UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, et al.,

Plaintiffs, v. Civil No. 18-1547 (JDB) DAVID BERNHARDT, in his official capacity as Secretary, U.S. Department of Interior, et al.,

Defendants.

MEMORANDUM OPINION

In 1992, the Fish and Wildlife Service (“the Service”) listed the Louisiana black bear

(“LBB”) as a “threatened species” under the Endangered Species Act (“ESA”). The Service

determined in 2016 that the bear had recovered and no longer qualified as threatened, and it was

therefore delisted. Plaintiffs, a collection of non-profit organizations and individuals who assert

an interest in the LBB and its habitat, dispute the Service’s determination and challenge the

decision to delist the LBB. Now before the Court are plaintiffs’ motion for summary judgment

and the government’s and intervenor-defendant Safari Club International’s cross-motions for

summary judgment. Upon consideration of the parties’ submissions and the entire record, the

Court concludes that plaintiffs have failed to satisfy the requirements of Article III standing.

Accordingly, the Court will dismiss the case without prejudice for lack of jurisdiction.

1 Background

A. The Louisiana Black Bear

The LBB is a subspecies of the American black bear. See Removal of the Louisiana Black

Bear From the Federal List of Endangered and Threatened Wildlife and Removal of Similarity-of-

Appearance Protections for the American Black Bear(“Delisting Rule”),

,

13,124 (March 11, 2016). LBBs are “huge, bulky mammal[s] with long black hair” and yellowish-

brown muzzles; they sometimes present with a white patch on their lower throat and chest.

Threatened Status for the Louisiana Black Bear and Related Rules (“Listing Rule”),

, 588 (Jan. 7, 1992). While LBBs “are not readily visually distinguishable from other black

bear[s],” Delisting Rule at 13,125, they are morphologically characterized by their “relatively long,

narrow, and flat” skulls and “proportionately large molar teeth,” Listing Rule at 588. Male LBBs

usually weigh about 300 pounds, with females weighing in at around 150 pounds. Delisting Rule

at 13,125.

LBBs are habitat generalists—they can and do survive in a variety of habitats, including

“marsh, upland forested areas, forested spoil areas along bayous, brackish and freshwater marsh,

salt domes, and agricultural fields.” Delisting Rule at 13,126. The LBB historically lived in many

of these sorts of habitats in Louisiana (as implied by the name “Louisiana black bear”).

The

bear was also known to live in parts of southern Mississippi and eastern Texas.

,126–27.

Beginning in the 1700s and 1800s, however, hunting and deforestation narrowed the habitable land

available to the LBB.

By 1992, agricultural land clearing had further reduced LBB habitat by

more than 80 percent, and what habitat remained was “degraded by fragmentation.”

.

As a result of this habitat loss, in 1992, only 80 to 120 LBBs were estimated to remain in Louisiana,

25 in Mississippi, and none at all in Texas.

2 B. The 1992 Listing and Subsequent Developments

Under the ESA, the Secretary of the Interior—and through him, the Service—is charged

with conserving endangered and threatened species.

(b). One means of satisfying

that charge is to add or remove species like the LBB from the Federal Lists of Endangered and

Threatened Wildlife and Plants. See

. A species is “endangered”—and should

thus be listed—if it “is in danger of extinction throughout all or a significant portion of its range.”

(6). Similarly, a species is “threatened” if it “is likely to become an endangered

species within the foreseeable future.”

§ 1532(20). In determining whether a species is

threatened or endangered, the Service must consider several statutory factors, including “the

present or threatened destruction” of the species’ habitat and “the inadequacy of existing regulatory

mechanisms.” Id. § 1533(a)(1).

In 1992, concerned by the LBB’s habitat losses and low population numbers, the Service

determined that the LBB met the statutory definition of “threatened” and issued a final rule listing

the LBB. Listing Rule at 592. The main threats to the LBB, according to the Service, were (1)

past habitat losses from the conversion of land for agricultural or other non-timberland purposes;

(2) possible future habitat losses in privately owned areas; and (3) the inadequacy of existing

regulatory mechanisms. Listing Rule at 590–91. The Rule noted that illegal killing by humans

posed a secondary threat to the LBB. Id. at 591.

