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Desert Survivors v. U.S. Department of Interior

United States District Court, N.D. California

July 15, 2016

DESERT SURVIVORS, et al., Plaintiffs,




         Plaintiffs Desert Survivors, Center for Biological Diversity, WildEarth Guardians, and Western Watersheds Project (collectively ''Plaintiffs'') brought the instant action seeking to protect the Bi-State Sage-Grouse (''BSSG''), a large bird found on the border between California and Nevada. In the Complaint, Plaintiffs allege that Defendants Department of Interior of the United States and United States Fish and Wildlife Service (''Service'') (collectively ''Defendants'') improperly withdrew a proposed rule (the ''Withdrawal'') that the BSSG be listed as a threatened species under the Endangered Species Act (''ESA''), 16 U.S.C. §§ 1531-1534, and seek an order directing the Service to reconsider listing the BSSG as threatened under the ESA.

         Presently before the Court is Defendants‘ Motion to Transfer Venue (''Motion''). In the Motion, Defendants ask the Court to transfer venue from the Northern District of California to the Eastern District of California. A hearing on the motion was held at 9:30 a.m. on July 15, 2016. For the reasons stated below, the Motion is DENIED.[1]


         A. Factual Background

         Sage-grouse are large birds known for their elaborate mating ritual that live in sagebrush habitats. Complaint for Declaratory and Injunctive Relief (''Compl., '' dkt. 1) ¶ 38. The Bi-State Sage-Grouse is a distinct population of greater sage-grouse species that live in the ''far southwestern reach of the greater sage-grouse‘s range'' in the central border region of eastern California and western Nevada. Id. ¶ 40 (citing 80 Fed. Reg. 22, 828, 22829). The BSSG has suffered from habitat and population loss for many years. Id. ¶ 45 (citing 80 Fed. Reg. at 22, 831). The BSSG‘s ''small population size and isolation, coupled with stressors caused by human activities, threaten the population‘s long-term survival.'' Compl. ¶ 43 (citing U.S. Fish and Wildlife Service, Species Status Assessment: Bi-State Distinct Population Segment of Greater Sage-Grouse at 6 (Mar. 1, 2015)).

         B. Related Litigation and Agency Action

         Environmental groups have been advocating and petitioning the Service for the protection of the BSSG for more than a decade.

         In 2002, the Institute for Wildlife Protection petitioned the Service to emergency list sage grouse found in the Mono County, California and Lyon Count, Nevada (the animals who later became known as the BSSG) as an endangered distinct population segment of the greater sage-grouse. See Compl. ¶ 49; 71 Fed. Reg. 76, 058. Later that year, the Service found that the petition lacked ''substantial scientific or commercial information'' that the listing was not warranted based on the lack of information about whether these sage-grouse were a distinct population segment and whether they were faced with extinction. 71 Fed. Reg. at 76, 058-59. Entities must be a distinct population segment in order to be listed under the ESA. Id. In November 2005, the petitioners filed suit in the Western District of Washington challenging the Service‘s finding that listing was not warranted. Id.

         Also in November 2005, a set of environmental groups petitioned the Service to list the BSSG as threatened or endangered. See Compl. ¶ 49; 71 Fed. Reg. at 76, 059. The petitioning groups were the Center for Biological Diversity (CBD), the Western Watersheds Project, the Sagebrush Sea Campaign, and Christians Caring for Conservation.[2] 71 Fed. Reg. at 76, 059. In March 2006, the Service responded to the petition with a letter indicating that it reviewed the petition and the listing was not necessary. Id. The Service further informed the petitioners that because of ''court orders and settlement agreements for other listing and critical habitat actions'' the Service was unable to further address the petition. Id. In April 2006, the petitioning environmental groups sent the Service a notice of their ''intent to sue the Service for violating the Act's requirement to make a petition finding within 12 months after receiving a petition.'' Id.

         The Service settled both of these matters in an April 2006 settlement agreement where the Service agreed to evaluate the November 2005 petition, re-evaluate the 2002 petition, and publish a finding on the petitions in December 2006. Id. The Service did so and found that the petitions ''did not provide sufficient information to show that the population may warrant listing.'' Compl. ¶ 49 (citing 71 Fed. Reg. 76, 058).

         In 2007, the CBD, the Sagebrush Sea Campaign, Western Watersheds Project, and Desert Survivors brought an action in this Court challenging the Service‘s 2006 finding. See Compl. ¶ 49 (citing Ctr. for Biological Diversity v. U.S. Fish and Wildlife Serv., Case 3:07-cv-04347(JCS) (N.D. Cal.), dkt. 25)). The parties reached a settlement in 2008 when the Service agreed to review the petition again and ''found that the [BSSG] could warrant listing, and issued multiple findings on species‘ status.'' Id. (citing 78 Fed. Reg. 64, 358, 64, 360). This settlement resulted in a May 2010 finding by the Service that the BSSG was suitable for listing under the ESA but its listing was ''precluded by higher listing priorities.'' Id. ¶ 50 (citing 78 Fed. Reg. at 64, 360).

