UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY and HEALTHY GULF,

Plaintiffs,

v. Civil Action No. 22-1877 (RDM)

U.S. FISH AND WILDLIFE SERVICE, et al.,

Defendants.

MEMORANDUM OPINION

The Center for Biological Diversity and Healthy Gulf (“Plaintiffs”) bring this suit against

the U.S. Fish and Wildlife Service, its Director, and the Secretary of the Interior (collectively, the

“FWS”) under the Endangered Species Act,

et seq. (“ESA”), and the

Administrative Procedure Act,

et seq. (“APA”). Dkt. 11 (Am. Compl.). This

case revolves around the eastern black rail, a rare and elusive marsh bird. Over the past several

decades, the eastern black rail population has declined precipitously, and the birds are edging

ever closer to extinction. In 2020, the FWS listed the eastern black rail as “threatened” under the

ESA, but the FWS declined to protect the birds’ “critical habitat” on the grounds that doing so

would not be “prudent.”

at 23–27 (Am. Compl. ¶¶ 116–46). Plaintiffs challenge the FWS’s

failure to designate critical habitat for the eastern black rail. Pending before the Court are the

parties’ cross-motions for summary judgment. Dkts. 33, 35. For the reasons explained below,

the Court will grant Plaintiffs’ motion and will deny the FWS’s motion. I. BACKGROUND

A. Statutory and Regulatory Background

The Endangered Species Act is, in the words of the Supreme Court, “the most

comprehensive legislation for the preservation of endangered species ever enacted by any

nation,” affording “endangered species the highest of priorities.” Tenn. Valley Auth. v. Hill,

(1978). Its purpose is to conserve “the ecosystems upon which endangered

species and threatened species depend” and to “provide a program” to allow species facing

extinction to recover.

(b). The ESA directs the FWS to “list” covered species

as “endangered” or “threatened,” depending on the “danger of extinction.” See

§§ 1532(6),

(20); 1533(a), (b). Once listed, a species gains a variety of protections.

The ESA recognizes that habitat conservation is an essential element of species

conservation. Id. § 1533(a)(1)(A) (providing that the FWS may list a species due to the

“destruction, modification, or curtailment of its habitat”). Accordingly, the statute generally

protects listed species’ “critical habitat[s],” defined as follows:

(i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and

(ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.

Id. § 1532(5)(A). Section 1533 of the ESA sets forth the process for listing a species as

threatened or endangered, including the FWS’s obligations with respect to protecting critical

habitat. As relevant here, subsection (a)(3)(A) of § 1533 generally requires the FWS to

“designate” critical habitat concurrently with its listing decision:

2 The Secretary, by regulation promulgated in accordance with subsection (b) and to the maximum extent prudent and determinable—

(i) shall, concurrently with making a determination under [§ 1533(a)(1)] that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat.

Id. § 1533(a)(3)(A). Designated critical habitat gains protection under section 7 of the ESA,

which requires federal agencies to “consult[]” the FWS before taking action that could

jeopardize designated critical habitat. Id. § 1536(a)(2). This consultation requirement “is

designed as an integral check on federal agency action, ensuring that such action does not go

forward without full consideration of its effects on listed species.” Ctr. for Biological Diversity v.

EPA,

, 177–78 (D.C. Cir. 2017) (internal quotation marks omitted). But the

designation of critical habitat does not affect private parties, states, or local governments (except

to the extent they are indirectly affected by federal action to which section 7 applies), and it

“does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other

conservation area.” Threatened Species Status for Eastern Black Rail with a Section 4(d) Rule,

, 63801 (Oct. 8, 2020); see also Nat'l Ass’n of Home Builders v. Norton,

, 10 n.2 (D.C. Cir. 2005) (noting that “[t]he designation of critical habitat has no effect on

non-Federal actions taken on private land” (quoting

, 37428 (1999)).

Although subsection (a)(3) requires, as a general rule, that the FWS designate critical

habitat for listed species, it does not require the FWS to extend protection to all areas that meet

the statute’s definition of “critical habitat”—the FWS must only do so “to the maximum extent

prudent and determinable.”

(a)(3)(A). In some instances, critical habitat will

not be “determinable” because the FWS will not have sufficient information regarding the

biological needs of a species to ascertain the location of its critical habitat. In others, critical

3 habitat may be determinable, but a designation may not be “prudent.” The ESA does not define

“prudent,” but it does require the FWS to consider certain factors in deciding whether to

designate critical habitat. Subsection (b)(2) of § 1533 provides “the basis” for making critical

habitat designations “under subsection (a)(3).” Id. § 1533(b)(2). In particular, subsection (b)(2)

provides:

The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.

Id. In other words, subsection (b)(2) provides the FWS with discretion to exclude critical habitat

if a certain condition is met: the FWS “may exclude any area” from the designation if it

“determines that the benefits of such exclusion outweigh the benefits of [designation],” unless

the exclusion would result in extinction of the species. Id. § 1533(b)(2).

At the time the FWS issued its proposed rule in this case, its implementing regulations

described when designation of critical habitat is not prudent:

(1) A designation of critical habitat is not prudent when any of the following situations exist:

(i) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species; or

(ii) Such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Services may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.”

4

(a)(1) (2016); see Implementing Changes to the Regulations for Designating

Critical Habitat,

, 7439 (Feb. 11, 2016). Although the FWS has twice

amended this regulation since then, the subsection relevant to this case—subsection (i)—has

remained unchanged. See

(a)(1) (2024). The 2016 version, like the two

subsequent versions of the FWS’s regulations, moreover, further provided that the agency will

make this determination “after taking into consideration the probable economic, national

security, and other relevant impacts.”

