309 F.3d 1166 (9th Cir. 2002), 00-35076, Biodiversity Legal Foundation v. Badgley

Docket Nº:00-35076, 00-35089.
Citation:309 F.3d 1166
Party Name:BIODIVERSITY LEGAL FOUNDATION; Montana Native Plant Society-Flathead Chapter; Washington Native Plant Society-Northeast Chapter; Peter Lesica, an individual; Southwest Center for Biological Diversity; Bonnie Dombrowski, an individual; Maricopa Audubon Society; Huachuca Audubon Society; Utah Environmental Congress; Oregon Natural Desert Association;
Case Date:November 04, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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309 F.3d 1166 (9th Cir. 2002)

BIODIVERSITY LEGAL FOUNDATION; Montana Native Plant Society-Flathead Chapter; Washington Native Plant Society-Northeast Chapter; Peter Lesica, an individual; Southwest Center for Biological Diversity; Bonnie Dombrowski, an individual; Maricopa Audubon Society; Huachuca Audubon Society; Utah Environmental Congress; Oregon Natural Desert Association; Oregon Trout; Native Fish Society; Oregon Chapter of Trout Unlimited, Plaintiffs-Appellants-Cross-Appellees,

v.

Anne BADGLEY, Regional Director of the U.S. Fish & Wildlife Service, Region 1; Jamie Rappaport-Clark; Gale A. Norton,[*] Secretary, Department of Interior, Defendants-Appellees-Cross-Appellants.

Nos. 00-35076, 00-35089.

United States Court of Appeals, Ninth Circuit

November 4, 2002

Argued and Submitted March 5, 2001.

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Daniel J. Rohlf, and Stephanie M. Parent, Pacific Northwest Environmental Advocacy Center, Seattle, WA, for the plaintiffs-appellants.

M. Alice Thurston, United States Department of Justice, Washington, D.C. for the defendants-appellees.

James B. Dougherty, Washington, D.C. for the amicus curiae.

Appeal from the United States District Court for the District of Oregon; Garr M. King, District Judge, Presiding. D.C. Nos. CV-98-01093-KI, CV-00-396-KI.

Before T.G. NELSON, GRABER and RAWLINSON, Circuit Judges.

ORDER

The opinion filed on March 21, 2002, slip op. 4661, and appearing at 284 F.3d 1046, is withdrawn and replaced with the attached opinion.

OPINION

RAWLINSON, Circuit Judge:

Biodiversity Legal Foundation, several environmental groups, and individuals ("Appellants") appeal the district court's partial grant of summary judgment in favor of Appellees, the Department of Interior and the United States Fish and Wildlife Service ("the Service"). The district court ruled that the Service has discretion under 16 U.S.C. § 1533 (the Endangered Species Act ("ESA")) to make substantial information findings beyond the twelve-month deadline imposed for warranted/not-warranted findings. We reverse and hold that the only way to interpret subsection (b)(3)(A) in harmony with subsection (b)(3)(B) is by limiting the Service's discretion under (b)(3)(A) to the firm deadline imposed by subsection (b)(3)(B).

In its cross-appeal, the Service appeals the district court's denial of the Service's request for additional time within which to make three court-ordered warranted/not-warranted findings in dispute. The district court held that, under the ESA, it lacked equitable discretion to grant relief to allow the government the time requested to make the statutory determinations. We affirm the district court's conclusion and hold that the ESA forecloses the exercise of discretion when the agency misses ESA-imposed deadlines.

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FACTUAL BACKGROUND

Appellants sued the Department of Interior and the Service for failing to comply with the listing deadlines set forth in 16 U.S.C. § 1533. The suits emerged in the following manner: On February 23, 1995, Appellants filed a petition to list as an endangered species the Spalding's Catch-fly (Silene spaldingii). At the time this litigation commenced, the Service had not yet made the initial finding. On July 10, 1995, Appellants petitioned the Service to list the southern California population of the Mountain Yellow-Legged Frog (rana muscosa) as threatened or endangered. Although the substantial information finding for the frog was issued pursuant to a court order in an unrelated case, the Service had failed to issue a warranted/not-warranted finding by the time this litigation commenced.1

In 1997, Appellants petitioned to list the Great Basin Redband Trout (Oncorhynchus mykiss ssp.) as threatened or endangered. Although the Service had published the substantial information finding for the Redband Trout, it had yet to issue a warranted/not-warranted finding when this litigation began. In 1998, Appellants petitioned the Service to list the Yellow-Billed Cuckoo (Coccyzus americanus) as endangered. As with the other species involved in this suit, the Service had yet to act on this petition at the time this litigation commenced.2 Following the decision below, the Service made all the requested listing determinations in accordance with the district court's order.

