Wildwest Institute v. Daniel Ashe , 855 F.3d 995 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILDWEST INSTITUTE; ALLIANCE No. 14-35431
FOR THE WILD ROCKIES,
Plaintiffs-Appellants, D.C. No.
9:13-cv-00006-
v. DLC
JIM KURTH, in his official capacity
as Acting Director of the U.S. Fish OPINION
and Wildlife Service, an agency of
the U.S. Department of Interior;
RYAN ZINKE, in his official capacity
as Secretary of the Department of
Interior,
Defendants-Appellees,
STATE OF WYOMING,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Argued and Submitted October 4, 2016
Seattle, Washington
Filed April 28, 2017
2 WILDWEST INSTITUTE V. KURTH
Before: William A. Fletcher, Ronald M. Gould,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Gould
SUMMARY*
Endangered Species Act
The panel affirmed the district court’s summary judgment
in favor of the Director of the U.S. Fish and Wildlife Service
and the Secretary of the Department of the Interior (“FWS”)
and the State of Wyoming in a suit brought by environmental
groups under the Endangered Species Act, challenging
FWS’s finding that listing the whitebark pine as a threatened
or endangered species is “warranted but precluded.”
The Secretary’s “warranted but precluded” finding
recognizes that a species qualifies for protection under the
Endangered Species Act, but does not actually give any
protection to the species.
The panel held that because the case was capable of
repetition, yet evading review, the case was not moot.
The panel held that the FWS’s finding that listing the
whitebark pine was “warranted but precluded” satisfied the
Endangered Species Act, and that the decision was not
arbitrary, capricious, an abuse of discretion, or otherwise in
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WILDWEST INSTITUTE V. KURTH 3
violation of the law. The panel held that the FWS was not
bound to list species based solely on the degree of threat
they face as demonstrated by the assigned Listing Priority
Number, and that instead it could properly consider factors
outside of those listed in the guidelines. The panel further
held that FWS’s decision contained a sufficient “description
and evaluation of the reasons and data on which the finding
is based” to satisfy the Endangered Species Act. 16 U.S.C.
§ 1533(b)(3)(B)(iii).
The panel held that the FWS may properly consider its
budget, and court orders or statutory deadlines relating to
pending proposals for other species, when concluding that the
listing of a given species was “warranted but precluded.”
COUNSEL
Rebecca Kay Smith (argued), Public Interest Defense Center,
Missoula, Montana; Timothy M. Bechtold, Bechtold Law
Firm, Missoula, Montana; for Plaintiffs-Appellants.
Robert Parke Stockman (argued), H. Hubert Yang, David C.
Shilton, and Andrew C. Mergen, Attorneys; John C. Cruden,
Assistant Attorney General; Environment & Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Kristin Tita, Office of the Solicitor, Rocky
Mountain Region, United States Department of the Interior,
Denver, Colorado; for Defendants-Appellees.
Michael J. McGrady (argued), Wyoming Office of the
Attorney General, Cheyenne, Wyoming, for Intervenor-
Defendant-Appellee.
4 WILDWEST INSTITUTE V. KURTH
OPINION
GOULD, Circuit Judge:
Wildwest Institute and the Alliance for the Wild Rockies
(collectively, Wildwest) appeal a district court’s summary
judgment ruling in favor of the Director of the United States
Fish and Wildlife Service and the Secretary of the
Department of the Interior (collectively, FWS), and the State
of Wyoming, in this suit under the Endangered Species Act
(ESA), 16 U.S.C. §§ 1531–1544. Wildwest challenges
FWS’s finding that listing the whitebark pine as a threatened
or endangered species is “warranted but precluded.”
Wildwest asserts that FWS’s decision was arbitrary and
capricious, an abuse of discretion, or otherwise not in
accordance with the law because FWS, (1) did not strictly
follow its listing priority guidelines, (2) considered factors
outside of the guidelines, and (3) found that listing the
whitebark pine was precluded by species that did not face a
higher degree of threat than the whitebark pine, while it did
not give an individualized explanation for each such
precluding species. We reject the appeal, concluding that
FWS is not bound to list species based solely on the degree of
threat they face as demonstrated by the assigned Listing
Priority Number (LPN), that instead it could properly
consider factors outside of those listed in the guidelines, and
further that FWS’s decision contained a sufficient
“description and evaluation of the reasons and data on which
the finding is based” to satisfy the ESA. 16 U.S.C.
§ 1533(b)(3)(B)(iii). We affirm.
WILDWEST INSTITUTE V. KURTH 5
I
The whitebark pine, Pinus albicaulis, is a slow-growing,
long-lived, five-needled conifer species found in western
North America.1 This species grows in poor soils and on
steep slopes and windy exposures at the alpine tree line and
at subalpine elevations. Although there are scattered
occurrences of the whitebark pine in areas of the Great Basin,
it typically occurs on windy and cold high-elevation or high-
latitude sites in western North America. No other stone pine
species2 is found in North America.
In western North America, the whitebark pine is
considered a keystone, or foundation species. This is so
because it “increases biodiversity and contributes to critical
ecosystem functions.” It acts as an important source of food
for several species of birds and mammals, and, as the first
conifer that may become established after a disturbance, it
stabilizes soils and regulates runoff. At higher elevations,
snow drifts around the trees, “thereby increasing soil
moisture, modifying soil temperatures, and holding soil
moisture later into the season.” The trees also reduce lower
1
Our description of the whitebark pine and the risks it faces is based
on portions of the warranted but precluded finding that are unchallenged
by Wildwest. See Endangered and Threatened Wildlife and Plants; 12-
Month Finding on a Petition to List Pinus albicaulis as Endangered or
Threatened with Critical Habitat, 76 Fed. Reg. 42,631, 42,632–38 (July
19, 2011).
2
There are five stone pine species worldwide. Stone pines get their
name from their “stone-like seeds,” and are characterized by “five needles
per cluster, indehiscent seed cones (scales remain essentially closed at
maturity) that stay on the tree, and wingless seeds that remain fixed to the
cone and cannot be dislodged by the wind.”
