Center for Bio. Diversity v. Deb HaalandCenter for Bio. Diversity v. Deb Haaland
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff-Appellant, v. DEBRA ANNE HAALAND, in her official capacity as Secretary of the U.S. Department of the Interior; MARTHA WILLIAMS, in her official capacity as Director of the U.S. Fish and Wildlife Service, Defendants-Appellees, STATE OF WYOMING; STATE OF IDAHO; WYOMING STOCK GROWERS ASSOCIATION; WYOMING FARM BUREAU FEDERATION; UTAH FARM BUREAU FEDERATION, Intervenor-Defendants-Appellees.
Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
Argued and Submitted April 12, 2022 Seattle, Washington
Filed January 19, 2023
Before: Danny J. Boggs,* Andrew D. Hurwitz, and Jennifer Sung, Circuit Judges.
Opinion by Judge Hurwitz; Dissent by Judge Sung
SUMMARY**
Final Agency Action
The panel affirmed, on different grounds, the district court‘s summary judgment against the Center for Biological Diversity in the Center‘s action petitioning to amend the Grizzly Bear Recovery Plan that the Secretary of the Interior adopted as a “recovery plan” for an
The U.S. Fish & Wildlife Service (the “Service“) approved the original Grizzly Bear Recovery Plan in 1982 and revised it in 1993. Since 1993, the Service has issued several Plan Supplements that provide habitat-based recovery criteria for identified recovery zones.
The district court entered summary judgment against the Center because it found that the Plan was not a “rule” subject to a petition for amendment under
The Center filed this action seeking judicial review under the APA and the ESA, claiming that the Service failed to develop and implement a recovery plan that provided for the conservation and survival of the grizzly bear; violated its affirmative duty to conserve the grizzly bear by not pursuing additional recovery areas; and unreasonably denied the Center‘s petition to update the Plan. On appeal, the Center did not challenge the district court‘s holding that it lacked ESA jurisdiction. Because the Center did not claim that the Service‘s dеnial of its petition was otherwise reviewable by statute, the sole issue is whether denial of the petition is “final agency action.”
Because the term “rule” under the APA is defined broadly, the panel assumed that a recovery plan fit under this broad umbrella. See
Pursuant to Bennett v. Spear, 520 U.S. 154, 177-78 (1997), an agency action is final if it both marks the consummation of the agency‘s decisionmaking process, and it determines rights or obligations from which legal consequences flow. Under the first Bennett criterion, the panel held that the Service plainly did not treat the 1993 Plan as the last step, where it repeatedly issued Plan Supplements. The panel further held that even assuming that the adoption of a recovery plan satisfied the first Bennett criterion, it did not satisfy the second criterion. The Service does not initiate enforcement actions based on recovery plans; recovery plans do not impose any obligation on or confer any right to anyone; and a recovery plan does not contain any binding legal obligations on the agency.
The panel conсluded that a decision not to modify a plan was not a final agency action. Because the Center‘s suit did not challenge a final agency action, the district court was not authorized to review the denial of the petition under
Judge Sung dissented. She disagreed with the district court‘s holding that the Recovery Plan was not a “rule” under the APA, and therefore not subject to a rulemaking petition, because recovery plans are “non-binding.” She also disagreed with the majority‘s holding that even if the Recovery Plan was a “rule,” the Service‘s denial of the Center‘s petition was not a final agency action because recovery plans are non-binding. She would hold that the text of the APA and precedent provide that the statutory definition of “rule” encompasses both binding and non-binding rules, and that both binding and non-binding rules are subject to rulemaking petitions. Further, an agency‘s denial of a rulemaking petition is final agency action, even where the underlying rule is non-binding. Judge Sung would conclude that the Recovery Plan was a “rule” as that term is defined by the APA, and the Service‘s denial of the Center‘s rulemaking petition was a final agency actiоn subject to judicial review. She would reverse and remand to the district court to review the denial of the rulemaking petition for abuse of discretion under the highly deferential arbitrary and capricious standard.
