Center for Biological Diversity v. United States Forest Service ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Center for Biological Diversity, et al., No. CV-20-8243-PCT-DGC 10 Plaintiffs, ORDER 11 v. 12 United States Forest Service, et al., 13 Defendants. 14 15 Defendants United States Forest Service (“Forest Service”) and the U.S. Fish and 16 Wildlife Service (“FWS”) have filed a motion to dismiss FWS from a complaint filed by 17 Plaintiffs Center for Biological Diversity and Maricopa Audubon Society. Doc. 10. The 18 motion is fully briefed, and no party requests oral argument. The Court will deny the 19 motion. 20 I. Background and Regulatory Framework. 21 Plaintiffs filed this action in September 2020, alleging that Defendants violated the 22 Endangered Species Act (“ESA”) and its implementing regulations. Doc. 1. Congress 23 passed the ESA to protect endangered and threatened species.1 See 16 U.S.C. § 1531. 24 Section 7 of the ESA requires “action agencies” – federal agencies authorizing, 25 funding, or carrying out actions which “may affect” listed species or their critical habitat – 26 27 1 Under the ESA, species are “listed” as “endangered” if “in danger of extinction throughout all or a significant portion of its range,” and as “threatened” if “likely to become 28 an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. §§ 1532(6),1532(20). 1 to work with “consulting agencies” to guarantee that agency actions are not likely to 2 jeopardize the continued existence of endangered or threatened species. See id. § 3 1536(a)(2); 50 C.F.R. § 402.14(a). The consulting agency in this case is FWS.2 4 If the action agency determines, with FWS’s written concurrence, that the action “is 5 not likely to adversely affect” listed species or critical habitat, no formal consultation is 6 required. Id. §§ 402.13(c), 402.14(b)(1). But if the action may affect a listed species or 7 critical habitat, the action agency must commence a formal consultation. Id. § 402.14(a). 8 At the end of this process, the consulting agency issues a biological opinion determining 9 whether the proposed action is “likely to jeopardize” the continued existence of listed 10 species or adversely impact critical habitat. Id. § 402.14(g)(4). Until formal consultation 11 is complete, the action agency cannot make any “irreversible or irretrievable commitment 12 of resources” which would “foreclos[e] the formulation or implementation of any 13 reasonable and prudent alternative measures” to protect endangered species. 16 U.S.C. § 14 1536(d). Of particular significance in this case, the consultation process must be reinitiated 15 if certain triggering circumstances occur, such as the emergence of new information that 16 the agency action would have an adverse impact not previously considered, or that a new 17 listed species or critical habitat may be affected by the identified action. See 50 C.F.R. § 18 402.16(a)(1)-(4); Doc. 1 ¶ 31. 19 A. Plaintiffs’ Allegations. 20 The Court takes the factual allegations of Plaintiffs’ complaint as true for purposes 21 of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Riparian ecosystems 22 provide a crucial habitat for many species of fish and wildlife. See Docs. 1 ¶ 2, 12 at 1. 23 One such ecosystem is the Verde River watershed in Arizona, which is home to several 24 ESA-listed species. Doc. 1 ¶¶ 34-36. Nearly two-thirds of the watershed is on federal 25 public land managed in large part by the Forest Service. Id. ¶ 35. 26 27 2 Under the ESA, two consulting agencies share responsibilities for administering 28 the act: FWS for terrestrial and fresh water species and the National Marine Fisheries Service for marine species. 50 C.F.R. 402.01(b); Doc. 10 at 9. 1 The listed species in the Verde River watershed have been jeopardized by livestock 2 grazing, which adversely impacts riparian habitat and is a leading cause of species 3 endangerment in the Southwest. Id. ¶¶ 37-41. The Forest Service has recognized the 4 negative impacts of livestock grazing in the watershed for decades, but until the late 1990s 5 continued to routinely authorize the practice. Id. ¶¶ 42-43. 6 In 1997, Plaintiff Center for Biological Diversity and others successfully sued to 7 compel the Forest Service and FWS to conduct ESA Section 7 consultations with respect 8 to the Forest Service’s authorization of 158 grazing allotments – several within the Verde 9 River watershed – that provided habitat for endangered and threatened species. Id. ¶ 44. 10 In response, the Forest Service and FWS took several steps to comply with Section 7. Id. 11 ¶ 46. These included developing Grazing Guidance Criteria to determine the effects of 12 grazing on listed species and establishing a federal interagency consultation team tasked 13 with applying the Guidance Criteria to individual allotments. Id. The agencies continue 14 to use an updated version of the Grazing Criteria to determine whether livestock grazing is 15 likely to adversely affect the threatened and endangered species in the watershed or destroy 16 their habitat. Id. ¶ 48. 