Defenders of Wildlife & Ctr. for Biological Diversity v. Jewell

• Decision Date: 01 March 2016
• Docket Number: No. 14–5284.,14–5284.
• Citation: 815 F.3d 1
• Parties: DEFENDERS OF WILDLIFE AND CENTER FOR BIOLOGICAL DIVERSITY, Appellants v. Sally JEWELL, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

815 F.3d 1

DEFENDERS OF WILDLIFE AND CENTER FOR BIOLOGICAL DIVERSITY, Appellants

v.Sally JEWELL, et al., Appellees.

No. 14–5284.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 16, 2015.

Decided March 1, 2016.

Jason C. Rylander argued the cause for appellants. With him on the briefs were Karimah Schoenhut, Michael P. Senatore, and Collette L. Adkins.

Brian C. Toth, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was John C. Cruden, Assistant Attorney General.

Wayne J. D'Angelo and Michael B. Wigmore were on the brief for intervenor-defendants-appellees American Petroleum Institute, et al. David E. Frulla entered an appearance.

Nancie G. Marzulla and Roger J. Marzulla were on the brief for intervenor/defendant-appellee Glenn Hegar, Texas Comptroller of Public Accounts.

M. Reed Hopper and Jonathan C. Wood were on the brief for amicus curiae Pacific Legal Foundation in support of appellees.

Before: HENDERSON, ROGERS and KAVANAUGH, Circuit Judges.

Opinion for the court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The issue in this appeal concerns when a voluntary state conservation agreement may be considered in deciding whether or not to list a species under the Endangered Species Act. In 2012, the Fish and Wildlife Service withdrew its 2010 proposal to list the dunes sagebrush lizard, whose habitat is in New Mexico and Texas, as endangered. The Defenders of Wildlife and the Center for Biological Diversity (together "Appellants") sued and now appeal the grant of summary judgment to the Secretary of Interior. They contend the withdrawal decision was arbitrary and capricious because (1) the voluntary plan by the State of Texas to engage private businesses in conservation efforts was neither sufficiently certain to be implemented nor to be effective under the Service's evaluation policy, and (2) the Service's decision unreasonably elevates unenforceable voluntary State agreements over the statute's required consideration of the adequacy of "existing regulatory mechanisms." For the following reasons, we conclude the first contention is unpersuasive and the second was affirmatively waived by appellants in the district court.

Between the time the Service proposed listing the lizard and the time it decided to withdraw that proposal, the Service received updated information about the conservation efforts in the two States and by the Bureau of Land Management in New Mexico. Based on this information, the Service concluded that "current and future threats are not of sufficient imminence, intensity, or magnitude to indicate that the ... lizard is in danger of extinction (endangered), or likely to become endangered within the foreseeable future (threatened), throughout all or a significant portion of its range." Withdrawal of the Proposed Rule to List Dunes Sagebrush Lizard ("Withdrawal "), 77 Fed. Reg. 36,872, 36,897 –98 (June 19, 2012). Appellants fail to show the Service did not rationally apply its policy in evaluating the Texas plan inasmuch as the Service's factual conclusions are supported by substantial evidence in the record. Accordingly, we affirm.

I.

The Endangered Species Act ("ESA") "provide[s] a program for the conservation of ... endangered species and threatened species." 16 U.S.C. § 1531(b). Acting on behalf of the Secretary of the Interior, the Fish and Wildlife Service must determine whether to list a species as being "threatened" or "endangered." 16 U.S.C. § 1533(a)(1) ; 50 C.F.R. § 402.01(b) ; see also Am. Wildlands v. Kempthorne, 530 F.3d 991, 994 (D.C.Cir.2008). Once a species is listed, it is unlawful for any person to "take" the listed species (except in narrow circumstances), 16 U.S.C. § 1538(a)(1)(B), i.e., to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct," id. § 1532(19). Federal agencies must "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence" of a listed species, id. § 1536(a)(2).

An "endangered species" under the ESA is one "in danger of extinction throughout all or a significant portion of its range" while a "threatened species" is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(6), (20). A danger of species extinction exists where there is evidence 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.