COUNSEL
Eric R. Glitzenstein (argued), Center for Biological Diversity, Washington, D.C.; Collette L. Adkins, Center for Biological Diversity, Circle Pines, Minnesota; Kristine M. Akland, Akland Law Firm PLLC, Missoula, Montana; Andrea Zaccardi, Center for Biological Diversity, Victor, Idaho; for Plaintiff-Appellant.
Benjamin W. Richmond (argued), Devon Flanagan, Robert Lundman, and Andrew Mergen, Attorneys; Todd Kim; Assistant Attorney General; United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Dana Jacobsen, Attorney, United States Department of the Interior, Office of the Solicitor, Washington, D.C., for Defendants-Appellees.
Travis S. Jordan (argued), Senior Assistant Attorney General; James C. Kaste, Deputy Attorney General, Wyoming Attorney General‘s Office, Cheyenne, Wyoming; Adrian Miller, Sullivan Miller Law PLLC,
Owen Moroney, Deputy Attorney General; Darrell Early, Natural Resources Division Chief; Lawrence G. Wasden, Attorney General; for Intеrvenor-Defendant-Appellee State of Idaho.
William E. Trachman and Joseph A. Bingham, Mountain States Legal Foundation, Lakewood, Colorado, for Intervenors-Defendants-Appellees Wyoming Stock Growers Association, Wyoming Farm Bureau Federation, and Utah Farm Bureau Federation.
Katherine A. Meyer, Harvard Animal Law & Policy Clinic, Cambridge, Massachusetts; for Amici Curiae Law Professors Daniel J. Rohlf, Pat A. Parenteau, Oliver Houck, and Robert Percival.
OPINION
HURWITZ, Circuit Judge:
The Endangered Species Act of 1973 (“ESA“) requires the Secretary of the Interior to adopt a “recovery plan” for any endangered or threatened species.
I.
The ESA requires the Secretary to “determine whether any species is an endangered species or a threatened species.”
The ESA also requires the Secretary to develop and implement “recovery plаns” “for the conservation and survival of endangered species and threatened species.”
In 1975, the Fish and Wildlife Service1 identified the grizzly bear of the 48 conterminous states, the Ursus arctos horribilis, as a threatened species. 40 Fed. Reg. 31734-36 (July 28, 1975). The Service approved the original Grizzly Bear Recovery Plan in 1982 and revised it in 1993. The Plan aims to “identify actions necessary for the conservation and recovery of the grizzly bear” which “ultimately will result in the removаl of the species from ‘threatened’ status.”
The Plan identifies recovery zones, or “areas needed for recovery of the species,” and sets forth subgoals for each zone. It also addresses “other possible recovery areas throughout the historical range of the grizzly bear,” and has subgoals for evaluating the feasibility of grizzly-bear recovery in those areas. Since 1993, the Service has issued several Plan “Supplements” that provide habitat-based recovery criteria for identified recovery zones. The Supplements detail priority recovery actions, which include the development of strategies, programs, data collection, and species monitoring efforts, but also suggest steps such as creating coordinated efforts with law enforcement, providing guidance to hunters, and refining procedures for managing nuisance bears.
Although the Plan and Supplements contain criteria that the Service believes will ultimately result in the grizzly bear‘s removal from the list of threatened species, satisfaction of those criteria does not compel delisting. Instead, if the Seсretary ever concludes, based on “the best scientific and commercial data available,”
II.
In June 2014, the Center for Biological Diversity filed a petition with the Service, asking it to
meet its mandatory duty to develop a recovery plan for the grizzly bear,
16 U.S.C. § 1533(f) [,] by revising and updating its 1993 recovery plan for the grizzly bear (Ursus arctos horribilis) for the populations that were identified at the time the species was listed, and by identifying all additional geographic areas where recovery strategies are needed, to ensure full recovery of the species across its native range in the United States.
