Ctr. for Biological Diversity v. Haaland
| Decision Date | 19 January 2023 |
| Docket Number | 21-35121 |
| Parties | CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff-Appellant, v. DEBRA ANNE HAALAND, in her official capacity as Secretary of the U.S. Department of the Interior; MARTHA WILLIAMS, in her official capacity as Director of the U.S. Fish and Wildlife Service, Defendants-Appellees, STATE OF WYOMING; STATE OF IDAHO; WYOMING STOCK GROWERS ASSOCIATION; WYOMING FARM BUREAU FEDERATION; UTAH FARM BUREAU FEDERATION, Intervenor-Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted April 12, 2022 Seattle, Washington
Appeal from the United States District Court for the District of Montana No. 9:19-cv-00109-DLC Dana L. Christensen, District Judge, Presiding
Eric R. Glitzenstein (argued), Center for Biological Diversity Washington, D.C.; Collette L. Adkins, Center for Biological Diversity, Circle Pines, Minnesota; Kristine M. Akland Akland Law Firm PLLC, Missoula, Montana; Andrea Zaccardi Center for Biological Diversity, Victor, Idaho; for Plaintiff-Appellant.
Benjamin W. Richmond (argued), Devon Flanagan, Robert Lundman, and Andrew Mergen, Attorneys; Todd Kim; Assistant Attorney General; United States Department of Justice, Environment &Natural Resources Division, Washington, D.C.; Dana Jacobsen, Attorney, United States Department of the Interior, Office of the Solicitor, Washington, D.C., for Defendants-Appellees.
Travis S. Jordan (argued), Senior Assistant Attorney General; James C. Kaste, Deputy Attorney General, Wyoming Attorney General's Office, Cheyenne, Wyoming; Adrian Miller, Sullivan Miller Law PLLC, Billings, Montana; for Intervenor-Defendant-Appellee State of Wyoming.
Owen Moroney, Deputy Attorney General; Darrell Early, Natural Resources Division Chief; Lawrence G. Wasden, Attorney General; for Intervenor-Defendant-Appellee State of Idaho.
William E. Trachman and Joseph A. Bingham, Mountain States Legal Foundation, Lakewood, Colorado, for Intervenors-Defendants-Appellees Wyoming Stock Growers Association, Wyoming Farm Bureau Federation, and Utah Farm Bureau Federation.
Katherine A. Meyer, Harvard Animal Law &Policy Clinic, Cambridge, Massachusetts; for Amici Curiae Law Professors Daniel J. Rohlf, Pat A. Parenteau, Oliver Houck, and Robert Percival.
Before: Danny J. Boggs, [*] Andrew D. Hurwitz, and Jennifer Sung, Circuit Judges.
The panel affirmed, on different grounds, the district court's summary judgment against the Center for Biological Diversity in the Center's action petitioning to amend the Grizzly Bear Recovery Plan that the Secretary of the Interior adopted as a "recovery plan" for an endangered or threatened species under the Endangered Species Act ("ESA").
The U.S. Fish &Wildlife Service (the "Service") approved the original Grizzly Bear Recovery Plan in 1982 and revised it in 1993. Since 1993, the Service has issued several Plan Supplements that provide habitat-based recovery criteria for identified recovery zones.
The district court entered summary judgment against the Center because it found that the Plan was not a "rule" subject to a petition for amendment under 5 U.S.C § 553(e). It also found that it lacked jurisdiction to review the denial of the petition under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(C), because the Center did not allege that the Service failed to perform any nondiscretionary duty. The panel affirmed on the ground that Administrative Procedure Act ("APA") review was not available because, even assuming the Plan was a "rule," the denial of the Center's petition was not "final agency action." 5 U.S.C. § 704.
The Center filed this action seeking judicial review under the APA and the ESA, claiming that the Service failed to develop and implement a recovery plan that provided for the conservation and survival of the grizzly bear; violated its affirmative duty to conserve the grizzly bear by not pursuing additional recovery areas; and unreasonably denied the Center's petition to update the Plan. On appeal, the Center did not challenge the district court's holding that it lacked ESA jurisdiction. Because the Center did not claim that the Service's denial of its petition was otherwise reviewable by statute, the sole issue is whether denial of the petition is "final agency action."
Because the term "rule" under the APA is defined broadly, the panel assumed that a recovery plan fit under this broad umbrella. See 5 U.S.C. § 551(4). The panel also assumed that an interested party could file a petition under § 553(e) to amend a recovery plan.
