FRIENDS OF BLACKWATER, ET AL., APPELLEES v. KENNETH LEE SALAZAR, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, AND DANIEL M. ASHE, DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, APPELLANTS
No. 11-5128
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 24, 2012 Decided August 17, 2012
Appeal from the United States District Court for the District of Columbia (No. 1:09-cv-02122)
M. Reed Hopper was on the brief for amicus curiae Pacific Legal Foundation in support of appellant.
Jessica Almy argued the cause for appellees. With her on the brief were Eric R. Glitzenstein and Howard M. Crystal.
Before: ROGERS and KAVANAUGH, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge GINSBURG.
Dissenting opinion filed by Circuit Judge ROGERS.
GINSBURG, Senior Circuit Judge: The Secretary of the Interior appeals the district court‘s grant of summary judgment to the Friends of Blackwater et al. The district court held the Fish and Wildlife Service, an agency in the Department of the Interior, violated the Endangered Species Act by removing the West Virginia Northern Flying Squirrel from the list of endangered species when several criteria in the agency‘s Recovery Plan for the species had not been satisfied. We hold the district court erred by interpreting the Recovery Plan as binding the Secretary in his delisting decision. Because we also reject the Friends’ alternative arguments that the Service‘s action was arbitrary, capricious, and contrary to law, we reverse the judgment of the district court.
The West Virginia Northern Flying Squirrel (Glaucomys sabrinus fuscus) is one of 25 distinct subspecies of the Northern Flying Squirrel. It is a “small, nocturnal, gliding mammal[]” with a “long, broad, flattened tail ..., prominent eyes, and dense, silky fur” that lives in West Virginia and Virginia. U.S. FISH AND WILDLIFE SERVICE, APPALACHIAN NORTHERN FLYING SQUIRRELS RECOVERY PLAN 1–3 (Sept. 24, 1990). Despite its name, the flying squirrel cannot fly; but the patagia, or folds of skin, that stretch between its arms and legs allow it to glide for a distance when it leaps from a tree branch. Historically, its habitat consisted of the spruce-fir and northern hardwood forests of the southern Appalachian Mountains. Id. at 2, 6. In 1985, when scientists had documented only ten living squirrels, the Fish and Wildlife Service concluded it was endangered* and suggested that, although the squirrels’ population “may have been declining since the Pleistocene, ... [t]heir decline ha[d] probably been accelerated through clearing of forests and other disturbances by people.” 50 Fed. Reg. 26,999, 26,999 (July 1, 1985).
As required by
- [S]quirrel populations are stable or expanding ... in a minimum of 80% of all Geographic Recovery Areas [GRAs] designated for the subspecies,
- [S]ufficient ecological data and timber management data have been accumulated to assure future protection and management ...
- GRAs are managed in perpetuity to ensure: (a) sufficient habitat ... and (b) habitat corridors ... [and]
- [T]he existence of the high elevation forests on which the squirrels depend is not itself threatened by introduced pests ... or by environmental pollutants ....
Recovery Plan at 18.
In 2002, the Service hired a biologist to investigate the possibility of removing the squirrel from the list of endangered species, and the next year began to draft its five-year review of the squirrel‘s status. In the review, published in 2006, the Service concluded the Recovery Plan, which had been created in 1990, “d[id] not have up to date recovery criteria,” and the squirrel did “not meet the definition of endangered or threatened” because it “persist[ed] throughout its historic range.” U.S. FISH AND WILDLIFE SERVICE, WEST VIRGINIA NORTHERN FLYING SQUIRREL 5-YEAR REVIEW: SUMMARY AND EVALUATION 5, 20 (April 2006). Whereas only ten squirrels had been sighted at the time of the original listing in 1985, by 2006 scientists had captured 1,063 individual squirrels at 107 sites, id. at 7, which suggested to the Secretary the population was robust, see U.S. FISH AND WILDLIFE SERVICE, ANALYSIS OF RECOVERY PLAN CRITERIA FOR THE WEST VIRGINIA NORTHERN FLYING SQUIRREL 3 (Dec. 18, 2007).
