National Ass'n of Home Builders v. Norton

Decision Date08 July 2005
Docket NumberNo. 04-5048.,04-5048.
PartiesNATIONAL ASSOCIATION OF HOME BUILDERS et al., Appellants v. Gale A. NORTON, Secretary of the United States Department of Interior et al, Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Robert D. Thornton argued the cause for the appellants. John J. Flynn, III, Duane J. Desiderio, Thomas J. Ward and Felicia K. Watson were on brief.

Seth M. Barsky, Attorney, United States Department of Justice, argued the cause for the appellees. Andrew J. Doyle and Ellen J. Durkee, Attorneys, United States Department of Justice were on brief.

Before: HENDERSON, TATEL and ROBERTS, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge.

The National Association of Home Builders (Home Builders) appeals the district court's summary judgment order dismissing its suit against the United States Department of the Interior (Interior) and its Fish and Wildlife Service (FWS).1 Nat'l Ass'n of Home Builders v. Norton, 298 F.Supp.2d 68 (D.D.C.2003) (NAHB). The lawsuit revolves around the FWS's promulgation of a survey protocol, first in 1999 and again in revised form in 2000 (together, Protocols), that provides a methodology for the detection of an endangered subspecies of butterfly in certain areas of southern California. Before the district court, Home Builders asserted violations of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq., and the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq., arguing that the FWS failed to comply with those statutes' notice and comment provisions. The district court dismissed the claims for lack of jurisdiction. NAHB, 298 F.Supp.2d at 80. We now affirm.

I.

The ESA provides "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. § 1531(b). Under section four of the ESA, the Secretary of the Interior (Secretary) must promulgate regulations that list species deemed "endangered" or "threatened" due to, inter alia, the "present or threatened destruction, modification, or curtailment of its habitat or range." Id. § 1533(a)(1)(A), ©}(1); see also Bennett v. Spear, 520 U.S. 154, 157-58, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).2 The Secretary is further charged with developing and implementing a "recovery plan" for the "conservation and survival of endangered species and threatened species." Id. § 1533(f).

Once a species is designated "endangered" or "threatened," the ESA provides a variety of protections, including a prohibition on "take" of the species. Id. § 1538(a)(1). "Take" is a term uniquely defined by the ESA to mean: "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" the listed species. Id. § 1532(19). Following the statutory labyrinth one step deeper, regulations passed pursuant to the ESA define "harm" as used in the definition of "take" to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3; see also, generally, Endangered and Threatened Wildlife and Plants; Final Redefinition of "Harm," 46 Fed.Reg. 54,748 (1981). Thus, a landowner can effect a take of an endangered species, subjecting himself to liability under the ESA, if he alters the habitat of an endangered species in a manner that causes death or injury to a member of the species. The ESA establishes civil and criminal penalties for any person who unlawfully takes an endangered species. 16 U.S.C. § 1540. In addition to more traditional enforcement mechanisms using federal and state personnel, id. § 1540(e), the ESA contains a "citizen suit" provision that permits a private party to seek injunctive relief against any landowner "alleged to be in violation" of the ESA, id. § 1540(g)(1)(A).

Section 10 of the ESA does permit landowners and other non-federal entities to obtain a permit to "take" a listed species "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Id. § 1539(a)(1)(B). To obtain such a permit, the landowner must demonstrate to the Secretary through a documented conservation plan that the owner will, inter alia, minimize the impact of the taking and that the "likelihood of the survival and recovery of the species" will not be diminished by the taking. Id. § 1539(a)(2)(B)(iv). In addition, the ESA authorizes the grant of a "recovery" permit, which enables a researcher to engage in actions "for scientific purposes" that could result in a taking. Id. § 1539(a)(1)(A).

II.

