Endangered Species Act Section 4 Deadline Litig.–MDL No. 2165 v. Salazar

• Decision Date: 04 January 2013
• Docket Number: No. 11–5274.,11–5274.
• Citation: 704 F.3d 972
• Parties: In re ENDANGERED SPECIES ACT SECTION 4 DEADLINE LITIGATION–MDL NO. 2165, WildEarth Guardians and Center for Biological Diversity, Appellees Safari Club International, Appellant v. Kenneth Lee Salazar and United States Fish and Wildlife Service, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

704 F.3d 972

In re ENDANGERED SPECIES ACT SECTION 4 DEADLINE LITIGATION–MDL NO. 2165,WildEarth Guardians and Center for Biological Diversity, AppelleesSafari Club International, Appellant

v.Kenneth Lee Salazar and United States Fish and Wildlife Service, Appellees.

No. 11–5274.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 20, 2012.

Decided Jan. 4, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:10–mc–00377).

Douglas S. Burdin argued the cause for appellant. With him on the briefs was Anna M. Seidman.

Nicholas A. DiMascio, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief was Joan M. Pepin, Attorney. Ellen J. Durkee and Sambhav N. Sankar, Attorneys, entered appearances. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

James Jay Tutchton and Amy Atwood were on the brief for appellees Center for Biological Diversity, et al. Melissa A. Hailey entered an appearance.

Before: ROGERS and TATEL, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The Center for Biological Diversity and the WildEarth Guardians sued to compel the Secretary of the Interior and the U.S. Fish and Wildlife Service (together, the “Service”) to comply with deadlines set forth in the Endangered Species Act, 16 U.S.C. § 1533(b)(3), for determining whether to list species as endangered or threatened. As the cases neared settlement, the Safari Club International (“Safari Club”) moved to intervene pursuant to Federal Rule of Civil Procedure 24 in order to oppose the settlements which would include three species that its members hunt. The district court denied intervention and approved the settlement agreements. On appeal, the Safari Club contends it qualified for intervention as of right, as well as permissively. We affirm.

I.

The Endangered Species Act (“ESA”) was enacted, in part, “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] a program for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b). Species receive protection pursuant to a listing process commenced either by the Service, acting on behalf of the Secretary of Interior, or by petition of an interested party. Id. § 1533(a), (b)(3)(A). If the Service determines that listing a species is warranted, it must proceed by rulemaking. Id. § 1533(b)(3)(B)(ii), (b)(5)-(6). The Service must make the decision to formally list a species “solely on the basis of the best scientific and commercial data available,” and upon consideration of any of five factors. Id. § 1533(a)(1), (b)(1)(A). The ESA's protections apply only after a species is formally listed. Id. § 1538(a). Those protections make it unlawful to “take” any listed species, id. § 1538(a)(1)(B), which includes hunting, id. § 1532(19). Neither the ESA nor the implementing regulations prohibit hunting of species prior to formal listing, including those determined to be warranted-but-precluded candidates for listing.

The ESA also establishes timetables for the Service to act on petitions. First, “[t]o the maximum extent practicable, within 90 days after receiving” a petition, the Service “shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” Id. § 1533(b)(3)(A) (the “90–day finding”). Second, “[w]ithin 12 months after receiving a petition ... indicating that the petitioned action may be warranted, the [Service] shall make one of the following findings”: (1) the petitioned action is not warranted, (2) the petitioned action is warranted, or (3) the petitioned action is warranted but “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” and “expeditious progress is being made to add qualified species to either of the lists.” Id. § 1533(b)(3)(B). Third, the Service must annually review its warranted-but-precluded findings as if they were resubmitted petitions. Id. § 1533(b)(3)(C)(i), (b)(3)(B)(iii).

The Service annually publishes a Candidate Notice of Review (“CNOR”), which includes findings on species for which the Service has determined listing is warranted but precluded. This notice responds to petitions to list species as well as the Service's own identification of species suitable for listing. See, e.g., 2011 CNOR, 76 Fed. Reg. 66370 (Oct. 26, 2011); 2010 CNOR, 75 Fed. Reg. 69222 (Nov. 10, 2010). As explainedin the 2010 CNOR, “[a] candidate species 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.” 75 Fed. Reg. at 69222. Over the years, the number of warranted-but-precluded findings has outpaced the number of listings, creating a backlog of candidate species—251 species as of the end of 2010. See id. at 69222–24, 69229–31. At the end of the end of 2007, the average delay in candidate species listings was 10.6 years.

