Center for Biological Diversity v. U.S. Fish and Wildlife Service

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY,

Plaintiff, v. Civ. Action No. 21-884 (EGS) U.S. FISH AND WILDLIFE SERVICE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff, the Center for Biological Diversity, challenges

the U.S. Fish and Wildlife Service’s (“FWS”) “warranted but

precluded” findings pursuant to the Endangered Species Act

(“ESA”), 16 U.S.C. §§ 1531-1544 with respect to ten (10)

species, including the Longfin Smelt DPS. See generally Compl.,

ECF No. 1. Westlands Water District (“Westlands”) moves to

intervene. See generally Mot. to Intervene (“Mot.”), ECF No. 11.

Both Plaintiff and Defendants—FWS, Martha Williams in her

official capacity as acting Director of FWS, and the Secretary

of the U.S. Department of the Interior—oppose the motion. See

generally Gov’t’s Opp’n, ECF No. 12; Pl.’s Opp’n, ECF No. 13.

Upon consideration of the motion, oppositions, the reply, the

applicable law, and for the reasons explained below, Westlands’

Motion to Intervene is DENIED.

1 I. Background

A. Statutory and Regulatory Background

The ESA has been described as “the most comprehensive

legislation for the preservation of endangered species ever

enacted by any nation.” Tennessee Valley Auth. v. Hill, 437 U.S.

153, 180 (1978). Congress enacted the ESA “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 species and

threatened species.” 16 U.S.C. § 1531(b). “The plain intent of

Congress in enacting this statute was to halt and reverse the

trend toward species extinction, whatever the cost.” Tennessee

Valley Auth., 437 U.S. at 184.

The ESA directs the Secretary of the Interior and the

Secretary of Commerce to determine whether a species should be

listed as “endangered” or “threatened.” 16 U.S.C. § 1533. The

ESA requires the Secretary of the Interior to publish and

maintain a list of all species that have been designated as

threatened or endangered. Id. § 1533(c). Species are added to

and removed from the list after notice and an opportunity for

public comment, either on the initiative of the Secretary or as

a result of a petition submitted by an “interested person.” Id.

§ 1533(b)(1), (3), (5). When petitioned, FWS must, “[t]o the

maximum extent practicable,” within 90 days make a finding (“90-

2 day finding”) regarding whether the petition presents

“substantial scientific or commercial information indicating

that the petitioned action may be warranted.” Id. §

1533(b)(3)(A). If FWS so finds, it must begin a status review,

id.; and following the completion of that review and within 12

months of receiving the petition, issue a “12-month finding” as

to whether listing is: (1) not warranted; (2) warranted; or (3)

warranted but precluded by pending proposals to list other

species. Id. § 1533(b)(3)(B). With respect to a “warranted but

precluded” finding, FWS must conclude that listing is warranted,

but that:

(I) the immediate proposal and timely promulgation of a final regulation implementing [listing] . . . is precluded by pending proposals to determine whether any species is an endangered species or a threatened species, and

(II) expeditious progress is being made to add qualified species to [the endangered and threatened] lists . . . and to remove from such lists species for which the protections of [the ESA] are no longer necessary.

Id. § 1533(b)(3)(B)(iii). For these “candidate species,” FWS is

required to treat the petition as if it has been resubmitted

annually, and make a new 12-month finding for the species within

a year. Id. § 1533(b)(3)(C)(i). FWS publishes the annual

findings in the “Candidate Notice of Review” (“CNOR”) in the

3 Federal Register. See, e.g., 85 Fed. Reg. 73,164 (Nov. 16,

2020).

B. Factual and Procedural Background

“In 2012, [FWS] found that the [Longfin Smelt DPS]

warranted listing because the species faces high magnitude

threats, including reduced freshwater flows, contaminants, and

introduced species.” Compl., ECF No. 1 ¶ 33 (citing 77 Fed. Reg.

19,756, 19,787-88 (Apr. 2, 2012) and 85 Fed. Reg. 73,164, 73,173

Nov. 16, 2020). However, FWS determined that while listing the

Longfin Smelt DPS was warranted, it was precluded because of

higher-priority actions. Gov’t’s Opp’n, ECF No. 12 at 3 (citing

77 Fed. Reg. 19,756 (Apr. 2, 2012)). Accordingly, FWS “added the

Longfin Smelt DPS to the list of Candidates and re-evaluated

[its] status each year thereafter, pursuant to 16 U.S.C. §

1533(b)(3)(C)(i).” Id. at 4. “On November 16, 2020, [FWS]

published its most recent CNOR, finding again that listing the

Longfin Smelt DPS is warranted but precluded due to higher

priority actions.” Id. (citing 85 Fed. Reg. 73,164 (Nov. 16,

Plaintiff filed its Complaint in this proceeding on April

1, 2021, alleging that FWS’s warranted but precluded findings as

to, among other species, the Longfin Smelt DPS, is arbitrary and

capricious in violation of the Administrative Procedure Act, 5

U.S.C. §§ 551 et seq. Compl., ECF No. 1 ¶¶ 51-55. Westlands

4 filed its Motion to Intervene on May 5, 2021. Mot., ECF No. 11.

