Home » Case Summaries » 2006 » Kern County Farm Bureau v. Allen

 
 

Kern County Farm Bureau v. Allen

 

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Kern County Farm Bureau (Kern), among others, appealed a judgment that the United States Fish and Wildlife Service (FWS) complied with the procedural requirements of the Administrative Procedure Act (APA)[1] and the Endangered Species Act (ESA)[2] when FWS incorporated information from three new studies in its Final Rule listing the Buena Vista Lake shrew (BVL shrew) (Sorex ornatus relictus)[3] as endangered without reopening the comment period. The Ninth Circuit held that FWS sufficiently complied with the procedural requirements of both the APA and the ESA when it issued its final rule because 1) the new studies were not critical to FWS’s decision, as the information in the studies only provided additional data to support FWS’s original conclusions, 2) FWS relied on the best scientific data available in developing the Final Rule, and 3) FWS provided ample explanation of the relationship between the data and the Final Rule. The Ninth Circuit affirmed the district court’s finding that there was no reason to invalidate the listing decision or require a new comment period.

On June 1, 2000, FWS published a Proposed Rule to list the BVL shrew as an endangered subspecies under the ESA.[4] The Proposed Rule stated that the only known population of BVL shrews lived on private land, in wetland habitat,[5] and the quantity and quality of available habitat had been reduced as a result of human activity.[6] The rule concluded that the continued threats to the BVL shrew would likely result in the extinction of the subspecies.[7] FWS opened a sixty day comment period, soliciting information about the threats to the subspecies, the existence of additional populations, and the size, genetics, range, and distribution of the known population.[8] FWS opened a second sixty day comment period to allow general comment by interested parties. Additionally, FWS asked for the expert opinion of five biology and ecology specialists.[9] After the close of the comment period, but prior to the publication of the Final Rule, three new studies about the BVL shrew became available. However, FWS did not reopen comment on the Proposed Rule, but issued a Final Rule on March 6, 2002, listing the BVL shrew as endangered.[10] While the Final Rule incorporated information from the new studies as well as comments, the reasons for listing the BVL shrew were essentially the same as those in the Proposed Rule, and the ultimate conclusion–that the BVL shrew should be listed as endangered–was the same.[11]

Under the APA,[12] agencies must publish notice of rule making in the Federal Register to give interested persons the opportunity to comment on the proposed rule, which provides the agency with additional information when issuing the final rule.[13] FWS, one of the agencies charged with administering the ESA,[14] can undertake rulemaking to list a species as endangered if any one of the following five factors is satisfied: 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 man-made factors affecting its continued existence.”[15] The ESA requires that the decision to list a species as endangered be made exclusively on the “basis of the best scientific and commercial data available.”[16] Further, the agency must include a summary of the data used to support the regulation in the proposed or final rule and must explain the relationship between the data and the regulation.[17]

Following FWS’s issuance of the Final Rule listing the BVL shrew as endangered, Kern brought suit, alleging that FWS failed to comply with specific procedural requirements of the APA and ESA by: not reopening the comment period after the new studies became available, not using the best available scientific data in making the listing decision, not summarizing the data used in the decision, and not showing the connection between the data and the decision.

The APA states that a court can only negate agency action if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” or undertaken “without observance of procedure required by law.”[18] Under this deferential standard, a court cannot negate agency action if there is a reasonable basis for the agency’s decision.[19] Further, the Ninth Circuit noted that under this standard of review, the court is not permitted to substitute its judgment for the agency’s judgment.[20] When reviewing agency action for procedural compliance, the court reviews de novo, but is limited to ensuring that the agency adhered to “statutorily prescribed procedures.”[21] Additionally, the reviewing court awards no deference to the agency’s opinion regarding the adequacy of the notice and comment procedure.[22]

The district court, following a bench trial, determined that the new studies provided supplemental data for the proposed rule. Accordingly, the court found that there was no reason to invalidate the listing and require a new comment period.[23]