§ 424.12(a) (2016). The FWS has consistently

recognized, however, that “[c]ircumstances in which [it] determine[s] critical habitat designation

is not prudent are rare.” 81 Fed. Reg. at 7429. In promulgating the relevant regulations, the

FWS explained that “[m]ost ‘not prudent’ findings have resulted from a determination that there

would be increased harm or threats to a species through the identification of critical habitat,”

such as an increased risk of poaching. Id. at 7425. In other cases, “a species may be listed

because of factors other than threats to its habitat or range, such as disease.” Id. In those

instances, the FWS may conclude that designation would simply increase regulatory burdens

without providing any benefit to the species, and, therefore, would be “not prudent.” Id.

Nonetheless, the FWS “recognize[s] the value of critical habitat as a conservation tool and

expect[s] to designate it in most cases,” “especially given that most species are listed, in part,

because of impacts to their habitat.” Id.

The regulations further provide that, once the FWS makes a critical habitat determination,

“[e]ach critical habitat area will be shown on a map, with more-detailed information discussed in

the preamble of the rulemaking documents published in the Federal Register.”

(c) (2016). The FWS must “make the coordinates and/or plot points on which the map

is based available to the public.”

§ 424.18(a)(1)(i) (2012).

5 Because the FWS’s general obligation to designate critical habitat is set forth in § 1533 of

the ESA, it is enforceable through the ESA’s “citizen suit” provision, which authorizes “any

person [to] commence a civil suit” against the FWS “where there is alleged a failure of the

Secretary to perform any act or duty under section 1533 . . . which is not discretionary with the

Secretary.”

(g)(1)(C); Am. Wildlands v. Kempthorne,

(D.C.

Cir. 2008).

B. Factual Background

1. Eastern Black Rail

The eastern black rail—a subspecies of black rail—is “a small, cryptic marsh bird” that

lives in “salt, brackish, and freshwater wetlands in the eastern United States.” Dkt. 43 at 677.

Eastern black rail occupy a unique ecological niche and have “narrow habitat preferences,”

requiring wetlands with “very shallow water and dense emergent vegetation.” Id. at 732. These

conditions are necessary for the birds to build their nests, which must be in “moist soil or shallow

water,” but sufficiently elevated to be protected from flooding. Id. at 678. The wetlands must

also be adjacent to upland grasslands; these “transitional areas” between the wetlands and

grasslands “are critical to eastern black rails, as they provide refugia during high water events.”

Id. at 730. The birds prefer “dense emergent vegetation” because they seldom fly and, instead,

generally “remain on the ground, running quickly” underneath the canopy. Id. at 732, 707. For

this reason, the eastern black rail is considered “secretive” and is rarely observed. Id. at 707.

Much about the eastern black rail—its lifespan, breeding frequency, growth and development,

migration habits, territorial behavior, and juvenile behavior—remains unknown. See id. at 698–

704.

6 “Historically, the eastern black rail ranged across the eastern, central, and southern

United States,” occupying “multiple areas of wetlands.” 85 Fed. Reg. at 63765. Over the last

century, however, their range and population have declined precipitously. See id. at 63765–66;

see also Dkt. 43 at 719. “Over the past 10 to 20 years, reports indicate that populations have

declined by 75 percent or greater.” 85 Fed. Reg. at 63793. As of 2016, the number of breeding

pairs in the northeast and southeast United States was estimated to be between 455 and 1,315.

Dkt. 43 at 722. The eastern black rail is “effectively extirpated” in New England, the

Appalachian region, and Central Lowlands in the Midwest, id. at 681, and the FWS projects that,

by 2068, “all eastern black rail[s] . . . are likely to be extirpated,” id. at 683.

2. Causes of the Eastern Black Rail’s Decline

According to the FWS, the “primary threats” to eastern black rail are fourfold:

(1) “[h]abitat fragmentation and conversion, resulting in the loss of wetland habitats across the

range”; (2) “sea level rise and tidal flooding”; (3) “land management practices,” such as

“incompatible fire management practices, grazing, and haying/mowing/other mechanical

treatment activities”; and (4) “stochastic events,” such as “extreme flooding” or “hurricanes.” 85

Fed. Reg. at 63767. All four of these threats are driving extirpation by disrupting the eastern

black rail’s habitat, although stochastic events and prescribed burns may result in “direct

mortality” in addition to habitat destruction. Id. at 63770.

The eastern black rail’s habitat—wetlands and associated grasslands—“have experienced

significant loss and conversion since European settlement.” 85 Fed. Reg. at 63767.

“Approximately 50% (greater than 100 million acres) of the wetlands in the conterminous United

States have been lost over the past 200 years,” including “most of the native grassland/prairie

habitats associated with eastern black rail habitat.” Id. This loss is largely attributed to

7 “development,” “agricultural conversion,” and other human activities. Id. at 63767–69

(explaining that “excavation of drainage ditches, channelization of rivers and streams,

construction of levees and berms, tidal restrictions, and diversions of waterways” have

“expos[ed] eastern black rails to unsuitable water regimes or converted habitats”). Similarly, sea

level rise and associated flooding “will reduce the availability of suitable habitat for the eastern

black rail and overwhelm habitat persistence.” Id. at 63769. Human activities such as fire

management (both suppression and prescribed burns) and grazing, haying, or mowing also

jeopardize essential features of the eastern black rail’s habitat. All of these land management

practices may “reduce[] the wetland vegetation canopy cover” or otherwise alter wetland

vegetation. Id. at 63769–70. Stochastic events, for their part, “cause significant damage to

coastal habitats by destroying vegetation and food sources” for the eastern black rail. Id. at

63770–71.

