Home » Case Summaries » 2006 » Center for Biological Diversity v. United States Fish & Wildlife Service

 
 

Center for Biological Diversity v. United States Fish & Wildlife Service

 

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The Center for Biological Diversity (CBD) sued the United States Fish and Wildlife Service (the Service) challenging the Service’s failure to designate critical habitat under the Endangered Species Act (ESA)[1] for the unarmored threespine stickleback (stickleback)-an endangered, scaleless fish. CBD claimed 1) the Service violated the ESA by failing to complete the designation of critical habitat for the stickleback; 2) the Service violated the ESA and its regulations by issuing an incidental take statement (ITS) for the stickleback to CEMEX, a mining company to which the Bureau of Land Management (BLM) issued a mining permit for an operation affecting stickleback habitat; and 3) the Service’s eventual finding that critical habitat should not be designated for the stickleback was arbitrary and capricious. The Ninth Circuit denied all of CBD’s claims and affirmed the district’s court’s grant of summary judgment in favor of the Service and CEMEX.

The Service listed the stickleback as an endangered species under the ESA in 1970.[2] Found in southern California, the stickleback’s nesting success depends on gentle water flow. To protect areas with appropriate water flow, the Service proposed, in 1980, to designate three stream zones of the Santa Clara watershed as critical habitat, but did not complete the designation. In 1990, BLM awarded CEMEX a contract to mine a location that would require pumping water from the Santa Clara River. The project had the potential to significantly impact the stickleback by causing the stream to run dry during particularly dry periods. Therefore, BLM initiated formal consultation with the Service under the ESA and submitted a final biological assessment of the project in June, 1996. After reviewing the assessment, the Service issued a biological opinion in January, 1998 concluding that the project was “not likely to jeopardize the continued existence of the stickleback” and including an ITS that, if followed, would allow a taking of the species under Section 9 of the ESA.[3] The opinion also required CEMEX to take “reasonable and prudent measures” to minimize incidental take of stickleback including monitoring waters levels in the Santa Clara River and, if necessary, stopping the pumping to preserve stickleback habitat. This opinion ended the formal consultation process between BLM and the Service.

CBD filed suit in 2002, claiming that the Service violated the ESA by not completing the designation of critical stickleback habitat and violated the ESA and its regulations by issuing an ITS to CEMEX, who intervened as a defendant based on its interest in the mining project. Soon thereafter, on September 11, 2002, the Service published its finding that critical habitat should not be designated for the stickleback (Finding).[4] CBD amended its complaint challenging the Finding as arbitrary and capricious.

The district court granted summary judgment for the Service and CEMEX finding CBD’s original claim moot and rejecting CBD’s other claims. The court concluded that the Service had discretion to not designate critical habitat and that it did not violate the ESA by issuing the ITS. In addition, the district court granted motions to strike CBD exhibits that were not part of the administrative record. CBD appealed and the Ninth Circuit reviewed de novo.

The Ninth Circuit first dealt with CBD’s three challenges to the Service’s Finding: 1) the Service exceeded its authority by not making the designation of critical habitat “to the maximum extent prudent and determinable;”[5] 2) the Service failed to articulate a rational connection between the facts and its decision and therefore the Finding was arbitrary and capricious; and 3) the Finding was invalid because the Service did not provide for notice and comment.

