CENTER FOR BIOLOGICAL DIVERSITY; Sierra Club; Public Employees for Environmental Responsibility; Desert Survivors, Plaintiffs-Appellants, v. BUREAU OF LAND MANAGEMENT; U.S. Fish & Wildlife Service, Defendants-Appellees, and Blueribbon Coalition; California Association of 4 Wheel Drive Clubs; San Diego Off Road Coalition; Desert Vipers Motorcycle Club; High Desert Multiple Use Coalition; American Motorcycle Association, District 37; Off-Road Business Association; California Off-Road Vehicle Association; American Sand Association, Intervenor-Defendants-Appellees.
No. 14-15836
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 14, 2016 San Francisco, California Filed August 15, 2016
833 F.3d 1136
We find unconvincing Appellees’ argument that allowing the Extender Statute to supply the applicable statute of limitations would result in a repeal of a portion of the 1933 Act. When enacting
Given the plain text of the Extender Statute and the legislative history of
CONCLUSION
The district court erred in holding that FIRREA‘s Extender Statute does not displace the 1933 Act‘s statute of repose in actions by the NCUA as conservator or liquidating agent. We therefore VACATE the district court‘s judgment and REMAND the case for further proceedings consistent with this opinion.
Brian. C. Toth (argued), Norman L. Rave, Jr., and Kevin W. McArdle, Attorneys; Sam Hirsch, Acting Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Cheryll Dobson and Erica Niebauer, United States Department of the Interior, Office of the Solicitor; for Defendants-Appellees.
David P. Hubbard (argued), Gatzke Dillon & Ballance LLP, Carlsbad, California; Paul A. Turcke (argued), Moore Smith Buxton & Turcke, Boise, Idaho; Dennis L. Porter, Sacramento, California; for Intervenors-Defendants-Appellees.
Before: DIARMUID F. O‘SCANNLAIN, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.
OPINION
O‘SCANNLAIN, Circuit Judge:
We must decide whether the United States Fish and Wildlife Service, in reviewing the Bureau of Land Management‘s proposal to expand access for off-road vehicle recreation in the Imperial Sand Dunes Special Recreation Management Area, has complied with the requirements of the
I
Just north of the Mexican border, in Imperial County, California, lies the Imperial Sand Dunes Planning Area, a 227,000-acre tract of desert, 214,930 acres of which is managed by the Bureau of Land Management (“BLM“).
The current litigation, which has been ongoing for over a decade, originates from BLM‘s decision to reopen land within the Imperial Sand Dunes Special Recreation Management Area to off-road vehicle use. The Dunes contain a species of purple-flowered plant known as the Peirson‘s milkvetch (Astragalus magdalenae var. peirsonii), categorized as a “threatened species” for purposes of the
In response to the court‘s order, the Fish and Wildlife Service issued a new critical habitat designation for the milkvetch in 2008, which the Center unsuccessfully challenged. In 2013, BLM adopted a new RAMP. Under the new plan, the 26,098-acre North Algodones Dunes Wilderness tract would remain closed to off-road vehicles, as would 9,261 acres of milkvetch critical habitat. The remainder of the Imperial Sand Dunes Special Recreation Management Area—over 127,000 acres—would be open to off-road vehicle use. BLM additionally prepared an Environmental Impact Statement analyzing the 2013 RAMP, and consulted with the Fish and Wildlife Service pursuant to
The Center once again mounted a challenge, asserting various claims under the
The District Court for the Northern District of California granted summary judgment in favor of BLM on all but the second issue.2
The Center timely appealed and argues that the plain language of the
II
The Center first avers that the
We review an agency‘s interpretation of a statute it is charged with administering under the two-step framework set forth in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 902 (9th Cir. 2012). We must first determine whether “Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43. “[I]f the statute is silent or ambiguous with respect to the specific issue,” however, “the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 843. “If a statute is ambiguous, and if the implementing agency‘s construction is reasonable, Chevron requires a federal court to accept the agency‘s construction of the statute, even if the agency‘s reading differs from what the court believes is the best statutory interpretation.” Ctr. for Biological Diversity, 695 F.3d at 902 (quoting Nat‘l Cable & Telecomm. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005)).
A
Enacted in 1973, the
In 1978, Congress added a provision to the Act requiring federal agencies wishing to engage in action that may adversely affect an endangered or threatened species to consult first with the Secretary of the Interior to “insure that any action authorized, funded, or carried out by such agency ... does not jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.”
(i) specifies the impact of such incidental taking on the species,
(ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact,
(iii) in the case of marine mammals, specifies those measures that are necessary to comply with section 1371(a)(5) of this title with regard to such taking, and
(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii).
