Defenders of Wildlife v. Sally Jewell

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2015 Decided March 1, 2016
No. 14-5284
DEFENDERS OF WILDLIFE AND CENTER FOR BIOLOGICAL
DIVERSITY,
APPELLANTS
v.
SALLY JEWELL, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00919)
Jason C. Rylander argued the cause for appellants. With
him on the briefs were Karimah Schoenhut, Michael P.
Senatore, and Collette L. Adkins.
Brian C. Toth, Attorney, U.S. Department of Justice, argued
the cause for appellees. With him on the brief was John C.
Cruden, Assistant Attorney General.
Wayne J. D’Angelo and Michael B. Wigmore were on the
brief for intervenor-defendants-appellees American Petroleum
Institute, et al. David E. Frulla entered an appearance.
2
Nancie G. Marzulla and Roger J. Marzulla were on the
brief for intervenor/defendant-appellee Glenn Hegar, Texas
Comptroller of Public Accounts.
M. Reed Hopper and Jonathan C. Wood were on the brief
for amicus curiae Pacific Legal Foundation in support of
appellees.
Before: HENDERSON, ROGERS and KAVANAUGH, Circuit
Judges.
Opinion for the court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The issue in this appeal concerns
when a voluntary state conservation agreement may be
considered in deciding whether or not to list a species under the
Endangered Species Act. In 2012, the Fish and Wildlife Service
withdrew its 2010 proposal to list the dunes sagebrush lizard,
whose habitat is in New Mexico and Texas, as endangered. The
Defenders of Wildlife and the Center for Biological Diversity
(together “Appellants”) sued and now appeal the grant of
summary judgment to the Secretary of Interior. They contend
the withdrawal decision was arbitrary and capricious because (1)
the voluntary plan by the State of Texas to engage private
businesses in conservation efforts was neither sufficiently
certain to be implemented nor to be effective under the Service’s
evaluation policy, and (2) the Service’s decision unreasonably
elevates unenforceable voluntary State agreements over the
statute’s required consideration of the adequacy of “existing
regulatory mechanisms.” For the following reasons, we
conclude the first contention is unpersuasive and the second was
affirmatively waived by appellants in the district court.
Between the time the Service proposed listing the lizard and
the time it decided to withdraw that proposal, the Service
3
received updated information about the conservation efforts in
the two States and by the Bureau of Land Management in New
Mexico. Based on this information, the Service concluded that
“current and future threats are not of sufficient imminence,
intensity, or magnitude to indicate that the . . . lizard is in danger
of extinction (endangered), or likely to become endangered
within the foreseeable future (threatened), throughout all or a
significant portion of its range.” Withdrawal of the Proposed
Rule to List Dunes Sagebrush Lizard (“Withdrawal”), 77 Fed.
Reg. 36,872, 36,897–98 (June 19, 2012). Appellants fail to
show the Service did not rationally apply its policy in evaluating
the Texas plan inasmuch as the Service’s factual conclusions are
supported by substantial evidence in the record. Accordingly,
we affirm.
I.
The Endangered Species Act (“ESA”) “provide[s] a
program for the conservation of . . . endangered species and
threatened species.” 16 U.S.C. § 1531(b). Acting on behalf of
the Secretary of the Interior, the Fish and Wildlife Service must
determine whether to list a species as being “threatened” or
“endangered.” 16 U.S.C. § 1533(a)(1); 50 C.F.R. § 402.01(b);
see also Am. Wildlands v. Kempthorne, 530 F.3d 991, 994 (D.C.
Cir. 2008). Once a species is listed, it is unlawful for any person
to “take” the listed species (except in narrow circumstances), 16
U.S.C. § 1538(a)(1)(B), i.e., to “harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct,” id. § 1532(19). Federal agencies
must “insure that any action authorized, funded, or carried out
by such agency . . . is not likely to jeopardize the continued
existence” of a listed species, id. § 1536(a)(2).
An “endangered species” under the ESA is one “in danger
of extinction throughout all or a significant portion of its range”
4
while a “threatened species” is “likely to become an endangered
species within the foreseeable future throughout all or a
significant portion of its range.” Id. § 1532(6), (20). A danger
of species extinction exists where there is evidence of:
(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.
Id. § 1533(a)(1)(A)–(E) (emphasis added). The extent of the
dangers of extinction is to be determined “solely on the basis of
the best scientific and commercial data available to [the Service]
after conducting a review of the status of the species and after
taking into account those efforts, if any, being made by any State
or foreign nation, or any political subdivision . . . to protect such
species,” including “predator control, protection of habitat and
food supply, or other conservation practices.” Id.
§ 1533(b)(1)(A) (emphasis added).
The Service adopted the Policy for Evaluation of
Conservation Efforts when Making Listing Decisions (“Policy”),
68 Fed. Reg. 15,100, 15,113 (March 28, 2003), to assist it in
making predictive evaluations about the persistence of a species
where there are “formalized conservation efforts that have not
yet been implemented or have been implemented, but have not
yet demonstrated whether they are effective at the time of a
listing decision.” The policy is designed to “ensure consistent
and adequate evaluation of recently formalized conservation
efforts when making listing decisions,” Withdrawal, 77 Fed.
Reg. at 36,885, by identifying criteria for assessing whether such
an effort “provides a high level of certainty that the effort will
5
be implemented and/or effective and results in the elimination
or adequate reduction of the threats” posed to any species being
considered for a listing, see Policy, 68 Fed. Reg. at 15,114–15.1
When the Service’s decision not to list a species is based in part
on consideration of a formalized conservation effort, the Service
will monitor the “progress of implementation and effectiveness
of the conservation effort.” Id. at 15,114. If it determines the
conservation effort lags behind schedule, does not achieve its
objectives, is not modified to respond to changed circumstances,
or new information comes to light, the Service will reevaluate
1
To evaluate the certainty of implementation, the Service
identified nine, non-exclusive criteria: (1) “[t]he conservation effort,
the party(ies) to the agreement or plan that will implement the effort,
and the staffing, funding level, funding source, and other resources
necessary to implement the effort,” (2) the legal authority to
implement the effort and the commitment to do so, (3) the status of
legal procedural requirements (e.g., environmental review) that must
be done to implement, (4) whether necessary authorizations – like
permits – have been identified and the likelihood of obtaining them,
(5) the type and level of voluntary participation needed to implement
is both identified and likely to occur (including review of incentives
to join the plan), (6) regulatory mechanisms needed for
implementation, (7) funding requirements, (8) implementation
schedule, and (9) approval by parties involved. Policy, 68 Fed. Reg.
at 15,114–15.