In regards to the first challenge, the court held that the Service’s designation of critical habitat was not mandatory, but discretionary. The section of the ESA cited by CBD mandates that critical habitat be designated at the time of the species listing,[6] but that section was added in 1982-twelve years after the Service listed the stickleback. The 1982 ESA amendment specifies that pre-1982 determinations be treated as “regulations proposing the designation of critical habitat.”[7] Unlike the ESA regulations for designations which state the Service “shall” designate critical habitats, the regulations for revisions state that the Service “may” revise designations. The court seized on this difference as evidence that Congress intended for revisions to be discretionary.[8] Furthermore, “the Service has discretion in choosing a course of action with respect to such proposals, just as it does in deciding whether or not to propose a designation.”[9] To read the statute as creating a mandatory duty would render the statute’s use of “may” “superfluous”[10] and “the statute’s separate treatment of revisions and designations” “meaningless.”[11] Finally, the court rejected the argument that a mandatory duty arose when the Service did not make a final determination within a year after the 1982 enactment. “Agency delay does not transform a discretionary duty into a mandatory duty, especially where Congress provided a specific remedy for such a violation-a citizen suit to compel a decision.” [12] The Service’s duty was discretionary and it chose to not designate critical habitat for the stickleback.

The court next rejected CBD’s second challenge that the Finding was arbitrary and capricious. Before addressing the merits of the argument, the court held that CBD had standing under the Administrative Procedure Act (APA) to challenge the Finding.[13] The court concluded that because the Service had a mandatory duty to issue its Finding by publishing one of four actions under the ESA[14] then the action was not one “committed to agency discretion by law” and the APA’s review provision applied.[15]

As for the merits of the challenge that the Service’s decision was arbitrary and capricious, the court examined whether the “Service failed to articulate a rational connection between the fact that ‘critical habitat is a high priority’ for the stickleback and its Finding that the proposed designation should not be made.”[16] To answer that question the court looked at the agency’s stated rationale[17] that of the four actions it could take under the ESA, it chose not to designate critical habitat because it could not justify any of the other three actions.[18] First, the Service stated it could not designate critical habitat because the 1980 proposal was not based on the best scientific data available[19] and new scientific evidence and economic analysis would be required. Second, the Service stated that it could not defer its decision to redo the economic analysis and update the scientific information because it already had a backlog of duties that were mandatory designations of critical habitat, which demanded a higher priority.[20] Third, the Service stated that it could not withdraw the designation because it could not make the requisite finding of insufficient evidence based on stale data, and collecting new data would compromise the backlog of mandatory duties.[21] The Service concluded that the proposed designation should not be made and that this decision would not affect existing protections for the stickleback.[22]

The court rejected CBD’s argument that this Finding frustrated the policy mandate of the ESA. The court held that the Finding had “no effect” on the agency’s duty to consult the Service and avoid jeopardizing the stickleback,[23] it did not eliminate the ESA’s prohibition against the taking of stickleback,[24] and, moreover, the court would not question “Congress’s decision to allow the Service discretion regarding designation of critical habitat for species listed as endangered prior to 1982.”[25] The court also rejected CBD’s argument that the Service may only refuse to designate critical habitat if “the benefits of such exclusion outweigh the benefits of specifying such an area.”[26] The court indicated that this provision only provides a “basis for determinations”[27] and is a standard that only applies to mandatory designations. The determination at hand was a discretionary determination and, therefore, this section “simply [did] not apply.”[28] Based on this analysis the court concluded that the Service “considered the relevant factors and articulated a rational connection between the facts found and the choice made.”[29]

CBD’s third challenge to the Finding was that the Service did not provide adequate opportunity for notice and comment as required by the ESA and therefore the action should have been set aside under the APA.[30] The court rejected this argument stating that, although the ESA specifically requires notice and comment under two circumstances involving critical habitat revisions,[31] it does not expressly require notice and comment for a finding that a revision should not be made.[32] The court therefore inferred that “Congress did not intend to require notice.”[33]

Having found that the Service had the discretion to not designate the critical habitat, that the Service exercised that discretion properly, and that notice and comment were not required, the court concluded that neither the APA nor ESA required it to set aside the Finding.