The Rule also discussed whether hybridization was a threat to the LBB. Id. at 591–92.

The Rule explained that in the 1960s, about 160 American black bears from Minnesota had been

introduced into LBB habitat. Id. It then considered whether cross-breeding between the LBB and

those Minnesota bears was a threat to the species, ultimately concluding that such hybridization

3 was not a threat, because the extant populations of LBBs were “probably intraspecifically

hybridized” already. Id. at 592. The important thing was to “protect[] the taxon now distinguished

by cranial features.” Id. Because “genetic investigations did not identify real differences” between

the LBB and the Minnesota bear, the Service concluded that hybridization was not likely to dilute

or threaten the LBB taxon. See id.

As required by statute, after it listed the LBB, the Service developed and approved a

recovery plan for the LBB. See Louisiana Black Bear Recovery Plan (“Recovery Plan”),

FWS002595 (Sept. 27, 1995). The plan stated that the recovery objective was “[d]elisting,” and

provided three criteria for delisting the LBB: (1) the existence of “[a]t least two viable

subpopulations, one each in the Tensas and Atchafalaya River Basins”; (2) the “[e]stablishment of

immigration and emigration corridors between the two subpopulations”; and (3) “[l]ong-term

protection of the habitat and interconnecting corridors that support each of the two viable

subpopulations.” Id. at FWS002600, 2615. Once the plan was approved, the Service worked to

implement it, with the goal of satisfying each of the plan’s three criteria. During the

implementation period, the Service published a final rule designating approximately 1,195,800

acres as “critical habitat” for the LBB. See Designation of Critical Habitat for the Louisiana Black

Bear,

(Mar. 10, 2009).

In 2007, the Service initiated a “5-year review” of the LBB’s status to “ensure that the

classification of [the] species” as threatened remained “accurate.” 5-Year Review of Nine

Southeastern Species,

(Aug. 2, 2007). The results of that review were

published in early 2014. See 5-Year Review, FWS016804. The review concluded that between

76% and 100% of the Recovery Plan’s objectives had been met, noting that all three LBB

populations existing at the time of listing were increasing, new breeding populations had appeared,

4 and “significant progress in habitat restoration and protection” had been made.

at FWS016806,

16814.

C. The 2016 Delisting

On March 11, 2016, twenty-four years after the LBB was listed, the Service published a

final rule delisting the LBB. See Delisting Rule at 13,124. In the Delisting Rule, the Service

determined that the LBB had recovered because all substantial threats had been eliminated or

reduced and all recovery criteria in the Recovery Plan had been met; thus, the LBB no longer met

the definition of a threatened species.

,133–38. The Rule emphasized that (1) habitat,

forest restoration, and breeding habitat had increased significantly since the time of listing,

; (2) hunting, commercial use, disease, and predation continued not to be serious threats to

the LBB,

,159–60; and (3) many state and federal protections would remain in place after

delisting, including the Clean Water Act, permanent conservation easements, state protections

analogous to those under the ESA, and state management plans for maintaining LBB habitat,

,160–64.

The Service also returned to the question whether hybridization was a threat to the LBB.

It acknowledged that the Upper Atchafalaya River Basin (“UARB”) subpopulation showed some

“genetic affinity” to Minnesota bears, but concluded that such affinity “is not sufficient evidence

for determining taxonomic status.”

. Moreover, the Service noted that a recent study

validated its assumption at the time of listing that the whole LBB population was to some extent

already hybridized, and so the notion that a “pure” LBB genetic strain existed anywhere was likely

mistaken.

Indeed, the Service determined that, rather than threatening the LBB, genetic

exchange “among bears from Louisiana, Mississippi, and Arkansas can be considered a positive

genetic and demographic contribution” to the LBB subspecies.

(emphasis added).

5 In addition to delisting the LBB, the Delisting Rule also rescinded the critical habitat

designation from 2009. See

.

D. This Lawsuit

Plaintiffs filed this lawsuit on June 28, 2018, challenging the Service’s conclusions in the

Delisting Rule that the LBB is recovered and no longer meets the definition of a “threatened

species” under the ESA. See, e.g., Compl. [ECF No. 1] ¶¶ 76–101. Plaintiff’s complaint seeks a

declaration that the Delisting Rule was issued in violation of law and vacatur of the Rule.