6 WILDWEST INSTITUTE V. KURTH
elevation spring flooding by shading and protecting higher
elevation snow, thereby slowing the progression of snow
melt.
The whitebark pine grows slowly, and the generation
time3 is about 60 years. “[S]eedlings have highly variable
survival rates” ranging from 56% survival over the first year,
to 25% survival by the fourth year. The whitebark pine is
facing “substantial and pervasive decline throughout almost
[its] entire range.” It faces threats from white pine blister
rust, an exotic disease, and predation from the mountain pine
beetle. It has also been negatively impacted by fire
suppression efforts, and habitat loss due to climate change,
which may also result in additional epidemics of the
mountain pine beetle.
In 2008, The Natural Resources Defense Counsel
(NRDC) petitioned FWS to list the whitebark pine as an
endangered species under the ESA. FWS determined that
emergency listing was not warranted. After waiting more
than a year, NRDC sent to FWS its required 60-day notice4 of
3
Generation time “is the average interval between the birth of an
individual and the birth of its offspring.” 14 Macropædia The New
Encyclopædia Britannica 1138 (15th ed., 2010). Although whitebark
pines are capable of producing seed cones at 20 to 30 years of age, large
cone crops are not usually produced until the pine is 60 to 80 years old.
Thus, the generation time for the whitebark pine is about 60 years.
4
The ESA’s citizen suit provision allows an individual to commence
a civil suit “against the Secretary [of the Interior] where there is alleged
a failure of the Secretary to perform any act or duty under section 1533 of
this title [determination of threatened and endangered species] which is
not discretionary with the Secretary.” 16 U.S.C. § 1540(g)(1)(C). Except
in an emergency situation, an individual may not commence such an
action until 60 days have passed since the individual provided the
WILDWEST INSTITUTE V. KURTH 7
intent to sue under the ESA for failing to make the required
90-day finding5 on the 2008 petition. NRDC filed its
complaint in February 2010. On July 20, 2010, FWS
published its 90-day finding, in which it found that the
petition to list the whitebark pine presented substantial
scientific or commercial information indicating that listing
the whitebark pine may be warranted. See Endangered and
Threatened Wildlife and Plants; 90-Day Finding on a Petition
to List Pinus albicaulis (Whitebark Pine) as Endangered or
Threatened with Critical Habitat, 75 Fed. Reg. 42,033 (July
20, 2010).
FWS issued its 12-month finding6 on July 19, 2011,
finding that listing the whitebark pine rangewide as a
threatened or endangered species is warranted, but precluded.
See Endangered and Threatened Wildlife and Plants; 12-
Secretary with written notice of the alleged failure to perform a
nondiscretionary duty or act. See 16 U.S.C. § 1540(g)(2)(C); Friends of
Animals v. Ashe, 808 F.3d 900, 904 (D.C. Cir. 2015).
5
The ESA provides that, “[t]o the maximum extent practicable,
within 90 days after receiving the petition of an interested person” to list
or delist as species as threatened or endangered, “the Secretary [of the
Interior] shall make a finding as to whether the petition presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted.” 16 U.S.C. § 1533(b)(3)(A). This is
known as the 90-day finding.
6
The ESA requires that within 12 months after receiving a petition
that presents substantial information indicating that listing or delisting a
species as threatened or endangered may be warranted, the Secretary of
the Interior “shall” make a finding that the petitioned action is not
warranted, is warranted, or is warranted but precluded, and “shall
promptly publish” that finding in the Federal Register. 16 U.S.C.
§ 1533(b)(3)(B). This is known as the 12-month finding.
8 WILDWEST INSTITUTE V. KURTH
Month Finding on a Petition to List Pinus albicaulis as
Endangered or Threatened with Critical Habitat, 76 Fed. Reg.
42,631, 42,647 (July 19, 2011) (hereinafter 2011 Finding).
FWS concluded that a primary threat facing the whitebark
pine is the white pine blister rust, but that it is also
significantly threatened by mountain pine beetle predation,
habitat loss from fire suppression and climate change, and the
exacerbating effects climate change has on the other threats.
Id. FWS also found that existing regulations would not
adequately protect the species. Id. FWS determined that the
whitebark pine “is in danger of extinction, or likely to
become so in the foreseeable future, throughout all or a
significant portion of its range,” and that listing the whitebark
pine as threatened or endangered is warranted. Id. Those
findings present a natural prelude to effective protective
actions. After all, once a species is extinct and gone, it is
gone forever, with resulting loss to biodiversity and the
benefits that it gives to mankind. However, FWS concluded
that an immediate proposal to list the whitebark pine as
threatened or endangered was “precluded by court-ordered
and court-approved settlement agreements, and listing actions
with absolute statutory deadlines, and work on proposed
listing determinations for those candidate species with a
higher listing priority.” Id. at 42,649. It also concluded that
“progress is being made to add or remove qualified species
from the Lists of Endangered and Threatened Wildlife and
Plants.” Id. at 42,647.7 FWS assigned the whitebark pine a
LPN of 2 (on a scale from 1 to 12, 1 being the highest priority
and 12 being the lowest), finding that it faced high magnitude
threats, that the threats are imminent, and that it is a valid
7
FWS determined that emergency listing was not warranted. Id. at
42,647. This determination is not challenged.
WILDWEST INSTITUTE V. KURTH 9
taxon8 at the species level. Id. at 42,648; see also Endangered
and Threatened Listing and Recovery Priority Guidelines,
48 Fed. Reg. 43,098, 43,103 (Sept. 21, 1983) (hereinafter
Guidelines). FWS added the whitebark pine to the list of
candidate species. 2011 Finding, 76 Fed. Reg. at 42,654. “A
candidate species is one for which [FWS has] on file
sufficient information on biological vulnerability and threats
to support a proposal for listing as endangered or threatened,
but for which preparation and publication of a proposal is
precluded by higher priority listing actions.” Endangered and
Threatened Wildlife and Plants; Review of Native Species
That Are Candidates for Listing as Endangered or
Threatened; Annual Notice of Findings on Resubmitted
Petitions; Annual Description of Progress on Listing Actions,
80 Fed. Reg. 80,584, 80,584 (Dec. 24, 2015) (hereinafter
2015 CNOR).9
On January 15, 2013, Wildwest filed a complaint for
injunctive and declaratory relief against FWS, seeking review
of the “warranted but precluded” finding. Wildwest, FWS,
and Defendant-Intervenor State of Wyoming filed cross-
motions for summary judgment. The district court granted
FWS’s and Wyoming’s motions for summary judgment,
holding that the 2011 Finding gave sufficient detail, and was
not arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law. Wildwest timely appealed.