Next, the court rejected CBD’s claim that the Service must ensure that an agency’s action will not violate federal or state law before it can issue an ITS. Before addressing the merits, the court determined that CBD had standing and that CBD’s claim was ripe. The APA right to judicial review[34] applies universally except when the statute specifically precludes it or the agency action is discretionary. In this case, the court determined CBD had standing because the ESA did not preclude judicial review and because the Service allegedly had a mandatory duty. The court determined the claim was ripe because the issuance of an ITS would cause “hardship” to CBD by creating a legal right to take the stickleback, immediate judicial review of CBD’s claim would not interfere with further administrative action, and further factual development would not assist resolving the issue.[35]

On the merits, the Court denied the claim that before issuing an ITS the Service must ensure compliance with other federal and state laws.[36] Service regulations define “incidental take” as a “taking[] that results from, but are not the purpose of, carrying out an otherwise lawful activity.”[37] “Otherwise lawful activity” is defined as “those actions that meet all State and Federal legal requirements.”[38] However, the court rejected the argument that “legal requirements” meant compliance with all state and federal law. The ESA “says nothing about issuing a biological opinion or ITS only after ensuring a planned action’s compliance with all state and federal laws.”[39] Furthermore, to require such would “impose an enormous burden on the Service.”[40] The Court deferred to the Service’s “reasonable interpretation” of “legal requirements” as meaning that “an ITS does not relieve the action agency or applicant of its responsibility to comply with other . . . legal requirements.”[41] Therefore, the court determined that the Service was not required to ensure compliance with other laws prior to issuing an ITS.

Lastly, applying an abuse of discretion standard, the court affirmed the district court’s decision to strike fifteen exhibits offered by CBD that were not in the administrative record. When reviewing an agency decision the focus should be on the “administrative record”[42] and parties may not use “post-decision information as a new rationalization either for sustaining or attacking the Agency’s decision.”[43] However, the court recognized four exceptions to this rule, two of which CBD asserted: extra record materials may be allowed “(1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision, [or] . . . (3) when supplementing the record is necessary to explain technical terms or complex subject matter.”[44] The court rejected CBD’s reasoning that these exhibits were necessary as a “persuasive force” to explain “take” under state law and to show that the Service failed to consider a relevant factor. “Post-decision information ‘may not be advanced as a new rationalization . . . for attacking an agency’s decision.'”[45] Therefore, the court concluded that the district court did not abuse its discretion in striking these exhibits.

In conclusion, the Ninth Circuit affirmed the district court’s ruling that the Service’s decision to not designate critical habitat for the stickleback was not arbitrary and capricious, the Service was not required to ensure compliance with federal and state laws prior to issuing an ITS, and the district court did not abuse its discretion for striking exhibits that were outside the administrative record. The district court’s grant of summary judgment to the Service and CEMEX was affirmed.


[1] ESA, 16 U.S.C. §§ 1531-99 (2000)

[2] 35 Fed. Reg. 16,047, 16,048 (Oct. 13, 1970).

[3] “The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19) (2000).

[4] Designation of Critical Habitat for the Unarmored Threespine Stickleback, 67 Fed. Reg. 58,580, 58,581 (Sept. 17, 2002).

[5] 16 U.S.C. § 1533(a)(3) (2000).

[6] “The [Service] . . . to the maximum extent prudent and determinable (A) shall, concurrently with making a determination . . . designate any habitat of such species which is then considered to be critical habitat; and (B) may, from time-to-time thereafter as appropriate, revise such designation.” Id.

[7] ESA Amendments of 1982, Pub. L. No. 97-304, § 2(h)(2), 96 Stat. 1411, 16 (1982).

[8] “[T]he normal inference is that each is being used in its ordinary sense-the one being permissive, the other mandatory.” Haynes v. United States, 891 F2d. 235, 239-40 (9th Cir. 1989).

[9] Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F3d 930, 936 (9th Cir. 2006).

[10] Id.

[11] Id.

[12] Id.; see Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1400 (9th Cir. 1995).

[13] Administrative Procedure Act, 5 U.S.C. § 701(a)(2) (2000).

[14] Ctr. for Biological Diversity, 450 F.3d at 936-37.

