Center for Bio. Diversity v. Deb Haaland ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 21-35121
DIVERSITY,
Plaintiff-Appellant, D.C. No. 9:19-cv-
00109-DLC
v.
DEBRA ANNE HAALAND, in her OPINION
official capacity as Secretary of the
U.S. Department of the Interior;
MARTHA WILLIAMS, in her official
capacity as Director of the U.S. Fish
and Wildlife Service,
Defendants-Appellees,
STATE OF WYOMING; STATE OF
IDAHO; WYOMING STOCK
GROWERS ASSOCIATION;
WYOMING FARM BUREAU
FEDERATION; UTAH FARM
BUREAU FEDERATION,
Intervenor-Defendants-
Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
2 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
Argued and Submitted April 12, 2022
Seattle, Washington
Filed January 19, 2023
Before: Danny J. Boggs, * Andrew D. Hurwitz, and
Jennifer Sung, Circuit Judges.
Opinion by Judge Hurwitz;
Dissent by Judge Sung
SUMMARY **
Final Agency Action
The panel affirmed, on different grounds, the district
court’s summary judgment against the Center for Biological
Diversity in the Center’s action petitioning to amend the
Grizzly Bear Recovery Plan that the Secretary of the Interior
adopted as a “recovery plan” for an endangered or threatened
species under the Endangered Species Act (“ESA”).
The U.S. Fish & Wildlife Service (the “Service”)
approved the original Grizzly Bear Recovery Plan in 1982
and revised it in 1993. Since 1993, the Service has issued
*
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 3
several Plan Supplements that provide habitat-based
recovery criteria for identified recovery zones.
The district court entered summary judgment against the
Center because it found that the Plan was not a “rule” subject
to a petition for amendment under 5 U.S.C § 553(e). It also
found that it lacked jurisdiction to review the denial of the
petition under the citizen-suit provision of the ESA, 16
U.S.C. § 1540(g)(1)(C), because the Center did not allege
that the Service failed to perform any nondiscretionary
duty. The panel affirmed on the ground that Administrative
Procedure Act (“APA”) review was not available because,
even assuming the Plan was a “rule,” the denial of the
Center’s petition was not “final agency action.” 5 U.S.C. §
704.
The Center filed this action seeking judicial review under
the APA and the ESA, claiming that the Service failed to
develop and implement a recovery plan that provided for the
conservation and survival of the grizzly bear; violated its
affirmative duty to conserve the grizzly bear by not pursuing
additional recovery areas; and unreasonably denied the
Center’s petition to update the Plan. On appeal, the Center
did not challenge the district court’s holding that it lacked
ESA jurisdiction. Because the Center did not claim that the
Service’s denial of its petition was otherwise reviewable by
statute, the sole issue is whether denial of the petition is
“final agency action.”
Because the term “rule” under the APA is defined
broadly, the panel assumed that a recovery plan fit under this
broad umbrella. See 5 U.S.C. § 551(4). The panel also
assumed that an interested party could file a petition under §
553(e) to amend a recovery plan.
4 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
Pursuant to Bennett v. Spear, 520 U.S. 154, 177-78
(1997), an agency action is final if it both marks the
consummation of the agency’s decisionmaking process, and
it determines rights or obligations from which legal
consequences flow. Under the first Bennett criterion, the
panel held that the Service plainly did not treat the 1993 Plan
as the last step, where it repeatedly issued Plan
Supplements. The panel further held that even assuming that
the adoption of a recovery plan satisfied the first Bennett
criterion, it did not satisfy the second criterion. The Service
does not initiate enforcement actions based on recovery
plans; recovery plans do not impose any obligation on or
confer any right to anyone; and a recovery plan does not
contain any binding legal obligations on the agency.
The panel concluded that a decision not to modify a plan
was not a final agency action. Because the Center’s suit did
not challenge a final agency action, the district court was not
authorized to review the denial of the petition under § 704 of
the APA.
Judge Sung dissented. She disagreed with the district
court’s holding that the Recovery Plan was not a “rule”
under the APA, and therefore not subject to a rulemaking
petition, because recovery plans are “non-binding.” She also
disagreed with the majority’s holding that even if the
Recovery Plan was a “rule,” the Service’s denial of the
Center’s petition was not a final agency action because
recovery plans are non-binding. She would hold that the text
of the APA and precedent provide that the statutory
definition of “rule” encompasses both binding and non-
binding rules, and that both binding and non-binding rules
are subject to rulemaking petitions. Further, an agency’s
denial of a rulemaking petition is final agency action, even
where the underlying rule is non-binding. Judge Sung would
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 5
conclude that the Recovery Plan was a “rule” as that term is
defined by the APA, and the Service’s denial of the Center’s
rulemaking petition was a final agency action subject to
judicial review. She would reverse and remand to the
district court to review the denial of the rulemaking petition
for abuse of discretion under the highly deferential arbitrary
and capricious standard.
COUNSEL
Eric R. Glitzenstein (argued), Center for Biological
Diversity, Washington, D.C.; Collette L. Adkins, Center for
Biological Diversity, Circle Pines, Minnesota; Kristine M.
Akland, Akland Law Firm PLLC, Missoula, Montana;
Andrea Zaccardi, Center for Biological Diversity, Victor,
Idaho; for Plaintiff-Appellant.
Benjamin W. Richmond (argued), Devon Flanagan, Robert
Lundman, and Andrew Mergen, Attorneys; Todd Kim;
Assistant Attorney General; United States Department of
Justice, Environment & Natural Resources Division,
Washington, D.C.; Dana Jacobsen, Attorney, United States
Department of the Interior, Office of the Solicitor,
Washington, D.C., for Defendants-Appellees.
Travis S. Jordan (argued), Senior Assistant Attorney
General; James C. Kaste, Deputy Attorney General,
Wyoming Attorney General’s Office, Cheyenne, Wyoming;
Adrian Miller, Sullivan Miller Law PLLC, Billings,
Montana; for Intervenor-Defendant-Appellee State of
Wyoming.
Owen Moroney, Deputy Attorney General; Darrell Early,
Natural Resources Division Chief; Lawrence G. Wasden,
6 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
Attorney General; for Intervenor-Defendant-Appellee State
of Idaho.
William E. Trachman and Joseph A. Bingham, Mountain
States Legal Foundation, Lakewood, Colorado, for
Intervenors-Defendants-Appellees Wyoming Stock
Growers Association, Wyoming Farm Bureau Federation,
and Utah Farm Bureau Federation.
Katherine A. Meyer, Harvard Animal Law & Policy Clinic,
Cambridge, Massachusetts; for Amici Curiae Law
Professors Daniel J. Rohlf, Pat A. Parenteau, Oliver Houck,
and Robert Percival.
OPINION
HURWITZ, Circuit Judge:
The Endangered Species Act of 1973 (“ESA”) requires
the Secretary of the Interior to adopt a “recovery plan” for
any endangered or threatened species. 16 U.S.C. § 1533(f).
This case concerns the Grizzly Bear Recovery Plan (“Plan”).
The Center for Biological Diversity petitioned to amend the
Plan; after the petition was denied, the Center sought judicial
review under the ESA and the Administrative Procedure Act
(“APA”). As relevant to this appeal, the district court
granted summary judgment against the Center because it
found that the Plan was not a “rule” subject to a petition for
amendment under 5 U.S.C. § 553(e). We affirm, albeit on
different reasoning, concluding that APA review is not
available because, even assuming the Plan is a “rule,” the
denial of the Center’s petition was not “final agency action.”