8
“[A] taxon is a taxonomic category, such as a genus or species.”
Coos Cty. Bd. of Cty. Comm’rs v. Kempthorne, 531 F.3d 792, 798 n.5 (9th
Cir. 2008) (citing The Random House Dictionary of the English Language
1947 (2d ed. 1987)). “[A] valid taxon at the species level . . . receives a
higher priority than a subspecies, but a lower priority than species in a
monotypic genus.” 2011 Finding, 76 Fed. Reg. at 42,648.
9
The acronym CNOR stands for “Candidate Notice of Review.”
10 WILDWEST INSTITUTE V. KURTH
II
We review a district court’s grant of summary judgment
de novo. Ctr. for Biological Diversity v. Norton, 254 F.3d
833, 837 (9th Cir. 2001) (hereinafter Gila Chub).
A determination that a petitioned action is “warranted but
precluded” under the ESA is subject to judicial review.
16 U.S.C. § 1533(b)(3)(C)(ii). The Administrative Procedure
Act (APA) governs our review of agency actions under the
ESA. Ctr. for Biological Diversity v. U.S. Bureau of Land
Mgmt., 698 F.3d 1101, 1109 (9th Cir. 2012). “[A]n agency
action is valid unless it is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id.
(internal quotation marks omitted). The scope of our review
is narrow—we may not “substitute [our] judgment for that of
the agency. Nevertheless, the agency must examine the
relevant data and articulate a satisfactory explanation for its
action including a ‘rational connection between the facts
found and the choice made.’” Motor Vehicle Mfrs. Ass’n of
the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983) (quoting Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168 (1962)).
III
As a preliminary matter, we must decide whether
intervening events have rendered Wildwest’s claims for
declaratory and injunctive relief moot. While this appeal was
pending, FWS issued its 2015 Candidate Notice of Review
(CNOR), and assigned the whitebark pine a new, lower-
priority, an LPN of 8. See 2015 CNOR, 80 Fed. Reg. at
80,586. FWS moved to dismiss the appeal as moot, arguing
that, “[b]ecause Wildwest’s claims are based on a higher-
WILDWEST INSTITUTE V. KURTH 11
priority LPN that had been assigned to the species in 2011,
those claims are now purely academic, and this Court cannot
grant relief on them. The new finding and LPN have mooted
Wildwest’s challenge to the original 2011 decision.”10
Wildwest opposed the motion.
A claim of mootness must be met and analyzed at the
threshold.11 “A claim is moot if it has lost its character as a
present, live controversy. If an event occurs that prevents the
court from granting effective relief, the claim is moot and
must be dismissed.” Conservation Cong. v. Finley, 774 F.3d
611, 618 (9th Cir. 2014) (internal quotations and citations
omitted). “The party asserting mootness bears a ‘heavy’
burden; a case is not moot if any effective relief may be
granted.” Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d
1006, 1017 (9th Cir. 2012) (emphasis in original) (quoting
Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir.
2006)).
There are exceptions to the mootness doctrine. Relevant
here, a case is not moot if it is “capable of repetition, yet
evading review.” Id. at 1018. This “exception applies when
10
FWS stated that Intervenor-Defendant-Appellee Wyoming does not
oppose the motion.
11
This is true for the jurisdictional reason that we have no authority
to decide moot cases because they present no true case or controversy.
See U.S. Constitution, Article III, Section 2; Chafin v. Chafin, __U.S.__,
133 S. Ct. 1017, 1023 (2013). We are not to give advisory opinions. See,
e.g., Mills v. Green, 159 U.S. 651, 653 (1895); Herb v. Pitcairn, 324 U.S.
117, 126 (1945); Local No. 8-6, Oil, Chem. & Atomic Workers Int’l
Union, ALF-CIO v. Missouri, 361 U.S. 363, 367–68, 368 n.7 (1960)
(collecting cases). These conclusions are reinforced by the practical
concern that the federal courts’ limited resources should not be wasted on
issues that do not need decision.
12 WILDWEST INSTITUTE V. KURTH
(1) the duration of the challenged action is too short to allow
full litigation before it ceases or expires, and (2) there is a
reasonable expectation that the plaintiffs will be subjected to
the challenged action again.” Id. Because this case meets
both of the criteria for this exception, it is not moot.
First, if FWS finds that a petitioned action for a species is
“warranted but precluded,” FWS must annually make a new
12-month finding regarding that species’ status. See
16 U.S.C. § 1533(b)(3)(C)(i); 50 C.F.R. § 424.14(h)(3). FWS
fulfills this obligation through an annual CNOR. See 2015
CNOR, 80 Fed. Reg. at 80,587. A new CNOR—and
potentially a new LPN—is issued every year so long as a
petitioned action is found “warranted but precluded.” Id. To
the extent it differs from prior CNORs or 12-month findings,
the newest CNOR supersedes all previous findings. See id.
at 80,585. Thus, an action based on a “warranted but
precluded” 12-month finding lasts only one year. This court
has repeatedly held that “actions lasting only one or two years
evade review.” Karuk Tribe of Cal., 681 F.3d at 1018.
Second, it is reasonable to expect that Wildwest will be
subject to the very same challenged action again. With the
exception of the 2015 CNOR, every CNOR conducted since
the original finding resulted in a “warranted but precluded”
finding, with an LPN of 2. See 77 Fed. Reg. 69,994, 70,044
(Nov. 21, 2012); 78 Fed. Reg. 70,104, 70,148 (Nov. 22,
2013); 79 Fed. Reg. 72,450, 72,485 (Dec. 5, 2014). Those
findings lacked an individualized analysis of other species
that precluded listing the whitebark pine—one of Wildwest’s
major critiques of the 2011 Finding. So long as the whitebark
pine is listed as “warranted but precluded,” the issue of
whether listing the species as “warranted but precluded,” and
the reasons for that listing, will continue to arise each year.
