Gen Land Off of the St of TX v. U.S. Fish and Wild

Case: 19-50178 Document: 00515272659 Page: 1 Date Filed: 01/15/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2020
No. 19-50178
Lyle W. Cayce
Clerk
GENERAL LAND OFFICE OF THE STATE OF TEXAS,
Plaintiff - Appellant
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; DAVID
BERNHARDT, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, in
his official capacity as Secretary for the United States of the Interior;
UNITED STATES FISH AND WILDLIFE SERVICE; GREG SHEEHAN, in
his official capacity as Acting Director of the U.S. Fish and Wildlife Service;
AMY LUEDERS, in her official capacity as Southwest Regional Director U.S.
Fish and Wildlife Service,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
Before KING, JONES, and DENNIS, Circuit Judges.
KING, Circuit Judge:
The United States Fish and Wildlife Service listed the Golden-Cheeked
Warbler as an endangered species in 1990. Approximately twenty-six years
later, the Service denied a petition asking it to delist the Warbler. The General
Land Office of the State of Texas claims that both of these decisions are invalid,
but its challenge to the Service’s decision to list the Warbler is untimely. We
agree with the General Land Office, however, that the Service applied the
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incorrect standard when reviewing the delisting petition. Consequently, we
conclude that the Service’s decision denying the delisting petition was
arbitrary and capricious, vacate that decision, and remand to the Service for
further proceedings.
I.
The General Land Office identifies three issues associated with the
Service’s decision to list the Warbler and its decision to deny the delisting
petition. First, the General Land Office contends that the Service violated the
Endangered Species Act (ESA), Pub. L. No. 93-205, 87 Stat. 884 (1973) when
it listed the Warbler as endangered, because the Service never designated the
Warbler’s critical habitat. Second, the General Land Office argues that both of
the Service’s decisions concerning the Warbler violated the National
Environmental Policy Act (NEPA), Pub. L. No. 91-190, 83 Stat. 852 (1970).
Third, the General Land Office asserts that the Service violated the ESA and
its implementing regulations when reviewing the delisting petition. Because
of the central role the ESA and NEPA play in the General Land Office’s claims,
we begin by describing how those statutes operate.
A. The Endangered Species Act
The ESA affords certain protections to endangered and threatened
species. 16 U.S.C. §§ 1533, 1536, 1538, 1539. An endangered species is defined
as “any species which is in danger of extinction throughout all or a significant
portion of its range,” id. § 1532(6), while a threatened species is “any species
which is likely to become an endangered species within the foreseeable future,”
id. § 1532(20). The ESA lists five biological factors that can cause a species to
be endangered or threatened:
(A) the present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or
educational purposes;
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(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). Whether a species is endangered or threatened is
determined “solely on the basis of the best scientific and commercial data
available . . . after conducting a review of the status of the species and after
taking into account” existing conservation efforts. Id. § 1533(b)(1)(A).
Similarly, determinations regarding the critical habitat of a species must be
determined “on the basis of the best scientific data available and after taking
into consideration the economic impact, the impact on national security, and
any other relevant impact, of specifying any particular area as a critical
habitat.” Id. § 1533(b)(2); see also id. § 1532(5)(A) (defining critical habitat).
Determinations regarding whether a species is endangered or
threatened are made through a modified form of notice-and-comment
rulemaking. 16 U.S.C. § 1533(b)(4). As relevant to this case, upon publication
of a final determination that a species is endangered or threatened, its critical
habitat should, “to the maximum extent prudent and determinable,” be
designated “concurrently with” that publication. Id. § 1533(a)(3)(A). Even if the
critical habitat of an endangered or threatened species is not designated
concurrently, it must be designated, “to the maximum extent prudent,” within
two years of publication of the proposed rule classifying the species. Id.
§ 1533(b)(6)(C)(ii).
