RIO GRANDE SILVERY MINNOW v. BABBITT
United States Court of Appeals, Tenth Circuit
1193
V. CONCLUSION
We hold that the Secretary violated his non-discretionary duty by failing to designate the critical habitat for the Rio Grande silvery minnow by the statutory deadline. After all the permissible delays and extensions, the ESA required the Secretary to publish a final critical habitat designation by March 1, 1995. This preceded any appropriations cutback or moratorium on spending. Moreover, the moratorium on funding activities essential for making critical habitat designations ended well over two years ago. In sum, the Secretary unlawfully withheld agency action here, and we are required by
That said, we are left to work out the details. Concerned by the Secretary‘s delay and the prospect of more delay if the case is remanded to the district court, plaintiffs ask this court to order the Secretary to complete the critical habitat determination within 30 days. In support of this remedy, plaintiffs cite nine district court orders requiring the Secretary to comply with statutory obligations, within between 5 and 120 days. The plaintiffs, however, cite no case in which a circuit court has set the deadline for compliance.
While we hold that the Secretary must be ordered to comply with his statutory duty to publish a final regulation regarding designation of the critical habitat for the silvery minnow without regard to his preferred priorities, any order now to impose a new deadline for compliance must consider what work is necessary to publish the final rule and how quickly that can be accomplished. Accordingly, we remand the case to the district court with instructions to order the Secretary to issue a final critical habitat designation for the silvery minnow as soon as possible, without regard to the Secretary‘s other priorities under the ESA.
For guidance, we refer the district court to the proceedings in Environmental Defense Center v. Babbitt, 73 F.3d 867 (9th Cir. 1995). There, in a case decided during the moratorium, the Ninth Circuit held that the Secretary violated his nondiscretionary duties to take final action on the California red-legged frog, but remanded to the district court to specify the time for compliance with the ESA after appropriated funds became available. See id. at 872. At a hearing which took place only 10 days after the moratorium was lifted, the district court ordered the Secretary to list the red-legged frog within 14 days. See Environmental Defense Center v. Babbitt, CV-95-2867-R (D.C. Cal. May 6, 1996), Appellant‘s Appendix, at 145.
We REVERSE the district court‘s denial of plaintiffs’ motion to review agency action, VACATE the stay order, and REMAND to the district court to order the Secretary to publish, as soon as possible, “a final regulation, based on such data as may be available at that time, designating, to the maximum extent prudent,” the critical habitat for the Rio Grande silvery minnow, as is required by
UNITED STATES of America, Plaintiff-Appellee, v. Stephen CHASE, Defendant-Appellant.
No. 98-4926
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
May 5, 1999.
Adalberto Jordan, Troy D. Ferguson, Miami, FL, for Plaintiff-Appellee.
Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.
BLACK, Circuit Judge:
Appellant Stephen Chase appeals his sentence for possession of an unregistered firearm, in violation of
I. BACKGROUND
Prior to sentencing in this case, Appellant asserted the following five grounds for downward departure: (1) Appellant possessed weapons to avoid a greater perceived harm; (2) Appellant‘s conduct was aberrant; (3) Appellant‘s old age and weak physical condition warrant probation; (4) Appellant would lose his professional teaching license as a result of his conviction; and (5) the totality of the circumstances place this case outside the heartland of Sentencing Guidelines cases.
At sentencing, Appellant presented witnesses and asked the court to exercise its “great discretion” to depart downward. The district court refused, stating:
I‘ve heard your evidence. I have considered your arguments. I‘ve looked at each one of the bases for a downward departure to see if it is justified either
under the [G]uideline provisions as well as under the case law interpreting those provisions. The departure on the basis of lesser harms would not support the downward departure. The departure based on aberrant behavior is not supported by the [G]uideline provisions or the Eleventh Circuit authority interpreting that provision. Likewise with respect to departure based on age and physical condition. Again, as to departure based on loss of privilege to teach exceptional children and finally with respect to departure based on exceptional community service. Consequently, I deny the motion for downward departure. . . . Taking all of them into consideration, collectively, they would not warrant a downward departure.
II. DISCUSSION
We lack jurisdiction to review a sentencing court‘s refusal to depart downward when the decision is based on the court‘s discretionary authority. United States v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir. 1998). We do, however, have jurisdiction if the sentencing court erroneously believes it lacks discretionary authority to depart downward. Id. The basis for the sentencing court‘s denial of a departure therefore has important consequences for our ability to review a refusal to depart.
Appellant contends the district court believed it had no authority to depart downward because the court did not provide findings of fact, discuss the application of the Guidelines to those facts, or state whether this case is atypical and outside the heartland of sentencing cases. In the alternative, he argues we should infer the district court believed it lacked discretionary authority to depart downward because the basis for its refusal is ambiguous.
We join the other Circuits that have addressed this issue in holding that when nothing in the record indicates otherwise, we assume the sentencing court understood it had authority to depart downward.1 See United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir. 1996); United States v. Byrd, 53 F.3d 144, 145 (6th Cir. 1995); United States v. Hurtado, 47 F.3d 577, 585 (2d Cir. 1995); United States v. Pinnick, 47 F.3d 434, 439-40 (D.C. Cir. 1995); United States v. Helton, 975 F.2d 430, 434 (7th Cir. 1992); United States v. Bailey, 975 F.2d 1028, 1035 (4th Cir. 1992); United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991); United States v. Garcia-Garcia, 927 F.2d 489, 490-91 (9th Cir. 1991).
Here, there is no indication the district court misapprehended its authority to depart downward and no party argued the court lacked authority to depart. The court did not express any ambivalence regarding its authority to depart and the evidence does not otherwise reflect the district court misapprehended its authority. Cf. United States v. Webb, 139 F.3d 1390, 1394-1395 (11th Cir. 1998) (holding the district court misapprehended its authority where evidence strongly suggested court‘s ambivalence regarding its authority). We therefore assume the district court understood it had authority to depart downward and simply decided not to exercise its discretionary authority. Accordingly, we do not have jurisdiction to review the district court‘s decision.
AFFIRMED.