Center for Biological v. Kempthorne

• Decision Date: 18 October 2006
• Docket Number: No. 04-16563.,04-16563.
• Citation: 466 F.3d 1098
• Parties: CENTER FOR BIOLOGICAL DIVERSITY; Pacific Rivers Council, Plaintiffs-Appellants, v. Dirk KEMPTHORNE,<SMALL><SUP>*</SUP></SMALL> Secretary of the Interior; Steven Williams, Director of the United States Fish and Wildlife Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

466 F.3d 1098

CENTER FOR BIOLOGICAL DIVERSITY; Pacific Rivers Council, Plaintiffs-Appellants, v. Dirk KEMPTHORNE,^* Secretary of the Interior; Steven Williams, Director of the United States Fish and Wildlife Service, Defendants-Appellees.

No. 04-16563.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 2006.

Submission Vacated May 22, 2006.

Resubmitted and Filed October 18, 2006.

Michael R. Sherwood (argued) and Susan Britton (signed the briefs), Earthjustice, Oakland, CA, for the plaintiffs-appellants.

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

Appeal from the United States District Court for the Eastern District of California; Garland E. Burrell, District Judge, Presiding, D.C. No. CV-03-01758-GEB/ DAD.

Before: RYMER and WARDLAW, Circuit Judges, and ALSUP,^** District Judge.

RYMER, Circuit Judge:

The Center for Biological Diversity and the Pacific Rivers Council (collectively, the Center) appeal the district court's summary judgment in favor of the Secretary of the Interior,¹ and the Director of the U.S. Fish and Wildlife Service (collectively, the Service) in this suit under the Endangered Species Act (ESA). 16 U.S.C. § 1531 et seq. The Center challenges the Service's finding under 16 U.S.C. § 1533(b)(3)(B)(iii) that listing of the Sierra Nevada Mountain Yellow-Legged Frog (the Frog) as an endangered species is "warranted but precluded." For such a finding, §§ 1533(b)(3)(B)(iii)(I) and (II) require the Service to identify proposals for other listings that preclude listing the Frog and to find that expeditious progress is being made to list qualified species. Although the Service did not do so in its decision, the district court upheld the finding of "warranted but precluded" because the Service's path could reasonably be discerned. We conclude that this option is not available under the ESA, which expressly directs the Service, when making a "warranted but precluded" finding, to "publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based." 16 U.S.C. § 1533(b)(3)(B). As this wasn't done, we reverse for remand to the Service.

I

On February 8, 2000, the Center petitioned the Service to list the Frog as an endangered species under the ESA. The petition asserted that the Frog was once the most abundant frog in the Sierra Nevada region, but its population had declined sharply in recent decades, and it had already vanished from many areas in its historic range. On October 12, 2000, the Service responded to the Center's petition by publishing an initial 90-day finding that the petition presented substantial information indicating that listing the species may be warranted. 90-Day Finding on a Petition to List the Mountain Yellow-Legged Frog as Endangered, 65 Fed.Reg. 60,603 (Oct. 12, 2000). It initiated a status review to determine whether listing under the ESA was appropriate.

Under 16 U.S.C. § 1533(b)(3)(B), the Service had twelve months from the date of receipt of the petition to complete this review. The Service failed to make a finding within this window, and the Center filed suit in the Northern District of California. The district court issued an order requiring the Service to comply with its statutory obligation by January 10, 2003. Ctr. for Biological Diversity v. Norton ("Frog I"), 2001 WL 1602696 (N.D.Cal. Dec.12, 2001). The Service missed the court-imposed deadline, but on January 16, 2003, published its 12-month finding. See 12-Month Finding for a Petition to List the Sierra Nevada Distinct Population Segment of the Mountain Yellow-Legged Frog (Rana muscosa), 68 Fed.Reg. 2,283 (Jan. 16, 2003) (the Frog Decision).

The Frog Decision documented the scientific research that the Service reviewed concerning the Frog's taxonomy, physical description, range, habitat requirements, current status, population segments, and the effect of this species' extinction.

It also surveyed the suspected factors affecting the Frog's population, including grazing, recreation, dams and water diversion, roads and timber harvest, fire management activities, predation, and disease, and evaluated federal land management policies that could be affecting the Frog. Based on the scientific data, the Service found that the Frog populations were declining and that, due to their isolation, populations of Frogs that become extinct are unlikely to recolonize. It further found that "the overall magnitude of threats to the [Frog] is high, and that the overall immediacy of these threats is imminent." The Service therefore concluded that listing the Frog as an endangered species was warranted.