Here, though the Fish and Wildlife Service‘s 2012 Biological Opinion found that off-road vehicle use “could result in direct death or injury of Peirson‘s milk-vetch due to crushing, uprooting, or burial of plants and seeds, and by reducing reproductive output of those that survive,” the Service did not issue an Incidental Take Statement for the plant.
B
The Center argues that the plain language of section 7‘s Incidental Take Statement provision requires Incidental Take Statements for both plants and animals. As the Center observes, consultation between the Fish and Wildlife Service and BLM is required for “any endangered species or threatened species.”
When one reads section 7 in isolation, the Center‘s argument seems plausible. Indeed, there is nothing specifically in that provision to indicate that Congress intended to limit the term “species” to fish or wildlife. Section 7, however, “must be read in [its] context and with a view to [its] place in the overall statutory scheme,” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)), because an act should “be interpreted as a symmetrical and coherent regulatory scheme, one in which the operative words have a consistent meaning throughout,” Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995).
Here, context matters.
[W]ith respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person ... to ... take any such species within the United States or the territorial sea of the United States [or] take any such species upon the high seas.
The Center counters that the
Putting the history of the Act aside for a moment, the text of the take definition supports the same conclusion. The majority of the words on the list most naturally describe actions that cannot be directed against plants. For example, one does not pursue a tree; one does not typically shoot a shrub. See
Our decision in Arizona Cattle Growers’ Association lends further support to the proposition that “take” applies to animals only. In that case, we held that the Fish and Wildlife Service acted arbitrarily and capriciously when it issued an Incidental Take Statement “where there either was no evidence that the endangered species existed on the land or no evidence that a take would occur if the permit were issued.” Ariz. Cattle Growers’ Ass‘n, 273 F.3d at 1233. In reaching our conclusion, we reasoned that section 7‘s incidental take provision was in essence a “safe harbor” for section 9; if an approved activity might incidentally result in a taking, those engaging in the activity need not fear section 9 liability so long as they comply with the terms of the Fish and Wildlife Service‘s Incidental Take Statement. Id. at 1239-40. Because there can be no incidental taking if there is no threat of a section 9 taking, there necessarily is only “one standard for ‘taking’ within both Section 7(b)(4) ... and Section 9.” Id. at 1239. Consequently, we “reject[ed] the argument that ‘taking’ should be applied differently” between the two sections. Id. at 1240.3
The Center parries Arizona Cattle Growers’ Association with Center for Biological Diversity v. Salazar. In Center for Biological Diversity, when the Fish and Wildlife Service first listed the polar bear as “threatened,” it issued a rule applying most of section 9‘s protections but excluded the section 9 “take” prohibitions. 695 F.3d at 910. We held that an Incidental Take Statement was nevertheless required. Id. As we explained:
[E]xemption from Section 9 take liability ‘is not the sole purpose of the [Incidental Take Statement]. If the amount or extent of taking specified in the [Incidental Take Statement] is exceeded, reinitiation of formal consultation is required.... Thus, the [Incidental Take Statement] serves as a check on the agency‘s original decision that the incidental take of listed species resulting from the proposed action will not [jeopardize the continued existence of the species].’ Nat. Res. Def. Council, Inc. v. Evans, 279 F.Supp.2d 1129, 1182 (N.D. Cal. 2003). Accordingly, exemption from Section 9 take prohibitions does not negate the separate requirement that the Service ‘will provide’ an [Incidental Take Statement] along with its [Biological Opinion].
50 C.F.R. § 402.14(i)(1) .
Id. at 911 (some alterations in original).
As the district court recognized, one could perceive tension between Arizona Cattle Growers’ Association and Center for Biological Diversity. While Arizona Cattle Growers’ Association makes clear that
It is no wonder then that district courts have assumed that the incidental take provisions apply to animals only. See, e.g., Cal. Native Plant Soc‘y v. Norton, No. 01CV1742 DMS, 2004 WL 1118537, at *8 (S.D. Cal. Feb. 10, 2004) (“In the absence of a prohibition on the ‘take’ of plant species, Defendants are correct that ‘such take cannot occur, and no incidental take statement is needed.’ “); N. Cal. River Watch v. Wilcox, 547 F.Supp.2d 1071, 1075 (N.D. Cal. 2008), aff‘d, 633 F.3d 766 (9th Cir. 2010) (“[S]ection 10—allowing a private party to apply for an incidental take permit—applies only to fish and wildlife; there is no section 10 incidental take permit provision for endangered plants.“).