The ESA directs the Secretary of the Interior to publish and maintain
lists of all endangered and all threatened species. 16 U.S.C. § 1533(c)(1). These
lists “shall . . . specify with respect to each such species over what portion of its
range it is endangered or threatened, and specify any critical habitat within
such range.” Id. The ESA calls for, “at least once every five years, a review of
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all species included in a list which is published pursuant to [the ESA] and
which is in effect at the time of such review.” Id. § 1533(c)(2)(A). Following this
review, the ESA requires a determination of whether any species should be
removed from the lists or moved from one list to the other. Id. § 1533(c)(2)(B).
Such a determination is made “in accordance” with the provisions governing
an initial decision to list a species. Id. § 1533(c)(2).
Any interested party can petition to add or remove a species from these
lists. 16 U.S.C. § 1533(b)(3). Within ninety days of receiving such a petition,
there should, “[t]o the maximum extent practicable,” be a finding “as to
whether the petition presents substantial scientific or commercial information
indicating that the petitioned action may be warranted.” Id. § 1533(b)(3)(A). If
this ninety-day finding is negative, then it is subject to judicial review. Id.
§ 1533(b)(3)(C)(ii). If the ninety-day finding is positive, then the status of the
species must be reviewed. 16 U.S.C. § 1533(b)(3)(B). This review, called a
twelve-month review, is followed by a finding regarding whether the petitioned
action is warranted, which must be made within twelve months of the
petition’s receipt. Id. The ESA does not provide details regarding what
constitutes substantial information, the amount of information required for a
positive ninety-day finding, but implementing regulations fill that void.
Specifically, when the Service denied the petition to delist the Warbler, then-
applicable regulations 1 defined substantial information as “that amount of
information that would lead a reasonable person to believe that the measure
proposed in the petition may be warranted.” 50 C.F.R. § 424.14(b)(1) (2014).
1 After the Service denied the delisting petition, the regulations implementing the
ESA petition process changed significantly. Substantial scientific or commercial information
is now defined as “credible scientific or commercial information in support of the petition’s
claims such that a reasonable person conducting an impartial scientific review would
conclude that the action proposed in the petition may be warranted.” 50 C.F.R.
§ 424.14(h)(1)(i).
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B. The National Environmental Policy Act
Congress passed NEPA “to promote human welfare by alerting
governmental actors to the effect of their proposed actions on the physical
environment.” Metropolitan Edison Co. v. People Against Nuclear Energy, 460
U.S. 766, 772 (1983). Under NEPA, federal agencies must include an
environmental impact statement in every “recommendation or report on . . .
major Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C); accord City of Dallas v. Hall, 562 F.3d 712,
717 (5th Cir. 2009). An environmental impact statement is “a detailed
statement by the responsible official” regarding, among other things, the
“environmental impact of the proposed action” and “any adverse
environmental effects which cannot be avoided should the proposal be
implemented.” 42 U.S.C. § 4332(C).
Regulations promulgated by the Council on Environmental Quality
instruct agencies on how to determine whether an environmental impact
statement is necessary for a particular proposed action, i.e., whether the
proposed action has a significant impact on the human environment. Coliseum
Square Ass’n v. Jackson, 465 F.3d 215, 224 (5th Cir. 2006). Under those
regulations, agencies generally perform an environmental assessment, a
“rough cut, low-budget environmental impact statement,” to determine
whether a full-blown environmental impact statement is necessary. City of
Dallas, 562 F.2d at 717; accord 40 C.F.R. § 1508.9(a)(1). If, as a result of an
environmental assessment, an agency concludes that an environmental impact
statement is not necessary, the agency issues a finding of no significant impact,
“indicating that no further study of environmental impacts is warranted. City
of Dallas, 562 F.3d at 718. In essence, agencies usually prepare environmental
assessments to determine whether proposed actions will have any significant
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environmental effects, in which case agencies prepare environmental impact
statements to determine what those effects will be.
