Center for Biological Diversity v. Kempthorne

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY; 
PACIFIC RIVERS COUNCIL,
Plaintiffs-Appellants, No. 04-16563
v. D.C. No.
DIRK KEMPTHORNE,* Secretary of  CV-03-01758-
the Interior; STEVEN WILLIAMS, GEB/DAD
Director of the United States Fish OPINION
and Wildlife Service,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted May 17, 2006
Submission Vacated May 22, 2006
Resubmitted October 18, 2006
San Francisco, California
Filed October 18, 2006
Before: Pamela Ann Rymer and Kim McLane Wardlaw,
Circuit Judges, and William Alsup,** District Judge.
Opinion by Judge Rymer
*Dirk Kempthorne is substituted for his predecessor, Gale Norton, as
Secretary of the Interior, pursuant to Fed. R. App. P. 43(c)(2)
**The Honorable William Alsup, United States District Judge for the
Northern District of California, sitting by designation.
17617
17620 CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE
COUNSEL
Michael R. Sherwood (argued) and Susan Britton (signed the
briefs), Earthjustice, Oakland, California, for the plaintiffs-
appellants.
David C. Shilton, U. S. Department of Justice, Environment
& Natural Resources Division, Washington, D.C., for the
defendants-appellees.
OPINION
RYMER, Circuit Judge:
The Center for Biological Diversity and the Pacific Rivers
Council (collectively, the Center) appeal the district court’s
summary judgment in favor of the Secretary of the Interior,1
and the Director of the U.S. Fish and Wildlife Service (collec-
tively, the Service) in this suit under the Endangered Species
Act (ESA). 16 U.S.C. § 1531 et seq. The Center challenges
the Service’s finding under 16 U.S.C. § 1533(b)(3)(B)(iii) that
listing of the Sierra Nevada Mountain Yellow-Legged Frog
(the Frog) as an endangered species is “warranted but pre-
cluded.” For such a finding, §§ 1533(b)(3)(B)(iii)(I) and (II)
require the Service to identify proposals for other listings that
preclude listing the Frog and to find that expeditious progress
is being made to list qualified species. Although the Service
did not do so in its decision, the district court upheld the find-
ing of “warranted but precluded” because the Service’s path
could reasonably be discerned. We conclude that this option
is not available under the ESA, which expressly directs the
Service, when making a “warranted but precluded” finding, to
“publish such finding in the Federal Register, together with a
1
Subsequent to the district court’s decision, Gale Norton resigned and
the United States Senate confirmed Dirk Kempthorne to replace her as
Secretary of the Interior.
CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE 17621
description and evaluation of the reasons and data on which
the finding is based.” 16 U.S.C. § 1533(b)(3)(B). As this
wasn’t done, we reverse for remand to the Service.
I
On February 8, 2000, the Center petitioned the Service to
list the Frog as an endangered species under the ESA. The
petition asserted that the Frog was once the most abundant
frog in the Sierra Nevada region, but its population had
declined sharply in recent decades, and it had already van-
ished from many areas in its historic range. On October 12,
2000, the Service responded to the Center’s petition by pub-
lishing an initial 90-day finding that the petition presented
substantial information indicating that listing the species may
be warranted. 90-Day Finding on a Petition to List the Moun-
tain Yellow-Legged Frog as Endangered, 65 Fed. Reg. 60,603
(Oct. 12, 2000). It initiated a status review to determine
whether listing under the ESA was appropriate.
Under 16 U.S.C. § 1533(b)(3)(B), the Service had twelve
months from the date of receipt of the petition to complete
this review. The Service failed to make a finding within this
window, and the Center filed suit in the Northern District of
California. The district court issued an order requiring the
Service to comply with its statutory obligation by January 10,
2003. Ctr. for Biological Diversity v. Norton (“Frog I”), 2001
WL 1602696 (N.D. Cal. Dec. 12, 2001). The Service missed
the court-imposed deadline, but on January 16, 2003, pub-
lished its 12-month finding. See 12-Month Finding for a Peti-
tion to List the Sierra Nevada Distinct Population Segment of
the Mountain Yellow-Legged Frog (Rana muscosa), 68 Fed.
Reg. 2,283 (Jan. 16, 2003) (the Frog Decision).
The Frog Decision documented the scientific research that
the Service reviewed concerning the Frog’s taxonomy, physi-
cal description, range, habitat requirements, current status,
population segments, and the effect of this species’ extinction.
