Case 4:18-cv-00404-EJM Document 1 Filed 08/15/18 Page 1 of 19 1 Ryan Adair Shannon (Or. Bar No. 155537) Center for Biological Diversity 2 2009 NE Alberta St., Suite 207 3 Portland, OR 97211 Phone: (503) 283-5474 ext. 407 4 Email: [email protected] Pro Hac Vice 5 6 Brian Segee (Cal. Bar No. 200795) Center for Biological Diversity 7 660 S. Figueroa Street, Suite 1000 8 Los Angeles, CA 90017 Phone: (805) 750-8852 9 Email: [email protected] Pro Hac Vice 10 11 Attorneys for Plaintiff 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE DISTRICT OF ARIZONA TUCSON DIVISION 14 15 16 Center for Biological Diversity, a non- Case No.: _____________ profit organization, 17 COMPLAINT FOR DECLARATORY 18 Plaintiff, AND INJUNCTIVE RELIEF 19 v. 20 Ryan Zinke, in his official capacity as 21 Secretary of the Interior; U.S. Fish and Wildlife Service, 22 23 Defendants. 24 25 INTRODUCTION 26 1. Plaintiff Center for Biological Diversity (“Center”) challenges, pursuant to 27 the Endangered Species Act (“ESA”) and the Administrative Procedure Act (“APA”), 28 the U.S. Fish and Wildlife Service’s (“FWS”) withdrawal of a proposed rule establishing Complaint for Declaratory and Injunctive Relief Page 1 Case 4:18-cv-00404-EJM Document 1 Filed 08/15/18 Page 2 of 19 1 ESA protections for a distinct population segment (“DPS”) of the roundtail chub in the 2 lower Colorado River basin (defined as the Colorado River and all of its tributaries south 3 of Glen Canyon Dam) (hereafter, “LCR roundtail chub”). 82 Fed. Reg. 16,981 (Apr. 7, 4 2017). 5 2. LCR roundtail chub (Gila robusta) are large minnows endemic to the 6 lower Colorado River basin with slender, silver bodies and forked tail fins. Decimated 7 by habitat degradation, non-native fish introductions, climate change, and other threats, 8 LCR roundtail chub now occupy only a fraction of their historic range. 9 3. In 2003, the Center petitioned to list the LCR roundtail chub and another 10 species, the headwater chub (Gila nigra), as threatened or endangered under the ESA. 11 Although the ESA generally requires listing of a species to occur within two years from 12 the submission of a petition, FWS delayed more than a decade before finally issuing a 13 proposed rule to protect both fish as threatened species. 80 Fed. Reg. 60,754 (Oct. 7, 14 2015). 15 4. Under FWS policy, a population of a species is considered a DPS when the 16 agency determines that such population is “discrete” (usually through geographic 17 separation) from other populations of the species and that such population is 18 “significant” to the conservation of the species as a whole. FWS applied that policy in 19 the 2015 proposed listing rule, concluding that the LCR roundtail chub comprises a DPS 20 because of its unique genetic lineage, its separation from roundtail chub in the upper 21 Colorado River basin by the Glen Canyon Dam, and because the loss of the species from 22 the lower basin would result in a significant gap in the range of the species. 23 5. However, rather than issue a final rule and provide the LCR roundtail chub 24 with the long overdue ESA protections it desperately needs, FWS reversed course and 25 withdrew the proposed rule based on a September 2016 determination by the American 26 Fisheries Society (“AFS”) that the roundtail chub, headwater chub, and Gila chub (Gila 27 intermedia) (currently listed as endangered under the ESA) should be reclassified and 28 Complaint for Declaratory and Injunctive Relief Page 2 Case 4:18-cv-00404-EJM Document 1 Filed 08/15/18 Page 3 of 19 1 combined as a single species referred to as the roundtail chub. 82 Fed. Reg. 16,982 2 (April 7, 2017). 3 6. In its withdrawal, FWS claims that under the AFS reclassification, the 4 LCR roundtail chub does not meet the definition of a species under the ESA. The 5 withdrawal, however, is bereft of any explanation for the agency’s reversal from its 6 previous finding in the proposed listing rule that the LCR roundtail chub is a threatened 7 DPS. Contrary to FWS’s determination, even under the new, combined species 8 reclassification, the LCR roundtail chub remains a threatened DPS, and continues to face 9 imminent and severe threats. These deficiencies render the withdrawal decision 10 arbitrary and capricious, and in violation of the ESA and APA. In making its 11 withdrawal decision, FWS also unlawfully ignored and failed to respond to comments 12 submitted by the Center and others that addressed these inadequacies in detail. 