To evaluate the effectiveness of implementation, the six non-
exclusive criteria are: (1) the nature and extent of the threats to the
species and the efforts designed to reduce them, (2) explicit
incremental objectives for achieving those goals, (3) the steps
necessary to implement the effort, (4) scientific factors that can be
used to measure achievement objectives and the standard against
which success will be measured, (5) provisions for monitoring
progress on implementation and effectiveness, (6) how adaptive
management principles will be implemented. Id. at 15,115.
 6
whether the species needs be listed. Id.
Appellants challenge the Service’s application of the Policy
in deciding it could rely on a state voluntary conservation
agreement as a basis for withdrawing its proposed listing of the
dunes sagebrush lizard as endangered. Endangered Status for
Dunes Sagebrush Lizard (“NPRM Listing”), 75 Fed. Reg.
77,801 (Dec. 14, 2010). The lizard lives in a specific habitat in
southeastern New Mexico and western Texas, and the lizard’s
survival is “directly linked to the quality and quantity of
available shinnery oak dune habitat,” which is a dynamic dune
system created by a shinnery oak tree and the large root and
stem system that surrounds it. NPRM Listing, 75 Fed. Reg. at
77,802–03. By 2004, surveys of the New Mexico habitat
indicated extirpation of the lizard in areas where there was
shinnery oak removal (caused by herbicide treatments and oil-
and-gas development). See 12-Month Findings on Resubmitted
Petitions to List the Southern Idaho Ground Squirrel, Sand
Dune Lizard, and Tahoe Yellow Cress, 69 Fed. Reg. 77,167,
77,172 (Dec. 27, 2004). If those activities continued, the
Service expected further destruction of the lizard’s habitat and
the threat to the lizard to increase. See id. By 2010, these
activities had persisted, and the Service once again was
concerned about the threats to the shinnery oak habitat in terms
of its total destruction and its fragmentation. See NPRM Listing,
75 Fed. Reg. at 77,809–10.
At the time it proposed listing, the Service had concluded
that the federal, State, and local conservation efforts were “not
adequate to protect the dunes sagebrush lizard from known
threats.” Id. at 77,811; see 16 U.S.C. § 1533(a)(1)(D) (“Factor
D”). The Interior Department’s Bureau of Land Management
(“BLM”) administered a land-use plan in New Mexico to help
protect the lizard on federal lands, and there were voluntary
conservation agreements for private lands, NPRM Listing, 75
7
Fed. Reg. at 77,810–11, but the Service considered these efforts
inadequate. Although BLM’s plan “addresses the threats of
shinnery oak removal,” the Service was concerned that the plan
“provides for a variety of exceptions and has no schedule or
planned monitoring to ensure that the protections are being
provided.” Id. at 77,810. The Service concluded that the
efficacy of BLM’s plan would be determined only following
future implementation. Id. at 77,811. The New Mexico
voluntary agreements consisted of a Candidate Conservation
Agreement and Candidate Conservation Agreements with
Assurances; the former allowed private landowners to
participate voluntarily in lizard conservation efforts (including
limiting habitat modification and protecting habitat between
shinnery oak complexes) and the latter provided assurances that,
in view of such voluntary efforts, “additional conservation
measures will not be required and additional land, water, or
resource use restrictions will not be imposed should the species
become listed in the future.” Announcement of Final Policy for
Candidate Conservation Agreements with Assurances, 64 Fed.
Reg. 32,726, 32,727 (June 17, 1999). These agreements might
have been promising, but the Service was concerned that there
were no similar agreements in Texas. NPRM Listing, 75 Fed.
Reg. at 77,811. “[F]or the agreements to benefit the dunes
sagebrush lizard,” the Service was of the view that “oil and gas
operators need to enroll throughout the lizard’s range.” Id.
Because this had not happened, “the efficacy of these
conservation agreements has not yet been fully implemented and
determined to be effective.” Id. A listing was therefore needed.
In response to publication of the NPRM Listing, the Service
received new information about these conservation efforts.
Withdrawal, 77 Fed. Reg. at 36,898. Comments about the BLM
plan afforded the Service a better understanding of the plan, and
upon reconsideration the Service concluded that the BLM plan
provided a standard that would consistently guide the protection
8
of the lizard and reduce or eliminate threats to the species and its
habitat on BLM lands in New Mexico. See id. at 36,879. The
Service found that this, coupled with the preliminary success of
the voluntary agreements in New Mexico, had resulted in 95%
of the sagebrush lizard’s habitat in New Mexico being removed
from oil and gas leasing, enrolled in the conservation
agreements, or covered by the BLM plan. Id. at 36,885. The
Service also noted that it had “identified more known occupied
sites for the lizard, especially in Texas, where 28 new sites were
found.” Fish & Wildlife Serv., Summary of Dunes Sagebrush
Lizard Final Determination (2012); see also Withdrawal, 77
Fed. Reg. at 36,784–85.
Additionally, stakeholders with an interest in the lizard’s
range in Texas — including the Texas Comptroller, industry,
landowners, and agricultural interests — had developed with the
Service a Texas Candidate Conservation Agreement with
Assurances and a Habitat Conservation Plan (together, the
“Texas plan”). Id. at 36,885; TEXAS CONSERVATION PLAN
(2012); see also Proposed Endangered Status for the Dunes
Sagebrush Lizard, 77 Fed. Reg. 11,061, 11,061–62 (Feb. 24,
2012). The focus of the Texas plan is to guide development
away from lizard habitat and permit development in lizard
habitat only when there is no feasible alternative. Any habitat
loss must be reported and mitigated through specified mitigation
activities; mitigation credits can be “banked” for future use.
