Friends of Blackwater v. Kenneth Salazar ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 24, 2012 Decided August 17, 2012
No. 11-5128
FRIENDS OF BLACKWATER, ET AL.,
APPELLEES
v.
KENNETH LEE SALAZAR, SECRETARY, U.S. DEPARTMENT OF
THE INTERIOR, AND DANIEL M. ASHE, DIRECTOR, U.S. FISH
AND WILDLIFE SERVICE,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-02122)
Robert J. Lundman, Attorney, U.S. Department of
Justice, argued the cause for appellants. With him on the
briefs were Ellen J. Durkee and Matthew Littleton, Attorneys.
M. Reed Hopper was on the brief for amicus curiae
Pacific Legal Foundation in support of appellant.
Jessica Almy argued the cause for appellees. With her on
the brief were Eric R. Glitzenstein and Howard M. Crystal.
Before: ROGERS and KAVANAUGH, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
Dissenting opinion filed by Circuit Judge ROGERS.
GINSBURG, Senior Circuit Judge: The Secretary of the
Interior appeals the district court’s grant of summary
judgment to the Friends of Blackwater et al. The district court
held the Fish and Wildlife Service, an agency in the
Department of the Interior, violated the Endangered Species
Act by removing the West Virginia Northern Flying Squirrel
from the list of endangered species when several criteria in
the agency’s Recovery Plan for the species had not been
satisfied. We hold the district court erred by interpreting the
Recovery Plan as binding the Secretary in his delisting
decision. Because we also reject the Friends’ alternative
arguments that the Service’s action was arbitrary, capricious,
and contrary to law, we reverse the judgment of the district
court.
I. Background
The West Virginia
Northern Flying
Squirrel (Glaucomys
sabrinus fuscus) is one
of 25 distinct
subspecies of the
Northern Flying
Squirrel. It is a
“small, nocturnal,
gliding mammal[]”
with a “long, broad,
flattened tail ..., prominent eyes, and dense, silky fur” that
3
lives in West Virginia and Virginia. U.S. FISH AND WILDLIFE
SERVICE, APPALACHIAN NORTHERN FLYING SQUIRRELS
RECOVERY PLAN 1–3 (Sept. 24, 1990). Despite its name, the
flying squirrel cannot fly; but the patagia, or folds of skin, that
stretch between its arms and legs allow it to glide for a
distance when it leaps from a tree branch. Historically, its
habitat consisted of the spruce-fir and northern hardwood
forests of the southern Appalachian Mountains. Id. at 2, 6. In
1985, when scientists had documented only ten living
squirrels, the Fish and Wildlife Service concluded it was
endangered * and suggested that, although the squirrels’
*
Section 4(a)(1) of the Endangered Species Act states the
“Secretary [of the Interior] shall” make a determination a species
(or subspecies, see 16 U.S.C. § 1532(16)) is endangered “because
of any of the following factors”:
(A) the present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific,
or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued
existence.
16 U.S.C. § 1533(a)(1). The Act requires the Secretary to make his
determination “solely on the basis of the best scientific and
commercial data available to him.” Id. § 1533(b)(1)(A). In
addition, the Secretary “shall ... determine on the basis of [a
quinquennial] review whether any such species should ... be
removed from [the list of endangered species] ... in accordance with
the provisions of subsections (a) and (b) of this section.” Id. §
1533(c)(2)(B). The Secretary has delegated his responsibilities
under the Act, as relevant here, to the Fish and Wildlife Service, 50
C.F.R. § 402.01(b), and so we refer to the Secretary and the agency
interchangeably.
4
population “may have been declining since the Pleistocene, ...
[t]heir decline ha[d] probably been accelerated through
clearing of forests and other disturbances by people.” 50 Fed.
Reg. 26,999, 26,999 (July 1, 1985).
As required by § 4(f) of the Endangered Species Act, 16
U.S.C. § 1533(f), the Service created a recovery plan for the
“conservation and survival” of the squirrel, * enumerating the
following “criteria which, when met, would result in a
determination ... that the species be removed from the list” of
endangered species, id. § 1533(f)(1)(B)(ii):
1. [S]quirrel populations are stable or
expanding ... in a minimum of 80% of all
Geographic Recovery Areas [GRAs]
designated for the subspecies,
2. [S]ufficient ecological data and timber
management data have been accumulated
to assure future protection and
management ...
3. GRAs are managed in perpetuity to ensure:
(a) sufficient habitat ... and (b) habitat
corridors ... [and]
*
Section 4(f)(1) provides: “The Secretary, in developing and
implementing recovery plans, shall, to the maximum extent
practicable ... incorporate in each plan ... objective, measurable
criteria which, when met, would result in a determination, in
accordance with the provisions of this section, that the species be
removed from the list.” Id. § 1533(f)(1). Relatedly, § 4(f)(4)
provides the “Secretary shall ... provide public notice and an
opportunity for public review and comment” on any new plan or
revision to an existing plan. Id. § 1533(f)(4).
5
4. [T]he existence of the high elevation
forests on which the squirrels depend is not
itself threatened by introduced pests ... or
by environmental pollutants ....
Recovery Plan at 18.
In 2002, the Service hired a biologist to investigate the
possibility of removing the squirrel from the list of
endangered species, and the next year began to draft its five-
year review of the squirrel’s status. In the review, published
in 2006, the Service concluded the Recovery Plan, which had
been created in 1990, “d[id] not have up to date recovery
criteria,” and the squirrel did “not meet the definition of
endangered or threatened” because it “persist[ed] throughout
its historic range.” U.S. FISH AND WILDLIFE SERVICE, WEST
VIRGINIA NORTHERN FLYING SQUIRREL 5-YEAR REVIEW:
SUMMARY AND EVALUATION 5, 20 (April 2006). Whereas
only ten squirrels had been sighted at the time of the original
listing in 1985, by 2006 scientists had captured 1,063
individual squirrels at 107 sites, id. at 7, which suggested to
the Secretary the population was robust, see U.S. FISH AND
WILDLIFE SERVICE, ANALYSIS OF RECOVERY PLAN CRITERIA
FOR THE WEST VIRGINIA NORTHERN FLYING SQUIRREL 3
(Dec. 18, 2007).
Later in 2006 the Service proposed to remove the squirrel
from the list of endangered species. See 71 Fed. Reg. 75,924(Dec. 19, 2006). The agency explained the squirrel no longer
faced any of the threats listed in § 4(a)(1) of the Act so as to
warrant its continued designation as either endangered or
threatened. Id. at 75,925–29. With regard to the 1990
Recovery Plan, it said that because the “recovery criteria do
not specifically address the five threat factors used for ...
delisting a species,” the plan “does not provide an explicit
6
reference point for determining the appropriate legal status
of” the squirrel. Id. at 75,925. In any event, such plans “are
not regulatory documents and are instead intended to provide
guidance to the Service, States, and other partners on methods
of minimizing threats to listed species and on criteria that may
be used to determine when recovery is achieved.” Id. at
75,924–25. The Service emphasized its view that delisting
the squirrel was appropriate because, among other things,
“long-term nest box monitoring data provide[d] strong
evidence of [its] continued presence throughout its range,” id.
at 75,926, and “habitat trends [were] moving in a positive
direction in terms of forest regeneration and conservation,” id.
at 75,927.
Various scientists and conservation groups filed
comments criticizing the Service’s use of “persistence,”
which it defined as “continuing captures of [a species or
subspecies] over multiple generations at previously
documented sites throughout the historical range,” 73 Fed.
Reg. 50,226, 50,227 (Aug. 26, 2008) (“Delisting Rule”), to
gauge the squirrel’s recovery; the measure could not provide
estimates of population levels or trends and, they pointed out,
persistence so defined could not rule out the possibility the
squirrel’s population was declining.
In its final rule delisting the squirrel the Service
responded to these comments as follows: The data showing
persistence across 80 percent of the squirrel’s historic range
were simply “not indicative of a declining population.” Id. at
50,227. Data for the remaining 20 percent need not indicate a
lack of persistence because the squirrels are “elusive and hard
to capture.” Id.The Friends of Blackwater filed a complaint in the
district court claiming (1) promulgation of the Delisting Rule
7
violated the Endangered Species Act by ignoring the
objective, measurable criteria in the Recovery Plan and (2) the
Rule itself was arbitrary and capricious because it was not
based upon the best available science. The district court
entered summary judgment for the plaintiff, Friends of
Blackwater v. Salazar, 772 F. Supp. 2d 232 (D.D.C. 2011), on
the ground the Service was bound by the criteria in the
Recovery Plan and its decision to delist the squirrel without
following those criteria therefore constituted a revision to that
plan, made without going through notice and comment
rulemaking as required by the Act, id. at 241–42. In a
footnote, the court also directed the agency on remand to
modify its analysis of the statutory factors relevant to
delisiting “to the extent the agency’s decision [to delist] was
based on an analysis that did not separately assess the
adequacy of existing regulatory mechanisms,” as required by
§ 4(a)(1)(D) of the Act. Id. at 245 n.17. The district court
vacated the Delisting Rule, id. at 245, and the Service
appealed to this court.
II. Analysis
In a case like the present one, “where the district court
was reviewing an agency rulemaking under the
Administrative Procedure Act ... we review the administrative
record directly.” Troy Corp. v. Browner, 120 F.3d 277, 281
(D.C. Cir. 1997) (internal quotation marks and citation
omitted). We review the Secretary’s interpretation of the
statute under the familiar two-step framework from Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). At Step One, the court asks “if the statute
unambiguously forecloses the agency’s interpretation,” Nat’l
Cable & Telecomms. Ass’n v. FCC, 567 F.3d 659, 663 (D.C.