Before September 21, 1983, the Service prepared environmental
assessments for its decisions regarding whether to list or delist species. See
Preparation of Environmental Assessments for Listing Actions Under the
Endangered Species Act, 48 Fed. Reg. 49,244, 49,244 (Oct. 25, 1983). As of that
date, however, the Service ceased preparing environmental assessments for
such decisions. Id. The Service did so because it “accepted [the Council on
Environmental Quality’s] judgment that . . . listing actions are exempt from
NEPA review ‘as a matter of law.’” Id. 2
II.
The Golden-Cheeked Warbler is a songbird with distinctive yellow
coloring that breeds exclusively in certain parts of Texas, although it travels
to other countries in the winter. Final Rule to List the Golden-cheeked Warbler
as Endangered, 55 Fed. Reg. 53,153, 53,154 (Dec. 27, 1990). The Warbler’s
breeding range “coincides closely with the range of Juniperus ashei (Ashe
juniper),” perhaps because the Warbler “depends on Ashe juniper for nesting
materials and substrate, and singing perches.” Id. While the Warbler nests in
some oak trees as well as in Ashe junipers, “[e]ven nests in other tree species
contain long strips of Ashe juniper bark.” Id. Ashe junipers “begin sloughing
bark near the base at about 20 years, and at the crown by 40 years,” so the
2 The Service gave three additional reasons for its decision to cease preparing
environmental assessments: (i) none of the approximately 130 environmental assessments
prepared by the Service in connection with listing decisions resulted in an environmental
impact statement; (ii) the Sixth Circuit had ruled, in Pacific Legal Foundation v. Andrus, 657
F.2d 829 (1981), that “as a matter of law an Environmental Impact Statement is not required”
for listing decisions and that “preparing EIS’s on listing actions does not further the goals of
NEPA or ESA”; and (iii) 1982 amendments to the ESA “require[e] listing decisions under the
Endangered Species Act to be based solely upon biological grounds and not upon
consideration of economic or socioeconomic factors.” 48 Fed. Reg. at 49,244-45.
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“presence of mature Ashe junipers is a major requirement for habitat of golden-
cheeked warblers.” Id.
A. The Initial Decision to List the Warbler
In 1990, the Service responded to a petition filed by a private citizen by
publishing an emergency rule listing the Warbler as endangered for 240 days.
Emergency Rule to List the Golden-cheeked Warbler as Endangered, 55 Fed.
Reg. 18,844, 18,844 (May 4, 1990). The Service gave “on-going and imminent
habitat destruction” in and around Austin, Texas as the justification for its
emergency rule. Id. The Service reasoned that “[a] relatively small loss of
habitat can contribute to fragmentation of a large area,” which “reduces the
productivity of the remaining habitat because of increased nest parasitism,
and increased predation of eggs, young, and adults.” Id.
Alongside the emergency rule, the Service proposed a rule listing the
Warbler as endangered on an indefinite basis. Proposed Rule to List the
Golden-cheeked Warbler as Endangered, 55 Fed. Reg. 18,846, 18,846 (May 4,
1990). The proposed rule analyzed each of the five factors specified by the ESA
for making determinations regarding whether a species is endangered or
threatened, but that analysis focused on the destruction of the Warbler’s
habitat and the fragmentation of that habitat. Id. at 18,847. Specifically, the
Service found that “[f]ragmentation in urban counties has limited the number
of suitable size habitat patches to between 16-46 percent of the total vegetation
structurally suitable for warbler use, and in rural areas the values range from
11-44 percent.” Id. at 18,847-48. In the proposed rule, the Service did not
designate any critical habitat areas because the Service concluded that such
areas were “not presently determinable.” Id. at 18,848. The Service did,
however, state its intention to “seek additional agency and public input on
critical habitat, along with information on the biological status of, and threats
to, the golden-cheeked warbler” during the comment period and “to use this
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and other information in formulating a decision on critical habitat
designation.” Id.
After receiving public comment on the proposed rule, the Service issued
a final rule listing the Warbler as an endangered species. Final Rule to List
the Golden-cheeked Warbler as Endangered, 55 Fed. Reg. at 53,153. The final
rule did not designate critical habitat, because the Service said that “[t]he
minimum patch size requirements of the golden-cheeked warbler are not
known at this time.” Id. at 53,159. The Service was “presently funding a study
to determine minimum patch size requirements for this species,” and the
Service acknowledged that it needed to make a critical-habitat designation by
May 4, 1992. Id. No such designation was ever made.