WILDWEST INSTITUTE V. KURTH 13
See 16 U.S.C. § 1553(b)(3)(C)(i); 50 C.F.R. § 424.14(h)(3).
It is reasonable to expect that Wildwest will be subject to
addressing the allegedly inadequate determination again. See
Greenpeace Action v. Franklin, 14 F.3d 1324, 1329–30 (9th
Cir. 1993) (holding the case not moot because it was capable
of repetition yet evading review when the regulation was in
effect for less than a year and the major issue, whether there
was an adequate examination of the effects of fishing on a
population of sea lions, was likely to recur). Because this
case is “capable of repetition, yet evading review,” it is not
moot, and the Federal Defendants’ Motion to Dismiss
Because of Mootness is DENIED.
IV
We begin our merits analysis with a brief overview of the
ESA. The Supreme Court has described the ESA as “the
most comprehensive legislation for the preservation of
endangered species ever enacted by any nation.” Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Congress
enacted the ESA, to “provide a means whereby the
ecosystems upon which endangered species and threatened
species depend may be conserved, to provide a program for
the conservation of such endangered species and threatened
species, and to take such steps as may be appropriate to
achieve the purposes of the treaties and conventions”
enumerated in another subsection of the ESA. 16 U.S.C.
§ 1531(b). To achieve these goals, the ESA sets out a robust
framework for the protection of threatened and endangered
species. See, e.g., 16 U.S.C. §§ 1533(a)(3) (designation of
critical habitat), 1533(d) (regulations for the conservation of
threatened species), 1538 (prohibited acts), 1540 (penalties
and enforcement).
14 WILDWEST INSTITUTE V. KURTH
However, before a species is entitled to these protections,
the Secretary of the Interior,12 must determine that a species
is endangered13 or threatened14 because of: “present or
threatened destruction, modification, or curtailment of its
habitat or range,” “overutilization for commercial,
recreational, scientific, or educational purposes,” “disease or
predation,” “the inadequacy of existing regulatory
mechanisms,” or “other natural or manmade factors affecting
its continued existence.” 16 U.S.C. § 1533(a)(1)(A)–(E).
The Secretary may make a determination that a species is
threatened or endangered “solely on the basis of the best
scientific and commercial data available to him after
conducting a review of the status of the species and after
taking into account those efforts, if any, being made” by any
state, foreign nation, or political subdivision thereof, “to
protect such species.” Id. § 1533(b)(1)(A). Once the
Secretary determines a species is threatened or endangered,
it is included on the list of threatened or endangered species
12
Or the Secretary of Commerce, if program responsibilities are
vested in him pursuant to the Reorganization Plan Numbered 4 of 1970,
or the Secretary of Agriculture, for provisions which pertain to the
importation or exportation of terrestrial plants. See 16 U.S.C. § 1532(15).
In this case, the Secretary of the Interior, and through him or her FWS, has
program responsibilities.
13
An “endangered species” is “any species which is in danger of
extinction throughout all or a significant portion of its range other than a
species of the Class Insecta determined by the Secretary to constitute a
pest whose protection under the provisions of this chapter would present
an overwhelming and overriding risk to man.” 16 U.S.C. § 1532(6).
14
A “threatened species” is “any species which is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range.” 16 U.S.C. § 1532(20).
WILDWEST INSTITUTE V. KURTH 15
that the Secretary of the Interior publishes in the Federal
Register. Id. § 1533(c).
Species may be listed as either threatened or endangered
in one of two ways. Either the Secretary may act on his own
initiative and identify a species for protection, see id.
§§ 1533(a), (b)(1)(A); 50 C.F.R. § 424.11(c), or interested
citizens may submit a petition identifying a species, which
then compels the Secretary to consider that species for listing,
see 16 U.S.C. § 1533(b)(3). See also Gila Chub, 254 F.3d at
834–35. If an interested citizen submits a petition to add or
remove a species from either the endangered or threatened
lists, the ESA sets a schedule for actions the Secretary must
take on that petition.15 See 16 U.S.C. § 1533(b)(3). “To the
maximum extent practicable, within 90 days after receiving”
a petition to list or delist a species, “the Secretary shall make
a finding as to whether the petition presents substantial
scientific or commercial information indicating that the
petitioned action may be warranted.” Id. § 1533(b)(3)(A). If
the petition presents such information, the Secretary must
“promptly commence a review of the status of the species.”
Id. “Within 12 months after receiving a petition” that
presents substantial scientific or commercial information
indicating listing or delisting may be warranted, “the
Secretary shall make one of the following findings:”
(i) The petitioned action is not warranted, in
which case the Secretary shall promptly
publish such finding in the Federal Register.
(ii) The petitioned action is warranted, in
which case the Secretary shall promptly
15
In this case NRDC petitioned for the listing of the whitebark pine.
16 WILDWEST INSTITUTE V. KURTH
publish in the Federal Register a general
notice and the complete text of a proposed
regulation to implement such action in
accordance with paragraph (5).
(iii) The petitioned action is warranted, but
that—
(I) the immediate proposal and timely
promulgation of a final regulation
implementing the petitioned action in
accordance with paragraphs (5) and (6) is
precluded by pending proposals to determine
whether any species is an endangered species
or a threatened species, and
(II) expeditious progress is being made to
add qualified species to either of the lists
published under subsection (c) [of this
section] and to remove from such lists species
for which the protections of this chapter are
no longer necessary,
in which case the Secretary shall promptly
publish such finding in the Federal Register,
together with a description and evaluation of
the reasons and data on which the finding is
based.
Id. § 1533(b)(3)(B).
This third finding—“warranted but precluded”—is at
issue here. A “warranted but precluded” finding recognizes
that a species qualifies for protection under the ESA, see Gila
WILDWEST INSTITUTE V. KURTH 17
Chub, 254 F.3d at 838, but does not actually give any
protection to the species. The Secretary may make a
“warranted but precluded” finding only in narrow
circumstances. See id. The warranted action “must be
precluded by pending proposals and expeditious progress
must be being made to list qualified species and delist those
for whom ESA’s protections are no longer necessary.” Ctr.
for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1102
(9th Cir. 2006) (emphasis in original); see also 16 U.S.C.