The Service denied the petition, stating that neither the ESA nor the APA authorizes petitions to create or revise recovery plans. Although acknowledging that the APA permits the filing of a petition for issuance, amendment, or repeal of a “rule,”
The Center then filed this action seeking judicial review under the APA and the ESA, claiming that the Service failed to develop and implement a recovery plan that provided for the conservation and survival of the grizzly bear; violated its affirmative duty to conserve the grizzly bear by not pursuing additional recovery areas; and unreasonably denied the Center‘s petition to update the Plan.2 The district court granted summary judgment to the Service and to state and private intervenors. The court agreed with the Service that because the Plan was not a “rule” under the APA, the Plan
was not subject to a petition for amendment under
III.
A.
In granting summary judgment, the district court held that the Plan was not an APA “rule” subject to a petition for amendment under
But even given those assumptions, the APA grants the district court jurisdiction to review only “[a]gency action made reviewable by statute and final agency action
the sole issue for decision is whether denial of the petition is “final agency action.”
B.
An agency action is “final” only if it both (1) “mark[s] the consummation of the agency‘s decisionmaking process—it must not be оf a merely tentative or interlocutory nature,” and (2) is “one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (cleaned up). “In determining whether an agency‘s action is final, we look to whether the action amounts to a definitive statement of the agency‘s position or has a direct and immediate effect on the day-to-day operations of the subject party, or if immediate compliance with the terms is expected.” Or. Nat. Desert Ass‘n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (cleaned up). This requires “focus on the practical and legal effects of the agency action,” not on labels, and finality is “interpreted in a pragmatic and flexible manner.” Id. (cleaned up).
It is open to question whether the adoption of a recovery plan meets the first Bennett criterion—“consummation of the agency‘s decisionmaking process.” 520 U.S. at 178 (cleaned up). The ESA requires a recovery plan to be developed using “the services of appropriate public and private agencies and institutions, and other qualified persons,” and mandates, prior to final approval, “public notice and an opportunity for public review and comment on such plan.”
(cleaned up). But, on the other hand, the Service‘s plans for grizzly-bear recovery arguably “are only steps leading to an agency decision, rather than the final action itself.” See Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 925 (9th Cir. 1999) (holding that monitoring and reporting “does not ‘consummate’ any agency process“). And, although “the Agency‘s own designation of its action” is not determinative, Abramowitz v. EPA, 832 F.2d 1071, 1075 (9th Cir. 1987), the Service plainly has not treated the 1993 Plan as the last step, as it has repeatedly issued Plan Supplements.
But, even assuming that the adoption of a recovery plan satisfies the first Bennett criterion, it does not satisfy the second. The caselaw makes plain that adoption of a recovery plan is not agency action “by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett, 520 U.S. at 178 (cleaned up). “The Endangered Species Act does not mandate compliance with recovery plans for endangered species.” Cascadia Wildlands v. Bureau of Indian Affs., 801 F.3d 1105, 1114 n.8 (9th Cir. 2015); see also Conservation Cong. v. Finley, 774 F.3d 611, 614 (9th Cir. 2014) (noting that although recovery plans “provide guidance for the conservation of [endangered and threatened] species, they are not binding authorities“); Friends of the Wild Swan, Inc. v. Dir. of U.S. Fish & Wildlife Serv., 745 F. App‘x 718, 721 (9th Cir. 2018) (concluding that recovery plans are not final agency actions because they do not “create any legal rights or obligations
v. FTC, 911 F.2d 261, 265 (9th Cir. 1990). Moreover, a recovery plan does not contain any “binding legal obligations to which [the agency] is subject.” Whitewater Draw Nat. Res. Conservation Dist. v. Mayorkas, 5 F.4th 997, 1009 (9th Cir. 2021), cert. denied, 142 S. Ct. 713 (2021); see also Cal. Cmtys. Against Toxics v. EPA, 934 F.3d 627, 637 (D.C. Cir. 2019) (stating that courts must “make Bennett prong-two determinations based on the concrete consequences an agency action has or does not have as a result of the specific statutes and regulations that govern it“).
