Friends of Animals v. Deb Haaland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRIENDS OF ANIMALS, No. 20-35318
Plaintiff-Appellant,
D.C. No.
v. 1:18-cv-00064-
SPW-TJC
DEB HAALAND, in her official
capacity as Secretary of the U.S.
Department of Interior; MARTHA OPINION
WILLIAMS, in her official capacity as
Principal Deputy Director of the U.S.
Fish and Wildlife Service; UNITED
STATES FISH AND WILDLIFE SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted March 1, 2021
Portland, Oregon
Filed May 17, 2021
2 FRIENDS OF ANIMALS V. HAALAND
Before: Richard A. Paez and Paul J. Watford, Circuit
Judges, and John R. Tunheim, * District Judge.
Opinion by Judge Tunheim
SUMMARY **
Environmental Law
The panel reversed the district court’s summary
judgment entered in favor of federal officials and the U.S.
Fish and Wildlife Service (“FWS”), and remanded to the
district court to enter judgment in favor of the Friends of
Animals (“Friends”) in an action challenging FWS’s rule, 50
C.F.R. § 424.14(b), which required that affected states
receive 30-day notice of an intent to file a petition to list an
endangered species.
In 2017, Friends filed a petition requesting that FWS list
the Pryor Mountain wild horse population as a threatened or
endangered distinct population segment under the
Endangered Species Act (“ESA”). The FWS notified
Friends that the submission did not qualify as a petition
because it did not include copies of required notification
letters or electronic communications to state agencies in
affected areas. Friends filed this action seeking a declaration
that federal defendants violated the ESA and the
*
The Honorable John R. Tunheim, Chief United States District
Judge for the District of Minnesota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FRIENDS OF ANIMALS V. HAALAND 3
Administrative Procedure Act by impermissibly requiring
that the 30-day notice be made to affected states and refusing
to issue a finding on Friends’ petition within 90 days, and
vacatur of 50 C.F.R. § 424.14(b)’s 30-day notice
requirement. The district court concluded that the pre-file
notice requirement was a permissible construction of the
ESA.
The panel held that the FWS’s pre-file notice rule was
inconsistent with the statutory scheme of the ESA. Because
the pre-file notice rule was enacted through notice-and-
comment rulemaking procedures pursuant to 16 U.S.C.
§ 1533(h), the panel reviewed the agency rulemaking under
the two-step Chevron framework. The panel held that the
pre-file notice rule survived step one – determining whether
Congress clearly spoke to the question at issue – because the
ESA was silent as to pre-petition procedures and notice
requirements. At step two, the panel assessed whether
FWS’s construction of the rule was reasonable. The panel
held that the pre-file notice rule created a procedural hurdle
for petitioners that did not comport with the ESA. Here, the
FWS used the pre-file notice rule to refuse to consider a
petition that was properly submitted, complied with the
substantive requirements in all other aspects, and was
otherwise entitled to a 90-day finding, while relying on an
unreasonable justification that did not accord with the aims
of the ESA. The panel concluded that the pre-file notice rule
did not survive the second step of the Chevron test.
The panel concluded that the FWS’s decision to deny
Friend’s petition because of its non-compliance with the pre-
file notice rule could not be sustained.
4 FRIENDS OF ANIMALS V. HAALAND
COUNSEL
Michael Ray Harris (argued) and Jennifer Best, Friends of
Animals Wildlife Law Program, Centennial, Colorado, for
Plaintiff-Appellant.
Robert J. Lundman (argued) and Mark R. Haag, Attorneys;
Eric Grant, Deputy Assistant Attorney General; Jonathan D.
Brightbill, Principal Deputy Assistant Attorney General;
Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C.; Linus Y. Chen,
Attorney, Office of the Solicitor, United States Department
of the Interior, Washington, D.C.; for Defendants-Appellees.
OPINION
TUNHEIM, District Judge:
Plaintiff-Appellant, Friends of Animals (“Friends”),
brought this action challenging a Fish and Wildlife Service
(“FWS”) rule, 50 C.F.R. § 424.14(b), which requires that
affected states receive 30-day notice of an intent to file a
petition to list an endangered species. Friends asserts claims
under the Endangered Species Act (“ESA”), 16 U.S.C.