. On January 4, 2019, Safari Club International moved to intervene; the Court granted that

motion on March 22, 2019. Order of March 22, 2019 [ECF No. 22] at 5–6. Plaintiffs, the

government, and Safari Club have each moved for summary judgment. Pls.’ Mot. for Summ. J.

(“Pls.’ MSJ”) [ECF No. 24]; Safari Club Int’l’s Cross-Mot. for Summ. J. and Resp. in Opp’n to

Pls.’ Mot. for Summ. J. (“Safari Club MSJ”) [ECF No. 25]; Fed. Defs.’ Cross-Mot. for Summ. J.

(“Gov’t MSJ”) [ECF No. 27].

Discussion

Only Safari Club, not the government, raises the issue of standing. But the Court cannot

evaluate the merits of plaintiffs’ claims without first ensuring that plaintiffs have standing. See

Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin.,

, 1289 (D.C. Cir. 2007).

To establish standing under Article III, a party must show (1) injury in fact that was (2) caused by

the conduct of the defendants and that (3) can be redressed by judicial relief. Id. “The party

invoking federal jurisdiction bears the burden of establishing standing—and, at the summary

judgment stage, such a party can no longer rest on mere allegations, but must set forth by affidavit

or other evidence specific facts.” Clapper v. Amnesty Int’l USA,

, 411–12 (2013).

In evaluating that evidence concerning standing, courts “assume that on the merits the plaintiffs

6 would be successful in their claims.” Pub. Citizen, 489 F.3d at 1289. In cases like this one, where

“the parties invoking federal jurisdiction are not the object of the government action or inaction

they challenge,” standing is “substantially more difficult to establish.” Id. (internal quotation

marks omitted).

Where a case involves multiple plaintiffs, “[a]t least one plaintiff must have standing to

seek each form of relief.” Town of Chester v. Laroe Estates, Inc.,

(2017).

Here, all the plaintiffs—the individual and the organizational plaintiffs—seek the same form of

relief for each claim. Therefore, if any one of the plaintiffs has standing, the Court can proceed to

the merits. If standing rests on an organizational plaintiff bringing suit on behalf of its members,

however, additional requirements apply. In order to bring such a suit, an organization must show

that (1) “its members would otherwise have standing to sue in their own right,” (2) the interests

the organization is seeking 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.” Defs.

of Wildlife v. Perciasepe,

(D.C. Cir. 2013).

The Court begins with the injury-in-fact requirement. Injury in fact is the “invasion of a

legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical.” Lujan v. Defs. of Wildlife,

(1992). “Although

imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose,

which is to ensure that the alleged injury is not too speculative for Article III purposes.” Clapper,

. Accordingly, an allegation of future injury must either be “certainly impending”

or there must be a “substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus,

, 158 (2014) (internal quotation marks omitted). Where the latter sort of “risk of

harm” claim is at issue, the D.C. Circuit has instructed that the “proper way” to analyze such a

7 claim is through the lens of imminence: to “consider the ultimate alleged harm—such as death,

physical injury, or property damage from car accidents—as the concrete and particularized injury

and then to determine whether the increased risk of such harm makes injury to an individual citizen

sufficiently ‘imminent’ for standing purposes.” Pub. Citizen, 489 F.3d at 1298. A plaintiff can

satisfy that requirement by showing “both (i) a substantially increased risk of harm and (ii) a

substantial probability of harm with that increase taken into account.” Id. at 1295. In

environmental cases like this one—keeping in mind the imminence requirements just explained—

a plaintiff can satisfy the injury-in-fact requirement by “adequately show[ing] that he or she has

an aesthetic or recreational interest in a particular place or animal, and that interest is impaired by

a defendant’s conduct.” Humane Soc’y of the U.S. v. Jewell,

(D.D.C.

2014).

