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In Re Endangered Species Act Section 4 Deadline Litigation

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In Re Endangered Species Act Section 4 Deadline Litigation Case 1:10-mc-00377-EGS Document 31 Filed 05/10/11 Page 1 of 27 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) IN RE ENDANGERED SPECIES ACT ) SECTION 4 DEADLINE LITIGATION ) ) Misc. Action No. 10-377 (EGS) ) MDL Docket No. 2165 This Document Relates To: ) WildEarth Guardians v. Salazar, ) Nos. 10-cv-0048; 10-cv-0421; ) 10-cv-1043; 10-cv-1045; 10-cv-1048; ) 10-cv-1049; 10-cv-1050; 10-cv-1051; ) 10-cv-1068; 10-cv-2299; 10-cv-2595; ) and 10-cv-3366. ) ) JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT AND ORDER OF DISMISSAL OF GUARDIANS’ CLAIMS Plaintiff WildEarth Guardians (“Guardians”) and the Federal Defendants (the Secretary of the Interior, “Secretary,” and U.S. Fish and Wildlife Service, “FWS” or the “Service”) jointly move this Court to approve a Settlement Agreement (“Agreement”) (attached hereto as Exhibit 1), negotiated between Guardians and FWS through the Court’s voluntary mediation program and the parties’ subsequent settlement discussions, and incorporate the terms of this Agreement into an order dismissing all twelve actions in this consolidated multidistrict litigation (“MDL”) in which Guardians is the plaintiff. As set forth in detail below, the Service and Guardians have entered into a comprehensive settlement that seeks to reduce deadline litigation over the Service’s Endangered Species Act (“ESA” or the “Act”) listing program and to extend the protections of the ESA to more species that warrant those protections. Under the six- Case 1:10-mc-00377-EGS Document 31 Filed 05/10/11 Page 2 of 27 year term of the Agreement, subject to certain conditions and limitations, the Service is agreeing to: i. take certain specified ESA Section 4 actions during fiscal years 2011 and 2012, including issuance of many initial 90-day and 12-month findings on petitions to list species as well as proposed listing rules or not warranted findings for several “candidate” species for which the Service has previously found that listing is warranted but precluded by higher-priority actions; and ii. over the remaining four fiscal years (2013-16), issue proposed listing rules or not-warranted findings for all remaining existing candidate species (as of November 10, 2010). In total, the Service would make initial petition findings for over 600 species and issue proposed listing rules or not warranted findings for at least 251 species. The Service is not agreeing to reach any particular substantive decisions on petitions or agreeing to list any species. Rather, it is committing to make initial findings on listing petitions that are required by the ESA and to resolve the listing status of species – including either determining that listing is not warranted or, where listing is warranted, listing species pursuant to ESA notice-and-comment procedures – on a timetable that the Service believes is reasonable. In exchange for this substantial workload commitment, Guardians is agreeing not to sue the Service on allegedly untimely petition findings or to challenge the Service’s progress in listing candidate species during the six-year term of the Agreement plus six months (i.e., through March 31, 2017). Also, Guardians would agree to a cap on the number of new listing petitions that it may file during the duration 2 Case 1:10-mc-00377-EGS Document 31 Filed 05/10/11 Page 3 of 27 of the Agreement. In addition, the Agreement provides that, upon its approval, Guardians and the Federal Defendants will jointly move to dismiss five other cases that, although not consolidated in this MDL proceeding, involve challenges by Guardians or Guardians and co-plaintiffs to the Service’s progress in listing candidate species. The sole plaintiff in the remaining case consolidated in this proceeding, the Center for Biological Diversity (“CBD”), is not a party to this Agreement. In a separate filing in CBD’s consolidated case in this proceeding, the Service is providing notice of the filing of this Agreement. While CBD is not a party to this Agreement, the Agreement resolves CBD’s claims as explained below. Accordingly, the Service shortly will file a motion to dismiss CBD’s claims as moot or, if CBD is amenable, a stipulation of dismissal. For the reasons set forth below, the Agreement meets all applicable standards for judicial approval of a consent decree, and it should be approved and entered by the Court. I. STATUTORY AND FACTUAL BACKGROUND A. The ESA Listing Process The purpose of the ESA is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered and threatened species.” 16 U.S.C. § 1531(b). The ESA defines “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary.” Id. § 1532(3). 3 Case 1:10-mc-00377-EGS Document 31 Filed 05/10/11 Page 4 of 27 The protective provisions of the ESA are not triggered for imperiled species, however, until after such species are officially “listed” as either “threatened species” or “endangered species” under the terms of the Act. See id. §§ 1533, 1536, 1538. A species is listed as “endangered” if the Service determines that it is “in danger of extinction throughout all or a significant portion of its range.” Id. § 1532(6). A species is listed as “threatened” if the Service determines that it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20). A “species” is defined to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Id. § 1532(16). The Secretary is required to list as either threatened or endangered any species facing extinction or endangerment due to any one, or any combination, of the following five factors: (A) the present or threatened destruction, modification, or curtailment of the species’ 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 the species’ continued existence. Id. § 1533(a)(1)(A)-(E). 4 Case 1:10-mc-00377-EGS Document 31 Filed 05/10/11 Page 5 of 27 The Secretary’s decision whether to list a species is limited solely to consideration of these five factors. In considering these factors, the Secretary must use only “the best available scientific and commercial information regarding a species’ status, without reference to possible economic or other impacts of such determination.” 50 C.F.R. § 424.11(b); see also 16 U.S.C. § 1533(b)(1)(A). Once a species is listed, the ESA provides strong legal protections to encourage the species’ recovery. The ESA requires the Secretary, to the maximum extent prudent and determinable, to designate critical habitat for all threatened and endangered species concurrently with their listing and subsequently to develop recovery plans for such species. 16 U.S.C. § 1533(a)(3), (f). The ESA also requires that all federal agencies “carry out programs for the conservation” of threatened and endangered species and consult with the Secretary in order to ensure that their actions are “not likely to jeopardize the continued existence” of such species or “result in the destruction or adverse modification” of their critical habitat. Id. § 1536(a)(1), (2). Additionally, the ESA prohibits any person from “taking” a threatened or endangered species. Id. § 1538(a)(1)(B); 50 C.F.R. §§ 17.21, 17.31. To “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). Any interested person may file a petition with the Secretary to list a species as threatened or endangered under the ESA. Id. § 1533(b)(3)(A); 50 C.F.R. § 424.14(b). The ESA establishes a process and timeline for determining whether the listing of a species is merited under the terms of the Act pursuant to a citizen petition. Specifically, the ESA provides that, within 90 days after receiving a petition from any person, to the 5 Case 1:10-mc-00377-EGS Document 31 Filed 05/10/11 Page 6 of 27 maximum extent practicable, the Secretary shall make an initial finding (“90-day finding”) as to “whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” 16 U.S.C. § 1533(b)(3)(A). “Substantial information” is that “amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.” 50 C.F.R. § 424.14(b). If the Secretary makes a positive 90-day finding, then the Secretary must commence a status review of the species concerned. 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14(b)(3). After the status review, the Secretary must, within 12 months of receiving the petition, make a determination as to whether the petitioned action (in this scenario, listing the species as threatened or endangered) is “warranted,” “not warranted,” or “warranted, but precluded” by higher-priority actions. 16 U.S.C. § 1533(b)(3)(B); 50 C.F.R. 424.14(b)(3). This determination is known as a “12-month finding.” If the Secretary finds that listing the species under the ESA is warranted, he must promptly publish a proposed listing regulation (“Proposed Rule”) in the Federal Register.
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