5 U.S.C. § 704.
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 7
I.
The ESA requires the Secretary to “determine whether
any species is an endangered species or a threatened
species.” 16 U.S.C. § 1533(a)(1). For each such species, the
Secretary must “designate any habitat . . . which is then
considered to be critical habitat.” Id. § 1533(a)(3)(A)(i).
The ESA provides criteria for making endangered-status
determinations and critical-habitat designations; a process
by which interested parties may petition for listing, delisting,
or revisions to species and habitat lists; and notice-and-
comment requirements for any regulation proposed to
implement a determination, designation, or revision. Id.
§ 1533(b). The Secretary must keep a list of endangered and
threatened species and review those status designations at
least once every five years. Id. § 1533(c). The Secretary
must also issue regulations necessary to conserve such
species, which may include prohibitions on certain activities
such as transporting or selling endangered animals. Id.
§ 1533(d); see also id. § 1538(a)(1).
The ESA also requires the Secretary to develop and
implement “recovery plans” “for the conservation and
survival of endangered species and threatened species.” Id.
§ 1533(f)(1). Recovery plans must include “a description of
such site-specific management actions as may be necessary
to achieve the plan’s goal”; “objective, measurable criteria”
that will lead to the species’ delisting; and “estimates of the
time required and the cost” for measures and intermediate
steps to achieve the plan’s goal. Id. § 1533(f)(1)(B). The
Secretary must “provide public notice and an opportunity for
public review and comment” before approving a new or
revised recovery plan, id. § 1533(f)(4), and “consider all
information presented during the public comment period,”
id. § 1533(f)(5). However, the ESA does not require the
8 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
Secretary to update recovery plans.
In 1975, the Fish and Wildlife Service 1 identified the
grizzly bear of the 48 conterminous states, the Ursus arctos
horribilis, as a threatened species. 40 Fed. Reg. 31734–36
(July 28, 1975). The Service approved the original Grizzly
Bear Recovery Plan in 1982 and revised it in 1993. The Plan
aims to “identify actions necessary for the conservation and
recovery of the grizzly bear” which “ultimately will result in
the removal of the species from ‘threatened’ status.”
The Plan identifies recovery zones, or “areas needed for
recovery of the species,” and sets forth subgoals for each
zone. It also addresses “other possible recovery areas
throughout the historical range of the grizzly bear,” and has
subgoals for evaluating the feasibility of grizzly-bear
recovery in those areas. Since 1993, the Service has issued
several Plan “Supplements” that provide habitat-based
recovery criteria for identified recovery zones. The
Supplements detail priority recovery actions, which include
the development of strategies, programs, data collection, and
species monitoring efforts, but also suggest steps such as
creating coordinated efforts with law enforcement,
providing guidance to hunters, and refining procedures for
managing nuisance bears.
Although the Plan and Supplements contain criteria that
the Service believes will ultimately result in the grizzly
bear’s removal from the list of threatened species,
satisfaction of those criteria does not compel delisting.
Instead, if the Secretary ever concludes, based on “the best
scientific and commercial data available,” 16 U.S.C.
1
The Service has been delegated responsibility to administer parts of the
ESA. See 50 C.F.R. § 402.01(b).
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 9
§ 1533(b)(1)(A), that the species is no longer threatened
because of any of the statutory factors, id. § 1533(a)(1), the
agency must provide notice of a proposed delisting
regulation and the opportunity to comment, id. § 1533(b)(5),
and publish a final regulation to delist, id. § 1533(b)(6). The
Service has sought to remove grizzly bears from the list of
threatened species in the past, but the designation of
populations of Ursus arctos horribilis as a threatened species
remains in effect. See Crow Indian Tribe v. United States,
965 F.3d 662, 672 (9th Cir. 2020) (summarizing delisting
efforts concerning the Yellowstone grizzly).
II.
In June 2014, the Center for Biological Diversity filed a
petition with the Service, asking it to
meet its mandatory duty to develop a
recovery plan for the grizzly bear, 16 U.S.C.
§ 1533(f)[,] by revising and updating its 1993
recovery plan for the grizzly bear (Ursus
arctos horribilis) for the populations that
were identified at the time the species was
listed, and by identifying all additional
geographic areas where recovery strategies
are needed, to ensure full recovery of the
species across its native range in the United
States.
The Center contended that the agency had “failed to develop
recovery strategies for ecosystems that still contain
substantial and sufficient suitable habitat,” leaving grizzly
bears “endangered across significant portions of their range
as a biological fact.” The petition proposed recovery areas
in Arizona, New Mexico, California, and Utah that it
10 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
contended could support grizzly-bear populations and urged
the Service to “further evaluate the recovery potential of all
of these areas” in a revised recovery plan.
The Service denied the petition, stating that neither the
ESA nor the APA authorizes petitions to create or revise
recovery plans. Although acknowledging that the APA
permits the filing of a petition for issuance, amendment, or
repeal of a “rule,” 5 U.S.C. § 553(e), the Service stated that
a recovery plan is not a “rule” under the APA. The Service
added that it had satisfied its “statutory responsibilities for
recovery planning and implementation for the grizzly bear”
pursuant to 16 U.S.C. § 1533(f)(1), explaining that it had
prioritized grizzly-bear recovery in locations with historical
populations as of 1975 and where habitat and environmental
conditions would support species recovery. The Service did
not close the door on future revision of the Plan, noting that
“any additional recovery planning is subject to Service
prioritization and is discretionary.”
The Center then filed this action seeking judicial review
under the APA and the ESA, claiming that the Service failed
to develop and implement a recovery plan that provided for
the conservation and survival of the grizzly bear; violated its
affirmative duty to conserve the grizzly bear by not pursuing
additional recovery areas; and unreasonably denied the
Center’s petition to update the Plan. 2 The district court
granted summary judgment to the Service and to state and
private intervenors. The court agreed with the Service that
because the Plan was not a “rule” under the APA, the Plan
2
The Center also alleged that the agency had failed to prepare a timely
five-year status review for the grizzly bear in violation of 16 U.S.C. §
1533(c)(2)(A). That claim was settled.
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 11
was not subject to a petition for amendment under 5 U.S.C.
§ 553(e). It also found that it lacked jurisdiction to review
the denial of the petition under the citizen-suit provision of
the ESA, 16 U.S.C. § 1540(g)(1)(C), because the Center did
not allege that the Service failed to perform any
nondiscretionary duty.
III.
A.
In granting summary judgment, the district court held
that the Plan was not an APA “rule” subject to a petition for
amendment under 5 U.S.C. § 553(e). Because the term
“rule” under the APA “is defined broadly,” Perez v. Mortg.
Bankers Ass’n, 575 U.S. 92, 95–96 (2015), we assume, as
our dissenting colleague argues, that a recovery plan fits
under this broad umbrella. See 5 U.S.C. § 551(4) (defining
“rule” as “the whole or a part of an agency statement of
general or particular applicability and future effect designed
to implement, interpret, or prescribe law or policy”); Dissent
at Part I. We also assume, as our dissenting colleague
argues, that an interested party can file a petition under §
553(e) to amend a recovery plan. See 5 U.S.C. § 553(e)
(“Each agency shall give an interested person the right to
petition for the issuance, amendment, or repeal of a rule.”);
Dissent at Part II.