Total lizard habitat loss is limited to one percent during the first
three years and can be increased to up to a ten percent cap over
the life of the 30-year plan. And like the New Mexico
agreements, the Texas plan permits an entity to agree to
undertake voluntary measures to benefit the lizard in exchange
for assurances that if the species is listed, the entity will not be
required to undertake additional conservation efforts to restrict
activities on its property.
9
Upon applying its Policy criteria, the Service concluded that
the States’s voluntary conservation agreements were sufficiently
“certain to be implemented and effective,” 68 Fed. Reg. at
15,114–15, to be relied upon in determining whether listing was
appropriate. Fish & Wildlife Serv., Policy for Evaluation of
Conservation Efforts Evaluation for the New Mexico
CCA/CCAA and Texas Conservation Plan (“2012 Evaluation”)
20–21, 38–40 (2012); see also Withdrawal, 77 Fed. Reg. at
36,885–86. Based on the high enrollment and compliance under
the New Mexico agreements and the anticipated effectiveness of
the New Mexico and Texas efforts to reduce and eliminate
threats to the lizard by moving further impacts outside occupied
dune complexes, the Service was satisfied the monthly and
annual monitoring and reporting requirements would ensure
conservation measures are implemented as planned and are
effective at removing threats to the lizard and its habitat. 2012
Evaluation 20–21, 38–40; see Withdrawal, 77 Fed. Reg. at
36,899.
Given the States’s conservation agreements and other
evidence necessary for evaluating the threat to the lizard (such
as studies of the lizard’s current habitat and distribution of the
species), the Service concluded that withdrawal of the NPRM
Listing was appropriate under the statutory factors, see 16
U.S.C. § 1533(a)(1)(A)–(E). Withdrawal, 77 Fed. Reg. at
36,885–97. Although listing in 2010 had been an “appropriate
conclusion based on the best scientific and commercial
information available at that time,” the Service explained that
the “significant ongoing and future conservation efforts, in
combination with new information on the status and distribution
of the species, have reduced the magnitude of potential impacts
now and in the future such that the species no longer meets the
definition of an endangered or threatened species.” Id. at
36,898. Conservation measures covered 95% of the habitat in
New Mexico and 71% of habitat in Texas and would therefore
10
ameliorate further habitat loss. Id. at 36,894. Surveys and other
data indicated that “the species currently has adequate habitat to
persist into the future.” Id. at 36,895. Notwithstanding the
historical and potential threat to the lizard’s habitat as a result of
habitat loss and fragmentation caused by oil-and-gas
development and other human behavior, the Service concluded
that the States’s agreements indicated that habitat loss will not
continue at historical rates. Id. at 36,894. The Service was
convinced that the “discontinuation of habitat loss and
fragmentation, and the restoration of already fragmented habitat,
will have the benefit of decreasing edge habitat and increasing
interior habitat.” Id. In other words, the conservation
agreements were critical to the Service’s analysis; absent
reliable conservation agreements throughout the lizard’s range
in both states, the Service anticipated the threats of oil and gas
development would have continued, but “with the conservation
agreements, the current habitat conditions will be maintained or
improved, such that [the Service] no longer find[s] this factor to
be a threat, either now or in the future.” Id. at 36,895. If these
circumstances changed, the Service stated that it would consider
re-listing, whether on an emergency basis or otherwise. Id. at
36,899.
Appellants unsuccessfully challenged the Service’s
withdrawal decision in the district court, Defs. of Wildlife v.
Jewell, 70 F. Supp. 3d 183, 199 (D.D.C. 2014), and now appeal.
Our review is de novo. Am. Wildlands, 530 F.3d at 998.
II.
Appellants contend the Service’s decision to withdraw its
proposal for listing the lizard as endangered was arbitrary and
capricious because, first, consideration of the Texas plan
violated the Policy in finding the plan was sufficiently certain to
be implemented and effective, and second, the decision
11
unreasonably elevates unenforceable, voluntary state agreements
over the ESA’s required consideration of the adequacy of
“existing regulatory mechanisms.” Notably, appellants do not
challenge any of the Service’s determinations under the five
statutory factors regarding the status of the species, see 16
U.S.C. § 1533(a)(1), beyond how the Texas plan may have
altered the Service’s consideration of those factors. Nor do
appellants challenge the Service’s consideration of the New
Mexico agreements or the BLM plan as part of its ESA
determination regarding the threat of extinction pursuant to
section 1533(b)(1). Because we conclude that appellants are
bound by their affirmative waiver of their statutory challenge to
the Policy, the only question is whether the Service could
properly rely on the Texas plan in determining whether or not to
withdraw its proposed listing of the lizard. That question cannot
be resolved on the basis that the Service’s reliance on the Texas
plan was harmless, for in deciding in 2010 to list the lizard, the
Service explained that the absence of a conservation agreement
in Texas was significant, see NPRM Listing, 75 Fed. Reg. at
77,811, and in deciding in 2012 that listing was no longer
needed the Service was similarly clear that the Texas plan was
critical to its decision, see Withdrawal, 77 Fed. Reg. at
36,894–95, 36,898–99.
A.
Taking appellants’s contentions in reverse order — if the
Policy violates the ESA, a challenge to its application becomes
moot — we hold that they affirmatively waived their statutory
challenge to the Service’s interpretation of the Policy as
allowing consideration of voluntary conservation agreements in
determining that a species need not be listed. On appeal,
appellants contend that even if the Texas plan satisfied the
requirements of the Service’s Policy, the court must nonetheless
evaluate whether the outcome complied with the ESA. In their
view, the Policy “criteria cannot wholly substitute for the ESA’s
12
five factor evaluation,” Appellants’s Br. 54, because any
voluntary conservation agreement should be considered under
both Factor D (“the inadequacy of existing regulatory
mechanisms”), 16 U.S.C. § 1533(a)(1)(D), and the Policy in
order for such an agreement to affect a listing decision. See
Appellants’s Br. 55.