Later in 2006 the Service proposed to remove the squirrel from the list of endangered species. See 71 Fed. Reg. 75,924 (Dec. 19, 2006). The agency explained the squirrel no longer faced any of the threats listed in
Various scientists and conservation groups filed comments criticizing the Service‘s use of “persistence,” which it defined as “continuing captures of [a species or subspecies] over multiple generations at previously documented sites throughout the historical range,” 73 Fed. Reg. 50,226, 50,227 (Aug. 26, 2008) (“Delisting Rule“), to gauge the squirrel‘s recovery; the measure could not provide estimates of population levels or trends and, they pointed out, persistence so defined could not
In its final rule delisting the squirrel the Service responded to these comments as follows: The data showing persistence across 80 percent of the squirrel‘s historic range were simply “not indicative of a declining population.” Id. at 50,227. Data for the remaining 20 percent need not indicate a lack of persistence because the squirrels are “elusive and hard to capture.” Id.
The Friends of Blackwater filed a complaint in the district court claiming (1) promulgation of the Delisting Rule violated the Endangered Species Act by ignoring the objective, measurable criteria in the Recovery Plan and (2) the Rule itself was arbitrary and capricious because it was not based upon the best available science. The district court entered summary judgment for the plaintiff, Friends of Blackwater v. Salazar, 772 F. Supp. 2d 232 (D.D.C. 2011), on the ground the Service was bound by the criteria in the Recovery Plan and its decision to delist the squirrel without following those criteria therefore constituted a revision to that plan, made without going through notice and comment rulemaking as required by the Act, id. at 241–42. In a footnote, the court also directed the agency on remand to modify its analysis of the statutory factors relevant to delisiting “to the extent the agency‘s decision [to delist] was based on an analysis that did not separately assess the adequacy of existing regulatory mechanisms,” as required by
II. Analysis
In a case like the present one, “where the district court was reviewing an agency rulemaking under the Administrative Procedure Act ... we review the administrative record directly.” Troy Corp. v. Browner, 120 F.3d 277, 281 (D.C. Cir. 1997) (internal quotation marks and citation omitted). We review the Secretary‘s interpretation of the statute under the familiar two-step framework from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). At Step One, the court asks “if the statute unambiguously forecloses the agency‘s interpretation,” Nat‘l Cable & Telecomms. Ass‘n v. FCC, 567 F.3d 659, 663 (D.C. Cir. 2009); if it does not, then at Step Two “we defer to the administering agency‘s interpretation as long as it reflects ‘a permissible construction of the statute,‘” Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (quoting Chevron, 467 U.S. at 843).
A. The Legal Effect of the Recovery Plan
The Friends claim the statutory requirement that for each endangered species the Service draft a recovery plan with “objective, measurable criteria” unambiguously means those criteria must be met before a species may be delisted. In response, the Service argues the criteria in the Recovery Plan, unlike the factors in
To resolve this dispute, we “begin[] with the words of the statute.” Pharm. Research & Mfrs. of Am. v. Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001).
The ambiguity is magnified because
Other “traditional tools of statutory construction,” Chevron, 467 U.S. at 843 n.9, do not reveal any more clearly the intent of the Congress on this question. The Friends argue the legislative history indicates the criteria in the recovery plan must be binding because the Congress added the call for “objective, measureable criteria” specifically in order to “improve the development, implementation and review of plans for the recovery of listed species.” S. REP. NO. 100-240 (1987), reprinted in 1988 U.S.C.C.A.N. 2700, 2700. The Friends also argue the structure of the Act confirms their view because the Secretary‘s interpretation would render the requirement of “objective, measurable criteria” meaningless.
These arguments from legislative history and structure come down to the single claim that interpreting the Recovery Plan as non-binding would render
Nor is there anything unusual about a statute that requires an agency to publish a non-binding document. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 69, 72 (2004) (statute required BLM to promulgate land use plan, but plan itself was “designed to guide” BLM, not to be legally enforceable). Contrary to the Friends’ argument, the Secretary‘s interpretation of the plan as non-binding does not render meaningless the Secretary‘s statutory obligations to create and to implement a recovery plan and to use notice and comment in order to revise such a plan. On the contrary, a recovery plan, even if not binding, so long as the species is endangered provides “objective, measurable criteria” by which to evaluate the Service‘s progress toward its goal of conserving the species.