But even given those assumptions, the APA grants the
district court jurisdiction to review only “[a]gency action
made reviewable by statute and final agency action for
which there is no other adequate remedy in a court.” 5
U.S.C. § 704. On appeal, the Center does not challenge the
district court’s holding that it lacked ESA jurisdiction.
Because the Center does not claim that the Service’s denial
of its petition was otherwise “made reviewable by statute,”
12 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
the sole issue for decision is whether denial of the petition is
“final agency action.” Id.B.
An agency action is “final” only if it both (1) “mark[s]
the consummation of the agency’s decisionmaking
process—it must not be of a merely tentative or interlocutory
nature,” and (2) is “one by which rights or obligations have
been determined, or from which legal consequences will
flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997)
(cleaned up). “In determining whether an agency’s action is
final, we look to whether the action amounts to a definitive
statement of the agency’s position or has a direct and
immediate effect on the day-to-day operations of the subject
party, or if immediate compliance with the terms is
expected.” Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465
F.3d 977, 982 (9th Cir. 2006) (cleaned up). This requires
“focus on the practical and legal effects of the agency
action,” not on labels, and finality is “interpreted in a
pragmatic and flexible manner.” Id. (cleaned up).
It is open to question whether the adoption of a recovery
plan meets the first Bennett criterion—“consummation of
the agency’s decisionmaking process.” 520 U.S. at 178(cleaned up). The ESA requires a recovery plan to be
developed using “the services of appropriate public and
private agencies and institutions, and other qualified
persons,” and mandates, prior to final approval, “public
notice and an opportunity for public review and comment on
such plan.” 16 U.S.C. § 1533(f)(2), (4). This process
suggests that the issuance of a recovery plan is not a
“tentative or interlocutory” action, but rather the agency’s
“arriv[al] at a definitive position.” S.F. Herring Ass’n v.
Dep’t of the Interior, 946 F.3d 564, 578–79 (9th Cir. 2019)
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 13
(cleaned up). But, on the other hand, the Service’s plans for
grizzly-bear recovery arguably “are only steps leading to an
agency decision, rather than the final action itself.” See
Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 925
(9th Cir. 1999) (holding that monitoring and reporting “does
not ‘consummate’ any agency process”). And, although “the
Agency’s own designation of its action” is not
determinative, Abramowitz v. EPA, 832 F.2d 1071, 1075
(9th Cir. 1987), the Service plainly has not treated the 1993
Plan as the last step, as it has repeatedly issued Plan
Supplements.
But, even assuming that the adoption of a recovery plan
satisfies the first Bennett criterion, it does not satisfy the
second. The caselaw makes plain that adoption of a recovery
plan is not agency action “by which rights or obligations
have been determined, or from which legal consequences
will flow.” Bennett, 520 U.S. at 178 (cleaned up). “The
Endangered Species Act does not mandate compliance with
recovery plans for endangered species.” Cascadia
Wildlands v. Bureau of Indian Affs., 801 F.3d 1105, 1114 n.8
(9th Cir. 2015); see also Conservation Cong. v. Finley, 774
F.3d 611, 614 (9th Cir. 2014) (noting that although recovery
plans “provide guidance for the conservation of [endangered
and threatened] species, they are not binding authorities”);
Friends of the Wild Swan, Inc. v. Dir. of U.S. Fish & Wildlife
Serv., 745 F. App’x 718, 721 (9th Cir. 2018) (concluding
that recovery plans are not final agency actions because they
do not “create any legal rights or obligations for the Service
or any third parties”). The Service does not initiate
enforcement actions based on recovery plans. Cf. Sackett v.
EPA, 566 U.S. 120, 126 (2012); S.F. Herring Ass’n, 946
F.3d at 580. Nor do recovery plans impose any obligation
on or confer any right to anyone. See Ukiah Valley Med. Ctr.
14 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
v. FTC, 911 F.2d 261, 265 (9th Cir. 1990). Moreover, a
recovery plan does not contain any “binding legal
obligations to which [the agency] is subject.” Whitewater
Draw Nat. Res. Conservation Dist. v. Mayorkas, 5 F.4th 997,
1009 (9th Cir. 2021), cert. denied, 142 S. Ct. 713 (2021); see
also Cal. Cmtys. Against Toxics v. EPA, 934 F.3d 627, 637
(D.C. Cir. 2019) (stating that courts must “make Bennett
prong-two determinations based on the concrete
consequences an agency action has or does not have as a
result of the specific statutes and regulations that govern it”).
The decision of the District of Columbia Circuit in
Friends of Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir.
2012), upon which the Center relies, actually makes our
point. To be sure, that opinion emphasized that the ESA
requires the Secretary to “implement” a recovery plan and
that “the agency is obligated to work toward the goals set in
its recovery plan.” Id. at 437. But the court also stressed
that a recovery plan is “a non-binding document,” id. at 434,
and therefore concluded that the Secretary was not prevented
from removing a species from the endangered list simply
because “several criteria in the agency’s Recovery Plan for
the species had not been satisfied,” id. at 429, 436. Rather,
the court explained:
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
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 15
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.
Id. at 434.
Thus, although the Service had the statutory obligation
to draw up a roadmap for recovery of the grizzly bear, “legal
consequences do not necessarily flow from that duty, nor do
rights or obligations arise from it.” See Ecology Ctr., 192
F.3d at 925. Although the map the Service drew may well
help the agency “chart [its] course,” Friends of Blackwater,
691 F.3d at 434, adopting the map is not an agency action
“by which rights or obligations have been determined, or
from which legal consequences will flow,” Bennett, 520 U.S.
at 178 (cleaned up). Nor does the Service have any statutory
obligation to modify a recovery plan once adopted. It
follows that a decision not to grant a petition to modify a
plan is not final agency action.
C.
Our dissenting colleague argues that the denial of any
petition filed under 5 U.S.C. § 553(e) is “final agency
action” subject to judicial review under § 704. Dissent at
Part III. But that is not what the APA says. The APA does
not provide that all agency denials of § 553(e) petitions are
judicially reviewable. Indeed, § 553 does not address
judicial review at all. Rather, judicial review is addressed in
§ 704, which, as relevant here, expressly limits review to
“final agency action.” The denial of the Center’s petition to
16 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
amend the Plan is not final agency action because, like
adoption of the Plan itself, it does not change the Service’s
statutory obligations, alter the rights of the Center or any
other third party, or give rise to any binding legal
consequences. Nor does it “impose an obligation, deny a
right, or fix some legal relationship.” Or. Nat. Desert Ass’n,
465 F.3d at 987 (quoting Ukiah, 911 F.2d at 264). Rather,
the Service’s denial of the Center’s petition “does not bind
anyone to anything.” See S. Cal. All. of Publicly Owned
Treatment Works v. EPA, 8 F.4th 831, 837–38 (9th Cir.
2021).
Instead of treating denials of rulemaking petitions as a
species apart from other purportedly final agency actions, we
evaluate the Service’s denial of the petition to amend the
Plan under the same test applicable to a “direct” challenge to
the Plan. See, e.g., Friends of the Wild Swan, 745 F. App’x
at 719–20 (addressing complaint directly alleging various
deficiencies in the bull trout recovery plan). We must
“examine the concrete impact the [action] had on [petitioner]
and its members—in short, none whatsoever.” Indep. Equip.