Appellants’s contention that the Service unlawfully
considered “voluntary” actions and “unenforceable restrictions”
in violation of Factor D is in essence a challenge to the
interpretation of the Policy, which envisions consideration of
voluntary agreements, see 68 Fed. Reg. at 15,113–14. Yet in the
district court, appellants stated in their pleadings that they “are
not challenging the [Policy] so neither [the Chevron nor
Skidmore] standard is applicable here. [Rather, they] are merely
challenging the Service’s application of its [Policy] to the lizard.
The issue is whether the Texas and New Mexico Agreements
were ‘sufficiently certain to be implemented and effective.’” Pls.
Sum. J. Reply Br. 7 n.5 (emphasis added). The district court
noted their waiver in granting summary judgment to the
Secretary. See Defs. of Wildlife, 70 F. Supp. 3d at 196 n.19, 198
n.24. Having waived this challenge in the district court,
appellants ordinarily may not revive it on appeal. See United
States v. Volvo Powertrain Corp., 758 F.3d 330, 338–39 (D.C.
Cir. 2014); cf. United States v. Olejiya, 754 F.3d 986, 992 (D.C.
Cir. 2014).
Appellants attempt to refocus this contention in their
appellate reply brief, stating that they are not challenging the
Policy but maintaining that “the Service cannot rely on an
agreement or mechanism, regulatory or otherwise, under [ESA]
section 4(b)(1)(A) [16 U.S.C. § 1553(b)(1)(A)] or the [Policy]
that would be rejected under Factor D as too speculative and
uncertain.” See Appellants’s Reply Br. 26–27. This is a non-
starter. Both parties agree that the Policy does not permit the
13
Service to rely upon speculative conservation agreements.
Indeed, the point of the Policy was to establish criteria for
determining when the Service could deem otherwise incomplete
and unproven voluntary conservation efforts sufficiently certain
to be implemented and effective to be relied on in evaluating
ESA’s listing factors. See 68 Fed. Reg. at 15,113–14. Here the
Service found that the Texas plan was sufficiently certain to be
implemented and be effective. Consequently, if its findings are
supported by substantial evidence, there was no risk that the
Service relied on an overly speculative agreement when it
considered the Texas plan.
To the extent appellants resist application of the policy on
the basis that the Texas plan and New Mexico agreements “fail
a reasonable analysis under Factor D because they are by
definition not regulatory mechanisms and are too speculative to
ensure the conservation of the species,” Appellants’s Reply Br.
27, this amounts to an attempt to supplement the Policy with a
requirement that is not in it. Whether appellants are contending
that the Policy must incorporate Factor D, or otherwise interpret
its existing requirements in light of Factor D, appellants have
simply rephrased their waived statutory challenge to the Policy.
The court thus has no occasion to address whether the Policy’s
criteria for evaluating voluntary conservation agreements are
inconsistent with the ESA, and we turn to appellants’s remaining
challenge.
B.
In addressing the merits of appellants’s challenge to the
Service’s application of the Policy, our review is limited to
determining whether the Service’s consideration of the Texas
plan in deciding to withdraw the proposed listing was “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” Am. Wildlands, 530 F.3d at 997–98
(quoting 5 U.S.C. § 706(2)(A)). Such review is “highly
14
deferential” and “presumes agency action to be valid.”
Id. (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir.
1976)). An agency acts arbitrarily or capriciously if it has relied
on factors Congress did not intend it to consider, entirely failed
to consider an important aspect of the problem, or offered an
explanation either contrary to the evidence before the agency or
so implausible as not to reflect either a difference in view or
agency expertise. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). An
agency’s factual findings must be upheld when supported by
substantial evidence in the record considered as a whole. Ctr.
for Auto Safety v. Fed. Highway Admin., 956 F.2d 309, 313–14
(D.C. Cir. 1992). “Substantial evidence” means enough
evidence “to justify, if the trial were to a jury, a refusal to direct
a verdict when the conclusion sought to be drawn . . . is one of
fact for the jury.” NLRB v. Columbian Enameling & Stamping
Co., 306 U.S. 292, 300 (1939); see INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992).
Appellants maintain that the Service failed to establish that
the Texas plan is “sufficiently certain to be implemented and
effective” under the criteria in the Policy, 68 Fed. Reg. at
15,114–15. As regards implementation, appellants point to two
of the nine implementation criteria, arguing that the lack of an
implementation schedule in the Texas plan permits habitat loss
to continue with no certainty of conservation benefit and the
absence of evidence the necessary level of voluntary
participation would be achieved. As regards effectiveness,
appellants point to two of the six effectiveness criteria, arguing
that the Texas plan neither reduced specific threats to the lizard
species nor had the requisite incremental objectives. In
particular, appellants maintain the Service did not evaluate
whether the limit on habitat destruction was sufficient, relied on
speculative estimates of future enrollment, and did not
appreciate the effect of being unable to determine which
15
individual properties are enrolled in the conservation effort and
the conservation measures to be undertaken by enrollees.
Appellants’s objections present a variety of narrow, fact-
based challenges that are refuted by the record as interpreted by
the Service based on its experience and expertise. In addressing
appellants’s criteria-based contentions, we recognize the Service
emphasized that the analysis under its Policy may vary across
agreements and that the purpose of its criteria is merely to
“direct” its analysis; the Service has not identified any one
criterion or set of criteria as necessary or sufficient. See Policy,
68 Fed. Reg. at 15,114; see also PDK Labs. Inc. v. Drug
Enforcement Admin., 438 F.3d 1184, 1194–95 (D.C. Cir. 2006).
Upon reviewing the Service’s consideration of the Texas plan,
the success it had already achieved, and its likely continued
success based on the progress under the New Mexico
agreements, we conclude that the Service adequately explained
its basis for relying on the Texas plan.