The quino checkerspot butterfly (Quino) is a small butterfly native to southwestern California and northwestern Mexico. The Quino was listed as an endangered species on January 16, 1997. Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Laguna Mountains Skipper and the Quino Checkerspot Butterfly (Euphydryas editha quino), 62 Fed.Reg. 2313 (1997) (Listing Rule). Once abundant, only seven or eight known colonies of Quino remain in the United States, all in Riverside and San Diego counties in California. Id. at 2315. The primary suspected cause of the loss of the species is the destruction of Quino habitat through development, grazing and fragmentation. Id. at 2317-2319. See also Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Quino Checkerspot Butterfly (Euphydryas editha quino), 67 Fed.Reg. 18,356, 18,359 (2002) (Critical Habitat Designation). Quino require a very particular habitat to survive, owing in part to their reliance on specific host plants during the larval life stage. Listing Rule, 62 Fed.Reg. at 2314. The Quino live as adult butterflies only for a period of roughly four to eight weeks. Id. The wingspan of an adult Quino measures a mere one inch. Id. Their flight season lasts from mid-January until late April, but peaks in March and April. Id. Quino do not fly in adverse weather conditions such as rain or wind, however, which, combined with their short lifespan and small size, can make detection difficult. The FWS issued its first guidance for detecting the Quino several months after listing the butterfly as fully protected by the ESA. See U.S. Fish and Wildlife Service, Interim General Survey Protocols and Mitigation Guidelines for the Endangered Quino Checkerspot Butterfly (November 4, 1997) (Interim Protocol).

Based on information gathered during the 1998 field season, as well as consultation with scientists and species experts, the FWS revised the Interim Protocol and promulgated the "Survey Protocol for the Endangered Quino Checkerspot Butterfly (Euphydryas editha quino) for the 1999 Field Season" (1999 Protocol), reprinted in Joint Appendix (J.A.) at 87-111, on January 25, 1999. The FWS did not, however, engage in formal notice and comment proceedings in drafting the 1999 Protocol. On February 1, 1999, a notice of availability for the 1999 Protocol was published in the Federal Register.3 Notice of Availability of a Recommended Survey Protocol for the Endangered Quino Checkerspot Butterfly (Euphydryas editha quino) for the 1999 Field Season, 64 Fed.Reg. 4890 (1999) (1999 Notice of Availability). The notice of availability referred to the 1999 Protocol in both its title and text as "recommended." Id. It also provided an address where "comments," "data" and "materials concerning the survey protocol" could be sent for the FWS's consideration during the development of a revised protocol for the 2000 field season. Id. The text of the 1999 Protocol identified on a map attached to the 1999 Protocol as Appendix B "areas with no potential for Quino, with potential habitat where adult surveys may be necessary of [sic] suitable habitat occurs on a site, and with Quino habitat where adult surveys should be conducted." 1999 Protocol at 1 & App. B, reprinted in J.A. at 90, 98. It recommended, but did not mandate, habitat assessment in areas designated by the FWS as Potential Habitat Areas and adult surveys in the Adult Focused Survey Areas or if a habitat assessment indicated suitable Quino habitat. Id. The 1999 Protocol stipulated that in order to avoid take of the species, adult surveys "must be conducted by a biologist possessing a recovery permit pursuant to section 10(a)(1)(A) of the [ESA]." Id. at 1, reprinted in J.A. at 90; see 16 U.S.C. § 1539(a)(1)(A).

The FWS published a revised protocol in the year 2000. U.S. Fish and Wildlife Service, Quino Checkerspot Butterfly (Euphydryas editha quino) Year 2000 Survey Protocol (2000 Protocol), reprinted in J.A. at 112-21. Again, a notice of availability regarding the "recommended survey protocol for the 2000 field season" was published in the Federal Register. Notice of Availability of a Recommended Year 2000 Survey Protocol for the Endangered Quino Checkerspot Butterfly (Euphydryas editha quino), 65 Fed.Reg. 8188 (2000) (2000 Notice of Availability). The revisions were based on information derived from public workshops, the input of a new "recovery team," the development of the recovery plan, the 1999 survey reports and public comments. 2000 Protocol at 1, reprinted in J.A. at 113. The 2000 Protocol provides substantially more detail regarding survey methodology than the 1999 Protocol did. Compare 1999 Protocol at 1-4, reprinted in J.A. at 90-93, with 2000 Protocol at 2-6, reprinted in J.A. at 114-118. As with the 1999 Protocol, however, the FWS describes the 2000 Protocol as merely "recommended" except for "requirements for biologists conducting quino butterfly surveys under recovery permits." 2000 Protocol at 1, reprinted in J.A. at 113. Both Protocols also warn that "surveys may not be considered valid if . . . the specific survey methods described above are not followed." 2000 Protocol at 6, reprinted in J.A. at 118; see also 1999...

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