*1 GUARDIANS, Plaintiff- FOREST
Appellant,
UNITED STATES FISH AND SERVICE,
WILDLIFE
Defendant-Appellee, Peregrine Fund, Defendant-
Intervenor-Appellee. Fund,
Environmental Defense
Mexico Cattle Growers’ Asso
ciation, Amicus Curiae.
No. 08-2226.
United States Court of Appeals,
Tenth Circuit.
July *3 (Melissa J. Hailey
James Tutchton with briefs), Guardians, him the on Forest Den- CO, ver, for Plaintiff-Appellant. Katselas, Attorney, Anna T. U.S. De- Justice, partment of Environment & Natu- Division, ral Resources Washington, D.C. (John Cruden, Acting C. Assistant Attor- General; Thurston, ney M. Joseph Alice Kim, McLachlan, H. and Brian Attorneys, Justice, Department U.S. Environment Division, & Natural Washing- Resources D.C.; ton, Tade, Justin Attorney-Advis- S. or, Interior, Department U.S. Office, Regional Southwest Solicitor’s brief), her Defendanb-Appellee. (Faith Frank M. Bond Kalman Reyes brief), with him on the Slattery, Simons & LLP, Fe, NM, Sante for Defendant-Inter- venor-Appellee. Grossman, De- and AFFIRM the Environmental U.S.C. district
Daniel Boulder, CO, petition Fund, court’s denial of review. as Amicus Curi- fense Appellees. support ae in I. BACKGROUND Brack Kathryn
Karen Budd-Falen LLC, Morrow, Offices, Law Budd-Falen Fal- Forest Guardians contends WY, Cheyenne, for New Mexico Cattle con, species, an endangered per- should be Association, Amicus Curiae Growers’ repopulate mitted to the United States Appellees. support naturally, enjoying protection while full yet-to-be-designated critical habitat un- McKAY, GORSUCH, Before *4 hand, the ESA. On the other der HOLMES, Judges. Circuit Fund, Peregrine The which intervened and action, cap- in this advocate the release of HOLMES, Judge. Circuit into tive-bred Falcons southern New Mexi- denial appeals Forest Guardians1 co, decreasing protec- the Falcon’s while and the U.S. Fish petition its for review of tion the ESA. task is under Our (“FWS”) re- decision to Wildlife Service’s strategy scientifically which more decide experimental pop- introduce a nonessential sound; rather, we must review the 10® endangered Aplomado Northern ulation of rule under the Administrative Procedure (“Falcons”) into New Falcons southern (“APA”) if the Act to determine rule was Mexico. Forest Guardians contends promulgated in accordance with the ESA 10(j) of the En- violated section FWS and NEPA. (“ESA”), dangered Species Act 16 U.S.C. 1539®, it allegedly promulgated when Extirpation and A. Possible Restora- Falcons captive-bred final rule to release in the tion of the Falcon United range species of the within the current States wholly separate in an is not area Falcon, “perhaps from Falcon The one of our most geographically existing argues prey,”2 colorful birds of Determination of Forest Guardians also population. Falcon To Aplomado the National Envi- the Northern Be that the FWS violated (“NEPA”), 6686, Endangered Fed.Reg. Policy Species, 42 51 ronmental Act U.S.C. 1986) (to (Feb. 25, 4321-4370Í, at 50 §§ when it to release be codified decided 17), pt. subspe- completing Falcons its C.F.R. is medium-sized captive-bred before historically of the lo- impact analysis. aplomado Because cies falcon “savannas, prairies, coastal cated allegedly predetermined had FWS analysis, higher-elevation grasslands” stretch- its NEPA Forest outcome of across United ing failed to the southwestern States Guardians claims that through and into Guatemala and requisite take the “hard look” at the envi- Mexico Keddy-Hector, proposed Nicaragua. action. Dean P. impacts ronmental its Falcon, argu- The Birds of North rejected Aplomado court both district (2000); America, 549, 1, jurisdiction exercise under 28 No. accord ments. We Appellant events at in this to refer to the as Forest Guardians 1. Since the time issue WildEarth Guardians. rather than Appellant appeal, Forest Guardians merged group changed its with another Peregrine describes Fal- 2. The Fund also keeping In name to WildEarth Guardians. beautiful, raptor.” "a con as charismatic practice with the of the district court and (hereinafter Peregrine Br. at 1 "TPF Fund throughout opinion parties, we continue Br.”). pesticides Aplomado Determination of the Northern ranges within the the falcon an Endangered Species, Falcon to Be prey species.” some of Id. at only 6686. Fed.Reg. at The Falcon is the see also id. at The Secretary subspecies aplomado falcon to be concluded that “the is sensitive to recorded in the United States. Establish- degradation habitat and chemical contami- Experimental ment of a Nonessential nation, type and needs the of active man- Population Aplomado of Northern Falcons agement protective provided measures Arizona, Fed.Reg. New Mexico and for in the Id. at [ESA].” 2006) (to 42,298, 42,298 (July be codi- In 17). listing endangered, the Falcon as pt. fied at 50 C.F.R. Secretary not designate did a critical habi- the Secretary Interior tat.4 Secretary Id. The found such a (“Secretary”) listed the Falcon as endan- designation prudent “[w]as not ... be- gered3 it extirpated because had been cause no nesting there known active [wer]e Arizona, range from its historic past years areas within the the Unit- Mexico, approximately and Texas for thir- ed ty Although States.” Id. the Falcon years and was con- known to nest *5 Mexico, portions Mexico. Determination the tinued to in of Northern reside of the Aplomado Falcon Endangered To Be an Secretary noted that habitat is “[c]ritical Species, 1986, Fed.Reg. 51 As of not in designated juris- areas outside U.S. the had not in Falcon nested United diction.” Id. (citing 50 C.F.R. States or northern Mexico since the dis- 424.12(h)). § covery Mexico, of nests near Deming, New In September 2002, Forest Guardians northern Chihuahua 1952. Id. petitioned designate the FWS to critical Secretary determined that the main Falcon, habitat for the pursuant to 16 leading factor to the disappear- Falcon’s 1533(b)(3)(D)(), § U.S.C. pair after of ance was “habitat degradation due to successfully Falcons brush nested in Luna encroachment” Coun- and that “the most ty, serious threat New Mexico in th[e] falcon 2001 and bred chicks in [wa]s continued of DDT persistent use and other 2002. Forest Guardians contended that here, habitat; exception 3. With an agencies not relevant prevent critical both must ESA 'endangered states that spe- "[t]he term species extinction of the and allow for its any species danger cies’ means is which of recovery may species so that the be removed throughout significant extinction por- all or a ("delist- endangered from the of species list range.” 1532(6). tion of § 16 U.S.C. ed”). Cables, Ecosys. Ctr. Native v. 509 for 1310, (10th Cir.2007) F.3d (citing 16 4. Critical habitat is specific defined as "the 1532(3), (5), 1536(a)(2)). §§ U.S.C. Although geographical areas occupied within area "[c]ritical specified habitat shall be by species, at the time isit listed ... on prudent maximum extent and determinable at which physical biological are found those or species proposed the time listing,” is 50 (I) features essential to the conservation of the 424.12(a) (2008), designation § C.F.R. of crit- (II) species may require special which appropriate ical habitat not is if it "would not management protection,” considerations species,” be beneficial "specific id. as well geo- areas outside the 424.12(a)(l)(ii). Moreover, § graphical occupied species "[c]ritical by area habi- at the upon designated time it is tat shall be foreign listed a determination not within Secretary are such areas essential countries or in other areas outside of United species.” the conservation of the 16 424.12(h). U.S.C. jurisdiction.” § States Criti- 1532(5)(A). § Designation areas as critical later, may cal habitat be established even it if requires agencies habitat federal to ensure previously designated. not 16 U.S.C. that their actions are to result in the 1532(5)(B). § destruction or adverse modification of the