Cir. 2009); if it does not, then at Step Two “we defer to the
administering agency’s interpretation as long as it reflects ‘a
8
permissible construction of the statute,’” Sherley v. Sebelius,
644 F.3d 388, 393 (D.C. Cir. 2011) (quoting Chevron, 467
U.S. at 843).
A. The Legal Effect of the Recovery Plan
The Friends claim the statutory requirement that for each
endangered species the Service draft a recovery plan with
“objective, measurable criteria” unambiguously means those
criteria must be met before a species may be delisted. In
response, the Service argues the criteria in the Recovery Plan,
unlike the factors in § 4(a)(1) of the Act, are not binding upon
the agency in deciding whether a species is no longer
endangered and therefore should be delisted.
To resolve this dispute, we “begin[] with the words of the
statute.” Pharm. Research & Mfrs. of Am. v. Thompson, 251
F.3d 219, 224 (D.C. Cir. 2001). Section 4(a)(1) of the Act
provides the Secretary “shall” consider the five statutory
factors when determining whether a species is endangered,
and § 4(c) makes clear that a decision to delist “shall be made
in accordance” with the same five factors. 16 U.S.C. §
1533(a), (c). Although § 4(f) states the Secretary “shall
develop and implement” a recovery plan and “shall ...
incorporate in [the recovery] plan ... objective, measurable
criteria,” id. § 1533(f), the Act does not similarly say the
Secretary “shall” consult those criteria in making a delisting
decision. Rather, § 4(f)(1)(B)(ii) states simply that the criteria
in the recovery plan should be those “which, when met, would
result in a determination, in accordance with the provisions of
this section, that the species be removed from the list.” This
provision is ambiguous in a relevant respect: It can be read, as
the Friends suggest, to place a binding constraint upon the
Secretary’s delisting analysis, but it can also be read as the
Secretary suggests, based in part upon the absence of the
9
word “shall,” to indicate the “objective, measureable criteria”
are predictive of the Service’s delisting analysis rather than
controlling that analysis. See Russello v. United States, 464
U.S. 16, 23 (1983) (“Where Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion” (internal quotation marks and
alteration omitted)). On the Secretary’s reading, the criteria
would serve as proxies, tailored to what is known about the
particular species, standing in for the statutory factors of §
4(a)(1) that ultimately control the Secretary’s delisting
decisions for all species. * The ambiguity is magnified
because § 4(f) of the Endangered Species Act qualifies the
Secretary’s duty to incorporate “objective, measurable
criteria” in “developing and implementing recovery plans”
with the phrase “to the maximum extent practicable.” 16
U.S.C. § 1533(f). Cf. Oceana, Inc. v. Locke, 670 F.3d 1238,
1242–43 (D.C. Cir. 2011) (reading statutory provision as
mandatory where, in contrast to a neighboring provision, duty
imposed was not modified by phrase “to the extent
practicable”); Biodiversity Legal Found. v. Babbitt, 146 F.3d
1249, 1253–54 (10th Cir. 1998) (phrase “to the maximum
extent practicable” in § 4(b)(3)(A) of Endangered Species Act
indicates non-mandatory character of provision).
Other “traditional tools of statutory construction,”
Chevron, 467 U.S. at 843 n.9, do not reveal any more clearly
the intent of the Congress on this question. The Friends argue
the legislative history indicates the criteria in the recovery
*
Although § 4(f) read in isolation might also be taken to mean the
criteria in the recovery plan are sufficient but not necessary for
delisting, that interpretation would conflict with § 4(c), which
clearly requires the Secretary to apply to a delisting decision the
five statutory factors in § 4(a).
10
plan must be binding because the Congress added the call for
“objective, measureable criteria” specifically in order to
“improve the development, implementation and review of
plans for the recovery of listed species.” S. REP. NO. 100-240
(1987), reprinted in 1988 U.S.C.C.A.N. 2700, 2700. The
Friends also argue the structure of the Act confirms their view
because the Secretary’s interpretation would render the
requirement of “objective, measurable criteria” meaningless.
These arguments from legislative history and structure
come down to the single claim that interpreting the Recovery
Plan as non-binding would render § 4(f) of the Act a nullity.
That is not correct. With an exception not relevant here, §
4(f) obliges the Secretary to “develop and implement plans”
for the recovery of any species designated as endangered. 16
U.S.C. § 1533(f)(1). If the Secretary wants to change the
plan, then he first must let the public comment. Id. §
1533(f)(4). It does not follow, however, that with each
criterion he includes in a recovery plan the Secretary places a
further obligation upon the Service. A plan is a statement of
intention, not a contract. If the plan is overtaken by events,
then there is no need to change the plan; it may simply be
irrelevant. If someone said he would see me in Cleveland
while on his way to Chicago and would let me know before
changing his plan, it would hardly be sensible to say he must
“revise” his plan before he can tell me that he no longer needs
to make the trip.
Nor is there anything unusual about a statute that requires
an agency to publish a non-binding document. See Norton v.
S. Utah Wilderness Alliance, 542 U.S. 55, 69, 72 (2004)
(statute required BLM to promulgate land use plan, but plan
itself was “designed to guide” BLM, not to be legally
enforceable). Contrary to the Friends’ argument, the
Secretary’s interpretation of the plan as non-binding does not
11
render meaningless the Secretary’s statutory obligations to
create and to implement a recovery plan and to use notice and
comment in order to revise such a plan. On the contrary, a
recovery plan, even if not binding, so long as the species is
endangered provides “objective, measurable criteria” by
which to evaluate the Service’s progress toward its goal of
conserving the species.
It is a short hop from here to conclude under Step Two of
Chevron that the Secretary’s interpretation is a “permissible”
one. The Service fairly analogizes a recovery plan to a map
or a set of directions that provides objective and measurable
steps to guide a traveler to his destination. Cf. Fund for
Animals, Inc. v. Rice, 85 F.3d 535, 547 (11th Cir. 1996)
(holding “recovery plans are for guidance purposes only”).
Although a map may help a traveler chart his course, it is the
sign at the end of the road, here the five statutory factors
indicating recovery, and not a mark on the map that tells him
his journey is over. Moreover, as with a map, it is possible to
reach one’s destination — recovery of the species — by a
pathway neither contemplated by the traveler setting out nor
indicated on the map.
B. The Measure of “Persistence”
The Friends of Blackwater contend in the alternative the
Service (1), by using data on the species’ “persistence” rather
than data on its population and population trends, violated the
statutory requirement that it use the “best ... data available,”
16 U.S.C. § 1533(b)(1)(A), and (2), by failing adequately to
explain its departure from the population-based criterion in
the Recovery Plan, rendered its decision arbitrary and
capricious within the meaning of the Administrative
Procedure Act, 5 U.S.C. § 706(2)(A), see Motor Vehicle Mfrs.
12
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42
(1983). *
The Friends’ first argument runs afoul of Southwest
Center for Biological Diversity v. Babbitt, in which we
explained that under the “best ... data available” standard, “the
Secretary has no obligation to conduct independent studies”;
the Service is entitled to rely upon the best data available to it,
which in that case were existing scientific estimates of the
species’ population, rather than conducting its own population
count in order to determine whether a species is endangered.
215 F.3d 58, 60–61 (D.C. Cir. 2000). In this case, where it is
undisputed the “best … data available” related to the
persistence of the species, the Service was entitled to rely
upon those data in its delisting analysis, just as it was entitled
to list the squirrel in the first place even though no estimate of
the squirrel’s population was then available. See id.(requirement of best data available “merely prohibits the
Secretary from disregarding available scientific evidence that
is in some way better than the evidence he relies on” (internal
*
Although the district court did not reach the question whether the
agency was arbitrary and capricious, we see no reason here to
follow our general practice of remanding the case to the district
court to consider that question in the first instance. See Piersall v.
Winter, 435 F.3d 319, 325 (D.C. Cir. 2006). The agency record is
before us now just as it would be before the district court on
remand and the district court has no comparative advantage in
reviewing agency action for arbitrariness and capriciousness.
Moreover, “a remand to the District Court, which inevitably would
result in a future appeal to this court, would be a waste of judicial
resources,” Grace v. Burger, 665 F.2d 1193, 1197 n.9 (D.C. Cir.
1981) (internal quotation marks and citation omitted), aff’d in part
and vacated in part on other grounds sub nom. United States v.
Grace, 461 U.S. 171 (1983), where, as here, the merits of the
question are clear.
13
quotation marks and citation omitted)). Moreover, the
Service reasonably determined the data on persistence, which
showed the squirrel “persist[ed] throughout its historic range,”
5-Year Review at 20, were “not indicative of a declining
population,” 73 Fed. Reg. at 50,227; hence it could
reasonably find the species’ survival was no longer threatened
by loss of habitat.
This would end the matter were it not for the Service’s
statement in the Recovery Plan that it would look to estimates
of population trends. See Recovery Plan at 18 (saying it could
delist the squirrel when “squirrel populations are stable or
expanding” in at least 80 percent of certain designated areas).
Although, as we explained above, that plan was not binding
upon the agency, the Friends maintain the Service had an
obligation adequately to account for any departures from the
guidelines described in the plan, citing Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 42 (“an agency changing its course ...
[must] supply a reasoned analysis”). Whether an agency must
account for a departure from a prior non-binding statement of
intent is not entirely clear. Compare Sitka Sound Seafoods,
Inc. v. NLRB, 206 F.3d 1175, 1182 (D.C. Cir. 2000) (“Manual
does not bind the Board ... [and so] the relevant question is
whether, quite apart from the Manual, the Board acted
unreasonably”), with Edison Elec. Institute v. EPA, 391 F.3d
1267, 1269 & n.3 (D.C. Cir. 2004) (“[report] is not strictly
binding upon EPA and any deviation from the Report is not
per se arbitrary and capricious”; “real question is whether
EPA adequately accounted for any departures” from factors
described in report). We need not resolve this question today
because the Service adequately explained that population data
were not available whereas data on persistence were. Still,
the Friends contend the Service’s stated reason for not itself
estimating the population, viz., the cost and difficulty of doing
so, fails because the Service knew of the difficulty of
14
estimating the squirrel population when it adopted the
population criterion in the Recovery Plan. See Recovery Plan
at 11 (noting the squirrels were “extremely difficult to collect
and study”).