On July 22, 2021, the parties filed a Joint Motion to Stay,

requesting that the Court refer the case (and two others before

the Court) to the mediation program. See Joint Mot., ECF No. 20.

On July 23, 2021, Westlands filed a response to the Joint Motion

to Stay, requesting that the Court authorize Westlands to

participate in settlement discussions while the Motion to

Intervene is pending, or in the alternative requesting that the

Court rule on the Motion to Intervene before ruling on the Joint

Motion to Stay. See Westlands Water District’s Response to Joint

Motion to Stay (“Westlands’ Response”), ECF No. 21.

C. Proposed Intervenor

Westlands states that it “is a California water district,”

Mot. to Intervene, ECF No. 11 at 4 1; and that it “has contractual

entitlement to approximately 1,195,000 acre-feet of [Central

Valley Project (“CVP”) 2] water per year.” Decl. of Jose Gutierrez

(“Gutierrez Decl.”), ECF No. 11-2 ¶ 5. The United States Bureau

of Reclamation (“Reclamation”) conveys the CVP water to various

contactors, including Westlands. Id. ¶ 4. Westlands avers that

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 [T]he federal CVP . . . appropriates and re-appropriates water, in part, from the San Francisco Bay (“Bay”)/Sacramento-San Joaquin River Delta (“Delta”) and the rivers that create them (collectively, the “Bay-Delta watershed”). Mot., ECF No. 11 at 2.

5 Plaintiff “seeks to reduce Westland’s CVP water allocation . . .

through compelling [ESA] protection for the Longfin Smelt. Id. ¶

6. Westlands further avers that “Plaintiff contends that water

diversions, including diversions by the CVP, are a significant

cause of the population decrease of the Longfin Smelt and a

reason why this species should be expeditiously listed under the

ESA as either a threatened or endangered species.” Id. Finally,

Westlands avers that “additional ESA regulatory restrictions

will have significant negative impacts on Westlands and those it

serves” including: (1) “increased land fallowing”; (2)

“increased costs and higher risks for acquiring supplemental

supplies”; (3) “increased groundwater pumping” resulting in,

among other things, lower crop yields; (4) “increased soil

salinity”; (5) “increased energy use”; (5) “increased water

costs for disadvantaged communities”; (6) “permanent crop

damage”; (7) “increased unemployment”; (8) “reduced air

quality”; and (9) “potential increases to bird strike damage to

. . . striker-fighter aircraft. Id. ¶ 9.

II. Analysis

A. Intervention as of Right

Intervention as of right is governed by Federal Rule of

Civil Procedure 24(a). In this Circuit, an applicant must meet

four criteria to be granted intervention as of right: (1) the

application to intervene must be timely; (2) the applicant must

6 demonstrate a legally protected interest in the action; (3) the

action must threaten to impair that interest; and (4) no party

to the action can be an adequate representative of the

applicant's interests. Karsner v. Lothian, 532 F.3d 876, 885

(D.C. Cir. 2008) (citation omitted).

Further, the Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) requires the intervenor-applicant to

demonstrate standing under Article III of the U.S. Constitution.

See In re Endangered Species Act Section 4 Deadline Litigation,

704 F.3d 972, 976 (D.C. Cir. 2013). To demonstrate standing, the

intervenor-applicant must show: (1) an injury-in-fact that is

(a) concrete and particularized and (b) “actual or imminent, not

‘conjectural’ or ‘hypothetical’”; (2) causal connection between

the injury and the conduct that is being complained about; and

(3) redressability. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 560, 561 (1992) (citations omitted). For prospective

injuries, imminence means that the injury must be “certainly

impending.” Id. at 564 n.2 (citations omitted). “Because a

would-be intervenor’s Article III standing presents a question

going to this court’s jurisdiction, see Sierra Club v. EPA, 292

F.3d 895, 898 (D.C. Cir. 2002), we address it first.” Fund for

Animals, Inc., v. Norton, 322 F.3d 728 732 (D.C. Cir. 2003).

Westlands argues that satisfies the standing requirements

because: (1) its injury is economic; (2) its injury “is directly

7 traceable to Plaintiff’s claims seeking to list the Longfin

Smelt DPS under the ESA”; and (3) “[a] decision to list the

Longfin Smelt, DPS, as the result of this lawsuit, will directly

impact the future supply of CVP water available to Westlands.”