697 Population of Northern Experimental a critical habi- designate the FWS should Mexico, Arizona, Falcons New Mexico and Aplomado New for the Falcon tat Availability Draft long- Environ- the Falcon was no Arizona and Texas because Assessment, 6819, Fed.Reg. In States. 70 extirpated from the United er (Feb. 2005) (to 9, codified wild Falcons were subsequent years, other 17). 10(j) in that area. Never- sighted pt. Section allows increasingly C.F.R. respond to the theless, release an Secretary the FWS did to authorize the endangered petition. range “outside the current of such species 10(j) Proposed Rule B. if Secretary determines species further the conservation release will rule under such proposed species.” rein- such U.S.C. that would 10(j) ESA section )(2)(A). 1539(j Ordinarily, popu- such a § Falcons into captive-bred troduce “shall as a threatened to es- lation be treated attempt Arizona in Mexico and endangered than as an species,”6 of Fal- rather resident tablish viable 1539(j)(2)(C). If ex- species. “an[ a Nonessential ] cons.5 Establishment ("The designed 10(j) protect will ESA is and con- Although we discuss section detail, concept infra, endangered and threatened greater we introduce the serve by noting ecosystems upon they may that section which be con- of a rule added)); Secretary provides (emphasis with "flexibil- see N.M. ESA served.” also managing the ity reintroduc- v. & and discretion Cattle Growers Ass'n U.S. Fish Wildlife Serv., Wyo. (10th Cir.2001) endangered species.” Bu- Farm tion Babbitt, ("The process reau Fed’n forth in the ESA set for the *6 Cir.2000). (10th regulation, "By the Secre- protection endangered spe- of and threatened identify populations, tary can ecosystem of their cies and the conservation populations are es- determine whether such begins by Secretary granting the of the Interi- and, nonessential, FWS, or, consistent through authority sential or species to list the determination, provide mecha- control protection endangered need of as either in {i.e., takings) added)). However, the controlled where (emphasis nisms threatened.” permit exer- would not otherwise the regulatory leeway [ESA] FWS more con- has against of control measures listed cerning crafting implementation cise such of species.” Id. species. partic- protections threatened ular, protections automatically ex- ESA’s species designat- statutory to provides 'threat- tend mandate "[t]he 6. The ESA term endangered, they but do not do with any species which is ed as so species' ened means threatened; regard species as likely endangered species with- to denominated to become throughout through rulemaking that or a it is administrative in the future all foreseeable a portion range.” the latter receive measure of the ESA’s significant of its 16 U.S.C. against 1532(20). Congress’s enacting protections including protection tak- goal § in — they ings do so unquestionably safeguard to both extent ESA was —and species. protections to nec- endangered See id. the FWS considers be and threatened ("It 1531(c)(1) essary appropriate § be the for their conservation. is further declared to Chapter Cmtys. depart- policy Congress all See Sweet Home a Great Federal of Babbitt, 1, ("On (D.C.Cir.1993) agencies seek Or. v. 1 F.3d ments and shall to conserve face, 1538(a)(1) species applies its endangered species 16 U.S.C. and threatened including prohibitions, prohibition against utilize their authorities in further- shall (em- endangered species. takings, only Howev- purposes chapter.” this ance er, added)); apply Silvery allows the FWS to these phasis Rio Minnow v. ESA Grande well.”); Reclamation, species, prohibitions to threatened as Bureau Smith, Cir.2010) Margaret (10th A. Moote & Cecil ("Listing endan- Andrew A. as Schwalbe, Species Endangered Act at § 1533 R. The gered under 16 U.S.C. or threatened Analytical Survey Twenty: Federal En- triggers provisions.”); An ESA’s Gordon Protection, (10th Cir.2003) Norton, dangered Species 33 Nat. Re- ... in perimental population sightings determined curred New Mexico with from [is] not essential to exis- be continued decade Id. every since 1970s.” How- species,” may Secretary tence of ever, critical for that designate popula- habitat may at least some of these sightings be (2) (ii) (C) § 1539<j) (emphasis tion. add- Id. juvenile birds that are dispersing from ed). proposed The FWS intended the in existing populations the Mexican state goals to fulfill of the identi- rule one Any significant of Chihuahua. natural viz., Plan, Recovery fied in the Falcon’s re-colonization of habitats in Arizona the Falcon United reestablish New would take Mexico dec- States. ades, all, if it occurred at because the proposed captive- The release reproductive rate of the designate
bred Falcons and “to rein- Mexico has declined.... troduced nonessential ex- perimental population according section of the Establish- [ESA].”7 presence FWS concluded that the Experimental ment of a Pop- Nonessential proposed Falcons nonessential ex- Aplomado ulation of Northern Falcons perimental population area too mini- was Availability New and Arizona and Mexico population. mal to constitute a See id. at Assessment, of Draft Environmental surveys 6822. Based on annual Falcon support at 6819. In Fed.Reg. pro- of this Mexico, the first documented success- rule, posed 10(j) the FWS stated that “the nesting ful attempt fifty years occurred influence, pesticide continued shrub en- Mexico, in Luna County, New in 2001. Id. grasslands, croachment into Chihuahuan nesting pair fledged That three chicks in areas, prey low densities avian some However, 2003, only “[i]n sin- great and the presence increased gle female was seen in the area [Falcon] ..., preys horned owl which upon the nest.” Id. “In pair [that] falcons falcon, may limiting recovery of the was monitoring seen one site visit and a species.” Id. at FWS noted single falcon seen on several other that there had been “no documented nest- *7 Id. occasions.” ing attempts by wild birds in New Mexico “Based on definitions of ‘population’ between and 2001 ... no veri- [and] sightings experimental fied used other population falcons Arizona since ..., 1940.” Id. The FWS rules acknowledged [the FWS] that a de- believe[d] “[s]poradic sightings of falcons oc- have termination that a falcon population al- (1993) ("Threatened (in J. sources existing populations were three of Falcons species Mexico, Chihuahua, protection taking do not receive from eastern in northern Mexi- automatically, Secretary co, may Texas), but the make and in southern so threat of "[t]he any portion or all [of of section 9 single ESA] catastrophic extinction from a event” applicable required for their conserva- experi- decreased was "loss tion.”); 1533(d) ("When- see also 16 U.S.C. population appreciably w[ould] mented not re- any species ever is listed as a threatened duce likelihood of falcon survival Secretary reg- States,” (2) shall issue such "[a]ny United [Falcon]s lost necessary as he ulations deems and advisable during the attempt reintroduction c[ould] provide spe- to for the conservation of such captive replaced through breeding.” Estab- cies.”). Experimental Pop- lishment of a Nonessential Aplomado ulation Northern Falcons in 7. The experimental FWS concluded Availability New Mexico and Arizona and Assessment, population was to Fed.Reg. nonessential the continued Draft Environmental (1) existence of the Falcon because: there at 6823. Chihuahua, fledgling low success designated “[t]he in a area would ready exists successfully- declining breeding of two and stable or numbers minimum require a multiple over pairs suggest falcon there ... that birds this area reproducing that “[bi- Id. The concluded enough dispersers FWS years.” provide are not (citation is not nor- ‘population’ term ologically, the New Mexico.” Id. populate and so the single pair, mally applied omitted). New Mexico could be consid- birds in
