Sierra Club v. National Park Service , 899 F.3d 260 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1082
SIERRA CLUB; VIRGINIA WILDERNESS COMMITTEE,
Petitioners,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; NATIONAL PARK
SERVICE, an agency of the U.S. Department of the Interior; RYAN ZINKE,
in his official capacity as Secretary of the Department of the Interior;
MICHAEL T. REYNOLDS, in his official capacity as Deputy Director,
Operations, Exercising the Authority of Director; STAN AUSTIN, in his official
capacity as Southeast Regional Director, Responsible Official,
Respondents,
ATLANTIC COAST PIPELINE, LLC,
Intervenor.
On Petition for Review of a Decision of the National Park Service. (5-140-1945)
No. 18-1083
DEFENDERS OF WILDLIFE; SIERRA CLUB; VIRGINIA WILDERNESS
COMMITTEE,
Petitioners,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; FISH AND WILDLIFE
SERVICE, an agency of the U.S. Department of the Interior; RYAN ZINKE, in his
official capacity as Secretary of the Department of the Interior; GREG SHEEHAN,
in his official capacity as Principal Deputy Director; CINDY SCHULZ, in her
official capacity as Field Supervisor, Virginia Ecological Services, Responsible
Official,
Respondents,
ATLANTIC COAST PIPELINE, LLC,
Intervenor.
On Petition for Review of a Decision of the United States Fish and Wildlife Service.
(CP15-554-000; CP15-554-001; CP15-555-000)
Argued: May 10, 2018 Decided: August 6, 2018
Before GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.
Vacated by published opinion. Chief Judge Gregory wrote the opinion, in which Judge
Wynn and Judge Thacker joined.
ARGUED: Austin Donald Gerken, Jr., SOUTHERN ENVIRONMENTAL LAW
CENTER, Asheville, North Carolina, for Petitioners. Avi Kupfer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. Brooks Meredith
Smith, TROUTMAN SANDERS LLP, Richmond, Virginia, for Intervenor. ON BRIEF:
Amelia Burnette, J. Patrick Hunter, Asheville, North Carolina, Gregory Buppert,
SOUTHERN ENVIRONMENTAL LAW CENTER, Charlottesville, Virginia, for
Petitioners. Eric Grant, Deputy Assistant Attorney General, Andrew Mergen, J. David
Gunter II, Environment and Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Andrew Tittler, S. Amanda Bossie,
Office of the Solicitor, DEPARTMENT OF THE INTERIOR, Washington, D.C., for
Respondents. Andrea W. Wortzel, TROUTMAN SANDERS LLP, Richmond, Virginia,
for Intervenor.
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GREGORY, Chief Judge:
These consolidated cases present two challenges to agency actions that provided
necessary approvals for the Atlantic Coast Pipeline (ACP). The challenges were brought
by Defenders of Wildlife, the Sierra Club, and the Virginia Wilderness Committee
(collectively, “Petitioners”). For the reasons that follow, we conclude that both agency
decisions are arbitrary and capricious.
The first petition, No. 18-1083, concerns the U.S. Fish and Wildlife Service
(FWS). Pursuant to the Endangered Species Act, FWS issued an Incidental Take
Statement (ITS) authorizing the pipeline to “take”—i.e., kill, harm, or harass—five
species that are listed as threatened or endangered. Petitioners challenged the ITS as
arbitrary and capricious under § 706 of the Administrative Procedure Act (APA) because
the amount of take authorized in the ITS (known as the “take limit”) cannot be enforced.
Petitioners identify two flaws that make the take limits unenforceable: first, FWS failed
to set numeric limits on take of the five threatened and endangered species, and second,
FWS failed to comply with the requirements for using habitat as a surrogate for a
numeric limit. Although FWS is not required to set a numeric limit, it can only use a
habitat surrogate if it demonstrates a causal link between the species and the delineated
habitat, shows that setting a numerical limit is not practical, and sets a clear standard for
determining when incidental take is exceeded. Here, FWS failed some or all of these
requirements for all five challenged species. As such, FWS’s take limits are not
enforceable and therefore arbitrary and capricious.
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The second petition, No. 18-1082, concerns the U.S. National Park Service (NPS).
The pipeline’s proposed route intersects the Blue Ridge Parkway, a unit of the National
Park System managed by NPS. Invoking the Blue Ridge Parkway Organic Act, NPS
issued a right-of-way permit allowing the pipeline to drill and pass underneath the
Parkway surface. The pipeline will also carve a path through a nearby forest, affecting
views from the Parkway’s scenic overlooks. Petitioners Sierra Club and the Virginia
Wilderness Committee argue that NPS lacked the authority to grant a right-of-way to a
gas pipeline and that doing so violated the statutory mandate that agency decisions not be
inconsistent with the Parkway’s conservation purpose. As detailed below, we assume for
purposes of this case that NPS has the requisite statutory authority but because NPS does
not explain how the pipeline crossing is not inconsistent with the purposes of the
Parkway and the overall National Park System, the permit decision is arbitrary and
capricious.
Part I of this opinion will provide a brief background and address a statute of
limitations question common to both cases. Part II will provide the relevant background
facts and legal analysis for No. 18-1083 (FWS), while Part III will provide the relevant
background facts and legal analysis for No. 18-1082 (NPS). Finally, having concluded
that the respective agencies erred, Part IV will address a question of remedy common to
both cases.
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I.
A.
The ACP is a 600-mile pipeline designed to transport natural gas from Harrison
County, West Virginia, to the eastern portions of Virginia and North Carolina. J.A. 234.
Constructing the pipeline would generally require a 125-foot right-of-way for most of the
distance, which will disturb 11,776 acres of land. J.A. 553. Once completed, ACP would
generally maintain a 50-foot permanent right-of-way along the length of the pipeline.
J.A. 325.
Under the Natural Gas Act, the Federal Energy Regulatory Commission (FERC) is
the agency responsible for giving final approval, in the form of a certificate of public
convenience and necessity, for the construction of natural gas pipelines. 15 U.S.C.
§ 717f. The Natural Gas Act also requires applicants such as ACP to obtain “any
permits, special use authorizations, certifications, opinions, or other approvals as may be
required under Federal law.” N.Y. Dep’t of Envtl. Conservation v. FERC, 884 F.3d 450,
452–53 (2d Cir. 2018). FERC serves as the “lead agency” responsible for “coordinating
all applicable Federal authorizations.” 15 U.S.C. § 717n.
On October 13, 2017, FERC issued ACP a certificate of public convenience and
necessity that authorized the construction and operation of the pipeline. J.A. 234–389.
As it has done in other cases, FERC conditioned its approval of the pipeline on ACP
receiving all “state and other federal authorizations required for the proposed project.”
Del. Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot., 833 F.3d 360, 368 & n.5 (3d
Cir. 2016); see J.A. 362–84 (listing conditions ACP must satisfy). Two of these
5
authorizations must come from FWS and NPS. On October 16, 2017, FWS issued a
biological opinion and incidental take statement that authorized the pipeline to take
several endangered and threatened species. On December 12, 2017, NPS issued a right-
of-way permit authorizing the pipeline to cross the Blue Ridge Parkway. Petitioners
challenged both agency actions in this Court on January 19, 2018.
B.
The first question we must resolve is whether the Petitioners filed their challenges
within the applicable statute of limitations. Federal Rule of Appellate Procedure 15(a)
provides that “[r]eview of an agency order is commenced by filing, within the time
prescribed by law, a petition for review[.]” Fed. R. App. P. 15(a)(1) (emphasis added).
The Petitioners filed their challenges within 95 days (No. 18-1083) and 38 days
(No. 18-1082) of the agency decisions, respectively. In their opening brief, Petitioners
invoked the six-year statute of limitation created for claims “against the United States,”
which applies generally to challenges brought under the APA. See 28 U.S.C. § 2401(a);
Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 186 (4th Cir. 1999)
(applying § 2401(a) to APA challenges).
ACP argues that these challenges were actually brought under the Natural Gas
Act, 15 U.S.C. § 717r(d)(1), which lacks a statute of limitations. Thus, ACP urges us to
adopt the most closely analogous state law statute of limitations. ACP Resp. Br. 18–27
(citing Reed v. United Transp. Union, 488 U.S. 319, 323–24 (1989); Agency Holding
Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 147 (1987); DelCostello v. Int’l Bhd.
of Teamsters, 462 U.S. 151, 158–59 (1983)). ACP proposes the 30-day limitations period
6
applicable to petitions for review of state agency actions in West Virginia, Virginia, and
North Carolina (the states through which the pipeline will be built). Such a short statute
of limitations period, ACP argues, would comply with Congress’s intent to create an
expedited review process for agency decisions related to natural gas pipelines.
The problem with ACP’s argument is that the cases on which it relies predate
Congress’s establishment of a four-year default statute of limitations for any “civil action
arising under an Act of Congress enacted after” December 1, 1990. Judicial
Improvements Act of 1990, Pub. L. No. 101–650, § 313, 104 Stat 5089, 5114–15
(codified at 28 U.S.C. § 1658(a)). This four-year default provision applies to any claim
“made possible by a post-1990 enactment.” Jones v. R.R. Donnelley & Sons Co., 541
U.S. 369, 382 (2004). Congress specifically enacted § 1658(a) to “alleviat[e] the
uncertainty inherent in the practice of borrowing state statutes of limitations.” Id.
As Petitioners point out, Congress added 15 U.S.C. § 717r(d) in 2005. Energy
Policy Act of 2005, Pub. L. No. 109-58, § 313(b), 119 Stat 594, 689–90. If § 717r(d) is
the source of Petitioners’ cause of action, then § 1658(a) applies and the statute of
limitations is four years. The only other federal court to consider this issue also looked to
§ 1658(a) in declining to apply a more restrictive state limitations period. Del.
Riverkeeper Network v. Sec’y of Pa. Dep’t of Envtl. Prot., 870 F.3d 171, 179 (3d Cir.
2017) (concluding that petitioner’s challenge was timely under either § 1658(a) or the
equitable doctrine of laches).
We need not decide whether the Natural Gas Act, which ACP cites as the cause of
action, or the APA, which Petitioners cite as theirs, provides the applicable statute of
7
limitations. Petitioners filed their challenges to FWS and NPS after 95 and 38 days,
respectively. By either measure, the petitions are timely.
II.
We turn first to petition No. 18-1083, in which Petitioners challenge the take
limits set by FWS for five species that will be negatively impacted by the pipeline. We
begin with the Endangered Species Act and the exception created for “incidental” take of
threatened and endangered species. We next discuss how the Endangered Species Act
obligated FWS to analyze how the pipeline would affect threatened and endangered
species. We then summarize the statutory and regulatory requirements FWS must satisfy
to issue a proper incidental take statement. Finally, we review in detail the agency’s
determinations about the five species at issue. We conclude that for each species, FWS
failed to satisfy the requirements for a habitat surrogate and therefore failed to create
enforceable take limits.
A.
1.
Congress enacted the Endangered Species Act in 1973 “to protect and conserve
endangered and threatened species and their habitats.” Nat’l Ass’n of Home Builders v.
Defs. of Wildlife, 551 U.S. 644, 651 (2007). In doing so, Congress made a “conscious
decision . . . to give endangered species priority over the ‘primary missions’ of federal
agencies.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 (1978). Pursuant to Endangered
8
Species Act § 4, FWS determines what species are endangered or threatened 1 and
designates their critical habitats. 16 U.S.C. § 1533; see Nat’l Ass’n of Home Builders,
551 U.S. at 651; 50 C.F.R. § 17.11 (listing endangered and threatened wildlife).
To protect threatened and endangered species, Endangered Species Act § 9 and
FWS regulations prohibit their “take.” 16 U.S.C. § 1538(a)(1)(B) (endangered species);
50 C.F.R. § 17.21(c) (endangered species); 50 C.F.R. § 17.31 (threatened species). To
“take” a species is “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct.” 16 C.F.R. § 1532(19). Harm and
harassment include the disruption of normal behavioral patterns and indirect injury
caused by habitat modification. 50 C.F.R. § 17.3; Babbitt v. Sweet Home Chapter of
Cmtys. for a Great Or., 515 U.S. 687, 702–04 (1995). “Any person” who knowingly
takes an endangered or threatened species is “subject to substantial civil and criminal
penalties, including imprisonment.” Bennett v. Spear, 520 U.S. 154, 170 (1997); see 16
U.S.C. § 1540(a), (b).