§ 1533(b)(3)(B)(iii).
When we are dealing with the potential life or death of an
entire species, the legitimacy and efficacy of this system
(where we accept that certain listings are “warranted but
precluded”) seems to be questionable policy. It means in
substance that a species in peril needs some protective
standards, but will get none. Yet, it is the system devised by
Congress in its explicit statutory language, and so we must
accept that so long as expeditious progress is being made to
list/delist species and the action is actually precluded by
pending proposals, the Secretary is authorized to make a
“warranted but precluded” finding. Allowing the Secretary
to do so is the natural consequence of the statutory language
and of the fact that the Secretary has limited resources. When
pending actions outstrip available resources, the Secretary
must make its choices and live with its priorities, even though
that means leaving factually (if not listed) threatened or
endangered species without the protections of the ESA.
V
Wildwest’s primary contention is that FWS’s finding that
listing the whitebark pine was precluded by species with the
same or higher LPNs was arbitrary and capricious, an abuse
18 WILDWEST INSTITUTE V. KURTH
of discretion, and otherwise not in accordance with the law
because the ESA, congressional intent behind the ESA, and
the agency’s own guidelines, all require FWS to strictly
follow its LPN rankings, “rank[ing] and list[ing] [species]
according to priority numbers based on degree of threat they
face.”16 Wildwest asserts that FWS must list species in the
order of their LPNs, proceeding on a “worst first” basis,
based solely on the degree of threat the species face, so that
in its view a species can only be precluded by pending
proposals for other, higher priority species. So it contends
that there were no “higher-priority” species precluding listing
the whitebark pine because there were no LPN 1s at the time
FWS made its 2011 Finding. Wildwest also argues that the
agency’s consideration of factors outside of the criteria
outlined in the agency’s listing priority guidelines—including
the extinction-risk criteria the agency used to sub-rank LPN
2 species—was arbitrary and capricious, an abuse of
discretion, and otherwise not in accordance with the law.
The ESA requires the Secretary to:
establish, and publish in the Federal Register,
agency guidelines to insure that the purposes
of this section are achieved efficiently and
effectively. Such guidelines shall include but
are not limited to . . . a ranking system to
assist in the identification of species that
should receive priority review under
subsection (a)(1) [determination of whether a
16
Wildwest of course does not dispute FWS’s environmentally-
friendly finding that listing the whitebark pine is warranted, or that the
whitebark pine is facing high magnitude, imminent threats.
WILDWEST INSTITUTE V. KURTH 19
species is threatened or endangered] of this
section.
16 U.S.C. § 1533(h)(3).
To determine the meaning of a statute, we look to its
language. See Freeman v. DirecTV, Inc., 457 F.3d 1001,
1004 (9th Cir. 2006). Nothing in the plain language of the
ESA requires FWS to prioritize species based solely on the
degree of threat as established by the LPN assigned under the
guidelines.
Congress mandated the establishment of the ranking
system “to assist in the identification of species that should
receive priority review.” 16 U.S.C. § 1533(h)(3) (emphasis
added). “Assist” means “to give support or aid.” Webster’s
Third New International Dictionary 132 (Philip Babcock
Gove et al. eds., 1993). The plain language of the statute thus
shows that the ranking system is just one tool used to identify
priorities for listing. The use of “assist” indicates that
Congress did not intend the ranking system to be the only
basis for identifying priorities. See Envtl. Def. Ctr. v. Babbitt,
73 F.3d 867, 871 (9th Cir. 1995) (noting the language of the
statute is the primary indication of congressional intent). Had
Congress intended the degree of threat or the ranking system
to be the sole means of determining priority, it would have
said so. See Biodiversity Legal Found. v. Babbitt, 146 F.3d
1249, 1252–53 (10th Cir. 1998) (rejecting the argument that
§ 1533(h) “only allows prioritization of species based on the
magnitude and immediacy of the threat to the species”
(internal quotations omitted)).
Because the statute is clear on its face, “reference to
legislative history is inappropriate.” Halaim v. I.N.S.,
20 WILDWEST INSTITUTE V. KURTH
358 F.3d 1128, 1134 (9th Cir. 2004).17 Nor do FWS’s
regulations require that species be ranked or listed based
solely on the degree of threat. After a notice and comment
period, as required by the ESA, see 16 U.S.C. § 1533(h),
FWS published its notice of the final priority guidelines for
listing and reclassification of species from threatened to
endangered in 1983. See Guidelines, 48 Fed. Reg. 43,098.
These guidelines apply three criteria—magnitude of threat,
immediacy of threat, and taxonomy—to determine a listing
17
Even if we were to consider legislative history, that history shows
Congress contemplated and rejected the notion that a warranted listing
may be precluded only by another species facing a higher degree of threat.
Amendments proposed in the Senate would have required the Secretary,
within 12 months of receiving a listing petition, to propose a regulation
implementing the petitioned action, publish a finding that the action is not
warranted, or publish “a finding that the proposal and promulgation of a
final regulation implementing the petitioned action is precluded by
pending or imminent proposals to add to” the endangered or threatened
species list, “species that are subject to a greater degree of threat than the
petitioned species.” S. 2309, 97th Cong. § 4(b)(3)(C)(iii) (1982) (emphasis
added). Congress did not adopt this language. Compare id., with
Endangered Species Act Amendments of 1982, Pub. L. No. 97-304,
96 Stat. 1411 (1982). The language Congress adopted omitted all
references to “greater degree of threat,” instead referring to “pending
proposals to determine whether any species” is endangered or threatened.
Endangered Species Act Amendments of 1982, § 2(a)(2), 96 Stat. at 1412
(emphasis added); 16 U.S.C. § 1533(b)(3)(B)(iii)(I). Congress’s rejection
of language that would have required preclusion decisions to be based
solely on the level of threat is compelling. See I.N.S. v. Cardoza-Fonesca,
480 U.S. 421, 442–43 (1987) (“Few principles of statutory construction
are more compelling than the proposition that Congress does not intend
sub silentio to enact statutory language that it has earlier discarded in
favor of other language.” (quoting Nachman Corp. v. Pension Benefit
Guar. Corp., 446 U.S. 359, 392–93 (1980) (Stewart, J., dissenting)).
