ENVIRONMENTAL PROTECTION INFORMATION CENTER, A NON-PROFIT CORPORATION, PLAINTIFF-APPELLANT, v. THE SIMPSON TIMBER COMPANY; SIMPSON REDWOOD COMPANY; ARCATA REDWOOD COMPANY; UNITED STATES FISH AND WILDLIFE SERVICE, DEFENDANTS-APPELLEES.
No. 99-15896
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted October 2, 2000--San Francisco, California Filed July 9, 2001
255 F.3d 1073
Before: Dorothy W. Nelson, David R. Thompson and Stephen S. Trott, Circuit Judges. Opinion by Judge Thompson; Dissent by Judge D.W. Nelson
Neil Levine, Earthlaw, Denver, Colorado, for appellant Environmental Protection Information Center. Alson R. Kemp, Pillsbury Madison & Sutro, San Francisco, California, for appellees Simpson Timber Company, Simpson Redwood Company and Arcata Redwood Company. David C. Shilton, United States Department of Justice, Environment & Natural Resources Division, Washington, Dc, for appellee United States Fish and Wildlife Service. Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No. CV-98-03740-CRB
THOMPSON, Circuit Judge:
The Environmental Protection Information Center (“EPIC“) filed suit against the United States Fish and Wildlife Service (“FWS“) and Simpson Timber Company, Simpson Redwood Company and Arcata Redwood Company (“Simpson“). EPIC alleged that the FWS violated section 7 of the Endangered Species Act (“ESA“),
The district court granted Simpson‘s motion to dismiss the complaint for failure to state a claim. See
I.
Section 9 of the ESA makes it unlawful to “take” an endangered species. See
When undertaking an action, an agency (the “action agency“) must determine whether the action “may affect” an endangered or threatened species.
The section 7 duty to consult can be ongoing, and consultation must be reinitiated under certain circumstances. An agency is required to reinitiate consultation where
discretionary Federal involvement or control over the action has been retained or is authorized by law and:
(a) If the amount or extent of taking specified in the incidental take statement is exceeded;
(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;
(c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or
(d) If a new species is listed or critical habitat designated that may be affected by the identified action.
II.
EPIC argues that the FWS‘s duty to reinitiate consultation has been triggered because that agency retained discretionary involvement or control over the action permitted by Simpson‘s spotted owl permit, and the marbled murrelet and coho salmon, two species that may be affected by what Simpson does with its permit, have been added to the threatened species list. The marbled murrelet was added to the list in the fall of 1992, several months after the FWS issued the incidental take permit to Simpson. See
Simpson‘s land is also habitat for the northern spotted owl, which the FWS listed as a threatened species in 1990. See id. When that happened, Simpson‘s logging activities exposed the company to potential liability under section 9 of the ESA for “taking” northern spotted owls. In order to continue its logging operation, Simpson applied for an “incidental take” permit from the FWS under section 10 of the ESA authorizing it to take some northern spotted owls provided “such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.”
As part of the application for its incidental take permit, Simpson was required to submit a Habitat Conservation Plan (“HCP“)3 and an Implementation Agreement (“IA“)4. The HCP is an extensive document that explains “(i) the impact which will likely result from [the] taking; (ii) what steps the applicant will take to minimize and mitigate such impacts; and . . . (iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan.”
In addition to addressing the specific needs of the spotted owl, Simpson‘s THPs [to be submitted to the California Department of Forestry] will be designed to:
Retain 50 to 70 percent canopy and 50 percent ground cover along Class I and large Class II streams;
Protect ponds, swamps, bogs, and seeps as separate riparian areas and identify them in the THP as habitat retention areas;
Protect resource values during site preparation through measures such as limitations on burning, exclusion of heavy equipment from retention areas, and construction of additional firelines (where appropriate) around retention areas;
Design, construct, and maintain roads to minimize impacts and the number of stream crossings through riparian areas;
Modify silvicultural systems as appropriate to ensure compatibility with the habitat requirements of other species found within Simpson‘s ownership that are considered sensitive by state and federal regulatory agencies.
These measures will benefit other species of concern as well as the owl and meet or exceed current state Forest Practice Rules.
HCP at 194-95 (emphasis added).
Because the FWS‘s action in issuing the incidental take permit would affect the spotted owl, it completed an internal consultation process as required by section 7(a)(2) of the ESA.5 Then, on September 17, 1992, the FWS issued a permit to Simpson allowing it to take a limited number of northern spotted owls over a thirty-year period in the process of its logging operations. The permit does not allow Simpson to take any other species.