B. The Five-Year Review
Under the ESA, the Service was required to review the Warbler’s status
at least once every five years, but the first such review was not completed until
August 26, 2014. Austin Ecological Servs. Field Office, U.S. Fish & Wildlife
Serv., Golden-Cheeked Warbler (Setophaga Chrysoparia) 5-Year Review:
Summary and Evaluation 2 (2014), https://www.fws.gov/southwest/es
/Documents/R2ES/Golden-cheekedWarbler_5YrReview_2014.pdf. That review
found that the Warbler “is threatened by ongoing and imminent habitat loss”
and noted that a “recent habitat analysis concluded that there had been an
estimated 29 percent loss of existing breeding season habitat between 1999-
2001 and 2010-2011.” Id. at 8. According to the five-year review, “[t]he loss of
habitat through activities such as residential development often results in the
fragmentation of larger contiguous patches of habitat and increased isolation
of habitat patches,” which has “been shown to influence habitat quality for
woodland songbirds” in various ways. Id. at 9. Additionally, the five-year
review identified several other ongoing threats to the Warbler: (i) “reduced oak
recruitment due to herbivory from native and non-native animals” and “death
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of mature oaks from oak wilt,” id.; (ii) “ongoing destruction and fragmentation
of pine-oak forests throughout the [Warbler’s] migration and wintering
habitat,” id.; (iii) increased predation caused by habitat fragmentation, id. at
11; (iv) increased risk of catastrophic wildfire’s in the Warbler’s habitat, id. at
13; and (v) “accelerating climate change,” which “will likely exacerbate existing
threats and could result in future threats,” id. at 14. Synthesizing this
information, the five-year review concluded that, “[g]iven the ongoing, wide-
spread destruction of its habitat, [the Warbler] continues to be in danger of
extinction throughout its range.” Id. at 15.
C. The Delisting Petition
On June 29, 2015, a petition to delist the Warbler was filed by a group of
petitioners that did not include the General Land Office. Petition to Remove
the Golden-Cheeked Warbler from the List of Endangered Species at 2, 7-8
(2015), available at https://ecos.fws.gov/docs/petitions/90100/578.pdf. This
petition argued that delisting was warranted, because the Warbler population
and the Warbler breeding habitat were larger than the Service believed when
it initially listed the Warbler. Id. at 13-14; see also id. at 15 (“The best available
scientific data today shows that habitat is at least five times larger and the
warbler population is an order of magnitude larger than estimated in 1990.”).
Additionally, the delisting petition highlighted a 2015 survey, conducted by the
Institute of Renewable Natural Resources at Texas A&M, which “summarized
the extensive research and analysis that has been performed since 1990 and
concluded that the warbler’s listing status should be re-examined.” Id. at 14.
D. The Negative Ninety-Day Finding
After reviewing the delisting petition, the Service found that it “does not
provide substantial scientific or commercial information indicating that the
petitioned action may be warranted.” 90-Day Findings on Two Petitions, 81
Fed. Reg. 35,698, 35,700 (June 3, 2016). Accordingly, the Service did not
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initiate a twelve-month review and denied the delisting petition. Id. The
Service explained its reasoning at greater length in a sixteen-page
supplemental document that was mentioned, but not included, in the Federal
Register. Austin Ecological Servs. Field Office, U.S. Fish & Wildlife Serv., 90-
Day Finding on a Petition to Remove the Golden-Cheeked Warbler from the List
of Endangered and Threatened Wildlife (2016) [hereinafter Negative Ninety-
Day Finding], https://www.regulations.gov/document?D=FWS-R2-ES-2016
-0062-0003. That document contains a concise summary of the Service’s
reasoning:
A 5-year review for the golden-cheeked warbler was completed on
August 26, 2014, in which we recommended that the current
classification as endangered should not change. The petition does
not present substantial information not previously addressed in
the 2014 5-year review for this species and does not offer any
substantial information indicating that the petitioned action to
delist the species may be warranted. We acknowledge that the
known potential range is more extensive than when the golden-
cheeked warbler was originally listed. However, threats of habitat
loss and habitat fragmentation are ongoing and expected to impact
the continued existence of the warbler in the foreseeable future.