In 1982, Congress created a narrow exception to the prohibition against take:
when “such taking is incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B); see Endangered Species Act
Amendments of 1982, Pub. L. No. 97-304, § 6, 96 Stat. 1411, 1422. To take a species
under this exception, agencies such as FERC—or private entities taking species pursuant
1
An endangered species is “any species which is in danger of extinction
throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). 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.” Id. § 1532(20).
9
to agency authority, such as ACP—must receive a valid Incidental Take Statement from
FWS. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(g)(7), (i). The amount of take set by
the ITS creates a “‘trigger’ that, when reached, results in an unacceptable level of
incidental take.” Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of Land
Mgmt., 273 F.3d 1229, 1249 (9th Cir. 2001).
2.
Building a natural gas pipeline implicates a number of federal laws, including the
Endangered Species Act. J.A. 545–52. Pursuant to Endangered Species Act § 7, FERC
must ensure that “any action authorized, funded, or carried out by such agency . . . is not
likely to jeopardize the continued existence of 2 any endangered species or threatened
species or result in the destruction or adverse modification of habitat of such species.” 16
U.S.C. § 1536(a)(2). To satisfy this requirement, FERC must formally consult with FWS
whenever a pipeline “may affect listed species or critical habitat.” 50 C.F.R. § 402.14(a).
FWS then provides FERC with a written statement (called a Biological Opinion)
explaining “how the proposed action will affect the species or its habitat.” Bennett, 520
U.S. at 158; see 16 U.S.C. § 1536(b)(3). If FWS concludes that the pipeline will
adversely affect the species but “will not result in jeopardy or adverse habitat
modification,” then it must provide FERC with an ITS authorizing the anticipated
2
“Jeopardize the continued existence of means to engage in an action that
reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood
of both the survival and recovery of a listed species in the wild by reducing the
reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02.
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incidental take and specifying the “impact of such incidental taking on the species.” 16
U.S.C. § 1536(b)(4); see Bennett, 520 U.S. at 158.
In July 2017, FERC requested formal consultation with FWS about the ACP. J.A.
391. Three months later, FWS issued a Biological Opinion that addressed six threatened
and endangered non-plant species: the Roanoke Logperch (a fish), the Clubshell (a
mussel), the Rusty Patched Bumble Bee, the Madison Cave Isopod (a crustacean), the
Indiana Bat, and the Northern Long-Eared Bat. J.A. 390–439. FWS concluded that the
pipeline as a whole would not “jeopardize the continued existence of” the six species.
J.A. 430–39. But because pipeline will adversely affect individuals from each species,
FWS issued an ITS that set out the “amount or extent of take anticipated” by the ACP.
J.A. 439–50.
Petitioners’ sole challenge in this lawsuit is to the take limit set for five of the six
species: the Clubshell, the Rusty Patched Bumble Bee, the Madison Cave Isopod, the
Indiana Bat, and the Northern Long-Eared Bat.
B.
We have jurisdiction under the Natural Gas Act. 15 U.S.C. § 717r(d)(1). Because
the Endangered Species Act does not specify a standard of review, “we apply the general
standard of review of agency action established by” the APA. Or. Nat. Res. Council v.
Allen, 476 F.3d 1031, 1036 (9th Cir. 2007). Under the APA, we “shall hold unlawful and
set aside agency action, findings, and conclusions found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Because “resolution of this dispute involves primarily issues of fact” and “requires a high
11
level of technical expertise,” we must defer to “the informed discretion of the responsible
federal agencies.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377 (1989) (quoting
Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976)). Nevertheless, we must conduct a
“searching and careful” review to determine whether the agency’s decision “was based
on a consideration of the relevant factors and whether there has been a clear error of
judgment.” Id. at 378 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 416 (1971)).
C.
An ITS is a safe harbor: it allows an agency (here, FERC) to approve a project
that takes threatened or endangered species without falling afoul of the Endangered
Species Act. 50 C.F.R. § 402.14(i)(5); see Bennett, 520 U.S. at 170 (“Thus, the
Biological Opinion’s Incidental Take Statement constitutes a permit authorizing the
action agency to ‘take’ the endangered or threatened species so long as it respects
[FWS]’s ‘terms and conditions.’”). “The action agency is technically free to disregard
the Biological Opinion and proceed with its proposed action, but it does so at its own
peril (and that of its employees), for ‘any person’ who knowingly ‘takes’ an endangered
or threatened species is subject to substantial civil and criminal penalties, including
imprisonment.” Bennett, 520 U.S. at 170 (citing 16 U.S.C. § 1540(a), (b)).
For an ITS to function as a safe harbor, FWS must set an incidental take limit that
can be monitored and enforced. FERC is required to “report the progress of the action
and its impact on the species to [FWS] as specified in the incidental take statement.” 50
C.F.R. § 402.14(i)(3). If the “amount or extent of incidental taking . . . is exceeded,”
12
FERC “must reinitiate consultation immediately.” 50 C.F.R. § 402.14(i)(4) (emphasis
added).
Section 7 of the Endangered Species Act requires an ITS to “[s]pecif[y] the
impact, i.e., the amount or extent, of such incidental taking on the species.” 50 C.F.R.
§ 402.14(i)(1)(i); accord 16 U.S.C. § 1536(b)(4). This impact—known as the incidental
take limit—must set a “trigger” that can be monitored and enforced, else it is arbitrary
and capricious. Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257,
1275 (11th Cir. 2009); accord Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1249; Wild Fish
Conservancy v. Salazar, 628 F.3d 513, 531–32 (9th Cir. 2010) (stating that FWS must set
“triggers that can be monitored”). Both FWS and our sister circuits have recognized that
Congress intended for this trigger to be a specific number whenever possible.
Interagency Cooperation–Endangered Species Act of 1973, as Amended; Incidental Take
Statements, 80 Fed. Reg. 26,832, 26,834 (May 11, 2015) (codified at 50 C.F.R.
§ 402.14(i)(1)(i)) (hereinafter “Incidental Take Statements”) (“[FWS] acknowledge[s]
congressional preference for expressing the impacts of take in incidental take statements
in terms of a numerical limitation with respect to individuals of the listed species.”);
Miccosukee Tribe of Indians of Fla., 566 F.3d at 1274–75 (citing H.R. Rep. No. 97–567,
at 27 (1982), as reprinted in 1982 U.S.C.C.A.N. 2807, 2827) (“Where possible, the
impact should be specified in terms of a numerical limitation on the federal agency[.]”));
accord Ariz. Cattle Growers’ Ass’n, 273 F.3d at 1249–50. An ITS “that ‘contains no
numerical cap on take and fails to explain why it does not’ normally violates” the
13
Endangered Species Act. Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt.,
698 F.3d 1101, 1126–27 (9th Cir. 2012) (quoting Allen, 476 F.3d at 1037).
Here, FWS declined to set numeric limits on five of the six non-plant species that
will be adversely affected by the pipeline. Instead, it set take limits as a “small percent,”
“majority” or “all” of the species within set geographic areas. As Petitioners point out, a
“small percent” or a “majority” of a species is not an enforceable limit. FWS and ACP
do not disagree. Instead, they claim that FWS used habitat surrogates.
A habitat surrogate is a way of defining take by the amount of adversely affected
habitat rather than by the number of individuals harassed or killed. FWS has explained
that habitat surrogates are “often more practical and meaningful to monitor project
effects” because they can “provide a clear standard for determining when the amount or
extent of anticipated take has been exceeded and consultation should be reinitiated.”
Incidental Take Statements, 80 Fed. Reg. at 26,839.
FWS regulations list three elements necessary for a proper habitat surrogate. First,
FWS must include a description of “the causal link between the surrogate and take of the
listed species.” 50 C.F.R. § 402.14(i)(1)(i). A “causal link” is an “articulated, rational
connection” between the activity and the taking of species. See Ariz. Cattle Growers’
Ass’n, 273 F.3d at 1250–51. FWS establishes a causal link by examining the habitat
requirements and behavior of the listed species and determining the effect of the expected
habitat modification. Incidental Take Statements, 80 Fed. Reg. at 26,834, 26,842.
Examples of a causal link include “the number of burrows affected or a quantitative loss
of cover, food, water quality, or symbionts.” Id. at 26,834 (quoting U.S. Fish & Wildlife
14
Serv., Procedures for Conducting Consultation and Conference Activities under § 7 of
ESA 4-47–48 (Mar. 1998) (hereinafter “Endangered Species Consultation Handbook”)).
Second, FWS must explain “why it is not practical to express the amount or extent
of anticipated take or to monitor take-related impacts in terms of individuals of the listed
species.” 50 C.F.R. § 402.14(i)(1)(i). There is no clear definition of what makes a
numerical limit “not practical” (or not practicable), but FWS has indicated that the
standard does not require impossibility. Instead, FWS has long encouraged the use of
surrogates when the incidental take is “difficult to detect,” which occurs “when the
species is wide-ranging; has small body size; finding a dead or impaired specimen is
unlikely; losses may be masked by seasonal fluctuations in numbers or other causes (e.g.,
oxygen depletions for aquatic species); or the species occurs in habitat (e.g., caves) that
makes detection difficult.” Endangered Species Consultation Handbook 4-52. FWS has
also suggested that the cost of monitoring a species relative to the scope of the project can
make a numeric limit impractical. Incidental Take Statements, 80 Fed. Reg. at 26,842.
Nevertheless, our sister circuits have acknowledged Congress’s preference for numerical
limits where “possible” and found important FWS’s ability to express take in numeric
limits even when a species is difficult to detect. E.g., Miccosukee Tribe of Indians of
Fla., 566 F.3d at 1274–75 (collecting cases); Ariz. Cattle Growers’ Ass’n, 273 F.3d at
1249 (collecting cases).
Finally, FWS must set “a clear standard for determining when the level of
anticipated take has been exceeded.” 50 C.F.R. § 402.14(i)(1)(i). A “clear standard”
must be able to “adequately trigger reinitiation of consultation,” Allen, 476 F.3d at 1038;
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it cannot be “vague and undetectable criteria,” Ariz. Cattle Growers’ Ass’n, 273 F.3d at
1250–51 (internal quotation marks omitted). Nor can the standard be left to “the
unfettered discretion of the Fish and Wildlife Service, leaving no method by which the
applicant or the action agency can gauge their performance.” Id. at 1250. FWS has
endorsed habitat surrogates that are coextensive with a project’s scope—i.e., the project
can take all of the species within the bounds of the affected habitat—provided that the
authorized agency (here, FERC) “monitor[s] project impacts to the surrogate during the
course of the action . . . [to] determine whether these impacts are consistent with the
analysis in the biological opinion.” Incidental Take Statements, 80 Fed. Reg. at 26,834,
26,841–42. 3
Turning to petition No. 18-1083, the only issue presented is whether FWS
properly employed a habitat surrogate for five of the endangered and threatened species
that will be adversely affected by the pipeline. Specifically, the Petitioners argue that:
FWS did not establish that a numeric take limit was impractical, particularly because
FWS had previously adopted numeric limits for some of the same species; FWS did not
establish a causal link between the pipeline and the habitat selected for some of the
species; and the surrogate limits adopted are unenforceable because they set the vague
take limits of a “small percent” or a “majority” of individuals. See 50 C.F.R.
3
Some eight years prior to this 2015 final rule, the Ninth Circuit expressed doubt
about habitat surrogates that are coextensive with the project’s own scope. Allen, 476
F.3d at 1039–40. Because Petitioners do not challenge the agency’s determination, we
assume without deciding that coextensive surrogates satisfy the Endangered Species Act.