The FWS retained some ongoing authority over Simpson‘s permit: ten years after the permit‘s issuance, the FWS will review the permit and evaluate whether Simpson has complied with its terms before allowing Simpson to continue logging operations under the permit. The FWS can also suspend the permit at any time in the event of “any significant violation or breach” of the permit; it also has the authority to revoke the permit if activities authorized under it result in the taking of threatened species not the subject of the permit, including the marbled murrelet and coho salmon.
The district court concluded that, although a number of provisions in Simpson‘s permit gave the FWS “some involvement in the continuing administration of the permit,” those provisions were not sufficient to establish the discretionary federal involvement or control required for reinitiation of consultation under
III.
We review de novo a district court‘s dismissal under Rule 12(b)(6) for failure to state a claim. Williamson v. General Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000). De novo review of a district court judgment concerning a decision of an administrative agency means we view the case from the same position as the district court. Nevada Land Action Ass‘n v. United States Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993). Judicial review of administrative decisions involving the ESA is governed by section 706 of the Administrative Procedure Act (“APA“),
A. Standing
Simpson challenges EPIC‘s standing to bring this suit under the citizen-suit provision of the ESA, codified at
(g) Citizen suits
(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf
(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or
(C) against the Secretary [of Commerce or the Interior] where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary.
The citizen suit provision “is a means by which private parties may enforce the substantive provisions of the ESA against regulated parties--both private entities and Government agencies.” Bennett v. Spear, 520 U.S. 154, 173 (1997). In the present case, EPIC is suing to enforce section 7(a)(2) of the ESA, a substantive provision that requires all federal agencies to “insure that any action authorized, funded or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of critical habitat of such species.
Simpson relies on Bennett in arguing that the ESA‘s citizen-suit provision does not apply to suits for maladministration of the ESA and that EPIC‘s suit falls within this category. Simpson misreads Bennett. There, the FWS, as the consultation agency, issued a Biological Opinion allowing the Bureau of Reclamation, as the action agency, to undertake a water reclamation project subject to certain restrictions. Although the Bennett court held that the FWS could not be sued for maladministration of the ESA under
Even if we were to read Bennett to preclude citizen-suit standing for EPIC under the ESA, EPIC would still have standing to sue under the APA. EPIC‘s complaint alleges that the FWS‘s failure to comply with Section 7(a)(2) of the ESA was arbitrary, capricious, and not in accordance with procedures required by law, in violation of the APA. See
B. Duty to Reinitiate Consultation
EPIC argues that, under the plain language of
Sierra Club involved a suit against the Bureau of Land Management (“BLM“) for its failure to consult with the FWS about the effect of a proposed logging road on the northern spotted owl. A private timber company was going to build a road on public land pursuant to a right-of-way agreement with the BLM. The Sierra Club claimed that the agreement represented ongoing agency action and that the BLM was required to consult with the FWS about the potential impact of the road on a newly listed species, the spotted owl, because the BLM retained discretionary involvement and control over the right-of-way. Under the right-of-way agreement, the BLM could object to the timber company‘s project in three limited instances, none of which was at issue or related to endangered or threatened species. Id. at 1509 n.10. We held that the BLM did not have a duty to consult with the FWS because it could not influence construction of the roadway for the benefit of the spotted owl:
In light of the statute‘s plain language, the agency‘s regulations, and the case law construing the scope of “agency action,” we conclude that where, as here, the federal agency lacks the discretion to influence the private action, consultation would be a meaningless exercise; the agency simply does not possess the ability to implement measures that inure to the benefit of the protected species.
Id. at 1509 (emphasis added).
Under Sierra Club, to survive a Rule 12(b)(6) motion to dismiss, EPIC must allege facts to show that the FWS retained sufficient discretionary involvement or control over Simpson‘s permit “to implement measures that inure to the benefit of the” marbled murrelet and the coho salmon. Id. Although EPIC contends its complaint satisfies the Sierra Club test, its first line of attack is to avoid that test by arguing instead that Pacific Rivers controls the outcome of this case. We disagree.
Pacific Rivers held that the Forest Service was obligated to consult with the NMFS upon its listing of the Snake River chinook salmon as threatened because the Forest Service‘s Land Resource Management Plans (“LRMPs“), which establish fifteen-year plans for government lands, “have an ongoing and long-lasting effect even after adoption” and therefore “represent ongoing agency action.” 30 F.3d at 1053. Simpson‘s incidental take permit is not analogous to the LRMPs at issue in Pacific Rivers. LRMPs are comprehensive management plans which govern agency action in forest planning decisions. The Forest Service has plenary control in this area because it is the agency charged with promulgating, approving and implementing LRMPs on Forest Service land. In contrast, Simpson‘s ESA section 10 permit, like the right-of-way agreement in Sierra Club, involves agency authorization of a private action and a more limited role for the FWS. In such a case, the issue of ongoing agency involvement turns on whether the agency has retained the power to “implement measures that inure to the benefit of the protected species.” Sierra Club, 65 F.3d at 1509. Sierra Club, not Pacific Rivers, controls the present case.