few the Chi- disconnected from emigrants ered re in The FWS determined Moreover, Id. population.” huahuan Falcons as a captive-bred troduction three, “two, or even birds noted that FWS nonessential self-sustaining popu- are considered Id. at help to Falcon. would restore need a Self-sustaining populations lation. particular, 6819. In FWS noted individuals to avoid number of sufficient Peregrine captive-bred Fund’s Fal depression and occurrences of inbreeding propagated cons “were intention extinction; range this can local chance a wild re-establishing within ” breeding individuals.... 50 to 500 from recovery United States achieve Id. goals.” see also id. at at (outlining procedure raising releas Furthermore, only did the FWS con- Falcons). ing also observed FWS no current wild Fal- clude that there was type that this of reintroduction been “ha[d] that repo- but it also found population, con species, including successful other “[n]atural, unlikely because pulation falcon ... California peregrine [and the] i.e., unaided, of New falcon recolonization Moreover, the FWS condor.” dependent Arizona would be Mexico and successfully reintroduced Falcons to had areas, from other dispersing falcons” refuge two national wildlife areas south Id. at 6824. “The half- including Mexico. agreement8 under safe ern Texas harbor century of falcons Arizona and absence Id. Based on Peregrine with The Fund.9 Chihuahua, suggests that the New Mexico experience, “believe[d] Mexico, population cannot recolonize falcon it is to accelerate the establish possible and Arizona with sufficient New Mexico in the Id. breeding population ment of population.” numbers to establish captive- addition, through Southwest releases the FWS found Availability agreements voluntary New Mexico and Arizona and are 8. Safe harbor Assessment, private agreements between Environmental 70 Fed. Draft landowners, agree whereby the landowners *8 population, Reg. at 6822. From that recovery of a or threatened contribute in 1004 Falcons had been released southern endangered exchange species in for assur- Falcons, at Id. at Of those Texas. 6821. require the FWS will not other ances that thirty-nine in pairs had been established least management by activities the landowners adjacent Texas area in Mex- southern FWS, consent. See Safe Harbor without their produced pairs Those had more than ico. Id. Landowners, Agreements for Private at 1 young. The FWS concluded that Id. http://www. (Sept.2009), available popula- a wild releases had established these fws.gov/endangered/esalibrary/pdflhar- Id. Falcons in that area. at 6822. tion of borqa.pdf. twenty-five Falcons had One hundred and private ranches in been released also rule, proposed The At of the Per- the time Texas, pursuant to a safe harbor western pairs breeding forty-six egrine had Fund successfully fledged agreement, had captive-breeding program. Es- in its Falcons young. Id. Experimental of a Nonessential tablishment Aplomado Population Falcons in of Northern Id. at see also comment. Id. at raised birds.”10 id. 6825. After the (“We fully expect pro- public period, the comment FWS issued a posed experimental popula- [nonessential 26, 2006, July 10(j) final rule on which will in the establishment of a result tion] plan captive-bred finalized its to release self-sustaining, population, resident which Falcons into southern New Mexico as a recovery spe- will contribute to experimental population. nonessential Es- cies.”). tablishment of a Experimen- Nonessential geographic boundary pro- The Population tal of Northern Fal- Aplomado experimental popula- posed nonessential Arizona, 71 cons in New Mexico and Fed. all tion was to cover of New Mexico and 42,298. Reg. at Arizona, though even Falcons would be rule, final con- again released within New Mexico. Id. at cluded there was no wild The pro- FWS concluded that the Falcons in New Mexico Arizona. posed geographically separate area was surveys “[flormal FWS indicated that populations, other required from Falcon sightings and reliable ... that a show by 10(j), geo- section the “area is because small number of in graphically existing isolated from falcons have occurred falcon Mexico, populations and Texas a suf- New with a sight- Mexico small number of preclude significant ficient distance to con- ings occurring every decade since the tact populations.” between Id. at 6823. 42,299. 1960s.” Id. at The FWS also Although “taking” endangered species “[r]epeated follow-up by highly noted that normally ESA, prohibited by qualified, experienced surveyors falcon proposed person rule would allow a to revealed ap- that none of falcons [those] within proposed “take”11 Falcon area peared to be local or defending residents “provided that the take is unintentional territory.” Id. The FWS concluded negligent and was not due to conduct.” sightings Falcon in New Mexico and Id. at 6824. predicted The FWS that tak- “may represent Arizona dispersing falcons ings would be rare because “the reintro- from Chihuahua that compatible duction is with existing land opportunistically were foraging areas practices use for the area.” Id. rich in prey due to vegetative growth from precipitation.” Id. C. Final Rule prepared emphasized The FWS The FWS draft environmen- the nones- (“EA”) tal public assessment and solicited sential experimental population would be 10. The FWS concluded that safe harbor in those states are suited more to the Falcon’s Texas, agreements, it upon which relied ecology private behavioral than lands. would not work well in this instance. “De- proposed promulgation FWS therefore spite the relative success of the falcon releases rule, private pub- covering both Texas, [the FWS] believe[d] the Safe Har- lands, relying lic rather than on safe harbor Agreements bor used to release falcons in agreements. Establishment of a Nonessential [we]re Texas not the best mechanism for es- Experimental Population Aplo- of Northern tablishing falcons New Mexico and Ari- Arizona, mado Falcons in New Mexico and *9 zona.” of a Establishment Nonessential Ex- 42,301. Fed.Reg. at perimental Population Aplomado of Northern Falcons in New Mexico and Arizona and 1532(19), “taking” Under U.S.C. a Availability of Draft Environmental Assess- harass, harm, hunt, pursue, Falcon means "to ment, Fed.Reg. at 6824. Safe harbor shoot, wound, kill, capture, trap, collect” or lands; agreements apply only private to not the Falcon. public only predominant are lands more Arizona, public New Mexico and but the lands breeding approximately 25 to 35 fal- from natu- wholly separate geographically pairs in Mexico. These Mexico fal- at con Id. occurring populations. Falcon rally (100 (km) 160 kilometers cons occur 42,300. explained that The FWS (mi)) or south of the United miles more (l)[t]his falcon, sub- the the case of [i]n border. States disperse up has known to species been Moreover, (2) that “the kilometers, the FWS noted it be virtual- Id. would to 250 Mexico could sighted birds in New naturally oc- few preclude to ly impossible dispersers from the Chihua- from intermin- considered falcons curring individual 42,300-01. at Be- population, population.” huan Id. experimental gling with the (3) that it no pair “ha[s] the FWS asserted been one cause there has authority manage in a within the to a dif- one time reproduced has it “the country,” concluded that ex- experimental population] ferent [nonessential group of a in Mexico should not Designation 10(j) [nonessen- of a istence area. management population] requires preclude conservation experimental tial in the States in order to “wholly animals be falcons United reintroduced that the 42,301. recovery.” at existing population. species achieve Id. separate” any from of falcons pair We do consider planned to Accordingly, FWS re- County to Luna that bred captive-bred Falcons into New Mexi- lease Therefore, the a population. constitute every year or during spring summer co surrounding counties exclusion pro- progress to of the evaluate the 10(j) designation pair the 2002 from 42,298, 42,- every years. five Id. at gram identify necessary. exper- We is not 42,309, 42,311. 301, 42,302, Peregrine The found all falcons imental surveys of Fund was to conduct annual within [nonessential record surrounding areas to locate and area, including rein- population] 42,307-08. At surviving birds. Id. disper- lone falcons trod[ueed] rule, promulgation time We offspring. and their believe sers “anticipate[d] releasing falcons manner which this is best 42,310. years or more.” Id. at The pro- the falcon reintroduction manage under “[e]fforts th[e] FWS stated recovery. gram to achieve or if it is 10(j) rule will cease when deter- longer no furthers program mined that the regulatory definitions Relying Id. of the falcon.” Id. The the conservation FWS concluded “population,” rule remain in “the FWS intended popu- not constitute a dispersers “lone do species im- until the status of the place be- part population” lation even a listing longer is no proves point a where spa- dispersers “are not common cause necessary, the falcon can ... be delist- arrangement tial sufficient interbreed 42,311. ed.” population.” with other members omitted). (internal Indi- quotation marks releasing Peregrine began The Fund animals, do emphasized, vidual Falcons into New Mexico captive-bred Id. Accord- population. constitute July grant agreement As ingly, Peregrine the FWS and between Peregrine Fund Fund reflected that single pair Mexico falcons