16
§ 402.14(i)(1)(i). As explained in more detail below, we agree. Because our analysis
differs for each of the five challenged species, we will discuss each one separately.
But first, we dispose of three overarching points. First, FWS claims that some
numeric limits were not possible because either it lacked current survey information
about many of the species or ACP had not completed the necessary surveys. This
argument is “circular and unavailing.” Ctr. for Biological Diversity v. Bureau of Land
Mgmt., 422 F. Supp. 2d 1115, 1138 (N.D. Cal. 2006). FWS cannot escape its statutory
and regulatory obligations by not obtaining accurate scientific information. Id.; Allen,
476 F.3d at 1037–38. Moreover, with one exception noted below, FWS “never states that
it is not possible” to obtain or update the survey data and arrive at a numeric take limit.
Allen, 476 F.3d at 1038. Instead, the agency only states that it and ACP have not actually
done the surveys. Id. Thus, FWS’s argument does not “establish the numerical
measure’s impracticality.” Id.
Second, the agency argues that there was insufficient time for the agency or ACP
to develop reliable survey information regarding certain of the species because the
agency “must complete formal consultation on a short, ninety-day time timetable based
on the ‘best scientific and commercial data’ then available.” Gov’t Br. 21 (citing 16
U.S.C. § 1536(a)(2)) (emphasis added). The agency incorrectly characterizes the law for
at least two reasons. First, the statute does not require that the consultation be completed
within 90 days. Rather, it states that the agency and FWS may extend the 90-day
consultation period to and until 150 days without the consent of the applicant and even
longer with the consent of the applicant. § 1536(b)(1)(A)–(B). Accordingly, Congress
17
expressly contemplated that FWS might need more than 90 days to conduct a review and
provided a mechanism for it to do so. Second, contrary to the agency characterization,
FWS is not required to rely on “‘best scientific and commercial data’ then available.”
Gov’t Br. 21 (emphasis added). Rather, the statute requires that “each agency shall use
the best scientific and commercial data available,” § 1536(a)(2), regardless of whether the
data is available at the time of the application. Accordingly, the statute does not
foreclose FWS or an applicant from developing additional data. See Allen, 476 F.3d at
1038 (rejecting FWS determination that establishing numerical take limit was impractical
due to lack of up-to-date surveys because agency never stated “that it is not possible to
update the survey in order to estimate the number of takings, only that it has not actually
done the surveys”).
Tellingly, neither the statute, nor the agency’s implementing regulation, nor the
agency’s Endangered Species Consultation Handbook, identify lack of time as a proper
basis for concluding that setting a numerical limit is impractical. See H.R. Rep. No. 97-
567, at 27 (1982) (“For example, it may not be possible to determine the number of eggs
of an endangered or threatened fish which will be sucked into a power plant when water
is used as a cooling mechanism.”); Incidental Take Statements, 80 Fed. Reg. at 26,834
(stating that, “in many cases, the biology of the listed species or the nature of the
proposed action makes it impractical to detect or monitor take of individuals of the listed
species”); id. (providing as an example that calculating numerical take for pool fairy
shrimp would be impractical because a single vernal pool “may contain thousands of
individual shrimp as well as their eggs or cysts”); Endangered Species Consultation
18
Handbook, 4-52 (providing form ITS, which states “[The Wildlife Service] anticipates
incidental take of (species) will be difficult to detect for the following reason(s):
[Incidental take of actual species numbers may be difficult to detect when the species is
wide-ranging; has small body size; finding a dead or impaired specimen is unlikely;
losses may be masked by seasonal fluctuations in number or other causes (e.g., oxygen
depletions for aquatic species); or the species occurs in a habitat (e.g. caves) that makes
detection difficult.]”). Accordingly, we reject the agency’s contention that lack of time is
a proper basis for concluding establishing a numerical limit is impractical.
Third, although FWS and ACP both argue that the ITS passes muster, they cannot
agree about what the ITS actually did. ACP claims that FWS set pure habitat surrogates;
therefore, the “small percent” and “majority” language “was not meant to serve as a
quantifiable limit on take” but instead “reflected FWS’ position on the limited effect the
authorized take was expected to have on the species.” ACP Resp. Br. 43 (emphasis
added); see id at 33–43, 47. FWS, by contrast, seems to interpret the ITS as setting both
numeric and habitat take limits. Gov’t Resp. Br. 29 (“Petitioners are correct that the ITS
also estimates take for some of those species in terms of percentages of individuals[.]”);
id. at 25–26 (defining take for Clubshell as one population); id. at 28 (stating that FWS
allowed take of a “small percent” of Indiana Bats within a narrowly drawn area).
FWS and ACP cannot rewrite the ITS on appeal. Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (“[T]he courts may
not accept appellate counsel’s post hoc rationalizations for agency action.”). Within a
section titled “Amount or Extent of Take Anticipated,” FWS prepared a table for each
19
species and stated that the reader should look to that table to locate the anticipated take
limit. J.A. 440–43 (stating, for example, that the “anticipated take is described in Table 6
below” for the Clubshell). We review the plain language of the take limits as set forth by
FWS in each table. See State Farm, 463 U.S. at 50. We also note that the inability of
FWS and ACP to agree on exactly what level of incidental take is allowed only reinforces
our conclusion that the ITS set vague and unenforceable limits.
1. Roanoke Logperch (Percina rex)
Before turning to the five challenged species, we take a moment to discuss briefly
the sixth: the Roanoke Logperch, an endangered freshwater fish. Petitioners do not
challenge the logperch take limit, but FWS’s approach to the logperch is a useful
comparator when evaluating its much different approach to the other five species.
The pipeline will cross four waterbodies known or with potential to support the
logperch. J.A. 407. Neither ACP nor FWS conducted presence/absence surveys; instead,
they assumed the presence of the logperch because the pipeline will affect potential
habitat in areas known to support the logperch. J.A. 405. ACP threatens the logperch
both indirectly due to increased sedimentation and directly where it crosses waterbodies
with logperch present. J.A. 407, 418.
FWS estimated that a total of 150 logperch are expected to occur in the area
affected by the pipeline. J.A. 406. It reached this number by using recent survey
information for two of the four affected waterbodies. In the first waterbody, a 2017
survey observed 12 logperch. FWS multiplied that number by ten because “mark-
recapture data indicates that only about 10% of [logperch] are actually detected during
20
surveys.” This resulted in an estimated 120 total logperch. In the second waterbody, a
2012 survey observed one logperch. Adjusting by the same multiple of ten, FWS
estimated there were ten total logperch there. The third and fourth waterbodies lacked
recent survey information, but FWS believed the fish to be present at a density
comparable to the second waterbody (i.e., 10). And 120 plus ten plus ten plus ten equals
150.
FWS set a take limit of 5 individual Roanoke Logperch through injury or death
and 145 individuals through harm or harassment. J.A. 440. To arrive at this take limit,
FWS divided the area of logperch habitat needed to actually build the crossing structures
by the total area of logperch habitat at each pipeline crossing and determined that the
crossings themselves will comprise 3.3 percent of the total affected habitat. Because
FWS estimates that there are 150 logperch total in the area, this means 3.3 percent (or 5
logperch) will be directly killed by the crossings, while the other 145 will be harmed or
harassed by increased sedimentation. Id. We note that FWS set a numeric take limit for
the Roanoke Logperch despite using surveys from several years ago that observed only a
few fish and despite the detection difficulties caused by the logperch’s small size (five
inches) and river habitat.
2. Clubshell (Pleurobema clava)
The Clubshell is an endangered mussel that grows to be about three inches long.
J.A. 692. In the Monongahela River system of West Virginia, which contains only one
Clubshell population in Hackers Creek, the Clubshell is in severe decline and is not
reproducing. J.A. 401, 432. A 2009 survey at a long-term monitoring site in Hackers
21
Creek found 29 individuals; a 2014 survey found 19 individuals. J.A. 407. ACP will
conduct construction in the upstream drainage area of Hackers Creek and will cross six of
its tributaries. J.A. 407. The resulting sediment load will adversely impact the Clubshell
population at Hackers Creek. J.A. 432.
FWS set the take limit as: killing a “[s]mall percent of individuals present within
585 m,” and harming or harassing the “[m]ajority of individuals present within 585 m.”
J.A. 440–41. The agency explained that it “anticipates incidental take of clubshell will be
difficult to detect for the following reason: up to 70% of a population can be distributed
below the substrate surface.” J.A. 440. Therefore, FWS concluded that the “level of take
of this species can be anticipated by loss of habitat from 130 m downstream to 455 m
upstream of Life’s Run Bridge (County Route 14) (total of 585 m) because this area
contains suitable clubshell habitat.” J.A. 440. As part of the terms and conditions, FERC
must collect all Clubshell in the 585-meter stretch of Hackers Creek. J.A. 444–45. The
Clubshell will then be held at an approved facility for reintroduction after the pipeline is
completed. Id.
The incidental take authorized here is not a proper habitat surrogate because it
lacks the three necessary elements. First, there is no clear and enforceable standard of
take. Instead, take is limited to a “small percent” and a “majority” of Clubshell within a
fixed geographic area. Although the geographic bounds are fixed, FWS authorized the
pipeline to take only a subset of individuals located within those bounds. But it is
impossible to know the size of the subset—i.e., how many individuals constitute a “small
percent” or a “majority.”
22
Second, FWS offered no explanation for why the habitat surrogate is limited to
130 meters downstream and 455 meters upstream of Life’s Run Bridge. Although the
Biological Opinion mentioned that the Hackers Creek Clubshell population is located at
Life’s Run Bridge, the geographic bounds of 130 meters downstream and 455 meters
upstream are not explained anywhere else in the ITS or Biological Opinion. The
arbitrariness of this range is particularly conspicuous considering that the pipeline will
introduce sediment upstream of Life’s Run Bridge, meaning that the sediment will flow
through all of Hackers Creek, not just 585 meters of it.
Finally, FWS did not adequately explain why a numeric limit is not practical. The
only proffered explanation is that Clubshell are difficult to detect because most of them
live below the substrate surface. But FWS has been able to adequately survey Clubshell
in the past; indeed, it knew there were 29 Clubshell in 2009 and 19 in 2014. See
Miccosukee Tribe of Indians of Fla., 566 F.3d at 1275 (finding unpersuasive FWS’s
argument that a species was difficult to detect when the record showed the species being
counted regularly). Moreover, the ITS terms and conditions require FERC to remove and
store the Hackers Creek Clubshell during the pendency of construction, evincing a clear
expectation that FERC can locate them. And in a prior ITS, FWS was able to set numeric
take limits for the Clubshell. Biological Opinion on the Washington Crossing Bridge
Project 22 (Sept. 2, 2014) (setting a total incidental take of 18 Clubshell). 4
4
We take judicial notice of this FWS record, which is also available on FWS’s
website. See Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir.
2015); Hall v. Virginia, 385 F.3d 421, 424 & n.3 (4th Cir. 2004) (taking judicial notice of
(Continued . . . )
23
In sum, the take limit for the Clubshell fails all three habitat surrogate
requirements: it lacks a causal link between the specific 585-meter stretch of Hackers
Creek and the local Clubshell population, it lacks an explanation as to why a numerical
limit is impractical, and it lacks a clear enforcement standard. See 50 C.F.R.
§ 402.14(i)(1)(i). Because the ITS’s Clubshell take limit is not a meaningful trigger, it
violates the Endangered Species Act.
3. Rusty Patched Bumble Bee (Bombus affinis)
The Rusty Patched Bumble Bee (RPBB) was listed as endangered in January
2017. J.A. 401, 809–11. A 2017 survey found one bee in Bath County, Virginia, about a
mile from the pipeline route. J.A. 408. FWS concluded that the magnitude of the Rusty
Patched Bumble Bee’s population losses “has greatly reduced the likelihood that the
species is present elsewhere” along the pipeline route. J.A. 408. As a result,
“comprehensive RPBB surveys were not conducted throughout the action area” in
Virginia. J.A. 408.
