Conservancy of Southwest Florida v. U.S. Fish & Wildlife Serv.

• Decision Date: 18 April 2012
• Docket Number: No. 11–11915.,11–11915.
• Citation: 677 F.3d 1073,23 Fla. L. Weekly Fed. C 949
• Parties: CONSERVANCY OF SOUTHWEST FLORIDA, Center for Biological Diversity, Public Employees for Environmental Responsibility, Counsel of Civic Associations, Inc., Plaintiffs–Appellants,Sierra Club, Third Party Custodian–Appellant, v. U.S. FISH & WILDLIFE SERVICE, Director, U.S. Fish & Wildlife Service, Department of Interior, Secretary of the Department of Interior, Defendants–Appellees,Florida Wildlife Federation, et al., Defendants,Seminole Tribe of Florida, Intervenor Defendant–Appellee,Eastern Collier Property Owners, Movant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 949

677 F.3d 1073

CONSERVANCY OF SOUTHWEST FLORIDA, Center for Biological Diversity, Public Employees for Environmental Responsibility, Counsel of Civic Associations, Inc., Plaintiffs–Appellants,Sierra Club, Third Party Custodian–Appellant,

v.U.S. FISH & WILDLIFE SERVICE, Director, U.S. Fish & Wildlife Service, Department of Interior, Secretary of the Department of Interior, Defendants–Appellees,Florida Wildlife Federation, et al., Defendants,Seminole Tribe of Florida, Intervenor Defendant–Appellee,Eastern Collier Property Owners, Movant–Appellee.

No. 11–11915.

United States Court of Appeals, Eleventh Circuit.

April 18, 2012.

Eric E. Huber, Sierra Club, Boulder, CO, Gary A. Davis, Gary A. Davis & Associates, Hot Springs, NC, Marcy LaHart, Marcy LaHart, PA, Gainesville, FL, Kelly Kathleen Samek, Tallahassee, FL, Craig Holt Segall, Sierra Club Law Program, Washington, DC, for Plaintiffs–Appellants.

Michael Thomas Gray, U.S. Dept. of Justice c/o U.S. Army Corps of Engineers, Office of Counsel, Jacksonville, FL, Thekla Hansen–Young, Mark A. Brown, Environment & Natural Res. Div., Kristen Byrnes Floom, U.S. Dept. of Justice, Washington, DC, for Defendants–Appellees.

Edwin A. Steinmeyer, Lewis, Longman & Walker, PA, Tallahassee, FL, Keri–Ann C. Baker, Andrew J. Baumann, Lewis, Longman & Walker, PA, West Palm Beach, FL, Intervenor Defendant–Appellee.Andrew J. Turner, Virginia Swisshelm Albrecht, Elizabeth Carter Chandler Clements, Hunton & Williams, LLP, Washington, DC, for Movant–Appellee.Appeal from the United States District Court for the Middle District of Florida.Before TJOFLAT, MARCUS and SILER,^* Circuit Judges.TJOFLAT, Circuit Judge:

This case concerns a challenge, brought under the Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 551–559, 701–706, to the United States Fish and Wildlife Service's denial of petitions to designate critical habitat for the Florida panther. The Endangered Species Act of 1973 (the “ESA”), 16 U.S.C. §§ 1531–1544, empowers the Secretary of the Interior to designate “critical habitat” for species of fish, wildlife, or plants that have been identified by the Secretary as “endangered” or “threatened.” Id. §§ 1532(5)(B), 1533(a)(3)(A).¹ The practical result of designating critical habitat is that federal agencies must then, in consultation with the Secretary, ensure not only that their actions are “not likely to jeopardize the continued existence” of such species, but also that they do not “result in the destruction or adverse modification” of critical habitat. Id. § 1536(a)(2).

In this case, environmental-advocacy groups petitioned the Fish and Wildlife Service, an agency within the Department of the Interior, to begin rulemaking to designate critical habitat for the Florida panther and, when the Service denied their petitions, sued in district court under the APA. They claimed that the denial of their petitions was arbitrary and capricious. See 5 U.S.C. § 706(2)(A). We conclude, however, that the denial of their petitions is not subject to judicial review under the APA because it is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Accordingly, we affirm the district court's order of dismissal.

I.

A.