Though not illogical, neither does the Friends’ argument
show the Service was arbitrary and capricious. The agency
did realize when it put the population-based criterion into the
Recovery Plan in 1990 that the squirrels were difficult to
monitor. After more than 15 years of gathering more data and
capturing more squirrels, however, the Service could
reasonably conclude, and the Friends do not dispute, that
“[a]n adequate monitoring scheme to estimate population
numbers across a representative sample of the entire range of
the [squirrel] would require many thousands of nest boxes and
traps,” Analysis of Recovery Plan Criteria at 1. The Friends
have not shown the Service’s judgment that a project of that
magnitude was simply too difficult and too costly for the
agency to undertake was arbitrary and capricious. Therefore,
we conclude the Service has met any burden it may have to
account for its departure from the criterion it contemplated
when it developed the Recovery Plan in 1990.
C. Inadequacy of Regulatory Mechanisms
Finally, the Friends argue the Service failed to conduct an
independent analysis of the fourth statutory factor, “the
inadequacy of existing regulatory mechanisms,” 16 U.S.C. §
1533(a)(1)(D), which factor they claim must be analyzed
without regard to whether there are any threats arising under
the other provisions of § 4(a)(1). The Service did consider the
adequacy of existing regulatory mechanisms, but it did not do
so in isolation. On the contrary, having considered all the
other types of threats listed in § 4(a)(1) and found no existing
conditions such as disease or destruction of habitat threatened
15
the subspecies, the Service could reasonably, indeed readily,
conclude the squirrel did not require additional regulatory
protection. See Delisting Rule, 73 Fed. Reg. at 50,237.
Under the Friends’ approach to § 4(a)(1)(D), the Service
would have to assess the adequacy of regulatory mechanisms
without regard to its analysis of the threats listed in clauses A,
B, C, and E of the same section. This contention is most
peculiar. If the adequacy or “inadequacy of existing
regulat[ion]” is to be judged without considering the level, or
even the existence, of any threat the regulation is designed to
meet, then it would follow that the Service could never delist
a species unless some regulatory mechanism was in place to
protect it — whether needed or not. Moreover, because the
Service is to apply the same factors to listing as to delisting
decisions, 16 U.S.C. § 1533(c), it would follow that every
species (except pests, see id. § 1532(6)) must either (1) be
protected by regulations of some sort or (2) be classified as
endangered or threatened. Absent compelling evidence, we
will not attribute to the Congress the intent to create such an
absurd overabundance of regulation — and a further
abundance of, for example, white-tailed deer, which have
long since moved into metropolitan areas in search of better
forage and fewer predators, including hunters. See Steeve D.
Côté et al., Ecological Impacts of Deer Overabundance, 35
ANN. REV. ECOLOGY EVOLUTION & SYSTEMATICS 113, 116
(2004); Robert K. Swihart et al., Ecology of Urban and
Suburban White-Tailed Deer, in URBAN DEER: A
MANAGEABLE RESOURCE? 35, 35, 42 (Jay B. McAninch ed.
1993). By considering the adequacy or inadequacy of
regulations in light of other threats to the species, the
Secretary’s interpretation of § 4(a)(1)(D) is certainly
reasonable, and the Friends therefore have failed to
demonstrate the Service violated the Act by acting upon that
interpretation.
16
III. Conclusion
We hold the Secretary reasonably interpreted the
Endangered Species Act as not requiring that the criteria in a
recovery plan be satisfied before a species may be delisted
pursuant to the factors in the Act itself. Because the
Secretary’s determination the West Virginia Northern Flying
Squirrel was no longer endangered was neither arbitrary and
capricious nor in violation of the Act, the judgment of the
district court is
Reversed.
Appendix: Notes on the Dissent
Our dissenting colleague labors at length to prove “shall”
indicates an action is mandatory and “to implement” means to
give practical effect, see Dissent at 4–5, two points we
nowhere dispute. Nor do we doubt § 4(f)(1) of the Act
imposes mandatory obligations upon the Secretary. The
Secretary shall, for example, develop a recovery plan for an
endangered species, 16 U.S.C. § 1533(f)(1), which plan shall
include “objective, measurable criteria,” id. §
1533(f)(1)(B)(ii). The Secretary, moreover, must implement
the plan. Id. § 1533(f)(1). That is, as long as a species is
listed as endangered, the agency is obligated to work toward
the goals set in its recovery plan. None of this, however,
implies the objective, measurable criteria in the plan limit the
agency when it is deciding whether to delist a species.
The foregoing interpretation of § 4(f)(1) does not render
the notice and comment requirement of § 4(f)(4)
“superfluous.” Cf. Dissent at 12–13. If the Service believes
the goals in the recovery plan for a species are outdated but
the species is still endangered, then the Secretary must either
17
continue to pursue those goals or, more sensibly, update the
plan, which requires notice and comment.
The dissent’s claim (at 5) that our interpretation “erases
‘(f)(1)’ from ‘(f)(1)(B)(ii)’” ignores our reading of those
provisions (at 8) as together indicating the Secretary “shall ...
incorporate in [the recovery] plan ... objective, measurable
criteria.” Accordingly, we agree with the dissent to the extent
that subsection (B)(ii) imposes upon the Secretary a
mandatory duty to incorporate criteria in a recovery plan but,
the dissent’s insistence to the contrary notwithstanding, that
understanding alone does not clarify how such criteria relate
to the Secretary’s delisting decision. Our dissenting colleague
correctly identifies (at 5) the “future conditional tense” in §
4(f)(1)(B)(ii), but misstates the logical relation in that
statement, and thereby mistakenly reads the provision as
unambiguous. As we note (at 9 n.*), the phrase “which, when
met, would result” most plainly expresses a sufficient, not a
necessary, condition: It says what must happen when the
criteria are met, but is silent — and therefore ambiguous —
with respect to what may or must happen when the criteria are
not met. Although one could read the word “only” into the
statute so that it states a necessary condition (“which, [only]
when met, would result”), one can as well ― as the
Secretary’s interpretation suggests ― read the conditional
“would” as referring to the agency’s likely delisting analysis
pursuant to the factors prescribed in § 4(a)(1). See Knight v.
Comm’r, 552 U.S. 181, 192 (2008) (“In the context of making
... a prediction, ... the word ‘would’ is best read as expressing
concepts such as ... probability” (internal quotation marks,
alteration, and citation omitted)). Hence the ambiguity.
The “context and structure of the statute,” Dissent at 6,
only underscore this ambiguity and therefore support our
deferring under Chevron to the Secretary’s interpretation.
18
Section 4(c) of the Act, which describes the Secretary’s
delisting analysis, provides: “Each determination [that a
species be delisted] shall be made in accordance with the
provisions of subsections (a) and (b) of this section.” 16
U.S.C. § 1533(c). Section 4(c), however, makes no mention
of subsection (f) or its requirement of a recovery plan. When
the Congress amended the Act to add the requirement of
“objective, measurable criteria,” see Pub. L. No. 100-478, 102
Stat. 2306 (1988), it could have, but did not, revise § 4(c) to
require a delisting determination also be made in accordance
with the recovery plan criteria adopted pursuant to § 4(f). *
The dissent suggests (at 6–8) the legal effect of the
qualifying phrase “to the maximum extent practicable,” 16
U.S.C. § 1533(f)(1), insofar as it applies to the Secretary’s
*
As usual, legislative history does not “definitively resolve[] the
debate,” Dissent at 6 (internal quotation marks and citation
omitted). Senate Report No. 100-240, which accompanied the
Senate version of the bill that became the 1988 amendment,
suggests the primary purpose of having “objective, measurable
criteria” in recovery plans is to provide a means by which the
public can measure progress in the Secretary’s efforts at recovery of
a species, see S. REP. NO. 100-240, at 4 (“most [past recovery
plans] ... provide[d] no criteria by which to judge their success”);
id. at 9 (“Section 4(f) of the Act is amended to require that each
recovery plan incorporate ... criteria by which to judge success of
the plan”); it simply does not speak to the question whether meeting
those criteria is a precondition to the Secretary’s deciding to delist a
species. Indeed, the latter part of the very sentence quoted in the
dissent, see Dissent at 6, quoting S. REP. NO. 100-240, at 9–10
(“[t]he requirement that plans contain objective, measurable criteria
for removal of a species from the Act’s lists”), says a purpose of the
objective criteria requirement is to “provide a means by which to
judge the progress being made toward recovery,” S. REP. NO. 100-
240, at 9, but makes no mention of limiting the Secretary’s delisting
analysis.