17622 CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE
It also surveyed the suspected factors affecting the Frog’s
population, including grazing, recreation, dams and water
diversion, roads and timber harvest, fire management activi-
ties, predation, and disease, and evaluated federal land man-
agement policies that could be affecting the Frog. Based on
the scientific data, the Service found that the Frog populations
were declining and that, due to their isolation, populations of
Frogs that become extinct are unlikely to recolonize. It further
found that “the overall magnitude of threats to the [Frog] is
high, and that the overall immediacy of these threats is immi-
nent.” The Service therefore concluded that listing the Frog as
an endangered species was warranted.
Nevertheless, the Service found that listing the Frog was
“precluded by other higher priority listing actions.” The ESA
allows a “warranted but precluded” finding if the Service
finds that (1) “the immediate proposal and timely promulga-
tion of a final regulation implementing the petitioned action
. . . is precluded by pending proposals to determine whether
any species is an endangered species or a threatened species,”
16 U.S.C. § 1533(b)(3)(B)(iii)(I); and (2) “expeditious prog-
ress is being made to add qualified species to either of the lists
published under . . . this section and to remove from such lists
species for which the protections of this chapter are no longer
necessary,” 16 U.S.C. § 1533(b)(3)(B)(iii)(II). The Service
explained its decision not to list the Frog as follows:
While we conclude that listing the [Frog] is war-
ranted, an immediate proposal to list is precluded by
other higher priority listing actions. During Fiscal
Year 2003 we must spend nearly all of our Listing
Program funding to comply with court orders and
judicially approved settlement agreements, which are
now our highest priority actions. To the extent that
we have discretionary funds, we will give priority to
using them to address emergency listings and listing
actions for other species with a higher priority. Due
to litigation pertaining to various listing actions, our
CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE 17623
planned work with listing funds in Fiscal Year 2003
consists primarily of addressing court-ordered
actions, court-approved settlement agreements, and
listing actions that are in litigation. (Also, some
litigation-related listing actions already are sched-
uled for Fiscal Year 2004.) We expect that our dis-
cretionary listing activity in Fiscal Year 2003 will
focus on addressing our highest priority listing
actions of finalizing expiring emergency listings.
68 Fed. Reg. at 2,303. Having decided not to list the Frog, the
Service designated it as a “candidate” for future listing and
assigned the species a priority ranking of “3” on the 12-level
Listing Priority Guidance scale (with “1” being an emergency
and “12” being the lowest priority). Id.
“A candidate is one for which [the Service has] on file suf-
ficient information on biological vulnerability and threats to
support a proposal to list as endangered or threatened but for
which preparation and publication of a proposal is precluded
by higher-priority listing actions.” Review of Species That
Are Candidates or Proposed for Listing as Endangered or
Threatened; Annual Notice of Findings on Recycled Petitions;
Annual Description of Progress on Listing Actions, 67 Fed.
Reg. 40,657, 40,658 (June 13, 2002) (2002 CNOR). The Ser-
vice annually publishes an update of the review status of spe-
cies that are candidates for listing, 50 C.F.R. § 424.15(b),
called a Candidate Notice of Review (CNOR). CNORs pro-
vide information regarding the status of the listing program as
a whole and progress that is being made on the listing back-
log.
The 2002 CNOR was published June 13, 2002, prior to the
Frog Decision, 67 Fed. Reg. 40,657, but the Frog was
included in the 2003 CNOR in light of its designation as a candi-
date.2 The 2002 CNOR describes why listing of all petitioned
2
The 2003 CNOR was published in the Federal Register on May 4,
2004. Review of Species That Are Candidates or Proposed for Listing as
17624 CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE
candidate species as of that time was warranted but precluded,
and forecasts that for fiscal year 2003 the Service’s antici-
pated listing budget will be needed to take listing actions to
comply with court orders and court-approved settlement
agreements. The 2002 CNOR identifies the particular species
on which the Service will work in the coming year, and
reports that since October 30, 2001 final listing actions for six
species had been published as well as proposed listing actions
for ten species and delisting actions for three species. It also
finds that given budget constraints, “these achievements con-
stitute expeditious progress.” Id. at 40,672.