§§ 1531–1544, and the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 701–706. Friends alleges that the
FWS used the “pre-file notice rule” to improperly reject
Friends’s petition to list the Pryor Mountain wild horse as a
threatened or endangered distinct population segment, and
argues that the rule revision violates the ESA’s requirements
for review of petitions and is inconsistent with the APA.
The district court granted summary judgment for
Defendants. Friends appeals. We have jurisdiction under
FRIENDS OF ANIMALS V. HAALAND 5
28 U.S.C. § 1291. Because we conclude that the pre-file
notice rule is inconsistent with the statutory scheme of the
ESA, we reverse the district court’s grant of summary
judgment for Defendants and remand to the district court to
enter summary judgment in favor of Friends.
I. BACKGROUND
A. The Endangered Species Act
The purpose of the ESA is to provide a program for the
conservation of endangered and threatened species and to
preserve the ecosystems on which these species depend.
16 U.S.C. § 1531(b). The term ‘species’ includes “any
subspecies of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate fish or
wildlife which interbreeds when mature.” Id. § 1532(16).
The ESA establishes two methods for identifying and listing
species as threatened or endangered: the Secretary of the
United States Department of the Interior (“Secretary”) and
delegated agencies, the National Marine Fisheries Services
and the FWS (collectively, “the Services”) may
independently identify species for protection; or, interested
persons may petition the Secretary and the Services to list a
species as threatened or endangered. 16 U.S.C. §§ 1532(15),
1533(b); 5 U.S.C. § 553(e); 50 C.F.R. §§ 402.01(b),
424.14(a).
Section 4 of the ESA establishes the process for listing,
delisting, or modifying the status of a species or habitat by
petition:
To the maximum extent practicable, within
90 days after receiving the petition of an
interested person under section 553(e) of
[T]itle 5, to add a species to, or to remove a
6 FRIENDS OF ANIMALS V. HAALAND
species from, either of the lists published
under subsection (c), the Secretary shall
make a finding as to whether the petition
presents substantial scientific or commercial
information indicating that the petitioned
action may be warranted. If such a petition is
found to present such information, the
Secretary shall promptly commence a review
of the status of the species concerned. The
Secretary shall promptly publish each finding
made under this subparagraph in the Federal
Register.
16 U.S.C. § 1533(b)(3)(A). If the 90-day finding
demonstrates that the petition warrants action, the Services
move to the second phase and undertake a 12-month review
to determine whether listing the species is either (i) not
warranted; (ii) warranted; or (iii) warranted but precluded by
other pending proposals. Id. § 1533(b)(3)(B). The Services
continue to review and monitor species in the third category
until it is determined whether protection is “warranted” or
“not warranted.” Id. § 1533(b)(3)(C)(i), (iii).
The ESA also authorizes the Secretary to “establish, and
publish in the Federal Register, agency guidelines to insure
that the purposes of [the ESA] are achieved efficiently and
effectively.” Id. § 1533(h). These guidelines include
procedures for recording the receipt and disposition of
citizen petitions, criteria for making required findings, a
ranking system to prioritize review of species; and, a system
of developing, implementing, and prioritizing recovery
plans. Id.
FRIENDS OF ANIMALS V. HAALAND 7
B. The “Pre-File Notice” Rule
In May of 2015, the Services published a proposed rule
revision related to the petition process. 80 Fed. Reg. 29,286(May 21, 2015). The proposed modification would have
required a petitioner to provide a copy of the petition to the
state agencies responsible for the management and
conservation of fish, plant, or wildlife resources in each state
where the species occurs at least 30 days prior to submitting
the petition to the Services, and would have required the
petitioner to append any data or written comments from the
state to their petition. Id. at 29,288.
