 (1997). The Secretary has
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`no discretion to ignore or otherwise refuse to comply with federal court orders issued in connection
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`with a 90-day petition filed pursuant to 16 U.S.C. § 1533(b)(3)(A).
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`B.
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`Administrative Procedure Act and Implementing Regulations
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`25.
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`The Administrative Procedure Act (“APA”) provides a right to judicial review for
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`any “person suffering legal wrong because of agency action.” 5 U.S.C. § 702. The reviewing
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`court must “hold unlawful and set aside agency action” that it finds “arbitrary, capricious, an abuse
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`of discretion, or otherwise not in accordance with law; contrary to constitutional right, power,
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`privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of
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`statutory right; [or] without observance of procedure required by law . . . .” 5 U.S.C. § 706(2)(A)–
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`(D) (cleaned up).
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`V.
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`FACTUAL ALLEGATIONS
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`The Golden-Cheeked Warbler: A Texas-Nesting Species
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`The Warbler is an insectivorous migratory songbird that breeds in the mixed Ashe
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`26.
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`juniper and deciduous woodlands of Central Texas.
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`27.
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`The Warbler arrives in Texas from late February through April, migrating afterward
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`through Central America in July and August.
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`28.
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`The Warbler is the only bird species that nests entirely in the state of Texas.
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`The Federal Government Lists The Warbler As Endangered
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`The Warbler was first mentioned by the United States Fish and Wildlife Service in
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`29.
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`a Notice of Review published on December 30, 1982, as a species under consideration for addition
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`to the List of Endangered and Threatened Wildlife. 47 Fed. Reg. 251, 58459. At that time, the
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`Warbler was categorized as a species for which the Service had information indicating that a
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`proposal to list the species was “possibly appropriate, but for which substantial data are not
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`currently available to biologically support a proposed rule. Further biological research and field
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`study will usually be necessary to ascertain the status of the taxa in this category, and it is likely
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`that some of the taxa will not warrant listing.” Id. at 58454. The Warbler remained in that category
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`for both the September 18, 1985 Review of Vertebrate Wildlife [50 Fed. Reg. 37958] and the
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`January 6, 1989, Animal Notice of Review [54 Fed. Reg. 554].
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`30.
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`On February 2, 1990, a petition was filed seeking an emergency listing for the
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`Warbler, allegedly because the normal listing procedure could be “inadequate to protect the bird
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`and its habitat from imminent destruction from clearing and development.” 55 Fed. Reg. 18846,
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`18847.
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`31.
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`The Service emergency-listed the Warbler on May 4, 1990, finding that “ongoing
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`and imminent habitat destruction” warranted the action. Id. at 18844.
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`32.
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`The Service indicated in this ruling that Central Texas contained some of the best
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`Warbler habitat, and that increased development in the region placed this habitat under threat. Id.
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`33.
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`The Service published a Final Rule listing the species on December 27, 1990. 55
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`Fed. Reg. 53153.
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`34.
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`The Final Rule estimated there to be approximately 15,000 - 17,000 Warblers and
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`between 79,400 - 263,750 acres of available suitable habitat. Id. at 53154.
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`35.
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`In the Final Rule, the Service stated that the Warbler should be listed based on:
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`a.
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`b.
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`c.
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`d.
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`the present or threatened destruction of Warbler habitat;
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`the possibility of nest predation by Central Texas species;
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`the lack of regulatory protection for Warbler habitat; and
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`the lack of reproduction of deciduous trees in Warbler habitat.
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`Id. at 53157–59.
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`The 90-day Delisting Petition
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`36.
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`On June 29, 2015, Texans for Positive Economic Policy, Susan Combs, the Texas
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`Public Policy Foundation, and the Reason Foundation (“Petitioners”) submitted a petition to
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`remove the Warbler from the endangered species list (the “90-day Petition” or the “Petition”). The
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`Petition is attached to this complaint as Exhibit D.
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`37.
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`Among other things the Petition provided the following information to support its
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`contention that delisting the Warbler may be warranted:
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`a.
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`Warbler habitat is far larger than was known at the time the Warbler was
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`listed, see Exhibit D at 13, 18;
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`b.
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`the Warbler population is about 19 times greater than was believed when
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`the Warbler was listed, see id. at 19;
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`c.
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`habitat fragmentation and urbanization are not a threat to the Warbler due
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`to the size and scope of its habitat and population, see id. at 28; and
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`d.
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`many existing conservation plans and mechanisms exist for the Warbler
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`such that the probability of its extinction over the next 100 years is low, see
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`id. at 20, 23–25.
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`38.
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`The Petition stated that application of the best available scientific and commercial
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`information indicates that, because the Warbler does not meet the ESA’s statutory factors for
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`listing, it is “ineligible for continued listing as an endangered species.” Id. at 14.