The Court has reviewed the complaint, briefing, and affidavits submitted by plaintiffs in

support of summary judgment and discerned four possible injuries, which will be addressed in

turn. First, one plaintiff claims in his affidavit that delisting will lead to the LBB being “reduced

in numbers or distribution,” which will in turn make it more difficult “to observe and study the

Louisiana black bear and its habitat.” See Decl. of Dr. Ronald M. Nowak (“Nowak Decl.”) [ECF

No. 24-4] ¶ 14. The problem with this claim is that, while plaintiffs’ aesthetic interest in the LBB

could conceivably support an injury in fact, plaintiffs have not provided the Court with any

evidence whatsoever demonstrating that delisting will lead inexorably to fewer LBBs or make it

harder to observe LBBs in the wild. It is not self-evident what the result of delisting will be for

LBB population levels. The Delisting Rule itself notes that the main LBB subpopulations “are

stable or increasing,” and that the probability of long-term persistence is 99.6%. Delisting Rule at

13,167.

8 In support of their claim about the negative effects of delisting on population levels,

plaintiffs could have submitted population-modeling data, data showing what occurred to the

populations of other species following delisting, or some other facts demonstrating a link between

delisting and population decreases. Cf. Jewell,

(concluding that plaintiffs

challenging delisting had standing where they provided data showing that population of gray

wolves would decrease upon delisting). But plaintiffs submitted no such data to the Court. As a

result, there are no facts in the record to show that the Delisting Rule will “actually” cause the

claimed harm, much less that the harm will follow “imminently” from the delisting. Cf. Humane

Soc’y of the U.S. v. Babbitt,

, 97 (D.C. Cir. 1995) (concluding that plaintiffs had failed

to show injury in fact where declaration did not set forth facts showing that declarant’s ability to

observe and study a species was actually reduced by the Service’s action). Without facts to support

it, plaintiffs’ claim that “[t]he loss of ESA protections results in the likelihood of there being fewer

bears to observe, study, and enjoy,” Opp’n to Defs.’ & Safari Club Int’l’s Mots. for Summ. J. &

Reply in Support of Pls.’ Mot. for Summ. J. (“Pls.’ Reply”) [ECF No. 30] at 45, is nothing more

than a mere allegation. 1 Mere allegations do not satisfy the injury-in-fact requirement at the

summary judgment stage of litigation.

Second, two plaintiffs claim that their ability to view “true native” LBBs will be harmed

by hybridization of the LBB and the Minnesota bears. 2 See, e.g., Nowak Decl. ¶ 16 (“The delisting

1 Plaintiffs’ reply brief cites a number of instances where the administrative record documents various causes of bear deaths, presumably as proof that delisting will lead directly to more bear deaths. Pls.’ Reply at 45–46. But none of those locations in the administrative record make any reference to whether the causes of death were affected by the fact that the LBB was listed. For example, at FWS020040, a Service employee emailed another Service employee a summary of “observed bear mortality during 1992–2015.” Some of the causes of death were vehicle collisions or illegal kills. Id. Nothing in the email, however, suggests that the fact that the LBB was listed during that time period had any effect on the total number of bear deaths, or that delisting the bear would make deaths from those sources more likely. See id. 2 For purposes of this standing analysis, the Court assumes that plaintiffs are correct that it is possible to draw a distinction between “true” LBBs and the bears in the UARB population, which plaintiffs claim are some mixture of true LBB and American black bears.

9 decision took away necessary protections for the remaining luteolus populations and their habitat,

and allows for the continued exposure of true native luteolus to the risks of hybridization with an

introduced, non-native americanus population in the [UARB].”); Decl. of Dr. Michael J. Caire

(“Caire Decl.”) [ECF No. 24-2] ¶ 15 (same). The extent of the facts provided to the Court are (1)

Minnesota bears were at some point introduced into the UARB prior to listing, see Caire Decl.

¶ 14; (2) true LBB subpopulations are currently exposed to the Minnesota bears, see id.; and (3)

that exposure presents “risks of hybridization,” id. ¶ 15. On plaintiffs’ own account, then, the

hybridization that they are concerned about began when the Minnesota bears were introduced into

the UARB in the 1960s and was then actually exacerbated by the actions taken by the Service

during the time that the LBB was listed. See, e.g., Pls.’ MSJ at 19 (arguing that the Service’s

“efforts to interconnect populations as part of its Recovery Plan actually further threaten the LBB’s

survival as a subspecies by facilitating hybridization” with Minnesota bears).

