In late October, 2024, the state of Texas filed a lawsuit against the Department of Interior and the United States Fish and Wildlife Service (“FWS”) to challenge the Service’s recent decision to list seven freshwater mussel species as either threatened or endangered under the Endangered Species Act (“ESA”). In its complaint, the plaintiff argues that FWS wrongly listed the mussel species after failing to take into account on-going conservation efforts, provide specificity in what activities constitute take, and to formulate conclusions on the basis of the best available scientific data. Ultimately, the outcome of this case is likely to impact Texas agriculture, as the state argues that the listing decision threatens grazing activity for livestock. However the case is resolved, it is possible that other states may file similar lawsuits in the future to challenge ESA listing decisions that are seen as too vague or that threaten to impact the agricultural industry.
Background
The decision to list the seven species of freshwater mussels at issue in State of Texas v. U.S. Dep’t of Int., 6:24-cv-00081 (N.D. Tex. Oct. 28, 2024) had its genesis in 2007 and 2008 when FWS received two petitions to list hundreds of species in the southwestern United States, including the mussels. By 2011, FWS had concluded that listing each of the mussel species was warranted, but at that point precluded by other higher priority actions. In 2021, FWS finally issued a proposed rule to list the mussel species. Specifically, FWS proposed to list the Guadalupe fatmucket, Texas fatmucket, Guadalupe orb, Texas pimpleback, Balcones spike, and fase spike as endangered species, and the Texas fawnsfoot as threatened. A final rule, officially adding all seven species to the ESA list and designating many miles of Texas rivers as critical habitat was published in June 2024. In its lawsuit challenging the listing decision, the state of Texas argues that FWS violated the ESA in numerous ways and that the decision should therefore be overturned.
Endangered Species Act
The ESA was passed by Congress in 1973 with the express goal of conserving endangered species and the ecosystems on which those species depend. 16 U.S.C. § 1531(b). The statute is jointly administered by the FWS and the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”) which are both responsible for identifying and listing species under the ESA as either threatened or endangered. A species will be listed as threatened if it is “likely to become an endangered species within the foreseeable future” while an endangered listing means the species is “in danger of extinction throughout all or a significant portion of its range[.]” 16 U.S.C. § 1532 (6), (20).
When determining whether to list a species, the Services will consider five separate factors, any one of which could be grounds for a listing decision. Those factors include: the present or threatened destruction, modification, or curtailment of a species’ habitat or range; overutilization of a species for commercial, recreational, scientific, or educational purposes; disease or predation impacting a species; the inadequacy of existing regulatory mechanisms to protect a species; and any other natural or manmade factor affecting a species’ existence. 16 U.S.C. § 1533(a)(1). When reviewing those factors, the ESA specifically directs the Services to take into account all conservation efforts being made to protect the species. In 2003, FWS issued its Policy for Evaluation of Conservation Efforts When Making Listing Decisions (“PECE”). Under that policy, FWS will consider a variety of factors, including the certainty that conservation efforts will be implemented, and the certainty that such efforts will be effective.
Once a species is listed under the ESA, it becomes illegal to “take” any member of that species. Under the ESA, “take” is defined as any attempt to “harass, harm, pursue, hunt, shoot, wound, kill, tramp, capture, or collect” a member of a species. 16 U.S.C. § 1532 (19). “Harm” is further defined as “an act which actually kills or injures wildlife” including any actions which modify or degrade a species’ habitat so that wildlife is killed or injured by “significantly impairing essential behavior patterns, including breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. When a species is listed as endangered, it automatically becomes illegal to take a member of that species. However, when a species is listed as threatened, the ESA gives the Services more leeway to tailor the protection that species receives. While the Services can decide to grant a threatened species the same level of take protection that an endangered species receives, the listing Service can also exempt some activities from qualifying for take of a threatened species. For example, when FWS listed the Dakota blue skipper butterfly as threatened in 2014, it ensured that unintentional take of the butterfly as the result of certain agricultural activities would not count as take of the species. When the Services clarify the level of protection that a threatened species will receive, it is known as a section 4(d) rule.
Finally, under the ESA, the Services are authorized to designate critical habitat for any listed species. “Critical habitat” is defined as “specific geographic areas” that are either occupied at the time of listing and contain all elements that are essential to the conservation of the species, or that are unoccupied at the time of listing but are found to be essential to conservation of the species. 16 U.S.C. § 1532 (5). When the Services are designating critical habitat, they must base their final decision on “the best scientific data available” and take into account “the economic impact” of identifying a specific area as critical habitat. 16 U.S.C. § 1533(b)(2). Once an area is designated as critical habitat, it receives protection under the ESA. Specifically, when a federal agency takes an agency action – defined as anything the agency authorizes, funds, or carries out – it must ensure that its action does not cause destruction or adverse modification of designated critical habitat.