It is a short hop from here to conclude under Step Two of Chevron that the Secretary‘s interpretation is a “permissible” one. The Service fairly analogizes a recovery plan to a map or a set of directions that provides objective and measurable steps to guide a traveler to his destination. Cf. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547 (11th Cir. 1996) (holding “recovery plans are for guidance purposes only“). Although a map may help a traveler chart his course, it is the sign at the end of the road, here the five statutory factors indicating recovery, and not a mark on the map that tells him his journey is over. Moreover, as with a map, it is possible to reach one‘s destination — recovery of the species — by a pathway neither contemplated by the traveler setting out nor indicated on the map.
B. The Measure of “Persistence”
The Friends of Blackwater contend in the alternative the Service (1), by using data on the species’ “persistence” rather than data on its population and population trends, violated the statutory requirement that it use the “best ... data available,”
The Friends’ first argument runs afoul of Southwest Center for Biological Diversity v. Babbitt, in which we explained
This would end the matter were it not for the Service‘s statement in the Recovery Plan that it would look to estimates of population trends. See Recovery Plan at 18 (saying it could delist the squirrel when “squirrel populations are stable or expanding” in at least 80 percent of certain designated areas). Although, as we explained above, that plan was not binding upon the agency, the Friends maintain the Service had an obligation adequately to account for any departures from the guidelines described in the plan, citing Motor Vehicle Mfrs. Ass‘n, 463 U.S. at 42 (“an agency changing its course ... [must] supply a reasoned analysis“). Whether an agency must account for a departure from a prior non-binding statement of intent is not entirely clear. Compare Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1182 (D.C. Cir. 2000) (“Manual does not bind the Board ... [and so] the relevant question is whether, quite apart from the Manual, the Board acted unreasonably“), with Edison Elec. Institute v. EPA, 391 F.3d 1267, 1269 & n.3 (D.C. Cir. 2004) (“[report] is not strictly binding upon EPA and any deviation from the Report is not per se arbitrary and capricious“; “real question is whether EPA adequately accounted for any departures” from factors described in report). We need not resolve this question today because the Service adequately explained that population data were not available whereas data on persistence were. Still, the Friends contend the Service‘s stated reason for not itself estimating the population, viz., the cost and difficulty of doing so, fails because the Service knew of the difficulty of estimating the squirrel population when it adopted the population criterion in the Recovery Plan. See Recovery Plan at 11 (noting the squirrels were “extremely difficult to collect and study“).
Though not illogical, neither does the Friends’ argument show the Service was arbitrary and capricious. The agency did realize when it put the population-based criterion into the Recovery Plan in 1990 that the squirrels were difficult to monitor. After more than 15 years of gathering more data and capturing more squirrels, however, the Service could reasonably conclude, and the Friends do not dispute, that “[a]n adequate monitoring scheme to estimate population numbers across a representative sample of the entire range of the [squirrel] would require many thousands of nest boxes and traps,” Analysis of Recovery Plan Criteria at 1. The Friends have not shown the Service‘s judgment that a project of that magnitude was simply too difficult and too costly for the
C. Inadequacy of Regulatory Mechanisms
Finally, the Friends argue the Service failed to conduct an independent analysis of the fourth statutory factor, “the inadequacy of existing regulatory mechanisms,”
Under the Friends’ approach to
III. Conclusion
We hold the Secretary reasonably interpreted the Endangered Species Act as not requiring that the criteria in a recovery plan be satisfied before a species may be delisted pursuant to the factors in the Act itself. Because the Secretary‘s determination the West Virginia Northern Flying Squirrel was no longer endangered was neither arbitrary and capricious nor in violation of the Act, the judgment of the district court is
Reversed.
Appendix: Notes on the Dissent
Our dissenting colleague labors at length to prove “shall” indicates an action is mandatory and “to implement” means to give practical effect, see Dissent at 4–5, two points we nowhere dispute. Nor do we doubt
The foregoing interpretation of
The dissent‘s claim (at 5) that our interpretation “erases ‘(f)(1)’ from ‘(f)(1)(B)(ii)‘” ignores our reading of those provisions (at 8) as together indicating the Secretary “shall ... incorporate in [the recovery] plan ... objective, measurable criteria.” Accordingly, we agree with the dissent to the extent that subsection (B)(ii) imposes upon the Secretary a mandatory duty to incorporate criteria in a recovery plan but, the dissent‘s insistence to the contrary notwithstanding, that understanding alone does not clarify how such criteria relate to the Secretary‘s delisting decision. Our dissenting colleague correctly identifies (at 5) the “future conditional tense” in
The “context and structure of the statute,” Dissent at 6, only underscore this ambiguity and therefore support our deferring under Chevron to the Secretary‘s interpretation.