C
Read in context, the text of the statute is clear: the
III
The Center next argues that BLM‘s decision to open additional land to off-road vehicle use violated the
As with the Center‘s first challenge, we begin with a review of the statutory scheme governing BLM‘s air quality analysis.
A
1
The
In similar fashion, FLPMA requires the Secretary of the Interior, in developing and revising land use plans, to “provide for compliance with applicable pollution control laws, including State and Federal air, water, noise, or other pollution standards or implementation plans.”
Finally, before undertaking a proposed action, NEPA requires federal agencies to take a “hard look” to determine the potential impact an agency action may have on the environment; such a review requires a “full and fair discussion of significant environmental impacts.” Western Watersheds Project v. Abbey, 719 F.3d 1035, 1047 (9th Cir. 2013) (quoting
2
The Imperial County Air Pollution Control District, which contains the Dunes, is classified as a “moderate” nonattain-
Following the issuance of its draft statement for public comment, BLM revised its analysis by changing certain underlying assumptions supporting the initial conclusion that the planned expansion would result in emissions exceeding de minimis quantities. Specifically, BLM changed its assumptions regarding the expected increase in the number of vehicles to the Dunes, the manner in which they would be used, and the amount of dust they might generate. As a result, the Final Environmental Impact Statement concluded that pollution resulting from BLM‘s planned openings would not increase ozone emissions and would actually decrease PM-10 emissions.
B
The Center first argues that the assumptions supporting BLM‘s ultimate conclusion that implementation of the 2013 RAMP would not increase ozone emissions were arbitrary and capricious. Specifically, the Center takes issue with BLM‘s assumptions regarding the number of individuals who will visit the Dunes and how an average visitor will spend his time recreating.
1
In its Final Environmental Impact Statement, BLM assumed, for purposes of its emissions analysis, that its plan to open additional areas of the Dunes to off-road vehicle use would not lead to an overall increase in the number of visitors: “[V]isitor use of the Planning Area will remain the same as current levels for all alternatives, and there would be no incremental change in GHG [greenhouse gas] emissions from the baseline.” The Center argues that such an assumption cannot possibly be correct—that opening additional areas to off-road vehicle use will necessarily attract an increased number of off-road vehicle enthusiasts.
Yet in litigation surrounding BLM‘s 2003 RAMP, the Center challenged BLM‘s contention that the closing of certain areas would result in a decline in visitors. The district court agreed with the Center, concluding that “there is no data in the record linking the interim closures to any reduced OHV [off-highway vehicle] visitation levels at the Dunes.” Ctr. for Biological Diversity, 422 F.Supp.2d at 1149. BLM argues that no data has surfaced since the previous litigation demonstrating that opening or closing such areas would change the number of visitors to the Dunes.
Facts and data in the record tend to support the assertion that opening further acreage to off-road vehicle use would not lead to an increased number of visitors. Much of the area scheduled to be opened is quite remote—far from camping and staging areas and lacking in amenities such as restrooms. And fluctuations in the number of visitors appear to be tied more closely to historical trends and economic conditions than to acreage. For example, after previous closures visitation to the
BLM‘s analysis, of course, is not immune from criticism. Of particular note is the inconsistency between BLM‘s emissions analysis and its economic analysis, the latter of which assumed that opening additional acreage would in fact result in an increased number of visitors. Nevertheless, the existence of such an inconsistency is insufficient proof that the emissions analysis was arbitrary and capricious. Indeed, BLM had the discretion to apply different models and assumptions in different circumstances. See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 610 (9th Cir. 2014) (“[W]e give the [Fish and Wildlife Service] great deference in its choice of scientific tools ....“). And, of course, the assumption supporting the economic analysis may simply be wrong—that it differs from the one contained in the emissions analysis does not compel the conclusion that the emissions analysis was flawed.
We are confident that the Center could demonstrate persuasively numerous ways in which BLM‘s emissions analysis could be improved. Mere differences in opinion, however, are not sufficient grounds for rejecting the analysis of agency experts. See Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009). Because BLM‘s assumptions regarding visitation were supported by substantial evidence, they deserve deference. See Ursack, Inc. v. Sierra Interagency Black Bear Grp., 639 F.3d 949, 958 n.4 (9th Cir. 2011).
2
In addition to criticizing BLM‘s estimate of the number of expected visitors, the Center attacks BLM‘s assumptions contained in its Final Environmental Impact Statement relating to how visitors spend their time at the Dunes. Specifically, the Center argues that BLM underestimated the number of hours per day an average rider uses his off-road vehicle, the distance he rides, and the speed at which he travels (the numbers for these variables were significantly higher in BLM‘s Draft Environmental Impact Statement). As with BLM‘s prediction of the number of visitors, such assumptions are entitled to deference so long as they are supported by “substantial evidence.” See San Luis & Delta-Mendota Water Auth., 747 F.3d at 608.