Dealers Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004).
Then-Judge Roberts’s opinion in Independent
Equipment Dealers Association underscores the point.
There, the petitioner challenged a letter from the EPA
responding to a request that the agency confirm an
interpretation of its emissions regulations. See id. at 421.
The agency informed the petitioner that it did not agree with
the proposed interpretation. Id. at 424–25. The D.C. Circuit
held that the EPA letter was not reviewable agency action,
noting that it “imposed no obligations and denied no relief,”
“[c]ompell[ed] no one to do anything,” and “had no binding
effect whatsoever.” Id. at 427. So too here—the Service’s
unwillingness to expand its list of discretionary tasks and
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 17
non-binding criteria has none of the markers of a reviewable
action.
The Center’s cited authorities do not lead us to a contrary
conclusion. In Massachusetts v. EPA, for example, the
Supreme Court held that the EPA’s denial of a petition for
the agency to issue mandatory regulations concerning
greenhouse-gas emissions from new motor vehicles was
“susceptible to judicial review.” 549 U.S. 497, 510–11, 527
(2007). But such a regulation, if adopted, would have clearly
changed the legal rights and obligations of not only the EPA,
but also motor-vehicle manufacturers. The case does not
displace Bennett’s limitation of APA judicial review to only
those agency actions with legal consequences.
Similarly, O’Keeffe’s, Inc. v. U.S. Consumer Product
Safety Commission, 92 F.3d 940, 941 (9th Cir. 1996),
involved review of the agency’s denial of a petition to amend
regulations that set “impact standards” for glass and glazing
materials used in doors and other products. We treated
denial of the petition as “final agency action,” see id. at 942,
but unlike the situation before us, the agency’s decision to
change the list of materials subject to the impact standards
directly affected the obligations of regulated parties,
including the petitioner and its competitors. See id. at 941;
see also id. at 949 (Reed, J., dissenting).
The same is true of the other cases relied upon by the
Center and the dissent. See Weight Watchers of Greater
Wash. State, Inc. v. FTC, 830 F. Supp. 539, 540–41 (W.D.
Wash. 1993) (involving petition to regulate weight-loss
advertising via rulemaking instead of adjudication), aff’d in
part, rev’d in part sub nom. Weight Watchers Int’l, Inc. v.
FTC, 47 F.3d 990 (9th Cir. 1995); see also Coll. Sports
Council v. Dep’t of Educ., 357 F. Supp. 2d 311, 311 (D.D.C.
18 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
2005) (involving petition to repeal a policy interpretation
that allegedly authorized gender-conscious capping or
cutting of plaintiffs’ male athletic programs), aff’d in part,
rev’d in part, 465 F.3d 20 (D.C. Cir. 2006); Nat’l Wrestling
Coaches Ass’n v. U.S. Dep’t of Educ., 263 F. Supp. 2d 82,
126 (D.D.C. 2003) (same), aff’d, 366 F.3d 930 (D.C. Cir.
2004); Cap. Network Sys., Inc. v. FCC, 3 F.3d 1526, 1530
(D.C. Cir. 1993) (involving petition to enforce just,
reasonable, and nondiscriminatory rates on carriers); Am.
Horse Prot. Ass’n, Inc. v. Lyng, 812 F.2d 1, 2, 5–7 (D.C. Cir.
1987) (involving petition to amend regulations that limited
the “soring” of horses); WWHT, Inc. v. FCC, 656 F.2d 807,
809, 816–18 (D.C. Cir. 1981) (involving petition to amend
rules addressing cable carriage of subscription-television
signals); Nat. Res. Def. Council, Inc. v. SEC, 606 F.2d 1031,
1036, 1043–47 (D.C. Cir. 1979) (involving petition to
undertake rulemaking that would require corporate
disclosure of environmental and equal-employment
information). 3 These cases involved agency action with
legal consequences, and thus do not support the far-reaching
proposition that the denial of a petition to amend a non-
binding document is necessarily reviewable final agency
action simply because it is styled as a petition filed under §
553(e). Were that the case, the APA’s requirement of final
agency action would lose all meaning, as an applicant
seeking review of agency decisions with no legally binding
effect would merely have to style his request to the agency
as a rulemaking petition. That would abandon “the
pragmatic approach we have long taken to finality.” U.S.
3
The dissent’s reliance on ITT World Communications, Inc. v. FCC, 699
F.2d 1219 (D.C. Cir. 1983), is similarly misplaced because the agency
action at issue would have changed the FCC’s legal authority.
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 19
Army Corps of Eng’rs v. Hawkes Co., Inc., 578 U.S. 590,
599 (2016) (cleaned up). Under that pragmatic approach,
finality does not turn on labels, but rather on the “practical
and legal effects” of a particular action. Or. Nat. Desert
Ass’n, 465 F.3d at 982 (cleaned up).
IV.
The Service’s decision not to amend the Grizzly Bear
Recovery Plan, like adoption of the Plan itself, is not an
action “from which legal consequences will flow.” Bennett,
520 U.S. at 178 (cleaned up). Because the Center’s suit does
not challenge final agency action, the district court was not
authorized to review the denial of the petition under § 704 of
the APA.
AFFIRMED.
SUNG, Circuit Judge, dissenting:
I respectfully dissent. It is undisputed that the Center for
Biological Diversity filed a petition to amend the Grizzly
Bear Recovery Plan, and that the U.S. Fish and Wildlife
Service denied that petition. The Center seeks review of the
denial of its rulemaking petition, claiming that the denial was
arbitrary and capricious. Under longstanding precedent, an
agency’s denial of a rulemaking petition is final agency
action subject to judicial review, pursuant to the
Administrative Procedure Act. The district court nonetheless
dismissed the Center’s claim after concluding that the
Recovery Plan is not a “rule” under the APA, and therefore
not subject to a rulemaking petition, because recovery plans
are “non-binding.” The majority takes a different tack: They
assume that the Recovery Plan is a “rule” and that the Center
20 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
had a right to petition for amendment of the Plan. But they
conclude that the Service’s denial of the Center’s petition is
not final agency action because recovery plans are non-
binding.
I disagree with both the district court and the majority.
As explained below, the text of the APA and precedent make
clear that the statutory definition of “rule” encompasses both
binding and non-binding rules, and that both binding and
non-binding rules are subject to rulemaking petitions.
Further, an agency’s denial of a rulemaking petition is final
agency action, even where the underlying rule is non-
binding. By concluding otherwise, the majority opinion
exacerbates confusion in this area of administrative law and
creates an unwarranted barrier to judicial review.
I.
The APA defines “‘[r]ule’ . . . broadly to include
‘statement[s] of general or particular applicability and future
effect’ that are designed to ‘implement, interpret, or
prescribe law or policy.’” Perez v. Mortg. Bankers Ass’n,
575 U.S. 92, 95–96 (2015) (alteration in original) (quoting 5
U.S.C. § 551(4)). This statutory definition is so broad it
“include[s] nearly every statement an agency may make.”
Batterton v. Marshall, 648 F.2d 694, 700 (D.C. Cir. 1980).
A recovery plan fits easily within that broad definition.
