San Francisco Baykeeper v. United States Fish And Wildlife Service

Background

San Francisco Baykeeper sued the United States Fish and Wildlife Service, Martha Williams in her official capacity, and Debra Haaland in her official capacity. Baykeeper alleged under the Administrative Procedure Act that the Service acted arbitrarily and capriciously when it found that listing the San Francisco Bay-Delta distinct population segment of the Longfin Smelt as threatened or endangered was warranted but precluded by higher-priority listing actions, and when it found that the Service was making expeditious progress on adding and removing species from the endangered and threatened species lists.

Baykeeper sought declarations that those findings were unlawful, an order setting them aside and remanding them, an order requiring a final listing rule by a date certain, and costs and fees. The opinion states that Baykeeper sent notice of its intent to sue on March 8, 2021, and filed its complaint on April 8, 2021.

Motion to Intervene

Westlands Water District moved to intervene as a defendant under Federal Rule of Civil Procedure 24. It asserted contractual rights to approximately 1,195,000 acre-feet of water per year from facilities of the federal Central Valley Project. Westlands argued that those rights could be harmed if the Longfin Smelt population were listed under the Endangered Species Act. It sought intervention both as of right and, alternatively, by permission.

The court denied intervention as of right. Although the court accepted that Westlands’ water rights were legally cognizable and that its motion was timely, it found that Baykeeper was not asking the court to reallocate Westlands’ water or to order the Service to list the Longfin Smelt population. The requested relief therefore was not sufficiently connected to Westlands’ rights to create a significantly protectable interest in this case. The court also noted that Westlands could protect its interests through the Endangered Species Act’s notice-and-review process and federal rulemaking procedures if the Service issued a proposed rule.

The court also denied permissive intervention. Even assuming Westlands satisfied the requirements of a common legal or factual question and timeliness, the court found that Westlands had not shown that the federal defendants were unable or unwilling to present the relevant arguments or that Westlands would add something necessary to deciding the case.

Motion to Dismiss

The federal defendants moved to dismiss under Rule 12(b)(1), which allows dismissal when the court lacks subject-matter jurisdiction. They argued that Baykeeper’s claims challenged mandatory duties under the Endangered Species Act and therefore were subject to the Act’s citizen-suit provision. That provision requires at least 60 days’ written notice before filing a suit alleging failure to perform a nondiscretionary act or duty. The federal defendants argued that Baykeeper’s notice came only 23 days before the complaint and that the failure to give 60 days’ notice deprived the court of jurisdiction.

Baykeeper did not dispute that it gave less than 60 days’ notice. It argued, however, that its claims challenged the substance and reasoning of the Service’s “warranted-but-precluded” and “expeditious progress” findings, rather than a failure to perform a nondiscretionary duty or follow a mandatory procedure. Baykeeper contended that the Administrative Procedure Act provided the applicable route for review.

The court agreed with Baykeeper for purposes of the jurisdictional motion. It explained that the citizen-suit notice requirement applies when the challenged duties are mandatory, while it does not apply when the duties are discretionary. The court concluded that Baykeeper was challenging discretionary administrative determinations: whether other listing actions actually precluded listing the Longfin Smelt population and whether the Service was making expeditious progress on other listings.

The court rejected the federal defendants’ reliance on several mandatory Endangered Species Act provisions. It found that the requirement to use the best scientific and commercial data applied to determinations about whether a species is endangered or threatened, not to the separate administrative finding that listing was precluded. The court also found that Baykeeper was not challenging the Service’s failure to meet the Act’s 12-month deadline, publish the findings, describe and evaluate the supporting reasons and data, or reevaluate the findings annually. Instead, Baykeeper challenged the reasons and evidence supporting the published findings.

The court also found that a cited Ninth Circuit decision did not establish that the disputed findings were based on nondiscretionary duties. According to the court, that decision addressed a failure to provide required explanations, while this case challenged the adequacy and rationality of the explanations that the Service actually published.

Disposition

The court denied the federal defendants’ motion to dismiss and denied Westlands Water District’s motion to intervene. The opinion did not decide whether the Service’s Longfin Smelt findings were ultimately arbitrary or capricious; it addressed only intervention and the jurisdictional notice argument. Chief Magistrate Judge Joseph C. Spero signed the order.