3. Effects of Birding

In addition to these four “primary threats,” the FWS identified disturbances from

“birders” as a “concern” for the eastern black rail. 85 Fed. Reg. at 63767. In general, “[h]uman

disturbance can stress wildlife,” and “[a]ctivities such as birding and hiking[] have been shown

to disturb breeding and nesting birds.” Id. at 63771. As for the eastern black rail in particular,

its “rarity” makes it “highly sought after by birders” hoping to add it to their birding “life list.”

Id. Although birders generally “play an especially important role in contributing to citizen

science efforts,” some birders may be “overzealous” in their pursuit of rare birds, such as the

eastern black rail. Id. at 63771, 63802. Birders may use “playback calls of eastern black rail

vocalizations in attempts to elicit responses from the birds” or “approach[] [the] birds in order to

get a sighting,” which “can . . . result in trampling of the bird’s habitat, as well as of eggs and

8 nests.” Id. at 63771. The American Birding Association’s Code of Birding Ethics, however,

discourages use of playback calls, and “most birders likely follow these ethical guidelines.” Id.

In addition, “[v]ery serious birders” will go out of their way to observe an eastern black rail, but

because the birds are perceived as “not the least bit charismatic and not particularly attractive,”

birders are “unlikely to go out of the way” to observe them more than once. Dkt. 43 at 665.

The FWS has, nonetheless, identified the following instances of birders gathering to see

the eastern black rail. In 1989, “a dozen birders” reportedly entered a marsh in New Jersey to

“search for Black Rails,” using “tapes to lure” the birds out. Dkt. 43 at 32. In 1991, a “small

group of Colorado’s birding elite, say 15 people,” assembled to observe “Black Rail.” Dkt. 43 at

33. One birder “pruned a portion of the marsh” to allow the others to see and played a “tape of a

Black Rail.” Id. In 2008, other birders “trampled” some areas of a marsh in an effort to observe

“black rails” in Ohio. Id. at 305. In June 2010, an eastern black rail was reported in

Massachusetts. This sighting, which was posted on eBird, a popular birding application, drew

dozens of birders hoping to see or hear the bird. See id. at 197; 12-Month Petition Finding and

Threatened Species Status for Eastern Black Rail with a Section 4(d) Rule,

,

50628 (Oct. 9, 2018). And in 2015, “four birders” attempting to find the birds in South Carolina

entered an area that had been “marked closed” to protect the birds’ nests. Dkt. 43 at 204. Aside

from these specific incidents, many birders have reported observing the eastern black rail over

the years on eBird, and “a few cases of trespassing are known” to have occurred.

.

Birders may, at times, disturb the birds and trample parts of their habitat, but there is no

evidence of bird or egg mortality from birders. Moreover, although birders were previously able

to publicly post the location of eastern black rail sightings on eBird, in 2019, as the FWS has

recognized, eBird added the eastern black rail to its list of “sensitive species.” 85 Fed. Reg. at

9 63780. As a result, users are no longer able to publicly post data or location records relating to

an eastern black rail sighting on eBird. 83 Fed. Reg. at 50628.

C. Regulatory History

The decline of the eastern black rail prompted Plaintiff Center for Biological Diversity to

petition the FWS in 2010 to list the subspecies as threatened or endangered. Dkt. 43 at 692. The

FWS eventually committed to publishing a proposal in the Federal Register by 2018, and,

accordingly, initiated a “Species Status Assessment (SSA) to compile the best available data

regarding the subspecies’ biology and factors that influence the subspecies’ viability.” Id. The

SSA used dynamic occupancy modeling to project the birds’ viability until the year 2100. Id. at

792. Each forecasted scenario adjusted the severity of the “three primary risks” affecting the

birds’ viability: “[1] habitat loss, [2] sea level rise (or groundwater loss), and [3] land

management (grazing, fire, and haying)” to determine the impact of each threat on the

subspecies’ survival. Id. In every scenario, including one that assumed “a lower rate of habitat

loss in the future,” the model “predicted high probability of complete extinction . . . by 2100.”

Id. at 793 (emphasis added). “Most” of the projected decline was “driven by habitat loss rates

that were input into each scenario.” Id. at 794.

After completing the SSA, the FWS proposed listing the eastern black rail as

“threatened” under the ESA.

. The FWS “determined that habitat loss and

destruction, sea level rise and tidal flooding, incompatible land management, and increasing

storm intensity and frequency are the primary threats to this subspecies,” and that these threats

were sufficiently severe to warrant listing under § 1533. Id. But the proposed rule explained

that, notwithstanding the risk posed by habitat loss, the FWS “determined that designation of

critical habitat for the eastern black rail is not prudent.” Id. The FWS reasoned that because

10 designating critical habitat requires “the publication of maps,” a designation “would more widely

announce the exact location of eastern black rails (and highly suitable habitat) to overzealous

birders and further facilitate disturbance.” Id. at 50627.