The Endangered Species Act requires the Service to
“develop and implement [recovery] plans . . . for the
conservation and survival of endangered species and
threatened species.” 16 U.S.C. § 1533(f)(1). The Act also
provides that each recovery plan shall, “to the maximum
extent practicable,” incorporate “site-specific management
actions as may be necessary to achieve the plan’s goal for
the conservation and survival of the species,” and “objective,
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 21
measurable criteria which, when met, would result in a
determination . . . that the species be removed from the”
endangered or threatened species list. 16 U.S.C. §
1533(f)(1)(B). See also Friends of Blackwater v. Salazar,
691 F.3d 428, 437 (D.C. Cir. 2012) (“[Section] 4(f)(1) of the
Act imposes mandatory obligations upon the Secretary.”);
Fund for Animals v. Babbitt, 903 F. Supp. 96, 111 (D.D.C.
1995), amended by 967 F. Supp. 6 (D.D.C. 1997)
(concluding Service failed to meet obligation under the ESA
to incorporate sufficient objective, measurable delisting
criteria in Grizzly Bear Recovery Plan). “The Secretary,
moreover, must implement the [recovery] plan.” Friends of
Blackwater, 691 F.3d at 437 (citing 16 U.S.C. § 1533(f)(1)).
Despite the breadth of the APA’s definition of “rule,” the
district court concluded that a recovery plan cannot
implement, interpret, or prescribe law or policy—and
therefore cannot be a “rule”—because recovery plans are
“non-binding.” 1 That was error.
Under the APA, the term “rule” includes both binding
rules (also known as “substantive” or “legislative” rules) and
non-binding rules (interpretive rules, general statements of
policy, and rules of agency organization, procedure, or
1
See, e.g., Friends of Blackwater, 691 F.3d at 432-34 (holding that
Service did not violate ESA by delisting species when statute’s delisting
criteria were met, but recovery plan’s delisting criteria were not);
Cascadia Wildlands v. Bureau of Indian Aff’s, 801 F.3d 1105, 1114 n. 8
(9th Cir. 2015) (noting “[i]t is undisputed that, generally, FWS recovery
plans are not mandatory”). The parties dispute whether the prior cases
regarding recovery plans establish that all recovery plans are non-
binding in all respects, but there is no need to resolve that issue. As
explained in this dissent, even assuming that the Grizzly Bear Recovery
Plan is a non-binding, general statement of policy, it is still a “rule” under
the APA.
22 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
practice). See Perez, 575 U.S. at 96. 2 As the Court explained
in Perez, binding rules “have the force and effect of law” and
must be issued through the notice-and-comment process
prescribed by Section 4 of the APA, 5 U.S.C. §
553(b)(A). Id. (quotation marks and citation omitted).
However, “[n]ot all ‘rules’ must be issued through the
notice-and-comment process.” Id. “Interpretative rules,
general statements of policy, and rules of agency
organization, procedure, or practice” are expressly exempt
from the notice-and-comment requirement. Id.; 5 U.S.C. §
553(b)(A). See also Gunderson v. Hood, 268 F.3d 1149,
1153-54 (9th Cir. 2001) (“The APA requires that rules
promulgated by administrative agencies undergo certain
procedures unless those rules are ‘interpretive rules, general
statements of policy, or rules of agency organization,
procedure, or practice.’” (citing 5 U.S.C. § 551(4) (APA
definition of rule) and 5 U.S.C. § 553(b)(3)(A) (APA notice-
and-comment requirement))).
Because interpretive rules, policy statements, and
agency procedure rules are exempt from the notice-and-
comment requirement, they are, by definition, “non-
binding.” See Perez, 575 U.S. at 97 (“The absence of a
notice-and-comment obligation makes the process of issuing
interpretive rules comparatively easier for agencies than
issuing legislative rules. But that convenience comes at a
price: Interpretive rules do not have the force and effect of
law and are not accorded that weight in the adjudicatory
2
See also Chrysler Corp. v. Brown, 441 U.S. 281, 301 (1979) (“The
central distinction among agency regulations found in the APA is that
between ‘substantive rules’ on the one hand and ‘interpretative rules,
general statements of policy, or rules of agency organization, procedure,
or practice’ on the other.” (quoting 5 U.S.C. §§ 553(b), (d))).
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 23
process.” (internal quotation marks and citation
omitted)). 3 The non-binding status of interpretive rules,
policy statements, and agency procedure rules, however,
does not remove them from the broad definition of
“rule.” 4 See Perez, 575 U.S. at 95-96; see also Thomas v.
New York, 802 F.2d 1443, 1446 n * (D.C. Cir. 1986). In
Thomas, then-Judge Scalia addressed “the misconception
that the classification of an agency statement as a rule
depends upon whether it substantially affects the interests of
private parties” and explained that, despite “somewhat
misleading” past decisions, “other decisions and the APA
itself make clear that the impact of an agency statement upon
private parties is relevant only to whether it is the sort of rule
that is a rule of procedure, or a general statement of policy,
and thus does not require notice and comment, not to
whether it is a rule at all.” 802 F.2d at 1446 n * (emphases
in original).
3
Because of Friends of Blackwater and following cases, the district court
and majority believe, and this dissent assumes, that recovery plans are
non-binding. That characterization, however, may be overbroad or
incorrect: Recovery plans are subject to a notice-and-comment process
under the ESA. 16 U.S.C. § 1533(f)(4). In any event, the conclusion that
recovery plans are “rules” that are subject to public participation through
the petition process is consistent with that notice-and-comment
requirement. “The essential purpose of according . . . notice and
comment opportunities is to reintroduce public participation and fairness
to affected parties after governmental authority has been delegated to
unrepresentative agencies.” Batterton, 648 F.2d at 703.
4
The plain language of the APA makes clear that non-binding rules are
still “rules.” Section 553 applies only to “rules.” If interpretive rules and
policy statements were not “rules,” then the express exemptions for
interpretive rules and policy statements in subsections 553(b) (notice-
and-comment requirement) and (d) (advance publication requirement)
would be superfluous.
24 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
Recovery plans interpret and implement the
requirements of the ESA, as well as prescribe law and policy,
even though they are “non-binding.” For example, the plan
at issue here, the Grizzly Bear Recovery Plan, includes
“demographic recovery criteria” for certain areas known to
have been occupied by grizzlies. Greater Yellowstone Coal.,
Inc. v. Servheen, 665 F.3d 1015, 1020 (9th Cir. 2011). When
the Service revised the Plan in 1993, “it delineated a
‘Recovery Zone’ for each region, defined as ‘an area large
enough and of sufficient habitat quality to support a
recovered bear population within which habitat and
population would be monitored.’” Id. “The revised Plan also
included updated demographic recovery criteria,” and
“[h]abitat-based recovery criteria were appended to the Plan
following a successful legal challenge.” Id. (citing Fund for
Animals, 903 F. Supp. at 96). The revised Plan further
“mandated the development of a ‘conservation strategy’ for
each grizzly population to guide long-term management
after delisting.” Id. “Pursuant to the Recovery Plan,” the
Service led efforts to establish an “inter-agency, multi-state
blueprint for the long-term protection and management of a
sustainable grizzly population,” referred to as the “Final
Conservation Strategy for the Grizzly Bear in the Greater
Yellowstone Area.” Id. at 1021. See also Bd. of Cnty.
Comm’rs v. Kempthorne, 531 F.3d 792, 811 (9th Cir. 2008)
(“FWS determined that delisting the tri-state murrelets was
not warranted because the interim delisting criteria in the
Recovery Plan had not been met and the threat situation has
not changed in a way that would alleviate the threat to the
species.” (emphasis added) (internal quotation marks
omitted)).