The Center’s present action challenges the Service’s “war-
ranted but precluded” finding and seeks to compel the Service
to list the Frog. Ruling on cross-motions for summary judg-
ment, the district court looked to the 2002 CNOR’s descrip-
tion of listing actions that were then pending, and the
anticipated listing budget for Fiscal Year 2003. The court con-
cluded that the Service’s reasons for its finding that listing of
the Frog was “precluded by pending proposals” could be rea-
sonably discerned from these documents, which show that the
Service’s budget is being consumed by specific pending
actions. The court also concluded that an implied finding of
“expeditious progress” was made — and that the Service’s
Endangered or Threatened; Annual Notice of Findings on Resubmitted
Petitions; Annual Description of Progress on Listing Actions, 69 Fed. Reg.
24,876 (May 4, 2004) (2003 CNOR). (Another CNOR, for 2004, has since
been issued. Review of Species That Are Candidates or Proposed for List-
ing as Endangered or Threatened; Annual Notice of Findings on Recycled
Petitions; Annual Description of Progress on Listing Actions, 70 Fed. Reg.
24,870 (May 11, 2005) (2004 CNOR).) Neither the 2003 (nor 2004)
CNOR is in the administrative record; however, the Service suggests that
the 2003 CNOR is a judicially-noticeable document which has been relied
upon by both parties in this litigation. We express no view on this, as we
conclude that the ESA requires a description of the reasons and data on
which a “warranted but precluded” finding is made to be filed with the
finding — which, of course, the 2003 CNOR could not possibly have
been.
CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE 17625
reasons for it were reasonably discernable — from the June
13, 2002 CNOR, the Fiscal Year 2003 budget projections, and
an internal Department of Interior Effect Statement. These
documents are part of the administrative record but are not
referred to in the decision. The district court then determined
that neither finding was arbitrary, and entered judgment for
the Service.
The Center timely appealed.
II
[1] The ESA clearly prescribes that when the Service
makes a “warranted but precluded” finding, it “shall promptly
publish such finding in the Federal Register, together with a
description and evaluation of the reasons and data on which
the finding is based.” 16 U.S.C. § 1533(b)(3)(B). We take this
directive at face value. It means that the Service cannot make
a “warranted but precluded” finding without publishing a
description and evaluation of its reasons and data together
with the finding.
[2] We have already indicated that the circumstances under
which the Secretary may invoke the excuse of “warranted but
precluded” are “narrowly defined.” Ctr. for Biological Diver-
sity v. Norton (“Gila Chub”), 254 F.3d 833, 838 (9th Cir.
2001). Implementing the petitioned action (here, listing the
Frog) must be precluded by pending proposals and expedi-
tious progress must be being made to list qualified species and
delist those for whom ESA’s protections are no longer neces-
sary. 16 U.S.C. § 1533(b)(3)(B). As we elaborated in Gila
Chub, the Service must show that it “is actively working on
other listings and delistings and must determine and publish
a finding that such work has resulted in pending proposals
which actually preclude proposing the petitioned action at that
time,” and “must determine and present evidence that [it] is,
in fact, making, expeditious progress in the process of listing
and delisting other species.” Gila Chub, 254 F.3d at 838
17626 CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE
(quoting H. Conf. Rep. No. 97-835, at 22 (1982), reprinted in
1982 U.S.C.C.A.N. 2860, 2863 (alteration omitted)).
[3] It follows from § 1533(b)(3)(B) and Gila Chub that
these determinations — work on other listings that actually
precludes listing the Frog, and expeditious progress — must
be part of the published findings. The Frog Decision contains
no determination at all that expeditious progress in listing or
delisting other species is being made. While the Service did
find that the Frog proposal is precluded by other higher prior-
ity listing actions, the Decision contains no description or
evaluation of the data or reasons why listing the Frog is actu-
ally precluded. Accordingly, this is not a case where we can
“uphold a decision of less than ideal clarity if the agency’s
path may reasonably be discerned.” Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (quoting Bowman Transp., Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
[4] The Service argues that its statement in the Frog Deci-
sion that listing was precluded due to the need to complete
actions required by court orders and settlement agreements,
and to focus discretionary listing activity in Fiscal Year 2004
on finalizing expiring emergency listings, was supported by
detailed statements made six months earlier in the 2002
CNOR. Even if this were correct (and we express no opinion
on it), a document published in June, 2002 is not published
together with a finding published in January, 2003. In addi-
tion, as the Frog Decision makes no reference to the 2002
CNOR, there is no way to tell whether the Frog Decision was
in fact made for the reasons and based upon the data set out
in that review. If the grounds in the Decision itself are inade-
quate, we are “powerless to affirm the administrative action
by substituting what [we] consider[ ] to be a more adequate
or proper basis.” SEC v. Chenery Corp., 332 U.S. 194, 196
(1947). Nor is there any way to tell from the Frog Decision
that nothing had changed in the interim. Even if nothing did
change (again, we express no opinion on it), we uphold
CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE 17627
administrative decisions only when they are not “arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law.” Ariz. Cattle Growers’ Ass’n v. U.S. Fish &
Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001) (quoting 5
U.S.C. § 706(2)(A)). The reasoning and data of the 2002
CNOR should have been part of the Frog Decision, or the two
documents should have been published together — as they are
supposed to be under the ESA — if they are to be considered
together for purposes of appellate review. See Gila Chub, 254
F.3d at 839 (noting that the published “warranted but preclud-
ed” findings provide public notice and provide the basis for
review). Here, however, we can’t get to the substance of the
agency’s position because it did not comply with the proce-
dure required by § 1533(b)(3)(B) and Gila Chub.
