UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FRIENDS OF ANIMALS, et al.,

Plaintiffs,

v. No. 16-cv-1540 (DLF) 1 WILBER ROSS, in his official capacity as Secretary of the Department of Commerce, et al.,

Defendants.

MEMORANDUM OPINION

The National Marine Fisheries Service (the Service) determined in 2014 that the queen

conch, a marine mollusk that inhabits the Caribbean Sea and the Gulf of Mexico, did not warrant

listing as an endangered or threatened species under the Endangered Species Act (ESA). The

plaintiffs, Friends of Animals (Friends) and WildEarth Guardians (WildEarth), challenge that

listing decision as unlawful under § 706 of the Administrative Procedure Act (APA). They ask

this Court to vacate the listing decision and order the Service to issue a new one within 60 days.

The parties’ cross-motions for summary judgment are before the Court. See Dkts. 20, 23. For

the reasons that follow, the Court concludes that the Service erred in relying on a vacated agency

policy in determining that no portion of the queen conch’s range was significant. On that basis,

the Court will grant plaintiffs’ motion in part, deny the Service’s motion, vacate the listing

decision, and remand to the Service for further proceedings.

1 When this suit began, Penny Pritzker was the Secretary of Commerce. Wilbur Ross was automatically substituted when he became the Secretary. See Fed. R. Civ. P. 25(d). I. BACKGROUND

A. The Queen Conch

The Caribbean Sea and the Gulf of Mexico are home to “a large gastropod mollusk” that

is shrouded in a “large, whorl-shaped shell with multiple spines at the apex and [a] pink interior

of the shell lip.” QC40000415.2 This creature, called the queen conch (or Strombus gigas),

starts life as one of the several million eggs that an adult female lays each year. Id.;

QC40000417. A few days after they are laid, the eggs hatch as planktonic larva that float in the

water column for fourteen to sixty days; many do not survive. Id. Those that do then settle

either locally or elsewhere, depending on the currents, and bury into the sea floor. Id. They

emerge about a year later as juveniles each with a shell about 2.5 inches long. Id. They become

sexually mature at around four years old. Id. Left undisturbed, a healthy queen conch lives for

about 30 years. Id.

The queen conch “is one of the most important fishery resources in the Caribbean.”

QC20000016. The demand for queen conch meat, from both the Caribbean markets and markets

abroad, drives queen conch fishing activity. Id. Thanks to rising international demand,

commercial catch rates have increased since the 1980s. Id. Queen conch exports peaked in the

late 1990s but have since stabilized below those levels. QC20000016–17.

B. The Endangered Species Act and Related Regulations

The ESA exists to conserve endangered species, threatened species, and those species’

ecosystems.

(b); see Tennessee Valley Auth. v. Hill,

(1978).

A species is endangered if it “is in danger of extinction throughout all or a significant portion of

2 This and like-formatted citations refer to pages in the Joint Appendix. See Dkt. 29.

2 its range.”

(6). A species is threatened if it “is likely to become an endangered

species”—i.e., be in danger of extinction—“within the foreseeable future throughout all or a

significant portion of its range.”

§ 1532(20).

The ESA authorizes the Secretary of Commerce to determine whether a marine species

like the queen conch warrants listing as endangered or threatened. Id. § 1533(a)(1). The

Secretary has delegated this task to the Service.

(b). The Service must base

its listing determination on five listing factors: “(A) the present or threatened destruction,

modification, or curtailment of [the species’] habitat or range; (B) overutilization [of the species]

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.”

In making a listing determination, the Service must first “conduct[] a review of the status

of the species” and “take[] into account those efforts, if any, being made by any State or foreign

nation . . . to protect such species.”

(b)(1)(A). And the Service must base its

listing decision “solely on . . . the best scientific and commercial data available.” Id.; see

.

Any party can petition the Service to list a species.