This and other pertinent information was evaluated in the 2014 5-
year review.
Id. at 10.
E. The District Court Proceedings
Following the Service’s decision to deny the delisting petition, the
General Land Office filed suit against the Service in the United States District
Court for the Western District of Texas challenging the Warbler’s continued
listing as an endangered species. The General Land Office argued that the
Service violated the ESA by listing the Warbler as an endangered species
without designating the Warbler’s critical habitat. It also argued that the
Service violated NEPA and its implementing regulations by failing to prepare
an environmental assessment or an environmental impact statement in
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connection with the Warbler’s initial listing or the decision to deny the
delisting petition. Additionally, the General Land Office maintained that the
Service’s negative ninety-day finding—and, hence, the decision to deny the
delisting petition—was arbitrary and capricious because the Service applied
the incorrect legal standard.
The district court dismissed, on statute-of-limitations grounds, the
General Land Office’s ESA and NEPA claims to the extent that those claims
challenged the Service’s initial decision to list the Warbler as an endangered
species. The district court also dismissed the entirety of the General Land
Office’s NEPA claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, reasoning that the Service’s initial decision to list the Warbler and
its denial of the delisting petition were not subject to NEPA. Finally, the
district court granted the Service’s motion for summary judgment on the
General Land Office’s only remaining claim, that the Service’s negative ninety-
day finding and the resulting denial of the delisting petition were arbitrary
and capricious. The General Land Office filed a timely notice of appeal.
III.
The General Land Office raises three issues on appeal: (i) whether its
claims challenging the Service’s initial decision to list the Warbler are time
barred; (ii) whether the Service’s listing decisions must comply with NEPA’s
procedural requirements; and (iii) whether the Service applied the correct legal
standard when issuing the negative ninety-day finding and denying the
delisting petition. We address each issue in turn.
A.
The General Land Office’s claims challenging the Service’s initial
decision to list the Warbler are time barred. With certain exceptions that are
not relevant here, “every civil action commenced against the United States
shall be barred unless the complaint is filed within six years after the right of
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action first accrues.” 28 U.S.C. § 2401(a). The standard rule is that a cause of
action accrues when a plaintiff is first able to file suit and obtain relief. Doe v.
United States, 853 F.3d 792, 801 (5th Cir. 2017) (citing Wallace v. Kato, 549
U.S. 384, 388 (2007)). This timing requirement is jurisdictional, because it is a
condition of the United States’ waiver of sovereign immunity. United States v.
Kubrick, 444 U.S. 111, 117-18 (1979). “Whether the Government is entitled to
sovereign immunity from suit presents a question of law that we review de
novo.” Doe, 853 F.3d at 797.
According to the General Land Office, the ESA required the Service to
designate the Warbler’s critical habitat within two years of publishing the
proposed rule listing the Warbler as endangered, i.e., by May 4, 1992, but the
Service did not do so. It follows that the General Land Office’s ESA claim
accrued, at the latest, more than two decades before the General Land Office
filed suit. Consequently, § 2401(a) bars this claim. Ctr. for Biological Diversity
v. Hamilton, 453 F.3d 1331, 1335-36 (11th Cir. 2006) (concluding that failure
to identify critical habitat is not a continuing violation).
Similarly, NEPA and its implementing regulations impose procedural
requirements that must, if applicable, be satisfied before an agency becomes
irreversibly committed to taking a particular action. See Sierra Club v.