The decision of the District of Columbia Circuit in Friends of Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012), upon which the Center relies, actually makes our point. To be sure, that opinion emphasized that the ESA requires the Secretary to “implement” a recovery plan and that “the agency is obligated to work toward the goals set in its recovery plan.” Id. at 437. But the court also stressed that a recovery plan is “a non-binding document,” id. at 434, and therefore concluded that the Secretary was not prevented from removing a species from the endangered list simply because “several criteria in the agency‘s Recovery Plan for the species had not been satisfied,” id. at 429, 436. Rather, the court explained:
The Service fairly analogizes a recovery plan to a map or a set of directions that provides objective and measurable steps to guide a traveler to his destination. Cf. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547 (11th Cir. 1996) (holding “recovery plans are for guidance purposes only“). Although a map may help a traveler chart his course, it is the sign at the end of the road, here the five
statutory factors indicating recovery, and not a mark on the map that tells him his journey is over. Moreover, as with a map, it is possible to reach one‘s destination—recovery of the species—by a pathway neither contemplated by the traveler setting out nor indicated on the map.
Thus, although the Service had the statutory obligation to draw up a roadmap for recovery of the grizzly beаr, “legal consequences do not necessarily flow from that duty, nor do rights or obligations arise from it.” See Ecology Ctr., 192 F.3d at 925. Although the map the Service drew may well help the agency “chart [its] course,” Friends of Blackwater, 691 F.3d at 434, adopting the map is not an agency action “by which rights or obligations have been determined, or from which legal consequences will flow,” Bennett, 520 U.S. at 178 (cleaned up). Nor does the Service have any statutory obligation to modify a recovery plan once adopted. It follows that a decision not to grant a petition to modify a plan is not final agency action.
C.
Our dissenting colleague argues that the denial of any petition filed under
amend the Plan is not final agency action because, like adoption of the Plan itself, it does not change the Service‘s statutory obligations, alter the rights of the Center or any other third party, or give rise to any binding legal consequences. Nоr does it “impose an obligation, deny a right, or fix some legal relationship.” Or. Nat. Desert Ass‘n, 465 F.3d at 987 (quoting Ukiah, 911 F.2d at 264). Rather, the Service‘s denial of the Center‘s petition “does not bind anyone to anything.” See S. Cal. All. of Publicly Owned Treatment Works v. EPA, 8 F.4th 831, 837-38 (9th Cir. 2021).
Instead of treating denials of rulemaking petitions as a species apart from other purportedly final agency actions, we evaluate the Service‘s denial of the petition to amend the Plan under the same test applicable to a “direct” challenge to the Plan. See, e.g., Friends of the Wild Swan, 745 F. App‘x at 719-20 (addressing complaint directly alleging various deficiencies in the bull trout recovery plan). We must “examine the concrete impact the [action] had on [petitioner] and its members—in short, none whatsoever.” Indep. Equip. Dealers Ass‘n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004).
Then-Judge Roberts‘s opinion in Independent Equipment Dealers Association underscores the point. There, the petitioner challenged a letter from the EPA responding to a request that the agency confirm an interpretation of its emissions regulations. See id. at 421. The agency informed the petitioner that it did not agree with the proposed interpretation. Id. at 424-25. The D.C. Circuit held that the EPA letter was not reviewable agency action, noting that it “imposed no obligations and denied no relief,” “[c]ompеll[ed] no one to do anything,” and “had no binding effect whatsoever.” Id. at 427. So too here—the Service‘s unwillingness to expand its list of discretionary tasks and
non-binding criteria has none of the markers of a reviewable action.