19
duty to “incorporate in each plan ... objective, measurable
criteria,” id. § 1533(f)(1)(B)(ii), runs out once the Secretary
has included such criteria in a plan. The statute, however,
applies this qualification to the Secretary’s actions both “in
developing and [in] implementing recovery plans.” Id. §
1533(f)(1) (emphasis added). The dissent says
“implementing” can have no reference to subsection (B) of §
4(f)(1) because “incorporat[ing]” something in a plan occurs
solely in the course of “developing” the plan, but we are not
so quick to abandon the plain text of the statute. Although
“implementing” has a more obvious connection to subsection
(A), with respect to subsection (B) it at least tells us the
Secretary must incorporate criteria that are practicable to
implement. The dissent’s interpretation would have the
Secretary measure the practicability of incorporating criteria
in a recovery plan without respect to the practicability of their
implementation, but that cannot be correct. If the
practicability of incorporating criteria is to be determined
without a view to the practicability of their implementation,
then any imaginable criterion may be incorporated so long as
the agency has the wit to place the requisite words upon a
page. (Why not when the cow jumps over the moon? Or
when Birnam Wood be come to Dunsinane?) Following a
more reasonable interpretation, it would be “impracticable”
for the Secretary to adopt criteria that by their nature could
never be met and hence would preclude delisting a species so
long as those criteria remain in effect. Similarly, if the
Secretary foresees that adopting certain criteria would unduly
restrict his delisting analysis, then he may decide it is
practicable only to adopt criteria that guide but do not
constrain that analysis. *
*
It is irrelevant whether the Service in fact interpreted the recovery
plan criteria as binding when it published them in 1990, see Dissent
at 8, because the Service later adopted through notice and comment
20
Our dissenting colleague next offers (at 10) her “flight
plan” analogy in an effort to show certain administrative plans
may not be “discarded” even if “overtaken by events,” but the
analogy in fact supports our interpretation. As the dissent
notes, a portion of the regulation regarding flight plans allows
a pilot to deviate from a flight plan if “an emergency exists,”
14 C.F.R. § 91.123(a), which the pilot may declare in his
discretion, id. §§ 91.123(c), 91.3(b), but the dissent misses the
significance of this exception. An emergency negates the
need for a fixed flight plan much as the recovery of a species
negates the need for a plan designed to bring about that
recovery; in either event, the formal revision of such a plan
would not be useful and therefore, unsurprisingly, is not
required by law.
The dissent addresses (at 19–21) a facially plausible
“logical outgrowth” argument that appears nowhere in the
Friends’ brief, was not raised in the district court, and
therefore is not properly before us. See United States v.
Southerland, 486 F.3d 1355, 1360 (D.C. Cir. 2007)
(“argument ... raised for the first time at oral argument ... is
forfeited”); Benoit v. Dep’t of Agric., 608 F.3d 17, 21 (D.C.
Cir. 2010) (argument not raised in district court is forfeited).
As part of their argument that the statute unambiguously
requires the Secretary either to meet the criteria in the
recovery plan or to modify them through notice and comment
prior to delisting, the Friends did argue the notice and
comment process the Secretary used to delist the Squirrel did
an interpretation of those criteria as non-binding, see Delisting
Rule, 73 Fed. Reg. at 50,226 ("Recovery plans are not regulatory
documents and are instead intended to provide guidance to the
Service, States, and other partners on methods of minimizing
threats to listed species and on criteria that may be used to
determine when recovery is achieved"); 71 Fed. Reg. at 75,924–25
(same).
21
not constitute a revision of the recovery plan. See Br. of
Appellees at 35–40. Because we rejected the Friends’ must-
meet-or-modify premise, however, there is no need to address
that dependent argument. In the Friends’ “alternative
argument that the Secretary violated the Administrative
Procedure Act,” Dissent at 17, they alleged the delisting
process was arbitrary and capricious and not based upon the
best data available, see Br. of Appellees at 45–51, not that the
final rule was not a logical outgrowth of the proposed rule.
With respect to the Friends’ argument that the Act
precludes the Secretary from relying upon data concerning
persistence, the dissent suggests (at 22–23) the Secretary must
have data on the population of a species before he may decide
to delist it. What § 4(b)(1)(A) and § 4(c) of the statute
require, however, is that the Secretary use the “best ... data
available” when, respectively, listing or delisting a species.
16 U.S.C. § 1533(b)(1)(A), (c). Population data were not
available when the Secretary listed the squirrel as endangered.
Nor were such data available when he delisted the squirrel.
To require the Secretary before acting to obtain such data as
are not then “available” is clearly foreclosed by the statute.
See id.; Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001
(D.C. Cir. 2008) (“in the absence of available evidence,
Congress does not require the agency to conduct its own
studies”).
The dissent compounds the error by claiming (at 22) data
on persistence do not “answer the relevant question,” and
asserts upon this basis the Secretary relied upon “no data.”
Evidence is relevant to a particular question of fact if “it has
any tendency to make [that] fact more or less probable.” FED.
R. EVID. 401(a). The question at issue here is whether the
squirrel is an “endangered species,” which the Act defines as
“any species which is in danger of extinction throughout all or
22
a significant portion of its range ….” 16 U.S.C. § 1532(6).
Because extinction is less likely where there is widespread
persistence than where there is not, persistence is relevant to a
determination whether a species is endangered; and if the only
data available concern persistence, then they are quite clearly
the “best” data available. To be sure, data on persistence
would also be relevant to the question of a species’
“survival,” see Dissent at 21, 23–25, a term with a meaning
distinct from “recovery,” see 50 C.F.R. § 402.02 (defining
“[r]ecovery” as “improvement in the status of listed species to
the point at which listing is no longer appropriate under the
criteria set out in section 4(a)(1) of the Act”), but that is
neither here nor there. Evidence may be relevant to two
distinct legal questions, and therefore its relevance to a
question not at issue (survival), does not imply or even
suggest its irrelevance to the question that is at issue
(recovery).
ROGERS, Circuit Judge, dissenting: Because Congress “has
directly spoken to the precise question at issue,” Chevron USA
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842
(1984), the court’s job is done. Instead, the court defers to the
Secretary’s interpretation, contrary to the plain text of the
Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, that
the West Virginia Northern Flying Squirrel (“Squirrel”), an
endangered species, loses all protections even though the
recovery criteria in its recovery plan have not been met and
those criteria are revised, while the Squirrel was listed as
endangered, without required notice and prior consideration of
public comments. But even assuming, as the court concludes,
the ESA is ambiguous, the Secretary was arbitrary and
capricious in delisting the Squirrel based in material part on an
analysis revising the recovery plan criteria that was not
publically noticed until the final delisting rule, and then only on
the basis of available scientific and commercial evidence
showing the Squirrel persists (i.e., is not yet extinct) as distinct
from recovered so as no longer to require ESA’s protections.
Accordingly, I respectfully dissent.
I.
“As in all statutory construction cases,” the court must
“begin with the language of the statute.” Barnhart v. Sigmon
Coal Co., Inc., 534 U.S. 438, 450 (2002). “[C]ourts must
presume that a legislature says in a statute what it means and
means in a statute what it says there. When the words of a
statute are unambiguous, then, this first canon is also the last:
judicial inquiry is complete.” Id. at 461-62 (quoting Connecticut
Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992) (internal
quotation marks and citation omitted)). Congress’s
requirements in the ESA for delisting an endangered species for
which the Secretary of the Interior has developed a recovery
plan are unambiguous with respect to when that species is
2
eligible for delisting and to the procedure for revising
announced recovery plan criteria.
Section 4(f) provides:
(1) The Secretary shall develop and implement
[recovery plans] for the conservation and survival of
endangered species and threatened species . . . . The
Secretary, in developing and implementing recovery
plans, shall, to the maximum extent practicable--
...
(B) incorporate in each plan--
...
(ii) objective, measurable criteria which, when
met, would result in a determination, in
accordance with the provisions of this section, that
the species be removed from the list.
...
(4) The Secretary shall, prior to final approval of a
new or revised recovery plan, provide public notice
and opportunity for public review and comment on
such plan. The Secretary shall consider all information
presented during the public comment period prior to
approval of the plan.
16 U.S.C. § 1533(f) (emphases added). These substantive and
procedural requirements reflect Congress’s finding that “various
species of . . . wildlife,” such as the Squirrel, “are of esthetic,
ecological, educational, historical, recreational, and scientific
value to the Nation and its people,” id. § 1531(a)(3), and
adoption of a policy of conservation, id. § 1531(c), which is
defined as use of the “methods and procedures which are
necessary to bring any endangered species or threatened species
to the point at which the measures provided pursuant to [the
3
ESA] are no longer necessary,” id. § 1532(3). Applying the
traditional, well-settled standards for statutory interpretation,1 it
is difficult to imagine how Congress could have spoken more
clearly and directly when it strengthened the ESA in 1988, see
Pub. L. No. 100-478, 102 Stat. 2306, by mandating both
development and implementation, prior to delisting, of recovery
plans that include “objective, measurable criteria,” 16 U.S.C.
§ 1533(f)(1)(B)(ii), and the procedures for their amendment, id.§ 1533(f)(4). See S. REP. NO. 100-240, at 4 (1987), reprinted in
1988 U.S.C.C.A.N. 2700, 2703 (noting that “far too many
recovery plans for listed species have not been implemented . . .
[and] recovery plans have failed to include consistently criteria,
time frames and estimated costs for recovery”).
1
Under Chevron, 467 U.S. at 842-43, the first step requires
a determination of “whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that is the
end of the mater; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.”
The judiciary is the final authority on issues of statutory
construction and must reject administrative constructions
which are contrary to clear congressional intent. If a court,
employing traditional tools of statutory construction,
ascertains that Congress had an intention on the precise
question at issue, that intention is the law and must be given
effect.
Id. at 843 n.9 (citations omitted). If, after applying traditional tools of
statutory construction, the court determines “the statute is silent or
ambiguous with respect to the specific issue,” then, under step two, the
court will defer to an agency’s statutory interpretation if it “is based
on a permissible construction of the statute.” Chevron, 467 U.S. at
843.