         In a 2011 settlement in a consolidated case with WildEarth Guardians and other groups in the District of Columbia, the Service agreed to publish proposed rules for protection or findings that protection was not warranted for the 251 species that were candidates for protection under the ESA in 2010. 78 Fed. Reg. at 64, 361.

         As a direct result of that settlement agreement and developing from prior petitions to protect the BSSG, in October 2013 the Service issued a Proposed Rule to list the BSSG as threatened under the ESA. See Compl. ¶ 52; 78 Fed. Reg. at 64, 361. In conjunction with the Proposed Rule, the Service proposed designating 1.8 million acres of land as critical habitat for the BSSG. Id. (citing 78 Fed. Reg. at 64, 328).

         In April 2015, the Service withdrew the proposed rule to list the BSSG on the basis that ongoing conservation efforts had reduced the threats to the BSSG. Compl. ¶ 59 (citing 80 Fed. Reg. 22, 828).

         C. The Complaint

         In response to the withdrawal of the proposed rule, Plaintiffs initiated this action in the Northern District of California alleging that the Service (1) ''failed to properly apply the ESA‘s listing factors, failed to adhere to the best available science, and failed to adequately explain why it withdrew the proposed rule;'' (2) ''violated the ESA in adopting [and misapplying] the Significant Portion of its Range Policy;'' and (3) ''violated the ESA by misapplying the Service‘s Policy on the Evaluation of Conservation Efforts (PECE Policy).'' Compl. ¶¶ 80, 83-84, 87 (internal citations and quotation marks omitted).

         Claim One is brought under the ESA and the Administrative Procedure Act (''APA'') § 706(2)(A) based on the theory that the Withdrawal was ''arbitrary [and] capricious'' because the Service failed to adhere to the best available science, improperly defined the foreseeable future, improperly interpreted population models, concluded that existing regulations adequately protect the BSSG on federal land, concluded that existing regulations will sufficiently conserve the BSSG, and failed to adhere to the best available science regarding threats to the BSSG. Compl. ¶ 80(a)- (f).

         Claim Two is brought under the ESA and APA § 706(2)(A), alleging that the Service‘s adoption of the Significant Portion of its Range Policy (SPOR) is arbitrary and capricious. Compl. ¶ 85. The Service is required to list to a species ''if it is endangered or threatened throughout 'all or a significant portion of its range.‘'' Compl. ¶ 20 (citing 16 U.S.C. §§ 1532(6), 1532(20), 1532(a)-(b)). SPOR interprets the phrase ''significant portion of its range'' and provides that an entire species will be listed if it is found to be threatened or endangered in a significant portion of its range. It also requires that a distinct population segment be listed when it is threatened or endangered within its range. A portion of a range is significant when 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.'' Compl. ¶ 23 (citing 79 Fed. Reg. 37578). Plaintiffs claim that SPOR is arbitrary and capricious because it does not consider the geographic area the species historically inhabited, renders portions of the definitions of ''endangered species'' and ''threatened species'' superfluous, and ''sets such a high threshold'' to invoke SPOR that it cannot protect species that are not otherwise eligible for listing. Id. ¶ 83.

         Claim Three is also brought under the EPA and APA § 706(2)(A) based on the theory that the Service‘s application of the PECE Policy to the BSSG was arbitrary and capricious. Id. ¶ 89. The PECE Policy ''establishes criteria to be applied by the Service in evaluating whether identified, but not yet implemented, conservation efforts can be considered as part of a listing decision.'' Id. ¶ 30. The policy considers the certainty of the implementation and the certainty of effectiveness. Plaintiffs claim that the Service misapplied the nine criteria laid out in the PECE Policy to assess the certainty of the implementation of BSSG conservation efforts. Id. ¶ 87. Plaintiffs also claim that the Service misapplied the six criteria provided by the PECE Policy for evaluating the certainty of effectiveness of BSSG conservation efforts. Id. ¶ 88.

         D. The Parties

         Plaintiffs are four environmental organizations with tens of thousands of members nationwide. Plaintiff Desert Survivors is an ''affiliation of desert lovers'' who are ''committed to experiencing, sharing, and protecting desert wilderness.'' Decl. of Gerald Goss (Dkt. 16-1) at 2. Desert Survivors is headquartered in Oakland and has nearly 400 members in the Northern District of California. Id. Members of Desert Survivors have visited the habitat of the BSSG and intend to do so in the future. Id. at 3.

         Plaintiff Center for Biological Diversity (''CBD'') is a non-profit corporation incorporated in California. Decl. of Roman Czebiniak (Dkt. 16-2) at 2. CBD maintains an office in Oakland which ''acts as a hub for much the legal and programmatic work at CBD'' as well as offices in Humboldt and Marin Counties. Id. at 3; Decl. of Peter Galvin (Dkt. 16-3) at 2. CBD has nearly 48, 000 members nationwide and more than 5, 000 members who live in the Northern District of California. Czebiniak Decl. at 3.

         Plaintiff Western Watersheds Project is a conservation organization headquartered in Idaho. Decl. of Michael Connor (Dkt. 16-4) at 2. It maintains a field office in California. Id. Western Watersheds Project has ...

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