Our dissenting colleague next offers (at 10) her “flight plan” analogy in an effort to show certain administrative plans may not be “discarded” even if “overtaken by events,” but the analogy in fact supports our interpretation. As the dissent notes, a portion of the regulation regarding flight plans allows a pilot to deviate from a flight plan if “an emergency exists,”
The dissent addresses (at 19–21) a facially plausible “logical outgrowth” argument that appears nowhere in the Friends’ brief, was not raised in the district court, and therefore is not properly before us. See United States v. Southerland, 486 F.3d 1355, 1360 (D.C. Cir. 2007) (“argument ... raised for the first time at oral argument ... is forfeited“); Benoit v. Dep‘t of Agric., 608 F.3d 17, 21 (D.C. Cir. 2010) (argument not raised in district court is forfeited). As part of their argument that the statute unambiguously requires the Secretary either to meet the criteria in the recovery plan or to modify them through notice and comment prior to delisting, the Friends did argue the notice and comment process the Secretary used to delist the Squirrel did
not constitute a revision of the recovery plan. See Br. of Appellees at 35–40. Because we rejected the Friends’ must-meet-or-modify premise, however, there is no need to address that dependent argument. In the Friends’ “alternative argument that the Secretary violated the Administrative Procedure Act,” Dissent at 17, they alleged the delisting process was arbitrary and capricious and not based upon the best data available, see Br. of Appellees at 45–51, not that the final rule was not a logical outgrowth of the proposed rule.
With respect to the Friends’ argument that the Act precludes the Secretary from relying upon data concerning persistence, the dissent suggests (at 22–23) the Secretary must have data on the population of a species before he may decide to delist it. What
The dissent compounds the error by claiming (at 22) data on persistence do not “answer the relevant question,” and asserts upon this basis the Secretary relied upon “no data.” Evidence is relevant to a particular question of fact if “it has any tendency to make [that] fact more or less probable.”
ROGERS, Circuit Judge, dissenting: Because Congress “has directly spoken to the precise question at issue,” Chevron USA Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984), the court’s job is done. Instead, the court defers to the Secretary’s interpretation, contrary to the plain text of the Endangered Species Act (“ESA”),
I.
“As in all statutory construction cases,” the court must “begin with the language of the statute.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002). “[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” Id. at 461-62 (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992) (internal quotation marks and citation omitted)). Congress’s requirements in the ESA for delisting an endangered species for which the Secretary of the Interior has developed a recovery plan are unambiguous with respect to when that species is eligible for delisting and to the procedure for revising announced recovery plan criteria.
Section 4(f) provides:
(1) The Secretary shall develop and implement [recovery plans] for the conservation and survival of endangered species and threatened species . . . . The Secretary, in developing and implementing recovery plans, shall, to the maximum extent practicable--
. . .
(B) incorporate in each plan--
. . .
(ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list.
. . .
(4) The Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and opportunity for public review and comment on such plan. The Secretary shall consider all information presented during the public comment period prior to approval of the plan.
The plain text of section 4(f) answers the questions of whether recovery plans are discretionary, what they must contain, what process must be followed for their adoption and revision, and whether recovery plan criteria must be met before delisting procedures are initiated. First, section 4 provides that the Secretary “shall” implement recovery plans. When Congress uses the word “shall,” it intends to communicate a mandatory action. See Gonzalez v. Thaler, 132 S. Ct. 641, 651 (2012). “It is fixed law that words of statutes or regulations must be given their ordinary, contemporary, common meaning. It is also fixed usage that ‘shall’ means something on the order of ‘must’ or ‘will.’” FTC v. Tarriff, 584 F.3d 1088, 1090 (D.C. Cir. 2009) (internal quotation marks and citations omitted). Looking to the usual understanding of the words used by Congress, to “implement” is “to give practical effect to and ensure of actual fulfillment by concrete measures.” MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 583 (10th ed. 1993). Thus, section 4(f)(1) “is not at all ambiguous, but instead is exquisitely clear,” Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 837 (9th Cir. 2001) (interpreting ESA section 4(b),
Eschewing the plain text, the court finds ambiguity for three reasons. First, the court notes that the word “shall” does not appear in section 4(f)(1)(B)(ii) with respect to whether the “objective, measurable criteria” to be included in the recovery plan control delisting. See Op. at 8–9. Second, this purported ambiguity is “magnified,” the court states, because the Secretary’s obligation to include such criteria in a recovery plan is qualified by the phase “to the maximum extent practicable.” See id. at 9. Third, the court asserts that other “‘traditional tools of statutory construction,’ Chevron, 467 U.S. at 843 n.9, do not reveal any more clearly the intent of Congress on this question.” Id. These reasons do not withstand examination.