The Center‘s cited authorities do not lead us to a contrary conclusion. In Massachusetts v. EPA, 549 U.S. 497 (2007), for example, the Supreme Court held that the EPA‘s denial of a petition for the agency to issue mandatory regulations concerning greenhouse-gas emissions from new motor vehicles was “susceptible to judicial review.” Id. at 510–11, 527. But such a regulation, if adopted, would have clearly changed the legal rights and obligations of not only the EPA, but also motor-vehicle manufacturers. The case does not displace Bennett‘s limitation of APA judicial review to only those agency actions with legal consequences.
Similarly, O‘Keeffe‘s, Inc. v. U.S. Consumer Product Safety Commission, 92 F.3d 940, 941 (9th Cir. 1996), involved review of the agency‘s denial of a petition to amend regulations that set “impact standards” for glass and glazing materials used in doors and other products. We treated denial of the petition as “final agency action,” see id. at 942, but unlike the situation before us, the agency‘s decision to change thе list of materials subject to the impact standards directly affected the obligations of regulated parties, including the petitioner and its competitors. See id. at 941; see also id. at 949 (Reed, J., dissenting).
The same is true of the other cases relied upon by the Center and the dissent. See Weight Watchers of Greater Wash. State, Inc. v. FTC, 830 F. Supp. 539, 540–41 (W.D. Wash. 1993) (involving petition to regulate weight-loss advertising via rulemaking instead of adjudication), aff‘d in part, rev‘d in part sub nom. Weight Watchers Int‘l, Inc. v. FTC, 47 F.3d 990 (9th Cir. 1995); see also Coll. Sports Council v. Dep‘t of Educ., 357 F. Supp. 2d 311, 311 (D.D.C.
2005) (involving petition to repeal a policy interpretation that allegedly authorized gender-conscious capping or cutting of plaintiffs’ male athletic programs), aff‘d in part, rev‘d in part, 465 F.3d 20 (D.C. Cir. 2006); Nat‘l Wrestling Coaches Ass‘n v. U.S. Dep‘t of Educ., 263 F. Supp. 2d 82, 126 (D.D.C. 2003) (same), aff‘d, 366 F.3d 930 (D.C. Cir. 2004); Cap. Network Sys., Inc. v. FCC, 3 F.3d 1526, 1530 (D.C. Cir. 1993) (involving petition to enforce just, reasonable, and nondiscriminatory rates on carriers); Am. Horse Prot. Ass‘n, Inc. v. Lyng, 812 F.2d 1, 2, 5–7 (D.C. Cir. 1987) (involving petition to amend regulations that limited the “soring” of horses); WWHT, Inc. v. FCC, 656 F.2d 807, 809, 816-18 (D.C. Cir. 1981) (involving petition to amend rules addressing cable carriage of subscription-television signals); Nat. Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1036, 1043-47 (D.C. Cir. 1979) (involving petition to undertake rulemaking that would require corporate disclosure of environmental and equal-employment information).3 These cases involved agency action with legal consequences, and thus do not support the far-reaching proposition that the denial of a petition to amend a non-binding document is necessarily reviewable final agency action simply because it is styled as a petition filed under
Army Corps of Eng‘rs v. Hawkes Co., Inc., 578 U.S. 590, 599 (2016) (cleaned up). Under that pragmatic approach, finality does not turn on labels, but rather on the “practical and legal effects” of a particular action. Or. Nat. Desert Ass‘n, 465 F.3d at 982 (cleaned up).
IV.
The Service‘s decision not to amend the Grizzly Bear Recovery Plan, like adoption of the Plan itself, is not an action “from which legal consequences will flow.” Bennett, 520 U.S. at 178 (cleaned up). Because the Center‘s suit does not challenge final agency action, the district court was not authorized to review the denial of the petition under
AFFIRMED.