Pursuant to Bennett v. Spear, 520 U.S. 154, 177-78 (1997), an agency action is final if it both marks the consummation of the agency's decisionmaking process, and it determines rights or obligations from which legal consequences flow. Under the first Bennett criterion, the panel held that the Service plainly did not treat the 1993 Plan as the last step, where it repeatedly issued Plan Supplements. The panel further held that even assuming that the adoption of a recovery plan satisfied the first Bennett criterion, it did not satisfy the second criterion. The Service does not initiate enforcement actions based on recovery plans; recovery plans do not impose any obligation on or confer any right to anyone; and a recovery plan does not contain any binding legal obligations on the agency.
The panel concluded that a decision not to modify a plan was not a final agency action. Because the Center's suit did not challenge a final agency action, the district court was not authorized to review the denial of the petition under § 704 of the APA.
Judge Sung dissented. She disagreed with the district court's holding that the Recovery Plan was not a "rule" under the APA, and therefore not subject to a rulemaking petition, because recovery plans are "non-binding." She also disagreed with the majority's holding that even if the Recovery Plan was a "rule," the Service's denial of the Center's petition was not a final agency action because recovery plans are non-binding. She would hold that the text of the APA and precedent provide that the statutory definition of "rule" encompasses both binding and nonbinding rules, and that both binding and non-binding rules are subject to rulemaking petitions. Further, an agency's denial of a rulemaking petition is final agency action, even where the underlying rule is non-binding. Judge Sung would conclude that the Recovery Plan was a "rule" as that term is defined by the APA, and the Service's denial of the Center's rulemaking petition was a final agency action subject to judicial review. She would reverse and remand to the district court to review the denial of the rulemaking petition for abuse of discretion under the highly deferential arbitrary and capricious standard.
The Endangered Species Act of 1973 ("ESA") requires the Secretary of the Interior to adopt a "recovery plan" for any endangered or threatened species. 16 U.S.C. § 1533(f). This case concerns the Grizzly Bear Recovery Plan ("Plan"). The Center for Biological Diversity petitioned to amend the Plan; after the petition was denied, the Center sought judicial review under the ESA and the Administrative Procedure Act ("APA"). As relevant to this appeal, the district court granted summary judgment against the Center because it found that the Plan was not a "rule" subject to a petition for amendment under 5 U.S.C. § 553(e). We affirm, albeit on different reasoning, concluding that APA review is not available because, even assuming the Plan is a "rule," the denial of the Center's petition was not "final agency action." 5 U.S.C. § 704.
The ESA requires the Secretary to "determine whether any species is an endangered species or a threatened species." 16 U.S.C. § 1533(a)(1). For each such species, the Secretary must "designate any habitat . . . which is then considered to be critical habitat." Id. § 1533(a)(3)(A)(i). The ESA provides criteria for making endangered-status determinations and critical-habitat designations; a process by which interested parties may petition for listing, delisting, or revisions to species and habitat lists; and notice-and-comment requirements for any regulation proposed to implement a determination, designation, or revision. Id. § 1533(b). The Secretary must keep a list of endangered and threatened species and review those status designations at least once every five years. Id. § 1533(c). The Secretary must also issue regulations necessary to conserve such species, which may include prohibitions on certain activities such as transporting or selling endangered animals. Id. § 1533(d); see also id. § 1538(a)(1).
The ESA also requires the Secretary to develop and implement "recovery plans" "for the conservation and survival of endangered species and threatened species." Id. § 1533(f)(1). Recovery plans must include "a description of such site-specific management actions as may be necessary to achieve the plan's goal"; "objective, measurable criteria" that will lead to the species' delisting; and "estimates of the time required and the cost" for measures and intermediate steps to achieve the plan's goal. Id. § 1533(f)(1)(B). The Secretary must "provide public notice and an opportunity for public review and comment" before approving a new or revised recovery plan, id. § 1533(f)(4), and "consider all information presented during the public comment period," id. § 1533(f)(5). However, the ESA does not require the Secretary to update recovery plans.
In 1975, the Fish and Wildlife Service[1] identified the grizzly bear of the 48 conterminous states, the Ursus arctos horribilis, as a threatened species. 40 Fed.Reg 31734-36 (July 28, 1975). The Service approved the original Grizzly...
To continue reading
Request your trial