Defenders of Wildlife & Center for Biological Diversity v. Jewell
421 U.S. App. D.C. 213
D.C. Cir.2016Background
- The Fish and Wildlife Service (FWS) proposed listing the dunes sagebrush lizard as endangered in 2010 based on habitat loss from oil-and-gas activity and herbicide treatments across New Mexico and Texas.
- After receiving new information, FWS withdrew the proposed listing in 2012, concluding ongoing and planned conservation measures (New Mexico CCAs/CCAAs, a BLM plan, and a Texas Candidate Conservation Agreement with Assurances plus a Habitat Conservation Plan — the “Texas plan”) reduced threats sufficiently.
- FWS relied on its 2003 Policy for Evaluation of Conservation Efforts to determine when formalized voluntary conservation efforts are “sufficiently certain to be implemented and effective” to influence listing decisions.
- Appellants (Defenders of Wildlife and Center for Biological Diversity) challenged the withdrawal as arbitrary and capricious, arguing (1) the Texas plan failed the Policy’s implementation and effectiveness criteria and (2) FWS improperly elevated voluntary, unenforceable state agreements over ESA Factor D (inadequacy of existing regulatory mechanisms).
- The district court granted summary judgment to the Secretary; on appeal the D.C. Circuit reviewed de novo whether FWS’s application of the Policy to the Texas plan was arbitrary or capricious and whether appellants waived their statutory challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellants preserved a statutory challenge that voluntary agreements cannot substitute for Factor D analysis | Appellants argued on appeal that voluntary plans cannot be relied on if they would fail under Factor D; claim that Policy cannot supplant ESA’s five-factor framework | Secretary argued appellants waived any statutory challenge in district court by expressly limiting their challenge to the Policy’s application (not the Policy’s validity) | Waiver: appellants affirmatively waived the statutory challenge in district court; appellate court refuses to reach it and deems it forfeited |
| Whether FWS properly found the Texas plan "sufficiently certain to be implemented" under the Policy | Appellants: plan lacks implementation schedule, unclear enrollment levels, and split-estate issues — so implementation certainty is speculative | Secretary: record shows high enrollment already (71% in Texas, 95% combined with NM), fees paid, major operators enrolled, monitoring/permit mechanisms and relisting authority provide incentives and safeguards | Held: FWS’s implementation-findings supported by substantial evidence and not arbitrary or capricious |
| Whether the Texas plan was "sufficiently certain to be effective" (threat reduction, incremental objectives, caps/mitigation) | Appellants: 1%/10% caps permit continued historic habitat loss, mitigation may be ineffective or advanced before proven, confidentiality hides parcel-level measures | Secretary: plan prioritizes avoidance, limits loss, requires mitigation and monitoring, adaptive management, dune-complex reporting suffices, Service retains authority to re-list or suspend permits | Held: FWS reasonably concluded the plan would reduce threats and set measurable/monitorable objectives; conclusions sustained on record evidence |
| Whether confidentiality and enrollment gaps fatally undermine monitoring/enforcement | Appellants: Texas confidentiality and aggregate reporting prevent FWS from knowing enrolled parcels and verifying on-the-ground measures, increasing fragmentation risk | Secretary: plan requires State reporting at dune-complex level, administrator enforces Certificates of Inclusion, FWS can suspend/revoke permits and monitor compliance at appropriate scale | Held: Confidentiality and aggregate reporting were reasonable monitoring choices; FWS’s evaluation of sufficiency was not arbitrary |
Key Cases Cited
- Am. Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008) (discussing ESA listing review and deference to agency expertise)
- Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (standard for arbitrary and capricious review)
- NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292 (1939) (definition of substantial evidence)
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (application of substantial-evidence standard)
- Comcast Corp. v. FCC, 526 F.3d 763 (D.C. Cir. 2008) (agency internal disagreement does not bind agency actions)
- United States v. Volvo Powertrain Corp., 758 F.3d 330 (D.C. Cir. 2014) (issues waived below may not be raised on appeal)