Cal. Cattlemen's Ass'n v. U.S. Fish & Wildlife Serv.

369 F. Supp. 3d 141
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 27, 2019
DocketCase No. 1:17-cv-01536 (TNM)
StatusPublished
Cited by12 cases

This text of 369 F. Supp. 3d 141 (Cal. Cattlemen's Ass'n v. U.S. Fish & Wildlife Serv.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cal. Cattlemen's Ass'n v. U.S. Fish & Wildlife Serv., 369 F. Supp. 3d 141 (D.C. Cir. 2019).

Opinion

TREVOR N. McFADDEN, U.S.D.J.

The U.S. Fish and Wildlife Service ("FWS") designated over 1.8 million acres in California as critical habitat for three amphibian species. The California Cattlemen's Association, the California Wool Growers Association, and the California Farm Bureau Federation (collectively, the "Cattlemen") now challenge this designation. They argue that the FWS did not *143evaluate the effects of the critical habitat designation on "small entities," as required by the Regulatory Flexibility Act, 5 U.S.C. § 601, et seq. But because the groups lack standing to sue, the Court will dismiss their Complaint for lack of subject matter jurisdiction.

I. BACKGROUND

The Sierra Nevada yellow-legged frog and the mountain yellow-legged frog live in California's Sierra Nevada mountain range. 79 Fed. Reg. 24,256, 24,258 -59 (April 29, 2014) ("Listing Regulation"). The color on their upper bodies varies, but they are known for their yellow bellies and hind legs. Id. at 24,259. These small frogs inhabit lakes, ponds, marshes, meadows, and streams high in the Sierra Nevadas. Id. at 24,259 -60. These highly aquatic species rarely hop more than a meter from water. Id. at 24,259.

Yosemite toads also inhabit the upper elevations of the Sierra Nevadas. Id. at 24,286. They are "[r]obust and stocky with dry, uniformly warty skin."1 These toads live near wet meadows because of their breeding habits, and adults typically stay near water. Id. at 24,285. They can, however, range more than half-a-mile from their breeding meadows-by walking, not hopping. Id.

In 2013, the FWS proposed to designate land in California as critical habitat for these amphibians under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq. 78 Fed. Reg. 24,516 (proposed Apr. 25, 2013) ("Proposed Rule"). Under the Regulatory Flexibility Act ("RFA"), 5 U.S.C. § 601, et seq. , whenever an agency publishes a general notice of proposed rulemaking, it typically must also prepare an initial regulatory flexibility analysis. 5 U.S.C. § 603(a). The regulatory flexibility analysis must describe the effect of the proposed rule on small entities.2 Id. The FWS, however, certified that the proposed rule would not significantly impact a substantial number of small entities. Proposed Rule, 78 Fed. Reg. at 24,543. So a regulatory flexibility analysis was unnecessary under 5 U.S.C. § 605(b).

A year later, the FWS listed the two frog species as "endangered" and the Yosemite toad as "threatened" under the ESA. Listing Regulation, 79 Fed. Reg. at 24,256. After the FWS listed the species, the U.S. Forest Service recognized that some activities it authorizes, including livestock grazing, may affect the newly-listed species. ESA Section 7 requires federal agencies to ensure that their actions neither "jeopardize the continued existence" of any listed species nor "result in the destruction or adverse modification" of critical habitat. 16 U.S.C. § 1536(a)(2). So the Forest Service requested a consultation with the FWS to determine whether forest programs would jeopardize the species, and after the consultation the FWS issued a biological opinion explaining their findings. See 2014 BiOp, ECF No. 52-2.

The agencies concluded that with appropriate conservation measures the Forest Service's programs would not jeopardize the amphibians. Id. at 66. The Forest Service applied the "standards and guidelines" ("S & Gs") and "best management practices" from the 2004 Sierra Nevada Forest Plan Amendment ("2004 SNFPA"). See id. at 2, 15. The agency implemented some S & Gs specifically for the Rangeland Management Program. Id.

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369 F. Supp. 3d 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cal-cattlemens-assn-v-us-fish-wildlife-serv-cadc-2019.