Kern County Farm Bureau v. Allen

• Decision Date: 20 June 2006
• Docket Number: No. 04-15540.,04-15540.
• Citation: 450 F.3d 1072
• Parties: KERN COUNTY FARM BUREAU; Kern County Water Agency; North Kern County Water Storage District; Coalition of Private Property Rights; Rosedale-Rio Bravo Water Storage District; Semitropic Water Storage District; Wheeler Ridge Maricopa Water Storage District; County of Kern, Plaintiffs-Appellants, v. Dave ALLEN, Regional Director of the U.S. Fish and Wildlife Service, Region 1; Steven A. Williams, Director of the U.S. Fish and Wildlife Service; Gale A. Norton, Secretary of the Interior; United States Department of the Interior; U.S. Fish and Wildlife Service, Defendants-Appellees, and Center for Biological Diversity, Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

450 F.3d 1072

KERN COUNTY FARM BUREAU; Kern County Water Agency; North Kern County Water Storage District; Coalition of Private Property Rights; Rosedale-Rio Bravo Water Storage District; Semitropic Water Storage District; Wheeler Ridge Maricopa Water Storage District; County of Kern, Plaintiffs-Appellants, v. Dave ALLEN, Regional Director of the U.S. Fish and Wildlife Service, Region 1; Steven A. Williams, Director of the U.S. Fish and Wildlife Service; Gale A. Norton, Secretary of the Interior; United States Department of the Interior; U.S. Fish and Wildlife Service, Defendants-Appellees, and Center for Biological Diversity, Intervenor-Defendant-Appellee.

No. 04-15540.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2006.

Filed June 20, 2006.

Robert D. Thornton, Nossaman, Guthner, Knox & Elliott, Irvine, CA, for the plaintiffs-appellants.

Matthew J. Sanders, U.S. Department of Justice, Environmental & Natural Resources Division, Washington, DC, for the defendants-appellees.

Matt Kenna, Western Environmental Law Center, Durango, CO, for the intervenor-defendant-appellee.

M. Reed Hopper, Pacific Legal Foundation, Sacramento, CA, for amicus curiae Pacific Legal Foundation.

Appeal from the United States District Court for the Eastern District of California; Anthony W. Ishii, District Judge, Presiding. D.C. No. CV-02-05376-AWI.

Before: WALLACE, HAWKINS, and THOMAS, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

Kern County Farm Bureau, et al. ("Kern"), appeal from the district court's judgment denying their claim against the U.S. Fish & Wildlife Service ("FWS") for listing the Buena Vista Lake shrew ("the BVL shrew") as an endangered species, contending that FWS violated the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA") by failing to provide public review and comment on new studies that became available after the close of the comment period, not basing its listing decision on the best scientific data available, not summarizing the data underlying its decision, and not showing the relationship between the data and its decision. Because the post-comment information was only important, not critical, to FWS's decision, and given the deference owed to agencies in making such scientifically-based decisions, we affirm the district court's judgment.

I. Factual History

The BVL shrew is a subspecies of ornate shrews endemic to Kern County, California. 67 Fed.Reg. 10101 (Mar. 6, 2002) (codified at 5 C.F.R. pt. 17). Fewer than thirty are known to exist. Id. at 10110.

On June 1, 2000, FWS published a rule proposing to list the BVL shrew as an endangered subspecies under the ESA. 65 Fed.Reg. 35033 (June 1, 2000). The proposal explained that only thirty-eight BVL shrews had been observed since their rediscovery in 1986, and that the only known population existed in a small wetland area on private property. Id. at 35033-34. The proposal emphasized that the amount of suitable habitat for the BVL shrew had been significantly reduced while noting that additional patches of habitable land in the area that might have supported the BVL shrew were "marginal at best and would not likely [have] support[ed] a significant number of animals." Id. at 35036 (citation omitted). The Proposed Rule explained that this "loss and fragmentation of habitat due to human activities" was "[t]he primary cause of decline of the [BVL] shrew." Id. Additionally, FWS found that the BVL shrew was threatened "by agricultural activities, modifications and potential impacts to local hydrology, uncertainty of water delivery . . . , possible toxic effects from selenium poisoning, and by random naturally occurring events." Id. at 35038. FWS concluded that there was a high probability that these threats would have "result[ed] in the extinction of the [BVL] shrew. . . ." Id.