The Services promulgated the final rule revision in
September 2016. 81 Fed. Reg. 66,462 (Sept. 27, 2016)
(codified at 50 C.F.R. § 424.14). In response to comments
expressing concern about the burdens on petitioners and
state agencies, the final rule jettisoned the requirement that
petitioners coordinate with states, requiring instead that a
petitioner “provide notice to the State agency responsible for
the management and conservation of fish, plant, or wildlife
resources in each State where the species that is the subject
of the petition occurs” at least 30 days prior to submitting the
petition. 50 C.F.R. § 424.14(b); 81 Fed. Reg. at 66,464,
66,484.
The final rule revision was intended to “improve the
quality of petitions through clarified content requirements
and guidelines, and, in so doing, better focus the Services’
resources on petitions that merit further analysis.” 81 Fed.
Reg. at 66,462. The Services explained that the rule revision
would give affected states “the opportunity to submit data
and information to the Services in the 30-day period before
a petition is filed” that the Services could then rely on in their
90-day review. Id. at 66,465. The Services acknowledged
that the use of state-supplied information in making the 90-
8 FRIENDS OF ANIMALS V. HAALAND
day determination was a change from prior practice, but
found that this change would “expand the ability of the
States and any interested parties to take the initiative of
submitting input and information for the Services to consider
in making 90-day findings, thereby making the petition
process both more efficient and more thorough.” Id.
C. Friends’s Petition
In 2017, Friends filed a petition requesting that the FWS
list the Pryor Mountain wild horse population as a threatened
or endangered distinct population segment under the ESA.
The Pryor Mountain wild horse population resides in
Montana and Wyoming and represents a unique Old-World
Spanish genetic lineage. Friends contends that the Pryor
Mountain wild horse population is critically small and its
continued survival is threatened by curtailment of the horses’
habitat range, inadequacy of existing regulatory
mechanisms, and political pressure to remove or dispose of
free-roaming wild horses.
On July 20, 2017, the FWS notified Friends that the
submission did not qualify as a petition because it did not
include copies of required notification letters or electronic
communications to state agencies in affected states. The
FWS did not identify any other deficiencies with Friends’s
petition.
D. Procedural History
Friends filed an action in federal court in the District of
Montana against the Secretary and the Director of the FWS,
in their official capacities, and the FWS. Friends requested
a declaration that Defendants violated the ESA and APA by
impermissibly requiring that the 30-day notice be made to
affected states and refusing to issue a finding on Friends’s
FRIENDS OF ANIMALS V. HAALAND 9
petition within 90 days, as well as vacatur of 50 C.F.R.
§ 424.14(b)’s 30-day notice requirement and issuance of a
finding on the Pryor Mountain wild horse petition within
60 days.
Friends moved for summary judgment, arguing that the
notice provision is inconsistent with the ESA’s legal
standards for review of petitions; that the rule alters statutory
deadlines and unlawfully restricts petitioners’ discretion to
control the timing of filing petitions; and that the rule is
inconsistent with the APA. Defendants filed a cross-motion
for summary judgment asserting that Friends had failed to
establish that their petition was improperly denied or that the
notice provision is contrary to law.
The magistrate judge found that the notice provision
contravened the ESA’s purpose to require agency findings
after 90-day review, was inconsistent with the ESA and was
therefore arbitrary and capricious, and recommended
granting summary judgment to Friends. The district court,
however, concluded that the pre-file notice requirement is a
permissible construction of the ESA, which was designed to
improve the efficiency and effectiveness of the petition
process, and therefore granted summary judgment to
Defendants.
II. DISCUSSION
A. Standard of Review
We review the district court’s grant of summary
judgment de novo. Ctr. for Biological Diversity v. Zinke,
868 F.3d 1054, 1057 (9th Cir. 2017). The Court reviews
agency decisions under the ESA pursuant to Section 706 of
the APA. Turtle Island Restoration Network v. U.S. Dep’t
of Commerce, 878 F.3d 725, 732–33 (9th Cir. 2017). The
10 FRIENDS OF ANIMALS V. HAALAND
APA requires courts to “hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” “in excess of statutory jurisdiction,”
or “without observance of procedure required by law.”
