691 F.3d 428 (D.C. Cir. 2012), 11-5128, Friends of Blackwater v. Salazar

Docket Nº:11-5128.
Citation:691 F.3d 428
Opinion Judge:GINSBURG, Senior Circuit Judge:
Party Name:FRIENDS OF BLACKWATER, et al., Appellees v. Kenneth Lee SALAZAR, Secretary, U.S. Department of the Interior, and Daniel M. Ashe, Director, U.S. Fish and Wildlife Service, Appellants.
Attorney:Robert J. Lundman, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Ellen J. Durkee and Matthew Littleton, Attorneys. M. Reed Hopper was on the brief for amicus curiae Pacific Legal Foundation in support of appellant. Jessica Almy argued the cause...
Judge Panel:Before: ROGERS and KAVANAUGH, Circuit Judges, and GINSBURG, Senior Circuit Judge. Dissenting opinion filed by Circuit Judge ROGERS. ROGERS, Circuit Judge, dissenting:
Case Date:August 17, 2012
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 428

691 F.3d 428 (D.C. Cir. 2012)

FRIENDS OF BLACKWATER, et al., Appellees

v.

Kenneth Lee SALAZAR, Secretary, U.S. Department of the Interior, and Daniel M. Ashe, Director, U.S. Fish and Wildlife Service, Appellants.

No. 11-5128.

United States Court of Appeals, District of Columbia Circuit.

August 17, 2012

Argued Jan. 24, 2012.

Page 429

Appeal from the United States District Court for the District of Columbia (No. 1:09-cv-02122).

Robert J. Lundman, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Ellen J. Durkee and Matthew Littleton, Attorneys.

M. Reed Hopper was on the brief for amicus curiae Pacific Legal Foundation in support of appellant.

Jessica Almy argued the cause for appellees. With her on the brief were Eric R. Glitzenstein and Howard M. Crystal.

Before: ROGERS and KAVANAUGH, Circuit Judges, and GINSBURG, Senior Circuit Judge.

Dissenting opinion filed by Circuit Judge ROGERS.

GINSBURG, Senior Circuit Judge:

The Secretary of the Interior appeals the district court's grant of summary judgment to the Friends of Blackwater et al. The district court held the Fish and Wildlife Service, an agency in the Department of the Interior, violated the Endangered Species Act by removing the West Virginia Northern Flying Squirrel from the list of endangered species when several criteria in the agency's Recovery Plan for the species had not been satisfied. We hold the district court erred by interpreting the Recovery Plan as binding the Secretary in his delisting decision. Because we also reject the Friends' alternative arguments that the Service's action was arbitrary, capricious, and contrary to law, we reverse the judgment of the district court.

Page 430

I. Background

(Image Omitted)

The West Virginia Northern Flying Squirrel ( Glaucomys sabrinus fuscus ) is one of 25 distinct subspecies of the Northern Flying Squirrel. It is a " small, nocturnal, gliding mammal[ ]" with a " long, broad, flattened tail ..., prominent eyes, and dense, silky fur" that lives in West Virginia and Virginia. U.S. FISH AND WILDLIFE SERVICE, APPALACHIAN NORTHERN FLYING SQUIRRELS RECOVERY PLAN 1-3 (Sept. 24, 1990). Despite its name, the flying squirrel cannot fly; but the patagia, or folds of skin, that stretch between its arms and legs allow it to glide for a distance when it leaps from a tree branch. Historically, its habitat consisted of the spruce-fir and northern hardwood forests of the southern Appalachian Mountains. Id. at 2, 6. In 1985, when scientists had documented only ten living squirrels, the Fish and Wildlife Service concluded it was endangered [*] and suggested that, although the squirrels' population " may have been declining since the Pleistocene, ... [t]heir decline ha[d] probably been accelerated through clearing of forests and other disturbances by people." 50 Fed.Reg. 26,999, 26,999 (July 1, 1985).

As required by § 4(f) of the Endangered Species Act, 16 U.S.C. § 1533(f), the Service created a recovery plan for the " conservation and survival" of the squirrel,[*]

Page 431

enumerating the following " criteria which, when met, would result in a determination ... that the species be removed from the list" of endangered species, id. § 1533(f)(1)(B)(ii):

1. [S]quirrel populations are stable or expanding ... in a minimum of 80% of all Geographic Recovery Areas [GRAs] designated for the subspecies,

2. [S]ufficient ecological data and timber management data have been accumulated to assure future protection and management ...

3. GRAs are managed in perpetuity to ensure: (a) sufficient habitat ... and (b) habitat corridors ... [and]

4. [T]he existence of the high elevation forests on which the squirrels depend is not itself threatened by introduced pests ... or by environmental pollutants....