According to the proposed rule, the FWS based its “not prudent” determination on

(a)(1)(i), see

which, as noted above, provides that the designation of a critical

habitat is not prudent when “[t]he species is threatened by taking or other human activity and

identification of critical habitat can be expected to increase the degree of such threat to the

species.” The FWS concluded that, under that regulatory provision, “[a] finding that designating

critical habitat is likely to increase the threat of disturbance to the subspecies provides a

sufficient basis for making a not-prudent finding,” and the FWS is “not require[d] also [to]

determine that designating critical habitat would not be beneficial to the subspecies.”

. In other words, the FWS read § 424.12(a)(1)(i) to permit it to make a “not prudent”

determination whenever the designation of a critical habitat is likely to increase human activity

that may disturb the subspecies, even when the benefits of designation vastly outweigh the

damage caused by that increased activity.

The FWS published its final rule in 2020, listing the eastern black rail as a threatened

species under the ESA. 85 Fed. Reg. at 63764. The final rule also adhered to the FWS’s

proposal to not designate any critical habitat, despite comments it received in opposition. Id. In

response to those comments, the final rule “recognize[d] that designation of critical habitat can

provide benefits to listed species,” and it did “not dispute the arguments of the commenters who

suggested that birders may have enough information to be able to locate eastern black rail

populations, particularly given the use of social media.” Id. at 63780. But the agency,

nonetheless, asserted its view that the “increased threats caused by designation” of critical habitat

11 for the eastern black rail “outweigh the benefits,” because designation “would more widely

publicize [the] known occupied locations of the” subspecies. Id. The sole support and analysis

the FWS offered, however, consisted of a citation to the proposed rule’s “discussion” regarding

overzealous birders. Id. Beyond that limited discussion, the FWS merely stated that it “did not

receive any substantive comments, or any comments that would require [the FWS] to change the

not prudent determination or [the] rationale for it.” Id. at 63802 (citing 83 Fed. Reg. at 50627–

28).

The FWS accordingly concluded that “designation of critical habitat is not prudent, in

accordance with 50 C.F.R. 424.12(a)(1), because the eastern black rail and its habitat face a

threat by overzealous birders, and designation can reasonably be expected to increase the degree

of these threats to the subspecies and its habitat by making location information more readily

available.” Id.

D. Procedural Background

Plaintiffs filed this suit against the FWS, challenging both the listing of the eastern black

rail as a threatened species (rather than endangered) and its determination that designation of

critical habitat is not prudent. Dkt. 11 at 1–2 (Am. Compl. ¶ 1). The FWS filed a motion for

partial voluntary remand without vacatur regarding the listing determination to permit the agency

to reconsider and to explain further its listing decision, Dkt. 21, which the Court granted, Dkt.

26. As a result, the only issue before the Court is Plaintiffs’ challenge to the FWS’s decision not

to designate critical habitat. The parties cross-move for summary judgment. Dkts. 33, 35.

II. LEGAL STANDARD

Plaintiffs’ claims arise under the ESA, but because “the ESA does not specify a standard

of review, judicial review is governed by [§] 706 of the [APA].” Gerber v. Norton,

, 178 n.4 (D.C. Cir. 2002) (citation omitted).1 Under that section, a reviewing court shall

“hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law,” or decisions made

“without observance of procedure required by law.”

(2)(A), (D).

In the unique context of review under the APA, the district court “sit[s] as an appellate

tribunal,” Marshall Cnty. Health Care Auth. v. Shalala,

(D.C. Cir. 1993), to

decide “as a matter of law [whether] the agency action is supported by the administrative record

and is otherwise consistent with the APA standard of review,” Coal. for Common Sense in Gov’t

Procurement v. United States,

(D.D.C. 2011). Where a party

challenges an agency’s interpretation of a statute, the Court must decide “all relevant questions

of law” de novo, “exercising independent judgment in determining the meaning of statutory

provisions.” Loper Bright Enters. v. Raimondo,

, 2262, 2272 (2024) (quoting

). In doing so, the Court must “apply[] all relevant interpretive tools” to reach “the

best reading of the statute.”

.

III. ANALYSIS

A. Standing

Although the FWS does not contest Plaintiffs’ standing, the Court has an independent

duty to ensure that it has jurisdiction over each claim before turning to the merits. See Maalouf

v. Islamic Rep. of Iran,

(D.C. Cir. 2019). Plaintiffs must meet the three

1 Plaintiffs also allege, in the alternative, that the FWS violated the APA. Dkt. 11 at 24 (Am. Compl. ¶ 125). But “the APA by its terms independently authorizes review only when ‘there is no other adequate remedy in a court,’” Bennett v. Spear,

, 161–62 (1997) (quoting

), and “[h]ere, the ESA’s citizen-suit provision provides an adequate remedy,” Conservation L. Found. v. Ross,

, 16 (D.D.C. 2019) (cleaned up). Thus, although APA precedent provides the standard of review, the Court will not separately address Plaintiffs’ APA claims.

13 elements of the “irreducible constitutional minimum of standing”—that is, they must “show

(1) an injury in fact that is ‘concrete and particularized’ and ‘actual or imminent’; (2) that the

injury is fairly traceable to the defendant’s challenged conduct; and (3) that the injury is likely to

be redressed by a favorable decision.” Am. Soc. for Prevention of Cruelty to Animals v. Feld

Ent., Inc.,

(D.C. Cir. 2011) (quoting Lujan v. Defs. of Wildlife,

,

560–61 (1992)). Although an association may rely on either organizational or associational

standing, Plaintiffs appear to rely only on associational standing. See Dkt. 33 at 25 n.2. To

establish associational standing to sue under Article III, a plaintiff-association must demonstrate

that “(1) at least one of its members would have standing to sue in his own right; (2) the interest

it seeks to protect is germane to its purpose; and (3) neither the claim asserted nor the relief

requested requires the member to participate in the lawsuit.” Ctr. for Biological Diversity v.