1. Sufficiently certain to be implemented: Appellants cite
criterion five, on the need for an agreement to identify the type
and level of voluntary participation needed to implement the
plan and explain how such participation is likely to occur, in
maintaining the Service improperly analyzed whether the
requisite level of participation would be achieved and sustained.
It is true that the Service did not explain how the Texas plan has
identified the specific level of participation necessary for the
plan’s success, but the administrative record indicated that the
level of participation would be high and consistent with the
levels the Service previously identified as being necessary for
the lizard’s survival. At the time it published the NPRM Listing,
the Service stated that “participation throughout the majority of
the dunes sagebrush lizard habitat would be necessary for the
conservation of the species.” 75 Fed. Reg. at 77,811. By 2012,
Texas had adopted a voluntary conservation plan to achieve that
16
conservation goal in Texas. The Service was convinced that a
high level of participation in that plan would come about after
finding that 71% of lizard habitat was already enrolled in Texas,
including a significant portion (a little over half) of some of the
most important habitat, and that Texas enrollees had paid over
$773,000 in participation fees. Also, two major operators that
had been instrumental to the success of the New Mexico
conservation effort were enrolled in the Texas plan. Overall,
then, there was substantial evidence that the level of
implementation and success found in New Mexico, which had
achieved 83% enrollment, would also be found in Texas. 2012
Evaluation 33–34; see also Withdrawal, 77 Fed. Reg. at 36,886.
To the extent appellants assert that the Service failed to
consider that any future determination not to list the lizard might
be a disincentive to further enrollment and cause current
enrollees to opt out of the plan — inasmuch as the only benefits
an enrollee might lose would be fees already paid to enroll and
accrued habitat destruction credits — they overlook the
rulemaking and policy records. First, the Service emphasized in
deciding not to list the lizard that the threat of listing persists
even after a decision not to list is made. Withdrawal, 77 Fed.
Reg. at 36,899. The Service explained:
If at any time data indicate that the protective status
under the Act should be reinstated, including, but not
limited to, information that enrollment in the voluntary
agreements has declined substantially, or if [the
Service] become[s] aware of noncompliance issues
with the conservation measures, or if there are new or
increasing threats, [the Service] can initiate listing
procedures, including, if appropriate, emergency
listing pursuant to section 4(b)(7) of the Act.
17
Id. Based on the continued threat of listing, the Service had
reason to conclude that incentives for joining the Texas plan
remain and current enrollees would be unlikely to wish to
surrender benefits already received and fees already paid under
the plan. Appellants speculate that the lizard would suffer as a
result of the Service’s limited resources to reinitiate listing
proceedings, yet the Service made clear it would reconsider
listing the lizard should its initial analysis prove to be overly
optimistic and emphasized it had the authority to reinitiate
listing proceedings on its own initiative or in response to a
petition for listing based on new information showing listing
was appropriate. Id.; see also 16 U.S.C. § 1533(b)(3)(A),
(b)(6)(B)(ii). Indeed, the Service noted it can initiate, as
necessary, an emergency listing. Withdrawal, 77 Fed. Reg. at
36,899 (citing 16 U.S.C. § 1533(b)(7)).
Second, in developing the Policy, the Service considered
how to address the effect listing decisions have on the incentives
to enroll in voluntary conservation efforts. Because it is not a
foregone conclusion that an agreement satisfying the Policy will
preclude a need to list, the Service suggested that it was
unnecessary to consider the impact the later listing decision
might have on the implementation of a voluntary agreement.
See Policy, 68 Fed. Reg. at 15,107, 15,114. That is, the
Policy assumes that implementation will continue and that the
Service will reevaluate its listing decision should there be a
“failure to implement the conservation effort” for any reason.
Id. at 15,114. In view of the possibility of listing a species if
voluntary conservation efforts are not successfully implemented,
the Service rejected the idea posed in a comment that “parties
lack incentives to develop conservation programs until after the
species is listed.” Id. at 15,107 (Response to Comment Issue
36).
18
Where, as here, the Service was aware that withdrawing the
proposed listing could weaken the incentive for operators to
enroll but determined, in view of updated information about
efforts in New Mexico, that a high level of participation was
likely under the Texas plan, appellants fail to show that it was
arbitrary or capricious for the Service not to subject the Texas
plan to scrutiny beyond that contemplated by the Policy.
Appellants’s objection that the Service should have required
the Texas plan to specify enrollment goals at a granular level
appears to have been forfeit. Because not all lizard habitat is
treated equally under the Texas plan, appellants maintain that
the Service should have considered how successful the plan
would be in enrolling the most valuable habitat. (The plan
classifies lizard habitat as being in one of four categories, from
very low likelihood of occurrence to very high likelihood of
occurrence.) Appellants also maintain that the Service should
have considered how total enrollment would be affected by
habitat being owned by more than one entity in order to make
sure that all individuals with an interest in the property
(including sub-surface rights) were enrolled in the project. See
NPRM Listing, 75 Fed. Reg. at 77,811. Appellants failed to
raise these challenges in the district court and offer no basis to
excuse their forfeiture because “injustice might otherwise
result.” Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 867 (D.C.
Cir. 2008) (quoting Ben-Kotel v. Howard Univ., 319 F.3d 532,
535 (D.C. Cir. 2003)); Blackmon-Malloy v. U.S. Capitol Police
Bd., 575 F.3d 699, 707 (D.C. Cir. 2009); cf. United States ex rel.
Davis v. District of Columbia, 793 F.3d 120, 126 (D.C. Cir.
2015). Nor does the record support their position that they are
now merely refining arguments relating to claims they made in
the district court. See Appellants’s Reply Br. 5–6 (citing Teva
Pharm., USA, Inc. v. Leavitt, 548 F.3d 103, 105 (D.C. Cir.