[t]he $295,793 implement only once had received successfully reproduced absence) (after appeal, in a As we related 50-year program. is nei- noted some “has released Peregrine nor in com- The Fund self-sustaining, group, ther at least 50 altogether, of which 100 birds relationship group with the spatial mon *10 successfully Aplomado in the Falcon in- independence have reached Northern to begun repro- wild some have the cludes Southern New Mexico and North- rel. Chihuahua, R., 12, New Mexico ex Richardson v. duce.” ern Mexico.” Doc. ¶ ¶ 683, (Am. Mgmt., 83, Land Bureau Compl., Sept. filed of (10th Cir.2009). 2006). appeal, this Per- Forest alleged Guardians also it eleven egrine Fund claims that released the violated it FWS had NEPA because 2006, thirty-nine Falcons Falcons predetermined had the outcome of its envi- seventy Falcons analysis. ronmental granted The district court petition the Litigation D. The Instant for agency designation review as to the of 27, 2006, On March Forest Guardians critical habitat Texas and ordered the an filed action the District of New Mexi- thirty within days. FWS to answer That compel to its co to the FWS answer 2002 ruling is not appeal. before us on petition requesting designation of criti- petition court also all denied as to of Arizona, cal habitat for the Falcon claims, upholding Forest Guardians’ other Mexico, and Texas.12 Forest Guardians 10(j) rule under ESA finding rule, challenged 10(j) alleging also that the predetermined FWS had not the FWS had violated the APA because analysis.14 of ap- outcome its NEPA This the rule did not ESA comply peal timely followed. Specifically, NEPA.13 al- Forest Guardians leged provi- the FWS had violated II. DISCUSSION (1) 10(j) sions section that: ESA require that experimental population appeal, an argues On Forest Guardians (1) only released range 10(j) “outside the current that: the FWS violated section (2) species”; experi- such by state releasing experimental ESA remains captive-bred Falcons inside only long “wholly as it is separate geo- as the current range and not graphically nonexperimental popula- wholly separate from geographically popu- from (2) species.” Falcons, tions the same Forest Guard- lations wild predicated ians ESA arguments these on violated NEPA conducting a biased range the assertion that current analysis “[t]he did constitute a “hard joined by Although 12. Forest Guardians was originally only Chihua- the action encom- Alliance, huan Desert Conservation Public passed challenge to the FWS's to failure Employees Responsibility, for Environmental respond petition, to the critical habitat Forest Council, Club, New Mexico Audubon Sierra original complaint Guardians amended its af- filing and Southwest Environmental Center in ter the rule finalized to include against they this action the FWS. Because are challenges instant to the rule. parties appeal, refer Forest Guardians. upheld 14. Because the district court though originally Even this action was filed rule, peti- denied it as moot Forest Guardians' complaint, parties in the form of later involving tion review for the claims agreed proceed properly had as if it been designation of critical habitat New Mexico petition agency filed as a for review of action. parties correctly and Arizona. The conceded Commodity Corp., See Olenhouse v. Credit designated that those states cannot be simul- (10th Cir.1994). On Oc- taneously experimental pop- as a nonessential 22, 2007, tober Forest filed an Guardians area ulation and as critical habitat opening petition brief on the merits 1539(j)(2)(C)(ii). See 16 U.S.C. Falcon. review, arguing judg- it was entitled ment on all of its claims. *11 by biologists using surveys expert [FWS]- impact of the look” at survey protocols designed to approved rule, intend- 10(j) but rather was proposed Aplee. Falcons.” maximize detection of outcome. predetermined ed to reach Moreover, Br. record reflects “[t]he at 16. pursuant Exercising jurisdiction our repeatedly endeavored [FWS] that the disagree with Forest § U.S.C. every sighting follow-up credible Falcon the district court’s affirm Guardians and whether Falcons were ascertain agency for review of petition denial of territory.” defending a Id. resident and/or action. The record con- argues “[t]he FWS supporting [its] tains extensive evidence 10(j) Rule and the ESA A. The despite sightings occasional conclusion that validity 10(j) We turn first experi- in the [nonessential of lone Falcons experimen- establishing rule a nonessential population] area and an isolated captive-bred Falcons in tal one breeding pair occurrence Fal- Guard- New and Arizona. Forest Mexico interbreeding, self-sus- cons section that the rule violates argues ians taining population did exist it because authorizes of the ESA Mexico, part as continuous swath or captive-bred Falcons within the at release Id. 23. The FWS also otherwise.” position and in area that Forest Guardians’ is range of contends current statutory interpreta- “predicated upon separate wholly geographically that is not rejected by tion this Court squarely Falcon population. from a cross-border (cit- Wyoming at Farm Bureau.” (2)(A). Forest 1539(j)(l), See 16 U.S.C. Fed’n, 199 at ing Wyo. Farm Bureau reappear- that “[t]he contends Guardians 1231). by arguing The FWS concludes in New Mexico estab- ance of wild Falcons political that it has used boundaries within the Fal- the State is lished] ” areas, past designate is “a range’ because there con’s ‘current Federation, Wyoming Farm Bureau the bor- population span[ning] Falcon wild political the use of boundaries does Mexico.” der New Mexico and between ESA. violate the It Br. at 7. maintains Aplt. Opening agrees that the evi- Peregrine The Fund contains “abundant evidence” record “overwhelmingfly]” in the dence record support in New Mexico to sightings Falcon Br. action. TPF at 6. supports the FWS’s population. a cross-border the existence of Peregrine Fund adds that the success The id. Guard- see also at 8. Forest recovery “is far more of the Falcon’s position to ians that the FWS’s argues .... with the infusion of concentrated simply wrong,” “is id. at be- contrary produced captive number of birds.” Id. “there no substantial evidence cause Furthermore, Peregrine Fund posi- supporting [the] the Record FWS’s do have “[political maintains that borders Falcon population tion cross-border involving relevance considerations exist,” Consequently, id. at 13. does not of wildlife management conservation claims that Guardians FWS Forest laws, species, for the obvious reason among “did not make a reasoned choice rules, mat- regarding such practices Id. at 32. For- fairly conflicting views.” greatly differ on the two sides ters often alleges that the est also FWS Guardians Id. at 15. an international border.” ruling on its rule to avoid issued petition. critical habitat of Review 1. Standard court’s that its conclusions afford the district responds “We deference, but rath- particular no extensive decision were based “on results of *12 704
er,
Congress
review the rules and
has
clearly spoken
administrative
on the
independently.” Wyo.
delegated
record
Farm Bu-
issue before us
has
and
authori-
Fed’n,
ty
subject
reau
acted within the
[its]
467 U.S.
(1984).
prescribed procedures,
2778,
and
complied
104 S.Ct.
Id.
F.3d
arbitrary
capri-
“Review under the
“Congress
enacted
1973 to
[ESA]
is
scope,
cious standard
narrow in
but is
conservation,
‘provide
protection,
”
a ‘probing,
still
in-depth review.’ Soren-
restoration,
propagation
species
Commc’ns,
FCC,
son
Inc. v.
567 F.3d
fish, wildlife,
plants
facing extinc-
(10th Cir.2009)
Qwest
1221
(quoting
”
Fed’n,
Wyo.
tion.’