Based on this single bee, FWS estimated that the Rusty Patched Bumble Bee is
most likely to occur in a 653-hectare “high potential zone” near the pipeline. J.A. 408–
publicly available information on state government’s website); U.S. Fish & Wildlife
Serv., Threatened & Endangered Biological Opinion (TEBO) (Apr. 10, 2018),
https://www.fws.gov/northeast/endangered/TEBO/tebo_%20index.html#G (saved as ECF
opinion attachment 1). That FWS issued this Biological Opinion is not disputed. See
Gov’t Resp. Br. Mot. File Addendum 6, ECF No. 53.
When evaluating a challenged habitat surrogate, other courts have looked to
FWS’s ability to set numeric limits in other circumstances. E.g., Ctr. for Biological
Diversity v. Bureau of Land Mgmt., 422 F. Supp. 2d 1115, 1138 (N.D. Cal. 2006) (noting
that FWS had set numeric limits for the same species only two years prior).
24
10. The pipeline will directly affect approximately 7.3 hectares of this zone, which could
“crush individuals, crush a colony, expose RPBBs to noise/vibration, and render habitat
temporarily and permanently unsuitable.” J.A. 421. After making a number of
assumptions about bee and bee colony density, FWS estimated that one colony—i.e., a
cohesive biological unit of bees established every spring by a solitary queen and made up
of her offspring, J.A. 807—is statistically likely to be present in the 7.3 hectares directly
affected by the pipeline. J.A. 433.
FWS set the take limit as: killing “1 colony present within 7.3 [hectares]” and
harming or harassing a “[s]mall percent of [queen bees] from 1 colony present within 7.3
[hectares].” J.A. 441. FWS explained that it “anticipates incidental take of RPBB will be
difficult to detect for the following reasons: species has small body size, losses may be
masked by seasonal fluctuations in numbers and other environmental factors, and species
occurs in habitat (i.e., underground) that makes detection difficult.” J.A. 441.
The incidental take authorized here is not a proper habitat surrogate because it
lacks two of the three necessary elements. FWS has demonstrated a causal link between
the bee and the geographic boundaries of the take limit: the pipeline will affect 7.3
hectares of high potential habitat for the Rusty Patched Bumble Bee, which statistically
will affect only one Rusty Patched Bumble Bee colony. But FWS’s incidental take limit
is not a clear standard because it is not actually defined by the 7.3 hectares; instead, take
is limited to exactly one colony and a small percent of queen bees within the 7.3 hectares.
Neither one colony nor a small percent is an enforceable standard: There may be
multiple colonies within the 7.3 hectares, FERC cannot know if taken bees are from the
25
same colony or different colonies, and it is not clear what constitutes a “small percent” of
queen bees. Moreover, FWS has not shown that a numeric limit is impractical. 5 It
claimed that it has “no accurate way to assess the status of the local population,” J.A.
409—but, only a few months earlier, FWS issued its own survey protocols for the Rusty
Patched Bumble Bee, J.A. 854–89, and it had conducted a prior survey that identified the
lone bee. See Miccosukee Tribe of Indians of Fla., 566 F.3d at 1275. Indeed, FWS
managed to set a numeric limit for the logperch in spite of a survey that located only one
fish.
In sum, the take limit for the Rusty Patched Bumble Bee fails two of the habitat
surrogate requirements: it lacks an explanation as to why a numerical limit is
impractical, and it lacks a clear enforcement standard. See 50 C.F.R. § 402.14(i)(1)(i).
Because the Rusty Patched Bumble Bee take limit is not a meaningful trigger, it violates
the Endangered Species Act.
4. Madison Cave Isopod (Antrolana lira)
The Madison Cave Isopod (MCI) is a threatened subterranean freshwater
crustacean about a half-inch in size. “The species is endemic to underground karst
aquifer habitats and is restricted to the Shenandoah Valley, from Lexington, Virginia to
Harpers Ferry, West Virginia.” J.A. 608. The pipeline right of way, additional
5
Because a colony is a biological unit founded by a single queen and can vary in
size, “one colony” cannot function as an enforceable numeric limit. FWS concedes as
much by arguing that it used a habitat surrogate for the Rusty Patched Bumble Bee, Gov’t
Resp. Br. 25–26, since habitat surrogates cannot be used unless a numeric limit is
impractical.
26
temporary work space, and access roads will affect “approximately 1,974 surface acres
(approximately 0.74%)” of the isopod’s potential habitat in Augusta County, Virginia.
J.A. 411. Included in this area are Cochran’s Cave and five sinkholes, which FWS
assumed are connected and which provide a conduit for sediment and contaminants to the
isopod’s habitat. J.A. 411–12. Because FWS lacked the ability to survey the presence or
abundance of the isopods, it assumed that they will be found in the pipeline project area.
J.A. 411.
The pipeline will threaten the isopods by crushing them or introducing sediment
that smothers them or their habitat. J.A. 422. Although there are no “localities” in the
pipeline construction area where Madison Cave Isopods have been sampled, FWS
arbitrarily decided that Cochran’s Cave would serve as an undocumented isopod
“locality” and then chose to use “localities as a surrogate for a population.” J.A. 434. It
concluded that a total of 896.7 surface acres of isopod potential habitat is within 0.5 miles
of the construction activities that bisect Cochran’s Cave. J.A. 434. Within the 896.7
acres, the pipeline will directly displace 11.2 surface acres. J.A. 434. Within the rest of
the 896.7 acres, ground-disturbing activities could smother or crush the isopods. J.A.
422.
FWS set the take limit as: killing a “[s]mall percent of individuals present within
11.2 acres” and harming or harassing “[a]ll individuals present within 896.7 acres.” J.A.
441–42. The agency explained that “incidental take of the MCI will be difficult to detect
for the following reasons: small body size, finding a dead or impaired specimen is
27
unlikely, and species occurs in habitat (underground) that makes detection difficult.” J.A.
441.
FWS has shown that a numeric limit is not practical here: the isopod is a half-inch
crustacean that lives in underground aquifers. But the take limit fails as a habitat
surrogate because it lacks the other two elements. First, FWS stated that the pipeline will
affect 1,974 surface acres of MCI potential habitat, all of which it assumes contains
isopods. But without providing a reasoned explanation, FWS arbitrarily limited the
habitat surrogate to the 896.7 acres near Cochran’s Cave. Second, the proffered take
limits are not real surrogates: the authorized take limit is (in part) a “small percent” of
isopods within the 11.2 acres that will be directly affected by the pipeline. But there is no
precise way of measuring what a “small percent” of isopods would be, and thus no clear
standard for enforcement.
In sum, the take limit for the Madison Cave Isopod fails to satisfy two of the
habitat surrogate requirements: its causal link between the isopod and the geographic
bounds of the take limit is arbitrary, and it lacks a clear enforcement standard. See 50
C.F.R. § 402.14(i)(1)(i). Because the Madison Cave Isopod take limit is not a
meaningful trigger, it violates the Endangered Species Act.
5. Indiana Bat (Myolis sodalis)
The Indiana Bat (Ibat) is an endangered migratory bat. FWS estimated that, as of
2017, there are only 425 in Virginia and 1,076 in West Virginia. J.A. 412. The pipeline
crosses the Indiana Bat Appalachian Mountain Recovery Unit, an area of protected
28
Indiana Bat habitat that covers all of West Virginia and part of western Virginia. 6 J.A.
412, 725. The pipeline will adversely affect Indiana Bats by temporarily or permanently
removing 4,448 acres of suitable habitat in the Recovery Unit. J.A. 423–24. Based on
survey data and seasonal movements, FWS defined four relevant categories of Indiana
Bat habitat in the Recovery Unit: (1) suitable unoccupied summer habitat, i.e., habitat
that is unoccupied during the summer; (2) known use summer habitat, i.e., habitat that is
known to be used by the bats in the summer; (3) unknown use spring staging/fall
swarming habitat, i.e., habitat near unsurveyed but potentially suitable winter hibernation
quarters (known as “hibernacula”); and (4) known use spring staging/fall swarming
habitat, i.e., habitat near known hibernacula. J.A. 412. The pipeline will affect these
different habitats in the Recovery Unit as follows:
Habitat Category Total (acres)
Suitable unoccupied summer habitat 3,275.382
Known use summer habitat 144.1
Unknown use spring staging/fall swarming habitat 178.1
Known use spring staging/fall swarming habitat 850.4
Total Acres of Recovery Unit 4,447.982
J.A. 413.
FWS set the take limit as:
Amount of Take Anticipated Type of Take
Small percent of individuals present within Harm, Harass,
1,637.69 acres of suitable unoccupied summer Injure, or Kill
habitat
Small percent of individuals within 144.1 acres Harass
6
U.S. Fish & Wildlife Serv., Indiana Bat Range Map (Mar. 12, 2018),
https://www.fws.gov/midwest/endangered/mammals/inba/rangemapinba.html (saved as
ECF opinion attachment 2).
29
of known use summer habitat
Small percent of individuals present within 89.05 Harm, Harass,
acres of unknown use spring staging/fall or Kill
swarming habitat
Small percent of individuals present within 850.4 Harm, Harass,
acres known use spring staging/fall swarming or Kill
habitat
J.A. 442. The agency explained that it “anticipates incidental take of the Ibat will be
difficult to detect for the following reasons: species has small body size, finding a dead
or impaired specimen is unlikely, and species occurs in habitat (forest and caves) that
makes detection difficult.” J.A. 442. FWS concluded that the “take of this species can be
anticipated by loss of 4,447.982 acres because this area contains suitable Ibat habitat.”
J.A. 442. But FWS imposed a 0.5 multiplier on the affected acreage for two of the four
habitat categories—suitable unoccupied summer habitat and unknown use spring
staging/fall swarming habitat—purportedly “[t]o account for differences in Ibat use of the
habitat categories.” J.A. 442.
The incidental take authorized here is not a proper habitat surrogate because it
lacks the three necessary elements. First and most significantly, it is not a true habitat
surrogate: take is limited to a “small percent” of Indiana Bats within each geographic
area. Although the geographic bounds are fixed, the pipeline can only take a subset of
individuals located within those bounds. But it is impossible to know what a “small
percent” of bats is. Therefore, there is no clear and enforceable standard of take.
Second, two of the chosen geographic bounds are arbitrary. FWS knew that the
pipeline will directly affect 3,275.382 acres of suitable unoccupied summer habitat and
178.1 acres of unknown use spring staging/fall swarming habitat. Yet, without any
30
explanation, the agency set the take limit for these two habitats at half of these acreages.
In other words, FWS set the take limit at half the affected bat habitat that it knows the
pipeline is going to affect. Even if FWS removed the words “small percent of
individuals” from the take limit, the limit would still fail as a habitat surrogate because
FWS knows that the pipeline will exceed the geographic bounds. Oddly, despite the ITS
clearly showing the use of the 0.5 multiplier on two of the four habitats, both FWS and
ACP claim that the habitat surrogate is actually the full 4,448 acres directly impacted by
the pipeline. ACP Resp. Br. 40; Gov’t Resp. Br. 27–28 & n.5. ACP actually seems
unaware that FWS arbitrarily reduced the habitat surrogate to below the 4,448 affected
acres. Compare ACP Resp. Br. 40 (stating that the habitat surrogate is 4,448 acres), with
ACP Resp. Br. 46 (stating that the habitat surrogate applies to “individuals present within
1,637.69 acres of suitable unoccupied habitat, 144.1 acres of known use summer habitat,
89.05 acres of unknown use spring staging / fall swarming habitat and 850.4 acres of
known use spring staging / fall swarming habitat”—even though these four numbers add
up only to 2721.24 acres).
