Biodiversity Legal Foundation v. Babbitt, 97-1131

• Decision Date: 29 June 1998
• Docket Number: No. 97-1131,97-1131
• Citation: 146 F.3d 1249
• Parties: , 28 Envtl. L. Rep. 21,354, 98 CJ C.A.R. 3606 BIODIVERSITY LEGAL FOUNDATION and Marie Ellen Morrissey, Plaintiffs-Appellants, v. Bruce BABBITT, in his official capacity as Secretary of the Interior; and Mollie Beattie, in her official capacity as Director of the United States Fish and Wildlife Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1249

146 F.3d 1249

46 ERC 2108, 28 Envtl. L. Rep. 21,354,

98 CJ C.A.R. 3606

BIODIVERSITY LEGAL FOUNDATION and Marie Ellen Morrissey Plaintiffs-Appellants, v. Bruce BABBITT, in his official capacity as Secretary of the Interior; and Mollie Beattie, in her official capacity as Director of the United States Fish and Wildlife Service, Defendants-Appellees.

No. 97-1131.

United States Court of Appeals Tenth Circuit.

June 29, 1998.

Neal Levine of Earthlaw, Denver, Colorado, for Plaintiffs-Appellants.

James C. Kilbourne (James F. Simon, Henry L. Solano, and Stephen D. Taylor of the Office of the United States Attorney, and M. Alice Thurston and Mark A. Brown with him on the brief), Department of Justice, Washington, DC, for Defendants-Appellees.

Before KELLY and HENRY, Circuit Judges, and BRETT, Senior District Judge. ¹

PAUL KELLY, Jr., Circuit Judge.

Plaintiffs-Appellants Marie Morrissey and the Biodiversity Legal Fund (collectively "Biodiversity") appeal from the district court's grant of summary judgment in favor of defendants-appellees Bruce Babbitt, Mollie Beattie, and the Fish and Wildlife Service (collectively "the Service"). The district court held that the Service's failure to make a preliminary 90-day finding on the petition to list the Columbian sharp-tail grouse and its reliance upon the 1997 Listing Priority Guidance (1997 LPG) to guide the Service's allocation of resources in meeting its listing obligations did not violate section 4(b)(3)(A) of the Endangered Species Act (ESA), 16 U.S.C. § 1533(b)(3)(A). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

The facts of this case are undisputed. On March 14, 1995, Biodiversity filed a petition with the Service to list the Columbian sharp-tailed grouse as an endangered species. The Service began to review the petition upon receipt, but on April 10, 1995, Congress passed a rider to an appropriations bill rescinding $ 1.5 million from the Service's 1995 listing budget and prohibiting the Service from spending previously appropriated funds on final listings. See Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Pub.L. No. 104-06, 109 Stat. 73, 86 (1995). ² Funding for the Service's 1996 listing program was similarly limited by a number of resolutions which continued the funding moratorium on final listing and critical habitat determinations. See 61 Fed.Reg. 24723 (describing effect of continuing resolutions on listing program). According to § 4(b)(3)(A) of the Endangered Species Act, a preliminary finding on petitions to list species must be made within 90 days "to the maximum extent practicable." 16 U.S.C. § 1533(b)(3)(A). The Service continued to work sporadically on the grouse petition during this time, but made no 90-day finding.

The moratorium was lifted at the end of fiscal year 1996. See Omnibus Consolidated Rescissions & Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321, 1321-159 (1996). As a result of the funding shortage, however, the Service was confronted with over 240 species upon which final listing action was pending, as well as several petitions for assessment of conservation status, pending petitions to list species, and court orders directing the Service to take action under section 4 of the ESA. After public notice and comment the Service adopted a set of guidelines to prioritize the use of funding remaining for fiscal year 1996. See 61 Fed.Reg. 64475-81 (Dec. 5, 1996). The 1997 Listing Priority Guidance (1997 LPG) ³ supplements the Service's 1983 guidelines, see 48 Fed.Reg. 43098-43105 (Sept. 21, 1983), which allocate listing appropriations based on species' taxonomic distinctions and the magnitude and immediacy of threat facing them. See id. at 43103-04. The 1997 LPG further prioritizes the allocation of funding based on the type of listing action undertaken by the Service. Funds are allocated to listing activities according to their relative placement in one of four tiers. Emergency listing actions and the processing of final decisions on proposed listings are placed in Tiers 1 and 2, receiving the highest priority for funding. See id. After a preliminary review of petitions to determine whether an emergency listing action is warranted, petitions to list, such as the grouse petition, are placed in Tier 3 along with issuance of new proposed listings for candidate species. See 61 Fed.Reg. at 64479-80. All other actions are placed in Tier 4 and given the lowest priority for funding. See id.