In sum, recovery plans are, by definition, agency
statements that implement, interpret, and prescribe law and
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 25
policy. See 16 U.S.C. § 1533(f)(1). Therefore, they are
“rules,” as defined by the APA. 5 U.S.C. § 551(4).
II.
All rules are subject to rulemaking petitions under 5
U.S.C. § 553(e). Subsection 553(e) states, in full: “Each
agency shall give an interested person the right to petition
for the issuance, amendment, or repeal of a rule.” “[W]hen
such petitions are denied,” the agency must “give ‘a brief
statement of the grounds for denial.’” Am. Horse Prot. Ass’n,
Inc. v. Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987) (quoting 5 U.S.C.
§ 555(e)). “These two provisions suggest that Congress
expected that agencies denying rulemaking petitions must
explain their actions.” Id.The right to petition for rulemaking under subsection
553(e) applies to all rules, without exception. By contrast,
subsection 553(b), which requires a notice-and-comment
process, expressly exempts interpretive rules, general
statements of policy, and agency procedure rules. Subsection
553(d), which requires advance publication, expressly
exempts interpretive rules and statements of policy. 5
5
The Service argues that interpretive rules and policy statements are
exempt from all of section 553, including subsection 553(e). The Service
does not explain the textual basis for its interpretation, and it cannot be
squared with the statutory text. As noted above, both subsections 553(b)
and (d) expressly exempt interpretive rules and policy statements. If
interpretive rules and policy statements were not “rules,” then those
express exemptions would be superfluous. Likewise, if the express
exemption in subsection 553(b) applied to all of section 553, the express
exemption in subsection 553(d) would be superfluous. Additionally,
subsection 553(a) expressly exempts certain military and agency
management matters from the entire “section.” The text of subsection
26 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
The statutory text is unambiguous. Further, the Attorney
General’s Manual on the Administrative Procedure Act
confirms that the subsection 553(e) right to petition applies
to all rules, including non-binding interpretive rules and
policy statements. See U.S. Dep’t of Justice, Attorney
General’s Manual On the Administrative Procedure Act
(1947) at 38 (explaining that the right to petition under
subsection 553(e) “applies not only to substantive rules but
also to interpretations and statements of general policy.”). 6
See also 1945 Senate Judiciary Report, S. Rep. No. 79-752
(1945) at 14 (“Where public rule-making procedures are
dispensed with, the provision of subsections (c) and (d)
[currently 553(e)] of this section would nevertheless
apply.”).
Additionally, the D.C. Circuit has noted that non-binding
policy statements would be subject to rulemaking petitions
under subsection 553(e). Guardian Fed. Savs. & Loan Ass’n
v. Fed. Savs. & Loan Ins. Corp., 589 F.2d 658, 668 (D.C.
Cir. 1978). 7 And, in other cases, that court has reviewed
553(a) confirms that Congress knew how to exempt certain types of rules
from the entire section but chose not to do so for interpretive rules and
policy statements.
6
“The courts have given deference to the interpretations of the Attorney
General’s Manual ‘because of the role played by the Department of
Justice in drafting the legislation.’” Guardian Fed. Savs. & Loan Ass’n
v. Fed. Savs. & Loan Ins. Corp. 589 F.2d 658, 665 (D.C. Cir. 1978)
(quoting Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def.
Council, Inc., 435 U.S. 519, 546 (1978), and collecting cases).
7
In Guardian, the court held that the challenged rules were a
combination of non-binding procedural rules and policy statements, and
therefore expressly exempt from the notice-and-comment requirements
of subsection 553(b). 589 F.2d at 665–68. In so holding, the court noted
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 27
denials of rulemaking petitions for non-binding interpretive
rules, policy statements, and agency procedure rules. See
Coll. Sports Council v. Dep’t of Educ., 465 F.3d 20, 22-23
(D.C. Cir. 2006) (holding denial of § 553(e) petition to
repeal and amend “guidance” or “policy interpretation” was
subject to judicial review under the standards of review for
refusals to institute rulemaking proceedings set forth in Nat’l
Customs Brokers & Forwarders Ass’n of Am., Inc. v. United
States, 883 F.2d 93 (D.C. Cir. 1989), and WWHT, Inc. v.
FCC, 656 F.2d 807, 809 (D.C. Cir. 1981)); 8 ITT World
Communications, Inc. v. FCC , 699 F.2d 1219, 1226 and
1245-46 (D.C. Cir. 1983), rev’d on other grounds, 466 U.S.
463, 468 (1984) (reviewing denial of rulemaking petition
that requested issuance of “policy statement” regarding “the
purpose of all [agency] meetings with foreign
that the non-binding policy statements would be subject to a subsection
553(e) petition. Id. at 668 (“[T]he interests affected [by the policy
statements] would at least have the opportunity to invoke subsection
553(e) of the APA for a modification, an opportunity in effect to assure
some agency consideration of comments.”).
8
In College Sports Council, the subsection 553(e) petition at issue was
titled, “Petition To Repeal and Amend Guidance Issued Under 34 C.F.R.
§ 106.4(c) Concerning Equal Athletic Opportunity.” 465 F.3d at 23. The
court noted that the same guidance or “policy interpretation” was
challenged in an earlier case, National Wrestling Coaches Association v.
Department of Education, 263 F. Supp. 2d 82 (D.D.C. 2003), aff’d, 366
F.3d 930 (D.C. Cir. 2004). See id. at 22. In National Wrestling, the court
characterized that challenged guidance as “policy statements,”
“interpretive rules,” or “interpretive guidelines.” 366 F.3d at 936, 939–
40.
28 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
administrations” and procedural rules for such meetings
(petition published at 77 F.C.C.2d 877 (1980))). 9
III.
A denial of a rulemaking petition is reviewable final
agency action, even if the underlying rule is non-binding.
“The APA, by its terms, provides a right to judicial
review of all ‘final agency action for which there is no other
adequate remedy in a court.’” Bennett v. Spear, 520 U.S.
154, 177–78 (1997) (quoting 5 U.S.C. § 704). “As a general
matter, two conditions must be satisfied for agency action to
9
The Service argues that subsection 553(e) authorizes petitions for
binding, substantive rules only (i.e., not interpretive rules, policy
statements, or agency procedure rules). The Service does not identify any
statutory text that supports its interpretation. The Service cites only out-
of-context statements from inapposite and out-of-circuit cases that do not
address or analyze the issue presented here. For example, the Service
cites National Wrestling, 263 F. Supp. 2d at 128. In that case, the district
court held it did not have jurisdiction to hear the plaintiffs’ claim
regarding policy guidance because the plaintiffs did not actually file a
petition to amend or repeal that rule. Id. In the context of that discussion,
the district court stated, without analysis, that “Section 553, by its terms,
does not apply ‘to interpretive rules, general statements of policy, or
rules of agency organization, procedure or practice’ unless notice or
hearing is required by statute.” Id. However, as discussed above, the
quoted exemptions appear only in subsections (b) and (d), not subsection
(e). On appeal, the D.C. Circuit put aside the question of whether the
challenged rule was “the type of policy subject to the APA’s petition
requirements” because the plaintiffs’ letter could not “be construed as a
petition for repeal or amendment.” 366 F.3d at 948. The court noted,
however, that the plaintiffs had subsequently filed “a proper petition”
that was still pending. Id. at 948–49. After the agency denied that
petition, the plaintiffs filed another complaint, and the D.C. Circuit
squarely held that the agency’s denial of that petition to amend or repeal
the policy guidance was subject to judicial review. Coll. Sports Council,
465 F.3d at 23.
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 29
be ‘final’: First, the action must mark the ‘consummation’ of
the agency’s decisionmaking process—it must not be of a
merely tentative or interlocutory nature. And second, the
action must be one by which ‘rights or obligations have been
determined,’ or from which ‘legal consequences will flow.’”