Some risk of LBBs hybridizing with Minnesota bears in the UARB, then, existed long

before delisting (or even listing). Plaintiffs’ briefing makes clear that the specific claim here is

that delisting increases the risk of harm from hybridization beyond the risk that already existed.

See Pls.’ Reply at 46 (arguing that delisting presents “increased risks of hybridization”). The

aesthetic interest in viewing “true” LBBs is one that (like the first potential injury) conceivably

could satisfy the injury-in-fact requirement. But to establish standing, plaintiffs must demonstrate,

through evidence in the record, that harm to that aesthetic interest is “actual or imminent.” Lujan,

. Plaintiffs make no attempt to show “actual” harm—that hybridization has actually

increased since delisting. They instead rely on imminence. To show imminence for this increased-

risk-of-harm claim at the summary judgment stage, plaintiffs must set forth specific facts

demonstrating that (1) the action being challenged—the delisting of the LBB—substantially

10 increases the risk of hybridization and (2) that there is a substantial probability of hybridization

occurring. See Pub. Citizen, 489 F.3d at 1295; id. at 1296 (“[T]he constitutional requirement of

imminence . . . necessarily compels a very strict understanding of what increases in risk and overall

risk levels can count as ‘substantial.’”); Food & Water Watch, Inc. v. Vilsack,

(D.D.C. 2015) (“[A] plaintiff must ordinarily show that the defendant’s action has made it

much more likely that the harm plaintiff fears will occur than would otherwise be the case.”).

Even if the Court were to assume that plaintiffs had satisfied the second prong and shown

a substantial probability of hybridization, plaintiffs still have not demonstrated that delisting

substantially increases the risk of such hybridization. See Food & Water Watch, Inc. v. Vilsack,

(D.C. Cir. 2015) (“A failure to satisfy either of these prongs would deprive [the]

Court of jurisdiction to hear Plaintiffs’ case.”). The Court cannot simply accept at face value

plaintiffs’ assertion that delisting will somehow create new or increased risks of hybridization. Cf.

Pub. Citizen, Inc. v. Trump,

(D.D.C. 2018) (concluding that plaintiffs had

not met two-part test where they had “not averred or offered any evidence about [their] current

risk of exposure or about the degree to which the [agency action] would decrease that risk”); Fed.

Forest Res. Coal. v. Vilsack,

, 44–45 (D.D.C. 2015) (concluding that plaintiffs

had failed to demonstrate that agency action barring certain timber harvesting “substantially

increased [the] risk of wildfires,” where plaintiffs had presented nothing more than “historical

figures showing that wildfires have increased as timber harvesting has decreased”); Elec. Privacy

Info. Ctr. v. U.S. Dep’t of Educ.,

(D.D.C. 2014) (“[P]laintiffs provide no

evidence—not even any allegations—about how much more likely they are to be the victims of

identity fraud now than before the passage of the Final Rule, and they provide absolutely no

information about the absolute risk that their information will be used improperly.”); Carik v. U.S.

11 Dep’t of Health & Human Servs.,

(D.D.C. 2013) (concluding that plaintiffs

had failed to show a substantial increase in risk where they had “not attempted to quantify the

increased risk of physical injury from [the agency action]”).

Plaintiffs’ affidavits are entirely devoid of any facts supporting the assertion that delisting

will make hybridization worse. The affidavits contain no facts, for instance, showing that as a

result of delisting the LBB, Minnesota bears will have greater access to true LBBs than they did

during listing, or are more likely to breed with LBBs, or that some other factor will increase the

rate of hybridization. Without facts of that sort, plaintiffs have not shown that hybridization is the

“imminent” result of delisting, and that claim fails to satisfy the injury-in-fact requirement. 3

The third potential injury, claimed by two organizational plaintiffs on behalf of their

members, is that delisting of the LBB will subject habitat areas upon which they depend for

commercial, recreational, and aesthetic purposes “to increased development and impairment.”