5 U.S.C. § 706(2).
Under the arbitrary and capricious standard, the scope of
review is deferential and narrow, and the court is not to
substitute its judgment for the agency’s judgment. Alaska
Wilderness League v. Jewell, 788 F.3d 1212, 1217 (9th Cir.
2015). Nevertheless, the agency must “articulate a
satisfactory explanation for its action,” and the Court will
find an agency rule arbitrary and capricious if the agency
“has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or . . . is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Turtle Island,
878 F.3d at 732–33 (quoting Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).
B. Chevron Deference
Because the pre-file notice rule was enacted through
notice-and-comment rulemaking procedures pursuant to
16 U.S.C. § 1533(h), the Court also reviews agency
rulemaking under the two-step Chevron framework. Ctr. for
Biological Diversity v. Zinke, 900 F.3d 1053, 1063 (9th Cir.
2018) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 842–43 (1984)). First, the Court must
determine whether “Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the
FRIENDS OF ANIMALS V. HAALAND 11
agency, must give effect to the unambiguously expressed
intent of Congress.” Chevron, 467 U.S. at 842–43. “[I]f the
statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute.”
Id. at 843.
Friends first argues that the pre-file notice rule is
contrary to the express intent of Congress as articulated in
Section 4 of the ESA and therefore cannot overcome
Chevron step one. Defendants reply that the ESA is silent as
to pre-petition procedures and notice requirements and
therefore the agency action passes step one. We agree.
Although the ESA includes guidance on when to involve the
states, it does not prohibit the Services from providing notice
to states and does not directly address procedures prior to
filing a petition. Therefore, the pre-file notice rule survives
step one of the Chevron inquiry.
C. The Pre-File Notice Rule Under Chevron Step Two
Because the pre-file notice rule survives step one, we
next assess whether the Services’ construction of the rule is
reasonable. Ctr. for Biological Diversity v. Salazar,
695 F.3d 893, 902 (9th Cir. 2012). Although this Court
gives deference to agency actions under Chevron, we “must
reject administrative constructions which are contrary to
clear congressional intent,” Friends of Animals v. U.S. Fish
& Wildlife Serv., 879 F.3d 1000, 1010 (9th Cir. 2018)
(quotation omitted), or “that frustrate the policy Congress
sought to implement,” Biodiversity Legal Found. v. Badgley,
309 F.3d 1166, 1175 (9th Cir. 2002) (citation omitted). The
Services are “entitled to a presumption of regularity, and we
may not substitute our judgment for that of the agency.” San
Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581,
601 (9th Cir. 2014) (quotation omitted). However, an
12 FRIENDS OF ANIMALS V. HAALAND
“agency's action must be upheld, if at all, on the basis
articulated by the agency itself, not post-hoc
rationalizations.” Ctr. for Biological Diversity, 900 F.3d.
at 1069 (quotation omitted).
Defendants argue that Congress has explicitly left a gap
for the agency to fill with regard to petition procedure, that
the pre-file notice rule is based on a permissible construction
of the statute, and that it imposes only a small burden on
petitioners. Defendants’ briefing characterizes the pre-file
notice rule as a mechanism to increase efficiency during the
12-month review by providing affected states advanced
notice to begin preparing materials for submission after the
90-day determination. However, the Services’ comments in
the Federal Register make clear that the purpose of the notice
requirement is to encourage states to provide information
that the Services can then consult when making their 90-day
finding. See, e.g., 81 Fed. Reg. at 66,463–67,474, 67,476.
Courts have repeatedly admonished the Services for
soliciting information from states and other third parties
during the 90-day finding period, noting that the ESA
requires that the 90-day finding determine whether the
petition presents sufficient information to warrant a 12-
month review, and that the Services’ solicitation or
consideration of outside information not otherwise readily
available is contrary to the ESA. See, e.g., Ctr. for
Biological Diversity v. Morgenweck, 351 F. Supp. 2d 1137,
1142–44 (D. Colo. 2004) (finding that the FWS arbitrarily
and capriciously conducted a 90-day review by soliciting
information and opinions from limited outside sources).