The Ninth Circuit first addressed whether FWS provided sufficient notice and comment. The court began by noting that an agency is required to make available for comment data and studies used to formulate its decision.[24] Accordingly, an agency commits procedural error if it does not disclose the scientific basis for the proposed rule with sufficient time for comment.[25] However, agencies are not precluded from including additional documents in the final rule in response to comments.[26] The Ninth Circuit looked to BASF Wyandotee Corp. v. Costle[27] for the policy statement that agencies should be encouraged to add new information to the final rule without having to reopen the comment period.[28] To support its position, the court turned to Idaho Farm Bureau Federation v. Babbitt[29] for the proposition that “an agency, without reopening the comment period, may use supplementary data, unavailable during the notice and comment period, that expands on and confirms information contained in the proposed rulemaking and addresses alleged deficiencies in the pre-existing data, so long as no prejudice is shown.”[30]

The Ninth Circuit then looked to Idaho Farm Bureau and Solite Corp. v. EPA[31] to illustrate the circumstances that require an agency to reopen comment when new data has become available. In Idaho Farm Bureau, the Ninth Circuit held that FWS made a procedural error in listing the Bruneau Hot Springs snail (Pyrgulopsis bruneauensis) as endangered when the agency did not reopen public comment after new information became available because the new information was the sole basis of information about the snail’s habitat. The court determined that FWS had to reopen public comment because the agency’s reliance on the study made the new information critical to the proposed rule and because the accuracy of the study was debatable.[32] In Solite Corp v. EPA, the District Court for the District of Columbia determined that EPA did not commit procedural error by not reopening public comment even after new information became available that was used in the final rule. The court upheld EPA’s determination that a new comment period was unnecessary because the new report merely replaced an older report, the data was not challenged, there was no indication that EPA tried to hide the report or acted in bad faith, the new data confirmed the previous conclusions, and the agency’s methodology was constant throughout the rulemaking process.[33]

The Ninth Circuit then discussed each of the three new studies in turn. The first post-comment study (Maldonado I) was a genetic study of 251 shrews. The study stated that the shrew was one of the most threatened small mammals in California, and attributed this to the destruction of its habitat. The study did not change the taxonomy of the BVL shrew, noting that it was a subspecies.[34] The second post comment study (Maldonado II), examined the morphological characteristics of over 500 shrew skulls. The study concluded that the subspecies analyzed corresponded to the existing subspecies divisions, and that the shrew should continue to be divided into the existing subspecies.[35] The third post comment study (Status Report) found three additional BVL shrew populations and postulated about the habitat requirements of ornate shrews in general. The study concluded that while the continued presence of the BVL shrew depended on habitat conservation,[36] the authors did not think the BVL shrew was, or would become, endangered.

In turning to the issue before the court, the Ninth Circuit rejected Kern’s argument that the three new studies were critical to FWS’s listing decision. The court analogized between the present case and Solite Corp., noting that Kern was not challenging the accuracy of the new studies, and there was no indication that FWS tried to conceal the new information from the pubic or act in bad faith. The court distinguished the present case from Idaho Farm Bureau, noting that the new information did not form the sole basis for the listing decision. Instead, like Solite Corp., the new information from the three studies provided additional data and support for the conclusions already contained in the Proposed Rule.

Despite the similarity between the Proposed Rule and the Final Rule, Kern argued that an additional comment period was needed because the new studies 1) provided critical information on whether the BVL shrew was a distinct subspecies, 2) provided critical information on whether the BVL shrew was threatened with extinction, and 3) put the listing decision in doubt. The court addressed each of Kern’s contentions individually.

The Ninth Circuit began by stating that for an animal to be listed as endangered under the ESA, the animal must first be classified as at least a distinct subspecies.[37] In applying this requirement to the present case, the court concluded that the two new Maldonado studies were used to provide additional scientific support that the BVL shrew was a morphologically and genetically distinct shrew. The Ninth Circuit noted that the Proposed Rule cited an earlier study to support the conclusion that the BVL shrew was a distinct subspecies.[38] The court concluded that the two Maldonado studies corroborated FWS’s original conclusion that the BVL shrew was a distinct subspecies and were therefore not critical to the listing decision.

