National Ass'n of Home Builders v. Norton

Decision Date19 August 2003
Docket NumberNo. 02-15212.,02-15212.
Citation340 F.3d 835
PartiesNATIONAL ASSOCIATION OF HOME BUILDERS; Southern Arizona Home Builders Association; Home Builders Association of Central Arizona, Plaintiffs-Appellants, Defenders of Wildlife; Southwest Center for Biodiversity; Friends of the Owls; Peter Galvin, Intervenors-Appellees, v. Gale A. NORTON; Jamie Rappaport Clark; Fish and Wildlife Service, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Norman D. James, Fennemore Craig, Phoenix, Arizona, for the plaintiffs-appellants.

Jeffrey R. Keohane, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendants-appellees.

Michael P. Senatore, Defenders of Wildlife, Washington, D.C., for the intervenors-appellees.

Appeal from the United States District Court for the District of Arizona; Susan R. Bolton, District Judge, Presiding. D.C. No. CV 00-0903 SRB.

Before: John T. Noonan, A. Wallace Tashima, and Kim McLane Wardlaw, Circuit Judges.

OPINION

TASHIMA, Circuit Judge.

The National Association of Home Builders, the Southern Arizona Home Builders Association, and the Home Builders Association of Central Arizona (collectively, "Home Builders") appeal the district court's decision upholding the designation of a population of cactus ferruginous pygmy-owls in Arizona as a distinct population segment ("DPS") pursuant to the Fish and Wildlife Service's ("FWS") Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722(Feb. 7, 1996) ("DPS Policy"). Home Builders argue that this DPS designation violated the DPS Policy because the Arizona pygmy-owl population is neither discrete nor significant. We hold that, although the FWS did not arbitrarily find the Arizona pygmy-owl population to be discrete, the FWS arbitrarily found the discrete population to be significant. We therefore reverse the district court's decision and remand the Listing Rule to the district court.

BACKGROUND

The cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) is a small bird, about 6.75 inches in length, that can be reddish-brown or gray. Determination of Endangered Status for the Cactus Ferruginous Pygmy-Owl in Arizona, 62 Fed.Reg. 10,730, 10,730 (Mar. 10, 1997) (codified at 50 C.F.R. § 17.11(h)) ("Listing Rule"). It is one of four subspecies of the ferruginous pygmy-owl. Id. The range of the cactus ferruginous pygmy-owl ("pygmy-owl") extends "from lowland central Arizona south through western Mexico, to the States of Colima and Michoacan, and from southern Texas south through the Mexican States of Tamaulipas and Nuevo Leon."1 Id. The pygmy-owls in Arizona represent the northernmost edge of the subspecies' range. Id. at 10,734.

The habitat of the pygmy-owl in central and southern Arizona used to be riparian cottonwood forests, mesquite bosques, and Sonoran desertscrub; however, Arizona pygmy-owls are now found primarily in Sonoran desertscrub associations of palo verde, bursage, ironwood, mesquite, acacia, and giant cacti, like saguaro and organpipe. Id. at 10,731. In northwestern Mexico, pygmy-owls reside in Sonoran desertscrub, Sinaloan thornscrub, Sinaloan deciduous forest, riverbottom woodlands, cactus forests, and thornforest. Id. Pygmy-owls nest in cavities of trees or large columnar cacti and have a diverse diet. Id. at 10,730. By the FWS' estimates, pygmy-owls were once common to Arizona prior to the mid-1900s, id. at 10,740, but only between 20 and 40 pygmy-owls remain in Arizona.2 Nat'l Ass'n of Home Builders v. Norton, 2001 WL 1876349, at *4 (D.Ariz.2001) ("Home Builders").

On May 26, 1992, conservation organizations petitioned the FWS3 to list the pygmy-owls in the United States and Mexico as an endangered species and to designate a critical habitat for them. Listing Rule, 62 Fed.Reg. at 10,732. Following a status review, the FWS proposed listing the pygmy-owl as endangered with critical habitat in Arizona and threatened in Texas. See Proposed Rule to List the Cactus Ferruginous Pygmy Owl as Endangered with Critical Habitat in Arizona and Threatened in Texas, 59 Fed.Reg. 63,975 (proposed Dec. 12, 1994). After a notice and comment period, the FWS issued a final rule listing the Arizona pygmy-owls as endangered (but not listing the Texas pygmy-owls as threatened). Listing Rule, 62 Fed.Reg. at 10,730. The FWS did not designate a critical habitat concurrently with the Listing Rule, however, due to concerns about harm to and harassment of pygmy-owls.4 62 Fed.Reg. at 10,745. After the Southwest Center for Biological Diversity successfully sued the FWS to force a habitat designation, the FWS designated critical habitat for the Arizona pygmy-owl DPS. Designation of Critical Habitat for the Cactus Ferruginous Pygmy-owl, 64 Fed.Reg. 37,419, (July 12, 1999).