Mot., ECF No. 11 at 12.

Plaintiff and Defendants respond that Westlands lacks

Article III standing. First, the alleged injury is prospective,

but it is not “certainly impending,” Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 409 (2013); because “WWD can only speculate

that the resolution of this action many impact CVP water supply

or create further ESA consultation obligations.” Gov’t’s Opp’n,

ECF No. 12 at 5 (citing Mot., ECF No. 11 at 6, 7); see also

Pl.’s Opp’n, ECF No. 13 at 11 (“the ultimate listing of the

longfin smelt and any potential attendant impact on Westlands’

contractual water rights are entirely speculative”). Second,

Westlands does not satisfy the causation element because at this

juncture, it is speculative whether: (1) Defendants will lose on

the merits of this case; (2) the Longfin Smelt will eventually

be listed as threatened or endangered; and (3) CVP operations

will be subject to further ESA consultation and whether that

consultation will restrict CVP water allocations to the

detriment of Westlands. Id. at 6. Finally, Westlands does not

satisfy the redressability element because if Defendants prevail

in this case—i.e. the “warranted but precluded” determination

8 was not arbitrary and capricious—this would have no effect on

whether the FWS eventually issues a proposed listing rule for

the Longfin Smelt DPS. Id. at 7.

Westlands fails to rebut these arguments, instead asserting

that it has standing because it “seeks to defend the substance

of” FWS’s warranted but precluded finding. Reply, ECF No. 17 at

3. Westlands’ argument is unpersuasive. Westlands relies on

Nat’l Ass’n of Home Builders v. U.S. Fish and Wildlife Service,

34 F. Supp 3d 50 (D.D.C. 2014) for the proposition that

“[w]arranted-but-precluded’ findings . . . are judicially

reviewable.” Id. at 62. While that is an accurate statement, it

does not help Westlands establish standing. Westlands’ reliance

on County of San Miguel, Colorado v. MacDonald, 244 F.R.D. 36

(D.D.C. 2007) is similarly misplaced because there the court

found that the proposed intervenors had standing to intervene in

a challenge to FWS’s determination that listing the subject

species as endangered or threatened was not warranted. Id. at

38. Here, the question is whether Westlands has standing to

intervene at the “warranted but precluded” stage, a stage that

is preliminary to a listing determination.

The Court finds that Westlands does not have standing to

intervene. First, the injury is not “certainly impending.”

Lujan, 504 U.S. at 564 n.2 (citations omitted). Rather,

Westlands avers that its injury will be caused by “additional

9 ESA regulatory restrictions.” Gutierrez Decl., ECF No. 11-2 ¶ 9.

Plaintiff’s claim here is that FWS’s warranted but precluded

finding is arbitrary and capricious. Accordingly, whether and

what additional ESA regulatory restrictions may be imposed is

speculative at this juncture and is not the claim before the

Court. The Court also finds that Westlands has failed to satisfy

the causation and redressability elements of Article III

standing. Westlands’ alleged injury is based on a potential

future listing of the Longfin Smelt DPS, which is not before the

Court. Regardless of whether the Court rules in favor of

Plaintiff or Defendants, that ruling will have no direct impact

on whether there will be additional ESA restrictions.

For the same reasons, the Court finds that Westlands has

failed to demonstrate a legally protected interest. United

States v. Am. Tel. and Tel. Co., 642 F.2d 1285, 1291-92 (D.C.

Cir. 1980) (defining a legally protectable interest as one which

is “of such a direct and immediate character that the intervenor

will either gain or lose by the direct legal operation and

effect of the judgment”). Accordingly, the Court need not

consider the remaining elements of the four-part test.

Because the Court finds that Westlands does not have

standing to intervene and has failed to demonstrate a legally

protectable interest in this case, the Court DENIES Westlands’

motion to intervene as of right.

10 B. Permissive Intervention

In the alternative, Westlands moves for permissive

intervention pursuant to Federal Rule of Civil Procedure 24(b).

Rule 24(b)(1)(B) provides for permissive intervention on a

timely motion, where the applicant “has a claim or defense that

shares with the main action a common question of law or fact.”

Fed. R. Civ. P. 24(b)(1)(B). To litigate a claim on the merits

under Rule 24(b)(2), the prospective intervenor must demonstrate

(1) an independent ground for subject matter jurisdiction; (2) a

timely motion; and (3) a claim or defense that has a question of

law or fact in common with the main action. Equal Emp't

Opportunity Comm'n v. Nat'l Children's Ctr., 146 F.3d 1042, 1046

(D.C. Cir. 1998). 3 “If a prospective intervenor satisfies these

criteria, courts ‘must consider whether the intervention will

unduly delay or prejudice the adjudication of the original

parties' rights.’” In re Endangered Species Act Section 4

Deadline Litigation, 270 F.R.D. 1, 6 (D.D.C. 2010) (quoting Fed.