The Ninth Circuit then considered whether the studies provided critical information on the BVL shrew’s danger of extinction “throughout all or a significant portion of its range.”[39] The Final Rule incorporated information from the Status Report that supported FWS’s finding that few BVL shrews exist and multiple factors contribute to their risk of extinction. The Ninth Circuit acknowledged the relevance of the data obtained from the Status Report–the discovery of three new BVL shrew populations doubled the number of known shrews, and there was new information about the range and habitat needs of the BVL shrew. However, the court determined that the new information did not undermine the reasoning supporting FWS’s listing decision. Instead, the Ninth Circuit concluded that because the new information provided additional support for FWS’s underlying conclusions without varying them, the new information was not critical to FWS’s listing decision.

The Ninth Circuit then addressed Kern’s argument that the Status Report‘s conclusion that the BVL shrew should not receive endangered status threw doubt on the legitimacy of the listing decision. In spite of the Status Report‘s conclusion, FWS concluded that the information in the Status Report supported its decision to list the BVL shrew as endangered. The Ninth Circuit stated that FWS is not obligated to accept the conclusions of the Status Report, but FWS is obligated to use the data from the report to reach their decision. The court then noted that this challenge to the listing decision was substantive rather than procedural; Kern challenged the listing decision by questioning the degree to which the new studies undermined the listing decision. The Ninth Circuit stated that because Kern only alleged procedural violations, the court could not hear the substantive issues.

The Ninth Circuit then turned to Kern’s argument that FWS did not use the “best scientific and commercial data available” as required by the ESA.[40] The court noted that in practice, this requirement only prevents an agency from ignoring scientific information that is better than the scientific information the agency relies on in formulating its rule.[41] The Ninth Circuit looked to Building Industry Association of Superior California v. Norton for the proposition that an agency does not violate the ESA requirement to use the best scientific data available absent the omission of “superior data.”[42] The court noted that Kern did not argue that FWS excluded the three new studies from the Final Rule. Kern argued that FWS misconstrued the information in the three studies and because the three new studies questioned the listing decision, FWS had ignored the studies. The Ninth Circuit determined that the record showed the FWS had considered, discussed, evaluated and included the information from the new studies during the process of issuing the Final Rule.

The Ninth Circuit rejected Kern’s final argument that FWS had violated the ESA[43] by failing to summarize the information supporting the Final Rule and explain the relationship between the data and the Final Rule. To support their argument, Kern listed its questions to which FWS had not responded in issuing the Final Rule. The Ninth Circuit stated that FWS was under no requirement to respond to Kern’s questions before issuing a Final Rule. The court then noted that the Final Rule was supported by the record, which contained data and explanation about the BVL shrew’s population and range, and the multiple threats to the BVL shrew. Thus, the Ninth Circuit concluded that FWS satisfied the requirements of the ESA.

The Ninth Circuit concluded that FWS’s listing decision was in compliance with procedural requirements of the APA and the ESA because 1) the new studies were not critical to FWS’s decision, as the information in the studies only provided additionally data to support FWS’s original conclusions; 2) FWS relied on the best scientific data available in developing the Final Rule; and 3) FWS provided ample explanation of the relationship between the data and the Final Rule. Therefore, the Ninth Circuit affirmed the district courts finding that there was no reason to invalidate the listing decision and require a new comment period.


[1] Administrative Procedure Act, 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2000).

[2] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-44 (2000).

[3] The BVL shrew is a subspecies of ornate shrews, endemic to Kern County, California; fewer than 30 are known to exist. Endangered and Threatened Wildlife and Plants; Endangered Status for the Buena Vista Lake Shrew, 67 Fed. Reg. 10,101, 10,110 (Mar. 6, 2002) (to be codified at 50 C.F.R. pt. 17).

[4] Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for the Buena Vista Lake Shrew, 65 Fed. Reg. 35,033 (proposed June 1, 2000) (to be codified at 50 C.F.R. pt. 17).