4
The plain text of section 4(f) answers the questions of
whether recovery plans are discretionary, what they must
contain, what process must be followed for their adoption and
revision, and whether recovery plan criteria must be met before
delisting procedures are initiated. First, section 4 provides that
the Secretary “shall” implement recovery plans. When Congress
uses the word “shall,” it intends to communicate a mandatory
action. See Gonzalez v. Thaler, 132 S. Ct. 641, 651 (2012). “It
is fixed law that words of statutes or regulations must be given
their ordinary, contemporary, common meaning. It is also fixed
usage that ‘shall’ means something on the order of ‘must’ or
‘will.’” FTC v. Tarriff, 584 F.3d 1088, 1090 (D.C. Cir. 2009)
(internal quotation marks and citations omitted). Looking to the
usual understanding of the words used by Congress, to
“implement” is “to give practical effect to and ensure of actual
fulfillment by concrete measures.” MERRIAM WEBSTER’S
COLLEGIATE DICTIONARY 583 (10th ed. 1993). Thus, section
4(f)(1) “is not at all ambiguous, but instead is exquisitely clear,”
Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 837 (9th
Cir. 2001) (interpreting ESA section 4(b), 16 U.S.C.
§ 1533(b)(3)(A)), in requiring the Secretary to ensure the actual
fulfillment of species’ recovery plans prior to delisting. Where,
as here, the Secretary seeks to delist a species whose initial
recovery plan criteria have not been met, section 4(f)(4)’s
procedures for revising the recovery plan must be followed. This
is the only reading of section 4 of the ESA that does not render
the mandatory requirements of subsections (f)(1) and (f)(4)
superfluous. See Corley v. United States, 556 U.S. 303, 314
(2009).
Eschewing the plain text, the court finds ambiguity for three
reasons. First, the court notes that the word “shall” does not
appear in section 4(f)(1)(B)(ii) with respect to whether the
“objective, measurable criteria” to be included in the recovery
plan control delisting. See Op. at 8–9. Second, this purported
5
ambiguity is “magnified,” the court states, because the
Secretary’s obligation to include such criteria in a recovery plan
is qualified by the phase “to the maximum extent practicable.”
See id at 9. Third, the court asserts that other “‘traditional tools
of statutory construction,’ Chevron, 467 U.S. at 843 n.9, do not
reveal any more clearly the intent of Congress on this question.”
Id. These reasons do not withstand examination.
The first reason erases “(f)(1)” from “(f)(1)(B)(ii)” and
ignores English grammar. The court blinds itself to the
introductory provision, which provides that the Secretary “shall
develop and implement” recovery plans, which “shall . . .
incorporate” the criteria in (B)(ii), 16 U.S.C. §§ 1533(f)(1) &
(f)(1)(B). Subsection (B)(ii) cannot exist dissected from its
introductory text in (f)(1); (B)(ii) is not even a complete sentence
without (f)(1). At some point Congress surely is permitted to
avoid being duplicative (triplicative?). Likewise, the
grammatical structure of subsection (f)(1)(B)(ii) is in a simple
future conditional tense. Plans that shall contain “objective,
measurable criteria which, when met, would result in a
determination . . . that the species be removed from the list,” id.§ (f)(1)(B)(ii) (emphasis added), shall be implemented. The
condition – the time at which the recovery criteria are met — is
followed by the consequence — a determination to delist the
species.2 Adding a third “shall” to this sentence does not change
its plain meaning, nor would it make sense given the simple
condition-consequence structure of the sentence. The court
agrees the Secretary has mandatory duties, Op. at 16-17, but then
disregards the import of its agreement finding ambiguity when
there is none. As a further example, the court suggests the
2
See THE CHICAGO MANUAL OF STYLE ¶ 5.150 (16th ed.
2010) (“Would sometimes expresses a condition {I would slide down
the hill if you lent me your sled}”). Likewise, here a species would be
delisted when the recovery criteria are met.
6
possibility that the phrase “would result” could mean “a
sufficient, not a necessary” condition. Id. at 17. But “the sort of
ambiguity giving rise to Chevron deference is a creature not of
definitional possibilities, but of statutory context.” New York v.
EPA, 443 F.3d 880, 884 (D.C. Cir. 2006), and a court “must not
‘confine [itself] to examining a particular statutory provision in
isolation.’” Am. Bankers Ass’n v. Nat. Credit Union Admin., 271
F.3d 262, 267 (D.C. Cir. 2001). It hardly would make sense for
Congress to mandate implementation, and formal procedures for
revision, of criteria in recovery plans that “would result” in “the
species be[ing] removed from the list” if Congress intended that
other unadopted recovery criteria could suffice, and need not be
formally adopted pursuant to the procedures Congress mandated,
to determine delisting. The context and structure of the statute
are clear that the recovery criteria must be “met” or revised prior
to delisting. And, upon “exhausting the traditional tools of
statutory construction, including examining the statute’s
legislative history,” id., that history “definitively resolves the
debate,” id., the court creates over the word “would” for
Congress stated that the 1988 amendments added “[t]he
requirement that plans contain objective, measurable criteria for
removal of a species from the Act’s lists.” S. REP. NO. 100-240,
at 9-10 (emphasis added); see infra n.4.
Next, the court attempts to find ambiguity in the phrase “to
the maximum extent practicable.” Section 4(f)(1) provides that
“[t]he Secretary, in developing and implementing recovery plans,
shall, to the maximum extent practicable . . . incorporate in each
plan . . . objective, measurable criteria.” 16 U.S.C.
§ 1533(f)(1)(B)(ii) (emphasis added). Any potential ambiguity
evaporates where, as here, the Secretary has incorporated
7
objective criteria in the Squirrel’s recovery plan.3 It obviously
was practicable to do so here. Having done so, the Secretary is
not free to ignore Congress’s mandates to “implement” plans and
to delist only “when” the objective criteria are “met,” particularly
given his determination, in developing the recovery plan, that the
plan “will . . . promote the conservation,” 16 U.S.C. § 1533(f)(1),
of the Squirrel. The court protests ambiguity remains because
the word “implementing” means “the Secretary must incorporate
criteria that are practicable to implement.” The court explains,
otherwise “any imaginable criterion may be incorporated so long
as the agency has the wit to place the requisite words upon a
page. . . . [I]t would be ‘impracticable’ for the Secretary to adopt
criteria that by their nature could never be met and hence would
preclude delisting a species so long as those criteria remain in
effect.” Op. at 19. This is word play, not statutory analysis. As
Congress crafted the ESA, the Secretary’s chosen criteria, once
“incorporate[d] in each plan,” remain “incorporate[d] in each
plan,” however “practicable” their adoption might once have
been, or their implementation might later become, and Congress
provided a remedy for the latter possibility — revision pursuant
to public notice-and-comment. See 16 U.S.C. § 1533(f)(4). The
recovery criteria, therefore, plainly cannot “preclude delisting a
3
The Squirrel Recovery Plan lists four criteria to delist the
Squirrel: (1) realization of “stable or expanding” populations over a
ten year period in 80% of the designated geographic recovery areas
(“GRAs”) (based on biennial sampling); (2) accumulation of
“sufficient ecological data and timber management data . . . to assure
future protection and management”; (3) perpetual management of
geographic recovery areas to ensure sufficient habitat and habitat
corridors for migration; and (4) “existence of high elevation forests on
which the [S]quirrel[] depend[s] is not itself threatened by introduced
pests . . . or by environmental pollutants.” U.S. FISH & WILDLIFE
SERVICE, APPALACHIAN NORTHERN FLYING SQUIRRELS RECOVERY
PLAN 18 (Sept. 24, 1990) (“Recovery Plan”).
8
species” because they can be changed, with notice-and-comment,
if the Secretary determines “they could never be met” or no
longer accurately measure recovery. The court either overlooks
section 4(f)(4)’s revision process or drains it of purpose.
Furthermore, even if the Secretary could “decide it is practicable
only to adopt criteria that guide but do not constrain [the
delisting] analysis,” Op. at 19, that is not what happened here.
The Squirrel’s recovery plan states that “[r]ecovery plans
delineate reasonable actions believed to be required to recover
and/or protect listed species,” and notes that recovery plans are
subject to amendment — which is consistent with section 4(f)(4).
Recovery Plan, Executive Summary (emphasis added). Indeed,
the Secretary specified that the first three criteria were required
for down-listing the Squirrel to “threatened” status, while the
fourth, in combination with the first three, were required for
delisting. Id. The court’s search for ambiguity here is in vain.
The third reason the court finds ambiguity, which it
collapses into a denial that its deference to the Secretary’s
interpretation of sections 4(a) and (f) renders (f) a nullity, see
Op. at 9-10, overrides Congress’s repeated use of “shall” in
identifying the Secretary’s obligations and allows the Secretary
to end run section 4(f)’s requirements. Rather than confront
Congress’s plain mandatory text, or the supportive legislative
9
history,4 the court turns to a travel planning analogy that distorts
what happened here. The court posits:
4
The legislative history of the 1988 ESA Amendments
confirms the conclusion that section 4(f)’s meaning is unambiguous.
“[T]he Act is amended to require . . . site-specific management actions
to achieve recovery [and] criteria by which to judge success of the
plan. . . . Incorporation of this information will ensure that plans are
explicit as possible in describing the steps to be taken in the recovery
of a species.” S. REP. NO. 100-240, at 9 (emphases added). “The
requirement that plans contain objective, measurable criteria for
removal of a species from the Act’s lists . . . will provide a means by
which to judge the progress being made toward recovery.” Id. at 9-10.
The Secretary latches onto the word “a,” suggesting it implies other
means by which to judge recovery progress. See Appellant’s Br. at
32. This observation does not make the recovery plan’s criteria any
less mandatory, and the ESA requires a specific method for adopting
those other criteria should the Secretary find it appropriate, see 16
U.S.C. § 1533(f)(4).