Finally, FWS has not shown that a numeric limit is impractical. The bats may be
small, but FWS has been able to survey them in the past. Indeed, FWS made precise
estimates as recently as 2017, determining that there are 425 bats in Virginia and 1,076 in
West Virginia. See Miccosukee Tribe of Indians of Fla., 566 F.3d at 1275. Moreover,
FWS has previously issued incidental take statements with numeric limits for the Indiana
Bat, even while recognizing that the bat is difficult to detect. Update to the Biological
Opinion on the 2014 Revision of the George Washington National Forest Land and
31
Resources Management Plan 2 (April 21, 2014) (setting an “incidental take of up to 7
Indiana bats on an annual basis as the result of oil and gas leasing, prescribed fire, timber
harvest, salvage activities, wildlife habitat management, and special use activities”);
Biological Opinion on Enbridge Pipelines (FSP) LLC’s Flanagan South Pipeline Project
64–65 (July 24, 2013) (setting incidental take of 19 Indiana bats and 120 reproductive
female Indiana bats; noting that take will be measured by “observing mortality or injury”
and by “the number of active maternity roost trees removed”); Biological Opinion on the
2003 Revision of the Jefferson National Forest Land and Resource Management Plan
33–34 (Jan. 13, 2004) (noting that the incidental take of the Indiana Bat in the Jefferson
National Forest will be difficult to quantify and detect, but nevertheless estimating “there
may be up to 10 Indiana bats on the [Forest] incidentally taken on an annual basis
through actions that kill, harm, or harass”). 7
In sum, the take limit for the Indiana Bat fails all three habitat surrogate
requirements: its causal link between the Indiana bat and the geographic bounds of the
take limit is arbitrary, it lacks an explanation as to why a numerical limit is impractical,
7
As explained in note 4, supra, we also take judicial notice of these FWS
records, two of which are available on FWS’s website. See Goldfarb, 791 F.3d at 508;
Hall, 385 F.3d at 424 & n.3 (taking judicial notice of publicly available
information o n s t a t e g o v e r n m e n t ’ s website); U.S. Fish & Wildlife Serv.,
Threatened & E n d a n g e r e d B i o l o g i c a l Opinion (TEBO) (Apr. 10, 2018),
https://www.fws.gov/northeast/endangered/TEBO/tebo_%20index.html (saved as ECF
opinion attachment 1); U.S. Fish & Wildlife Serv., Midwest Region Biological Opinions
(June 11, 2018), https://www.fws.gov/midwest/endangered/section7/r3bo.html (saved as
ECF opinion attachment 3). That FWS issued these Biological Opinions is not disputed.
See Gov’t Resp. Br. Mot. File Addendum 6, ECF No. 53.
32
and it lacks a clear enforcement standard. See 50 C.F.R. § 402.14(i)(1)(i). Because the
Indiana Bat take limit is not a meaningful trigger, it violates the Endangered Species Act.
6. Northern Long-Eared Bat (Myolis septentrionalts)
The Northern Long-Eared Bat (NLEB) is a threatened migratory bat. Pipeline
construction will remove 171 acres of trees within five miles of a Northern Long-Eared
Bat hibernaculum identified as PH-S018. J.A. 425. In 2016, FWS promulgated a
generally applicable final rule that governs most incidental take of the Northern Long-
Eared Bat. Endangered and Threatened Wildlife and Plants; 4(d) Rule for the Northern
Long-Eared Bat, 81 Fed. Reg. 1900 (Jan. 14, 2016) (codified at 50 C.F.R. § 17.40).
Pursuant to this rule, ACP can conduct incidental take of the bat anywhere more than
0.25 miles away from hibernaculum PH-S018. J.A. 442. In the ITS at issue here, FWS
addressed only the incidental take that will occur within a quarter mile of hibernaculum
PH-S018. ACP will affect 0.4 acres of that quarter-mile radius, adversely impacting the
Northern Long-Eared Bat’s ability to forage for food and roost and rendering the habitat
permanently unsuitable. J.A. 425, 443.
FWS set the take limit as: harming or harassing a “[s]mall percent of individuals
present within 0.4 acres.” J.A. 443. The agency explained that “incidental take of NLEB
will be difficult to detect for the following reasons: species has small body size, finding a
dead or impaired specimen is unlikely, and species occurs in habitat (forest and caves)
that makes detection difficult.” J.A. 443.
The incidental take authorized here is not a proper habitat surrogate because it
lacks two of the three necessary elements. We find that FWS has demonstrated a causal
33
link between the Northern Long-Eared Bat and the 0.4 acres listed in the take limit. But,
as with the other species, the take limit is not a true habitat surrogate: take is limited to a
“small percent” of Northern Long-Eared Bats within the 0.4 acres. Although the
geographic bounds are fixed, the pipeline can only take a subset of individuals located
within those bounds. And it is impossible to know how many bats constitute a “small
percent.” Therefore, there is no clear and enforceable standard of take. Moreover, FWS
has not shown that a numeric take limit is impractical in such a small geographic area.
In sum, the take limit for the Northern Long-Eared Bat fails two of the habitat
surrogate requirements: it lacks an explanation as to why a numerical limit is
impractical, and it lacks a clear enforcement standard. See 50 C.F.R. § 402.14(i)(1)(i).
Because the Northern Long-Eared Bat take limit is not a meaningful trigger, it violates
the Endangered Species Act.
* * *
We find that FWS has failed to create proper habitat surrogates, failed to explain
why numeric limits are not practical, and failed to create enforceable take limits for the
Clubshell, the Rusty Patched Bumble Bee, the Madison Cave Isopod, the Indiana Bat,
and the Northern Long-Eared Bat. Because FWS’s vague and unenforceable take limits
are arbitrary and capricious, we vacated the ITS pending the issuance of this opinion.
Sierra Club v. United States Dep’t of the Interior, 722 F. App’x 321, 322 (4th Cir. 2018).
III.
34
We next address petition No. 18-1082, which challenges the National Park Service
(NPS)’s decision to issue a permit allowing the ACP to cross the Blue Ridge Parkway.
Petitioners Sierra Club and Virginia Wilderness Committee 8 argue that granting a right-
of-way to a gas pipeline exceeds NPS’s statutory authority. They also argue that the ACP
permit violates a statutory requirement that all agency authorizations be consistent with
parkway purposes. NPS challenges Petitioners’ standing to bring this petition, while both
NPS and ACP contest the merits. We begin by briefly reciting the facts relevant to this
petition before turning first to standing and next the merits.
A.
The Blue Ridge Parkway is a component of the National Park System, linking the
Shenandoah National Park in Virginia to the Great Smoky Mountains National Park in
North Carolina. 16 U.S.C. § 460a-2. Like the rest of the National Park System, the
Parkway is managed by NPS. According to NPS’s Management Plan, the Blue Ridge
Parkway serves not only as a connector between destinations but also as a recreational
and scenic site in itself. J.A. 623–24.
The ACP’s proposed pathway intersects with the Blue Ridge Parkway.
Accordingly, FERC’s final approval of the pipeline hinges on NPS granting a right-of-
way to cross the Parkway. As proposed, the pipeline would drill and pass underneath the
Parkway without breaching the Parkway’s surface. However, the proposed route would
8
The Defenders of Wildlife is a petitioner in only No. 18-1083. For purposes of
this section, we use “Petitioners” to refer to the Sierra Club and the Virginia Wilderness
Committee.
35
require removing all of the trees from a portion of a nearby forest, leaving a vertical
clearing that would be visible from the Parkway. J.A. 1018. During initial construction
of the pipeline, that clearing would be 125 feet wide. Once construction is complete, the
clearing would be reduced to a permanent 50-foot wide corridor, reserved for pipeline
maintenance purposes. J.A. 325, 1035.
A visual impact study conducted by ACP and overseen by NPS concluded that the
corridor would be visible from at least one key observation point along the Parkway, thus
significantly decreasing the park’s scenic value. J.A. 1020. Specifically, the analysis
concluded that “[v]iews of the ACP corridor from the Three Ridges overlook . . . would
likely be inconsistent with NPS management objectives, given the proximity to the
viewer, the axial nature of the view, and the corridor’s contrast with the surrounding
forest.” J.A. 1020.
On December 12, 2017, NPS issued a revocable permit granting right-of-way to
ACP, subject to a list of terms and conditions. The permit cites only 16 U.S.C. § 460a-8
for its statutory authority. J.A. 897. The permit decision does not reference any harm to
the Parkway’s scenic or conservation value or the effectiveness of any mitigation
strategies.
Petitioners now seek review of the right-of-way permit, arguing that NPS failed to
comply with the Mineral Leasing Act and the Blue Ridge Parkway Organic Act. 30
U.S.C. § 185; 16 U.S.C. §§ 460a-3, 460a-3.
B.
36
We first address standing. Petitioners Sierra Club and the Virginia Wilderness
Committee are organizational plaintiffs that have associational standing to sue “on behalf
of [their] members when [their] members would otherwise have standing to sue in their
own right.” 9 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180–81 (2000). For the members to establish standing, they, like all plaintiffs,
“must show (1) [they have] suffered an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision.” Id.
(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). For the reasons below,
we conclude that Petitioners (via their members) have met the requirements of Article III
standing.
Members of the petitioning environmental groups aver that they regularly use and
enjoy the Blue Ridge Parkway and its scenic views. Petitioners Opening Brief
Addendum (Pet. Add.) 115, 126, 130, 171. One member avers that she and her husband
have enjoyed using the Three Ridges Overlook for the past thirty-five years. Pet. Add.
117. Other members similarly affirm in their affidavits that they have been to Three
Ridges in the past and intend to visit it regularly as part of their hikes and drives in the
9
Associational standing also requires that “the interests at stake [be] germane to
the organization’s purpose, and [and that] neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.” Laidlaw
Envtl. Servs., 528 U.S. at 180–81. These elements of standing are not contested; it is
clear that environmental preservation is germane to Petitioners’ organization purpose and
that individual participation by their members is unnecessary.
37
future because it is a particularly beautiful and cherished section of the Parkway. Pet.
Add. 131, 167, 173. One of the members also owns a home near the Parkway, near
where the construction is expected to occur. He expresses concerns about not only the
pipeline’s impact on the scenery he enjoys but also the noise and pollution expected to be
caused by the drilling operation, which may affect his home. Pet. Add. 161–62, 164.
The affidavits provided by Petitioners’ members sufficiently demonstrate injury in
fact. “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they
use the affected area and are persons for whom the aesthetic and recreational values of
the area will be lessened by the challenged activity.” Laidlaw Envtl. Servs., 528 U.S. at
183 (internal quotation marks and citation omitted). Here, the affidavits establish the
members’ longstanding history of enjoying not just the Blue Ridge Parkway generally but
the Three Ridges Overlook specifically. The pipeline’s construction and maintenance
corridor would be visible from the Overlook and lessen the aesthetic value of the
Parkway. Because the pipeline would prevent the members from enjoying the full beauty
of the Parkway and the Overlook, they have established injury in fact.
Petitioners have also shown that their members’ injuries are fairly traceable to, or
caused by, NPS’s right-of-way decision. To establish traceability, Petitioners’ members
must show that the challenged action is “in part responsible for frustrating” their ability to
enjoy the Blue Ridge Parkway. See Libertarian Party of Va. v. Judd, 718 F.3d 308, 316
(4th Cir. 2013). Here, NPS authorized the pipeline to cross the Blue Ridge Parkway near
the Three Ridges Overlook. That crossing then created the need for the nearby
construction and maintenance corridor that would diminish the Parkway’s scenic value.
38
In other words, NPS enabled and virtually ensured the alleged harm to the Parkway’s
aesthetic value.