Although legislative history shows that degree of threat is an important
consideration, see H.R. Rep. No. 97-835, at 21, 25 (1982) (Conf. Rep.),
it is not the only factor FWS may use.
WILDWEST INSTITUTE V. KURTH 21
priority number ranging from 1 (highest priority) through 12
(lowest priority). Id. at 43,102–03.
Throughout the notice FWS emphasized that the priority
system does not create an inflexible framework that dictates
results, but instead acts as a flexible guide. See id. at 43,098,
43,101. Although FWS recognized that “[i]nasmuch as
listing is an identification process, it appears to be most
appropriate to proceed on a ‘worst-first’ basis and list those
species in greatest immediate danger of extinction first,” id.
at 43,099, it also clarified that the guidelines would not
necessarily preclude listing lower priority species when doing
so would be an efficient use of resources, see id. at
43,099–100. In passing the guidelines, FWS did not bind
itself to making its listing decisions based solely on the listing
priority number assigned based on the guidelines, or based
solely on the degree of threat a species faces. Congress and
FWS enshrined flexibility into the system so that the
responsible agency could make the most efficient and
effective use of its resources. Indeed, FWS specifically
contemplated using additional information outside the criteria
in the guidelines. See, e.g., id. The guidelines do not prohibit
FWS from considering information in addition to that
considered under the guidelines.
We conclude that nothing in the ESA, its legislative
history, or FWS’s own guidelines requires FWS to make its
listing decisions based solely on the LPN assigned under the
guidelines or on the degree of threat a species faces. FWS’s
considerations of factors in addition to a species’ LPN was
proper, and its decision to list other species with the same or
higher LPNs before the whitebark pine did not render its
“warranted but precluded” finding for the whitebark pine
arbitrary and capricious, an abuse of discretion, or otherwise
22 WILDWEST INSTITUTE V. KURTH
not in accordance with the law.18 See 2011 Finding, 76 Fed.
Reg. at 42,649.
VI
Wildwest also asserts that the “warranted but precluded”
decision for the whitebark pine was arbitrary and capricious
because “the agency’s decision does not clearly itemize
which species with pending or imminent listing proposals are
allegedly a higher priority than whitebark pine, and explain
why those species are a higher priority.” FWS counters that
“a reasonable, concise explanation indicating its reasons for
prioritizing various actions is sufficient,” and that it need not
“prepare a resource-intensive, itemized ranking of all pending
species.” FWS asserts that the court should defer to its
interpretation that a concise explanation is all that the ESA
requires.
There are sound reasons supporting FWS’s position in
this respect. Congress demanded reasons and data for a
“warranted but precluded” determination, but did not specify
a required form. For that reason a concise and reasonable
explanation suffices.
18
Wildwest states, “It is also unclear whether this additional ranking
system [the extinction-risk criteria] was approved and published in the
Federal Register as required by the ESA; to the extent it was not published
in the Federal Register, the agency is violating the ESA by making
decisions using this system.” Wildwest did not present sufficient
argument on this issue, and we decline to address it. See Greenwood v.
Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) (“We review only
issues which are argued specifically and distinctly in a party’s opening
brief. We will not manufacture arguments for an appellant, and a bare
assertion does not preserve a claim . . . .” (internal citation omitted)).
WILDWEST INSTITUTE V. KURTH 23
If the Secretary determines the petitioned action is
“warranted but precluded,” “the Secretary shall promptly
publish such finding in the Federal Register, together with a
description and evaluation of the reasons and data on which
the finding is based.” 16 U.S.C. § 1533(b)(3)(B)(iii). FWS
“must show that [it] is ‘actively working on other listings and
delistings and must determine and publish a finding that such
work has resulted in pending proposals which actually
preclude[] [FWS] proposing the petitioned action at that
time.’” Gila Chub, 254 F.3d at 838 (emphasis in original)
(quoting H.R. Rep. No. 97-835, at 22 (1982) (Conf. Rep.));
see also Kempthorne, 466 F.3d at 1102. It must “determine
and present evidence that [it] is, in fact, making expeditious
progress in the process of listing and delisting other species.”
Gila Chub, 254 F.3d at 838. (quoting H. Rep. No. 97-835, at
22); see also Kempthorne, 466 F.3d at 1102.
FWS “cannot make a ‘warranted but precluded’ finding
without publishing a description and evaluation of its reasons
and data together with the finding.” Kempthorne, 466 F.3d at
1102 (emphasis removed). That is, FWS’s determinations
that work on other pending actions actually precludes listing
the petitioned species and that it is making expeditious
progress “must be part of the published findings.” Id. It is
not sufficient that FWS’s “path could reasonably be
discerned,” as “this option is not available under the ESA,
which expressly directs [FWS], when making a ‘warranted
but precluded’ finding, to ‘publish such finding in the Federal
Register, together with a description and evaluation of the
reasons and data on which the finding is based.’” Id. at
1099–1100 (quoting 16 U.S.C. § 1533(b)(3)(B)). It is also
“insufficient for requisite determinations to be lurking in the
administrative record yet be unidentified in the decision itself.
Likewise, they may not be implied from other published
24 WILDWEST INSTITUTE V. KURTH
findings that are neither referenced in nor published with the
decision under review.” Id. at 1104.
The published findings that support a “warranted but
precluded” decision are an important aspect of the petition
process. “They provide public notice of species that are
likely to become the subject of proposed rules” and allow the
public to respond appropriately. Gila Chub, 254 F.3d at 839.
“They also provide the basis for review of [FWS’s] decision
by the court,” id., which is mandated by the ESA, 16 U.S.C.