EPA,

(D.C. Cir. 2017) (internal quotation marks and citation omitted).

Here, the second and third requirements for associational standing are easily satisfied.

With respect to the second requirement, Plaintiff Center for Biological Diversity is a non-profit

organization “dedicated to the protection of native species and their habitats through science,

policy, and environmental law,” see Dkt. 11 at 5 (Am. Compl. ¶ 20), and Plaintiff Healthy Gulf

is a non-profit organization “committed to protecting and restoring the national resources of the

Gulf of Mexico Region, including protecting the eastern black rail and its habitat,” id. at 6 (Am.

Compl. ¶ 21). The interest at stake in the litigation—the designation of critical habitat for the

eastern black rail—is germane to Plaintiffs’ missions. And, with respect to the third

requirement, the claims at issue do not demand the participation of any member of the

organizations. The relief Plaintiffs seek—an order declaring the agency action unlawful and

vacating that action—does not differentiate between their members.

14 The Court also concludes that the first requirement is satisfied because at least one

member of the organizational Plaintiffs would have standing to sue in his or her own right. As

the D.C. Circuit has observed, injury to “an aesthetic interest in the observation of animals”

resulting from “government action that allegedly threatened to diminish the overall supply of an

animal species” is generally sufficient to establish standing. Animal Legal Def. Fund, Inc. v.

Glickman,

(D.C. Cir. 1998). “[T]he causation requirement for constitutional

standing is met when a plaintiff demonstrates that the challenged agency action authorizes the

conduct that allegedly caused the plaintiff’s injuries,” and plausibly alleges that the agency

action was unlawful.

. And a court order vacating the challenged action (or remanding

the case to the agency for further consideration of that action) will generally redress the alleged

injury. See id.; Lujan,

n.7.

Both Plaintiffs in this case have members who are suffering, and will continue to suffer,

an injury-in-fact from the decline of the eastern black rail. Many of Plaintiffs’ members “live

near and/or visit areas in and around areas where the eastern black rail was historically present

and are currently present, and who have professional, spiritual, aesthetic, scientific, and

recreational interests in the conservation and recovery of the eastern black rail and its habitat.”

Dkt. 11 at 6 (Am. Compl. ¶ 23). These allegations are supported by declarations from three

individual members of the organizational Plaintiffs, which establish that those members have

such interests in the continued existence of the subspecies in the wild and the conservation of its

habitat. See Dkt. 33-1 at 2–4 (Allaire Decl. ¶¶ 3–7, 11–13); Dkt. 33-2 at 2, 4–5 (Hartl Decl. ¶¶ 5,

11, 13); Dkt. 33-3 at 2–4 (LaSalle Decl. ¶¶ 6, 9, 12–14). Plaintiffs also plausibly allege that the

FWS’s failure to designate critical habitat for the eastern black rail has caused, and will continue

to cause, their members to suffer redressable injuries. In making that assessment, the Court must

15 “accept as valid the merits of [the plaintiff’s] legal claims,” FEC v. Cruz,

, 298

(2022), so the Court must assume for present purposes that the FWS’s critical habitat

determination was unlawful. Against that backdrop, Plaintiffs plausibly allege that the FWS’s

action has decreased, and will continue to decrease, the eastern black rail’s chances of survival

and recovery.

One of Plaintiffs’ members holds a Ph.D. in zoology with an emphasis on wetland

ecology. Dkt. 33-3 at 2 (LaSalle Decl. ¶ 5). He explains that the eastern black rail’s habitat in

his home state—“high marsh and salt flats within the tidal system”—is “under threat,” and

absent protection for those areas, “the eastern black rail populations will continue to decline at

alarming rates.” Id. at 4 (LaSalle Decl. ¶¶ 11, 15). He further attests that he has and “will

continue to visit areas where eastern black rails have been reported” in the course of his

“continuing efforts to document them and associat[ed] species, as part of [his] inventory

activities.” Id. (LaSalle Decl. ¶ 12); see also id. at 2 (LaSalle Decl. ¶ 6) (“I use and have used

such habitats recreationally and professionally. I have visited areas presently occupied by the

eastern black rail on many occasions and plan to again in the near future.”).

Another member attests that he personally derives scientific and professional “benefits

from the continued existence of the eastern black rail”; that he has seen the bird “in its natural

habitat on [his] property twice in the last three weeks”; that he has visited a sanctuary in the hope

of hearing or seeing “an eastern black rail” and plans to visit the sanctuary “on a monthly basis

during the spring neo-tropical bird migration this year”; that “[i]f the [FWS] does not designate

critical habitat, the eastern black rail populations will continue to decline,” which will “lessen

[his] opportunities . . . to hear or observe this subspecies in the wild”; and that his “professional,

aesthetic, spiritual, and recreational interests in the eastern black rail’s existence in the wild are

16 substantially injured by denial of critical habitat protections for the eastern black rail.” Dkt. 33-1

at 2–4 (Allaire Decl. ¶¶ 4–6, 10, 12–13).