Farm Bureau
199
Int’l,
FCC,
Commc’ns
v.
Inc.
398 F.3d
omitted)
F.3d at 1231 (emphasis
(quoting
(10th Cir.2005)).
1222, 1229
An agency’s
93-307,
(1973),
S.Rep. No.
at 1
reprinted
action is entitled to a presumption of valid-
2989).
1973
U.S.C.C.A.N.
“Toward that
ity, and the petitioner challenging
ac-
end, the
Secretary
[ESA] authorizes the
tion bears the
of establishing
burden
the Interior
to
foreign
list domestic or
arbitrary
the action is
or capricious. Citi-
species
endangered
or threatened.”
Comm, to
Canyons
zens’
Save Our
species
Once a
or subspecies is listed as
(10th
Krueger,
1176
Cir.
endangered, it
protections
receives certain
2008).
ESA,
under
including
prohibition
context,
“Within this
we will set
against trading or “taking”
species.
[agency’s]
aside the
1538(a)(1);
factual determinations
§
U.S.C.
see
also
id.
they
1532(16)
if
are unsupported by
§
substantial
(defining “species” to include
Wyo.
Fed’n,
evidence.”
Farm Bureau
Secretary
“The
devel-
subspecies).
[must]
F.3d
1231. “Evidence is substantial in
op
implement
[recovery] plans ...
the APA
if
enough
sense
it is
to
if
justify,
the conservation and survival of endan-
the trial were to a
jury,
...,
refusal to
gered species
direct
unless he finds that
a verdict when the conclusion to be drawn
a plan
promote
such
will not
the conserva-
Olenhouse,
of fact.”
one
species.”
1533(f)(1).
F.3d at 1575
§
tion
“
(internal
omitted).
quotation
addition,
marks
‘The
agencies
federal
special
“assume
obligations
conserve,
substantial-evidence standard
al
does not
to
pro-
recover and
low a court
to displace
[agency’s]
species.”
Wyo.
tect
Farm Bureau
fairly
views, Fed’n,
choice between two
conflicting
Agencies
Congress their populations to reintro- ties to host such discretion broaden the FWS’s and threatened lands. endangered duce Farm ranges. Wyo. their historic into *13 (citing 199 F.3d U.S.C. Fed’n, at 1231-32.
Bureau 97-567, 1539©; H.R.Rep. § No. at 8 section Congress added particular, 10© (1982), reprinted in U.S.C.C.A.N. designate certain the authorize 2817). 2807, 2808, Designation popu- of a endangered of populations reintroduced “experimental” lation as also allows the “experimental as species and threatened Secretary “flexibility and discretion in id.; See see also U.S.C. populations.” of endan- managing the reintroduction “experimental population” § An 1539®. gered species.” Id. at 1233. ... authorized the “any population is brought challenge Guardians Forest when, only ... but Secretary for release view, because, in the rule “dramat- 10© as, is population such times the and at ically protection, ESA including weakened from no- geographically wholly separate protection, habitat for wild Falcons New of the same nexperimental populations short, Aplt. Opening at 7. In Mexico.” Br. “The 1539®(1). § species.” 16 U.S.C. is concerned because Forest Guardians the ... of Secretary may the authorize release Falcon to rule allows the be treated endangered spe- ... of an population public on land as threatened rather than range current such cies ... outside the takings incidental endangered, permits if determines that species Secretary the (although the Falcon not intentional tak- will the conservation such release further i.e., ings, hunting), reduces consultation re- 1539(j)(2)(A). § species.” of such quirements agencies concerning for federal any pop- authorizing release of “Before Falcon, prohibits designation Secretary identify ulation ... shall the Falcon in of critical habitat for New determine, the basis population Mexico and Arizona. See 16 U.S.C. information, available whether the best 1536(a), 1539(j)(2)(C); §§ 50 C.F.R. population or such is essential to 17.83(a)(2). § endangered spe- continued existence cies____” As this 1539©(2)(B). Challenge 3. Forest ESA Guardians’ Wyoming explained court Farm Bureau challenges the Forest Guardians FWS’s Federation: of its application “population” definition En- Congress section to the added 10© and, relatedly, facts case of this in 1982 dangered Species Act to address our suggests that FWS has misconstrued the Fish and Wildlife Service’s other Wyoming Farm Bureau Feder- decision politi- over agencies’ affected frustration Although parties appear ation. efforts opposition cal to reintroduction agree on the number of Falcons that have activi- to conflict with human perceived Mexico, they in New dis- been observed Although Secretary already had ty. pute the conclusion to be drawn from those species by intro- authority to conserve a The resolution of this observations. ESA current ducing it areas outside its challenge depends on whether the Falcons Congress hoped provisions range, Mexico constitute a cross- sighted industry’s mitigate section would 10© population of wild Falcons such border experimental populations would fears and, the establishment of nonessential development projects, halt experimental population in that area legal responsibilities of the clarification range” of the “outside current experimental popu- with the incumbent recognized “wholly separate geographical- and is not will not be as such ly” is, population. overlap. from the See in the area cross-border while That (2). § 1639(j)(l), recog- 16 U.S.C. will status nized outside the areas of overlap. ESA We first examine the to determine Thus, a population such shall be treated applying section appropriate method experimental only when the times 10(j). Wyoming As we noted Farm geographic separation reasonably are Federation, ESA Bureau does not de- e.g., migration predictable; pat- fixed “population,” fine the term nor does it terns, natural man-made barriers. A specify meaning phrases rele- experimen- is not treated as *14 is, appeal vant to this “current —that if will separation solely tal total occur as or range” “wholly separate geographically unpredictable a result of random and from nonexperimental populations”; events. is so because the conservation of a species requires flexibility specialized manage- 17.80(a). § 50 C.F.R.
ment
tailored
circumstances of that
The FWS’s conclusion under those defi-
particular species.
The FWS
defines a “popula Experimental Population of Northern
tion” as a self-sustaining “group of fish or Aplomado Falcons in New Mexico and Ari-
in
spatial
wildlife
common
arrange
zona,
42,300.
Fed.Reg.
at
The FWS
ment that
interbreed when mature.” 50
pair
nesting
concluded
the 2001
of
17.3;
Wyo.
C.F.R.
see also
Bu
Farm
Mexico,
County,
Falcons in Luna
Fed’n,
reau
711 (internal F.3d at 1176 Canyons, review Our 513 court’s the district lar deference omitted). quotation marks Envtl. See Colo. agency an action.” of Coal., n. 5. with other at 1167 “As 185 F.3d NEPA Overview APA, we re- arising under
challenges
compliance to see
NEPA
agency’s
an
view
centerpiece
regu-
of environmental
“The
an
‘arbitrary, capricious,
it
whether
States, NEPA
lation in the United
re-
discretion,
not in
or otherwise
abuse
pause before
quires
agencies
federal
”
ex rel.
law.’ New Mexico
accordance with
project
to a
and con-
committing resources
Richardson,
(quoting
at 704
565 F.3d
impacts of
sider the
environmental
706(2)(A)).
of a
context
U.S.C.
as
preferred
course
action well as
agency’s decision is
challenge, “[a]n
NEPA
alternatives.” New Mexico ex
reasonable
(1)
agency
if
arbitrary
capricious
Richardson,
703;
F.3d at
see also
rel.
important
‘entirely
failed
consider an
has
§§
“NEPA
twin
U.S.C.