2008), and Koch v. Cox, 489 F.3d 384, 391 (D.C. Cir. 2007),
which both cite Yee v. City of Escondido, 503 U.S. 519, 534
19
(1992)). Most of their district court pleadings on which they
rely focus on whether the Texas plan was sufficiently certain to
be effective — not implemented. Their only challenge to
implementation was that enrollment will slow once the proposed
listing was withdrawn. To reach the theory raised on appeal
would require this court to “recast [a]ppellant[s’s] position in the
district court.” See In re Harman Int’l Indus., Inc. Sec. Litig.,
791 F.3d 90, 101 (D.C. Cir. 2015).
In any event, the record demonstrates that the Service
appreciated the importance of the different occupancy
categories, focusing on enrollment in three types of habitat
where a lizard was most likely to be found. 2012 Evaluation 33.
Because survey information for this species is limited and does
not conclusively establish the lizard’s abundance in certain
areas, see Withdrawal, 77 Fed. Reg. at 36,876, the Service
reasonably lumped together these three categories. Indeed, even
the fourth category, which carries only a very low likelihood of
lizard occurrence, is in most respects “good quality” lizard
habitat. See TEXAS CONSERVATION PLAN fig. 1-2. The
comments by a random Service employee about a need for
higher enrollment levels among the top-three habitat categories
at best indicate a lack of consensus within the Service; they do
not bind the Service, see Comcast Corp. v. FCC, 526 F.3d 763,
769 (D.C. Cir. 2008), which had previously stated that
“participation throughout the majority” of lizard habitat was all
that was necessary for “the conservation of the species,” see
NPRM Listing, 75 Fed. Reg. at 77,811. Appellants speculate
that a pattern of relatively higher enrollment in the low-
likelihood habitat categories demonstrates that Texas and the in-
State operators are gaming the system, but the enrollment
pattern does not make bad faith so clear that it was arbitrary for
the Service not to address such concerns, particularly in view of
its relisting authority.
20
Appellants also failed to object in the district court that the
Service was required by the Policy to separately analyze the
level of participation in the Texas plan by mineral and surface
estate owners. On appeal, the Service does respond that the
Texas plan makes explicit some of the difficulties posed by
split-estate ownership, but maintains this argument is forfeit and
that the Policy does not provide so specific a rule. Whether
because forfeited or because deference is owed to the Service’s
interpretation of its Policy, see, e.g., Christopher v. SmithKline
Beecham Corp., 132 S. Ct. 2156, 2166 (2012), the court need
not conclude that the Service acted arbitrarily. The rulemaking
record shows that the Service considered the problem and
remained confident that overall enrollment would be high. See
supra Part II.B.1; 2012 Evaluation 32–35.
Appellants also point to criterion eight regarding an
implementation schedule (including incremental completion
dates). Policy, 68 Fed. Reg. at 15,115. The Texas plan does not
include an implementation schedule as such. The Service
recognized this, and it was not unreasonable for it to conclude
nonetheless that the plan has “sufficient structure, regulatory
mechanisms, and planning to achieve the necessary conservation
benefit.” See 2012 Evaluation 35. The Service concluded that
the plan’s design “requires that a positive biological response
must precede habitat loss authorized by the [Certificates of
Inclusion].” Id. By design, habitat will be reconnected at a
higher rate than habitat lost during the 30-year life of the Texas
plan. To that end, there is “stringent monitoring and research to
develop conservation actions that benefit the species prior to any
further habitat loss.” Id. Further, there are many schedule-like
elements to the plan, including habitat loss limits of 1% and
10% set at three- and thirty-year marks. The Service stated that
it intends to strictly monitor the implementation of the Texas
plan for the first three years and then evaluate effectiveness and
determine whether and how much additional habitat loss above
21
the 1% may be authorized under the Texas plan.
Appellants’s objection that the Texas plan contains a
“loophole” allowing habitat loss to continue with no certainty of
conservation benefit also appears to be forfeit. They claim the
Service erred in stating “the plan’s design requires that a
positive biological response must precede habitat loss authorized
by the [Certificates of Inclusion].” Appellants’s Br. 36 (citing
2012 Evaluation 35). Instead, they read the plan to permit those
engaging in such activities to receive 50% of the value of the
recovery activity before biological effectiveness is
demonstrated. Nowhere in their district court pleadings did
appellants refer to the “loophole theory” or their concerns about
delayed determinations of biological effectiveness. In moving
for summary judgment, appellants noted at most the plan’s lack
of an implementation schedule generally and argued that there
was no factual support for the Service’s conclusion that “the
plan has sufficient structure, regulatory mechanisms, and
planning to achieve the necessary conservation benefit.” Pls.
Sum. J. Br. 30 & n.12. Moreover, appellants ignore the
Service’s statement in a related section of its evaluation
explaining why it was confident that a positive biological
response would result:
Mitigation credits will be generated by implementing
on-the-ground conservation actions prior to authorizing
any activities that may result in habitat loss. A positive
biological response must first be demonstrated before
full credit is given for a mitigation activity. Despite
not having an implementation schedule, the plan and
the permit have requirements that will ensure that
mitigation results in positive biological responses . . . .
2012 Evaluation 37 (emphasis added). As noted, the Service
relied on the requirement of strict monitoring, the goal of
22
restoring habitat at a much greater rate than habitat loss, and the
limits to habitat loss over the life of the Texas plan. See id. at
35–36, 38.
2. Sufficiently certain to be effective. Here, appellants
challenge the adequacy of the Service’s analysis under two
criteria, contending that the Service failed to analyze how the
Texas plan reduces specific threats to the lizard and to identify
the explicit incremental objectives for the conservation effort.