Peterson, 717 F.2d 1409, 1414 (D.C. Cir. 1983) (“NEPA requires an agency to
evaluate the environmental effects of its action at the point of commitment.”). 3
If the Service violated NEPA, that violation was complete—and the General
3 If it were otherwise, NEPA would not “ensure[] that the agency, in reaching its
decision, will have available, and will carefully consider, detailed information concerning
significant environmental impacts” of a proposed action or “guarantee[] that the relevant
information will be made available to [a] larger audience that may also play a role in both
the decisionmaking process and the implementation of that decision.” Dep’t of Transp. v.
Public Citizen, 541 U.S. 752, 768 (2004) (quoting Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 349 (1989)).
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Land Office’s claim accrued—no later than December 27, 1990, when the
Service’s decision to list the Warbler became final. See Davis Mountains Trans-
Pecos Heritage Ass’n v. Fed. Aviation Admin., 116 F. App’x 3, 17 (5th Cir. 2004)
(concluding that a NEPA claim accrued when an agency “failed to do something
required by NEPA”). Consequently, to the extent that the General Land
Office’s NEPA claim challenges the Service’s initial decision to list the Warbler,
that claim is barred by § 2401(a).
The General Land Office attempts to render its claims timely by framing
them as ongoing failures to act and then invoking the continuing violation
doctrine, but that attempt is unavailing. The continuing violation doctrine does
not apply to claims based on discrete actions, Doe, 853 F.3d at 802, or to
“failures to act” that are properly characterized “as discrete events, not as
ongoing, durational conditions.” Texas v. United States, 891 F.3d 553, 564 (5th
Cir. 2018). Further, if “an agency is compelled by law to act within a certain
time period” but fails to do so, that failure qualifies as a “discrete agency
action.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 65-66 (2004). As we
have already described, the General Land Office’s claims challenging the
Service’s initial decision to list the Warbler are based on alleged failures to
take actions required by the ESA and NEPA before statutory deadlines.
B.
While we lack jurisdiction over the General Land Office’s untimely
challenge to the Service’s decision to list the Warbler, we can consider the
merits of the General Land Office’s NEPA claim to the extent that this claim
challenges the Service’s 2016 decision to deny the delisting petition. The
district court’s decision dismissing that claim under Rule 12(b)(6) is subject to
de novo review. Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d
413, 421 (5th Cir. 2013). Because NEPA’s procedural requirements do not
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apply to the Service’s listing decisions, we conclude that the district court’s
decision was correct.
NEPA does not require agencies to prepare an environmental impact
statement if the agency’s discretion is constrained by law such that it could not
consider the information that would be contained in such a statement as part
of its decisionmaking process. Dep’t of Transp. v. Public Citizen, 541 U.S. 752,
769-70 (2004). This result flows from the fact that “inherent in NEPA and its
implementing regulations is a ‘rule of reason,’ which ensures that agencies
determine whether and to what extent to prepare an EIS based on the
usefulness of any new potential information to the decisionmaking process.”
Id. at 767. “It would not . . . satisfy NEPA’s ‘rule of reason’ to require an agency
to prepare a full EIS due to the environmental impact of an action it could not
refuse to perform.” Id. at 769; see also id. at 767 (“Where the preparation of an
EIS would serve ‘no purpose’ in light of NEPA’s regulatory scheme as a whole,
no rule of reason worth that title would require an agency to prepare an EIS.”)
The ESA prohibits the Service from considering the information that
would be contained in an environmental impact statement when deciding
whether to list or delist a species as endangered or threatened. The ESA
carefully details the five biological factors that can render a species endangered
or threatened, 16 U.S.C. § 1533(a)(1), and it requires decisions about whether
a species is or is not endangered or threatened to be made “solely on the basis
of the best scientific and commercial data available,” id. § 1533(b)(1)(A). As the
Sixth Circuit put it decades ago:
[T]he statutory mandate of ESA prevents the [Service] from
considering the environmental impact when listing a species as
endangered or threatened. . . . The impact statement cannot insure
the agency made an informed decision and considered
environmental factors where the agency has no authority to
consider environmental factors. As far as the determination to list
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a species is concerned, preparing an impact statement is a waste
of time.
