254 F.3d 833 (9th Cir. 2001), 00-16020, Center for Biological Diversity v. Norton

Docket Nº:00-16020
Citation:254 F.3d 833
Case Date:June 20, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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254 F.3d 833 (9th Cir. 2001)




No. 00-16020

United States Court of Appeals, Ninth Circuit

June 20, 2001

Argued and Submitted January 9, 2001--Pasadena, California

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Matt Kenna, Kenna & Hickcox, P.C., Durango, Colorado, for the plaintiff-appellant.

Mark R. Haag, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona John M. Roll, District Judge, Presiding. D.C. No. CV-99-00424-JMR.

Before: Stephen S. Trott, Sidney R. Thomas, Marsha S. Berzon, Circuit Judges.

The opinion of the court was delivered by: Berzon, Circuit Judge


The Center for Biological Diversity (the "Center") appeals the district court's grant of summary judgment in favor of the Secretary of the Interior (the "Secretary"). The district court rejected the Center's effort to compel the Secretary to issue certain findings in response to petitions to list two species for protection under the Endangered Species Act ("ESA"). 16 U.S.C. §§ 1531 et seq. We find that the Secretary improperly refused to make the necessary findings and therefore reverse the district court's decision.

I. Background

The Endangered Species Act, enacted in 1973, provides "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, " and "a program for the conservation of such endangered species and threatened species." 16 U.S.C. §§ 1531(b). An "endangered species" is "any species which is in danger of extinction throughout all or a significant portion of its range," while a "threatened species" is one "which is likely to become an endangered species within the foreseeable future. " 16 U.S.C. §§ 1532(6), (20).

At the heart of the present case is the relationship between two methods prescribed in the statute for listing species for protection as endangered or threatened under the ESA. One method allows the Secretary to act on her own initiative to identify species for protection. The second allows interested citizens to compel the Secretary's consideration of a species by filing a petition. The end result in either case is the same: the Secretary must issue a final determination stating whether circumstances warrant listing a species as endangered or threatened. There are, however, important differences between the two methods that dictate how (and when) the Secretary reaches that conclusion.

A. Species Identified by the Secretary.

Under the first method, the Secretary may, on her own accord, consider whether a species is eligible for protection as endangered or threatened because of:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence.

16 U.S.C. §§ 1533(a)(1). If the Secretary finds that the "best scientific and commercial

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data available to [her]" demonstrates that a species is endangered or threatened because of the presence of one or more of these factors, 16 U.S.C. §§ 1533(b)(1)(A), she must publish a proposed rule identifying the species as such. 50 C.F.R. §§ 424.11(c). A period of public comment follows. Within one year, the Secretary must either publish a final rule designating the species for protection or withdraw the proposed rule upon a finding "that available evidence does not justify the action." 50 C.F.R.§§ 424.17(a); see also 16 U.S.C. §§ 1533(b)(6)(A).1

Although not expressly provided in the statute, the regulations implementing the ESA also permit the Secretary to find that listing of a species may be warranted"but that the available evidence is not sufficiently definitive to justify proposing the action at that time." 50 C.F.R. §§ 424.15(a). The Secretary typically does not provide an explanation for this decision but instead publishes a brief, one-line notice in the Federal Register identifying the species as a "candidate" for protection under the ESA.2 See, e.g., 64 Fed. Reg. 57,534 (Oct. 25, 1999) (listing candidate species). Candidates are "any species being considered by the Secretary for listing as an endangered or a threatened species, but not yet the subject of a proposed rule." 50 C.F.R. §§ 424.02(b). From time to time, the Secretary may publish updates of the review status of species that are candidates for listing. 50 C.F.R. §§ 424.15(b). There is, however, no specific time frame during which the Secretary must act on candidate species. See id. (noting that"none of the substantive or procedural provisions of the Act apply to a species that is designated as a candidate for listing").

