WildEarth Guardians v. Salazar

30 F. Supp. 3d 1126, 2011 WL 11817239, 2011 U.S. Dist. LEXIS 158322
CourtDistrict Court, D. New Mexico
DecidedSeptember 30, 2011
DocketCiv. No. 10-116-MV-RHS
StatusPublished

This text of 30 F. Supp. 3d 1126 (WildEarth Guardians v. Salazar) is published on Counsel Stack Legal Research, covering District Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
WildEarth Guardians v. Salazar, 30 F. Supp. 3d 1126, 2011 WL 11817239, 2011 U.S. Dist. LEXIS 158322 (D.N.M. 2011).

Opinion

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, District Judge.

THIS MATTER comes before the Court on the parties’ cross-motions for summary judgment (Docs. 23, 37) and Defendant’s. Motion to Strike Extra-Record Material (Doc. 38). In an action for declaratory and injunctive relief against U.S. Secretary of the Interior Ken Salazar (hereinafter, “Defendant” or “the Secretary”), Plaintiff WildEarth Guardians (“Plaintiff’), a nonprofit environmental welfare organization, challenges Defendant’s rejection of its petition to list the “many-flowered unicorn plant,” Proboscidea spicata, as a threatened or endangered species under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531, et seq. Defendant responds that Plaintiff does not have organizational standing to sue on behalf of its members and that, even if Plaintiff could establish standing, Plaintiffs petition failed to offer substantial information supporting placement of the many-flowered unicorn plant on the ESA list. The Court, having considered the motions, briefs, exhibits, administrative record, and other relevant law, and being otherwise fully informed, finds that Defendant’s motion to strike should be GRANTED, Plaintiffs motion for summary judgment should be DENIED, and Defendant’s motion for summary judgment should be GRANTED.

STATUTORY BACKGROUND

The ESA is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). It “provide[s] a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] a program for the conservation of such endangered species and threatened species.” Id. at 180, 98 S.Ct. 2279 (quoting 16 U.S.C. § 1531(b)). An animal or plant species must be listed as either “endangered” or “threatened” by the Secretary of the Interior1 pursuant to the ESA in order to obtain the heightened protections of the Act. An “endangered species” is defined by the ESA as “any species which is in danger of extinction throughout all or a significant portion of its range ...,” 16 U.S.C. § 1532(6), while a “threatened species” is any species “which is likely to become an endangered species within the foreseeable future ...,” id. § 1532(20).

A species comes to be listed under the ESA in one of two ways — either on the Secretary’s own initiative or, as relevant to the instant case, in response to a petition submitted by an “interested person.” Id. §§ 1533(a)(1), 1533(b)(3). The ESA sets forth specific procedural steps for determining whether a species will be listed following the submission of a petition. Within 90 days of receiving a listing petition, the Secretary must, “[t]o the maximum extent practicable” determine whether the petition presents “substantial scientific or commercial information2 indi-[1129]*1129eating that the petitioned action may be warranted,” a process known as the “90-day finding.” Id. § 1533(b)(8)(A). If the Secretary determines that the listing is not warranted, the listing process for that species is terminated. See id. If the Secretary determines that the petitioned action is warranted, the ESA provides that the “Secretary shall promptly commence a review of the status of the species concerned.” Id. In either event, the 90-day finding is published in the Federal Register. Id.

For those petitions that survive the initial examination of the 90-day finding, the Secretary is required to make a finding within 12 months of receiving the listing petition — known as the “12-month finding” — as to whether listing of the species is either: (1) not warranted; (2) warranted, but precluded by higher listing priorities; or (3) warranted, in which case the Secretary must publish a proposed rule to list the species in the Federal Register. Id. § 1533(b)(3)(B). The ESA permits no exceptions to this 12-month mandatory deadline.

A listing determination is made on the basis of one or more of five statutorily prescribed 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.

16 U.S.C. §§ 1533(a)(l)(A)-(E); 50 C.F.R. § 424.11(c). Once a species is listed under the ESA, the Secretary is empowered to “issue such regulations as he deems necessary and advisable to provide for the conservation of such species.” Id. § 1533(d).

FACTUAL BACKGROUND

This litigation centers on Plaintiffs unsuccessful petition to list the many-flowered unicorn plant — a flowering plant historically found in west Texas and Coahuila, Mexico — as endangered or threatened under the ESA. The parties heavily dispute many of the facts in evidence relating to the alleged rarity of the many-flowered unicorn plant..

The NatureServe Database

Plaintiffs petition sought to incorporate information about the many-flowered unicorn plant collected by NatureServe, a non-profit organization whose mission is to provide a scientific basis for effective conservation action. NatureServe represents an international network of over 80 member programs, each of which analyzes and provides scientific information about the biological diversity found within their jurisdictions. NatureServe collects its members’ submissions in its. online database, where it ranks more than 70,000 different species of animals and plants according to their risk of extinction. The database designates the conservation status of every included species by a number from 1 to 5 (with 1 = critically imperiled, 2 = imperiled, 3 = vulnerable, etc.), preceded by a letter reflecting the geographic scale of the assessment (G = Global, N = National, and S = Subnational). The many-flowered unicorn plant is categorized at the highest rate of imperilment — “Gl,” for critically imperiled across its entire range — in the NatureServe database.

Defendant considers NatureServe rankings in allocating resources among “candidate species” — those species for which he has sufficient information on their biological status to propose them as endangered [1130]*1130or threatened under the ESA. See, e.g., 75 Fed.Reg. 56028, 56043 (2010).

Plaintiff’s June 2007 Petition

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Bluebook (online)
30 F. Supp. 3d 1126, 2011 WL 11817239, 2011 U.S. Dist. LEXIS 158322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wildearth-guardians-v-salazar-nmd-2011.