Pac. Legal Found. v. Andrus, 657 F.2d 829, 836 (6th Cir. 1981). Since the
Service does not need to prepare environmental impact statements for its
listing decisions, environmental assessments—which help agencies figure out
whether they need to prepare environmental impact statements—are likewise
unnecessary. Consequently, the Service did not violate NEPA or its
implementing regulations when it declined to delist the Warbler, and the
district court correctly granted the Service’s motion to dismiss.
C.
Although the Service’s decision to deny the delisting petition did not
violate NEPA, that decision was arbitrary and capricious. We review the
district court’s contrary conclusion de novo. Sabine River Auth. v. U.S. Dep’t of
Interior, 951 F.2d 669, 679 (5th Cir. 1992). An agency decision is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law,” 5
U.S.C. § 706(2)(A), if the agency applies an incorrect legal standard, see Koon
v. United States, 518 U.S. 81, 100 (1996) (“A district court by definition abuses
its discretion when it makes an error of law.”); see also Caring Hearts Personal
Home Servs., Inc. v. Burwell, 824 F.3d 968, 977 (10th Cir. 2016) (Gorsuch, J.)
(“[A]n agency decision that loses track of its own controlling regulations and
applies the wrong rules in order to penalize private citizens can never stand.”);
Humane Soc’y of the U.S. v. Pritzker, 75 F. Supp. 3d 1, 11 (D.D.C. 2014)
(“NMFS acted arbitrarily and capriciously in applying an inappropriately-
stringent evidentiary requirement at the 90-day stage.”).
The Service was required to respond to the delisting petition by
conducting a twelve-month review if the petition contained “substantial
scientific or commercial information indicating that the petitioned action may
be warranted.” 16 U.S.C. § 1533(b)(3)(A). Then-applicable regulations specified
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that this standard required “that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition may be
warranted.” 50 C.F.R. § 424.14(b)(1) (2014).
The Service recited this standard, but a careful examination of its
analysis shows that the Service applied an inappropriately heightened one.
Specifically, to proceed to the twelve-month review stage, the Service required
the delisting petition to contain information that the Service had not
considered in its five-year review that was sufficient to refute that review’s
conclusions. See Negative Ninety-Day Finding, supra, at 2 (“Much of this
argument is based on Mathewson et al. (2012, p. 1,123) . . . . The Mathewson
et al. (2012) study was considered by the Service and discussed in our most
recent 5-year review for the warbler . . . .”); id. at 3 (“This and other pertinent
information was evaluated in the 2014 5-year review where we recommended
that the species remain listed as in danger of extinction throughout its range
(Service 2014, p. 15).”); id. at 5 (“Information provided in the petition is refuted
by the 2014 5-year review, in which we conclude . . . .”); id. at 6 (“The petition
does not provide any new information indicating that predation is no longer a
threat to the warbler.” (emphasis added)); id. at 9 (“There are additional
threats that we evaluated and identified in the 2014 5-year review . . . . The
petition did not present any information to address these threats.”); id. at 10
(“This and other pertinent information was evaluated in the 2014 5-year
review.”); id. (“No new information is presented that would suggest that the
species was originally listed due to an error in information.” (emphasis added)).
The Service thus based its decision to deny the delisting petition on an
incorrect legal standard. Consequently, we conclude that the Service’s decision
was arbitrary and capricious. We therefore vacate that decision and remand
for the Service to evaluate the delisting petition under the correct legal
standard. See Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1022 (5th Cir. 2019)
16
Case: 19-50178 Document: 00515272659 Page: 17 Date Filed: 01/15/2020
No. 19-50178
(vacating the portion of an agency rule found to be arbitrary and capricious
and remanding to the agency for reconsideration).
IV
For the foregoing reasons, we AFFIRM the district court in part,
REVERSE the district court in part, VACATE the Service’s decision denying
the delisting petition, and REMAND to the Service for further proceedings.
17