Bennett, 520 U.S. at 177–78 (internal citations omitted).
“An agency’s denial of a petition for rulemaking
constitutes final, reviewable agency action, except where
there is evidence of a clear and convincing legislative intent
to negate review.” Weight Watchers Int’l, Inc. v. FTC, 47
F.3d 990, 992 (9th Cir. 1995) (quoting Clark v. Busey, 959
F.2d 808, 811 (9th Cir. 1992) (quoting WWHT, 656 F.2d at
809)).
“Where an agency’s refusal to institute a rulemaking is
held to be final agency action subject to judicial review, it is
reviewed under the arbitrary and capricious standard of 5
U.S.C. § 706(2)(A).” Id. at 992. When a petitioned-for rule
addresses a discretionary policy, the scope of review very
narrow, but review is not precluded. See WWHT, 656 F.2d at
817 (“[W]here the proposed rule pertains to a matter of
policy within the agency’s expertise and discretion, the
scope of review should perforce be a narrow one, limited to
ensuring that the [agency] has adequately explained the facts
and policy concerns it relied on and to satisfy ourselves that
those facts have some basis in the record.” (internal
quotation marks and citation omitted)).
In this case, there is no evidence of a clear and
convincing legislative intent to negate review of the
Service’s denial of rulemaking petitions, either generally or
when the petition concerns a recovery plan. Further, both
Bennett requirements are satisfied.
30 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
First, there is no dispute that the Service’s denial of the
Center’s rulemaking petition is a final decision that is neither
tentative nor interlocutory.
Second, the Service’s denial of the rulemaking petition
is an action by which the Center’s statutory right to petition
under § 553(e) has “been determined.” Bennett, 520 U.S. at
178. Because the Center petitioned for rulemaking pursuant
to § 553(e), the “agency’s refusal to institute proceedings has
sufficient legal consequence to meet the second criterion of
the finality doctrine.” Cap. Network Sys. v. FCC, 3 F.3d
1526, 1530 (D.C. Cir. 1993) (internal quotation marks and
citation omitted) (holding denial of rulemaking petition was
final agency action). 10
The majority concludes that “[t]he Service’s denial of the
Center’s petition to amend the Plan is not final agency action
because, like adoption of the Plan itself, it does not . . . alter
the rights of the Center.” Majority at Section III.C. However,
the denial of the Center’s petition does not need to “alter”
the rights of the Center to be final agency action. To be final
agency action, an agency’s action need only “determine” a
“right,” Bennett, 520 U.S. at 178, for example, by “deny[ing]
10
The district court’s Article III standing analysis in National Wrestling
(which the D.C. Circuit affirmed) supports the conclusion that the denial
of a rulemaking petition has sufficient legal consequence to satisfy the
second Bennett criterion, even if the underlying rule is non-binding. See
263 F. Supp. 2d at 126. In that case, the plaintiffs alleged that they had
filed a rulemaking petition to amend or repeal certain interpretive rules.
Assuming that allegation to be true, the court concluded that the
plaintiffs had standing, because “an improper denial of a petition brought
under 5 U.S.C. § 553(e) constitutes a concrete and particularized injury,
directly caused by the agency to which the petition was addressed, and
redressable by this Court through remand to the agency for proper
consideration of the petition.” Id.CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 31
a right.” Oregon Nat. Desert Ass’n v. U.S. Forest Serv., 465
F.3d 977, 987 (9th Cir. 2006). 11 Here, the Service
determined the Center’s statutory right to petition by
denying it.
Ignoring the fact that the Service’s action determined the
Center’s right to petition, the majority concludes that the
Service’s denial of the Center’s rulemaking petition is not
final agency action because the petitioned-for rule, the
Recovery Plan, is non-binding. Although this Circuit
apparently has not had occasion to review an agency’s denial
of a rulemaking petition for a non-binding rule, the D.C.
Circuit has. In College Sports Council, the court held that an
agency’s denial of a petition to amend or repeal “a policy
interpretation,” which the agency characterized as
“guidance,” was subject to judicial review. 465 F.3d at 22-
23. See also ITT World Communications, 699 F.2d at 1226
(reviewing denial of petition for policy statement). 12
11
In Oregon Natural Desert, we held that the Bennett test’s second prong
does not require “alteration” of a “legal regime.” Id. at 986. We further
explained, “Courts have consistently interpreted Bennett to provide
several avenues for meeting the second finality requirement. We have
held that the general rule is that administrative orders are not final and
reviewable unless and until they impose an obligation, deny a right, or
fix some legal relationship as a consummation of the administrative
process. The legal relationship need not alter the legal regime to which
the involved federal agency is subject.” Id. at 986-87 (emphasis in
original) (internal quotation marks and citations omitted).
12
The majority contends this dissent’s reliance on College Sports
Council and ITT World Communications is misplaced, asserting that the
rulemaking petitions in those cases “directly affected the obligations of
regulated parties, including the petitioner.” Majority at Section III.C &
n. 3. I disagree with the majority’s descriptions of those cases, but more
32 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
To reach the opposite conclusion, the majority focuses
on the wrong action: Instead of asking whether the agency’s
denial of the Center’s rulemaking petition satisfies the
Bennett criteria, the majority asks whether “the adoption of
a recovery plan” satisfies the Bennett criteria. Majority. at
Section III.B. 13 But the Center is not asking us to review the
Recovery Plan directly. It is asking us to review only the
Service’s decision to deny its petition.
The majority cites no case in which a court has treated
the question of whether the underlying rule is “binding” as
dispositive of, or even relevant to, the question of whether
importantly, the majority ignores that the rulemaking petitions at issue
in those cases addressed non-binding rules. See Coll. Sports Council, 465
F.3d at 23 (petition asked agency to repeal rule characterized as “policy
statements” or “interpretive rules”); ITT World Communications, 699
F.2d at 1226 (petition asked agency to adopt “rules of policy and
procedure”). Policy statements, interpretive rules, and rules of policy and
procedure are categorically “non-binding” rules under the APA. See
Perez, 575 U.S. at 97, and supra, dissent Section I. According to the
majority’s analysis, the D.C. Circuit lacked jurisdiction to review the
agency denials of the rulemaking petitions in those cases because a non-
binding rule cannot have any legal consequence, and therefore, a denial
of a petition for a non-binding rule cannot have any legal consequence,
and therefore, such a denial cannot be final agency action.
13
Because courts have held that recovery plans are non-binding, the
majority asserts that a recovery plan, or an amendment thereof, cannot
have any legal consequence. Majority at Section III.B. That assertion
goes too far. As discussed further below, both binding and non-binding
rules may have substantive effects; the difference between binding and
non-binding rules is only a matter of degree. Because a “non-binding”
recovery plan may have substantive effects, even under the majority’s
approach (ignoring the legal consequence of the denial of the rulemaking
petition and instead looking only at the underlying rule), the Service’s
decision not to amend the Recovery Plan may have sufficient legal
consequence to satisfy the second Bennett criterion.