17 Since the initial consultation process in the late 1990s, Defendants have periodically 18 completed Section 7 consultations for new grazing allotments, including the Verde River 19 allotments at issue in this litigation. Id. ¶¶ 60-93. In deciding how to designate an 20 allotment under the Grazing Criteria, the Forest Service depends heavily on its grazing 21 exclusions – commitments to exclude cattle from hundreds of miles of riparian areas. Id. 22 ¶¶ 46-47; Doc. 12 at 7. The grazing exclusions, as well as regular monitoring to ensure the 23 effectiveness of those exclusions, serve as a “cornerstone” in Defendants’ efforts to comply 24 with their ESA duties. Doc. 1 ¶ 47. 25 In 2019 and 2020, Plaintiff Center for Biological Diversity conducted on-the-ground 26 assessments of riparian areas within the Verde River watershed after suspecting that the 27 Forest Service was failing to monitor and maintain riparian grazing exclusions. Id. ¶ 54; 28 Doc. 12 at 8. The assessments revealed damaged or nonexistent exclusion fencing, 1 resulting in widespread unauthorized cattle presence and associated damage to riparian 2 areas. Doc. 1 ¶ 56. Plaintiffs compiled this information into detailed reports for the Forest 3 Service, but contend that it never responded with adequate corrective action. Id. ¶ 58. 4 In March 2020, Plaintiffs provided Defendants with 60 days’ notice of intent to sue 5 under the ESA’s citizen suit provision, which allows individuals to file suit against federal 6 agencies to enforce the substantive provisions of the ESA. Doc. 1 ¶ 7; 16 U.S.C. § 1540(g). 7 Plaintiffs notified Defendants that a lawsuit was forthcoming unless they reinitiated and 8 completed consultation on the allotments where the Center’s surveys had documented the 9 most significant damage. Doc. 12 at 9. Plaintiffs also demanded that the Forest Service 10 take immediate action to remove cattle from riparian areas, remediate damage caused by 11 the unauthorized grazing, and conduct more frequent monitoring. Id. 12 In May 2020, the Forest Service responded by claiming that it had not identified any 13 allotments that were not in compliance with existing consultation documents. Id. FWS 14 did not respond. Id. On September 17, 2020, Plaintiffs filed this suit, alleging that 15 Defendants violated 50 C.F.R. § 402.16 – the regulation governing the reinitiation of 16 consultation under Section 7 of the ESA – by failing to reinitiate and complete consultation 17 with respect to the allotments most damaged by grazing.3 Doc. 1 at 28. Defendants now 18 move to dismiss FWS as a party to the litigation pursuant to Rules 12(b)(1) and 12(b)(6) 19 of the Federal Rules of Civil Procedure. Doc. 10. 20 B. Legal Standard. 21 “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for 22 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger 23 asserts that the allegations contained in a complaint are insufficient on their face to invoke 24 federal jurisdiction.” Id. When considering a facial attack, the Court takes the allegations 25 in the plaintiff’s complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 26 27 28 3 The complaint also alleges two other claims for relief against the Forest Service only, neither of which is at issue here. See Doc. 1 at 28-29. 1 The party invoking the Court’s jurisdiction has the burden of establishing it. Spokeo, Inc. 2 v. Robins, 136 S. Ct. 1540, 1547 (2016). 3 A successful 12(b)(6) motion must show either that the complaint lacks a cognizable 4 legal theory or fails to allege facts sufficient to support its theory. Godecke v. Kinetic 5 Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (citing Balistreri v. Pacifica Police 6 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)). A complaint that sets forth a cognizable legal 7 theory will survive a motion to dismiss as long as it contains “sufficient factual matter, 8 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 9 at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 10 II. Discussion. 11 A. Failure to State a Claim. 12 Defendants argue that FWS must be dismissed because the obligation to reinitiate 13 consultation lies exclusively with the Forest Service – the action agency with sole authority 14 to authorize and administer livestock grazing on the allotments. Doc. 10 at 22-23; Doc. 13 15 at 6. Defendants contend that FWS, as the consulting agency, can be involved in formal 16 consultation only once the Forest Service has reinitiated the consultation process.4 Doc. 10 17 at 20; 50 C.F.R. § 402.14(g); Defs. of Wildlife v. Flowers, 414 F.3d 1066, 1070 (9th Cir. 18 2005) (while a consulting agency can request the action agency to enter into a formal 19 consultation, it “lacks the authority to require the initiation of consultation,” which is “the 20 [action] agency’s responsibility.”). 