(2)
an
First,
‘offered
ex-
aspect
problem,’
upon
agency
of the
it
an
places
aims.
obligation
every significant
that runs counter
as-
decision
consider
planation
agency,
impact
pro-
or is so
environmental
of a
pect
before the
to the evidence
Second, it
that the
posed
it
ascribed to
action.
ensures
could
implausible
public
inform the
that it has
agency will
product
view or the
a difference
considered environmental concerns
(3)
indeed
‘failed to base its
expertise,’
agency
process.” Balt.
decisionmaking
in its
Gas
relevant
consideration
decision on
Co.,
at
&
462 U.S.
103 S.Ct.
Elec.
(4)
factors,’
judg
‘clear
made a
error
”
omitted)
(internal
(citation
quotation
Cong. v.
(quoting
ment.’
Utah Envtl.
omitted); see also New Mexico ex
marks
(10th
1269, 1280
Cir.
Troyer, 479 F.3d
Richardson,
(“By
rel.
S.Ct. Muckleshoot Indian Tribe v. harbor issued a (9th Serv., 800, U.S. Forest 177 814 F.3d final EA in June and 2006 a FONSI Cir.1999) curiam) (“NEPA (per not does July 2006. results, particular pro- but simply
mandate necessary process vides ensure NEPA Forest Guardians’ Chal- agencies federal take a hard look at the lenge consequences environmental of ac- their challenges Forest Guardians the entire (internal omitted)). quotation tions.” marks analysis suspect NEPA as because the it is unclear a proposed “When whether FWS allegedly did not take a hard look at EIS, requires may action the agency impacts proposed environmental of its first a prepare [EA].” less detailed Greater alleged actions due bias. We dis- Flowers, Yellowstone Coal. v. F.3d 359 agree. (10th Cir.2004) 1257, (citing 40 C.F.R. 1501.4(b)). § agency “If the EA leads the NEPA require agency does not of proposed conclude that the will action “subjectively impartial.” ficials to be environment, significantly affect the Fund, Envtl. v. Corps Eng’rs Inc. agency may Def. issue fore- [FONSI] and (8th 289, Army, the U.S. 470 F.2d go step preparing the further an EIS.” Cir.1972). An agency pre can have 1501.4(e)). § (citing 40 C.F.R. ferred alternative in mind when it conducts case, In this prepared the FWS an EA analysis. 1502.14(e); NEPA § 40 C.F.R. by followed a FONSI. In the FWS Customers, also Agency see Ass’n Pub. began analysis by its NEPA requesting Admin., Inc. v. Bonneville Power public holding comment and public meet- (9th Cir.1997) 1158, 1185 (noting “an ings in Arizona and New Mexico part agency can a proposal formulate or even
the scoping process. In identify preferred course of action before public initiated second period comment EIS”). completing an “The compli test of 10(j) proposed draft rule then, good ance ... objectiv one of faith public EA and held hearings two in New ity subjective rather than impartiality.” EA, Mexico. the FWS considered Fund, Inc., Envtl. F.2d (1) Def. five alternatives: the no-action alterna- However, comprehensive “the ‘hard look’ tive, (2) preferred and chosen alterna- by Congress mandated and required by reintroducing tive of Falcons in Mexi- New timely, [NEPA] must be and it must be designating co and species 10(j) as a faith, objectively good taken not as nonessential population in all substance, an exercise in form over (3) Arizona, New Mexico reintro- as a subterfuge designed to rationalize ducing Falcons in desig- New Mexico and a decision already Metcalf, made.” nating species 10(j) as a nonessential Int’l accord Snowmobile experimental population parts Norton, (4) Ass’n v. Arizona, F.Supp.2d and all Mexico reintroduc- Mfrs. (D.Wyo.2004); ing Falcons in New see Mexico also C.F.R. entering (“Environmental § agreements 1502.2(g) into safe impact harbor state private landowners but without ments shall serve as the designating the means of assess species as a ing impact nonessential experimen- proposed (5) actions, tal population, agency Fal- reintroducing justifying rather than de cons in New Mexico designating already (emphasis added)); without cisions made.” (“The aas nonessential experi- 40 C.F.R. 1502.5 statement shall *20 entering mental or into safe prepared early enough be so it that can EA by agency prepare to a draft important contribu- the an practically as serve decisionmaking process contractually and mil agency’s approval the “was tion to the justify deci- to rationalize and to obligated prepare not used to a FONSI have added)). (emphasis already made.” by sions signed and distributed approved, [the it agency] by a date certain. decision similar previously addressed We have prepare a should have whether to FONSI E.g., Silverton claims. predetermination EA, course, been on the the 780-81; based Chib, F.3d at Lee Snowmobile We found that the way other around.” Id. Force, 354 F.3d v. U.S. Air (10th Davis, Cir.2004); predetermination at 1112- was attrib- contractor’s Transp. agency Better U.S. the agency Utahns utable to the because cf. (10th 1152, 1186 Transp., 305 F.3d Dep’t the NEPA throughout pro- “was involved Cir.2002) (“finding] preordained no meeting cess” had and indicated involving in a under Davis case result” had it was aware that FONSI been anof EIS illegal delegation preparation prior public’s opportunity the prepared to contractor). agency and its We to state on EA. at to comment the Id. pre regarding the find Davis’s discussion (internal omitted). quotation marks analysis to be of a NEPA determination many aware of agency also was instructive, though Davis arose from even EA inadequacies the and the FONSI posture. See 302 procedural a different fix at problems. but to the failed (reviewing of a the denial F.3d at 1109-11 predetermination result- We held the injunction). preliminary motion for a analysis ed an environmental Davis, enjoin plaintiffs sought the bias and then the tainted with enumerated with a proceeding the from defendants analysis. found in the Id. at inadequacies the project highway-construction 1112-13, plaintiffs ultimate- 1118-26. The had violated defendants grounds in- ly requested preliminary received Transporta- Department NEPA and Thus, junction. Id. at 1126. Davis indi- EA by preparing inadequate an tion Act predetermines if an agency cates that an rather than EIS. issuing and FONSI analysis committing itself NEPA plain- that the 1109. We concluded outcome, likely has failed to agency merits likely on the prevail tiffs were look at the environmental con- take a hard had acted arbi- agency their claim that the to its sequences of its actions due bias trarily capriciously; only were and, therefore, has favor of that outcome and substantive deficiencies procedural arbitrarily capriciously.17 acted analysis identifiable the environmental Club, we re- In Silverton Snowmobile itself, also established but record argument jected plaintiffs’ the NEPA “prejudged the defendants had by reaching NEPA agencies had violated at 1112. The contractor hired issues.” Id. clearly clarify quite that we review in Davis indicates opportunity this 17. We take agency’s analysis pre- NEPA and its meaning in Davis that review of our statement (i.e., potential deferential predetermination) bias “under APA’s judgment “diminishes 'arbitrary capricious’ Id. at standard.” owed to the federal defendants deference 706(2)(A)). (quoting What to issue a 5 U.S.C. of their decision our review that, predeter- agency if an meant was an EIS.” 302 Davis FONSI rather than analysis, this the result of its NEPA reference to mines We caution that Davis's agen- that the more to conclude to mean that court is should not be taken “deference" cy at the environ- to take a hard look arbitrary capricious failed standard and, consequences of its actions there- type apply of claim. To APA does not fore, arbitrarily capriciously. acted contrary, of the standard of our discussion *21 predetermined irretrievably plan result. 433 F.3d at itself a 780-81. commits alleged plaintiffs agencies dependent that the had is upon action that the NEPA analysis “structured” their NEPA and is- analysis environmental a certain producing outcome, sues to ensure that the ultimate outcome agency completed has before (internal would be inevitable. Id. at 780 analysis —which omitted). quotation After marks examin- supposed objective, course is to involve an record, that, ing the far from we concluded inquiry faith good into the environmental conducting a analysis, biased NEPA consequences of the agency’s proposed ac- agencies compromise had solu- reached See, e.g., tion. Silverton Snowmobile competing tion groups. between user Id. Club, 2 (detecting 433 F.3d at n. no conclusion, reaching at In we predetermination agency because “had no distinguished Silverton Snowmobile Club preexisting agreement any with user from the Ninth Circuit’s decision Met- Lee, group”); (concluding F.3d calf, agency where the federal had entered occurred, predetermination that no even binding agreement into a to reach cer though the U.S. Air Force had entered tain conducting outcome before a NEPA of agreements into series with Ger- analysis. Id. at 781 n. 2 (discussing Met Ministry, man Defense because those 1144). calf, 214 F.3d at Silverton Snow agreements either were not executed until mobile Club concluded that “awas completion after the require- of the NEPA Metcalf very case, different situation from this ments would not take effect until after the agencies where had no preexisting completion of those requirements); agreement any group.” user Davis, (holding at 1112-13 predetermination occurred, had when the light of Davis and it progeny, preparing consultant EA was contrac- NEPA, clear that an agency may violate tually obligated to reach certain environ- APA, consequently when it predet- outcome, analytic with the endorse- ermines the result its environmental agency). ment analysis. As the Ninth explained Circuit Metcalf, is highly “[i]t be- Thus, predetermination is differ cause the Federal prior Defendants’ ent kind from “subjective mere impar ..., written commitment the EA was tiality,” Fund, Inc., Envtl. 