The notice-and-comment provision of section 4(f)(4) was an
amendment offered by Senator McClure, who explained on the Senate
floor that “this amendment will require the Secretary to solicit
comments and additional information for consideration from local
communities prior to final approval of new recovery plans, or before
approval of revisions to existing plans.” 134 Cong. Rec. 19,270
(1988) (statement of Sen. Jim McClure) (emphases added). The
amendment was not intended to make the Secretary “responsible for
gathering the information. It [instead] allow[s] those most directly
affected by a proposal to provide additional information to the
Secretary that might otherwise be overlooked.” Id. The final
Conference Report reflects the sponsor’s view of the amendment:
Although section 4(f)(4) “does not necessitate a rulemaking
procedure,” it does “require[]” the Secretary to “consider the public
comments before approving the plan.” H.R. CONF. REP. NO. 100-928,
at 21(1988), reprinted in 1988 U.S.C.C.A.N. 2738, 2739 (emphasis
added).
10
If someone said he would see me in Cleveland while on
his way to Chicago and would let me know before
changing his plan, it would hardly be sensible to say he
must “revise” his plan before he can tell me that he no
longer needs to make the trip.
Op. at 10. Here, the Secretary in fact went to Chicago — he
declared the Squirrel recovered and delisted it. He just avoided
Cleveland altogether (i.e., several of the recovery criteria), and
stopped in Detroit instead (i.e., the covertly revised criteria),
without telling anyone, despite saying he “would let me know
before changing his plan” (i.e., comply with section 4(f)(4)).
The court’s analogy begs the key question of how it is to be
determined that the stop in Cleveland (i.e., meeting the recovery
criteria) no longer needs to occur — as Congress directed, or as
the Secretary would prefer? A better analogy, grounded in
administrative law, is of an airline pilot who determines mid-
flight, due to changed circumstances (e.g., turbulence), that the
approved flight plan should be revised. Although “overtaken by
events,” Op. at 10, under the regulations, in the absence of an
emergency, the flight plan may not be discarded by the pilot —
instead the pilot must follow the revision process set forth by
regulations. See 14 C.F.R. § 91.123 (“[N]o pilot in command
may deviate from [a] clearance unless an amended clearance is
obtained . . . .”). Congress provided no comparable “emergency”
exception in the ESA whereby the Secretary may disregard the
recovery plan criteria if he decides, insulated from public input,
that the species has in fact recovered despite not satisfying the
official plan criteria for recovery. Instead, Congress specified
in the ESA the process for revising recovery plans.
Furthermore, the court altogether ignores that the Secretary,
acting through the Fish and Wildlife Service (“FWS”), revised
the recovery plan, while the Squirrel was still listed as
endangered, without following the notice and comment
11
procedures required by ESA section 4(f)(4). In December 2007,
nearly a year before promulgating the Final Rule Removing the
Squirrel from the Endangered Species List, 73 Fed. Reg. 50,226(Aug. 26, 2008) (“Final Rule”), the FWS revised two of the four
criteria in the Squirrel’s recovery plan. In an unpublished,
publically-unavailable analysis, the FWS concluded that the
second and fourth recovery criteria had been met, while the
“intent” of the first and third criteria had been met under revised
criteria. See U.S. FISH & WILDLIFE SERVICE, ANALYSIS OF
RECOVERY PLAN CRITERIA FOR THE WEST VIRGINIA NORTHERN
FLYING SQUIRREL 13 (Dec. 18, 2007) (“2007 Analysis”).
Specifically, the FWS revised the first criterion from one
measuring Squirrel populations in five geographic areas to one
measuring “persistence,” that is, whether the Squirrel was
present (without regard to quantity) or absent, in 3-5 year
intervals, in different areas.5 See id. at 2. The FWS revised the
third criterion to eliminate its core provision that the geographic
5
The 2007 Analysis stated that the Secretary, acting through
the FWS,
now know[s] that it is not practicable or necessary to measure
actual [Squirrel] population numbers in GRAs. Sampling this
widely dispersed, cryptic species is labor intensive and highly
inefficient. . . . [The FWS] now considers persistence to be
the best indicator of successfully reproducing populations for
this subspecies. [The FWS] defines persistence as continuing
captures of [Squirrels] over multiple (3-5) generations at
previously documented sites throughout the historic range.
Id. at 1-2 (emphasis added). The FWS concluded, in view of this new
criterion and non-public definition of “persistence,” that the “intent of
this criterion [as revised] has been met.” Id. at 3.
12
recovery area (“GRA”) be managed in perpetuity.6 It is
undisputed the FWS made these revisions without providing
notice or opportunity for comment, and that the 2007 Analysis
was publically mentioned for the first time in the Final Rule, 73
Fed. Reg. at 50,227. Even were the court correct that the
purported ambiguity of section 4 permits the Secretary’s
interpretation of recovery plans as discretionary and mere
guidance (contrary to the ESA’s plain text) and that the Secretary
did not need to revise the recovery plan if its criteria could not be
met, see Op. at 10, where the Secretary does revise the plan, the
court has no explanation for why the requirements of section
4(f)(4) can be ignored, other than to invoke its inapt travel plan
analogy.
The circularity of the court’s reasoning demonstrates how its
reading renders section 4(f) superfluous: According to the court:
“[A]s long as a species is listed as endangered, the agency is
obligated to work toward the goals set in its recovery plan,” but
the “criteria in the plan [do not] limit the agency when it is
deciding whether to delist a species.” Op. at 16. If a species is
delisted on the basis of recovery, without regard to whether the
recovery plan criteria have been “met,” then there is nothing left
6
The 2007 Analysis stated that
the original goal of permanent habitat protection of a few
small areas is no longer necessary. . . . There are sufficient
numbers of occurrences represented within the core areas such
that the threat of a single or widespread catastrophic event
eliminating a significant portion of occurrences is
substantially reduced. Therefore not all of the GRAs need to
be protected in perpetuity.
Id. at 5 (emphases added). The FWS concluded that “the intent of this
recovery criterion has been met.” Id. at 10.
13
to section 4(f)(4)’s mandatory requirement that revisions to the
criteria by which recovery is evaluated be subject to notice and
comment prior to their adoption. Under the court’s
interpretation, the FWS, on the Secretary’s behalf, can dispense
with the revision plan criteria by not labeling its changes a
“revision,” and proceed to delist a protected species pursuant to
section 4(a) without regard to the requirements of sections
4(f)(1) and (4). That the FWS would never have an incentive to
follow the revision process of section 4(f)(4), because recovery
plans could be ignored without consequence, is aptly
demonstrated by the facts here: while the Squirrel was still listed
as endangered, the FWS covertly changed its recovery plan
criteria without following the requirements of section 4(f)(4).
Required procedures are a vital part of the protections
afforded by the ESA, in which Congress employed mandatory
language regarding the Secretary’s obligations. See, e.g., 16
U.S.C. § 1533(a)(3)(A) & (B) (setting procedures for designating
and revising critical habitat); id. § (b)(3)(A)-(D) (setting
procedures and time period for responding to petitions); id.
§ (b)(5) (setting procedures and time period for notice-and-
comment on listing); id. § (b)(6) (setting time period for
publishing final listing or delisting rule); id. § (c)(1) (setting
requirements for what endangered and threatened lists must
contain); id. § (f)(4) & (5) (setting procedures for revising
recovery plans and considering public comments). Whether or
not the court views Congress’s chosen process as unnecessary,
see Op. at 10, “[the court’s] job is to interpret the methods that
Congress chose to further its goals, not to devise methods of our
own.” Consolidated Rail Corp. v. United States, 896 F.2d 574,
579 (D.C. Cir. 1990). If, as the court asserts, this dissent “labors
at length” about Congress’s use of the word “shall,” see Op. at
16, the “labor[ing]” has been for naught as the court chooses to
acknowledge its force selectively, in fact only with respect to
section 4(a)(1), see id. Furthermore, the court’s revision to
14
section 4(f) does not make much sense for it has the decision to
delist driving what the recovery criteria are rather than the
recovery criteria driving the decision to delist. Consistent with
Congress’s choice of words and purpose to strengthen the ESA
in the 1988 amendments, the notice-and-comment process for the
recovery plan should sensibly precede consideration of delisting.
See 16 U.S.C. § 1533(f)(4) (“The Secretary shall consider all
information presented during the public comment period prior to
approval of the plan.”) (emphasis added).
Contrary to the Secretary’s suggestion in this court, the
requirements added by Congress in 1988 to strengthen the ESA’s
protections, see S. REP. NO. 100-240, at 8-9, are not a “make-
work exercise” or mere “hoop-jumping,” Appellant’s Br. at 43.
Instead, consistent with its ESA findings and policy of
conservation, Congress determined to “require deliberation”
when the existence of precious species have been found
endangered or threatened. Congress instructed in plain terms
that only upon subjecting proposed revisions to recovery plan
criteria to the rigor of public comment would the Secretary (or
the FWS) be in a position properly to assess proposed revisions
and undertake to consider, upon applying the revised criteria,
whether they are met and the protected species should be delisted
pursuant to sections 4(a) and (b). After all, the purpose of
notice-and-comment procedures is “to ensure that affected
parties have an opportunity to participate in and influence agency
decision making at an early stage, when the agency is more
likely to give real consideration to alternative ideas.” See State
of N.J., Dept. of Envtl. Protection v. EPA, 626 F.2d 1038, 1049
(D.C. Cir. 1980) (internal quotation marks and citation omitted)
(emphasis added). That the Secretary (or the FWS) may find
these requirements inconvenient or view section 4(f)(4) as a
“make-work” exercise is irrelevant, for “[w]hen a statute
commands an agency without qualification to carry out a
particular program in a particular way, the agency’s duty is clear;
15
if it believes the statute untoward in some respect, then ‘it should
take its concerns to Congress,’ for ‘[i]n the meantime it must
obey [the statute] as written.’” Oceana, Inc. v. Locke, 670 F.3d
1238, 1243 (D.C. Cir. 2011) (quoting Natural Res. Def. Council
v. EPA, 643 F.3d 311, 323 (D.C. Cir. 2011)) (second and third
alterations in original).