13 7. In order to remedy these ESA violations, the Center seeks an order 14 vacating FWS’s withdrawal of the proposed rule, and remanding the matter to FWS with 15 instructions to conduct a new status review of the LCR roundtail chub, and at the 16 conclusion of that status review, to issue a new 12-month finding regarding whether the 17 listing of the LCR roundtail chub as an endangered or threatened DPS is warranted, and 18 if such listing is warranted, directing FWS to timely issue a final listing rule. 19 JURISDICTION AND VENUE 20 8. This Court has jurisdiction over this action pursuant to 16 U.S.C. § 21 1540(c) and (g) (action arising under ESA citizen suit provision); 5 U.S.C. § 702 (APA 22 review); and 28 U.S.C. § 1331 (federal question jurisdiction). 23 9. The Court may grant the relief requested under the ESA, 16 U.S.C. § 24 1540(g); the APA, 5 U.S.C. §§ 701–706; and 28 U.S.C. §§ 2201 and 2002 (declaratory 25 and injunctive relief). 26 10. Plaintiff provided sixty (60) days’ notice of its intent to file this suit 27 pursuant to the citizen suit provision of the ESA, 16 U.S.C. § 1540(g)(2)(C), by letter to 28 Defendants dated May 7, 2018. Defendants have not taken action to remedy their Complaint for Declaratory and Injunctive Relief Page 3 Case 4:18-cv-00404-EJM Document 1 Filed 08/15/18 Page 4 of 19 1 continuing ESA and APA violations by the date of this complaint’s filing. Therefore, an 2 actual controversy exists between the parties under 28 U.S.C. § 2201. 3 11. The federal government has waived sovereign immunity in this action 4 pursuant to 16 U.S.C. § 1540(g) and 5 U.S.C. § 702. 5 12. Venue is proper in the United States District Court for the District of 6 Arizona pursuant to 16 U.S.C. § 1540(g)(3)(A) and 28 U.S.C. § 1391(e) because a 7 substantial part of the events or omissions giving rise to the Center’s claims occurred in 8 this District. Additionally, the Center resides in Tucson, Arizona. 9 PARTIES 10 13. Plaintiff CENTER FOR BIOLOGICAL DIVERSITY is a non-profit 11 environmental organization dedicated to the protection of native species and their 12 habitats through science, policy, and environmental law. The Center has more than 1.1 13 million members and on-line activists. 14 14. The Center’s members include individuals who regularly visit natural areas 15 which are occupied by roundtail chub, and seek to observe or study the roundtail chub in 16 its natural habitat. The Center’s members and staff derive recreational, spiritual, 17 professional, scientific, educational, and aesthetic benefit from these activities, and 18 intend to continue to use and enjoy these areas in the future. 19 15. The Center has a long history of environmental advocacy in relation to the 20 roundtail chub. The Center submitted its Petition to List the Roundtail and Headwater 21 Chubs as Endangered Species in the Lower Colorado River Basin in order to protect its 22 own and its members’ interests in the LCR roundtail chub. 23 16. The above-described aesthetic, recreational, professional, and other 24 interests of the Center and its members, have been, are being, and will continue to be 25 adversely harmed by Defendants’ decision to withdraw the proposed listing rule for the 26 LCR roundtail chub, and this harm would be remedied by a court order vacating that 27 decision. 28 Complaint for Declaratory and Injunctive Relief Page 4 Case 4:18-cv-00404-EJM Document 1 Filed 08/15/18 Page 5 of 19 1 17. Defendant RYAN ZINKE is the Secretary of the United States Department 2 of the Interior and is the federal official in whom the ESA vests final responsibility for 3 making decisions and promulgating regulations required by and in accordance with the 4 ESA, including listing determinations. Secretary Zinke is sued in his official capacity. 5 18. Defendant UNITED STATES FISH AND WILDLIFE SERVICE is the 6 agency within the Department of the Interior that is charged with implementing the ESA 7 for the LCR roundtail chub. 8 LEGAL BACKGROUND 9 I. Endangered Species Act 10 19. The ESA, 16 U.S.C. §§ 1531–1544, is “the most comprehensive 11 legislation for the preservation of endangered species ever enacted by any nation.” TVA 12 v. Hill, 437 U.S. 180 (1978). Its fundamental purposes are “to provide a means whereby 13 the ecosystems upon which endangered species and threatened species depend may be 14 conserved [and] to provide a program for the conservation of such endangered species 15 and threatened species . .” 16 U.S.C. § 1531(b). 16 20. ESA section 4 requires that the Secretary protect imperiled species by 17 listing them as either “endangered” or “threatened.” Id.