Decl. of Jody Meche (“Meche Decl.”) [ECF No. 24-3] ¶ 16; see Decl. of Dean Wilson (“Wilson

Decl.”) [ECF No. 24-6] ¶ 22 (“[W]ithout protections for critical bear habitat, areas that support the

Basin populations of Louisiana black bear are no longer protected from development.”). An

assertion of lost enjoyment of lands because of increased development can, in appropriate

circumstances, support standing. See Sierra Club v. Jewell,

, 5–6 (D.C. Cir. 2014).

But this claim faces several hurdles here. To begin with, “the relevant showing for

purposes of Article III standing . . . is not injury to the environment but injury to the plaintiff.”

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,

(2000). The

organizational plaintiffs must therefore show that their members would personally be affected by

3 Nor can the “increased risk of hybridization” itself, rather than the actual harm from imminent hybridization, satisfy the injury-in-fact requirement. Clear D.C. Circuit precedent instructs that “the mere increased risk of some event occurring is utterly abstract—not concrete, direct, real, and palpable.” Pub. Citizen, 489 F.3d at 1297.

12 development resulting from delisting, which would require them to identify “specific areas” of the

Atchafalaya Basin that they personally use in which development would harm their interests.

Friends of the Earth v. U.S. Dep’t of Interior,

, 17–18 (D.D.C. 2007) (concluding

that an injury has been alleged where a declaration identifies “specific areas” of affected national

parks, such as specific hiking trails, but has not been alleged where a declaration “simply contains

a list of parks and a list of general injuries”). Moreover, those areas must be land that was

previously designated as critical habitat—otherwise, any development there could not be the result

of delisting.

A significant portion of the organizational plaintiffs’ declarations assert an interest only in

the Atchafalaya Basin generally, without identifying portions of the Basin that they use that were

previously designated as critical habitat. See, e.g., Meche Decl. ¶ 8 (“I have been making a living

in the Atchafalaya Basin my entire life, and I plan to continue to use the Basin in both my work

and recreational activities.”); Wilson Decl. ¶ 17 (“I have a strong interest in the native and

migratory wildlife of the Atchafalaya Basin as a resident of the Basin . . . .”). These sorts of broad,

general assertions will not suffice: the Basin is a massive 1.2 million–acre area that encompasses

LBB habitat as well as enormous regions of land which are not LBB habitat. See FWS008522.

Only about half of that land—567,000 acres—was designated as critical habitat in the Service’s

2009 habitat designation. See

, 10,368–69 (March 10, 2009). The Court

cannot simply extrapolate from an assertion that plaintiffs use the Basin generally that they also

use previously designated lands within the Basin. See Friends of the Earth,

(noting that it is not the Court’s role “to connect the dots and assume that an affiant has sworn to

things that are not stated in the affidavit”).

13 Some of the assertions in the declarations fare better on this front, however. For instance,

on behalf of the Atchafalaya Basinkeeper organization, declarant Dean Wilson avers that he has

“spent numerous hours boating and recreating in the Atchafalaya Basin, including in areas

previously designated critical habitat for the Louisiana black bear,” and that he “intend[s] to

continue to visit, work and recreate in these areas.” Wilson Decl. ¶¶ 18–19. Likewise, declarant

Jody Meche, on behalf of the Louisiana Crawfish Producers Association-West, avers that she

“intend[s] to continue using the Basin to advance [her] economic, recreational, cultural, and

aesthetic interests, including . . . areas formerly designated as critical habitat.” Meche Decl. ¶ 20.

These statements are sufficient to show that, through their members, the organizational plaintiffs

have a personal stake in at least some of the area affected by the Delisting Rule.

The next question is whether organizational plaintiffs have set forth facts to show “actual

or imminent” harm. As for actual harm, although plaintiffs list a number of development projects

that have occurred since delisting, some of which were in previously designated areas, see, e.g.,

Wilson Decl. ¶¶ 23–24, they fail to set forth facts demonstrating a personal connection to those

areas. The closest either organizational plaintiff comes to showing actual harm is in the Meche

Declaration. Meche states that she is a fisherman who “work[s] and live[s] in the geographic area”

of the LBB habitat, and that one of the development projects “impair[s] water quality, and other

wildlife habitat in the Atchafalaya Basin, which affects the health of [the] fisheries.” Meche Decl.