Nevertheless, the Service found that listing the Frog was "precluded by other higher priority listing actions." The ESA allows a "warranted but precluded" finding if the Service finds that (1) "the immediate proposal and timely promulgation of a final regulation implementing the petitioned action ... is precluded by pending proposals to determine whether any species is an endangered species or a threatened species," 16 U.S.C. § 1533(b)(3)(B)(iii)(I); and (2) "expeditious progress is being made to add qualified species to either of the lists published under ... this section and to remove from such lists species for which the protections of this chapter are no longer necessary," 16 U.S.C. § 1533(b)(3)(B)(iii)(II). The Service explained its decision not to list the Frog as follows:

While we conclude that listing the [Frog] is warranted, an immediate proposal to list is precluded by other higher priority listing actions. During Fiscal Year 2003 we must spend nearly all of our Listing Program funding to comply with court orders and judicially approved settlement agreements, which are now our highest priority actions. To the extent that we have discretionary funds, we will give priority to using them to address emergency listings and listing actions for other species with a higher priority. Due to litigation pertaining to various listing actions, our planned work with listing funds in Fiscal Year 2003 consists primarily of addressing court-ordered actions, court-approved settlement agreements, and listing actions that are in litigation. (Also, some litigation-related listing actions already are scheduled for Fiscal Year 2004.) We expect that our discretionary listing activity in Fiscal Year 2003 will focus on addressing our highest priority listing actions of finalizing expiring emergency listings.

68 Fed.Reg. at 2,303. Having decided not to list the Frog, the Service designated it as a "candidate" for future listing and assigned the species a priority ranking of "3" on the 12-level Listing Priority Guidance scale (with "1" being an emergency and "12" being the lowest priority). Id.

"A candidate is one for which [the Service has] on file sufficient information on biological vulnerability and threats to support a proposal to list as endangered or threatened but for which preparation and publication of a proposal is precluded by higher-priority listing actions." Review of Species That Are Candidates or Proposed for Listing as Endangered or Threatened; Annual Notice of Findings on Recycled Petitions; Annual Description of Progress on Listing Actions, 67 Fed.Reg. 40,657, 40,658 (June 13, 2002) (2002 CNOR). The Service annually publishes an update of the review status of species that are candidates for listing, 50 C.F332 U.S. 194.R. § 424.15(b), called a Candidate Notice of Review (CNOR). CNORs provide information regarding the status of the listing program as a whole and progress that is being made on the listing backlog.

The 2002 CNOR was published June 13, 2002, prior to the Frog Decision, 67 Fed. Reg. 40,657, but the Frog was included in the 2003 CNOR in light of its designation as a candidate.² The 2002 CNOR describes why listing of all petitioned candidate species as of that time was warranted but precluded, and forecasts that for fiscal year 2003 the Service's anticipated listing budget will be needed to take listing actions to comply with court orders and court-approved settlement agreements. The 2002 CNOR identifies the particular species on which the Service will work in the coming year, and reports that since October 30, 2001 final listing actions for six species had been published as well as proposed listing actions for ten species and delisting actions for three species. It also finds that given budget constraints, "these achievements constitute expeditious progress." Id. at 40,672.

The Center's present action challenges the Service's "warranted but precluded" finding and seeks to compel the Service to list the Frog. Ruling on cross-motions for summary judgment, the district court looked to the 2002 CNOR's description of listing actions that were then pending, and the anticipated listing budget for Fiscal Year 2003. The court concluded that the Service's reasons for its finding that listing of the Frog was "precluded by pending proposals" could be reasonably discerned from these documents, which show that the Service's budget is being consumed by specific pending actions. The court also concluded that an implied finding of "expeditious progress" was made — and that the Service's reasons for it were reasonably discernable — from the June 13, 2002 CNOR, the Fiscal Year 2003 budget projections, and an internal Department of Interior Effect Statement. These documents are part of the administrative record but are not referred to in the decision. The district court then determined that neither finding was arbitrary, and entered judgment for the Service.

The Center timely appealed.

II

The ESA clearly prescribes that when the Service makes a "warranted but precluded" finding, it "shall promptly publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based."...