FWS opened a sixty-day comment period for the proposal, seeking information about threats to the BVL shrew, locations of any additional populations, and "the range, distribution, and population size and genetics of this subspecies." Id. at 35039. FWS then reopened the comment period for another sixty days "to provide all interested parties additional opportunity to . . . [comment] on the proposal." 65 Fed.Reg. 49530 (Aug. 14, 2000). Further, FWS "solicited the expert opinions of five independent specialists regarding the biological and ecological information about the [BVL] shrew contained in the proposed rule." 67 Fed.Reg. at 10105. Of the four peer reviewers who responded within the comment period, three "stated that the proposed rule was an accurate summary of the species biology and status," while one "felt that additional surveys and improved management of known populations . . . could eliminate the need to list the species." Id. at 10106. Ultimately, three supported the listing, while the fourth remained neutral.¹

After the comment period, but before issuance of the Final Rule, three new studies became available. Two of the studies dealt with morphological and genetic variations among the multiple subdivisions of ornate shrews, while the third assessed the distribution, habitat, and status of the BVL shrew. See infra Section IV.A. Following the release of these new studies, FWS did not reopen the public comment period. Instead, on March 6, 2002, it published the Final Rule listing the BVL shrew as an endangered subspecies. 67 Fed.Reg. at 10101. The Final Rule responded to various comments on the Proposed Rule and incorporated some of the data from the new studies. Nevertheless, it listed factors nearly identical to those mentioned in the Proposed Rule to justify its listing decision and concluded that listing the BVL shrew as endangered was "the preferred action." 67 Fed.Reg. at 10110.

Kern soon thereafter filed its complaint, primarily alleging various APA and ESA violations. After a bench trial, judgment was entered in favor of FWS, and Kern filed this appeal.

II. Statutory Framework

The APA requires federal agencies to publish a general notice of proposed rule making in the Federal Register to "give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation," and "[a]fter consideration of the relevant matter presented, . . . [to] incorporate in the rules adopted a concise general statement of their basis and purpose." 5 U.S.C. § 553(b)-(c); see also 16 U.S.C. § 1533(b)(4) (ESA listing decisions must comply with the APA, 5 U.S.C. § 553).

Under the ESA, an endangered species is "any species which is in danger of extinction throughout all or a significant portion of its range . . . ." 16 U.S.C. § 1532(6).² A "species" includes "any subspecies of. . . wildlife . . . and any distinct population segment of any species of . . . wildlife which interbreeds when mature." 16 U.S.C. § 1532(16). The decision to list a species as endangered is based on five statutorily prescribed factors, any one of which may support a listing determination: (1) "the present or threatened destruction, modification, or curtailment of its habitat or range;" (2) "over-utilization for commercial, recreational, scientific, or educational purposes;" (3) "disease or predation;" (4) "the inadequacy of existing regulatory mechanisms;" or (5) "other natural or manmade factors affecting its continued existence." 16 U.S.C. § 1533(a)(1)(A)-(E).

Listing determinations must be made "solely on the basis of the best scientific and commercial data available . . . ." 16 U.S.C. § 1533(b)(1)(A). Additionally, FWS must include in any proposed or final listing decision "a summary . . . of the data on which such regulation is based and [must] show the relationship of such data to such regulation. . . ." 16 U.S.C. § 1533(b)(8).

III. Standard of Review

The APA provides that final agency action shall be set aside if it is "arbitrary capricious, an abuse of discretion, or otherwise not in accordance with the law," or if it is taken "without observance of procedure required by law." 5 U.S.C. § 706(2)(A), (D); accord Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1401 (9th Cir.1995). The arbitrary and capricious standard is "highly deferential, presuming the agency action to be valid and [requires] affirming the agency action if a reasonable basis exists for its decision." Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir.2000) (quotations and citations omitted). Under such deferential review, we may not substitute our judgment for that of the agency. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).

Unlike substantive challenges, however, our review of an agency's procedural compliance is exacting, yet limited. See Coalition For Gov't Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 457 (6th Cir.2004) (citing Natural Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1045, 1048-49 (D.C.Cir.1979)); Campanale & Sons, Inc. v. Evans, 311 F.3d 109, 116 (1st Cir.2002). We review de novo but are limited to ensuring that "`statutorily prescribed procedures have been followed.'" Campanale & Sons, 311 F.3d at 116 (quoting Natural Res. Def. Council, Inc., 606 F.2d at 1045). Further, we determine "the adequacy of the agency's notice and comment procedure, without deferring to an agency's own opinion of the . . . opportunities it provided." Natural Res. Def. Council v. EPA, 279 F.3d 1180, 1186 (9th Cir.2002).

IV. Discussion

A. Notice and Comment for New Studies

Integral to an agency's notice requirement is its duty to "identify and make available technical studies and data that it has employed in reaching the decisions to propose particular rules. An agency commits serious procedural error when it fails to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary." Solite Corp. v. EPA, 952 F.2d 473, 484 (D.C.Cir.1991) (quotations,...