To the contrary, NPS argues that the alleged injuries are not directly caused by the
segment of the pipeline that crosses the Parkway. Specifically, NPS emphasizes that the
pipeline proceeds underneath the Parkway and does not disturb the Parkway’s surface as
it crosses. And, although the pipeline’s construction and maintenance corridor will scar a
nearby forest visible from the Parkway, NPS disclaims all responsibility because that
corridor resides on federal lands not managed by NPS and does not require NPS
authorization. 10 The problem with this argument is that the causation element of standing
does not require the challenged action to be the sole or even immediate cause of the
injury. See Bennett, 520 U.S. at 168–69 (“This wrongly equates injury ‘fairly traceable’
to the defendant with injury as to which the defendant’s actions are the very last step in
the chain of causation.”); Libertarian Party of Va., 718 F.3d at 315–16. Here, without
NPS’s grant of a right-of-way, the pipeline could not have been authorized in its currently
proposed form. It therefore cannot be said that Petitioners’ injuries are “the result of the
independent action of some third party not before the court.” See Bennett, 520 U.S. at
168–69 (citation omitted) (holding that injuries were fairly traceable to Fish and Wildlife
Service’s biological opinion even though another agency had to decide how to proceed in
10
We find it remarkable that counsel representing the National Park Service,
which is charged with “provid[ing] for the enjoyment of the scenery, natural and historic
objects, and wild life in such manner and by such means as will leave them unimpaired
for the enjoyment of future generations,” would seem to take a litigation position that
regards the premier conservation agency’s role as no more than highway maintenance.
See 54 U.S.C. § 100101.
39
light of biological opinion); see also Metro. Wash. Airports Auth. v. Citizens for
Abatement of Aircraft Noise, Inc., 501 U.S. 252, 264–65 (1991) (finding standing to
challenge constitutionality of Board of Review’s veto power over agency’s air traffic plan
even though injuries were directly caused by agency’s proposed plan and not Board’s
veto power). We accordingly reject NPS’s efforts to elevate Petitioners’ burden of
proving causation and conclude that the alleged injuries are fairly traceable to the agency.
Finally, and for similar reasons, Petitioners have demonstrated redressability. To
satisfy this element of standing, Petitioners must show that “it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.” Laidlaw
Envtl. Servs., 528 U.S. at 181. Petitioners “need not show that a favorable decision will
relieve [their] every injury.” Larson v. Valente, 456 U.S. 228, 242–44 & n.15 (1982).
Instead, Petitioners need only show that they “personally would benefit in a tangible way
from the court’s intervention.” Friends of the Earth, Inc. v. Gaston Copper Recycling
Corp., 204 F.3d 149, 162 (4th Cir. 2000) (en banc) (citation omitted). In this case, if this
Court were to invalidate the NPS permit as requested, the pipeline cannot exist in its
proposed form with its current authorizations and would have to be re-authorized with a
new permit or possibly a new route to proceed. 11 See 15 U.S.C. §§ 717f, 717n; Dominion
Transmission, Inc. v. Summers, 723 F.3d 238, 240 (D.C. Cir. 2013) (“Before a company
may construct a facility that transports natural gas, it must obtain from FERC a certificate
11
As noted previously, FERC’s authorization for ACP to begin construction is
conditioned on the existence of valid authorizations from both FWS and NPS. Absent
such authorizations, ACP, should it continue to proceed with construction, would violate
FERC’s certificate of public convenience and necessity. See J.A. 362–84.
40
of public convenience and necessity, and comply with all other federal, state, and local
regulations not preempted by the NGA.” (citation omitted)). Absent the pipeline
crossing, there would be no associated construction and maintenance corridor nearby to
interfere with the recreational use of the Parkway and the Overlook. See Metro. Wash.,
501 U.S. at 264–65 (holding that injuries were redressable because relief would stop
implementation of air traffic plan expected to cause noise and pollution). Thus,
Petitioners’ injuries are redressable because granting the requested relief would at least
mitigate, if not eliminate, the alleged harm.
NPS nonetheless argues that the pipeline might be re-routed in a way that remains
close to the Blue Ridge Parkway such that it could still disrupt views from the Parkway
without intersecting it. However, this argument is mere speculation. NPS has not
provided any support for its claim that the pipeline would materially affect views from
the Parkway even if ACP were denied a right-of-way. The crossing of the Parkway
necessitated the maintenance corridor that harms views from the Parkway, and we simply
see no reason why the pipeline would clear and maintain a permanent corridor near the
Parkway if no crossing is (or can be) permitted by NPS. Just as Petitioners cannot
establish redressability via speculation, NPS cannot simply hypothesize as to possible
future harm to overcome the fact that a favorable ruling would redress Petitioners’ only
injury at this time.
Even assuming that such a re-routing were possible or even likely, NPS’s
argument still fails. The removal of even one obstacle to the exercise of one’s rights,
even if other barriers remain, is sufficient to show redressability. See Larson, 456 U.S. at
41
242–43 (holding that plaintiffs had standing to challenge one part of state law requiring
registration of charitable organizations, even if plaintiffs might ultimately be required to
register under another provision). Moreover, an opportunity to enjoy the unadulterated
views of the Parkway and the Overlook, even if only temporarily until a new route or
permit is authorized, is itself a “tangible” benefit. See Gaston Copper Recycling Corp.,
204 F.3d at 162.
In sum, Petitioners have shown that their members will suffer an injury in fact that
is at least partly caused by NPS’s actions and that is likely to be redressed by a favorable
ruling. Because their members have shown that they would have standing in their own
right, Petitioners have associational standing to bring this suit.
C.
We now turn to the merits of the petition, which presents two lines of argument
against NPS’s issuance of the right-of-way permit. First, Petitioners argue that NPS lacks
general statutory authority to grant rights-of-way for oil and gas pipelines. Second,
assuming such general authority exists, they argue that issuing the permit in this case
violates the authorizing statute because it is not consistent with parkway purposes.
Answering these questions requires us to interpret three statutory provisions—the two
general right-of-way provisions under the Blue Ridge Parkway Organic Act and the
definitional provision of the Mineral Leasing Act, which purportedly constrains agency
authority under the Organic Act. We first consider what deference we owe to the
agency’s interpretation of these statutes and then address the parties’ arguments.
1.
42
The parties seem to assume, without any analysis, that NPS’s interpretation of the
relevant statutes is eligible for Chevron review. See Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 843 (1984). However, as our sister circuits have held,
parties “cannot waive the proper standard of review by failing to argue it.” See U.S. v.
Freeman, 640 F.3d 180, 186 (6th Cir. 2011) (internal quotation marks omitted); accord
Worth v. Tyer, 276 F.3d 249, 262 n.4 (7th Cir. 2001) (“[T]he court, not the parties, must
determine the standard of review, and therefore, it cannot be waived.”); Am. Soc. of
Composers, Authors & Publishers v. Showtime/The Movie Channel, Inc., 912 F.2d 563,
569 (2d Cir. 1990) (rejecting appellant’s and appellee’s proposed standard of review).
Nor can parties “determine this court’s standard of review by agreement.” K & T Enters.,
Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir. 1996). We therefore must
independently assure ourselves that any statutory interpretation provided by NPS
qualifies for Chevron review and if not, whether it is entitled to a lesser form of
deference, such as that afforded under Skidmore. See United States v. Mead Corp., 533
U.S. 218, 226–27 (2001) (discussing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944));
see also Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018) (Kennedy, J., concurring)
(cautioning courts against abdication of judicial role by engaging in “reflexive deference”
to agency decisions). For the reasons below, we conclude that the agency’s statutory
interpretation is not entitled to Chevron deference or Skidmore respect.
As the Supreme Court held in Mead, only an agency interpretation that carries the
force of law is Chevron-eligible. 533 U.S. at 226–27 (holding that Customs’ ruling letter
classifying day-planners as “diaries” for tariff purposes does not carry force of law). An
43
agency interpretation carries force of law when, first, Congress has “delegated authority
to the agency generally to make rules” and, second, the “agency interpretation claiming
deference was promulgated in the exercise of that authority.” Id.
This case concerns the scope of authority granted by 16 U.S.C. § 460a-3 and
§ 460a-8 and the effect, if any, of the Mineral Leasing Act, 30 U.S.C. § 185, on those two
provisions. But NPS, in its permit decision, interpreted only one of these provisions:
§ 460a-8. The permit does not even cite, let alone interpret, 16 U.S.C. § 460a-3 and 30
U.S.C. § 185. Thus, as to those two provisions, there is simply no agency interpretation
that can claim deference, under Chevron or otherwise. 12 Meanwhile, the arguments that
NPS’s appellate counsel has marshalled in the agency’s defense are merely litigation
positions that do not reflect an exercise of delegated legislative authority and agency
expertise and are not eligible for any deference. See Knox Creek Coal Corp. v. Sec’y of
Labor, Mine Safety & Health Admin., 811 F.3d 148, 159 (4th Cir. 2016); see also Alaska
v. Fed. Subsistence Bd., 544 F.3d 1089, 1095 (9th Cir. 2008) (“We do not afford Chevron
or Skidmore deference to litigation positions unmoored from any official agency
interpretation because ‘Congress has delegated to the administrative official and not to
12
As to the Mineral Leasing Act in particular, this Court also would not defer to
any NPS interpretation because NPS is not the agency charged with implementing the
statute. See 30 U.S.C. § 185; see King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (holding
that Congress did not delegate health insurance policy to Internal Revenue Service);
Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (holding that statute did not delegate
authority to Attorney General to make medical judgments); Soliman v. Gonzales, 419
F.3d 276, 281 (4th Cir. 2005) (holding that federal agency’s interpretation of state law
was not entitled to deference). Indeed, the National Park System is expressly excluded
from the coverage of the Mineral Leasing Act.
44
appellate counsel the responsibility for elaborating and enforcing statutory commands.’”
(quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988))).
We now turn to the only relevant interpretation that NPS has rendered—its
invocation of 16 U.S.C. § 460a-8. In its permit decision, NPS concluded that “§ 460a-8
authorizes the Secretary of the Interior to grant revocable licenses or permits for rights-
of-way over, across, and upon Parkway lands, under such terms and conditions as he may
determine to be consistent with the use of such lands for parkway purposes.” J.A. 897.
This near-verbatim recitation of § 460a-8 is not accompanied by any explanation or
rationale. Nor does the boilerplate language specifically address authorizations
concerning natural gas pipelines, the focus of this case.
Applying Mead to NPS’s interpretation of § 460a-8, the first consideration is
whether Congress has delegated power to the agency to make legislative-type
determinations. See A.T. Massey Coal Co. v. Holland, 472 F.3d 148, 166 (4th Cir. 2006);
see also Mead, 533 U.S. at 232–33. Section 460a-8 does not expressly delegate to the
agency any rulemaking or formal adjudicatory power and appears to contemplate case-
by-case determinations of applications for rights-of-way. See 16 U.S.C. § 460a-8.
However, the absence of an explicit delegation is not conclusive and, at this juncture, we
need not decide whether § 460a-8 implicitly confers on the agency the power to “stand[]
in the shoes of Congress.” See A.T. Massey, 472 F.3d at 166. We leave this delegation
question for another day because the right-of-way permit clearly fails Mead’s second
inquiry.
45
Even assuming that Congress has delegated interpretative power to NPS, Mead
requires that the agency actually exercise that delegated authority before it can receive
deference for its interpretation. A.T. Massey, 472 F.3d at 166. To determine whether an
agency has exercised its power to make legislative-type determinations, we look for
procedural hallmarks of legislative decision-making. Id. at 166–67. At minimum,
agency decisions must have future application to claim rulemaking power. See, e.g.,
Knox Creek, 811 F.3d at 159; Martinez v. Holder, 740 F.3d 902, 909–10 (4th Cir. 2014)
(collecting cases); Carpio v. Holder, 592 F.3d 1091, 1097 (10th Cir. 2010) (“When, as
here, the agency’s interpretation was issued in an adjudication, we must consider whether
the decision constitutes binding precedent within the agency.”). Thus, agency decisions
that are not precedential and binding within the agency itself generally do not qualify for
Chevron. 13 See Olson v. Fed. Mine Safety & Health Review Comm’n, 381 F.3d 1007,
1014 (10th Cir. 2004) (“Indeed, it would be extremely odd to give [agency] decisions
greater legal force in court than they have within the agency itself.” (citation omitted)).