The Service allocates listing appropriations among its seven regional offices according to the percentage of total proposed and candidate species for which the region is responsible. The region to which the grouse petition was assigned received the largest allocation of the remaining 1996 funds, but also had a backlog of 111 proposed species to list. The Service thus expected when it promulgated the 1997 LPG that it would not complete all Tier 2 activities given the limited funding provided during fiscal year 1996 and that no Tier 3 activities would be undertaken.

After issuing a notice of intent to sue, Biodiversity filed suit on October 10, 1995, seeking injunctive and declaratory relief under the ESA and the Administrative Procedures Act (APA), see 5 U.S.C. §§ 701-706, to enforce the 90-day finding deadline on the grouse petition. The parties filed cross-motions for summary judgment, and upon review the district court adopted the magistrate's recommendation to deny Biodiversity's motion and grant the Service's cross-motion. See Aplt.App. at 6. Specifically, the district court determined that the Service had adequately demonstrated impracticability due to the funding moratorium, and that the Service accordingly acted within its statutory discretion in promulgating the 1997 LPG. See Aplt.App. at 5-6.

The 1997 LPG remains in effect until the Final LPG for fiscal year 1998 is published. See 62 Fed.Reg. 55268-69 (Oct. 23, 1997); 63 Fed.Reg. 10931 (Mar. 5, 1998). To date, no 90-day finding has been issued on the grouse petition, and it is undisputed that the Service could make such a finding within 2 to 3 weeks at a cost of approximately $4,000 to $7,000. See Aplt.App. at 23. According to the Service, it has failed to make a 90-day finding on the grouse petition due to inadequate funding. See Aplt.App. at 32.

Discussion

We review the district court's grant of summary judgment de novo, applying the same summary judgment standard used by the district court. See Fed.R.Civ.P. 56(c); Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1182 (10th Cir.1995). Where, as here, the facts are largely undisputed, our duty is simply to discern whether the moving party--here, the Service--is entitled to judgment as a matter of law. See id. Accordingly, in examining whether the Service's actions violate the ESA, we rely on the standards of review provided in the APA. See Sierra Club v. Glickman, 67 F.3d 90, 96 (5th Cir.1995); Village of False Pass v. Clark, 733 F.2d 605, 609 (9th Cir.1984). Biodiversity is entitled to relief if the Service's failure to make a 90-day finding on the grouse petition constitutes "agency action unlawfully withheld." See 5 U.S.C. § 706(1); Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir.1997); Carpet, Linoleum & Resilient Tile Layers Local Union No. 419 v. Brown, 656 F.2d 564, 566-67 (10th Cir.1981) ("[S]ection 706(1) is a source of injunctive relief to remedy an arbitrary or capricious delay or denial of agency action."). Under the APA, administrative decisions involving the ESA are upheld unless they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see Village of False Pass, 733 F.2d at 609-10, or if they are "in excess of statutory ... authority." 5 U.S.C. § 706(2)(C).

Although not explicitly stated in its brief, Biodiversity appears to challenge the validity of the 1997 LPG in that it directly conflicts with or is an unreasonable interpretation of section 4 of the ESA. Thus, our review of the district court's grant of summary judgment in favor of the Service focuses on whether the Service's promulgation of, and reliance on, the 1997 LPG are in violation of section 4 of the ESA, 16 U.S.C. § 1533(b)(3)(A), and whether the Service's resulting failure to make a 90-day finding on the grouse petition is agency action unlawfully withheld.

At the outset, we construe Biodiversity's argument that the 1997 LPG "finds absolutely no support in the ESA" as a challenge to the Service's statutory authority to promulgate the 1997 LPG. See Reply Brief at 3-4; Aplt. Brief at 17-19. Section 4(h) of the ESA, however, allows the Service to promulgate "agency guidelines to insure the purposes of [section 4] are achieved efficiently and effectively," including "ranking system[s] to assist in the identification of species that should receive priority review...." 16 U.S.C. § 1533(h). Though Biodiversity argues this section only allows prioritization of species "based on the magnitude and immediacy of the threat to the species," Reply Brief at 4, the plain language of section 4(h)(3) indicates the Service has the authority to promulgate any regulations which may "assist in the identification of species that should receive priority review," as long as such regulations effectively achieve the purposes of section 4. 16 U.S.C. § 1533(h)(3). Thus, section 4(h)(3) provides the Service with the authority to promulgate the 1997 LPG, and to the extent Biodiversity's argument challenges that authority, we reject it.

Biodiversity's chief complaint, as we read the briefs, is that the 1997 LPG, which funds actions for final listing of pending petitions to list before funding non-emergency petitions to list, is invalid because it conflicts with the statutory requirements of the ESA, specifically section 4(b)(3)(A). It provides:

[t]o the maximum extent...