B. Species Identified by Petition.

The second method for listing species allows interested persons to petition the Secretary to add (or remove) species from either the endangered or threatened species lists. Once the Secretary receives such a petition, she has 90 days to decide whether it presents "substantial scientific or commercial information indicating that the petitioned action may be warranted." 16 U.S.C. §§ 1533(b)(3)(A). If so, the Secretary must "promptly commence a review of the status of the species concerned." Id. Within 12 months after the petition is filed, the Secretary must determine that either (1) the petitioned action is warranted, in which case she must publish a proposed rule designating the species for protection; (2) the petitioned action is not warranted; or (3) the petitioned action is warranted but immediate promulgation of a rule is precluded by other pending proposals. 16 U.S.C. §§ 1533(b)(3)(B). If the Secretary finds that action is "warranted but precluded," she must promptly publish that finding along with "a description and evaluation of the reasons and data on which the finding is based." Id. Findings that a petitioned action is not warranted or is "warranted but precluded" are subject to judicial review. 16 U.S.C. §§ 1533(b)(3)(C)(ii).

C. The Petition Management Guidance Policy.

In 1996, the Fish and Wildlife Service ("FWS") adopted a new policy governing

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its treatment of citizen-sponsored petitions. (The policy is described in the 1996 "Petition Management Guidance" manual and is hereafter referred to as the "PMG policy.") The policy provides that "[a] petition for an action on a species or critical habitat `identical' or `equivalent' to a petition still pending (or active) requires only a prompt (i.e., within 30 days) response informing the submitter of the prior petition and its status; Federal Register publication of this response is not required." (Emphasis in the original.) The PMG policy equates species identified as candidates for listing with those designated "warranted but precluded" under 16 U.S.C. §§ 1533(b)(3)(B)(iii). Candidate species are thus "consider[ed] . . . as under petition, " and a petition to list a candidate species is deemed "redundant." Consequently, the Secretary now treats petitions to list species already identified as candidates for protection as second petitions and does not -ever -fulfill the statutory obligations described above that ordinarily attach to initial petitions.

Several significant consequences for petitions to list species already designated by the Secretary as candidates for protection follow from the PMG policy. First, the Secretary may avoid publishing an explanation for her decision not to take more immediate action on a petition to protect a species. Second, because the Secretary's decision to designate a species as a candidate does not require any explanation, there is no basis to review the decision not to take prompt action on a petition to list a candidate species. Third, the timetable requirements that normally govern petitions do not apply. The Center's position in this case is that, taken together, these consequences substantially and impermissibly compromise the statutory scheme for considering petitions to list a species as endangered or threatened.

II. The Chiricahua Leopard Frog and the Gila Chub

The particular species at issue in this case are the Chiricahua leopard frog (the "frog") and the Gila chub (the "chub").3 Their histories under the ESA demonstrate both the importance of the petition process and the statutory problems created by the PMG policy.

The chub appeared as a candidate for listing as early as 1982 and the frog as early as 1991. See 47 Fed. Reg. 58,454, 58,455 (Dec. 30, 1982) (chub); 56 Fed. Reg. 58,804, 58,806 (Nov. 21, 1991) (frog). Although the Secretary identified both species as candidates for listing, she had taken no action on either as of June 1998. At that time, the Center filed two petitions requesting that the Secretary extend ESA protection to both species. The Secretary did not, however, issue 90-day statements or 12-month findings in response to either petition, as required by 16 U.S.C. §§ 1533(b)(3)(A) and (B). Rather, the FWS sent a pair of letters to the Center explaining that it had already designated both the

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chub and the frog as candidate species. Citing the PMG policy, the FWS further noted that

candidate species are considered to be under petition and covered by a "warranted but precluded" finding under section 4(b)(3)(B)(iii) of the [ESA]. Since listing of candidates is, by definition, already warranted, petitions on candidates are redundant and treated as second petitions. Preparation of a 90 day finding is considered superfluous and would add undue work to an already heavily burdened listing program. Therefore, the Service will not make a 90-day finding on your petition to list the Gila chub.


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