(b)(3)(A). Once the

Service receives a petition, it has 90 days to publish in the Federal Register a finding on whether

the petition “presents substantial scientific or commercial information indicating that the

petitioned action may be warranted.”

If this “90-day finding” determines that the petition

presents such information, the Service must “promptly commence” a status review of the

species.

The Service then has 12 months to publish in the Federal Register a preliminary

finding on whether listing the species is warranted.

§ 1533(b)(3)(B). If this “12-month

3 finding” concludes that listing is warranted, the Service has two options: (1) find that listing is

warranted but “precluded by [other] pending [listing] proposals” and thus delay publishing a

proposed listing rule; or (2) publish a proposed rule to list the species. Id. § 1533(b)(3)(B)(ii)–

(iii). If the Service publishes a proposed listing rule, it has one year to choose from three

options: (1) extend the one-year period, if there is substantial disagreement about the underlying

data; (2) withdraw the proposed rule; or (3) publish a final listing rule. Id. § 1533(b)(6)(A)–(B).

C. The Petition to List the Queen Conch as Threatened or Endangered

WildEarth petitioned the Service on February 27, 2012 to list the queen conch as

endangered or threatened under the ESA. QC10000055–76. The Service published a positive

90-day finding on August 27, 2012, determining that “there is substantial information indicating

that the petitioned action may be warranted, based on the threats of overutilization for

commercial, recreational, scientific or education purposes and other natural or manmade

factors.”

, 51,767. Based on this positive 90-day finding, the Service

commenced a status review of the species.

The status review started with “a biological review of the species’ taxonomy, distribution,

abundance, life history, biology, and available information on threats affecting the species’

status.” QC40000415. The Service compiled this information “into a status report.”

Once it

had completed the status report, the Service “established a group of biologists and marine

mollusk experts” called the Extinction Risk Analysis (ERA) group.

The ERA group “conduct[ed] a threats assessment for the queen conch, using information

from the status report.”

This threats assessment required each ERA group member to

“independently evaluate the severity, scope, and certainty for [each] threat [to the queen conch]

currently and in the foreseeable future.” QC40000420. The ERA group members scored their

4 “perceived severity of each threat” based on five levels of extinction risk, ranging from “no or

very low risk” to “very high risk.”

To score and rank these threats, “[t]he ERA group used the ‘likelihood point’ method.”

This method required each group member to distribute five “likelihood points” among the

five levels of extinction risk for each threat.

A group member could assign, for example, two

points to “very high risk” and three points to “increasing risk” for a particular threat. This

approach let the team “express levels of uncertainty when assigning risk categories.”

If the

risk level was altogether “unknown,” the group member was required to assign all five points to

the “unknown” category.

The ERA group’s threats assessments were not “recommendations as to whether the

species should be listed as threatened or endangered.”

Each member instead “drew his or her

own scientific conclusions, based on the information in the status report, about the risk of

extinction faced by the queen conch under present conditions and in the foreseeable future based

on an evaluation and assessment of threats.”

On top of the status report and the ERA group’s assessment, the Service “undertook

additional analysis to help [it] better consider the species’ current status and extinction risk.”

QC40000415. “The Southeast Fisheries Science Center (SEFC) and the Southeast Region’s

Sustainable Fisheries Division (SFD) provided: (1) Queen conch abundance estimates; (2) a

meta-analysis of factors affecting the status and health of queen conch; (3) mapping of queen

conch densities and oceanographic currents for evaluating dispersal and recruitment of queen

conch; and (4) a sustainability index.”

The Service explained that because this information

“was prepared after the extinction risk analysis was conducted” the “ERA group did not take into

account this information.”

5 Based on the status report, the ERA group assessment, and the SEFC and SFD data and

analysis, the Service evaluated “whether the queen conch qualifies for threatened or endangered

status throughout all of a significant range” based on “any one or a combination of the [five

listing] factors.”