The court’s reliance on Norton v. Southern Utah Wilderness
Alliance, 542 U.S. 55, 72 (2004), is misplaced, see Op. at 10. In
determining that Bureau of Land Management (“BLM”) land use
plans were not binding documents, the Supreme Court relied on
a statutory provision granting the Secretary leeway in
implementing plans: “Title 43 U.S.C. § 1712(e) provides that
‘[t]he Secretary may issue management decisions to implement
land use plans’ — the decisions, that is, are distinct from the plan
itself.” Norton, 542 U.S. at 69-70 (alteration in original). BLM
regulations likewise provided that land use plans were “not a
final implementation decision on actions which require further
specific plans, process steps, or decisions.” Id. at 70 (quoting 43
C.F.R. § 1601.0-5(k) (2003)). By contrast, the ESA includes no
provision granting the Secretary leeway in issuing “management
decisions” about implementing recovery plans, and unlike land
use plans, which may lack specificity and process steps,
Congress mandated that recovery plans contain “objective,
measurable criteria” to be “met.” 16 U.S.C. § 1533(f)(1)(B)(ii).
The court’s remaining citation is to out-of-circuit precedent
providing no statutory analysis and relying on a case decided
before the 1988 ESA amendments. See Op. at 11 (citing Fund
for Animals v. Rice, 85 F.3d 535, 547 (11th Cir. 1996) (citing
Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975))).
Viewing the ESA as a whole, see Dole v. United
Steelworkers of Am., 494 U.S. 26, 42-43 (1990), — and
consistent with “one of the most basic interpretative canons, that
‘[a] statute should be construed so that effect is given to all its
16
provisions, so that no part will be inoperative or superfluous,
void or insignificant,’” Corley, 556 U.S. at 314 (internal citation
omitted) (alteration in original) — there is only one statutory
reading that gives full effect to all of section 4's provisions. For
this reason, section 4(c)(2), which provides that determinations
to remove a species from the list of endangered or threatened
species be “made in accordance with the provisions of
subsections (a) and (b),” 16 U.S.C. § 1533(c)(2), must be read in
light of Congress’s 1988 amendment to section 4(f) to strengthen
protections for species. “[W]hen” the existing or properly
revised recovery criteria have been “met,” delisting is to occur
pursuant to section 4(a) and (b). Where a species’ recovery plan
criteria have not been met, the species remains listed. Where
circumstances change, the recovery plan criteria may be revised
in the manner prescribed by section 4(f)(4). Because section
4(f)(4) mandates notice be given prior to approval of a plan
revision, and that public comments be considered before
approval of a plan revision, section 4 is likewise unambiguous
that the notice-and-comment period for plan revisions may not
run concurrently with the notice-and-comment period for the
proposed delisting rule.
A statute that permits only one intelligible outcome is not
ambiguous, and the court thus errs in deferring to the Secretary’s
contrary interpretation, see Final Rule, 73 Fed. Reg. at 50,226,
that recovery plans are discretionary and mere guidance
documents whose recovery criteria do not inform delisting
decisions. Because “the statutory language is unambiguous and
the statutory scheme is coherent and consistent,”Barnhart, 534
U.S. at 950 (internal citations omitted), the court’s inquiry is at
an end. For these reasons, I would affirm the judgment of the
district court that the Secretary could not delist the Squirrel
without either satisfying, or soliciting and considering public
comments on the revisions to, the delisting criteria in the
Squirrel’s recovery plan.
17
II.
Although the Secretary’s statutory challenge is properly
resolved under Chevron step one, as there is no ambiguity for the
Secretary to interpret, the court errs as well in rejecting
appellees’ alternative argument that the Secretary violated the
Administrative Procedure Act (“APA”). A delisting, no less than
a “listing determination[,] is subject to review under the APA
and must be set aside if ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” Am.
Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C. Cir. 2008)
(quoting 5 U.S.C. § 706(2)(A)).
A.
“Under APA notice and comment requirements, ‘[a]mong
the information that must be revealed for public evaluation are
the ‘technical studies and data’ upon which the agency relies [in
its rulemaking].’” Am. Radio Relay League, Inc. v. FCC, 524
F.3d 227, 236 (D.C. Cir. 2008) (quoting Chamber of Commerce
v. SEC, 443 F.3d 890, 899 (D.C. Cir. 2006)) (alterations in
original). “More particularly, ‘[d]isclosure of staff reports
allows the parties to focus on the information relied on by the
agency and to point out where that information is erroneous or
where the agency may be drawing improper conclusions from
it.’” Id. (quoting Nat’l Ass’n of Regulatory Util. Comm’rs v.
FCC, 737 F.2d 1095, 1121 (D.C. Cir. 1984) (alteration and
emphasis in original). “It is not consonant with the purpose of
a rule-making proceeding to promulgate rules on the basis of . .
. data that, [in] critical degree, is known only to the agency.”
Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 393 (D.C.
Cir. 1973), superseded by statute on other grounds, Am.
Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999);
see also Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392,
1403 (9th Cir. 1995).
18
1. In the Final Rule, the FWS relied heavily on the 2007
Analysis of the Squirrel’s recovery plan as the basis for
eliminating the protections of the ESA for the species. See Final
Rule, 73 Fed. Reg. at 50,227. It also relied on the 2006 5-Year
Review.7 See id. Neither the 2007 Analysis nor the 2006 5-Year
Review were published in the Federal Register, see id.; indeed,
the 2007 Analysis was created after the close of the public
comment period on the proposed rule, see id., and counsel for the
Secretary was unable during oral argument to indicate where a
member of the public could gain access to the 2007 Analysis
prior to, or even after, promulgation of the Final Rule. See Oral
Arg., at 20:44-22:08.
Nor did the notice of proposed rulemaking to delist the
Squirrel provide adequate substitute notice of the recovery plan
revisions set forth in the 2007 Analysis. Instead, although it
generally outlined the FWS’s reasons for concluding recovery of
the Squirrel had occurred, see Proposed Rule to Remove Squirrel
From List of Endangered Species, 71 Fed. Reg. 75,924 (Dec. 19,
2006) (“NPRM”), the public had no opportunity to comment on
the revisions of criteria one and three in the Squirrel’s recovery
plan, including the definition of “persistence” in the 2007
Analysis and in the Final Rule. Neither, therefore, was there an
opportunity for the FWS to consider, as Congress required, “all
information presented during the public comment period [on the
recovery criteria revisions],” 16 U.S.C. § 1533(f)(4), because no
such comment period occurred. Even if the FWS was generally
aware, through comments submitted in response to the NPRM,
of criticisms of rejection of initial recovery plan criteria,
“‘knowing’ is not, in any event, the same as actually considering
7
See U.S. FISH & WILDLIFE SERVICE, WEST VIRGINIA
NORTHERN FLYING SQUIRREL, 5-YEAR REVIEW: SUMMARY &
EVALUATION, App. B (Apr. 2006); 16 U.S.C. § 1533(c)(2)(A).
19
the problems raised by” commenters. Gerber v. Norton, 294
F.3d 173, 183 (D.C. Cir. 2002). The jettisoned procedures of
section 4(f)(4) were designed to facilitate such consideration.
2. Furthermore, the NPRM gave no indication that the
FWS intended to abandon “population” as the relevant standard
in assessing the Squirrel’s recovery. “Given the strictures of
notice-and-comment rulemaking, an agency’s proposed rule and
its final rule may differ only insofar as the latter is a ‘logical
outgrowth’ of the former.” Envtl. Integrity Project v. EPA, 425
F.3d 992, 996 (D.C. Cir. 2005). “A rule is deemed a logical
outgrowth if interested parties ‘should have anticipated’ that the
change was possible, and thus reasonably should have filed their
comments on the subject during the notice-and-comment
period.” Northeast Md. Waste Disposal Auth. v. EPA, 358 F.3d
936, 952 (quoting City of Waukesha v. EPA, 320 F.3d 228, 245
(D.C. Cir. 2003)).
The NPRM solicited comments on four topics, three of
which explicitly sought input on Squirrel population:
We particularly seek comments concerning: (1)
Biological, commercial, trade, or other relevant data
concerning any threat (or lack thereof) to the [Squirrel];
(2) additional information on the range, distribution,
and population size of the [Squirrel] and its habitat; (3)
the location of any additional populations of the
[Squirrel]; and (4) data on population trends.
71 Fed. Reg. at 75,924 (emphases added). The NPRM sought no
comments on the use of “persistence,” rather than population, as
the relevant standard, see Ass’n of Private Sector Colls. & Univs.
v. Duncan, 681 F.3d 427, 461 (D.C. Cir. 2012), and only vaguely
referenced “presence” and “persistence,” see NPRM, 71 Fed.
Reg. at 75,926 (citing “strong evidence of the [Squirrel’s]
20
continued presence throughout its range”); id. (citing ability of
Squirrel to “adjust its foraging and denning behavior . . . to
persist in and around . . . forest patches”); id. at 75,928 (citing
Virginia laws as “ensur[ing] the [Squirrel’s] persistence in
Virginia into the foreseeable future”); id. at 75,929 (noting that
southern flying squirrel “does not appear to be affecting
population persistence of the [Squirrel]”); id. at 75,929-930
(citing surveys showing Squirrel “persistent at multiple locations
for multiple generations,” stating that “protected habitat should
allow for persistence of viable populations” and concluding that
“available information shows that the [Squirrel] is persisting
throughout its historic range.”). The FWS nowhere indicated,
contrary to the request for comments on population size, that
“population” would be replaced as the recovery standard with
“persistence” (or how “persistence” was to be defined). And
two of the vague references to “persistence” fall in the same
sentences in which NPRM mentions “population.” See id. at
75,929-930.