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`The First 90-Day Finding
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`39.
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`On June 3, 2016, the Service made a negative 90-day finding denying the Petition
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`(the “First 90-day Finding”), claiming that there continues to be “ongoing, widespread destruction
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`of [Warbler] habitat” and that the Warbler is still in danger of extinction. 81 Fed. Reg. 35698,
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`35700 (June 3, 2016). For the convenience of the Court, the Service’s 2016 petition review form
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`setting forth the details of the First 90-day Finding is attached as Exhibit E.
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`40. While acknowledging that new data published since the Warbler’s listing indicate
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`growth in the Warbler’s population and the existence of more habitat, the Service claimed this data
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`represented “estimates rather than indicators of positive trends” and therefore, according to the
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`Service, do not imply recovery of the species. 81 Fed Reg. at 35700. Although the Service noted
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`that a study published after the Service received the 90-day Petition supported the contention that
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`the exact Warbler population was uncertain, the Service falsely faulted the Petition for failing to
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`address habitat fragmentation, disease and predation. Id.
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`41.
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`The Service ignored or discounted without adequate explanation the Petition’s data
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`showing (a) remarkable increases in Warbler population and habitat and (b) substantial evidence
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`that neither disease nor predation significantly threaten the Warbler. Instead the Service, stated
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`that the Petition provided no “new information” indicating the Warbler should be removed from
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`the endangered species list or that the original listing was in error. Id. at 35700.
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`The Original Lawsuit
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`42.
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`Plaintiff TXGLO filed suit in the Western District of Texas against the Service and
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`other defendants on June 5, 2017, challenging the First 90-day Finding as in violation of the ESA
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`and its implementing regulations and arbitrary and capricious. The district court upheld the First
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`90-day Finding. See Gen. Land Office of Tex. v. U.S. Fish and Wildlife Serv., 2019 WL 1010688
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`(W.D. Tex. Feb. 6, 2019). For the convenience of this Court, the 2019 district court order is set
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`forth as Exhibit F.
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`43.
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`TXGLO appealed, and the Fifth Circuit reversed the district court’s ruling, holding
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`that the First 90-day Finding violated the ESA and was arbitrary and capricious. See Gen. Land
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`Office of Tex. v. United States Dept. of the Interior, 947 F.3d 309, 320–21 (5th Cir. 2020).
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`44.
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`Among other things, the Fifth Circuit ruled that the Service applied an
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`inappropriately stringent standard of review by impermissibly requiring the Petition to present
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`“new” information the Service had not considered in its five-year review. Id. at 321.
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`45.
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`The Fifth Circuit held that applicable regulations in effect at the time of the filing
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`of the Petition required only that a petition present “that amount of information that would lead a
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`reasonable person to believe that the measure proposed in the petition may be warranted.” Id. at
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`320–21.
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`46.
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`The Fifth Circuit went on to hold that, in denying the 90-day Petition, “[t]he Service
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`recited [the correct] standard, but a careful examination of its analysis shows that the Service
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`applied an inappropriately heightened one.” Id. at 321 (emphasis in the original).
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`47.
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`The Fifth Circuit held that the Service’s denial of the 90-day Petition violated the
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`ESA and was arbitrary and capricious because it applied an inappropriately stringent standard that
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`was not authorized by the ESA or the then-applicable regulations. Id.
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`48.
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`Accordingly, the Fifth Circuit vacated the First 90-day Finding and remanded to
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`the Service for reconsideration of the Petition, ordering the Service to use the correct legal
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`standard, as specified by the Court. Id.
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`49.
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`On January 26, 2021, the district court awarded Plaintiff TXGLO attorney fees and
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`issued its final judgment closing the case. See Gen. Land Office of Tex. v. United States Dept. of
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`the Interior, Case No. 1:17-CV-00538-LY, Doc. No. 96. For the convenience of this Court, the
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`final judgment of the district court is attached to this complaint as Exhibit G.
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`The Service Defies The Fifth Circuit’s Order In Its Second 90-day Finding
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`50.
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`On July 27, 2021, the Service published a new 90-day finding on the Petition (“the
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`Second 90-Day Finding”). Once again, the Service found that the 90-day Petition did not present
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`substantial scientific or commercial data indicating that delisting the Warbler may be warranted.
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`86 Fed. Reg. 40186.
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`51.
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`The Service provided its reasoning for the Second 90-day Finding in a new petition
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`review form dated July 7, 2021. For the convenience of this Court, the 2021 petition review form
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`of the Second 90-day Finding is attached to the complaint as Exhibit H.
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`52.