§ 1533(b)(3)(C)(ii). Congress explained that, “[i]n cases
challenging the Secretary’s claim of inability to propose an
otherwise warranted petitioned action, the court will, in
essence, be called on to separate justifications grounded in the
purposes of the Act from the foot-dragging efforts of a
delinquent Agency.” H.R. Rep. 97-835, at 22. Evidence that
the agency is making expeditious progress and that listing the
petitioned species is actually precluded by work on other
pending proposals provides the basis for the court to make
this determination. Id.
Wildwest’s challenge focuses solely on FWS’s
explanation of why other pending proposals actually preclude
action on the whitebark pine; it does not challenge the
agency’s assertion of expeditious progress. We have not
found, and Wildwest does not cite, any binding precedent that
requires FWS to provide a detailed, individualized
explanation for each species that has a pending proposal
which FWS determines precludes action on the petitioned
species. We decline to impose such a burdensome
requirement, which would divert scarce agency resources to
writing justifications rather than studying the pertinent
sciences, species, and ecosystems. On such matters, the
necessary degree of explicitness is outlined by the Supreme
WILDWEST INSTITUTE V. KURTH 25
Court’s State Farm decision, and if the agency has shown a
rational connection between its determination and the record,
that is all that will be required. 463 U.S. at 43. We hold that
a concise and reasonable explanation of the evaluation of the
reasons and data is sufficient.
Wildwest places a heavier reliance on Kempthorne than
it can bear.19 In that case, we held that FWS must publish a
description and evaluation of its reasons and data for finding
a listing precluded together with the “warranted but
precluded” finding. See Kempthorne, 466 F.3d at 1102. The
agency’s generalized statement that listing the Sierra Nevada
Mountain Yellow-Legged Frog (hereinafter Frog) was
precluded by species subject to court orders, judicially
approved settlements, and emergency listings, was not a
“description or evaluation of the data or reasons why listing
the Frog is actually precluded.” Id.; see also id. at
19
Wildwest also relies on California Native Plant Society v. Norton,
Civ.A.03-1540(JR), 2005 WL 768444 (D.D.C. Mar. 24, 2005). That case
is not binding, nor does it support Wildwest’s argument that the
“warranted but precluded” decision here does not provide enough detail.
In that case, the court held “the ESA requires that FWS itemize pending
species listings that preclude listing the Spineflower and describe the
‘reasons’ (whatever they may be) why each of these species listings has
a higher priority than the Spineflower and why actions on these species in
toto ‘preclude’ action on the Spineflower. This information need not be
detailed (at least not in the CNOR—the Administrative Record if an actual
case is brought is another question), but it must be present.” Id. at *8
(second emphasis added) (internal citation omitted). In that case, FWS
provided no explanation as to why species that had the same priority level
as the Spineflower precluded listing the Spineflower. Id. Here, FWS did
explain how it prioritizes species that have the same LPN as the whitebark
pine. See 2011 Finding, 76 Fed. Reg. at 42,649.
26 WILDWEST INSTITUTE V. KURTH
1100–01.20 Nor could FWS rely on a CNOR published
before, and not referenced in, the “warranted but precluded”
finding to support its assertion made in the Frog decision that
listing was precluded by court orders, settlement agreements,
and emergency listings. Id. at 1102. We declined to consider
whether the information provided in the earlier
CNOR—which included a description of why listing
petitioned candidate species was precluded, explained
budgetary constraints, and identified the particular species on
which FWS would work—would have met FWS’s burden
20
FWS provided the following preclusion explanation:
While we conclude that listing the [Frog] is warranted,
an immediate proposal to list is precluded by other
higher priority listing actions. During Fiscal Year 2003
we must spend nearly all of our Listing Program
funding to comply with court orders and judicially
approved settlement agreements, which are now our
highest priority actions. To the extent that we have
discretionary funds, we will give priority to using them
to address emergency listings and listing actions for
other species with a higher priority. Due to litigation
pertaining to various listing actions, our planned work
with listing funds in Fiscal Year 2003 consists primarily
of addressing court-ordered actions, court-approved
settlement agreements, and listing actions that are in
litigation. (Also, some litigation-related listing actions
already are scheduled for Fiscal Year 2004.) We expect
that our discretionary listing activity in Fiscal Year
2003 will focus on addressing our highest priority
listing actions of finalizing expiring emergency listings.
Kempthorne, 466 F.3d at 1100–01 (quoting Endangered and Threatened
Wildlife and Plants; 12-Month Finding for a Petition to List the Sierra
Nevada Distinct Population Segment of the Mountain Yellow-legged Frog
(1Rana muscosa), 68 Fed. Reg. 2283, 2303 (Jan. 16, 2003)).
WILDWEST INSTITUTE V. KURTH 27
had it been published with the Frog’s “warranted but
precluded” finding. See id. at 1101–02.
Wildwest asserts that Kempthorne requires FWS to
publish a detailed explanation and the accompanying
documentation for each species FWS determines precludes
action on the whitebark pine. We do not read Kempthorne so
broadly. The facts of that case are distinguishable. The
preclusion explanation at issue here is a far cry from the
paragraph-long explanation that was the subject of
Kempthorne. Here, the FWS gave a detailed explanation of
its budget, along with a general explanation that listing the
whitebark pine was “precluded by court-ordered and court-
approved settlement agreements, and listing actions with
absolute statutory deadlines, and work on proposed listing
determinations for those candidate species with a higher
listing priority.” 2011 Finding, 76 Fed. Reg. at 42,649. FWS
also described how it sub-ranks species within LPN 2 and 3,
listing the extinction-risk criteria and its sources, and the
general results of that sub-ranking. Id. Finally, it explained
the factors it considers when evaluating efficiency—such as
the possibility of preparing multi-species proposals,
geographic or threat overlap, and staff resources—which can
result in working on species with higher LPNs. See id. at
42,649–50.
These generally-applicable explanations are followed by
multiple pages of charts showing completed listing actions
(demonstrating expeditious progress, which is not at issue),
and actions that were funded in 2010 and 2011 (but are not
yet completed), showing both expeditious progress and also
which pending proposals actually preclude listing the
whitebark pine. See id. at 42,650–54. This later chart lists
the species and LPN; states if the species is subject to a court
28 WILDWEST INSTITUTE V. KURTH
order/settlement agreement, a statutory deadline, or is a high-
priority listing (chosen based on the factors discussed earlier
in the decision); states the type of action; and, often times,
includes information on what fiscal year funds support the
action. See id. at 42,652–54.