[5] Id at 35,034.

[6] Id. at 35,036.

[7] Id. at 35,038.

[8] Id. at 35,039.

[9] Endangered and Threatened Wildlife and Plants; Endangered Status for the Buena Vista Lake Shrew, 67 Fed. Reg. 10,101, 10,105 (Mar. 6, 2002) (to be codified at 50 C.F.R. pt. 17).

[10] Id. at 10,101.

[11] Id.at 10,110.

[12] The ESA requires species listing decisions to comply with the notice and comment requirements of section 553 of the APA. Endangered Species Act of 1973, 16 U.S.C. § 1533(b)(4) (2000).

[13] Administrative Procedure Act, 5 U.S.C. § 553(b)-(c) (2000).

[14] See Interagency Cooperation – Endangered Species Act of 1973, 50 C.F.R. § 402.01(b) (2006) (declaring FWS and National Marine Fisheries Service (NMFS) jointly responsible for administering the ESA).

[15] Endangered Species Act of 1973, 16 U.S.C. § 1533(a)(1)(A)-(E) (2000).

[16] Id. § 1533(b)(1)(A).

[17] Id.§ 1533(b)(8).

[18] 5 U.S.C. §§ 706(2)(A), (D) (2000).

[19] Independent Acceptance Co. v. Cal., 204 F.3d 1247, 1251 (9th Cir. 2000) (citing Cal. Hosp. Ass’n v. Schweiker, 559 F. Supp 110, 116 (D. Cal 1982)).

[20] Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376 (1989).

[21] Campanale & Sons, Inc. v. Evans, 311 F.3d 109, 116 (6th Cir. 2004) (internal citation omitted).

[22] Natural Res. Def. Council, Inc. v. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002).

[23] Kern County Farm Bureau v. Allen (Kern County), 450 F.3d 1072, 1075 (9th Cir. 2006).

[24] Solite Corp. v. EPA (Soltite), 952 F.2d 473, 484 (D.C. Cir. 1991).

[25] Id.

[26] Rybachek v. EPA, 904 F.2d 1276, 1286 (9th Cir. 1990).

[27] 598 F.2d 637 (1st Cir. 1979).

[28] BASF Wyandotee Corp. v. Costle, 598 F.2d 637, 644-45 (1st Cir. 1979).

[29] 58 F.3d 1392 (9th Cir. 1995).

[30] Kern County, 450 F.3d 1075, 1076 (9th Cir. 2006) (citing Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1402 (9th Cir. 1995)).

[31] 952 F.2d 473 (D.C. Cir. 1991).

[32] Kern County, 450 F.3d at 1076.

[33] Solite Corp., 952 F.2d at 484-85, 500.

[34] Jesus E. Maldonado, et al., Tripartite Genetic Subdivisions in the Ornate Shrew (Sorex ornatus), 10 MolecularEcology 127 (2001).

[35] Jesus E. Maldonado, Discordant Patters of Morphological Variation in Genetically Divergent Populations of Ornate Shrews (Sorex Ornatus), 85 J. ofMammology 886 (2004).

[36] Daniel Williams & Adam Harpster, Status of the Buena Vista Lake Shrew (Sorex ornatus relictus) (Oct. 29, 2001) (unpublished report).

[37] See Endangered Species Act of 1973, 16 U.S.C. § 1532(16) (2000).

[38] 65 Fed. Reg. 35,033, 35,033-34 (June 1, 2000).

[39] 16 U.S.C. § 1532(6) (2000).

[40] Id. § 1533(b)(1)(A).

[41] Sw. Ctr. For Biological Diversity v. Babbitt, 215 F.3d 58, 60 (D.C. Cir. 2000); see also Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988) (stating that an agency “cannot ignore available biological information”).

[42] Building. Indus. Ass’n of Superior Cal. v. Norton, 247 F.3d 1241, 1246-47 (D.C. Cir. 2001).

[43] 16 U.S.C. § 1533(b)(8) (2000).

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