See Policy, 68 Fed. Reg. at 15,115; supra note 1. The Secretary
maintains that the effectiveness of the Texas plan is shown by
the fact that it: (1) prioritizes avoidance of habitat loss; (2) limits
(on a percentage basis) overall habitat loss; (3) specifically
identifies efforts to remove threats to shinnery oak (removal of
mesquite and moving of oil-and-gas infrastructure);
(4) identifies efforts to eliminate other threats like predator
perches and threats from roads; (5) requires each individual
certificate to list conservation measures specific to each site; and
(6) details provisions for mitigation and adaptive management,
both of which should ensure active management and monitoring
of the conservation effort. 2012 Evaluation 36–37. Appellants
contend the Service’s analysis was deficient because (a) the
Texas plan’s limit on habitat destruction was insufficient to
ensure its effectiveness in protecting the lizard, (b) the plan’s
effectiveness was assessed on the basis of speculative future full
enrollment rather than the current level of enrollment, and (c)
state confidentiality laws would interfere with the Service
receiving the information on enrolled properties necessary to
protect the lizard from habitat fragmentation, including the
actual conservation measures that enrollees agreed to undertake.
Appellants fail to show the Service’s conclusions were
unreasonable or arbitrary or capricious.
(a) Appellants maintain that the Service should have
determined whether the plan’s 1% cap actually reduces the
23
threat to the lizard in light of its determination in 2010 that the
lizard “faces immediate and significant threats due to oil and gas
activities, and herbicide treatments,” NPRM Listing, 75 Fed.
Reg. at 77,813. In their view, any cap that permits oil-and-gas
development to occur at the same level it could have occurred
without the cap cannot rationally be described as reducing the
threat to the lizard. Assuming the cap was based on the
maximum potential amount of gas and oil development as of
2012, a cap system appears from the record to have been the
only available method given the difficulty of determining “how
large habitat patches need to be in order to maintain viable
populations of dunes sagebrush lizards.” Withdrawal, 77 Fed.
Reg. at 36,887; see also id. at 36,881 (discussing how it had
been impossible to calculate the lizard’s critical habitat “because
the location and distribution of physical and biological features
that may be considered essential to the conservation of the
species were not sufficiently understood at that time”). Because
predicting the future status of wildlife is a difficult task, the
court has acknowledged deference is appropriate to the agency’s
evaluation of scientific data within its technical expertise. See
Am. Wildlands, 530 F.3d at 1000–01. Appellants point to no
superior habitat evidence that the Service should have
considered. Cf. City of Las Vegas v. Lujan, 891 F.2d 927,
932–33 (D.C. Cir. 1989) (citing 16 U.S.C. § 1533(b)(1)(A)).
Further, even though the cap may suggest that development
will continue at historical rates, appellants are not correct that
the cap system necessarily permits developers to destroy habitat
at the same rate as the historical trend. Although the Service
could authorize as much as 10% habitat loss over the 30-year
life of the Texas plan, it is not a foregone conclusion it will do
so. The Service must first authorize any additional habitat loss
above the initial 1% cap, and whether it does will depend on the
outcome of its study of the success of the Texas plan over its
first three years. Withdrawal, 77 Fed. Reg. at 36,885; see also
24
2012 Evaluation 35. Moreover, habitat loss is authorized only
to the extent it cannot be avoided, and the cap structure limits
how much may be lost in specific categories of habitat,
potentially limiting the loss of the most valuable habitat.
Significantly, the conclusion that the cap would be effective at
limiting habitat loss is further supported by the Service’s
determination that the lizard is not threatened by any further oil
and gas development, in part because “more than 50 percent of
the dunes sagebrush lizard’s habitat is not fragmented,”
Withdrawal, 77 Fed. Reg. at 36,889; see also id. at 36,881,
36,895. The Service recognized that there is currently enough
lizard habitat such that “if future development and activities
involving oil and gas exploration . . . are placed outside of the
dunes sagebrush lizard’s habitat . . . the species currently has
adequate habitat to persist into the future.” Id. at 36,895. With
the conservation plans in place, the Service did “not anticipate
future development to mirror the historical development that has
already occurred” and concluded that “oil and gas development
will not continue within dunes sagebrush lizard habitat at
historical rates.” Id. at 36,894.
Notwithstanding the combination of the Texas plan’s
avoidance, mitigation, and recovery strategies, appellants
maintain that enrollees will never be forced to avoid habitat loss
because avoidance is necessary only “when feasible” or based
on some other undefined, open-textured phrases, under the loss
avoidance principles. In fact, the plan includes criteria for
unavoidable habitat loss, see TEXAS CONSERVATION PLAN app.
H, and those involved in the conservation process understand the
standard to be demanding, such that loss is available only “[i]f
avoidance of lizard habitat cannot be accomplished,”
Withdrawal, 77 Fed. Reg. at 36,885. Oil-and-gas producers
have stated that most production will likely occur outside of
suitable habitat; only smaller, less flexible operators may need
to take advantage of the need to engage in habitat loss. 2012
25
Evaluation 23. To further ensure that loss avoidance is not
easily skirted, the plan contemplates more stringently applying
the relevant criteria in the event that habitat loss reaches 75% of
the 1% cap.
Even when loss is permitted, those engaging in the loss
must “adopt conservation measures that minimize habitat
impacts, and as a last resort, mitigate for the loss of lizard
habitat.” Withdrawal, 77 Fed. Reg. at 36,885. Appellants
suggest that any mitigation efforts would be valueless, either
because shinnery oak cannot be created or (repeating the
“loophole” argument) because operators can get the benefit of
mitigation prior to showing that it provided some real benefit to
the lizard. The science before the Service supports its view that
many conservation efforts may improve existing habitat, in part
by removing obstacles to expansion of existing shinnery oak.
See id. at 36,894–95. In this context, the “loophole” argument,
assuming it is not forfeit, is even less persuasive. Regardless of
the biological response to the mitigation ultimately, the operator
is required to complete the entirety of the mitigation activity
prior to engaging in any habitat loss. Further, operators are not
free to select whichever mitigation and recovery activities they
might want; some examples of available mitigation activities are
enumerated in the Texas plan and operators must work with
those administering the plan to develop a management plan that
lays out which mitigation and recovery activities are appropriate
for each property. See TEXAS CONSERVATION PLAN 47, 51–52,
85–86. To the extent that these completed activities might prove
to have less biological value than initially anticipated, the
Service was persuaded that with the “robust feedback
mechanisms . . . there is a high degree of certainty that the
biological objectives will be accomplished through
implementation, research, and then adjustment of the strategy,
as appropriate.” 2012 Evaluation 37. And in the meantime, the
Service concluded that a net positive response is more likely
26
because of the need to “secure commensurate mitigation, often
at a rate higher than that which is impacted, prior to habitat
disturbance.” Id. Even if the biological response rate later turns
out to be less than 100%, the Service could reasonably view the
need to engage in mitigation at greater than a one-to-one level
to help ensure appropriate offsets.