And yet a third member attests that he is an avid birder and amateur naturalist, who has

“traveled around the world” and spent “hundreds of hours every year” observing as many species

of birds as possible. Dkt. 33-2 at 2–3 (Hartl Decl. ¶¶ 5, 7). He has taken several trips, in

particular, “to attempt to view . . . eastern Black Rail in eastern Maryland in and around

Blackwater National Wildlife Refuge,” id. at 4 (Hartl Decl. ¶ 11), and in California and Arizona

along the Colorado River, id. (Hartl Decl. ¶ 12). He also visited Texas in 2019 “to observe birds

including the Black Rail,” and, “[m]ost recently, [he] spent several days along the Texas coast

near Mustang Island State Park in April 2024, and again tried to view a Black Rail,” and he plans

on continuing his efforts “to view Black Rails in the future.” Id. at 5 (Hartl Decl. ¶ 13). He

further attests that he has “been and continue[s] to be injured by the Fish and Wildlife Service’s

failure to fully protect the Black Rail by designating critical habitat for the species,” because this

failure has diminished his “chances of seeing Black Rail.” Id. at 7 (Hartl Decl. ¶ 18).

These members’ injuries are cognizable under settled D.C. Circuit precedent, see

Glickman,

, and they are redressable, because an order vacating and remanding

the FWS’s decision could cause it to reverse course and extend protection to eastern black rail

habitat, see Lujan,

n.7. The Court, accordingly, concludes that Plaintiffs have

met their burden of establishing standing to sue.

B. ESA Claim

Plaintiffs challenge the FWS’s “not prudent” determination as inconsistent with the

agency’s obligations under the ESA. They contend that the ESA requires the FWS to consider

the benefits of critical habitat designation and to weigh those benefits against any costs before

concluding that designation would be “not prudent,” and they contend that the FWS never 17 engaged in this required analysis before making the “not prudent” determination in this case.

This error, Plaintiffs posit, is all the more alarming (and irrational) given that the FWS identified

habitat loss—rather than “birders”—as the primary driver of the subspecies’ decline.

In response, the FWS argues that the ESA does “not require[] [it] to weigh benefits when

making its ‘not prudent’ determination,” and that, in any event, the FWS “considered” the

benefits in its proposed and final rules. Dkt. 42 at 12–13. The Court will address each argument

in turn.

1. Weighing the Benefits of Designation

Plaintiffs first maintain that the FWS’s “not prudent” determination was based on a

misreading of the ESA. On Plaintiffs’ reading of the statute, the FWS must make certain

findings under § 1533(b)(2) before it can invoke the “not prudent” exception under § 1533(a)(3).

Dkt. 33 at 40. Plaintiffs interpret subsection (b)(2) as requiring the FWS to weigh the pros and

cons of designating critical habitat: FWS must first “determine[]” whether designation would

benefit a listed species.

(b)(2). If so, it must then weigh those benefits against

the benefits of not designating critical habitat, taking biological and non-biological factors into

consideration. If (and only if) the benefits of not designating outweigh the benefits of

designating, “may” the FWS decline to designate critical habitat.

The FWS disagrees, asserting that the pros-and-cons analysis set forth in subsection

(b)(2) is “inapplicable” to its “not prudent” determination under subsection (a)(3). Dkt. 42 at 10.

According to the FWS, subsection (b)(2) “only applies when the Service first determines that

designating critical habitat is prudent [under subsection (a)(3)] and then exercises its discretion

to exclude specific areas from that critical habitat designation.”

(emphasis in original). As

support for this interpretation, the FWS observes that subsection (b)(2) permits the FWS to

18 “exclude any area” from critical habitat after weighing the pros and cons of doing so. The FWS

reasons that, because it “did not designate critical habitat at all” for the eastern black rail (as

opposed to excluding only “specific areas”), the balancing requirement in subsection (b)(2)

“do[es] not apply.” Dkt. 35-1 at 30 n.13 (emphasis added). With subsection (b)(2) out of the

way, the FWS then interprets its implementing regulations as providing the agency with

authority to decline to designate any critical habitat so long as it finds that designation would

increase a threat (here, the threat posed by birders) to the species. Dkt. 42 at 9–10. In the FWS’s

view, then, “[n]either the statute nor the implementing regulations require the Service to weigh

the benefits of designating critical habitat”; the agency may decline to designate critical habitat

as “not prudent” without making any finding whatsoever regarding whether doing so would, on

balance, help or hurt the species.

.

The FWS’s position is at odds with both the text and structure of the ESA. To start, the

FWS’s reading of the statute disregards the statutory text that expressly ties the subsection (a)(3)

designation determination to the subsection (b)(2) balancing requirement. In a show of

legislative emphasis, the text cross-references subsection (b)(2) in subsection (a)(3)(A)—

requiring the FWS to make the critical habitat designation “in accordance with subsection (b)”—

and, then, cross-references subsection (a)(3) in subsection (b)(2)—requiring the FWS to

“designate critical habitat, and [to] make revisions thereto, under subsection (a)(3) on the basis of

the” criteria specified in subsection (b)(2). See

(a)(3), (b)(2). If that were not

enough, the FWS’s theory—that the balancing required under subsection (b)(2) applies before it

can exclude “any” critical habitat but does not apply where it decides to exclude “all” critical

habitat, Dkt. 35-1 at 30 n.13—is also unmoored from the plain meaning of the word “any.” If a

child needs to eat her vegetables before taking “any” cookies, surely, she also needs to do so

19 before taking “all” the cookies. Likewise, because subsection (b)(2) requires the FWS to weigh

the relevant benefits (including the benefits of designation) before excluding “any area from

critical habitat,” 16 U.S.C § 1533(b)(2) (emphasis added), it also requires the FWS to weigh

those same benefits before excluding all areas from critical habitat.