Addressing the Sierra Club test, EPIC argues that the language of the HCP reserves to the FWS discretionary involvement and control to such an extent that it must reconsult on the impact of Simpson‘s spotted owl permit on marbled murrelet and coho salmon. Most significantly, EPIC cites a passage from the HCP‘s section on mitigation measures captioned “Overall Resource Management.” This passage states that “[i]n addition to addressing the specific needs of the spotted owl, Simpson‘s THPs submitted to the State of California will be designed to . . . [m]odify silvicultural systems as appropriate to ensure compatibility with the habitat requirements of other species found within Simpson‘s ownership that are considered sensitive by state and federal regulatory agencies.” HCP at 195.
EPIC argues this assurance obligated Simpson to benefit species that might be listed as threatened after Simpson‘s permit was granted, including marbled murrelet and coho salmon. We disagree. The sentence in the HCP on which EPIC relies was one of numerous mitigation measures set forth in the HCP “to ensure protection of spotted owls as per state and federal laws and to mitigate and minimize, to the maximum extent practicable, the potential effects of timber harvesting on the resident owl population.” Id. at 192. The most reasonable interpretation of the promise to “[m]odify silvicultural systems” is that the language means Simpson will modify silvicultural systems to accommodate other currently listed species, not species that might subsequently be listed. As the FWS points out, nowhere in the various permit documents did the FWS retain discretionary control to make new requirements to protect species that subsequently might be listed as endangered or threatened.6
EPIC also argues that other provisions of the HCP and IA authorize the FWS to require protection for species other than owls. The provisions to which EPIC refers identify thresholds for the owl population that trigger plan modifications and corrective measures, and establish a contingency plan when thresholds are exceeded or unforeseen events occur. The provisions also allow the FWS to review corrective action to eliminate plan deficiencies, suspend the permit for significant violations or breaches of the permit, and incorporate revisions to the HCP as necessary to ensure that the conservation goals of the HCP are met. See HCP at 203-05; IA at 15-17, 22. None of these provisions addresses the scope of the FWS‘s authority to implement measures to benefit species other than the spotted owl.
For example, one provision of the IA allows the FWS to review annual reports and “notify Simpson of any deficiencies in the report or in permit compliance, specifying what additional information or actions are required to correct those deficiencies.” IA at 15. This provision gives the FWS the ability to seek further information, to notify Simpson of noncompliance, and to provide guidance on how to cure those deficiencies. It does not give the FWS the power, however, to act to benefit marbled murrelets or coho salmon.
Similarly, the IA provision allowing the FWS to revise the contingency plan “as may be necessary to ensure that the conservation goals of the HCP are met” does not expand the conservation goals of the HCP to include reinitiation of consultation to determine the permitted activity‘s effects on the marbled murrelet and coho salmon. Id. at 17. Instead, it allows the FWS to revise the contingency plan to protect spotted owls “in the event of unforeseen occurrences or if the reproductive success rates [of spotted owls] fall below thresholds established” by the IA. Id. at 16. The IA also allows the FWS to suspend the permit “[i]n the event of any significant violation or breach of the Permit or this Agreement.” Id. at 22. However, as the FWS points out, “this provision authorizes remedies for breach, not discretionary power to demand additional measures to protect new species.”
In sum, none of the provisions of the HCP or IA gives the FWS the power to reinitiate consultation on Simpson‘s spotted owl permit to impose measures to protect the marbled murrelet or coho salmon. Nevertheless, EPIC contends, relying on Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1126 (9th Cir. 1998), that so long as a permitting agency maintains “some” discretionary control, it has a duty to reconsult under section 7(a)(2). EPIC argues Houston demonstrates that “existing contracts and permits that are in no way related to the ESA or do not provide mechanisms to protect threatened and endangered species may require alteration if necessary to comply with the ESA.” EPIC Opening Br. at 37. We do not read Houston as supporting EPIC‘s argument.
In Houston, we held that the Bureau of Reclamation was required to consult with the NMFS because its renewal of water contracts, which was statutorily mandated to be on “mutually agreeable” terms with water purchasers, involved agency discretion to set the contract terms. Negotiating and executing contracts constituted “agency action.” Id. at 1125-26. The Bureau retained the requisite discretionary control because, depending on the outcome of the consultation, it had the discretionary power to decrease the total supply of water available for sale and thereby to decrease the amount of water granted in the renewed contracts. See id. at 1126. Therefore, the Bureau was required to initiate consultation if its action might affect a listed species.