The Service ‘shall publish’: (I) a final regulation to implement the revision, (II) a finding that the revision should not be made, (III) notice that the one-year period is being extended, or (IV) notice that the proposed revision is being withdraw together with the finding on which the withdrawal is based. [16 U.S.C. 1533(b)(6)(A)(i) (2000).] Although the Service has some discretion in selecting one of these options, it must choose one of the four.

[15] Id. at 936-37 (citing 5 U.S.C. § 701(a)(2) (2000)).

[16] Id. at 937 (citing Rybacheck v. U.S. Enivronmental Protection Agency, 904 F.2d 1276, 1284 (9th Cir. 1990)).

[17] Id. (citing Ariz. Cattle Growers’ Ass’n v. U.S. Fish and Wildlife Serv., 273 F.3d 1229, 1236 (9th Cir. 2001)).

[18] Id. (citing Designation of Critical Habitat for the Unarmored Threespine Stickleback, 67 Fed. Reg. 58,580, 58581 (Sept. 17, 2002).

[19] Id. (citing Designation of Critical Habitat for the Unarmored Threespine Stickleback, 67 Fed. Reg. 58,580, 58581 (Sept. 17, 2002).

[20] Id. (citing Designation of Critical Habitat for the Unarmored Threespine Stickleback, 67 Fed. Reg. 58,580, 58581 (Sept. 17, 2002)).

[21] Id. at 938 (citing Designation of Critical Habitat for the Unarmored Threespine Stickleback, 67 Fed. Reg. 58,580, 58,581 (Sept. 17, 2002)).

[22] Id. (citing Designation of Critical Habitat for the Unarmored Threespine Stickleback, 67 Fed. Reg. 58,580, 58,582 (Sept. 17, 2002)).

[23] Id. (citing 16 U.S.C. § 1536(a)(2) (2000)).

[24] Id. (citing 16 U.S.C. § 1538(a)(1) (2000)).

[25] Id.

[26] Id. (quoting 16 U.S.C. § 1533(b)(2) (2000)).

[27] Id.

[28] Ctr. for Biological Diversity, 450 F.3d at 938.

[29] Rybacheck v. U.S. Enivronmental Protection Agency, 904 F.2d. 1276, 1284 (9th Cir. 1990).

[30] 5 U.S.C. § 706(2)(A) (2000).

[31] 16 U.S.C. § 1533(b)(6)(A)(i)(III), (IV) (2000).

[32] Id. § 1533(b)(6)(A)(i).

[33] Ctr. for Biological Diversity, 450 F.3d at 939; see Boudette v. Barnette, 923 F.2d 754 , 756-57 (9th Cir. 1991) (noting that the expressio unius est exclusio alterius canon “creates a presumption that when a statue designates certain . . . manners of operation, all omissions should be understood as exclusions”).

[34] 5 U.S.C. § 704 (2000).

[35] To resolve ripeness “we must consider (1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).

[36] CBD asserted that the ITS violated California law which protected the stickleback and prohibited any taking. Ctr. for Biological Diversity, 450 F.3d at 942.

[37] 50 C.F.R. § 402.02 (2006).

[38] Interagency Cooperation-Endangered Species Act of 1973, as Amended; Final Rule, 51 Fed. Reg. 19,926, 19,936 (June 3, 1986).

[39] Ctr. for Biological Diversity, 450 F.3d at 942.

[40] Id. at 943.

[41] Ctr. for Biological Diversity, 450 F.3d at 942.

[42] Camp v. Pitts, 411 U.S. 138, 142 (1973).

[43] Ass’n of Pac. Fisheries v. Envtl. Protection Agency, 615 F.2d 794, 811-12 (9th Cir. 1980).

[44] Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996).

[45] Ctr. for Biological Diversity, 450 F.3d at 6153 (citing Sw. Ctr. for Biological Diversity, 100 F.3d at 1451-52).

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