In doing so, it defined the “foreseeable future” to be “3 queen conch

generations, or 15 years.” QC40000419. And it “followed the final policy interpreting the

phrase ‘significant portion of its range’” to determine that no portion of the queen conch’s range

was significant. QC4000028–29.

The Service published its listing decision on November 5, 2014.

(Nov. 5, 2014). It determined that “[b]ased on the best scientific and commercial information

available . . . the species [did] not warrant listing.” QC40000414. It concluded that the queen

conch was neither “currently in danger of extinction throughout all or a significant portion of its

range” nor “likely to become so within the foreseeable future.”

D. The Procedural History of This Case

The plaintiffs filed this action on July 27, 2016. 3 They claim that the listing decision:

“(1) applies the wrong legal and scientific methodologies, including the failure to establish the

baseline risks to the species, the failure to disclose the overall extinction risk, improper reliance

on the sustainability index, and the improper applications of ‘foreseeable future’ and ‘significant

portion of its range’; (2) is not based on the best available science; (3) is contrary to the

evidence; (4) applies an incorrect definition of threatened and endangered species; and (5) is

otherwise arbitrary, capricious, and contrary to law in violation of the ESA within the meaning

3 This case was transferred to the undersigned on December 5, 2017.

6 of the APA.” Compl. ¶ 90, Dkt. 1. The Service answered the complaint, Dkt. 8, and the parties

filed cross-motions for summary judgment, Dkts. 20, 23, which the Court now resolves.

II. LEGAL STANDARD

A court grants summary judgment if the moving party “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,

, 247–48 (1986). A

“material” fact is one with potential to change the litigation’s substantive outcome. See Liberty

Lobby,

; Holcomb v. Powell,

(D.C. Cir. 2006). A dispute is

“genuine” if a reasonable jury could determine that the evidence warrants a verdict for the

nonmoving party. See Liberty Lobby,

; Holcomb,

. In an APA

case like this one, summary judgment “serves as the mechanism for deciding, as a matter of law,

whether the agency action is supported by the administrative record and otherwise consistent

with the APA standard of review.” Sierra Club v. Mainella,

(D.D.C.

2006) (citing Richards v. INS,

(D.C. Cir. 1977)). So “the entire case . . . is

a question of law,” and the district court “sits as an appellate tribunal.” Am. Bioscience, Inc. v.

Thompson,

(D.C. Cir. 2001) (quotation marks and footnote omitted).

The plaintiffs invoke the APA’s requirement that a court “hold unlawful and set aside”

any aspect of a final agency action that is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.”

(2)(A). As the party challenging the

agency’s action, the plaintiffs have the burden of proof. Pierce v. SEC,

(D.C. Cir. 2015).

When reviewing a final agency action under § 706, courts must be “fundamentally

deferential—especially with respect to matters relating to an agency’s areas of technical

7 expertise.” Fox v. Clinton,

(D.C. Cir. 2012) (quotation marks and alteration

omitted). The court “is not to substitute its judgment for that of the agency.” Motor Vehicle

Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins.,

(1983). It must instead

determine only whether the agency “relied on factors that Congress has not intended it to

consider, entirely failed to consider an important aspect of the problem, [or] offered an

explanation” for its decision that “runs counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in view or the product of agency

expertise.” Agape Church v. FCC,

(D.C. Cir. 2013) (quoting State Farm,

).

To make this determination, the court looks to the agency’s decision not “as would a

scientist, but as a reviewing court exercising [its] narrowly defined duty of holding agencies to

certain minimal standards of rationality.” Am. Trucking Ass’ns., v. Fed. Motor Carrier Safety

Admin.,

(D.C. Cir. 2013) (alteration adopted and internal quotation marks

omitted); see also Chem. Mfrs. Ass’n v. EPA,

(D.C. Cir. 1994) (describing

the standard as “indulgent”). “When examining . . . scientific determination[s], as opposed to

simple findings of fact, a reviewing court must generally be at its most deferential.” Baltimore

Gas & Elec. Co. v. Nat. Res. Def. Council,

(1983). So “[e]ven an agency

‘decision of less than ideal clarity’ should be upheld ‘if the agency’s path may be reasonably

discerned.’” Anacostia Riverkeeper, Inc. v. Jackson,

(D.D.C. 2011)

(quoting State Farm,

)). In sum, “the agency must explain why it decided to act as

it did.” Butte Cty. v. Hogen,

(D.C. Cir. 2010).