Given the vague references to “persistence” and the explicit
requests to comment on population size, interested parties were
not reasonably apprised that they should submit comments on the
use of “persistence,” rather than population, as the standard. The
text of the NPRM provided no basis for anticipating that the
FWS “considers persistence to be the best indicator of
successfully reproducing populations for [the Squirrel],” Final
Rule, 73 Fed. Reg. at 50,227. Yet the FWS’s reliance on
“persistence,” and how it was to be defined, were critical shifts
in the standard for the Squirrel’s recovery that presented the
occasion for notice to the public so comments could address
whether the FWS’s definition complied with the ESA’s stated
purpose of “conservation” and the FWS could consider those
comments before amending the recovery plan, much less
completely delisting the Squirrel. The fact that some
commenters criticized the lack of population data in the NPRM
21
and the lack of a definition of “persistence,” see Final Rule, 73
Fed. Reg. at 50,227, cannot eliminate the FWS’s obligation to
provide notice of its intent to substitute “persistence” for a
“population” standard and of the definition of “persistence” and
how it related to ESA’s policy of conservation. See Fertilizer
Inst. v. EPA, 935 F.2d 1303, 1312 (D.C. Cir. 1991). Having
directed parties to focus on population size in their comments,
the FWS may not “use the rulemaking process to pull a surprise
switcheroo.” Envtl. Integrity Project, 425 F.3d at 996.
The court nowhere addresses these notice problems, despite
the fact that this argument appears explicitly (and repeatedly) in
appellees’ brief, see, e.g., Appellees’ Br. 36-40, with pin cite
citations to and quotations from this circuit’s logical outgrowth
doctrine cases. The argument is not, as the court concludes, see
Op. at 20, forfeited.
B.
The court’s approval of the Secretary’s reliance on the
Squirrel’s “persistence” as the standard for delisting, see Op. at
11-14, is also contrary to the repeated, unambiguous distinction
in the ESA between conservation of a species and its mere
survival, id. § 1532(3).
The FWS defined “persistence” as “continuing captures of
[the Squirrel] over multiple generations at previously
documented sites throughout its historical range,” Final Rule, 73
Fed. Reg. at 50,227; see also 2007 Analysis at 2. Stating that
“analysis . . . shows no evidence of localized extirpation since
the [Squirrel] was listed” and that “[t]he [Squirrel] persists in or
near all of the historical areas where it was originally known at
the time of listing,” Final Rule, 73 Fed. Reg. at 50,229, the FWS
determined that the Squirrel is not extinct and some (although
unclear how many) continue to survive after multiple
generations.
22
1. ESA section 4(b) requires that “[t]he Secretary shall
make determinations . . . solely on the basis of the best scientific
and commercial data available.” 16 U.S.C. § 1533(b)(1)(A); see
id. § 1533(c)(2). The court concludes the Secretary properly
relied on available data on “persistence,” see Op. at 12-14, citing
Southwest Center for Biological Diversity v. Babbitt, 215 F.3d
58, 60-61 (D.C. Cir. 2000), which held that “the Secretary has no
obligation to conduct independent studies.” But Southwest
Center concerned a dispute over whether population estimates
supported a decision to list a species, not over a shift in the
relevant standard for determining whether to delist a species. In
that case, the court approved the Secretary’s reliance on
estimates of species’ population where an actual count was
unavailable, noting that the Secretary was not alleged to have
“acted on the basis of no data.” Id. at 61. By contrast, here the
Secretary delisted the Squirrel on the basis of “no data,” id.(emphasis added), regarding population. Instead, the Secretary
shifted the standard from population numbers, see NPRM, 71
Fed. Reg. at 75,924; Recovery Plan at 18, to the Squirrel’s mere
presence/persistence, Final Rule, 73 Fed. Reg. at 50,227, an
entirely different concept. As appellees point out, see Appellees’
Br. at 49, “population” is a measure of quantity; “persistence” is
a measure mere survival, or existence, of the species.
Indeed, one of the main reasons stated in the NPRM for
delisting was the FWS’s conclusion that there had been “an
increase in the number of individual squirrels.” NPRM, 71 Fed.
Reg. at 75,924. In response to comments, however, the FWS
acknowledged that “use of the phrase ‘increase in number if [sic]
individual [Squirrels]’ was not accurate, as [the FWS] ha[s] not
estimated the size of the [Squirrel] population.” See Final Rule,
73 Fed. Reg. at 50,230. If there is no data available to answer
the relevant question, section 4(b)(1)(A) does not permit the
Secretary to answer another question that does have supporting
data. The court’s reasoning presumes that the Secretary may
23
begin with a conclusion (to delist) and then rely on some data
remotely related to the species even if in answer to a question
untethered to the ESA’s primary goal of recovery and
conservation, to satisfy the “best . . . data available” standard.
The “best . . . data available” standard cannot be used as an
excuse to avoid implementing the recovery plan criteria. If the
Secretary (or the FWS) concludes the available data suggests
recovery but is insufficient to satisfy the recovery plan criteria,
then the recovery plan must be revised in the manner prescribed
by section 4(f)(4). This is the process Congress mandated, and
it ensures that the criteria for recovery, and the data by which
they are measured, are the best available.
2. Even assuming section 4(b)(1)(A) permitted the
Secretary to change the standard used to measure a listed
species’ recovery, the plain text of the ESA precludes the
Secretary’s choice of “persistence.” The ESA defines
“conservation” as “the use of all methods and procedures which
are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant to
[the ESA] are no longer necessary.” 16 U.S.C. § 1532(3). It
requires post-delisting monitoring for “all species which have
recovered to the point at which the measures provided pursuant
to [the ESA] are no longer necessary.” Id. § 1533(g)(1). As
other circuits have recognized, Congress unambiguously
required more than simply a species’ continued survival in
determining whether it is to be protected under the ESA. In
considering the Secretary’s regulations implementing the critical
habitat provision, 16 U.S.C. § 1536(a)(2), the Ninth Circuit
concluded that “the ESA was enacted not merely to forestall the
extinction of species (i.e., promote a species survival), but to
allow a species to recover to the point where it may be delisted.”
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378
F.3d 1059, 1070 (9th Cir. 2004). “The purpose[] of [the ESA] .
. . [is] to provide a program for the conservation of [] endangered
24
species and threatened species . . . .,” 16 U.S.C. § 1531(b);
consequently “survival” and “recovery” were distinct goals of
the ESA, see Gifford, 378 F.3d at 1070. The Fifth Circuit
reached the same conclusion in Sierra Club v. Fish & Wildlife
Service, 245 F.3d 434, 441-42 (5th Cir. 2001), observing that
“‘[c]onservation’ is a much broader concept than mere survival,”
id. at 441; cf. New Mexico Cattle Growers Ass’n v. Fish &
Wildlife Serv., 248 F.3d 1277, 1283 n.2 (10th Cir. 2001).
Congress repeatedly referred in the ESA to “survival” as a
separate status than “conservation” or “recovery.” See 16 U.S.C.
§§ 1533(f)(1) & (f)(1)(B)(i) (mandating recovery plans for the
“conservation and survival” of species); id. §§ 1535(c)(1) &
(c)(2) (authorizing cooperative agreements with State agencies
that have “an adequate and active program for conservation of
endangered and threatened species,” id. §§ 1535(c)(1) & (c)(2),
and are also authorized to “conduct investigations to determine
the status and requirements for survival,” id. §§ 1535(c)(1)(C) &
(c)(2)(C)); id. §§ 1535(d)(1)(B) & (E) (authorizing financial
assistance to states based on the state’s capacity to “proceed with
a conservation program” and the “urgency to initiate a program
to restore and protect [a species] . . . in terms of survival of the
species”); § 1539(a)(2)(B)(iv) (permitting “taking” of species
where, among other things, it “will not appreciably reduce the
likelihood of the survival and recovery of the species”). From
the statutory text, “it is clear that Congress intended that
conservation and survival be two different (though
complementary) goals of the ESA.” Gifford, 378 F.3d at 1070.
The Secretary’s regulation on delisting, which provides that “[a]
species may be delisted on the basis of recovery only if the best
scientific and commercial data available indicate that it is no
longer endangered or threatened,” 50 C.F.R. § 424.11(d)(2)
(1984) (promulgated prior to the 1988 ESA Amendments), must
be viewed in light of Congress’s distinction between “survival”
and “recovery.” Consequently, the Secretary’s decision to delist
25
the Squirrel on the basis of its “persistence” – that is, its bare
survival – is a statutorily insufficient basis for delisting.8
In sum, contrary to Congress’s plain text, the court jettisons
the protections in the ESA for endangered and threatened species
and leaves the Secretary (and the FWS) more insulated and less
informed than Congress contemplated in strengthening the ESA
in 1988. The court’s approval of the FWS’s covert revisions to
the Squirrel’s recovery plan, surprise introduction of a new
recovery standard in the Final Rule, and adoption of a delisting
standard unambiguously foreclosed by the ESA leaves little of
the species’ protections Congress provided in the ESA,much less
of APA requirements.
Accordingly, I respectfully dissent.
8
In view of the APA violations, it is unnecessary to address
whether the FWS additionally failed adequately to explain the
delisting conclusion by demonstrating a “rational connection between
the facts found and the choice made,” Motor Vehicles Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal
quotation marks and citation omitted). The capture data referenced in
the Final Rule appear to show that only 36 of the 105 sites provide
data (i.e., multiple captures over more than five years) of
“persistence.” See 2006 5-Year Review, App. B.