Id. § 1533(a)(1)(A)-(E) (emphasis added). The extent of the dangers of extinction is to be determined "solely on the basis of the best scientific and commercial data available to [the Service] after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision ... to protect such species," including "predator control, protection of habitat and food supply, or other conservation practices." Id. § 1533(b)(1)(A) (emphasis added).

The Service adopted the Policy for Evaluation of Conservation Efforts when Making Listing Decisions ("Policy "), 68 Fed. Reg. 15,100, 15,113 (March 28, 2003), to assist it in making predictive evaluations about the persistence of a species where there are "formalized conservation efforts that have not yet been implemented or have been implemented, but have not yet demonstrated whether they are effective at the time of a listing decision." The policy is designed to "ensure consistent and adequate evaluation of recently formalized conservation efforts when making listing decisions," Withdrawal, 77 Fed. Reg. at 36,885, by identifying criteria for assessing whether such an effort "provides a high level of certainty that the effort will be implemented and/or effective and results in the elimination or adequate reduction of the threats" posed to any species being considered for a listing, see Policy, 68 Fed. Reg. at 15,114 –15.¹ When the Service's decision not to list a species is based in part on consideration of a formalized conservation effort, the Service will monitor the "progress of implementation and effectiveness of the conservation effort." Id. at 15,114. If it determines the conservation effort lags behind schedule, does not achieve its objectives, is not modified to respond to changed circumstances, or new information comes to light, the Service will reevaluate whether the species needs be listed. Id.

Appellants challenge the Service's application of the Policy in deciding it could rely on a state voluntary conservation agreement as a basis for withdrawing its proposed listing of the dunes sagebrush lizard as endangered. Endangered Status for Dunes Sagebrush Lizard ("NPRM Listing "), 75 Fed. Reg. 77,801 (Dec. 14, 2010). The lizard lives in a specific habitat in southeastern New Mexico and western Texas, and the lizard's survival is "directly linked to the quality and quantity of available shinnery oak dune habitat," which is a dynamic dune system created by a shinnery oak tree and the large root and stem system that surrounds it. NPRM Listing, 75 Fed. Reg. at 77,802 –03. By 2004, surveys of the New Mexico habitat indicated extirpation of the lizard in areas where there was shinnery oak removal (caused by herbicide treatments and oil-and-gas development). See 12–Month Findings on Resubmitted Petitions to List the Southern Idaho Ground Squirrel, Sand Dune Lizard, and Tahoe Yellow Cress, 69 Fed. Reg. 77,167, 77,172 (Dec. 27, 2004). If those activities continued, the Service expected further destruction of the lizard's habitat and the threat to the lizard to increase. See id. By 2010, these activities had persisted, and the Service once again was concerned about the threats to the shinnery oak habitat in terms of its total destruction and its fragmentation. See NPRM Listing, 75 Fed. Reg. at 77,809 –10.

At the time it proposed listing, the Service had concluded that the federal, State, and local conservation efforts were "not adequate to protect the dunes sagebrush lizard from known threats." Id. at 77,811 ; see 16 U.S.C. § 1533(a)(1)(D) ("Factor D"). The Interior Department's Bureau of Land Management ("BLM") administered a land-use plan in New Mexico to help protect the lizard on federal lands, and there were voluntary conservation agreements for private lands, NPRM Listing, 75 Fed. Reg. at 77,810 –11, but the Service considered these efforts inadequate. Although BLM's plan "addresses the threats of shinnery oak removal," the Service was concerned that the plan "provides for a variety of exceptions and has no schedule or planned monitoring to ensure that the protections are being provided." Id. at 77,810. The Service concluded that the efficacy of BLM's plan would be determined only following future implementation. Id. at 77,811. The New Mexico voluntary agreements consisted of a Candidate Conservation Agreement and Candidate Conservation Agreements with Assurances; the former allowed private landowners to participate voluntarily in lizard conservation efforts (including limiting habitat modification and protecting habitat between shinnery oak complexes) and the latter provided assurances that, in view of such voluntary efforts, "additional conservation measures will not be required and additional land, water, or resource use restrictions will not be imposed should the species become listed in the future." Announcement of Final Policy for Candidate Conservation Agreements with Assurances, 64 Fed. Reg. 32,726, 32,727 (June 17, 1999). These agreements might have been promising, but the Service was concerned that there were no similar agreements in Texas. NPRM Listing, 75 Fed. Reg....