Recovery Plan at 18. In 2002, the Service hired a biologist to investigate the possibility of removing the squirrel from the list of endangered species, and the next year began to draft its five-year review of the squirrel's status. In the review, published in 2006, the Service concluded the Recovery Plan, which had been created in 1990, " d[id] not have up to date recovery criteria," and the squirrel did " not meet the definition of endangered or threatened" because it " persist[ed] throughout its historic range." U.S. FISH AND WILDLIFE SERVICE, WEST VIRGINIA NORTHERN FLYING SQUIRREL 5-YEAR REVIEW: SUMMARY AND EVALUATION 5, 20 (April 2006). Whereas only ten squirrels had been sighted at the time of the original listing in 1985, by 2006 scientists had captured 1,063 individual squirrels at 107 sites, id. at 7, which suggested to the Secretary the population was robust, see U.S. FISH AND WILDLIFE SERVICE, ANALYSIS OF RECOVERY PLAN CRITERIA FOR THE WEST VIRGINIA NORTHERN FLYING SQUIRREL 3 (Dec. 18, 2007).

Later in 2006 the Service proposed to remove the squirrel from the list of endangered species. See 71 Fed.Reg. 75,924 (Dec. 19, 2006). The agency explained the squirrel no longer faced any of the threats listed in § 4(a)(1) of the Act so as to warrant its continued designation as either endangered or threatened. Id. at 75,925-29. With regard to the 1990 Recovery Plan, it said that because the " recovery criteria do not specifically address the five threat factors used for ... delisting a species," the plan " does not provide an explicit reference point for determining the appropriate legal status of" the squirrel. Id. at 75,925. In any event, such plans " are not regulatory documents and are instead intended to provide guidance to the Service, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved." Id. at 75,924-25. The Service emphasized its view that delisting the squirrel was appropriate because, among other things, " long-term nest box monitoring data provide[d] strong evidence of [its] continued presence throughout its range," id. at 75,926, and " habitat trends [were] moving in a positive direction in terms of forest regeneration and conservation," id. at 75,927.

Various scientists and conservation groups filed comments criticizing the Service's use of " persistence," which it defined as " continuing captures of [a species or subspecies] over multiple generations at previously documented sites throughout the historical range," 73 Fed.Reg. 50,226, 50,227 (Aug. 26, 2008) (" Delisting Rule" ), to gauge the squirrel's recovery; the measure could not provide estimates of population levels or trends and, they pointed out, persistence so defined could not

Page 432

rule out the possibility the squirrel's population was declining.

In its final rule delisting the squirrel the Service responded to these comments as follows: The data showing persistence across 80 percent of the squirrel's historic range were simply " not indicative of a declining population." Id. at 50,227. Data for the remaining 20 percent need not indicate a lack of persistence because the squirrels are " elusive and hard to capture." Id.

The Friends of Blackwater filed a complaint in the district court claiming (1) promulgation of the Delisting Rule violated the Endangered Species Act by ignoring the objective, measurable criteria in the Recovery Plan and (2) the Rule itself was arbitrary and capricious because it was not based upon the best available science. The district court entered summary judgment for the plaintiff, Friends of Blackwater v. Salazar, 772 F.Supp.2d 232 (D.D.C.2011), on the ground the Service was bound by the criteria in the Recovery Plan and its decision to delist the squirrel without following those criteria therefore constituted a revision to that plan, made without going through notice and comment rulemaking as required by the Act, id. at 241-42. In a footnote, the court also directed the agency on remand to modify its analysis of the statutory factors relevant to delisting " to the extent the agency's decision [to delist] was based on an analysis that did not separately assess the adequacy of existing regulatory mechanisms," as required by § 4(a)(1)(D) of the Act. Id. at 245 n. 17. The district court vacated the Delisting Rule, id. at 245, and the Service appealed to this court.

II. Analysis

In a case like the present one, " where the district court was reviewing an agency rulemaking under the Administrative Procedure Act ... we review the administrative record directly." Troy Corp. v. Browner, 120 F.3d 277, 281 (D.C.Cir.1997) (internal quotation marks and citation omitted). We review the Secretary's interpretation of the statute under the familiar two-step framework from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). At Step One, the court asks " if the statute unambiguously forecloses the agency's interpretation," Nat'l Cable & Telecomms. Ass'n v. FCC, 567 F.3d 659, 663 (D.C.Cir.2009); if it does not, then at Step Two " we defer to the administering agency's interpretation as long as it reflects ‘ a permissible construction of the statute,’ " Sherley v. Sebelius, 644 F.3d 388, 393 (D.C.Cir.2011) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778).

A. The Legal Effect of the Recovery Plan

The Friends claim the statutory requirement that for each endangered species the Service draft a recovery plan with " objective, measurable criteria" unambiguously means those criteria must be met before a species may be delisted. In response, the Service argues the criteria in the Recovery Plan, unlike the factors in § 4(a)(1) of the Act, are not binding upon the agency in deciding whether a species is no longer endangered and therefore should be delisted.

To resolve this dispute, we " begin[ ] with the words of the statute." Pharm. Research & Mfrs. of Am. v. Thompson, 251 F.3d 219, 224 (D.C.Cir.2001). Section 4(a)(1) of the Act provides the Secretary " shall"...

To continue reading

FREE SIGN UP