SUNG, Circuit Judge, dissenting:
I respectfully dissent. It is undisputed that the Center for Biological Diversity filed a petition to amend the Grizzly Bear Recovеry Plan, and that the U.S. Fish and Wildlife Service denied that petition. The Center seeks review of the denial of its rulemaking petition, claiming that the denial was arbitrary and capricious. Under longstanding precedent, an agency‘s denial of a rulemaking petition is final agency action subject to judicial review, pursuant to the Administrative Procedure Act. The district court nonetheless dismissed the Center‘s claim after concluding that the Recovery Plan is not a “rule” under the APA, and therefore not subject to a rulemaking petition, because recovery plans are “non-binding.” The majority takes a different tack: They assume that the Recovery Plan is a “rule” and that the Center
I disagree with both the district court and the majority. As explained below, the text of the APA and precedent make clear that the statutory definition of “rule” encompasses both binding and non-binding rules, and that both binding and non-binding rules are subject to rulemaking petitions. Further, аn agency‘s denial of a rulemaking petition is final agency action, even where the underlying rule is non-binding. By concluding otherwise, the majority opinion exacerbates confusion in this area of administrative law and creates an unwarranted barrier to judicial review.
I.
The APA defines “[r]ule” . . . broadly to include “statement[s] of general or particular applicability and future effect” that are designed to “implement, interpret, or prescribe law or policy.” Perez v. Mortg. Bankers Ass‘n, 575 U.S. 92, 95–96 (2015) (alteration in original) (quoting
A recovery plan fits easily within that broad definition. The Endangered Species Act requires the Service to “develop and implement [recovery] plans . . . for the conservation and survival of endangered species and threatened species.”
measurable criteria which, when met, would result in a determination ... that the species be removed from the” endangered or threatened species list.
Despite the breadth of the APA‘s definition of “rule,” the district court concluded that a recovery plan cannot implement, interpret, or prescribe law or policy—and therefore cannot be a “rule“—because recovery plans are “non-binding.”1 That was error.
Under the APA, the term “rule” includes both binding rules (also known as “substantive” or “legislative” rules) and non-binding rules (interpretive rules, general
Because interpretive rules, policy statements, and agency procedure rules are exempt from the notice-and-comment requirement, they are, by definition, “non-binding.” See Perez, 575 U.S. at 97 (“The absence of a notice-and-comment obligation makes the process of issuing interpretive rules comparatively easier for agencies than issuing legislative rules. But that convenience comes at a price: Interpretive rules do not have the force and effect of law and are not accorded that weight in the adjudicatory process.” (internal quotation marks and citation omitted)).3 The non-binding status of interpretive rules, policy statements, and agency procedure rules, however, does not remove them from the broad definition of “rule.”4 See Perez, 575 U.S. at 95-96; see also Thomas v. New York, 802 F.2d 1443, 1446 n * (D.C. Cir. 1986). In Thomas, then-Judge Scalia addressed “the misconception that the classification of an agency statement as a rule depends upon whether it substantially affects the interests of private parties” and explained that, despite “somewhat misleading” past decisions, “other decisions and the APA itself make clear that the impact of an agency statement upon private parties is relevant only to whether it is the sort of rule that is a rule of procedure, or a general statement of policy, and thus does not require notice and comment, not to whether it is a rule at
Recovery plans interpret and implement the requirements of the ESA, as well as prescribe law and policy, even though they are “non-binding.” For example, the plan at issue here, the Grizzly Bear Recovery Plan, includes “demographic recovery criteria” for certain areas known to have been occupied by grizzlies. Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1020 (9th Cir. 2011). When the Service revised the Plan in 1993, “it delineated a ‘Recovery Zone’ for each region, defined as ‘an area large enough and of sufficient habitat quality to support a recovered bear population within which habitat and population would be monitored.‘” Id. “The revised Plan also included updated demographic recovery criteria,” and “[h]abitat-based recovery criteria were appended to the Plan following a successful legal challenge.” Id. (citing Fund for Animals, 903 F. Supp. at 96). The revised Plan further “mandated the development of a ‘conservation strategy’ for each grizzly population to guide long-term management after delisting.” Id. “Pursuant to the Recovery Plan,” the Service led efforts to establish an “inter-agency, multi-state blueprint for the long-term protection and management of a sustainable grizzly population,” referred to as the “Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area.” Id. at 1021. See also Bd. of Cnty. Comm‘rs v. Kempthorne, 531 F.3d 792, 811 (9th Cir. 2008) (“FWS determined that delisting the tri-state murrelets was not warranted because the interim delisting criteria in the Recovery Plan had not been met and the threat situation has not changed in a way that would alleviate the threat to the species.” (emphasis added) (internal quotation marks omitted)).