We did not suggest in Houston that once the renewed contracts were executed, the agency had continuing discretion to amend them at any time to address the needs of endangered or threatened species. Houston is inapposite.
V.
The fact that Simpson‘s spotted owl permit does not require reinitiation of consultation under section 7 of the ESA to consider the permit‘s effects on marbled murrelets or coho salmon does not mean that Simpson may take those species. Unless Simpson receives incidental take permits for those species, it is prohibited from taking them. See
VI.
Because the FWS has not retained discretionary control over Simpson‘s incidental take permit that would inure to the benefit of the marbled murrelet or the coho salmon, the FWS is not required to reinitiate consultation to consider the permit‘s effects on those species. The district court‘s judgment dismissing EPIC‘s lawsuit is
AFFIRMED.
This case concerns a federal agency‘s affirmative duty under Section 7 of the Endangered Species Act (“ESA“),
The plain language of
Even under the more demanding test outlined in Sierra Club, FWS has a duty to consult. FWS retains sufficient control over Simpson‘s permit that it could take steps which “inure to the benefit” of the coho salmon and the marbled murrelet. 65 F.3d at 1509. First, the Implementation Agreement (“IA“) gives FWS authority to suspend Simpson‘s incidental take permit “[i]n the event of any significant violation or breach.” IA at 22. If Simpson fails to honor its obligations, FWS can suspend the permit until appropriate remedial measures are taken. FWS‘s authority is not limited to protecting the northern spotted owl. Under the terms of the agreement, Simpson promised to implement a series of mitigation measures designed specifically to benefit other species. For example, Simpson‘s Habitat Conservation Plan (“HCP“) includes commitments to retain 50 to 70 percent canopy and 50 percent ground cover along Class I and Class II streams, and to design roads that minimize the impact and number of stream crossings through riparian areas. See HCP at 194. These promises were not limited, as the majority assumes, to benefit species already listed as threatened, but were worded broadly to encompass “other species of concern.” Id. Even under the majority‘s narrow reading of Simpson‘s commitment to “ensure compatibility with the habitat requirements of other species . . . that are considered sensitive by state and federal regulatory agencies,” HCP at 195, the marbled murrelet is covered. The marbled murrelet was considered “sensitive” by federal and state regulatory agencies as early as June 1991, more than one year before FWS issued the permit to Simpson. See 56 Fed. Reg. 28362, 28365 (June 20, 1991).
In addition, FWS‘s general permitting regulations provide broad discretion for the agency to amend an incidental take permit. Under
Because FWS retains power to amend Simpson‘s permit for just cause or suspend the permit if Simpson does not design its timber harvesting in such a way as to mitigate damage to other threatened species, consultation could obviously lead to measures that benefit the coho salmon or marbled murrelet. Under these circumstances, FWS is obligated to reinitiate the consultation process in order to fulfill its duties under section 7 of the ESA. Therefore, FWS‘s failure to reinitiate formal consultation violates the APA because the agency has acted without observance of the procedure required by law. See
The majority holds instead that FWS‘s discretion is insufficient to trigger its duty to consult because the permit does not authorize FWS specifically to act for the benefit of the marbled murrelet and the coho salmon. In other words, since the permit does not explicitly give FWS the power to implement measures to protect these two species, the agency is powerless to require measures that inure to their benefit. The majority effectively reads a new requirement into the regulation. Even as interpreted in Sierra Club,
The majority appears to be concerned about whether Simpson had sufficient notice that FWS might exercise its discretion for the benefit of newly listed species. This concern obscures the purpose behind the consultation requirement. Whereas section 9 of the ESA makes it unlawful for anyone to “take” an endangered species,
In any case, Simpson had sufficient notice based on the plain language of the regulation and its own commitments in the permit application. Simpson‘s HCP included promises that would clearly appeal to FWS regulators. By promising not only to mitigate harm to the spotted owl, but other species of concern as well, Simpson made its application more attractive. And Simpson received a substantial benefit in exchange for these promises--the right to take northern spotted owls without running afoul of the ESA. Simpson accepted its permit subject to certain background conditions, one of which imposes an ongoing duty on FWS to insure that its actions do not jeopardize threatened species. We cannot ignore those provisions without in some way violating the bargain. To hold otherwise would rewrite the permit and give a windfall to Simpson in the form of extra assurances that were not bargained for in the original agreement.