In June 2010, the Judicial Panel on Multidistrict Litigation consolidated a dozen lawsuits filed by the Guardians and the Center against the Service, and transferred the cases to the district court in the District of Columbia. Within a year, two settlement agreements emerged:

[x] On May 10, 2011, the Guardians and the Service reached an agreement, and the Guardians moved for approval of a consent decree. Under the agreement, the Service committed to adhere to its fiscal year 2011 and 2012 work plans, submit either a proposed rule or a not-warranted finding for the 251 species on the 2010 CNOR by September 2016, in accordance with certain benchmarks, and meet specific deadlines for findings on several candidate species. In return, the Guardians agreed to dismiss their claims in the multidistrict litigation as well as several other cases, not to file any lawsuit to compel compliance with the statutory deadlines or challenge any warranted-but-precluded finding before March 31, 2017, and not to submit more than 10 new petitions annually until September 30, 2016.

[x] On June 16, 2011, the Center and Service reached a tentative agreement. Under the agreement, the Service committed to make certain 90–day and 12–month findings by the end of fiscal year 2011 or 2012 and to submit either proposed rules or not-warranted findings for certain candidate species by specific deadlines, while reserving discretion as to the substance of those decisions. The Center agreed to dismiss its claims in the consolidated cases and several other lawsuits, and to the extension of most deadlines set in the agreement if the Center exceeded specified limitations on its ability to sue the Service. The agreement was filed in the district court on July 12, 2011.

The Safari Club moved to intervene, pursuant to Rule 24, on June 27, 2011, in order “to oppose and defeat the settlement[s].” Safari Mot. to Intervene at 19. The three species of concern to the Safari Club appear on the 2010 CNOR list: the New England cottontail, the greater sage grouse, and the lesser prairie-chicken.¹ Under the Guardians' agreement, the Service must list the candidates on the 2010 CNOR as endangered or threatened or find their listing not warranted by September 30, 2016. Both settlements call for the Service to act on the petitions for the greater sage grouse and New England cottontail by the end of fiscal year 2015; and for the lesser prairie-chicken, by November 29, 2012.

The district court denied intervention, finding the Safari Club lacked standing to intervene as of right and that permissive intervention at this late date would cause undue delay and prejudice the parties, and approved the settlement agreements. In re Endangered Species Act Section 4 Deadline Litig., 277 F.R.D. 1 (D.D.C.2011) (“Section 4 Deadline Litig.”). The Safari Club appeals. This court has jurisdiction over the appeal of the denial of intervention as of right, see Alt. Research & Dev. Found. v. Veneman, 262 F.3d 406, 409 (D.C.Cir.2001), and may exercise supplemental jurisdiction in some instances over the appeal of a denial of permissive intervention, see In re Vitamins Antitrust Class Actions, 215 F.3d 26, 31 (D.C.Cir.2000). Our review of the district's court's determination on standing is de novo. See, e.g., LaRoque v. Holder, 650 F.3d 777, 785 (D.C.Cir.2011); Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 937 (D.C.Cir.2004).

II.

Rule 24(a) provides, in relevant part:

On timely motion, the court must permit anyone to intervene who ... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

Fed.R.Civ.P. 24(a). See Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C.Cir.2003); Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C.Cir.1998). This court has held that a movant seeking to intervene as of right must additionally demonstrate Article III standing. See United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1146 (D.C.Cir.2009); Fund for Animals, 322 F.3d at 731–32;Military Toxics Project v. EPA, 146 F.3d 948, 953 (D.C.Cir.1998); Mova Pharm., 140 F.3d at 1074;Bldg. & Constr. Trades Dep't v. Reich, 40 F.3d 1275, 1282 (D.C.Cir.1994). “[T]he underlying rationale for this requirement is clear: because a Rule 24 intervenor seeks to participate on an equal footing with the original parties to the suit, he must satisfy the standing...