470 F.2d at Def. slanted favor finding 296—which does not undermine an agen proposal not significantly would affect the cy’s ability engage requisite in the hard environment.” 214 F.3d at also see look environmental consequences—even Ass’n, Int’l Snowmobile Mfrs. though subjective may impartiality under (“Given F.Supp.2d at 1261 these definite certain circumstances involve something ..., statements it does seem that the resembling predetermination an and lead [agency] could have issued other agency predetermination. down the road FEIS, rule.... issuance [T]he ROD This highlighted by difference is the strin and Final nothing Rule were more than gent standard that must be inmet order pro compliance with the require- forma us to conclude that an agency violated NEPA.”). ments of NEPA predetermining the outcome of
A petitioner high must meet analysis its environmental conclusion —a prove predetermination. standard to We would not and should reach explicit now make what implicit in our lightly. In order for tous conclude that previous predetermination decisions: oc agency has engaged predetermina tion, curs when agency irreversibly we must decide that agency has
715 resources” committed irretrievable commitment of irretrievably irreversibly and dependent upon particular a environmental that is based of action plan to a itself outcome, requisite analysis completing to its prior environmental the NEPA upon outcome, Metcalf, the 214 analysis. environmental See a certain producing before added). (emphasis By way that completed environmental 1143 has agency therefore, hold, illustration, agencies Metcalf, would not in federal analysis. We “(1) EA, (2) simply present was predetermination prepare[d] had an decide[d] that or internal agency’s planning, signifi- the not proposal because the ... would seriously (3) contem- negotiations, environment, cantly or external the is- affect account, possibility the FONSI, or took into plated, ... [only] but al- sue[d] after outcome particular ready signed agreements two having review of result of NEPA would be the binding support propos- to the ... them Ecosys. added). See Native environmental effects. (emphasis al.” Id. at 1142 Dombeck, 304 F.3d 892-93 v. Council held that the Ninth Circuit Metcalf Cir.2002) (“[W]e (9th read the memo- by making had violated NEPA agencies the Forest Service indicate that randum to commit- an “irreversible and irretrievable density the contemplated waiving road completing prior ment resources” to However, contempla- such standard.... review. Id. at the environmental to a violation not amount NEPA tion does also, the e.g., (“By id. at time see committed ... memorandum unless the fi- completed Federal Defendants the pro- to the amendments the Forest Service ..., already EA had nal die been (citations omitted)); not.” It did posed. cf. ‘point commitment’ cast. The Norton, Animals Fund gone.”); accord proposal had come (D.D.C.2003) (holding F.Supp.2d Block, Comm. v. 840 F.2d Save Yaak on their plaintiffs would succeed Cir.1988) (9th (holding that claim; noting predetermination “[t]his and irretrievable such irreversible merely the agency is not case which present when construc- commitment depredation contemplated the issuance of prior contracts were awarded tion EA on an prior embarking permits EAs, and construction completion ultimately recommended such which by time of begun the road had action”). course of assessment); biological preparation of Animals, F.Supp.2d 229- clarification of our Fund observe that this We plaintiffs demon- establishing predet- (concluding that proof for standard of they would suc- path as likelihood that puts us on a similar strated ermination had Circuit,18 proving agency that the failed ceed the Ninth which would hold when, take a hard look under NEPA only when to has occurred predetermination EA, agency prior completing “an irreversible and agency has made confusion, Cir.2008) (9th (discussing noting any possible we note 18. To avoid Metcalf alignment with the Ninth that our substantial cases have focused on commit- “[o]ur product resources, of our clarification Circuit is the necessarily the of natural not ment import We of our case law. do resources”). However, own be- agency's financial standard, as adopt the Ninth Circuit's here precedent, applying our cause we are own example, For articulated Metcalf Metcalf. adopting the Ninth Circuit’s stan- and not “re- speaks terms of commitment dard, extent bound are subsequent au- Ninth Circuit sources” and standard, interpretation of its Ninth Circuit’s thority suggested arguably that an narrow has interpretative analysis in Wild- including the appropriate. See construction of that term West Institute. Bull, 1162, 1168 Inst. v. Wildwest permits authorizing open had issued fourteen the NEPA context a Pandora’s swans). killing of mute box that courts should most cases to avoid. attempt Psychoanalyzing an *23 also the identify proper We must focus agency’s intent could restrict the open predetermination inquiry. Specifi- an exchange agen- information within cally, must determine what evidence cy, deliberations, inhibit frank and re- evaluating this court will examine duce the incentive to memorialize ideas predetermination support claim. To its form. written It could also frustrate predetermination, claim of Forest Guard- an agency’s ability change to mind or its ians relies on evidence outside of the actions, very refocus its the effect that analysis NEPA itself to prove the FWS’s NEPA designed encourage. was to See This evidence intra- alleged bias. includes (“primary C.F.R. 1502.1 purpose” rule, agency agen- on draft comments the of an EIS “is to serve as an action- meetings das minutes from between forcing policies device to insure that the Fund, Peregrine the FWS and The e-mail goals defined are infused [NEPA] correspondence within the FWS and be- into ongoing programs the and actions Fund, Peregrine the tween FWS Government”). of the Federal Finally, grant agreement and the between the agencies most federal consist of numer- Peregrine FWS Fund. In other ous with varying actors levels respon- words, argument Forest Guardians’ does sibility objectives; and different discern- us, Davis, oblige scrutinize subjective ing one speculative intent is a agency’s analysis signs NEPA of bias. best. exercise at Although rejects idea (second Id. at in origi- 198-99 alteration that Forest Guardians’ evidence shows nal). The court reasoned an “[w]here predetermination, it fundamentally more merely agency engaged has in post hoc contends Forest Guardians cannot rationalization, there will be evidence of properly rely beyond on evidence en- comprehensively this its failure to inves- analysis vironmental advancing itself. In tigate impact the environmental its ac- argument, this would have us acknowledge tions their conse- follow Fourth Circuit’s approach quences.” at 199. Society National Audubon v. Department (4th the Navy, 422 F.3d decline, however, We respectfully Cir.2005). case, In that the court de- to follow the Fourth approach Circuit’s clined to Navy look internal e-mails First, contrary several reasons. it is and other documents “to advance the- precedent. our In judging whether ory Navy irreversibly had decid- agency impermissibly has committed itself ed its [on course of it action] before be- to a course action before embarking its gan impact analysis.” a NEPA upon analysis, we have previously Id. at 198. The Fourth Circuit instead looked evidence outside the environ stated court reviewing “should that, analysis itself. Recall generally objec- restrict inquiry Davis, this court predeter attributed the tive adequacy the EIS [and] (who private parties mination of had con should not far-flung conduct investiga- tractually agreed to the issuance of a subjective tions into the intent who by FONSI and had been hired agency.” explained Id. The court EA) agency federal to prepare the supported by
[t]his rule is
common
agency
federal
itself.