R. Civ. P. 24(b)(1)(B)). The Court may also consider “whether

parties seeking intervention will significantly contribute to .

. . the just and equitable adjudication of the legal questions

presented.” Aristotle Int’l, Inc. v. NPG Software, Inc., 714 F.

3 It is unclear “whether standing is necessary for permissive intervention.” In re Vitamins Antitrust Class Actions, 215 F.3d 26, 31 (D.C. Cir. 2000).

11 Supp. 2d 1, 18 (D.D.C. 2010) (quoting H.L. Hayden Co. v. Siemens

Med. Sys., Inc. 797 F.2d 85, 89 (2d Cir. 1986)). “District

Courts have the discretion . . . to deny a motion for

permissive intervention even if the movant established an

independent jurisdictional basis, submitted a timely motion, and

advanced a claim or defense that shares a common question with

the main action.” Nat'l Children's Ctr., 146 F.3d at 1048.

As a threshold matter, the Court finds that Westlands’

motion is timely as Westlands filed its motion 34 days after the

Complaint was filed. Mot., ECF No. 11. However, Westlands makes

little effort to demonstrate that it satisfies the remaining

elements required for permissive intervention, merely asserting

that “Plaintiff’s claims place Westlands’ interests directly at

stake” and that its “interests present issues of law and fact

common to the main action.” Id. at 12. Westlands further states

that it does not assert any counterclaims. Id. Assuming arguendo

that Westlands has established these elements, however, the

Court considers whether Westlands’ intervention could lead to

undue delay or would significantly contribute to the just and

equitable adjudication of Plaintiff’s claims. Based on these

considerations, the Court concludes that Westlands’ motion

should be denied.

First, the Court finds that Westlands’ intervention could

lead to undue delay. Westlands seeks to participate in the

12 settlement discussions to oppose settlement: “settlement of this

case presents significant risk to Westlands’ contractual rights

to water from the [CVP], as well as other legally protected

interests.” Westlands’ Response, ECF No. 21 at 1. However, as

explained supra, Westlands failed to demonstrate a legally

protected interest. The Court is unwilling to allow Westlands to

intervene to delay the resolution of this case.

Second, the Court finds that Westlands’ intervention will

not “significantly contribute to . . . the just and equitable

adjudication of the legal questions presented.” Aristotle Int’l,

Inc., 714 F. Supp. 2d at 18. Westlands contends that it “is

seeking to intervene to support [FWS] in defending its finding,

or to defend the scientific basis for that finding should

Federal Defendants choose not to.” Reply, ECF No. 17 at 8-9.

Westlands states that it “has invested significantly in the

development of science used to determine actions that protect

and improve the viability of nature fish within the Bay-Delta

Watershed.” Id. at 8. Westlands also relies on its declarant to

assert that it “has a strong interest in ensuring that decisions

made pursuant to the ESA are based on the best available

science, including when it comes to decisions about the relative

priorities of list efforts under the ESA.” Id. (citing Gutierrez

Decl., ECF No. 11-2 ¶ 7). However, Westlands’ declarant made no

averments regarding his knowledge about “the relative priorities

13 of listing efforts under the ESA.” Accordingly, Westlands has

failed to demonstrate that it has information or expertise

regarding the legal issue in this case—whether FWS has made

expeditious progress in listing species as endangered or

threatened.

Additionally, the Court finds that denying the motion will

not prejudice Westlands’ interests because as stated above,

regardless of whether the Court rules in favor of Plaintiff or

Defendants, that ruling will have no direct impact on whether

there will be additional ESA restrictions. As this Court has

stated in a similar context, Westlands “can best serve its

stated interests by participating in the administrative review

process for the FWS’s eventual listing decision.” In re

Endangered Species Act Section 4 Deadline Litigation, 270 F.R.D.

at 6. If FWS ultimately lists the Longfin Smelt DPS, Westlands

“can then file its own suit to protect those interests

directly.” Id. “[T]he case before the Court offers [Westlands]

no opportunity to effectively vindicate its interests,” id. at

7; rather, Westlands seeks to delay any eventual listing

decision by defending FWS’s warranted but precluded finding.

Because the Court finds that intervention could lead to

undue delay, would not significantly contribute to the just and

equitable adjudication of Plaintiff’s claims, and would not

14 prejudice Westlands’ interests, the Court DENIES Westlands’

request for permissive intervention.

III. Conclusion

For the reasons explained above, Westlands’ Motion to

Intervene is DENIED. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge August 16, 2021