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`In the Second 90-day Finding, the Service disobeyed the Fifth Circuit’s order and
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`once again applied an impermissibly heightened standard of review to the Petition. As in the First
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`90-day Finding, in the Second 90-day Finding the Service recited the correct standard, but then
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`applied an incorrect standard by stating that the Petition “does not report any new data or study
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`results . . . but summarizes readily available information about the [Warbler] and its habitat.” See
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`Exhibit H at Factor A(1)(a) (unpaginated) (emphasis added). Thus, the Service again
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`impermissibly required Petitioners to present new information the Service had not previously
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`considered. This is precisely the standard that the Fifth Circuit told the Service not to apply when
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`analyzing the 90-day Petition. See Gen. Land Office, 947 F.3d at 321 (“[T]he Service required the
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`delisting petition to contain information the Service had not considered in its five-year review . . .
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`The Service thus based its decision to deny the delisting petition on an incorrect legal standard.”).
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`53.
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`In addition, as shown throughout the Second 90-day Finding’s petition review form
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`set forth in Exhibit H, the Service ignored or misconstrued substantial scientific information
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`presented in the Petition. It did so despite the Service’s usual practice of “accept[ing] the
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`petitioner’s sources and characterizations of the information unless we [the Service] have specific
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`information to the contrary.” Colo. River Cutthroat Trout v. Kempthorne, 448 F. Supp. 2d 170,
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`176 n.4 (D.D.C. Sept. 7, 2006).
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`54.
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`The Service also failed to consider whether the original habitat and population data
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`for the Warbler were in error—a fundamental question the 90-Day Petition posed—and instead
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`choose to ignore this question in an oversight that defies reason. See Exhibit D at 13, 14; see also
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`50 C.F.R. § 424.11(d)(3) (2014).
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`55.
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`The Service required the Petition to present conclusive evidence that the Warbler
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`has recovered, again applying an incorrect standard of review that led to the vacatur and remand
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`of the First 90-day Finding. Specifically, the Service’s petition review form states that the Petition
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`only provides “new estimates rather than indicators of positive trends in [Warbler] habitat and
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`population size, and thus do not imply recovery.” Exhibit H at Factor A(1)(a) (unpaginated) This
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`Court recently held such an approach unlawful, stating that “[t]he Service violated its regulations
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`when it required . . . conclusive evidence [of] population trends . . . and the Service committed a
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`clear error in judgment and acted arbitrarily, capriciously, and not in accordance with the law when
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`it called for more evidence than the law requires.” Am. Stewards of Liberty v. U.S. Dep’t of the
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`Interior, 370 F. Supp. 3d 711, 725 (W.D. Tex. 2019) (emphasis added). As in American Stewards,
`
`here the Service again applied a higher standard of review than the law permits.
`
`56.
`
`The Service acknowledged in its review form that the habitat range and population
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`of the Warbler were both larger than what had been known when the Warbler was listed. See
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`Exhibit H, at Petition Finding (“We acknowledge that the known potential range is more extensive
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`than when the [Warbler] was originally listed in 1990.”) (unpaginated). Bewilderingly, however,
`
`the Service ignored or discounted this information without adequate explanation. So again, in
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`violation of the specific instructions of the Fifth Circuit, the Service denied the fact that the best
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`scientific data shows the Warbler may be a candidate for delisting.
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`13
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`Case 6:22-cv-00044-ADA-JCM Document 1 Filed 01/12/22 Page 15 of 25
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`57.
`
`The Warbler’s population numbers in the hundreds of thousands, and the Warbler
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`has millions of acres of available habitat. The Petition made this clear. The Petition also showed
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`that, based on the best scientific data, neither habitat fragmentation nor disease or predation
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`provide a threat to the Warbler. See Exhibit D at, e.g., 17, 22, 25, 27, 28. The Service turned a
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`blind eye to this information and instead falsely claimed the Petition did not address habitat
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`fragmentation, disease, or predation of the Warbler.
`
`58.
`
`The Service also failed to account for Dr. James Mueller’s presentation to the Texas
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`Chapter of the Wildlife Society on February 25, 2021 entitled Where and by How Much do Golden-
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`Cheeked Warbler Models Differ? This presentation described Mueller’s study using presence-
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`absence surveys to conclude there were between 220,000 and 276,000 singing male Warblers
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`throughout the Warbler breeding range and that the species did not appear to be imminently
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`threatened with extinction. While this study has not been published yet, the information referenced
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`would have been in the Service’s files when they issued the Second 90-day Finding.
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`59.
`
`Finally, the Service required proof of Warbler recovery as a condition precedent
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`for a positive 90-day finding. But success at the 90-day finding stage only requires a petition to
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`present substantial information that delisting may be warranted and not that delisting is warranted.
`
`The Current Lawsuit
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`60.
`
`On October 11, 2021, pursuant to the citizen suit provision of the ESA, 16 U.S.C.