21 Plaintiffs counter that there is a clear distinction between 50 C.F.R. § 402.14, which 22 allows FWS to request the initial consultation but places the obligation for commencing 23 the process solely on the action agency, and § 402.16, which governs the reinitiation of 24 consultation and imposes a duty on both agencies. Doc. 12 at 11; 402.16(a)(2) (providing 25 that reinitiation of consultation “is required and shall be requested by the Federal agency 26 4 Defendants note that the Court cannot assume, just because FWS has not yet 27 engaged in or completed consultation reinitiated by the Forest Service, that it will not do so in the future. Doc. 10 at 21 (citing Sierra Club v. Penfold, 857 F.2d 1307, 1319 (9th 28 Cir. 1988)). But the issue here is FWS’s independent obligation to reinitiate consultation, not its involvement in consultation reinitiated by the action agency. 1 or by the Service”) (emphasis added); All. for the Wild Rockies v. Probert, 412 F. Supp. 3d 2 1188, 1201 (D. Mont. 2019) (“Section 402.14 merely allows the Fish and Wildlife Service 3 to request consultation. Reinitiation under § 402.16, on the other hand, obligates either the 4 action agency or Fish and Wildlife Service to act.”) (emphasis in original). Plaintiffs also 5 argue that Defendants’ position contradicts Ninth Circuit authority, which states that “[t]he 6 duty to reinitiate consultation lies with both the action agency and the consulting agency.” 7 Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1229 (9th Cir. 2008). 8 A strong majority of district courts in this Circuit have adopted the Plaintiffs’ view, 9 including a judge in this District in a recent case involving the same defendants. Ctr. for 10 Biological Diversity v. United States Forest Serv., No. CV-20-00020-TUC-DCB, 2020 WL 11 6710944, at *2 (D. Ariz. Nov. 16, 2020) (rejecting Defendants’ reinitiation argument 12 because “the law in the Ninth Circuit . . . makes it clear that the ESA establishes a 13 coterminous authority for both the action agency . . . and the consulting agency . . . to 14 reinitiate consultation when one of the triggering events occur under 50 C.F.R. 15 § 402.16(a).”); see also Wild Fish Conservancy v. United States Envtl. Prot. Agency, 331 16 F. Supp. 3d 1210, 1226 (W.D. Wash. 2018) (denying defendants’ motion to dismiss 17 because “by its plain language the provision that obligates [the action agency] to reinitiate 18 consultation applies equally to [the consulting agency] . . . this question appears to be amply 19 settled in this Circuit”); Hoopa Valley Tribe v. Nat’l Marine Fisheries Serv., 230 F.Supp.3d 20 1106, 1116–17 (N.D. Cal. 2017) (“[T[he Ninth Circuit has already addressed this precise 21 issue multiple times and confirmed that both the action agency and the consulting agency 22 have a duty to reinitiate consultation.”); Pacificans for a Scenic Coast v. California Dep’t 23 of Transportation, 204 F. Supp. 3d 1075, 1093 (N.D. Cal. 2016) (§ 402.16 “describes 24 [FWS’s] obligation in the same terms as the action agency’s obligation . . . [c]onsistent 25 with the plain text of the regulation, the Ninth Circuit has stated that [t]he duty to reinitiate 26 consultation lies with both the action agency and the consulting agency.”) (internal 27 quotation marks and citations omitted). 28 1 Defendants characterize the Ninth Circuit’s statement in Salmon Spawning as non- 2 binding dicta and argue that: (1) the plain language of § 402.16 makes clear that FWS has 3 no obligation under the ESA to reinitiate consultation; (2) existing Ninth Circuit authority 4 places the duty to reinitiate solely on the action agency, with FWS merely serving an 5 advisory role; and (3) the Court must defer to FWS’s interpretative guidance, which 6 supports Defendants’ reading of the regulation. Doc. 10 at 14-21. 7 1. Plain Language of the Regulation. 8 This case can be decided by the regulation’s plain meaning. Section § 402.16 9 provides: “Reinitiation of consultation is required and shall be requested by the Federal 10 agency or by the Service” upon the occurrence of various triggering events. 50 C.F.R. 11 § 402.16(a). Defendants argue that the phrase “by the Federal agency or by the Service” 12 applies only to the words “shall be requested by” and not to the earlier words “Reinitiation 13 of consultation is required.” Docs. 10 at 17; 13 at 5-6. In effect, they argue that the 14 regulation should be read this way: “Reinitiation of consultation is required by the Federal 15 agency and by the Service, and shall be requested by the Federal agency.” See id. But the 16 sentence is not written this way, and nothing in the language suggests that it should be 17 parsed to treat the reinitiation requirement and the request requirement differently. Rather, 18 the sentence identifies two mandatory actions – reinitiation of consultation and a request 19 for reinitiation – and then, without