The first reason erases “(f)(1)” from “(f)(1)(B)(ii)” and ignores English grammar. The court blinds itself to the introductory provision, which provides that the Secretary “shall develop and implement” recovery plans, which “shall . . . incorporate” the criteria in (B)(ii),
Next, the court attempts to find ambiguity in the phrase “to the maximum extent practicable.” Section 4(f)(1) provides that “[t]he Secretary, in developing and implementing recovery plans, shall, to the maximum extent practicable . . . incorporate in each plan . . . objective, measurable criteria.”
If someone said he would see me in Cleveland while on his way to Chicago and would let me know before changing his plan, it would hardly be sensible to say he must “revise” his plan before he can tell me that he no longer needs to make the trip.
Op. at 10. Here, the Secretary in fact went to Chicago — he declared the Squirrel recovered and delisted it. He just avoided Cleveland altogether (i.e., several of the recovery criteria), and stopped in Detroit instead (i.e., the covertly revised criteria), without telling anyone, despite saying he “would let me know before changing his plan” (i.e., comply with section 4(f)(4)). The court’s analogy begs the key question of how it is to be determined that the stop in Cleveland (i.e., meeting the recovery criteria) no longer needs to occur — as Congress directed, or as the Secretary would prefer? A better analogy, grounded in administrative law, is of an airline pilot who determines mid-flight, due to changed circumstances (e.g., turbulence), that the approved flight plan should be revised. Although “overtaken by events,” Op. at 10, under the regulations, in the absence of an emergency, the flight plan may not be discarded by the pilot — instead the pilot must follow the revision process set forth by regulations. See
Furthermore, the court altogether ignores that the Secretary, acting through the Fish and Wildlife Service (“FWS”), revised the recovery plan, while the Squirrel was still listed as endangered, without following the notice and comment procedures required by ESA section 4(f)(4). In December 2007, nearly a year before promulgating the Final Rule Removing the Squirrel from the Endangered Species List, 73 Fed. Reg. 50,226 (Aug. 26, 2008) (“Final Rule”), the FWS revised two of the four criteria in the Squirrel’s recovery plan. In an unpublished, publically-unavailable analysis, the FWS concluded that the second and fourth recovery criteria had been met, while the “intent” of the first and third criteria had been met under revised criteria. See U.S. FISH & WILDLIFE SERVICE, ANALYSIS OF RECOVERY PLAN CRITERIA FOR THE WEST VIRGINIA NORTHERN FLYING SQUIRREL 13 (Dec. 18, 2007) (“2007 Analysis”). Specifically, the FWS revised the first criterion from one measuring Squirrel populations in five geographic areas to one measuring “persistence,” that is, whether the Squirrel was present (without regard to quantity) or absent, in 3-5 year intervals, in different areas.5 See id. at 2. The FWS revised the third criterion to eliminate its core provision that the geographic recovery area (“GRA”) be managed in perpetuity.6 It is undisputed the FWS made these revisions without providing notice or opportunity for comment, and that the 2007 Analysis was publically mentioned for the first time in the Final Rule, 73 Fed. Reg. at 50,227. Even were the court correct that the purported ambiguity of section 4 permits the Secretary’s interpretation of recovery plans as discretionary and mere guidance (contrary to the ESA’s plain text) and that the Secretary did not need to revise the recovery plan if its criteria could not be met, see Op. at 10, where the Secretary does revise the plan, the court has no explanation for why the requirements of section 4(f)(4) can be ignored, other than to invoke its inapt travel plan analogy.