8 III. ANALYSIS

A. Standing

Though the government does not contest standing,4 the Court still must assess it. An

organization like Friends or WildEarth can sue on its members’ behalf through “associational

standing” when (1) “its members would otherwise have standing to sue in their own right;” (2)

“the interests it seeks to protect are germane to the organization’s purpose;” and (3) “neither the

claim asserted nor the relief requested requires the participation of individual members in the

lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n,

(1977). The

organization’s members would otherwise have standing to sue if they have “(1) suffered an

injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that

is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,

(2016). So long as the plaintiff seeking review is personally “among the injured,”

Sierra Club v. Morton,

(1972), an “injury in fact” can be to “environmental”

interests, “including aesthetic, conservational and recreational . . . interests.” Envtl. Def. Fund v.

EPA,

(D.C. Cir. 1972). To survive a summary judgment motion, the plaintiffs

must “submit affidavits or other evidence” to establish standing. Lujan v. Defs. of Wildlife,

(1992).

The Court is satisfied that at least WildEarth meets these requirements. First, its

members would otherwise have standing to sue. Through sworn declarations, it has established

that its individual members derive scientific, aesthetic, conservational, and recreational interests

from the queen conch and have concrete plans to do so in the future; that the Service has not

4 Mot. Hr’g Unofficial Tr. 2, Aug. 12, 2019 (the government “do[es] not contest standing in this case).

9 addressed threats to the queen conch that harm those interests; and that an order directing the

Service withdraw its “Not Warranted Finding” and issue a new finding would likely redress such

harm. See Angell Decl. ¶¶ 3–9, Dkt. 20-1; Leese Decl. ¶¶ 3–8, ¶ 29, Dkt. 20-2; Molvar Decl.

¶¶ 3–15, Dkt. 20-3. Second, the aesthetic and recreational interests that its members assert are

directly related to its “mission and organizational purpose to protect and restore wildlife and wild

places,” which includes its efforts “to list imperiled species under the ESA in order to stem the

extinction crisis in the oceans brought on by human exploitation, habitat destruction, and climate

change.” Horning Decl. ¶ 6. And third, the Court’s review of the administrative record “as an

appellate tribunal” will not require WildEarth’s individual members to participate. Am.

Bioscience, Inc.,

(quotation marks and footnote omitted).

Because WildEarth has associational standing, the Court does not address whether

Friends of Animals, by not providing evidence about its members’ individual standing to sue,

failed to establish associational standing. See Humane Soc’y of the U.S., et al. v. Sonny Perdue,

et al., No. 18-5188, slip op. at 8 (D.C. Cir. Aug. 23, 2019) (reiterating “settled law that courts

cannot presume the missing facts necessary to establish an element of standing” (quotation

marks omitted)).

B. WildEarth’s Challenges to the Listing Determination

WildEarth asks the Court to vacate the Service’s listing determination on numerous

grounds. It challenges the Service’s: (1) alleged violation of the “best-available-data”

requirement; (2) reliance on a sustainability index that was not peer-reviewed; (3) alleged

departure from Service policy in conducting the risk assessment process; (4) determination that

the “foreseeable future” was 15 years; (5) finding that the ESA’s five listing factors did not

warrant listing the queen conch; and (6) finding that the queen conch is not endangered or

threatened through a “significant portion of its range.”