`
`§ 1540(g)(2), Plaintiff TXGLO provided a 60-day notice of intent to file suit against the Service
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`to the Federal Defendants. As indicated above, the 60-day notice letter is attached as Exhibit A
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`and is hereby incorporated by reference in its entirety in this Complaint.
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`
`
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`
`14
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`Case 6:22-cv-00044-ADA-JCM Document 1 Filed 01/12/22 Page 16 of 25
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`
`
`VI.
`
`PLAINTIFF’S CLAIMS FOR RELIEF
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`First Claim For Relief
`
`IN DIRECT VIOLATION OF THE FIFTH CIRCUIT’S REMAND ORDER, THE
`SERVICE IMPERMISSIBLY REQUIRED THE 90-DAY PETITION TO CONTAIN
`NEW INFORMATION THAT THE SERVICE HAD NOT
`CONSIDERED DURING IT’S PREVIOUS FIVE YEAR REVIEW
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`(Violation of 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14(b)(1) (2014); 50 C.F. R. §
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`424.11(c)-(d) (2014); 5 U.S.C. § 706(2))
`
`61.
`
`Plaintiff realleges and incorporates by reference the allegations contained in
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`Paragraphs 1 through 60 as though fully set forth herein.
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`62.
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`Upon receipt of a delisting petition, federal law requires the Service, acting under
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`delegation from the Secretary of the Interior, to “make a 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.” 16 U.S.C. § 1533(b)(3)(A) (emphasis added).
`
`63.
`
`According to the ESA’s implementing regulations in effect at the time the Petition
`
`was submitted, “substantial information” means “that amount of information that would lead a
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`reasonable person to believe that [delisting] may be warranted.” 50 C.F.R. § 424.14(b)(1) (2014)
`
`(emphasis added). Nothing in those regulations required the 90-day Petition at issue here to contain
`
`new information not previously considered by the Service.
`
`64.
`
`After the 90-day Petition was submitted in 2015, the implementing regulations were
`
`revised in 2016, providing that where a prior species status review resulted in final agency action,
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`a petitioned action “generally would not be considered to present substantial scientific and
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`commercial information indicating the petitioned action may be warranted unless the petition
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`provides new information not previously considered.” 50 C.F.R. 424.14(h)(iii) (2016) (emphasis
`
`added).
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`Case 6:22-cv-00044-ADA-JCM Document 1 Filed 01/12/22 Page 17 of 25
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`65.
`
`In its First 90-day Finding, the Service impermissibly applied the 2016 revision of
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`the ESA’s implementing regulations to the 90-day Petition.
`
`66.
`
`The Fifth Circuit found in the Original Lawsuit that “[t]he Service recited [the
`
`correct] standard, but a careful review of its analysis shows that the Service applied an
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`inappropriately heightened one.” See Gen. Land Office, 947 F.3d at 321. Among other things, the
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`Court found that “the Service required the [Petition] to contain information the Service had not
`
`considered in its five-year review,” which was “an incorrect legal standard.” Id. Accordingly, the
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`Fifth Circuit found the Service’s First 90-day Finding unlawful, arbitrary and capricious, vacated
`
`the 90-day Finding, and remanded to the Service, requiring it to apply the correct standard of
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`review. Id.
`
`67.
`
`The Service defied the Fifth Circuit’s explicit instructions and impermissibly
`
`applied in its Second 90-day Finding the same incorrect standard it had applied in the vacated and
`
`remanded First 90-day Finding, requiring the Petitioners to offer “new data or study results,” while
`
`improperly criticizing the 90-day Petition because it “summarizes readily available information
`
`about the warbler and its habitat.” Exhibit H at Factor A(1)(a).
`
`68.
`
`The Service’s inexplicable and willful refusal to apply the correct standard of
`
`review at the 90-day stage notwithstanding the order of the Fifth Circuit violated the ESA and its
`
`implementing regulations applicable at the time the 90-day Petition was filed and was “arbitrary,
`
`capricious, an abuse of discretion, or otherwise not in accordance with law; in excess of statutory
`
`jurisdiction, authority, or limitations, or short of statutory right; [or] without observance of
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`procedure required by law . . . .” 5 U.S.C. § 706(2)(A)–(D) (cleaned up).
`
`
`
`
`
`16
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`Case 6:22-cv-00044-ADA-JCM Document 1 Filed 01/12/22 Page 18 of 25
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`Second Claim For Relief
`
`THE SERVICE IMPERMISSIBLY REQUIRED PETITIONERS TO SHOW
`PROOF OF RECOVERY AT THE 90-DAY STAGE
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`(Violation of 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14(b)(1) (2014); 5 U.S.C. § 706(2))
`
`69.
`
`Plain