The circularity of the court’s reasoning demonstrates how its reading renders section 4(f) superfluous: According to the court: “[A]s long as a species is listed as endangered, the agency is obligated to work toward the goals set in its recovery plan,” but the “criteria in the plan [do not] limit the agency when it is deciding whether to delist a species.” Op. at 16. If a species is delisted on the basis of recovery,
Required procedures are a vital part of the protections afforded by the ESA, in which Congress employed mandatory language regarding the Secretary’s obligations. See, e.g.,
Contrary to the Secretary’s suggestion in this court, the requirements added by Congress in 1988 to strengthen the ESA’s protections, see S. REP. NO. 100-240, at 8-9, are not a “make-work exercise” or mere “hoop-jumping,” Appellant’s Br. at 43. Instead, consistent with its ESA findings and policy of conservation, Congress determined to “require deliberation” when the existence of precious species have been found endangered or threatened. Congress instructed in plain terms that only upon subjecting proposed revisions to recovery plan criteria to the rigor of public comment would the Secretary (or the FWS) be in a position properly to assess proposed revisions and undertake to consider, upon applying the revised criteria, whether they are met and the protected species should be delisted pursuant to sections 4(a) and (b). After all, the purpose of notice-and-comment procedures is “to ensure that affected parties have an opportunity to participate in and influence agency decision making at an early stage, when the agency is more likely to give real consideration to alternative ideas.” See State of N.J., Dept. of Envtl. Protection v. EPA, 626 F.2d 1038, 1049 (D.C. Cir. 1980) (internal quotation marks and citation omitted) (emphasis added). That the Secretary (or the FWS) may find these requirements inconvenient or view section 4(f)(4) as a “make-work” exercise is irrelevant, for “[w]hen a statute commands an agency without qualification to carry out a particular program in a particular way, the agency’s duty is clear; if it believes the statute untoward in some respect, then ‘it should take its concerns to Congress,’ for ‘[i]n the meantime it must obey [the statute] as written.’” Oceana, Inc. v. Locke, 670 F.3d 1238, 1243 (D.C. Cir. 2011) (quoting Natural Res. Def. Council v. EPA, 643 F.3d 311, 323 (D.C. Cir. 2011)) (second and third alterations in original).
The court’s reliance on Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 72 (2004), is misplaced, see Op. at 10. In determining that Bureau of Land Management (“BLM”) land use plans were not binding documents, the Supreme Court relied on a statutory provision granting the Secretary leeway in implementing plans: “
Viewing the ESA as a whole, see Dole v. United Steelworkers of Am., 494 U.S. 26, 42-43 (1990), — and consistent with “one of the most basic interpretative canons, that ‘[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant,’” Corley, 556 U.S. at 314 (internal citation omitted) (alteration in original) — there is only one statutory reading that gives full effect to all of section 4‘s provisions. For this reason, section 4(c)(2), which provides that determinations to remove a species from the list of endangered or threatened species be “made in accordance with the provisions of subsections (a) and (b),”
II.
Although the Secretary’s statutory challenge is properly resolved under Chevron step one, as there is no ambiguity for the Secretary to interpret, the court errs as well in rejecting appellees’ alternative argument that the Secretary violated the Administrative Procedure Act (“APA”). A delisting, no less than a “listing determination[,] is subject to review under the APA and must be set aside if ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Am. Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C. Cir. 2008) (quoting
A.
“Under APA notice and comment requirements, ‘[a]mong the information that must be revealed for public evaluation are the ‘technical studies and data’ upon which the agency relies [in its rulemaking].’” Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 236 (D.C. Cir. 2008) (quoting Chamber of Commerce v. SEC, 443 F.3d 890, 899 (D.C. Cir. 2006)) (alterations in original). “More particularly, ‘[d]isclosure of staff reports allows the parties to focus on the information relied on by the agency and to point out where that information is erroneous or where the agency may be drawing improper conclusions from it.’” Id. (quoting Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 737 F.2d 1095, 1121 (D.C. Cir. 1984) (alteration and emphasis in original). “It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of . . . data that, [in] critical degree, is known only to the agency.” Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973), superseded by statute on other grounds, Am. Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999); see also Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1403 (9th Cir. 1995).
1. In the Final Rule, the FWS relied heavily on the 2007 Analysis of the Squirrel’s recovery plan as the basis for eliminating the protections of the ESA for the species. See Final Rule, 73 Fed. Reg. at 50,227. It also relied on the 2006 5-Year Review.7 See id. Neither the 2007 Analysis nor the 2006 5-Year Review were published in the Federal Register, see id.; indeed, the 2007 Analysis was created after the close of the public comment period on the proposed rule, see id., and counsel for the Secretary was unable during oral argument to indicate where a member of the public could gain access to the 2007 Analysis prior to, or even after, promulgation of the Final Rule. See Oral Arg., at 20:44-22:08.