¶¶ 12, 17. But in addition to the fact that Meche does not say whether that development project or

the fisheries that it affected were located in previously designated lands, she also doesn’t specify

whether it affected any fisheries that she personally uses. These omissions are fatal to her claim

of actual harm. Cf. Friends of the Earth, 528 U.S. at 181–82 (concluding that plaintiffs had

demonstrated sufficient personal injury where they showed, for example, that they “lived a half-

14 mile from [the affected area],” and would like to engage in recreation “between 3 and 15 miles

downstream from the [affected area]”).

Because plaintiffs have not demonstrated that they have actually been harmed by a post-

delisting development project, plaintiffs must argue that harm is “imminent.” But they have not

claimed that development is “certainly impending.” Instead, they argue that delisting creates an

increased risk of harm from development. As before, then, plaintiffs must set forth facts sufficient

to meet the two-pronged increased-risk-of-harm test. Here, that test requires them to show both

(1) that the delisting creates a substantially increased risk of harm to their interests resulting from

development, and (2) that there is a substantial probability that that harm will occur. See Pub.

Citizen, 489 F.3d at 1295.

Once again, plaintiffs have provided the Court only with conclusory allegations that

delisting increases the risk of harmful development. For instance, Wilson states that “the Basin

populations of Louisiana black bear are no longer protected from development.” Wilson Decl.

¶ 22. But, as the Delisting Rule and Safari Club both point out, the ESA was only one in a

constellation of federal and state regulations and private agreements that protected the LBB

habitat, the rest of which remain in effect post-delisting. See Delisting Rule at 13,164; Safari Club

MSJ at 13, 26–27. Moreover, the ESA itself does not even ban development on critical habitat

land; instead, it requires federal agencies to ensure that developments they authorize are not likely

to “result in the destruction or adverse modification of habitat of [protected] species.”

(a)(2). Plaintiffs make no attempt to explain how common development was during listing,

how likely it is that development will result in harm to their aesthetic interests, or the degree to

which delisting increased any such risk. And they similarly do not explain whether the

development projects they do identify, such as the Bayou Bridge Pipeline, could have gone

15 forward even if the LBB had remained listed, or whether similar projects had been completed

while the LBB was listed. Without crucial facts about the “current risk” or increased risk resulting

from delisting, plaintiffs have not established imminence, and therefore have not established injury

in fact. See Pub. Citizen,

.

Although not mentioned in plaintiffs’ briefing, it is possible to read the organizational

plaintiffs’ declarations as asserting a fourth potential injury in support of the organizations’

standing in their own right (as opposed to standing on behalf of their members). The injury would

be that, as a result of the delisting decision, the organizations have had to devote resources to

challenging development projects in the Basin like the Bayou Bridge pipeline. Wilson Decl. ¶ 23.

To show injury in fact based on the expenditure of organizational resources, an organization must

set forth facts that the challenged agency conduct “perceptibly impaired [its] ability to provide

services” by causing “an inhibition of [the organization’s] daily operations.” Food & Water

Watch,

.

The Court concludes that the organizational plaintiffs have not put forth sufficient facts to

show that the delisting decision has somehow impaired their ability to provide services or inhibited

their daily operations. To be sure, plaintiffs have stated that they spent money on litigation to

challenge the Bayou Bridge pipeline and other developments in the Basin. Wilson Decl. ¶¶ 23–

24. But they have not “provide[d] evidence that these . . . expenses were beyond those normally

expended.” Friends of Animals v. Zinke,

(D.D.C. 2019). For instance,

there is no allegation that these development projects were actually caused by the delisting or

would not have gone forward even if the LBB had remained listed, or that plaintiffs expended

more money litigating than they would have absent the delisting. Nor can the organizational

plaintiffs establish an injury merely by implying that they have had to “divert[] resources from one

16 priority to another” where their service activities have not been directly impeded. Long Term

Pharmacy All. v. UnitedHealth Grp., Inc.,

(D.D.C. 2007).