In the Listing Rule, the FWS designated the Arizona pygmy-owls as a DPS. 62 Fed.Reg. at 10,731, 10,737. The ESA permits the FWS to designate a population of a species as a DPS and to list it as an endangered species. See 16 U.S.C. §§ 1532(16), 1533(a)(1). To designate a DPS under the DPS Policy, the FWS must find that a population is discrete "in relation to the remainder of the species to which it belongs" and significant "to the species to which it belongs." 61 Fed.Reg. at 4725. In making this designation in the Listing Rule, the FWS first found that the pygmy-owl populations in the east (southeast Texas south through northeastern Mexico) and west (central Arizona south through northwestern Mexico) are (1) discrete "based on geographic isolation, distribution and status of habitat, and potential morphological and genetic distinctness," and (2) significant because the loss of either population would create a significant gap in the range of the subspecies. 62 Fed.Reg. at 10,731.

Next, the FWS further subdivided the western pygmy-owl DPS into an Arizona population and a northwestern Mexico population.5 Id. According to the Listing Rule, the Arizona pygmy-owls are discrete from the northwestern Mexico pygmy-owls because they are "delimited by international boundaries" and "the status of the species in Arizona is different from that in Sonora [Mexico], with records currently indicating a higher number of individuals in Sonora." Id. at 10,737. The FWS also found that the discrete population of Arizona pygmy-owls is significant to its taxon because

[s]hould the loss of either the Arizona or Texas populations occur, the remaining population would not fill the resulting gap as the remaining population would not be genetically or morphologically identical, and would require different habitat parameters. The loss of either population also would decrease the genetic variability of the taxon and would result in a significant gap in the range.

Id.

Home Builders sued to vacate the Listing Rule and the designation of critical habitat. The district court granted summary judgment to the FWS. Home Builders, 2001 WL 1876349, at *3-*5. The district court held that the "FWS' decision to divide the `western population,' at the international border between Arizona and Mexico in order to protect the population segment facing extinction within the United States" was permissible and consistent with ESA policy. Id. at *7. The district court also granted the FWS' Motion for Partial Voluntary Remand of Critical Habitat Designation (and vacated the designation) because of insufficient economic impact analysis. Id. at *2-*3.

On appeal, Home Builders argue that the FWS violated the DPS Policy by designating the Arizona pygmy-owls as a DPS.

APPELLATE JURISDICTION

The district court certified its grant of summary judgment to the FWS on the Listing Rule as a final judgment under Federal Rule of Civil Procedure 54(b). We earlier held that the initial Rule 54(b) certification was "plainly deficient, because `[i]t never made a requisite express determination that there is no just reason for delay.'" Nat'l Ass'n of Home Builders v. Norton, 325 F.3d 1165, 1167 (9th Cir.2003) (quoting Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985)).

On limited remand, the district court again certified its listing decision as an appealable final judgment under Rule 54(b). It noted that its decision to uphold the Listing Rule completely disposed of Home Builders' challenge, leaving nothing more to be adjudicated. The district court then determined that there was no just reason for delay because the Listing Rule and designation of critical habitat were different administrative actions, based on separate administrative records, leaving little chance of overlapping appeals. Giving the district court's determination that this case is appropriate for a Rule 54(b) certification the deference to which it is entitled, Bingham v. Schreiber, 329 F.3d 723, 726 n. 1 (9th Cir.2003), we now conclude that the district court's certification is sufficient to allow us to exercise jurisdiction over Home Builders' appeal challenging the Listing Rule. Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir.1981). We therefore have jurisdiction over this appeal under 28 U.S.C. § 1291.

STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo. Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1175 (9th Cir.2002). On appeal, we view the evidence in the light most favorable to the nonmoving party. Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 851 (9th Cir.), amended by, 312 F.3d 416 (9th Cir.2002). Viewing the evidence in that light, we must determine whether the district court correctly applied the substantive law. Delta Sav. Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001), cert. denied, 534 U.S. 1082, 122 S.Ct. 816, 151 L.Ed.2d 700 (2002).

The judicial review provision of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706,...

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