Defendants attempt to distinguish the pre-file notice rule,
arguing that it does not mandate that states submit any
information or that the Services consider any information
submitted by a state, and therefore does not rise to the level
FRIENDS OF ANIMALS V. HAALAND 13
of soliciting new information from states. We find this to be
a distinction without practical effect. The Services have
clearly stated that the pre-file notice rule is intended to
encourage affected states to contribute information for the
Services to consider when evaluating petitions at the 90-day
finding stage. The pre-file notice rule therefore provides an
avenue for the Services to consider factors it was not
intended to consider during the 90-day finding and runs
afoul of the ESA’s plain directive that the Services’ initial
assessment be based on the contents of the petition. See
Colorado River Cutthroat Trout v. Kempthorne, 448 F.
Supp. 2d 170, 176 (D.D.C. 2006) (“The FWS simply cannot
bypass the initial 90-day review and proceed to what is
effectively a 12-month status review, but without the
required notice and the opportunity for public comment.”).
The Services have also used the pre-file notice rule as a
justification for refusing to consider Friends’s otherwise
compliant petition. The ESA permits the Services to
establish requirements for petition content and procedure.
For instance, the Services have established through
rulemaking that ESA petitions must contain certain
elements, including the scientific and common names of a
species, a clear indication of the administrative action
sought, a narrative justifying the action sought and analysis
of the information presented, verifiable cites to literature,
electronic or hard copies of supporting materials, and
information related to species’ distinction and historical
range. 50 C.F.R. § 424.14(c). Each of these petition
requirements are material to the proposed action, encourage
efficiency in petition processing by ensuring that the
Services have necessary information, and most importantly,
facilitate the ESA’s goal of identifying specific species or
population segments that are in need of conservation.
14 FRIENDS OF ANIMALS V. HAALAND
The pre-file notice rule, on the other hand, creates a
procedural hurdle for petitioners that does not comport with
the ESA. Congress’s intent in establishing the citizen
petition procedure in Section 4 was to “interrupt[] the
department’s priority system by requiring immediate
review.” Ctr. for Biological Diversity v. Norton, 254 F.3d
833, 840 (9th Cir. 2001) (emphasis in original) (quoting H.R.
Rep. No. 95-1625, at 5 (1978)). The plain language of the
ESA establishes that “the Secretary shall make a finding as
to whether the petition presents substantial scientific or
commercial information indicating that the petitioned action
may be warranted[,]” 16 U.S.C. § 1533(b)(3)(A) (emphasis
added); and Congress has further clarified that when “a
private citizen petitions the Secretary to list a species, and
presents substantial evidence in support of the petition, the
Secretary is required to conduct a review of the species.”
H.R. Rep. No. 95-1625, at 5 (emphasis added). The
Services’ authority to establish rules governing petitions
does not extend to restrictions that frustrate the ESA by
arbitrarily impeding petitioners’ ability to submit—or the
Services’ obligation to review—meritorious petitions. See,
e.g., Biodiversity Legal Found., 309 F.3d at 1175.
Here, the FWS used the pre-file notice rule to refuse to
consider a petition that was properly submitted, complied
with the substantive requirements in all other respects, and
was otherwise entitled to a 90-day finding, while relying on
an unreasonable justification that does not accord with the
aims of the ESA. The FWS’s denial of Friends’s petition
was therefore arbitrary and in excess of statutory jurisdiction
and must be set aside. Turtle Island Restoration Network,
878 F.3d at 732.
FRIENDS OF ANIMALS V. HAALAND 15
III. CONCLUSION
Because the pre-file notice rule is inconsistent with the
statutory scheme of the ESA, we conclude that it does not
survive the second step of the Chevron test. Accordingly,
the FWS’s decision to deny Friends’s petition because of its
non-compliance with the pre-file notice rule cannot be
sustained.
For the foregoing reasons, we reverse the district court’s
grant of summary judgment in favor of Defendants and
remand to the district court to enter summary judgment in
favor of Plaintiff.
REVERSED AND REMANDED.