In addition to precedential value, other indicators of a legislative-type decision include
the agency “weighing conflicting policies, considering adversarial viewpoints,” and using
“a relatively formal administrative procedure tending to foster the fairness and
deliberation that should underlie a pronouncement of law.” Knox Creek, 811 F.3d at 159
(citations and quotation marks omitted).
13
Indeed, Mead noted that even precedential decisions may not always be
Chevron-eligible. 533 U.S. at 232 (“[P]recedential value alone does not add up to
Chevron entitlement.”).
46
In this case, the right-of-way permit lacks virtually all of the procedural hallmarks
of a legislative-type determination. First, the permit has no precedential value because it
does not bind third-parties or otherwise set forth a general rule that controls future cases.
See High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 648 (9th Cir. 2004) (“The
Forest Service was not acting with the force of law in this case because it was granting
permits, not acting in a way that would have precedential value for subsequent parties.”).
Instead, the permit is no more than an agreement between signatories. See J.A. 898, 909.
Second, the NPS decision does not indicate that there was any adversarial or deliberative
process where opposing views were presented or considered, nor does the decision
address any opposing views. See J.A. 897–909; cf. Doe v. Leavitt, 552 F.3d 75, 81 (1st
Cir. 2009) (giving deference to generally applicable interpretation that resulted from
“structured” process that “allowed for written submissions by all affected parties”).
Thus, an NPS right-of-way permit is no more formal than the ruling letters at issue in
Mead, which classified products for purposes of imposing tariffs on specific parties
without the use of notice-and-comment or any other “lawmaking pretense.” See 533 U.S.
at 232–34. We therefore conclude that the right-of-way permit here cannot be fairly
characterized as “the exercise of a congressionally delegated legislative function.” The
Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1067 (9th Cir. 2003) (en
banc). Because it fails Mead’s second inquiry, the permit is not eligible for Chevron
deference.
Having determined that NPS’s interpretation of § 460a-8 is not entitled to Chevron
review, we next consider whether it is entitled to a lesser form of deference under
47
Skidmore. “The weight of such a judgment . . . depend[s] upon the thoroughness evident
in its consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if lacking power
to control.” Skidmore, 323 U.S. at 140. Here, as explained above, NPS’s invocation of
§ 460a-8 is a one-sentence recitation of statutory text without any accompanying
explanation. And, because NPS makes no effort to specifically apply § 460a-8 to natural
gas pipelines or to evaluate contrary arguments, its interpretation wholly lacks
explanatory and persuasive power. We therefore accord it no Skidmore respect, and the
agency’s appellate counsel’s post hoc interpretation of § 460a-8, like its interpretation of
§ 460a-3 and the Mineral Leasing Act, also warrants no deference. See Knox Creek, 811
F.3d at 159; Fed. Subsistence Bd., 544 F.3d at 1095.
Accordingly, we interpret the relevant statutory provisions de novo.
2.
We first turn to the Mineral Leasing Act (MLA), codified at 30 U.S.C. § 185. The
MLA authorizes the Interior Department to grant rights-of-way across “Federal lands” for
oil or gas pipelines, provided that such pipelines satisfy an extensive list of conditions.
See 30 U.S.C. § 185. The statute defines “Federal lands” as “all lands owned by the
United States except lands in the National Park System.” 14 30 U.S.C. § 185(b). The
question here is whether the MLA’s omission of national parks precludes NPS from
granting rights-of-way to oil and gas pipelines. For the reasons below, we conclude that
14
The MLA’s definitional provision contains two other exceptions not relevant to
this case. See 30 U.S.C. § 185(b).
48
the MLA creates a separate scheme for regulating pipeline crossings on non-park lands
and that it does not diminish NPS’s authority to manage the National Park System.
Because the MLA does not authorize rights-of-way across national parks,
Petitioners draw the negative implication that Congress has forbidden oil and gas
pipelines from crossing the National Park System. For support, Petitioners cite to Food
& Drug Admin. v. Brown & Williamson Tobacco Corp., where the Supreme Court held
that “the meaning of one statute may be affected by other Acts, particularly where
Congress has spoken subsequently and more specifically to the topic at hand.” 529 U.S.
120, 133 (2000).
However, Brown & Williamson is inapposite. There, the Supreme Court denied
the Food and Drug Administration (FDA) the power to regulate tobacco because
Congress had “enacted several statutes addressing the particular subject of tobacco and
health, creating a distinct regulatory scheme for cigarettes and smokeless tobacco.” Id. at
155–56. The FDA, by independently regulating tobacco, had effectively asserted
authority in a field that other statutes had already occupied. Under such circumstances,
the Supreme Court held that “Congress has directly spoken to the issue here and
precluded the FDA’s jurisdiction to regulate tobacco products.” Id. at 133. Here, the
MLA does not directly speak to the issue of oil and gas pipelines in national parks; the
statute instead expressly applies to all Federal lands except national parks. Therefore,
unlike the tobacco statutes in Brown & Williamson that occupied the FDA’s regulatory
space, the MLA is carefully drawn to avoid NPS’s domain. Thus, the MLA and the
National Park System simply operate in separate spheres, and the MLA leaves untouched
49
whatever preexisting right-of-way authority that Congress delegated for the Park
System’s management.
In an effort to show that the MLA is all-encompassing and precludes oil and gas
pipelines in the National Park System, Petitioners cite the MLA’s exclusivity and
retroactivity provisions. 30 U.S.C. § 185(q), (t). However, those provisions do not
support Petitioners’ position because the provisions’ scope remains limited to all “Federal
lands” other than national parks. Had those provisions utilized a definition of “Federal
lands” that included the National Park System, we may be compelled to agree, but that is
not the statute we have.
Petitioners also argue that a ruling in the agency’s favor would allow NPS and
ACP to evade the policy choice that Congress made in the MLA, which subjects oil and
gas pipelines to stringent requirements. However, the MLA’s requirements, by the
statute’s plain text, never applied to the National Park System. Thus, there is simply
nothing to evade. That is not to say that NPS has unbridled discretion to grant oil and gas
rights-of-way—the agency still has to comply with the requirements of whatever
authorizing statute it properly invokes. And, although the MLA does not preclude NPS
from granting such rights-of-way, the statute’s exhaustive requirements shed light on the
rigor and thoroughness that Congress expects to accompany such weighty decisions,
particularly given the National Park System’s conservation mission. See 54 U.S.C.
§ 100101(a).
Accordingly, we hold that the MLA neither authorizes nor precludes grants of
rights-of-way across “lands in the National Park System.” 30 U.S.C. § 185(b).
50
3.
Having determined that the MLA leaves intact NPS’s right-of-way authority, we
now consider the scope of authority conferred by the Blue Ridge Parkway Organic Act
and NPS’s compliance with its requirements. At issue are two provisions containing
substantially similar language, 16 U.S.C. § 460a-3 and § 460a-8. Petitioners argue that
neither provision authorizes the right-of-way permit in this case, while NPS and ACP
argue that both provisions are independently sufficient sources of authority. To
harmonize and give effect to both provisions, we conclude below that § 460a-8 applies
only to a specific extension of the Blue Ridge Parkway that is not at issue in this case.
Even assuming that either § 460a-3 or § 460a-8 confers general authority on NPS to grant
oil and gas rights-of-way through Blue Ridge Parkway property, we conclude that NPS
has acted arbitrarily and capriciously by failing to explain why ACP’s pipeline is not
inconsistent with parkway purposes.
Our analysis begins with the text. Section 460a-3 provides that:
In the administration of the Blue Ridge Parkway, the Secretary of the
Interior may issue revocable licenses or permits for rights-of-way over,
across, and upon parkway lands, or for the use of parkway lands by the
owners or lessees of adjacent lands, for such purposes and under such
nondiscriminatory terms, regulations, and conditions as he may determine
to be not inconsistent with the use of such lands for parkway purposes.
16 U.S.C. § 460a-3.
Section 460a-8 provides that:
The Secretary of the Interior may issue revocable licenses or permits for
rights-of-way over, across, and upon parkway lands, or for the use of
parkway lands by the owners or lessees of adjacent lands, or for such
51
purposes and under such terms and conditions as he may determine to be
consistent with the use of such lands for parkway purposes.
16 U.S.C. § 460a-8.
To discern the scope of these two virtually identical provisions, we must
determine how they interact with one another. NPS and ACP argue that § 460a-8 is
broader than § 460a-3 because the former places an “or” in front of “for such purposes
and under such terms and conditions as he may determine to be consistent with . . .
parkway purposes.” Thus, NPS and ACP read § 460a-8 as authorizing three types of
permits: (1) permits for rights-of-way over, across, and upon parkway lands; (2) permits
for the use of parkway lands by the owners or lessees of adjacent lands; and (3) permits
for other purposes that the agency determines to be consistent with parkway objectives.
Meanwhile, because § 460a-3 lacks the final disjunctive “or,” it would only authorize two
types of permits, both of which must be consistent with parkway purposes: (1) permits
for rights-of-way over, across, and upon parkway lands and (2) permits for the use of
parkway lands by the owners or lessees of adjacent lands.
We find NPS and ACP’s reading of § 460a-8 unpersuasive. Were we to adopt it,
§ 460a-8 would completely swallow § 460a-3 and render it a nullity. Indeed, § 460a-8
would be an implied repeal of § 460a-3 because it would remove the consistency
requirement that previously constrained NPS’s discretion. This construction also flouts a
fundamental principle that undergirds every aspect of NPS’s management of the National
Park System—the agency is forbidden from taking any action that is not consistent with
its conservation mission unless Congress has “directly and specifically” authorized the
52
harmful activity. See 54 U.S.C. § 100101(a), (b)(2). As the Supreme Court has held,
courts disfavor implied repeals and amendments of statutes. Nat’l Ass’n of Home
Builders v. Defs. of Wildlife, 551 U.S. 644, 664 & n.8 (2007). Similarly, we have an
obligation to read statutory provisions in context and to avoid rendering superfluous any
parts thereof. United States v. Jicarilla Apache Nation, 564 U.S. 162, 185 (2011); TRW
Inc. v. Andrews, 534 U.S. 19, 31 (2001). Accordingly, as long as there is a reasonable
alternative, we will not read § 460a-8 as impliedly abrogating NPS’s conservation
mandate under § 460a-3 and 54 U.S.C. § 100101. 15
Petitioners have provided a more than reasonable interpretation of § 460a-8 that
also gives effect to § 460a-3. Petitioners correctly point out that § 460a-8 was a later-
enacted provision passed within a larger bill authorizing the construction and
management of an extension of the Blue Ridge Parkway, which would run from North
Carolina into Georgia. See Pub. L. No. 90-555, § 3, 82 Stat. 967 (1968). The
geographical distinction between § 460a-3 and § 460a-8 completely resolves the seeming
redundancy of the two similarly worded provisions. In particular, the statutory provision
explicitly relied on in the permit, § 460a-8, applies only to the never-constructed southern
extension, not to the original Blue Ridge Parkway itself (for which § 460a-3 governs). In
sum, because the proposed pipeline crossing in this case is in Virginia, § 460a-8 does not
provide NPS with any authority to issue the requisite right-of-way permit.
15
We note that even NPS’s permit decision indicated that it only had authority
under § 460a-8 to grant a right-of-way if it determined that such a grant is consistent with
parkway purposes. J.A. 897. Therefore, NPS’s litigation position is actually contrary to
the agency decision that it purports to defend.
53
Ordinarily, that conclusion would end our inquiry because it is a “fundamental
rule of administrative law” that “a reviewing court, in dealing with a determination or
judgment which an administrative agency alone is authorized to make, must judge the
propriety of such action solely by the grounds invoked by the agency.” See Sec. & Exch.
Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947). Under Chenery, “[i]f those
grounds are inadequate or improper, the court is powerless to affirm the administrative
action by substituting what it considers to be a more adequate or proper basis.” Id.