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 33
the denial of the rulemaking petition is final agency action.
To the contrary, the cases that address denials of rulemaking
petitions focus exclusively on the denial of the petition. See,
e.g., Coll. Sports Council, 465 F.3d at 23; Cap. Network, 3
F.3d at 1530.
The majority asserts that “we must evaluate the Service’s
denial of the petition to amend the Plan using the same test
applicable to a ‘direct’ challenge to the Plan.” Majority at
Section III.C. Although the Bennett test for “final agency
action” is the same for both types of cases—a challenge to
the denial of a rulemaking petition and a direct challenge to
a rule—the action that must pass the test is different. The
majority cites no authority for the proposition that, in a case
challenging a denial of a rulemaking petition, the relevant
action is not the denial of the petition but instead the
underlying rule. The majority cites only cases that involved
a direct challenge to a non-binding rule. Id. None of the cited
cases involved denials of rulemaking petitions. And none
conflated the action of denying a rulemaking petition with
the underlying rule, as the majority does here. 14
The majority also asserts that, if we accept the
“proposition that the denial of a petition to amend a non-
binding document is necessarily reviewable final agency
action,” then “the APA’s requirement of final agency action
would lose all meaning, as an applicant seeking review of
agency decisions with no legally binding effect would
14
The majority cites Friends of the Wild Swan, Inc. v. Dir. of United
States Fish & Wildlife Serv., 745 F. App’x 718, 720 (9th Cir. 2018);
Indep. Equip. Dealers. Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004);
and S. Cal. All. of Publicly Owned Treatment Works v. EPA, 8 F.4th 831,
834 (9th Cir. 2021). Those cases addressed only whether a non-binding
rule was, in itself, a final agency action.
34 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
merely have to style [their] request to the agency as a
rulemaking petition.” Majority at Section III.C. That dire
prediction is unfounded. The only “request” at issue in this
case is a petition to amend a “rule,” as that term is defined
by section 551(4), which the Center has a statutory right to
file under subsection 553(e), and to which the Service has a
statutory obligation to respond under subsection 555(e).
Moreover, the scope of review for the denial of a rulemaking
petition is substantively different from, and much narrower
than, direct review of a rule. Compare WWHT, 656 F.2d at
810 (denial of rulemaking petition reviewed under arbitrary
and capricious standard), with S. Cal. All., 8 F.4th at 835
(direct challenge to rule seeking review for compliance with
APA’s notice-and-comment procedures and Clean Water
Act).
As noted above, we review an agency’s denial of a
rulemaking petition under the arbitrary and capricious
standard of 5 U.S.C § 706(2)(A), and that review is
“extremely limited and highly deferential.” Compassion
Over Killing v. U.S. FDA, 849 F.3d 849, 854 (9th Cir. 2017)
(internal quotation marks and citation omitted). “An
agency’s refusal to institute rulemaking proceedings is at the
high end of the range of levels of deference we give to
agency action under our ‘arbitrary and capricious’ review.”
Nat’l Mining Ass’n v. Mine Safety & Health Admin., 599
F.3d 662, 667 (D.C. Cir. 2010) (internal quotation marks and
citation omitted). Further, when a court concludes that an
agency’s denial of a rulemaking petition was arbitrary and
capricious, the remedy is limited to remanding the matter to
the agency to further explain or reconsider its decision to
deny the petition. See Am. Horse Prot. Ass’n at 7
(recognizing that the usual remedy is remand for further
explanation or reconsideration and an order directing agency
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 35
to institute rulemaking proceedings is “appropriate ‘only in
the rarest and most compelling of circumstances’” (quoting
WWHT, 656 F.2d at 818)).
Finally, the majority’s approach may have the
unintended consequence of requiring courts to decide a
difficult issue (whether the underlying rule is “binding”)
before deciding a relatively straightforward issue (whether
the agency’s denial of the rulemaking petition was arbitrary
and capricious). As discussed above, review of an agency’s
denial of a rulemaking petition is highly deferential and
relatively simple. 15 But there is no bright line between
binding rules and non-binding rules—both may allow for
some discretion and have some substantive effect. See, e.g.,
Guardian, 589 F.2d at 667 (“A matter of judgment is
involved in distinguishing between rules, however
discretionary in form, that effectively circumscribe
administrative choice, and rules that contemplate that the
administrator will exercise an informed discretion in the
various cases that arise.”); see also id. at 668 (concluding
rules were general statements of policy even though they had
“some substantive impact”); Am. Hosp. Ass’n v. Bowen, 834
F.2d 1037, 1046 (D.C.Cir.1987) (“[T]he mere fact that [an
interpretive] rule may have a substantial impact does not
15
Where an agency has refused to initiate rulemaking, “the ‘record’ for
purposes of review need only include the petition for rulemaking,
comments pro and con where deemed appropriate, and the agency’s
explanation of its decision to reject the petition.” WWHT, 656 F.2d at
817–18.
36 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND
transform it into a legislative rule.” (internal quotation marks
and citation omitted)). 16
Consequently, it is notoriously difficult for courts to
decide whether a rule is “binding” or “non-binding.” See,
e.g., Tel. Ass’n v. FCC, 28 F.3d 1232, 1234 (D.C. Cir. 1994)
(noting “the distinction between [general statements of
policy and substantive rules] has not proved an easy one to
draw”); Am. Hosp. Ass’n, 834 F.2d at 1046 (“[T]he spectrum
between a clearly interpretive rule and a clearly substantive
one is a hazy continuum[.]”); General Motors Corp. v.
Ruckelshaus, 742 F.2d 1561, 1565 (D.C.Cir.1984) (en banc)
(“[T]he distinction between legislative and nonlegislative
rules has been described as ‘enshrouded in considerable
smog.’” (citation omitted)); Batterton, 648 F.2d at 702–03
(“We would be less than candid if we pretended that the
labels of ‘legislative’ and ‘non-binding’ rules neatly place
particular agency actions within any particular category.
Instead, the categories have ‘fuzzy perimeters’ and establish
‘no general formula.” (footnotes omitted)).
16
Because the majority expresses “pragmatic” concerns, I note that
several legal commentators have advocated for judicial review of denials
of rulemaking petitions where the underlying rule is non-binding, for
example, to prevent non-binding rules from becoming de facto
substantive rules. See, e.g., Sean Croston, The Petition Is Mightier Than
the Sword: Rediscovering an Old Weapon in the Battles over
“Regulation Through Guidance,” 63:2 Admin. L. Rev. 381 (Spring
2011); Aram A. Gavoor & Daniel Miktus, Public Participation in
Nonlegislative Rulemaking, 61 Vill. L. Rev. 759 (2016); William V.
Luneburg, Petitioning Federal Agencies for Rulemaking: An Overview
of Administrative and Judicial Practice and Some Recommendations for
Improvement, 1988 Wis. L. Rev. 1, 25 (1988).
CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 37
* * *
In sum, I conclude that the Recovery Plan is a “rule” as
that term is defined by the APA, and the Service’s denial of
the Center’s rulemaking petition is final agency action
subject to judicial review. Therefore, I would reverse and
remand to the district court to review the denial of the
rulemaking petition for abuse of discretion under the highly
deferential arbitrary and capricious standard.