As for the claim that the delisting decision has affected the organizations’ general advocacy

efforts, as opposed to their service activities, binding case law provides that “an organization’s use

of resources for litigation . . . or advocacy is not sufficient to give rise to an Article III injury.”

Food & Water Watch, 808 F.3d at 919–20. In other words, “when the only ‘injury’ arises from

the effect of the regulations” on advocacy efforts, there is no standing. Ctr. for Law & Educ. v.

Dep’t of Educ.,

, 1161–62 (D.C. Cir. 2005). The mission of the organizational

plaintiffs here, which reflects their advocacy goals, is to “preserve and restore the ecosystems of

the Atchafalaya Basin” and to inform “members and the general public of projects, activities, or

actions that may adversely affect the Basin.” See Wilson Decl. ¶¶ 5, 9; see also Meche Decl. ¶ 6

(“At the core of [the Louisiana Crawfish Producers Association-West’s] mission is our collective

advocacy, outreach, and public education to keep local residents, agencies, and government

officials informed of the goings-on in the Basin . . . .”). Pursuant to this mission, plaintiffs monitor

Basin lands so that they can report back to the public about potential threats to the Basin, see

Wilson Decl. ¶¶ 9–10, and “engage in public and legal advocacy to prevent harmful development,”

Meche Decl. ¶ 6. Plaintiffs claim that this monitoring and advocacy work has been disrupted by

the delisting decision. See Wilson Decl. ¶ 26. Although “the line between advocacy and non-

advocacy services can be blurry” in some cases, Tex. Low Income Housing Info. Serv. v. Carson,

, at *6 (D.D.C. 2019), here the Court is convinced that plaintiffs’ monitoring

and advocacy efforts “relate directly and exclusively to pure issue-advocacy,” Friends of Animals,

. As a result, harm to this activity does not suffice to create standing.

17 Plaintiffs argue that it would be unfair for the Court to conclude that they lack standing,

given that the Court determined that Safari Club had a “legal interest” in the case when it granted

Safari Club’s motion to intervene to defend the Delisting Rule in order to protect its members’

interest in hunting black bears. See Pls.’ Reply at 40. How can Safari Club have an interest

sufficient to defend the rule, plaintiffs ask, yet plaintiffs not have standing to challenge the rule?

This argument elides a key difference between the positions of the parties. If the Court vacates

the Delisting Rule, it necessarily follows that the LBB will be relisted, and that there will thus be

a complete ban on hunting the LBB in Louisiana. Safari Club’s members indicated that they “plan

to hunt black bear in Louisiana during the first season that the Louisiana Department of Wildlife

and Fisheries establishes a season for black bear.” Declaration of Melissa Evans Elliott [ECF No.

13-3] ¶ 10. While Louisiana has not yet authorized hunting, it has indicated that it “may” consider

bear harvests “as a management action” (though Louisiana emphasized that “if proposed harvests

may impede sustainability, then no harvests will be allowed”). FWS 018842. Safari Club’s

members, therefore, set forth specific facts establishing that they had a legal interest (potentially

hunting black bears) in the suit that would likely be impaired if the LBB were relisted. See Order

of March 22, 2019 at 5–6. On the other hand, the injuries asserted by plaintiffs—for example, a

decline in opportunities to view LBB or hybridization of the LBB with Minnesota bears—do not

necessarily follow from delisting. As a result, plaintiffs needed to put forth specific facts showing

that these harms would result from delisting. They have failed to satisfy that burden. 4

4 Likewise, plaintiffs’ argument that the Court should ask “if Plaintiffs lack standing, is there anyone else who could have standing under Safari Club’s test” is unavailing. Pls.’ Reply at 43. “[T]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.” Clapper,

. Moreover, here it simply is not the case that it is impossible for anyone to challenge the Delisting Rule. The Court has emphasized throughout this opinion that its conclusion that plaintiffs lack standing is the result of plaintiffs’ failure to set forth specific facts to support a finding of injury in fact, no more and no less.

18 Conclusion

For the foregoing reasons, the Court will dismiss the case without prejudice for lack of

jurisdiction and deny as moot the parties’ motions for summary judgment. A separate order will

be issued on this date.

/s/ JOHN D. BATES United States District Judge Dated: February 7, 2020

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