In sum, recovery plans are, by definition, agency statements that implement, interpret, and prescribe law and policy. See
II.
All rules are subject to rulemaking petitions under
The right to petition for rulemaking under subsection 553(e) applies to all rules, without exception. By contrast, subsection 553(b), which requires a notice-and-comment process, expressly exempts interpretive rules, general statements of policy, and agency procedure rules. Subsection 553(d), which requires advance publication, expressly exempts interpretive rules and statements of policy.5
Additionally, the D.C. Circuit has noted that non-binding policy statements would be subject to rulemaking petitions under subsection 553(e). Guardian Fed. Savs. & Loan Ass‘n v. Fed. Savs. & Loan Ins. Corp., 589 F.2d 658, 668 (D.C. Cir. 1978).7 And, in other cases, that court has reviewed denials of rulemaking petitions for non-binding interpretive rules, policy statements, and agency procedure rules. See Coll. Sports Council v. Dep‘t of Educ., 465 F.3d 20, 22-23 (D.C. Cir. 2006) (holding denial of § 553(e) petition to repeal and amend “guidance” or “policy interpretation” was subject to judicial review under the standards of review for refusals to institute rulemaking proceedings set forth in Nat‘l Customs Brokers & Forwarders Ass‘n of Am., Inc. v. United States, 883 F.2d 93 (D.C. Cir. 1989), and WWHT, Inc. v. FCC, 656 F.2d 807, 809 (D.C. Cir. 1981));8 ITT World Communications, Inc. v. FCC, 699 F.2d 1219, 1226 and 1245-46 (D.C. Cir. 1983), rev‘d on other grounds, 466 U.S. 463 (1984) (reviewing denial оf rulemaking petition that requested issuance of “policy statement” regarding “the purpose of all [agency] meetings with foreign administrations” and procedural rules for such meetings (petition published at 77 F.C.C.2d 877 (1980))).9
A denial of a rulemaking petition is reviewable final agency action, even if the underlying rule is non-binding.
“The APA, by its terms, provides a right to judicial review of all ‘final agency action for which there is no other adequate remedy in a court.‘” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (quoting
“An agency‘s denial of a petition for rulemaking constitutes final, reviewable agency action, except where there is evidence of a clear and convincing legislative intent to negate review.” Weight Watchers Int‘l, Inc. v. FTC, 47 F.3d 990, 992 (9th Cir. 1995) (quoting Clark v. Busey, 959 F.2d 808, 811 (9th Cir. 1992) (quoting WWHT, 656 F.2d at 809)).
“Where an agency‘s refusal to institute a rulemaking is held to be final agency action subject to judicial reviеw, it is reviewed under the arbitrary and capricious standard of
In this case, there is no evidence of a clear and convincing legislative intent to negate review of the Service‘s denial of rulemaking petitions, either generally or when the petition concerns a recovery plan. Further, both Bennett requirements are satisfied. First, there is no dispute that the Service‘s denial of the Center‘s rulemaking petition is a final decision that is neither tentative nor interlocutory.
Second, the Service‘s denial of the rulemaking petition is an action by which the
The majority concludes that “[t]he Service‘s denial of the Center‘s petition to amend the Plan is not final agency action because, like adoption of the Plan itself, it does not ... alter the rights of the Center.” Majority at Section III.C. However, the denial of the Center‘s petition does not need to “alter” the rights of the Center to be final agency action. To be final agency action, an agency‘s action need only “determine” a “right,” Bennett, 520 U.S. at 178, for example, by “deny[ing] a right.” Oregon Nat. Desert Ass‘n v. U.S. Forest Serv., 465 F.3d 977, 987 (9th Cir. 2006).11 Here, the Service determined the Center‘s statutory right to petition by denying it.