We begin with the necessary statutory background. In 1966, Congress enacted the Endangered Species Preservation Act (the “ESPA”), Pub.L. No. 89–669, 80 Stat. 926 (1966), the predecessor to the ESA. The ESPA authorized the Secretary of the Interior to list a species as endangered in the Federal Register after finding that “its existence is endangered because its habitat is threatened with destruction, drastic modification, or severe curtailment, or because of overexploitation, disease, predation, or because of other factors, and that its survival requires assistance.” ESPA § 1(c), 80 Stat. at 926. The ESPA did not, however, require the Secretary to designate critical habitat for listed species. Nor did the original ESA, enacted in 1973.²

But in 1978, that changed. That year, Congress amended the ESA to require that “[a]t the time any such regulation [listing a species as endangered or threatened] is proposed, the Secretary shall also by regulation, to the maximum extent prudent, specify any habitat of such species which is then considered to be critical habitat.” Endangered Species Act Amendments of 1978, Pub.L. No. 95–632, § 11(1), 92 Stat. 3751, 3764. The 1978 amendments also provided, however, that this requirement “shall not apply with respect to any species which was listed prior to enactment of the [1978 amendments].” Id. As for those species, Congress instead allowed that “[c]ritical habitat may be established.” Id. § 2(2), 92 Stat. at 3751 (emphasis added).³

The law now stands, in relevant part, essentially as the 1978 amendments left it, although further amendments in 1982 modified slightly the required timing of the critical-habitat designation.⁴ Under current law, the Secretary generally must designate critical habitat “concurrently with making a determination ... that a species is an endangered species or a threatened species.” 16 U.S.C. § 1533(a)(3)(A)(i). But for species listed before the ESA required a concurrent critical-habitat designation, a different rule applies: “Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established....” Id. § 1532(5)(B) (emphasis added).

B.

In 1967—more than a decade before the 1978 amendments required a critical-habitat designation to accompany the listing of a species—the Secretary of the Interior listed the Florida panther as an endangered species. Endangered Species, 32 Fed.Reg. 4001 (Feb. 24, 1967) (codified at 50 C.F.R. § 17.11). No critical habitat for the Florida panther was designated at that time, and none has been designated since. Nor has the Secretary initiated rulemaking procedures to designate critical habitat for the Florida panther.

In 2009, environmental-advocacy groups, dissatisfied with this state of affairs, petitioned the United States Fish and Wildlife Service (the “Service”) to initiate rulemaking to designate critical habitat for the Florida panther. ⁵ The Conservancy of Southwest Florida (the “Conservancy”) filed a petition on January 21. On July 23, other advocacy groups, including the Sierra Club, joined the Conservancy's petition. On September 17, the Center for Biological Diversity (the “Center”), Public Employees for Environmental Ethics (“PEER”), and the Council of Civic Associations (the “Council”) filed another petition. And on November 19, the Sierra Club filed a supplemental petition.

The first two petitions cited scientific studies, including some relied on in the Service's own Florida Panther Recovery Plan,⁶ detailing the decline of the Florida panther population due to the gradual loss, degradation, and fragmentation of its habitat.⁷ These petitions explained that because of their hunting, breeding, and other needs, panthers require broad home ranges—up to about 250 square miles for a male panther and 150 square miles for a female. In sum, the first two petitions presented evidence that dwindling habitat threatened the Florida panther's recovery and requested that the Service designate as critical habitat areas identified in one of the studies relied on by the Service in its Recovery Plan. The subsequent Sierra Club petition added evidence of the expected effect of climate change on the Florida panther's habitat. The Sierra Club petition further requested that the Service designate as critical habitat an additional area identified in another study.

The Service denied the petitions. On February 11, 2010, the Service explained its decision in three substantially identical letters to the Conservancy, the Center, and the Sierra Club. The letters briefly described other efforts that the Service was pursuing to protect the Florida panther's habitat. The letters explained that, in the Service's view, those efforts were sufficient in themselves, eliminating any need to designate critical habitat.

C.

On February 18, 2010, the groups that had petitioned the Service—the Conservancy, the Center, PEER, the Council, and the Sierra Club (collectively, “Plaintiffs”)—filed suit in the United States District Court for the Middle District of Florida under the APA and the citizen-suit provisions of the ESA. ⁸ The complaint named as defendants the Service, the Director of the Service in his official capacity, the United States Department of the Interior, and the Secretary of the Interior in his official capacity (collectively, “Federal Defendants”). Later the Seminole Tribe and Eastern Collier Property Owners (collectively, “Intervenor–Defendants”), an unincorporated association of companies that own, use, and develop land in the area that Plaintiffs seek to have designated as critical habitat, successfully moved to intervene as defendants under Federal Rule of Civil Procedure 24.

Plaintiffs alleged that the Service's denial of their rulemaking petitions was arbitrary and capricious under § 706(2)(A) of the APA. They claimed that the Service had (1) made a decision contrary to the evidence before it, which allegedly demonstrated the need for critical habitat; (2) overlooked the expected impact of climate change on the Florida panther's habitat; and (3) in listing other efforts being taken to preserve panther habitat, rather than directly addressing the science discussed in the petitions, failed to provide a rational explanation for its decision.⁹ Plaintiffs also alleged that the Service had failed to comply with 50 C.F.R. § 424.12(b), which, according to Plaintiffs, required the Service to consider specified factors in responding to their petitions.¹⁰ Plaintiffs also alleged that the Service had failed to comply with 16 U.S.C. § 1533(b)(2) and 50 C.F.R. § 424.12(a), which, they claimed, required the Service to respond to their petitions “on the basis of the best...