S.W. Center Biological Diversity v. Babbitt & Clark
| Decision Date | 16 June 2000 |
| Docket Number | No. 99-5313,99-5313 |
| Citation | 215 F.3d 58 |
| Parties | (D.C. 2000) Southwest Center for Biological Diversity, et al.,Appellees v. Bruce Babbitt and Jamie Rappaport Clark, Director, U.S. Fish and Wildlife Service, Appellants |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia(No. 98cv934)
Andrew C. Mergen, Attorney, United States Department of Justice, argued the cause for appellants. With him on the briefs were Lois J. Schiffer, Assistant Attorney General, and James C. Kilbourne, Attorney. Lisa E. Jones and Elizabeth A. Peterson, Attorneys, entered appearances.
Katherine A. Meyer argued the cause for appellees. With her on the brief was Eric R. Glitzenstein.
Before: Edwards, Chief Judge, Randolph and Rogers, Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
The only issue raised on appeal in this case is whether the Endangered Species Act ("Act") requires the Fish and Wildlife Service to conduct an on-site population count of birds when the currently available data are sparse and calculations of a bird species population must of necessity be based on estimates. The Act provides that the Secretary of the Interior must make decisions whether to list a species as endangered or threatened "solely on the basis of the best scientific and commercial data available to him...." 16 U.S.C. 1533(b)(1)(A) (1994). Appellees, the Southwest Center for Biological Diversity, et al., ("Center"), argued below that the best available evidence demonstrates that the Fish and Wildlife Service should list the Queen Charlotte goshawk as a threatened or endangered species under 16 U.S.C. 1533. Appellants, Bruce Babbitt, et al., ("Government") countered that the data did not compel such a listing. The principal dispute between the partiesbefore the District Court was over what to make of the best available data, not whether such data existed. The District Court, however, sidestepped the parties' real dispute and concluded instead that the best available data simply was not good enough.
Indeed, instead of resolving the parties' dispute on the basis of the best available data in the record, the District Court issued an order remanding the case back to the Fish and Wildlife Service with instructions to count the goshawk population. See Southwest Ctr. for Biological Diversity v. Babbitt, Civ. No. 98-934, Order (D.D.C. July 20, 1999) ("Order"), reprinted in Joint Appendix ("J.A.") 1973. Appellants now challenge this order, claiming that the District Court's decision is completely at odds with the statute. We agree. The statute provides that the Secretary's decision must be made "solely on the basis of the best scientific and commercial data available to him." Therefore, on the record at hand, the District Court was without authority to order the Secretary to conduct an independent population count of the birds. Accordingly, we reverse the District Court's order, and we remand the case to the District Court for proper consideration of the parties' positions in light of the Act and an assessment of the available evidence.
On May 9, 1994, the Southwest Center for Biological Diversity filed a petition requesting that the Queen Charlotte goshawks, which are a "large, but rarely-seen" subspecies of hawks, be listed as threatened or endangered under the Act. Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 49, 50 (D.D.C. 1996); see 16 U.S.C. 1533(b)(3)(A) (1994). On May 19, 1995, the Fish and Wildlife Service found that, based on the best available scientific and commercial evidence, no listing was warranted. See Babbitt, 939 F. Supp. at 51. This initial decision was based on the Fish and Wildlife Service's conclusion that the Forest Service would address land management options to ensure goshawk habitat conservation. The Center challenged this decision, and, on September 25, 1996, the District Court granted a summary judgment in favor of the Center, finding that the Secretary could not rely on the Forest Service's possible future actions "as an excuse for not making a determination based on the existing record." Id. at 52.
On remand, the Fish and Wildlife Service once again declined to list the Queen Charlotte goshawk as a threatened or endangered species, and the Center once again challenged the agency's determination. In a July 9, 1999 hearing before the District Court, the Government argued that its sole obligation under the Endangered Species Act is to consider and act on the best available data, which the Government claimed it had done. The District Court persisted, however, in suggesting that a population count was necessary. See, e.g., Trial Tr. at 2-3, reprinted in J.A. 1913-14. The trial judge could not be moved from this position, not even by plaintiffs' acknowledgment that the District Court was required to assess the parties' positions in light of the best available evidence, not a population count. Following argument by the parties, the District Court issued an opinion on July 20, 1999, remanding the case to the Fish and Wildlife Service "for a more reliable determination of the Queen Charlotte goshawk population...." Order at 3, reprinted in J.A. 1975. This appeal followed.
On the record before us, it is clear that the District Court exceeded its authority in ordering the Government to conduct a population count of the goshawk species. 16 U.S.C. 1533(a)(1) instructs the Secretary to
determine whether any species is an endangered speciesor a threatened species because of any of the followingfactors:
(A) the present or threatened destruction, modifica-tion, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scien-tific or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms;or
(E) other natural or manmade factors affecting itscontinued existence.
16 U.S.C. 1533(a)(1) (1994). The Secretary is to make such a determination "solely on the basis of the best scientific and commercial data available to him...." 16 U.S.C. 1533(b)(1)(A). Read together, the two statutory provisions require the Secretary to list a species as endangered or threatened if, based solely on the best available data, any of 1533(a)(1)'s five factors are sufficiently implicated. The "best available data" requirement makes...
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