mit
be
beyond
analysis
dence
NEPA
would
analytic rigor.
sufficient
conducted with
by
have the detrimental effects alluded to
and effi-
Specifically, we doubt
wisdom
agency
the Fourth Circuit on
decisionmak
cacy
limit the
approach
of
would
ing
adjudication
the principled
pre
predetermination inquiry
of the
focus
determination claims. That is because the
analysis
alone. That
environmental
rigorous
evidence must meet the
standard
predetermina-
fail
detect
approach could
establishing
that the agency has made
has irrever-
agency
tion in cases where the
“an irreversible and irretrievable commit
sibly
irretrievably committed itself to
(internal
ment.”
quotation
1143
action,
a course
but where the bias is
omitted). Thus, agency employees
marks
from the face of the
not obvious
environ-
not be afraid to conduct debates over
need
analysis itself. We cannot be confi-
agency
e-mail because the
will not be
that,
instance,
every
will
dent
bias
found to have
a
NEPA
conducted
biased
analysis.
NEPA
For
be evident from the
fair
analysis unless those communications
though the EA and FONSI
example, even
ly could
said to have the
be
effect of
flawed,
facially
“[i]t
were not
Metcalf
(as whole)
binding
agency
to an
highly
because
[was]
irreversible and irretrievable commitment
prior written commit-
Federal Defendants’
upon partic
to course of conduct
...,
based
ment ... and concrete efforts
the EA
outcome,
ular
thereby
environmental
ren
finding
in favor of
that the ...
slanted
dering any subsequent
environmental
proposal
significantly
would not
affect the
Furthermore,
analysis
and flawed.
biased
environment.”
After
the relevant
have
would
reached
con-
different
case,
record evidence
we conclude
However,
clusion than
dowe
here.
we do
that there
no
is
indication that the FWS
agree
argu-
not
with Forest Guardians’
made such an irreversible and irretriev
grant
ment that the
agreement
is such a
able
to
captive-
commitment
the release of
grant
contract. The
agreement, which the
10(j)
bred Falcons as a
exper
nonessential
most,
parties
population.
imental
two
entered into
NEPA
At
the
before the
evidence
analysis
pre
completed, provides
demonstrates
the FWS
was
had a
that the
Peregrine
ferred alternative and
The
grant
expanded
upon
could be
promul-
the
reason,
biologist
string
20. The
wrote in a
of e-mails
For that
same
cannot find that
deal,”
10(j)
that the
rule was “a done
the
by biologist working
an e-mail authored
proposed merely
placate
rule was
The Per-
Fund,
Peregrine
stating
that Fund,
that,
egrine
and
because the FWS
outcome,
"promised”
10(j)
enough
the
rule,
challenge
lose a
would
court
to the
”[i]n
prove
the FWS or
bind
that the
had
run,
long
Peregrine
[the
the
head of The
fact made an
irreversible
irretrievable
probably
Fund]
needs to think about a Ken-
comparable
There
commitment.
is no
evi-
tucky Fried Falcon chain” because "there
dence in the record like that in International
captive
be
won’t much else he can with
do
the
Ass’n,
Snowmobile
for exam-
Manufacturers
bred birds.” J.A. at 62. But no matter how
ple,
Secretary
where the Assistant
for Fish
inflammatory, an individual’s comments re-
and Wildlife
Parks had
declared
predetermination
main immaterial
press
agency
firmly
conference that the
was
(1)
analysis
they
may fairly
unless
be attrib-
(banning
committed to
course of action
(2)
agency,
uted to the
tend to
reflect
Park)
snowmobiles
Yellowstone National
agency’s irreversible and irretrievable com-
completing
analysis.
before
its NEPA
contempla-
mitment to a course of action—in
case,
F.Supp.2d at 1259-61. In that
the court
particular
tion of a
environmental outcome—
concluded that "it
not
does
seem that
requisite
analy-
even
before
[agency]
could have issued
other rule.”
completed.
argu-
has
sis
been
No tenable
1261.
ments could be advanced here to this effect
upon the
based
comments at issue.
notes,
previously
has
If the rule
this court
held that
10(j)
rule.
were
gation of
way
agency
work
The one
can fail
706’s test is
then the
promulgated,
not
agency “predecides”
to activi-
if
would
limited
outcome of
Peregrine Fund
research,
irreversibly
breeding,
analysis
a NEPA
captive
as
irre-
ties such
Maj.
trievably.
Op.
in New
at 714. In
“[c]ontact[ing] landowners
See
assess-
potential
ing
predetermination
regard
estab-
Forest Guardians’
Mexico
today,
beyond
claim
looks
experimental
of an
nonessential
court
lishment
four
and Wildlife Ser-
J.A. at
corners of
Fish
population.”
(“EA”)
vice’s environmental assessment
pro-
contends that the
Forest Guardians
document
other evidence
the adminis-
Peregrine
Fund to
allowing
vision
so, however,
In doing
trative record.
should be
contact New Mexico landowners
practice
court does not endorse the
grant “began
to mean that
interpreted
looking outside the administrative record
non-
experimental
a[n]
work on
funding
itself,
“extremely
at least absent
limited
Aplt.
population.”
Opening
essential
circumstances,”
a party
such where
first
interpre-
Br. at
We do
share
“
predicate
‘strong showing
makes a
of bad
indicate
provision
tation. That
does not
”
improper
faith or
behavior.’ Citizens for
predetermined
was
one
there
Dumping
Alternatives
to Radioactive
v.
proposed
If
rule
outcome.
Energy,
Dep’t
U.S.
a nonessential
promulgated,
(10th Cir.2007) (quoting
Citizens
Pre
possible
would still be
Park,
Volpe,
serve
Overton
Inc.
U.S.
and so landowner contact
future
*26
402, 420,
814,
91 S.Ct.
posed by Audubon National remains H. Florida Department open one this circuit. See United States Children Fami- Romero, (10th 1173, lies, Respondent-Appellee. v. Cir. 2007) (“Questions merely which lurk No. 09-15701 record, neither to the brought attention Non-Argument Calendar. upon, nor court ruled are not having considered as so as to been decided Appeals, United Court States precedents.”) (quoting constitute Webster Eleventh Circuit. Fall, 511, 148, 266 U.S. S.Ct. June (1925)); L.Ed. 411 Brecht v. Abraham cf. son, 619, 631, U.S. S.Ct. (1993) (“[S]ince L.Ed.2d 353 we have never issue,
squarely have at addressed the applicability
most assumed the habeas,
Chapman standard on we are free merits.”).
to address the issue on the Nei
ther question resolution es today.
sential our decision is be This
cause, majority amply explains,
Forest Guardians’ claim this fails case
regardless analy whether we restrict our objective
sis adequacy of the Fish (as EA Wildlife Service’s the Service it)
and National Audubon would have
consider other administrative mate record (as beyond
rials the EA itself Forest prefers). Maj.
Guardians Op. See at 717- *27 WALKER, R.
James Petitioner-
Appellant,
Lucy HADI, Secretary, Florida
Department of Children and
Families, Respondent,