10 The Court accepts WildEarth’s sixth argument—that the Service erred in its “significant

portion of its range” analysis. On that basis, the Court will vacate the listing decision and

remand to the Service. Thus, the Court does not consider and expresses no view about

WildEarth’s other challenges to the listing decision.

As explained, a species need not be endangered or threatened throughout all its range to

merit listing; being endangered or threatened throughout a “significant portion of its range” is

enough.

(6);

(20). But the ESA “does not define what constitutes a

species’ ‘range’” or “what is considered ‘significant.’” Colo. River Cutthroat Trout, 898 F. Supp.

2d at 201.

In 2011, the Service, along with the U.S. Fish and Wildlife Service, issued a Final Policy

interpreting this phrase.

(July 1, 2014) (Policy). 5 This “legally binding”

Policy “sets forth the Services’ interpretation of ‘significant portion of its range’ and its place in

the statutory framework of the [ESA].”

Though this was the first interpretation to go through

notice-and comment-rulemaking, this was not the Service’s first attempt to interpret the phrase;

the Ninth Circuit had invalidated an earlier interpretation. See Defenders of Wildlife v. Norton,

, 1145–46 (9th Cir. 2001). The 2011 Policy provides that “a portion of the range

of a species is ‘significant’ if the species is not currently endangered or threatened throughout all

of its range, but the portion’s contribution to the viability of the species is so important that,

without the members in that portion, the species would be in danger of extinction, or likely to

become so in the foreseeable future, throughout all of its range.” Id. at 37,579. In other words, a

5 The full title is: Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act’s Definitions of “Endangered Species” and “Threatened Species.”

11 portion is “significant” if without that portion—i.e., if all the species in that portion died—the

rest of the species would become endangered or threatened.

On August 1, 2019, fewer than two weeks before a hearing to consider the parties’

cross-motions for summary judgment, the Service filed a Notice of Supplemental Authority. See

Defs.’ Notice, Dkt. 34. It informed the Court of a May 2018 decision from the Northern District

of California that—about three-and-a-half years after the queen conch listing decision—deemed

the Policy’s definition of “significant portion” inconsistent with the ESA. Defs.’ Notice at 2

(citing Desert Survivors v. U.S. Dep’t of Interior,

(N.D. Cal. 2018)). In a

subsequent order, that court vacated the Policy’s definition of “significant portion” nationwide.

(citing Desert Survivors U.S. Dep’t of Interior,

(N.D. Cal. 2018)).

Both sides agree that the Service applied this now-vacated Policy in concluding that no

portion of the queen conch’s range was significant. See Pls.’ Br. at 36–37; Defs.’ Br. at 39; see

also QC40000427–28. WildEarth argues that this was error, and the Service does not disagree.

It says only that “any error [it] made in relying on the then-applicable Policy was harmless in

light of the alternative bases for the significance determination provided in the [listing

decision].” Defs.’ Notice at 3. According to the Service, it applied “a more general

understanding of significance that weighed biological importance to the species as a whole,” in

addition to the Policy definition. Id. at 4. This “alternative rationale” allegedly exists in a single

sentence from the Service’s listing decision:

In addition, there is no evidence that suggests that there is a portion of the species’ range which encompasses aspects that are important to the species’ specific life history events, where loss of that portion would severally [sic] impact the growth, reproduction, or survival of the species as a whole.

QC40000428; see Defs.’ Notice at 4. The Service suggests that, should the Court determine that

this sentence does “not adequately explain this alternative basis,” it should “remand to the

12 agency for the limited purpose of providing a more thorough explanation of its [significant

portion of its range] decision.” Defs.’ Notice at 7 n.3.

At the August 12, 2019 hearing on the parties’ cross-motions for summary judgment, the

Service reiterated that its reliance on the now-vacated Policy was harmless due to this supposed

“alternative rationale.” The government argued that “the [listing] determination relied on an

alternative basis for the decision, and we can argue that that is an alternative basis for the Court

to affirm the agency's determination.” Mot. Hr’g Unofficial Tr. 4. The plaintiffs disagreed,

arguing that “there is no additional analysis beyond the illegal policy” and “where there is no

additional explanation other than the illegal policy, the decision must be vacated.” Id. at 11.