Nor does the FWS’s reading of the statute give meaning to the requirement that the

Secretary designate critical habitat to “the maximum extent prudent.” Id. § 1533(a)(3)(A). The

word “prudent” connotes “sound judgment,” “cautio[n],” and far-sighted[-ness].” Prudent,

Oxford English Dictionary 1382 (2007). Read in context, this means that the FWS “shall”

designate critical habitat to the “maximum extent” that it can do so, consistent with sound

judgment, caution, and foresight. It is difficult to fathom how the agency could possibly act in

that considered manner, or how it could possibly satisfy the “maximum extent” requirement,

without considering the net benefits of making a designation. Yet, on the agency’s telling, the

Secretary can—and should—decline to make a critical habitat designation if doing so carries

with it any downside, even if the upside of making the designation outweighs the downside by a

factor or two, ten, or hundred. Or, to put it more concretely, under the FWS’s reading of the

statute, the Secretary should decline to designate a critical habitat if doing so will likely result in

the loss of a single bird due to overzealous birders, even if the designation will also likely save a

hundred birds by protecting essential habitat. Although one might reasonably question whether

Congress could possibly have intended such a bizarre result, a far a simpler answer is available:

the ESA “means what it says,” Banks v. Booth,

(D.C. Cir. 2021), and the statute

says that the FWS “shall” designate critical habitat “to the maximum extent prudent” and may

exclude “any”—or “all”—“area from critical habitat [only] if [it] determines that the benefits of

such exclusion outweigh the benefits of” making the designation, see Nat. Res. Def. Council v.

20 U.S. Dep’t of the Interior,

, 1125 (9th Cir. 1997) (holding that subsection (b)(2)

requires the FWS to “balance the pros and cons of designation” before making “not prudent”

determinations under subsection (a)(3)).

Finally, not only is the FWS’s argument at odds with the text and common sense, but it

also violates the cardinal rule that Congress “does not . . . hide elephants in mouseholes.”

Whitman v. Am. Trucking Ass’ns,

(2001). In subsection (b)(2), Congress

precisely delineated “the basis” upon which the FWS must designate (or may decline to

designate) critical habitat. A designation “shall” be based on “the best scientific data available,”

and the FWS must consider economic, national security, and other relevant impacts.

(b)(2). Subsection (b)(2) then starts with the presumption that the FWS will designate

critical habitat; it “may” decline to do so if, and only if, it “determines that the benefits of such

exclusion outweigh the benefits of [designation].”

In other words, designation is the rule,

and the FWS may forgo a designation, in whole or in part, only after making these findings. See

Bennett v. Spear,

(1997) (holding that subsection (b)(2) sets forth “required

procedures of decisionmaking” with respect to critical habitat designations). Yet the

interpretation the FWS presses here—“first” deciding whether designation is “prudent” under

subsection (a)(3) and, if so, “then” weighing the benefits under subsection (b)(2), Dkt. 42 at 10

(emphasis in original)—would upend this scheme. The FWS could “first” decide—

unconstrained by any meaningful statutory standard—to exclude all critical habitat, thereby

avoiding the pros-and-cons analysis required by subsection (b)(2). The FWS offers no reason to

infer that, by including the word “prudent” in subsection (a)(3), Congress “alter[ed] the

fundamental details” of this analysis and gave the FWS sweeping discretion to decline to

21 designate critical habitat, even when the designation would help preserve or restore the

threatened or endangered species. Whitman,

.

The Court, accordingly, concludes that the ESA requires the FWS to identify the benefits

of designation to the species before deciding to exclude any or all areas of the species’ critical

habitat.2

2. “Not Prudent” Determination

The FWS argues, in the alternative, that it did weigh the benefits of designation for the

eastern black rail. Dkt. 35-1 at 30. This contention, however, is belied by the record. There is

no evidence that the FWS meaningfully weighed the benefits of designation in accordance with

subsection (b)(2). After cataloguing the threats to the eastern black rail’s habitat at length, the

proposed rule contains no discussion of whether or to what extent the birds would benefit from a

critical habitat designation, and it concludes by expressly disclaiming the FWS’s obligation to

make such a determination prior to excluding all critical habitat. See 83 Fed. Reg. at 50628. In

the words of the proposed rule:

Under our regulations at 50 C.F.R. 424.12(a)(1)(i), th[e] finding that designating critical habitat is likely to increase the threat of disturbance [i.e., human activity, such as birding] to the subspecies provides a sufficient basis for making a non- prudent finding. As demonstrated by the use of the word “or” in 50 C.F.R.

2 The Court notes that the FWS relied in part on its regulations when it declined to designate critical habitat, see 83 Fed. Reg. at 50628, and, as explained below, the Court concludes that its decision violated the ESA. Although courts typically “defer to an agency’s interpretation of its own regulation,” Doe v. SEC,

(D.C. Cir. 2022), regulations must be interpreted as “consistent with the statute under which they are promulgated,” Decker v. Nw. Env’t Def. Ctr.,

(2013) (citation omitted). To the extent the FWS interpreted its regulation as authorizing it to withhold critical habitat designation for the eastern black rail merely because the designation could increase the threat to the subspecies caused by birders, and regardless of whether the designation would yield a net benefit to the subspecies, that interpretation is inconsistent with the ESA and must be set aside. See Loper Bright Enters., 144 S. Ct. at 2262, 2272. But because the FWS’s statutory violation is sufficient to require vacatur and remand, the Court need not resolve the meaning of the regulation or whether it is valid as written.