For purposes of our analysis, however, BLM‘s revised assumptions regarding vehicle use are irrelevant. A conformity analysis must be prepared only if the emissions caused by the federal action—here, BLM‘s “preferred alternative” in the 2013 RAMP—exceed listed de minimis levels. See
The Center additionally challenges the “fugitive particulate emissions” (PM-10) portion of BLM‘s air-quality analysis—specifically BLM‘s procedure for evaluating the characteristics of the soil found throughout the Dunes. Unlike the assumptions regarding vehicle usage, a change in soil evaluation methods is relevant even if the number of visitors remains constant because soil characteristics vary throughout the Dunes. PM-10 emissions thus depend on which portions of the Dunes are open for off-road vehicle use.
1
Vehicles kick up dust. As a general rule, greater silt content in soil results in greater PM-10 emissions from vehicle traffic. Conversely, when soil contains a greater concentration of sand, PM-10 emissions are reduced. In its original analysis, contained in the Draft Environmental Impact Statement, BLM relied upon “standard assumptions” regarding silt content to determine the amount of airborne PM-10 off-road vehicles operating in the Dunes might produce. After publishing the draft statement, BLM revisited its analysis and “determined the standard assumptions that were used greatly overestimated emissions.” BLM was instead persuaded that actual soil samples would provide a better foundation for the analysis and so officials proceeded to test soil throughout the Dunes: “Sites were visited and approximately 800 gram samples were collected. These samples were returned to the office where they were sieved and weighed to determine the various fractions of silt and sand in the sample.” The testing demonstrated that soils on the Dunes were predominantly sand, with over 75 percent of each sample not passing through a mesh screen. Silt content proved to be low, constituting less than 0.5 percent. Such findings, when incorporated into the analysis, yielded a PM-10 figure below the de minimis threshold. Indeed, because BLM‘s proposed openings would shift off-road vehicle use to areas of the Dunes with lower silt content, and would incorporate proposed mitigation measures, the new analysis predicted a decrease in PM-10 emissions from the baseline.
2
Under the CAA, States (and by delegation, local governments) may develop individualized regulatory programs called “state implementation plans” that specify emissions limitations, in addition to other measures designed to satisfy national ambient air quality standards for each pollutant.
The Center argues that the soil sample method employed by BLM was impermissible because it failed to conform to Imperial County‘s Implementation Plan. Rule 800 of the Implementation Plan, entitled “General Requirements for Control of Fine Particulate Matter (PM-10),” prescribes a method for analyzing soil characteristics. Rule 800, section G.1.e specifically governs the determination of silt content for “Unpaved Roads and Unpaved Vehicle/Equipment Traffic Areas.” The Center avers that because BLM ignored such rule, the results of its analysis are void. BLM counters that the Center‘s proposed method is used solely to determine whether a road is considered a “stabilized unpaved road” and was therefore inapplicable for BLM‘s purposes, viz. to estimate PM-10 emissions from off-road vehicle usage.
Rule 800, section G.1.e directs agencies to employ methods contained in appendix B, section C of the Rule to determine the silt content for “Unpaved Roads and Un-
Simply put, a “stabilized unpaved road” under Rule 800 is a standard—a surface over which vehicles travel without kicking up excessive amounts of dust; one determines whether the standard is met by using the test prescribed by appendix B, section C. Contrary to the Center‘s assertion, the test prescribed by appendix B is not a procedure for gauging PM-10 emissions generally. BLM‘s use of an alternative method for estimating PM-10 emissions was therefore permissible.
D
Finally, the Center argues that BLM impermissibly disregarded concerns raised by EPA and the Imperial County Air Pollution Control District regarding potential impacts on the environment. We reject this argument for three reasons. First, ultimate responsibility for ensuring compliance with applicable laws lies with the agency undertaking the proposed action—here, BLM. See
E
In challenging an agency determination such as this, the Center had a steep hill to climb as “[r]eview under the arbitrary and capricious standard is narrow“—a court will not substitute its judgment for that of the agency. Ecology Ctr., 574 F.3d at 656 (internal quotation marks omitted). Here, the record demonstrates that BLM “considered the relevant factors and articulated a rational connection between the facts found and the choices made.” Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008) (quoting Ranchers Cattlemen Action Legal Fund, 415 F.3d at 1093). Under the circumstances, the Center has failed to demonstrate that BLM‘s emissions analysis was arbitrary and capricious under this deferential standard.
IV
For the foregoing reasons, the decision of the district court is AFFIRMED.