Ignoring the fact that the Service‘s action determined the Center‘s right to petition, the majority concludes that the Service‘s denial of the Center‘s rulemaking petition is not final agency action because the petitioned-for rule, the Recovery Plan, is non-binding. Although this Circuit apparently has not had occasion to review an agency‘s denial of a rulemaking petition for a non-binding rule, the D.C. Circuit has. In College Sports Council, the court held that an agency‘s denial of a petition to amend or repeal “a policy interpretation,” which the agency characterized as “guidance,” was subject to judicial review. 465 F.3d at 22-23. See also ITT World Communications, 699 F.2d at 1226 (reviewing denial of petition for policy statement).12
The majority cites no case in which a court has treated the question of whether the underlying rule is “binding” as dispositive of, or even relevant to, the question of whether the denial of the rulemaking petition is final agency action. To the contrary, the cases that address denials of rulemaking petitions focus exclusively on the denial of the petition. See, e.g., Coll. Sports Council, 465 F.3d at 23; Cap. Network, 3 F.3d at 1530.
The majority asserts that “we must evaluate the Service‘s denial of the petition to amend the Plan using the same test applicable to a ‘direct’ challenge to the Plan.” Majority at Section III.C. Although the Bennett test for “final agency action” is the same for both types of cases—a challenge to the denial of a rulemaking petition and a direct challenge to a rule—the action that must pass the test is different. The majority cites no authority for the proposition that, in a case challenging a denial of a rulemaking petition, the relevant action is not the denial of the petition but instead the underlying rule. The majority cites only cases that involved a direct challenge to a non-binding rule. Id. None of the cited cases involved denials of rulemaking petitions. And none conflated the action of denying a rulemaking petition with the underlying rule, as the majority does here.14
The majority also asserts that, if we accept the “proposition that the denial of a petition to amend a non-binding document is necessarily reviewable final agency action,” then “the APA‘s requirement of final agency action would lose all meaning, as an applicant seeking review of agency decisions with no legally binding effect would merely have to style [their] request to the agency as a rulemaking petition.” Majority at Section III.C. That dire prediction is unfounded. The only “request” at issue in this case is a petition to amend a “rule,” as that term is defined by section 551(4),
As noted above, we review an agency‘s denial of a rulemaking petition under the arbitrary and capricious standard of
Finally, the majority‘s approach may have the unintended consequence of requiring courts to decide a difficult issue (whether the underlying rule is “binding“) before deciding a relatively straightforward issue (whether the agency‘s denial of the rulemaking petition was arbitrary and capricious). As discussed above, review of an agency‘s denial of a rulemaking petitiоn is highly deferential and relatively simple.15 But there is no bright line between binding rules and non-binding rules—both may allow for some discretion and have some substantive effect. See, e.g., Guardian, 589 F.2d at 667 (“A matter of judgment is involved in distinguishing between rules, however discretionary in form, that effectively circumscribe administrative choice, and rules that contemplate that the administrator will exercise an informed discretion in the various cases that arise.“); see also id. at 668 (concluding rules were general statements of policy even though they had “some substantive impact“); Am. Hosp. Ass‘n v. Bowen, 834 F.2d 1037, 1046 (D.C. Cir. 1987) (“[T]he mere fact that [an interpretive] rule may have a substantial impact does not transform it into a legislative rule.” (internal quotation marks and citation omitted)).16
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In sum, I conclude that the Recovery Plan is a “rule” as that term is defined by the APA, and the Service‘s denial of the Center‘s rulemaking petition is final agency action subject to judicial review. Therefore, I would reverse and remand to the district court to review the denial of the rulemaking petition for abuse of discretion under the highly deferential arbitrary and capricious standard.