STATUTORY FRAMEWORK

The ESA authorizes the Secretary of the Interior to classify species of plants and animals facing extinction as endangered or threatened.3 16 U.S.C. § 1533(a). It sets forth procedures the Service is required to follow in making its determinations. 16 U.S.C. § 1533(b). Embracing citizen participation in the listing process, Congress has afforded any "interested person" the opportunity to petition the Service to list a species:

(A) To the maximum extent practicable, within 90 days after receiving the petition . . . to add . . . or . . . remove a species . . . the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. . . . 4

(B) Within 12 months after receiving a petition that is found under subparagraph (A) to present substantial information indicating that the petitioned action may be warranted, the Secretary shall make one of the following findings:

(i) The petitioned action is not warranted . . . .

(ii) The petitioned action is warranted . . . .

(iii) The petitioned action is warranted, but . . . [precluded].5

16 U.S.C. § 1533(b)(3)(A)-(B).

Once a petition is filed, the Service has ninety days within which to make an initial determination "[t]o the maximum extent practicable." § 1533(b)(3)(A). If

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the initial determination is positive, the Service has one year from the date the petition was received to make a final determination. Ore. Natural Res. Council, Inc. v. Kantor, 99 F.3d 334, 338-39 (9th Cir. 1996).

As a result of our decision in Kantor, the current state of the law is that the Service has discretion to extend the initial determination beyond ninety days; however, the Service is required to make a final determination on positive petitions within twelve months of receipt. Unfortunately, as a practical matter, if the initial determination has not been completed within twelve months, the final one has not been completed either.

The district court in this case ruled that the initial determination can be made at any time, in accordance with the Service's guidelines. But the final determination on positive petitions must be made within one year of the initial determination. Thus, the Service has the discretion to take three, four, or even five years to make the initial determination. However, if that determination is positive, the Service is already in violation of the twelve-month deadline for the final determination. That is exactly what happened in this case.

Although we ruled in Kantor that the twelve-month deadline is firm, no circuit court has specifically decided whether § 1533(b)(3)(B) places a limit on the discretion conferred in § 1533(b)(3)(A). That question is squarely before us now.

DISCUSSION

I. Jurisdiction

Before we reach the merits of this appeal, we must address the Service's challenge to our jurisdiction. The Service alleges that Appellants' claims are moot because the Service has completed the action requested by Appellants—i.e. decisions to list the four plant and animal species as endangered or threatened. The Service also asserts that Appellants have failed to establish standing.

A. Standing

To satisfy Article Ill's standing requirement, Appellants must demonstrate: (1) they suffered or will suffer an "injury in fact" that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the Service's challenged action; and (3) the injury is likely, not merely speculative, and will be redressed by a favorable decision. Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001). Standing is determined as of the commencement of litigation. White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000).6

Because eight of the ten appellants are organizations, they must satisfy three additional prerequisites to sue on behalf of their members: (1) their members must otherwise have had standing to sue on their own behalf; (2) the interests at stake must be germane to the organizations' purposes; and (3) neither the claim asserted nor the relief requested must require the participation of individual members in the lawsuit. United Food And Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996).

The eight organizations and associations have satisfied the prerequisites to bring suit on behalf of their members. The individual members of the organizations

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have concrete injuries, and any harm resulting from the challenged action will be borne individually. They would therefore otherwise have standing to sue on their own behalf. Additionally, this suit is germane to each organization's purpose. Finally, unlike a claim for money damages, neither the claim asserted nor the relief requested requires the participation of individual members in this lawsuit.

Each organization and association that petitioned on behalf of the Spalding's Catchfly alleged that its staff, members, and supporters derive scientific, aesthetic, and spiritual benefits from the plant's continued existence in its natural habitat. Each organization and association which petitioned on behalf of the Great Basin Redband Trout, the southern population of the Mountain Yellow-Legged Frog, and the Yellow-Billed Cuckoo also alleged that its staff, members, and supporters derive scientific, aesthetic, and spiritual benefits from the species' continued existence in the wild and from the ecosystems upon which they depend. The...

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