Current Lawsuit
In State of Texas v. U.S. Dep’t of Int., the plaintiff argues that FWS’s final decision to list the seven mussels as threatened and endangered violates the ESA in a variety of ways, including: (1) FWS failed to take Texas’s state level conservation efforts to protect the mussels species into account when making the final listing decision; (2) FWS failed to base the critical habitat designation for the mussels on the best available scientific information, or take economic impacts into account; and (3) FWS issued a section 4(d) rule for the threatened Texas fawnsfoot mussel that was unlawfully vague.
The plaintiff claims that FWS failed to consider the conservation efforts the state of Texas is currently undertaking to conserve the seven mussel species. In its complaint, the plaintiff explains that Texas law prohibits the taking of mussels within the state without a license or other authorization. State law also prohibits the take and sale of any fish or wildlife species that is listed as “threatened” by the Texas Parks and Wildlife Department (“TPWD”). The TPWD is authorized by the state of Texas to develop a list of species that the state considers to be threatened or endangered. According to the plaintiff, six of the seven mussel species included in FWS’s final listing decision have already been designated as threatened by TPWD. Along with prohibiting the unauthorized take of threatened species, the plaintiff notes that TPWD implements programmatic and voluntary conservation efforts for the mussel species. Specifically, the plaintiff notes that TPWD manages various properties in such a way to promote river ecosystem health and conserve freshwater mussel populations. TPWD also manages a Landowner Incentive Program which encourages private landowners to implement conservation practices aimed at improving watershed functions and habitat conditions for aquatic species, including freshwater mussels. While the plaintiff concedes that FWS did take some of the ongoing conservation efforts for the mussel species into consideration, it argues that FWS did not go far enough. Specifically, the plaintiff claims that FWS failed to consider or acknowledge both TPWD’s Landowner Incentive Program, and the state law protections for the mussels. According to the plaintiff, both the text of the ESA, and the PECE require FWS to take those protections into account.
Next, the plaintiff argues that FWS failed to base its critical habitat designation for the mussels on the best available scientific information, or to take economic impacts of the designation into account. Under the final listing decision, over 1,500 river miles through the Brazos, Colorado, and Guadalupe River Basins have been designated as critical habitat. As part of that designation, FWS identified several factors that contributed to suitable aquatic habitat for the seven mussel species, including low levels of ammonia. During the designation process, the state of Texas submitted evidence to FWS showing that the low ammonia levels identified by the Service were not appropriate to include as a component of critical habitat. The plaintiff claims FWS ignored this evidence, thus failing to base its critical habitat designation on the best available science. Similarly, the plaintiff claims that FWS failed to fully consider the economic impacts of the designation. In its final rule, FWS identified various activities, including agriculture, that would be impacted by the designation and reasoned that the economic impacts would not exceed 82,500.00 per year. However, the plaintiff claims that FWS failed to take into account the impacts that the designation would have on property values, or the expected upgrades that wastewater discharge facilities located in or near the areas covered by the critical habitat designation would have to make. Because FWS failed to take those costs into consideration, the plaintiff claims that its critical habitat designation for the mussel species does not comply with the ESA.
One of the final ESA arguments raised by the plaintiff is its claim that the section 4(d) rule issued for the threatened Texas fawnsfoot mussel is unlawfully vague. In that section 4(d) rule, FWS prohibits “take associated with activities that increase siltation, diminish water quality, alter stream flow, or reduce fish passage.” In other words, any take that occurs in relation to such activities will be considered a violation of the ESA. The plaintiff argues that this language is so vague, that it is difficult for the public to understand what activities will result in take.
For the above reasons, the plaintiff argues that the listing rule and critical habitat designation for the seven mussel species violates the ESA and should be overturned.
Going Forward
Currently, State of Texas v. U.S. Dep’t of Int., is in its early stages, and it is unclear how the case will resolve. However, it is not the first time that the state of Texas has filed a lawsuit against FWS for listing a species under the ESA. Last year, Texas filed suit against FWS for its decision to list the lesser prairie chicken, raising similar arguments about FWS’s alleged failure to fully consider state level conservation efforts. More information about that case is available here. While that lawsuit is still ongoing, taken together with State of Texas v. U.S. Dep’t of Int., it indicates that at least some states are willing to challenge ESA listing decisions that are seen as failing to take state level conservation efforts or economic impacts into account. Earlier this year, FWS announced that it would be releasing a proposed decision to list the Monarch butterfly sometime in December. Over the last several years, active conservation efforts for the Monarch butterfly have been launched by numerous states. While it is still uncertain what a Monarch listing decision from FWS will look like, or what the response will be, it is possible that one or more states will challenge that decision if it does not fully consider active conservation efforts.
To read the complaint in State of Texas v. U.S. Dep’t of Int., click here.
To read FWS’s listing decision for the seven mussel species, click here.
To read the text of the ESA, click here.
For more National Agricultural Law Center resources on the ESA, click here.