On the similar footing that the administrative record also
makes clear that the Service considered the “expeditious prog-
ress” that had been made, the Service maintains that it was
reasonable to determine progress by considering the full range
of its activities and that this is best done during the annual
review of candidate listing status. Again, it may be that the
homework was done, but it has to be turned in to count. Sec-
tion 1533(b)(3)(B) states that “the Secretary shall make” find-
ings that a petition is warranted but that “expeditious progress
is being made . . . .” (emphasis added). The finding isn’t
optional. Neither do we believe that it may be implied based
on information in the administrative record that the Decision
does not identify, because § 1533(b)(3)(B)(iii) not only condi-
tions a finding that the petitioned action is “warranted but pre-
cluded” on a determination of “expeditious progress,” but it
requires that that finding be published together with a descrip-
tion and evaluation of the reasons and data upon which it is
based. We therefore cannot agree with the Service that with-
out more, findings in the published CNOR fulfill the require-
ments of § 1533(b)(3)(B)(iii) for published findings supported
by reasons and data.3
3
The Service seeks to distance the Frog Decision from Gila Chub by
pointing out that the notice we faulted in Gila Chub was a one-liner desig-
17628 CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE
Alternatively, the Service submits that if the finding in the
Frog Decision were deficient for not expressly stating its
determination that it was making “expeditious progress,” any
such deficiency was cured by the 2003 CNOR which renewed
the “warranted but precluded” finding for the Frog and other
species. The 2003 CNOR fails the statutory test if for no other
reason than it was issued May 4, 2004, and cannot possibly
have been published together with the “warranted but preclud-
ed” finding published January 16, 2003. Beyond this, to rely
upon a finding made a year or more later than the decision
under review would “propel the court into the domain which
Congress has set aside exclusively for the administrative
agency” by substituting a new ground for the one upon which
the agency relied at the time. See Chenery, 332 U.S. at 196.
And, to do so in this case would also undermine the agency’s
statutory duty to make express findings within twelve months
of receiving a petition that presents substantial information
indicating that the petitioned action may be warranted. 16
U.S.C. § 1533(b)(3)(B). Gila Chub makes clear that this
congressionally-mandated deadline should not be subverted.
254 F.3d at 840.
III
[5] For these reasons, we conclude that the Frog Decision,
standing alone, fails to make the determinations required by
§ 1533(b)(3)(B) for a “warranted but precluded” finding. It is
insufficient for requisite determinations to be lurking in the
administrative record yet be unidentified in the decision itself.
Likewise, they may not be implied from other published find-
ings that are neither referenced in nor published with the deci-
sion under review. Deficiencies in the “warranted but
nating the species as a candidate, whereas in this case the 2002 CNOR
addressed the problems we identified in Gila Chub. We express no view
on this, as the 2002 CNOR was not published together with the Frog Deci-
sion.
CENTER FOR BIOLOGICAL DIVERSITY v. KEMPTHORNE 17629
precluded” finding cannot be cured by earlier, or later, find-
ings, published or not, that are not part of the administrative
decision itself or published together with it.
As we hold that the Frog Decision falls short of meeting the
statutory prerequisites of § 1533(b)(3)(B), we decline to con-
sider whether the “warranted but precluded” finding is arbi-
trary and capricious for any other reason including,
hypothetically, whether it would be if the reasons stated in the
CNORs were part of, or published together with, a new “war-
ranted but precluded” finding. Given why we reverse, there is
no basis for ordering the Frog to be listed, as the Center
would like.
Consequently, we reverse the district court’s judgment for
the Service. Upon remand, the court should remand to the
Service for further proceedings consistent with this opinion.
REVERSED AND REMANDED.