However, we are faced with an unusual circumstance in which NPS has invoked an
inapplicable statutory provision, § 460a-8, but in doing so, has essentially recited the
applicable text of another, § 460a-3. 16 As a result, affirming NPS’s decision on § 460a-3
grounds would not substitute the Court’s judgment for the agency’s because the grounds
for invoking § 460a-3 and § 460a-8 are the same. Under both § 460a-3 and § 460a-8,
NPS’s ground for granting a right-of-way permit is the identical determination that such a
grant would not be inconsistent with parkway purposes. Accordingly, we conclude that
Chenery alone does not compel a reversal and that we may affirm if § 460a-3 provides
NPS with the requisite authority and NPS has complied with its requirements.
16
Compare J.A. 897 (Ҥ 460a-8 authorizes the Secretary of the Interior to grant
revocable licenses or permits for rights-of-way over, across, and upon Parkway lands,
under such terms and conditions as he may determine to be consistent with the use of
such lands for parkway purposes.”) with 16 U.S.C. § 460a-3 (“[T]he Secretary of the
Interior may issue revocable licenses or permits for rights-of-way over, across, and upon
parkway lands . . . under such nondiscriminatory terms, regulations, and conditions as he
may determine to be not inconsistent with the use of such lands for parkway purposes.”).
54
As to NPS’s authority under § 460a-3, the parties dispute two possible limitations.
First, Petitioners argue that § 460a-3 authorizes the grant of rights-of-way only to
“owners or lessees of adjacent lands.” See 16 U.S.C. § 460a-3. NPS and ACP counter
that the “owners or lessees” clause only modifies “for the use of parkway lands.” In
other words, they believe that NPS may authorize only the Parkway’s neighbors to “use”
the Parkway, but NPS can grant rights-of-way to both neighbors and non-neighbors.
Second, the parties dispute whether § 460a-3 allows NPS to grant rights-of-way for oil
and gas pipelines notwithstanding the neighbors clause. Petitioners argue that oil and gas
pipelines are categorically inconsistent with parkway purposes and that NPS therefore
has no authority to grant a right-of-way for any oil or gas pipeline, not just the ACP. The
MLA (30 U.S.C. § 185) and 54 U.S.C. § 100902 may also inform our analysis of § 460a-
3, because both statutes authorize rights-of-way for gas and utility-type purposes subject
to detailed requirements rather than open-ended agency discretion. However, we need
not—and thus do not—decide either of these broader interpretative questions because,
even assuming that § 460a-3’s general right-of-way authority encompasses oil and gas
pipelines, Petitioners nonetheless prevail because the agency has not fulfilled the
requirements needed to exercise any such authority.
To the extent § 460a-3 confers such authority, before NPS can properly issue a
right-of-way permit, it must make a threshold determination that granting the right-of-
way is “not inconsistent with the use of such lands for parkway purposes” and the overall
National Park System to which it belongs. Critically, Congress has defined the National
Park System’s “purpose” as “conserv[ing] the scenery, natural and historic objects, and
55
wild life in the System units and [] provid[ing] for the enjoyment of the scenery, natural
and historic objects, and wild life in such manner and by such means as will leave them
unimpaired for the enjoyment of future generations.” 54 U.S.C. § 100101(a); United
States v. Stephenson, 29 F.3d 162, 165 (4th Cir. 1994) (construing predecessor to 54
U.S.C. § 100101). Thus, unlike other Federal lands, such as the national forests, the
National Park System’s sole mission is conservation. Mich. United Conservation Clubs
v. Lujan, 949 F.2d 202, 207 (6th Cir. 1991) (“[U]nlike national forests, Congress did not
regard the National Park System to be compatible with consumptive uses.”). To that end,
Congress has mandated that the management of the National Park System, including the
authorization of activities therein, be consistent with those conservation values and
purposes, absent specific and direct legislation to the contrary. 54 U.S.C. § 100101(b).
That conservation mandate extends to the management of the Blue Ridge Parkway, a unit
of the National Park System. 16 U.S.C. § 460a-2. Thus, absent a specific exemption
from this mandate, NPS must determine that its right-of-way permit is not in
“derogation” of the National Park System’s conservation mission. 54 U.S.C.
§ 100101(b).
The Blue Ridge Parkway also has its own conservation and preservation purpose,
according to NPS’s General Management Plan for the Parkway. Under the Plan, the
Parkway’s specific purposes are to “connect . . . national parks by way of a ‘national rural
parkway’—a destination and recreational road that passes through a variety of scenic
ridge, mountainside, and pastoral farm landscapes”; “conserve the scenery and preserve
the natural and cultural resources of the parkway’s designed and natural areas”; “provide
56
for public enjoyment and understanding of the natural resources and cultural heritage of
the central and southern Appalachian Mountains”; and “provide opportunities for high-
quality scenic and recreational experiences along the parkway and in the corridor through
which it passes.” 17 The Blue Ridge Parkway Organic Act then forbids NPS from
authorizing any right-of-way that is not consistent with those parkway purposes. See 16
U.S.C. §§ 460a-3, 460a-8. Thus, the right-of-way permit in this case would violate
statutory requirements if not accompanied by a valid agency determination that the
pipeline is not inconsistent with the Parkway’s scenic value and the public’s enjoyment
thereof.
We review NPS’s factbound determination that the pipeline right-of-way is
consistent with the purposes of the Parkway and the Park System under the deferential
“arbitrary and capricious” standard set forth in State Farm. See 463 U.S. at 43; see also 5
U.S.C. § 706. Under State Farm, “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.’” 463 U.S. at 43 (quoting Burlington
Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Generally, an agency decision
is arbitrary and capricious if “the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence before the
17
National Park Service, Blue Ridge Management Plan, 9 (Jan. 2013),
https://parkplanning.nps.gov/document.cfm?parkID=355&projectID=10419&documentI
D=51305 (saved as ECF opinion attachment 4).
57
agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Id.
Here, the agency decision is not accompanied by any explanation, let alone a
satisfactory one. Instead, the permit merely recites that “NPS has determined that the
proposed use or occupancy of the NPS-administered lands or waters described herein for
the operation and maintenance of the Project, is consistent with the use of these lands for
Parkway purposes” and provides no further elaboration. J.A. 897.
We find this lack of explanation particularly troubling given the evidence in the
record indicating that the presence of the pipeline is inconsistent with and in derogation
of the purposes of the Parkway and the Park System. Indeed, a visual impact study that
NPS oversaw specifically concluded that the effect of the pipeline on views from the
Parkway “would likely be inconsistent with NPS management objectives.” J.A. 1020.
The permit neither mentions this detrimental effect nor the efficacy of any mitigating
steps. See, e.g., Fred Meyer Stores, Inc. v. Nat’l Labor Relations Bd., 865 F.3d 630, 638
(D.C. Cir. 2017) (finding agency action was arbitrary and capricious when “it evidences a
complete failure to reasonably reflect upon the information contained in the record and
grapple with contrary evidence—disregarding entirely the need for reasoned
decisionmaking”).
Nor does the NPS decision address whether the drilling required to install the
pipeline will remain consistent with park purposes should the proposed drilling method
fail. In the event of failure, ACP must resort to its contingency plan of using the “direct
pipe” method, which is expected to intensify the disruptive effects of the pipeline and
58
impact additional observation areas. J.A. 560. Similarly, the permit, at numerous points,
appears to acknowledge the possibility of spills and fires, but it does not consider whether
inviting such risks into the National Park System is consistent with NPS’s conservation
mission. See, e.g., J.A. 903 (requiring ACP to provide contact information in case of
spills and fires). Because NPS’s permit decision contains no explanation of likely
inconsistencies that NPS’s own review has uncovered, we must conclude that the agency
has failed to draw a “rational connection between the facts found and the choice made”
and has ignored important aspects of the problem. See State Farm, 463 U.S. at 43; Ohio
River Valley Envtl. Coal., Inc. v. Kempthorne, 473 F.3d 94, 103 (4th Cir. 2006) (holding
that agency acted arbitrarily by weakening environmental protection standards without
explaining consistency with statutory objectives). To do less would be to accept an
agency’s blanket conclusions at face-value and to abdicate this Court’s role to ensure that
the agency has considered “important aspect[s] of the problem” and rendered a decision
that is at least rational. See State Farm, 463 U.S. at 43; Dow AgroSciences LLC v. Nat’l
Marine Fisheries Serv., 707 F.3d 462, 471–72 (4th Cir. 2013).
Compounding these omissions are elemental errors in what NPS does say. In
addition to invoking an inapplicable statutory provision (16 U.S.C. § 460a-8) as the
source of its authority, the NPS decision also cites an inapplicable set of regulations. In
the permit, NPS seems to take as a given that regulations codified at 36 C.F.R. Part 14
govern the issuance of the ACP permit and its conditions. J.A. 897. However, those
regulations were promulgated under what is now 54 U.S.C. § 100902, a statute that
expressly governs rights-of-way for electric utilities, telecommunications lines, and water
59
conduits—not gas pipelines. While NPS certainly has discretion under 16 U.S.C. § 460a-
3 to adopt those same requirements for other uses, there is nothing to indicate that NPS
recognized the actual scope of 36 C.F.R. Part 14 or considered the regulations’
appropriate application beyond the express purposes of § 100902. Given the collective
weight of these errors and omissions, we are left with the firm conviction that NPS has
not discharged its statutory obligation to apply its considered expertise to the exercise of
its delegated authority.
Accordingly, we hold that NPS’s permit decision is arbitrary and capricious. NPS
began by invoking inapplicable laws. Even if this Court overlooks that error and assumes
that NPS correctly interpreted the Organic Act to authorize rights-of-way for gas
pipelines, NPS has not fulfilled its statutory mandate of ensuring consistency with values
and purposes of the Blue Ridge Parkway unit and the overall National Park System.
* * *
In sum, we hold that Petitioners have standing to bring this challenge, that this
Court owes no deference to the statutory interpretation contained in NPS’s permit
decision, that the MLA does not strip NPS of authority to grant rights-of-way for gas
pipelines, and that NPS’s decision to grant ACP a right-of-way was arbitrary and
capricious for failing to explain the pipeline’s consistency with the purposes of the Blue
Ridge Parkway and the National Park System.
IV.
60
Having concluded that both FWS and NPS erred in issuing their respective
authorizations, we turn to the final question of remedy. Respondents argue that this
Court lacks authority to vacate the agency actions under the Natural Gas Act. However,
Respondents’ position is contrary to the plain text of the Natural Gas Act. The judicial
review provision at issue provides,
If the Court finds that such order or action is inconsistent with the Federal
law governing such permit and would prevent the construction, expansion,
or operation of the facility subject to section 717b of this title or section
717f of this title, the Court shall remand the proceeding to the agency to
take appropriate action consistent with the order of the Court.
15 U.S.C. § 717r(d)(3).
On its face, § 717r(d)(3) only applies to an agency action that “would prevent the
construction” of the natural gas facility. See Islander E. Pipeline Co., LLC v. McCarthy,
525 F.3d 141, 150 (2d Cir. 2008). Here, the agency decisions do the opposite by
enabling pipeline construction, and the provision is therefore inapplicable. As Petitioners
correctly argue, § 717r(d) allows entities seeking approval of a pipeline to obtain more
efficient resolution when an agency denies their application. See Dominion
Transmission, 723 F.3d at 241 (“Congress provided for expedited judicial review of
federal or state agency action or inaction that deprives a company building a FERC-
certified natural gas facility of an authorization it requires to proceed with construction.”)
(citing 15 U.S.C. § 717r(d)). Accordingly, in this case, the Natural Gas Act’s judicial
review provision does not modify the APA’s default rule, which empowers this Court to
“hold unlawful and set aside agency action.” See 5 U.S.C. § 706(2)(A).
61
Because FWS and NPS have both granted authorizations in contravention of their
respective statutory requirements, we conclude that the correct remedy is to vacate the
ITS and the right-of-way permit, respectively.
V.
For the reasons in Parts II and IV, we previously vacated the ITS pending the
issuance of this opinion. Sierra Club, 722 F. App’x at 322.
For the reasons in Parts III and IV, we now VACATE the right-of-way permit that
NPS issued to ACP.
IT IS SO ORDERED.
62