22 424(a) between subsections (1)(i) and (i)(ii), the regulations do not require that we . . . determine that designating critical habitat would not be beneficial to the subspecies.

Id. (emphasis added). That is the entirety of the discussion of “Benefits to the Subspecies from

Critical Habitat Designation” found in the proposed rule. Id.

Following publication of the proposed rule, the FWS received some comments in

opposition to its proposed “not prudent” determination. The National Audubon Society, for

example, commented that “habitat loss” was the primary cause of the birds’ decline, and “the

benefit [of] critical habitat designation far outweighs the risks from disturbance” from birders.

Dkt. 43 at 591–92. The FWS concedes as much, moreover, in its motion for summary judgment

in the present proceeding. Dkt. 35-1 at 28 (“[T]he Service identified the primary stressors

anticipated to affect the subspecies: habitat loss, sea-level rise, groundwater loss, and

incompatible land-management practices[.]”). Yet in response to these comments, the final rule

merely cited to the proposed rule’s “discussion,” 85 Fed. Reg. at 63780, and stated, in conclusory

terms, that “designation of critical habitat can provide benefits to listed species” but that, “for the

eastern black rail, increased threats caused by designation outweigh the benefits,” Dkt. 35-1 at

31. Neither the proposed nor the final rule, however, contains even a single sentence analyzing

this question. Nor is there any plausible basis to infer on this bare record that the risk caused by

birders, which is not listed as a “primary stressor” outweighs habitat loss, which is listed first

among the “primary stressors.”

The FWS maintains that because it “requested comments” on the topic and responded in

the manner quoted above, its discussion was “more than sufficient” to show that it considered the

benefits, and that it accordingly was entitled to exclude all critical habitat. Dkt. 35-1 at 30–31.

The Court is unpersuaded. “When a statute requires an agency to make a finding as a

23 prerequisite to action, it must do so,” and merely “‘[s]tating that a factor was considered’—or

found—‘is not a substitute for considering’ or finding it.” Gerber v. Norton,

(D.C. Cir. 2002) (quoting Getty v. Fed. Sav. & Loan Ins. Corp.,

(D.C. Cir.

1986)); see Getty,

(holding that “fleeting references” to statutory factors were

insufficient to show that agency “consider[ed]” those factors). Nor may an agency “delegate” its

obligation to consider certain issues or make certain findings to commenters. Cf. Gerber,

. Here, there is no evidence that the FWS ever considered whether critical habitat

designation would provide a net benefit to the eastern black rail. FWS’s conclusory assertion

that designation “can provide benefits to listed species” but that any benefits to the eastern black

rail were “outweigh[ed]” is far from sufficient. 85 Fed. Reg. at 63780; see Getty,

. To be sure, the FWS noted that birders were cause for “concern,” 83 Fed. Reg. at 50616,

but the FWS never suggested that birders are driving the eastern black rail to extinction, nor do

the cited incidents of “human disturbance” show that birders cause harm that is in any way

comparable to the magnitude of harm caused by habitat loss. See

. In any

event, a finding that critical habitat designation could “increase the degree” of one type of threat,

, is not the same as a finding that designation would provide no net benefits.

As explained above, the ESA requires the FWS to designate critical habitat “concurrently

with making a determination” to list a species or subspecies.

(a)(3)(A)(i). It

“may” decline to do so if it finds that the costs outweigh the benefits, rendering the designation

imprudent.

§ 1533(a)(3)(A), (b)(2). Because the FWS excluded all critical habitat without

making any findings as to whether the eastern black rail would benefit from designation, and

without offering any reasoned basis for its decision, the FWS “ignore[d] the required procedures

of decisionmaking” under subsection (b)(2). Bennett,

.

24 The Court, accordingly, concludes that the FWS’s “not prudent” determination violated

the statute.

3. Remedy

Having determined that the FWS relied on a misinterpretation of the ESA and that it

failed to adhere to the statute’s procedures for reasoned decisionmaking, the Court is left with the

question of the appropriate remedy. Plaintiffs aver that the FWS’s ultimate decision was

unsupported by the record, see Dkt. 11 at 23 (Am. Compl. ¶¶ 116–121), and so Plaintiffs ask the

Court to direct the Service to propose and finalize a designation of critical habitat, Dkt. 33 at 43.

In light of the procedural nature of the FWS’s errors, however, the Court concludes that the

appropriate remedy is to vacate and remand the FWS’s decision for further proceedings. See

Gerber,

. The FWS must apply the ESA consistent with this opinion, but the

Court will not direct the FWS to reach any particular conclusion on remand.

CONCLUSION

For the foregoing reasons, the Court will GRANT Plaintiffs’ motion for summary

judgment, Dkt. 33, and the Court will DENY the FWS’s cross-motion for summary judgment,

Dkt. 35. The FWS’s decision to not designate critical habitat for the eastern black rail will be

VACATED and REMANDED for further proceedings consistent with this decision.

A separate order shall issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: July 11, 2025

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