We conclude that FWS provided an adequate explanation
of its reasons and the data relied upon to find that work on
pending petitions actually precluded listing the whitebark
pine. FWS gave a reasonable explanation of its reasoning.
Neither Kempthorne, nor any other case from other circuits,
requires FWS to publish an individualized evaluation for each
and every precluding species and every datum upon which it
relies. The ESA, and our cases, require FWS to publish “a
description and evaluation of the reasons and data on which
the [‘warranted but precluded’] finding is based.” 16 U.S.C.
§ 1533(b)(3)(B)(iii) (emphasis added); see Kempthorne,
466 F.3d 1102; Gila Chub, 254 F.3d at 838–39. This
requirement is met when, as here, FWS explains its budget
and how it prioritizes actions, the criteria it uses to rank
within a given LPN, and a listing of the specific species with
pending proposals that actually preclude listing the petitioned
species.
It goes without saying that if FWS wants to provide
additional details—e.g., separate, individualized descriptions
of why each species with the same LPN precludes a listing
action—it is free to do so. See, e.g., Endangered and
Threatened Wildlife and Plants; 12-Month Finding for a
Petition to List the Southern Rocky Mountain Population of
the Boreal Toad as Endangered, 60 Fed. Reg. 15,281, 15,283
(Mar. 23, 1995) (providing a sentence-long explanation for
each of the three species that precluded listing the Boreal
toad, and cited with approval in Gila Chub, 254 F.3d at
WILDWEST INSTITUTE V. KURTH 29
838–39, as an example of a “detailed explanation” in a
“warranted but precluded” finding). There may be benefit to
the public when FWS includes as much detail as is
practicable, giving individualized explanations for different
species within the same LPN. We conclude, however, that
the ESA does not compel such detailed explanations.
Again, the purpose of the published findings is two-fold.
They provide the public with notice of what species are likely
to become the subject of a proposed rule, and they allow the
court to distinguish between an agency that is impermissibly
foot-dragging, and one that is diligently pursuing the goals of
the ESA but constrained by the practical realities of resource
constraints. FWS’s explanation in its 2011 Finding provides
a sufficient description and evaluation of its reasons and data
upon which it relied to accomplish these goals, and satisfied
the ESA.
VII
Finally, Wildwest argues that FWS was impermissibly
“foot-dragging” by finding the listing “warranted but
precluded.” It contends that FWS cannot rely on self-
imposed budget limitations, or court-ordered or statutory
deadlines for determinations on other species to delay listing
the whitebark pine. Wildwest asserts that relying on these
considerations renders the 2011 Finding arbitrary and
capricious, an abuse of discretion, and a violation of the ESA.
Although some courts have recognized that FWS’s
budgetary constraints may at least in part be the Department
of the Interior’s own doing, see W. Watersheds Project v.
U.S. Fish & Wildlife Serv., No. 4:10-CV-229-BLW, 2012 WL
369168, at *16 (D. Idaho Feb. 2, 2012), nothing in the ESA
30 WILDWEST INSTITUTE V. KURTH
requires the Department to make budget requests sufficient to
eliminate the need for the “warranted but precluded” “relief
valve” that Congress provided in recognition of FWS’s
limited resources, In re Endangered Species Act Section 4
Deadline Litigation-MDL No. 2165, 704 F.3d 972, 978 (D.C.
Cir. 2013) (internal quotation omitted). Nor can we review
the agency’s budget requests. See Fund for Animals, Inc. v.
U.S. Bureau of Land Mgmt., 460 F.3d 13, 20 (D.C. Cir.
2006). Ultimately, it is Congress that imposes budgetary
constraints upon FWS. See U.S. Const. art. I, § 9.
The plain language of the ESA belies Wildwest’s
assertion that the statute prohibits consideration of budget,
court orde rs, or statutory deadlines in making “warranted but
precluded” determinations. Nothing in the ESA so indicates,
as the statute refers only to preclusion by “pending
proposals.” 16 U.S.C. § 1533(b)(3)(B)(iii)(I). FWS may
properly consider its budget, and court orders or statutory
deadlines relating to pending proposals for other species,
when concluding that the listing of a given species is
“warranted but precluded.”
VIII
Wildwest’s vigorous advocacy for this imperiled species
is laudable, and its advocacy plays an important role in
protecting our planet’s vulnerable species. We can appreciate
Wildwest’s frustration with the slow-moving ESA process.
It has been more than five and a half years since FWS found
that the whitebark pine faces extinction without the
protections of the ESA. See 2011 Finding, 76 Fed. Reg.
42,631. In that time, the whitebark pine has received none of
the ESA’s benefits. In many ways, a “warranted but
WILDWEST INSTITUTE V. KURTH 31
precluded” determination is a “toothless finding.” W.
Watersheds Project, 2012 WL 369168, at *1.
Perhaps were the world different, the threat of extinction
would not loom so large over species and the ESA would be
unnecessary. But in reality, many species are subject to
threats and dangers as the world changes. The species must
live with the threats that are a result of increased human
population, loss of habitat, increased air and water pollution,
and global warming, or the species must adapt to the changes
those threats bring. Yet sometimes change is demanded
faster than a species can handle.21 Despite its best efforts,
FWS’s ability to protect species through the ESA is limited
by practical realities. Scarce funds and limited staff resources
may prevent FWS from taking immediate final action to list
or delist a species. The “warranted but precluded” finding
allows FWS to work within these realities. In this case,
FWS’s finding that listing the whitebark pine was “warranted
but precluded” satisfied the ESA. The safety valve applied
by the agency was one that Congress itself devised in the
statutory language. The decision was not arbitrary,
capricious, an abuse of discretion, or otherwise in violation of
the law.
AFFIRMED.
21
The idea often is attributed to Charles Darwin that it is not the most
intelligent or the strongest species that survives, but the one best able to
adapt to change in the world. See Robin Kundis Craig & Melinda Harm
Benson, Replacing Sustainability, 46 Akron L. Rev. 841, 878 & n.197
(2013).