(b) Appellants are correct that the Texas plan cannot
constrain those who are not enrolled. But the cap already
assumes that under a reasonable worst-case scenario, there could
be development in 10% of the lizard’s habitat. More
fundamentally, appellants’s concerns about the level of
enrollment merely repackage their challenge to the Service’s
predictions about the likelihood that the Texas plan will be
successfully implemented. As noted, see supra Part II.B.1,
substantial evidence supports the conclusion that Texas
enrollment will approach the enrollment level in New Mexico,
thereby mitigating concern about unenrolled land. Contrary to
appellants’s view, nothing in the Policy precludes the Service
from estimating future enrollment so long as the Service
explains the basis for its view that the level of enrollment is
sufficiently certain to come about. See 68 Fed. Reg. at
15,114–15.
(c) Appellants emphasize the problems posed by Texas’s
confidentiality law, see Tex. Gov’t Code § 403.454, and the
confidentiality provisions in the Texas plan itself. Based on
these provisions, the Service will not know the specific location
of enrolled land as information is disclosed only at the
aggregate, dune complex habitat-polygon level. A dune
complex may include both unenrolled and enrolled lands, which
appellants maintain permits unchecked habitat fragmentation —
the greatest threat to the lizard. Further, they maintain that the
Service could not have determined that sufficient reclamation
and restoration activities would take place because it had no way
27
of knowing which reclamation and restoration measures
enrollees agreed to undertake as the individual Certificates of
Inclusion are confidential. Appellants also assume that because
enrollees need not report conservation efforts to the Service,
enrollees will not engage in conservation efforts.
The problems posed by the confidentiality requirement are
not as extreme as appellants suggest. First, the Texas plan
requires the State to provide the Service with all information it
needs to monitor plan compliance. See TEXAS CONSERVATION
PLAN 32–33 § 8.2.4. Although this information will be provided
at the dune complex level, the Service was satisfied that this is
“at a scale-of-resolution appropriate for assessing status/trends
as well as operational decisions regarding compliance,
effectiveness and adaptive management.” 2012 Evaluation 31.
Contrary to appellants’s view, the Service did not merely
“‘[s]tat[e] that a factor was considered’ — or found,” Gerber v.
Norton, 294 F.3d 173, 185 (D.C. Cir. 2002) (first alteration in
original) (quoting Getty v. Fed. Savs. & Loan Ins. Corp., 805
F.2d 1050, 1055 (D.C. Cir. 1986)), but rather evaluated, in the
Service’s judgment, the scale of resolution necessary for it to
carry out its monitoring efforts.
Second, the Service can expect to learn, based on the plan’s
reporting requirements, the overall number of enrollees, the
activities taken by enrollees (as a group) in a dune complex,
information about the quantity and quality of lizard habitat, the
amount of incidental “take,” issues of noncompliance, and the
overall effectiveness of the plan. See TEXAS CONSERVATION
PLAN 31–32 § 8.2.3. The Service will have data on non-
compliance events and not be wholly unable to determine
whether observed habitat loss is the result of non-compliance or
non-enrollment. Although the Service may not know in advance
the details about the conservation efforts agreed to by an
individual enrollee, it will have information about when
28
conservation efforts were necessary in an individual dune
complex because an operator wished to engage in an activity
that would result in habitat loss. To the extent the lack of
knowledge about the precise location of unenrolled and enrolled
property increases the risk of fragmentation, the record provides
substantial evidence supporting the Service’s evaluation
regarding the scope of information it requires, inasmuch as the
Service concluded that prevention of all fragmentation is
unnecessary because “more dunes sagebrush lizards were found
in large areas of abundant habitat, regardless of whether the
overall landscape was fragmented.” Withdrawal, 77 Fed. Reg.
at 36,888.
The confidentiality provisions may limit the Service’s
ability to monitor individual parcels, but that does not mean that
individual enrollees’ compliance with the Texas plan goes
unverified. For the Texas plan to have legal effect, the Service
recognized that it must meet the conditions for obtaining a
permit under ESA section 10(a), 16 U.S.C. § 1539(a)(1); see 50
C.F.R. §§ 17.22(d)(2), 17.32(d)(2). Under the Texas plan, an
administrator — and not the Service — is responsible for
enforcing the terms of the individual Certificate of Inclusion by
which an operator agreed to join the plan. If the administrator
finds that an operator is not in compliance, the administrator
may revoke the benefits the operator receives by joining the
Texas plan. If, however, the Service concludes the plan
administrator is not appropriately tracking mitigation activities
and engaging in compliance monitoring and reporting, it has
authority to suspend or revoke the permit, thereby limiting the
benefits of the Texas plan for all enrollees. See 50 C.F.R.
§§ 13.27, 13.28; TEXAS CONSERVATION PLAN 56.
Consequently, it was not unreasonable for the Service to agree
to receive data at the dune complex level; such information is
sufficient, in its judgment, for the Service to monitor the
administrator’s implementation of the plan and determine
29
whether plan terms need modification. Nor, in view of the
Texas administrator’s role in that process, was it unreasonable
for the Service to conclude that the confidentiality provisions
would not interfere with ensuring enforcement of the conditions
of enrollment.
The Texas plan may not be foolproof, but neither is every
regulatory regime. The evaluation of the adequacy of the Texas
plan involves the Service’s judgment based on its expertise and
experience. Appellants have failed to demonstrate that the
Service was arbitrary and capricious in exercising that judgment
to rely on the Texas plan. Accordingly, we affirm the grant of
summary judgment.