interruption or punctuation, states by of whom the 20 actions must be completed: “by the Federal agency or by the Service.” See 50 C.F.R. 21 § 402.16(a). “When several words are followed by a clause which is applicable as much 22 to the first and other words as to the last, the natural construction of the language demands 23 that the clause be read as applicable to all.” Paroline v. United States, 134 S. Ct. 1710, 24 1714 (2014) (citing Porto Rico Railway, Light & Power Co. v. Mor, 40 S. Ct. 516, 518 25 (1920)); see also United States v. Lawrence, 755 F. App’x 703, 704 (9th Cir. 2019). The 26 plain meaning of the regulation supports Plaintiffs’ position. The Court agrees with the 27 majority of cases in this Circuit which have held that the consulting agency has a duty to 28 help reinitiate consultation. 1 2. Role of the Action Agency. 2 Defendants argue that Ninth Circuit law confirms that an action agency has sole 3 responsibility for reinitiating consultation. Doc. 10 at 14-15. But their cited cases state 4 only what is apparent from the face of the regulation: that the action agency has a duty to 5 reinitiate consultation upon the occurrence of a triggering event. See, e.g., Or. Nat. Res. 6 Council v. Allen, 476 F.3d 1031, 1040 (9th Cir. 2007) (“[T]he action agency must reinitiate 7 consultation with the FWS”); Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 8 698 F.3d 1101, 1108 (9th Cir. 2012) (pursuant to 50 C.F.R. § 402.16, “the action agency 9 must . . . reinitiate consultation.”). They do not suggest, as Defendants claim, that the 10 action agency bears sole responsibility for reinitiation. Doc. 10 at 14. 11 3. Judicial Deference. 12 Defendants argue that FWS’s interpretative guidance of § 402.16 supports their 13 view and must be afforded deference by the Court. Kisor v. Wilkie, 139 S. Ct. 2400, 2416- 14 17 (2019) (deference to agencies’ reasonable readings of genuinely ambiguous regulations 15 “retains an important role in construing agency regulations.”). FWS guidance states that 16 § 402.16: 17 does not impose an affirmative obligation on [FWS] to reinitiate consultation 18 if any of the criteria have been met. Rather, the reference here has always been interpreted by the Services to allow us to recommend reinitiation of 19 consultation to the relevant Federal action agency if we have information that 20 indicates reinitiation is warranted. It is ultimately the responsibility of the Federal action agency to reinitiate consultation with the relevant Service 21 when warranted. The same holds true for initiation of consultation in the first 22 instance. While the Services may recommend consultation, it is the Federal agency that must request initiation of consultation. 23 24 Doc. 10 at 16 (quoting 84 Fed. Reg. at 44,980 (Aug. 27, 2019)). 25 The Supreme Court has stated that courts must defer to agency interpretations only 26 when “the regulation is genuinely ambiguous.” Kisor, 139 S. Ct. at 2415. To determine if 27 the regulation comes within this “zone of ambiguity,” courts must employ “all . . . 28 interpretive tools” at their disposal, including considering “the text, structure, history, and 1 || purpose of a regulation, 1n all the ways it would if it had no agency to fall back on.” □□□ As discussed above, the plain meaning of the regulation does not support Defendants’ interpretation. Nor does the purpose of the regulatory scheme: 4 The purpose of reinitiating formal consultation is not simply to check off a 5 procedural box, but to complete a formal consultation process that ensures to the extent possible that there are no substantive violations of the ESA. Both 6 [the action agency] and [the consulting agency] have a clear obligation to 7 participate in and complete this reinitiation process[.] 8 || Hoopa Valley Tribe, 230 F. Supp. 3d at 1117. 9 The Court cannot conclude that § 402.16 is ambiguous, and thus will not defer to FWS’s interpretation. The plain language of the regulation imposes an obligation on both □□ the action and consulting agencies to reinitiate consultation upon the occurrence of triggering events, several of which are identified in the complaint. See Doc. 1 7 56. 13 B. Sovereign Immunity. 14 Defendants argue that Plaintiffs have failed to establish any waiver of sovereign 15 || immunity, thus divesting the Court of subject matter jurisdiction. Defendants do not dispute that Section 702 of the Administrative Procedure Act waives sovereign immunity. 17|| See 5 U.S.C. § 702. Instead, they argue that Plaintiffs lack standing under § 702 because 18 || they cannot show that FWS violated a legal duty. Doc. 10 at 22. Because the Court has rejected this argument above, Defendants’ subject matter jurisdiction argument fails. 20 IT IS ORDERED that Defendants’ motion to dismiss (Doc. 10) is denied. 21 Dated this 22nd day of February, 2021. 22 23 peed 6, Ca phtl 24 David G. Campbell 25 Senior United States District Judge 26 27 28 -9-