Nor did the notice of proposed rulemaking to delist the Squirrel provide adequate substitute notice of the recovery plan revisions set forth in the 2007 Analysis. Instead,
2. Furthermore, the NPRM gave no indication that the FWS intended to abandon “population” as the relevant standard in assessing the Squirrel’s recovery. “Given the strictures of notice-and-comment rulemaking, an agency’s proposed rule and its final rule may differ only insofar as the latter is a ‘logical outgrowth’ of the former.” Envtl. Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005). “A rule is deemed a logical outgrowth if interested parties ‘should have anticipated’ that the change was possible, and thus reasonably should have filed their comments on the subject during the notice-and-comment period.” Northeast Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 952 (quoting City of Waukesha v. EPA, 320 F.3d 228, 245 (D.C. Cir. 2003)).
The NPRM solicited comments on four topics, three of which explicitly sought input on Squirrel population:
We particularly seek comments concerning: (1) Biological, commercial, trade, or other relevant data concerning any threat (or lack thereof) to the [Squirrel]; (2) additional information on the range, distribution, and population size of the [Squirrel] and its habitat; (3) the location of any additional populations of the [Squirrel]; and (4) data on population trends.
71 Fed. Reg. at 75,924 (emphases added). The NPRM sought no comments on the use of “persistence,” rather than population, as the relevant standard, see Ass’n of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 461 (D.C. Cir. 2012), and only vaguely referenced “presence” and “persistence,” see NPRM, 71 Fed. Reg. at 75,926 (citing “strong evidence of the [Squirrel’s] continued presence throughout its range”);
Given the vague references to “persistence” and the explicit requests to comment on population size, interested parties were not reasonably apprised that they should submit comments on the use of “persistence,” rather than population, as the standard. The text of the NPRM provided no basis for anticipating that the FWS “considers persistence to be the best indicator of successfully reproducing populations for [the Squirrel],” Final Rule, 73 Fed. Reg. at 50,227. Yet the FWS’s reliance on “persistence,” and how it was to be defined, were critical shifts in the standard for the Squirrel’s recovery that presented the occasion for notice to the public so comments could address whether the FWS’s definition complied with the ESA’s stated purpose of “conservation” and the FWS could consider those comments before amending the recovery plan, much less completely delisting the Squirrel. The fact that some commenters criticized the lack of population data in the NPRM and the lack of a definition of “persistence,” see Final Rule, 73 Fed. Reg. at 50,227, cannot eliminate the FWS’s obligation to provide notice of its intent to substitute “persistence” for a “population” standard and of the definition of “persistence” and how it related to ESA’s policy of conservation. See Fertilizer Inst. v. EPA, 935 F.2d 1303, 1312 (D.C. Cir. 1991). Having directed parties to focus on population size in their comments, the FWS may not “use the rulemaking process to pull a surprise switcheroo.” Envtl. Integrity Project, 425 F.3d at 996.
The court nowhere addresses these notice problems, despite the fact that this argument appears explicitly (and repeatedly) in appellees’ brief, see, e.g., Appellees’ Br. 36-40, with pin cite citations to and quotations from this circuit’s logical outgrowth doctrine cases. The argument is not, as the court concludes, see Op. at 20, forfeited.
B.
The court’s approval of the Secretary’s reliance on the Squirrel’s “persistence” as the standard for delisting, see Op. at 11-14, is also contrary to the repeated, unambiguous distinction in the ESA between conservation of a species and its mere survival,
The FWS defined “persistence” as “continuing captures of [the Squirrel] over multiple generations at previously documented sites throughout its historical range,” Final Rule, 73 Fed. Reg. at 50,227; see also 2007 Analysis at 2. Stating that “analysis . . . shows no evidence of localized extirpation since the [Squirrel] was listed” and that “[t]he [Squirrel] persists in or near all of the historical areas where it was originally known at the time of listing,” Final Rule, 73 Fed. Reg. at 50,229, the FWS determined that the Squirrel is not extinct and some (although unclear how many) continue to survive after multiple generations.