The Court rejects the Service’s “alternative rationale” argument. “No principle of

administrative law is more firmly established than that a court must review discretionary actions

in terms of the rationale on which the agency acted, rather than ‘accept appellate counsel’s post

hoc rationalizations.’” Ashland Oil, Inc. v. F.T.C.,

(D.C. Cir. 1976) (quoting

Burlington Truck Lines v. United States,

(1962)) (citing SEC v. Chenery

Corp.,

(1943)). This supposed “alternative rationale” originated in the Service’s

August 1, 2019 Notice to the Court, not in its listing decision, and is thus an impermissible post

hoc rationalization.

The listing decision itself proves this point. In its listing decision, the Service describes

only one definition of “significant portion of its range”—the Policy definition. See

QC40000427–28. And it makes no mention of an alternative definition. See

The single

sentence that allegedly provides this “alternative rationale” (emphasized below) appears between

three other sentences that plainly apply the Policy definition:

Therefore, after a review of the best available information, we did not find substantial evidence that would indicate that the loss of queen conch in any portion

13 of the species’ range would limit the species to the point where it would be in danger throughout all of its range, or likely to become so in the foreseeable future. In addition, there is no evidence that suggests that there is a portion of the species’ range which encompasses aspects that are important to the species’ specific life history events, where loss of that portion would severally [sic] impact the growth, reproduction, or survival of the species as a whole. We have evaluated the species throughout its range to determine if there is a portion that is significant and have concluded that the information does not indicate any portion’s contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction. Consequently, we are unable to identify a ‘significant portion of its range’ for the queen conch that would change the determination relative to the status of the species rangewide.

QC4000028 (emphasis added). This single, isolated sentence does not establish that the Service

applied some alternative, unspecified definition of “significant portion.”

What is more, this “alternative rationale” is inconsistent with the Service’s briefing. In

its cross-motion for summary judgment, the Service explained, quoting a portion of this

sentence, that “the Service found that there was no portion of the population the loss of which

would ‘severally [sic] impact the growth, reproduction, or survival of the species as a whole.’”

Defs.’ Br. 43 (quoting QC4000028). And the Service argued that this finding “is what the policy

requires.”

(emphasis added). The Service’s briefing thus confirms that this single sentence

was not an alternative rationale but rather mere support for the Service’s conclusion that—under

the Policy—no portion of the queen conch’s range was significant.

In sum, the Service’s “alternative rationale,” which appears nowhere in the agency

record, is a post hoc rationale. It originated in a supplemental notice that the agency filed nearly

20 months after its summary judgment brief, and this so-called “alternative rationale” conflicts

with that very brief. The Court rejects it as such.

That leaves only one rationale for the Service’s conclusion that no portion of the queen

conch’s range was significant: the now-vacated Policy. The Service does not dispute that it erred

in relying on that Policy; the Service claims only that it was harmless error. See Defs.’ Notice at

14 3. Because the Court rejects the Service’s alternative rationale, it disagrees that this error was

harmless. Based on that error, the Court must vacate and set aside the listing decision and

remand the case to the agency for further proceedings. See Fed. Election Comm’n v. Akins,

(1998) (“If a reviewing court agrees that the agency misinterpreted the law, it will set

aside the agency’s action and remand the case . . . .”); Am. Bioscience, Inc.,

(holding that relief on an APA claim “normally will be a vacatur of the agency’s order”).

CONCLUSION

For these reasons, the Court grants WildEarth’s Motion for Summary Judgment in part

and denies the Service’s Motion for Summary Judgment. The Court vacates the listing decision

and remands the case to the Service for further proceedings consistent with this opinion. A

separate order accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH August 26, 2019 United States District Judge

15