1. ESA section 4(b) requires that “[t]he Secretary shall make determinations . . . solely on the basis of the best scientific and commercial data available.”
Indeed, one of the main reasons stated in the NPRM for delisting was the FWS’s conclusion that there had been “an increase in the number of individual squirrels.” NPRM, 71 Fed. Reg. at 75,924. In response to comments, however, the FWS acknowledged that “use of the phrase ‘increase in number if [sic] individual [Squirrels]’ was not accurate, as [the FWS] ha[s] not estimated the size of the [Squirrel] population.” See Final Rule, 73 Fed. Reg. at 50,230. If there is no data available to answer the relevant question, section 4(b)(1)(A) does not permit the Secretary to answer another question that does have supporting data. The court’s reasoning presumes that the Secretary may begin with a conclusion (to delist) and then rely on some data remotely related to the species even if in answer to a question untethered to the ESA’s primary goal of recovery and conservation, to satisfy the “best . . . data available” standard. The “best . . . data available” standard cannot be used as an excuse to avoid implementing the recovery plan criteria. If the Secretary (or the FWS) concludes the available data suggests recovery but is insufficient to satisfy the recovery plan criteria, then the recovery plan must be revised in the manner prescribed by section 4(f)(4). This is the process Congress mandated, and it ensures that the criteria for recovery, and the data by which they are measured, are the best available.
2. Even assuming section 4(b)(1)(A) permitted the Secretary to change the standard used to measure a listed species’ recovery, the plain text of the ESA precludes the Secretary’s choice of “persistence.” The ESA defines “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary.”
In sum, contrary to Congress’s plain text, the court jettisons the protections in the ESA for endangered and threatened species and leaves the Secretary (and the FWS) more insulated and less informed than Congress contemplated in strengthening the ESA in 1988. The court’s approval of the FWS’s covert revisions to the Squirrel’s recovery plan, surprise introduction of a new recovery standard in the Final Rule, and adoption of a delisting standard unambiguously foreclosed by the ESA leaves little of the species’ protections Congress provided in the ESA, much less of APA requirements.
Accordingly, I respectfully dissent.
Notes
The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.Id. at 843 n.9 (citations omitted). If, after applying traditional tools of statutory construction, the court determines “the statute is silent or ambiguous with respect to the specific issue,” then, under step two, the court will defer to an agency’s statutory interpretation if it “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843.
The notice-and-comment provision of section 4(f)(4) was an amendment offered by Senator McClure, who explained on the Senate floor that “this amendment will require the Secretary to solicit comments and additional information for consideration from local communities prior to final approval of new recovery plans, or before approval of revisions to existing plans.” 134 Cong. Rec. 19,270 (1988) (statement of Sen. Jim McClure) (emphases added). The amendment was not intended to make the Secretary “responsible for gathering the information. It [instead] allow[s] those most directly affected by a proposal to provide additional information to the Secretary that might otherwise be overlooked.” Id. The final Conference Report reflects the sponsor’s view of the amendment: Although section 4(f)(4) “does not necessitate a rulemaking procedure,” it does “require[]” the Secretary to “consider the public comments before approving the plan.” H.R. CONF. REP. NO. 100-928, at 21(1988), reprinted in 1988 U.S.C.C.A.N. 2738, 2739 (emphasis added).
now know[s] that it is not practicable or necessary to measure actual [Squirrel] population numbers in GRAs. Sampling this widely dispersed, cryptic species is labor intensive and highly inefficient. . . . [The FWS] now considers persistence to be the best indicator of successfully reproducing populations for this subspecies. [The FWS] defines persistence as continuing captures of [Squirrels] over multiple (3-5) generations at previously documented sites throughout the historic range.Id. at 1-2 (emphasis added). The FWS concluded, in view of this new criterion and non-public definition of “persistence,” that the “intent of this criterion [as revised] has been met.” Id. at 3.
the original goal of permanent habitat protection of a few small areas is no longer necessary. . . . There are sufficient numbers of occurrences represented within the core areas such that the threat of a single or widespread catastrophic event eliminating a significant portion of occurrences is substantially reduced. Therefore not all of the GRAs need to be protected in perpetuity.Id. at 5 (emphases added). The FWS concluded that “the intent of this recovery criterion has been met.” Id. at 10.
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.