Ctr. for Biological Diversity v. Haaland

58 F.4th 412

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff-Appellant,

v.Debra Anne HAALAND, in her official capacity as Secretary of the U.S. Department of the Interior ; Martha Williams, in her official capacity as Director of the U.S. Fish and Wildlife Service, Defendants-Appellees,State of Wyoming ; State of Idaho; Wyoming Stock Growers Association; Wyoming Farm Bureau Federation; Utah Farm Bureau Federation, Intervenor-Defendants-Appellees.

No. 21-35121

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 2022 Seattle, Washington

Filed January 19, 2023

Eric R. Glitzenstein (argued), Center for Biological Diversity, Washington, D.C.; Collette L. Adkins, Center for Biological Diversity, Circle Pines, Minnesota; Kristine M. Akland, Akland Law Firm PLLC, Missoula, Montana; Andrea Zaccardi, Center for Biological Diversity, Victor, Idaho; for Plaintiff-Appellant.

Benjamin W. Richmond (argued), Devon Flanagan, Robert Lundman, and Andrew Mergen, Attorneys; Todd Kim ; Assistant Attorney General; United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Dana Jacobsen, Attorney, United States Department of the Interior, Office of the Solicitor, Washington, D.C., for Defendants-Appellees.

Travis S. Jordan (argued), Senior Assistant Attorney General; James C. Kaste, Deputy Attorney General, Wyoming Attorney General's Office, Cheyenne, Wyoming; Adrian Miller, Sullivan Miller Law PLLC, Billings, Montana; for Intervenor-Defendant-Appellee State of Wyoming.

Owen Moroney, Deputy Attorney General; Darrell Early, Natural Resources Division Chief; Lawrence G. Wasden, Attorney General; for Intervenor-Defendant-Appellee State of Idaho.

William E. Trachman and Joseph A. Bingham, Mountain States Legal Foundation, Lakewood, Colorado, for Intervenors-Defendants-Appellees Wyoming Stock Growers Association, Wyoming Farm Bureau Federation, and Utah Farm Bureau Federation.

Katherine A. Meyer, Harvard Animal Law & Policy Clinic, Cambridge, Massachusetts; for Amici Curiae Law Professors Daniel J. Rohlf, Pat A. Parenteau, Oliver Houck, and Robert Percival.

Before: Danny J. Boggs,^* Andrew D. Hurwitz, and Jennifer Sung, Circuit Judges.

Opinion by Judge Hurwitz ;

Dissent by Judge Sung

HURWITZ, Circuit Judge:

The Endangered Species Act of 1973 ("ESA") requires the Secretary of the Interior to adopt a "recovery plan" for any endangered or threatened species. 16 U.S.C. § 1533(f). This case concerns the Grizzly Bear Recovery Plan ("Plan"). The Center for Biological Diversity petitioned to amend the Plan; after the petition was denied, the Center sought judicial review under the ESA and the Administrative Procedure Act ("APA"). As relevant to this appeal, the district court granted summary judgment against the Center because it found that the Plan was not a "rule" subject to a petition for amendment under 5 U.S.C. § 553(e). We affirm, albeit on different reasoning, concluding that APA review is not available because, even assuming the Plan is a "rule," the denial of the Center's petition was not "final agency action." 5 U.S.C. § 704.

I.

The ESA requires the Secretary to "determine whether any species is an endangered species or a threatened species." 16 U.S.C. § 1533(a)(1). For each such species, the Secretary must "designate any habitat ... which is then considered to be critical habitat." Id. § 1533(a)(3)(A)(i). The ESA provides criteria for making endangered-status determinations and critical-habitat designations; a process by which interested parties may petition for listing, delisting, or revisions to species and habitat lists; and notice-and-comment requirements for any regulation proposed to implement a determination, designation, or revision. Id. § 1533(b). The Secretary must keep a list of endangered and threatened species and review those status designations at least once every five years. Id. § 1533(c). The Secretary must also issue regulations necessary to conserve such species, which may include prohibitions on certain activities such as transporting or selling endangered animals. Id. § 1533(d) ; see also id. § 1538(a)(1).

The ESA also requires the Secretary to develop and implement "recovery plans" "for the conservation and survival of endangered species and threatened species." Id. § 1533(f)(1). Recovery plans must include "a description of such site-specific management actions as may be necessary to achieve the plan's goal"; "objective, measurable criteria" that will lead to the species' delisting; and "estimates of the time required and the cost" for measures and intermediate steps to achieve the plan's goal. Id. § 1533(f)(1)(B). The Secretary must "provide public notice and an opportunity for public review and comment" before approving a new or revised recovery plan, id. § 1533(f)(4), and "consider all information presented during the public comment period," id. § 1533(f)(5). However, the ESA does not require the Secretary to update recovery plans.

In 1975, the Fish and Wildlife Service¹ identified the grizzly bear of the 48 conterminous states, the Ursus arctos horribilis , as a threatened species. 40 Fed. Reg. 31734–36 (July 28, 1975). The Service approved the original Grizzly Bear Recovery Plan in 1982 and revised it in 1993. The Plan aims to "identify actions necessary for the conservation and recovery of the grizzly bear" which "ultimately will result in the removal of the species from ‘threatened’ status."

The Plan identifies recovery zones, or "areas needed for recovery of the species," and sets forth subgoals for each zone. It also addresses "other possible recovery areas throughout the historical range of the grizzly bear," and has subgoals for evaluating the feasibility of grizzly-bear recovery in those areas. Since 1993, the Service has issued several Plan "Supplements" that provide habitat-based recovery criteria for identified recovery zones. The Supplements detail priority recovery actions, which include the development of strategies, programs, data collection, and species monitoring efforts, but also suggest steps such as creating coordinated efforts with law enforcement, providing guidance to hunters, and refining procedures for managing nuisance bears.

Although the Plan and Supplements contain criteria that the Service believes will ultimately result in the grizzly bear's removal from the list of threatened species, satisfaction of those criteria does not compel delisting. Instead, if the Secretary ever concludes, based on "the best scientific and commercial data available," 16 U.S.C. § 1533(b)(1)(A), that the species is no longer threatened because of any of the statutory factors, id. § 1533(a)(1), the agency must provide notice of a proposed delisting regulation and the opportunity to comment, id. § 1533(b)(5), and publish a final regulation to delist, id. § 1533(b)(6). The Service has sought to remove grizzly bears from the list of threatened species in the past, but the designation of populations of Ursus arctos horribilis as a threatened species remains in effect. See Crow Indian Tribe v. United States , 965 F.3d 662, 672 (9th Cir. 2020) (summarizing delisting efforts concerning the Yellowstone grizzly).

II.

In June 2014, the Center for Biological Diversity filed a petition with the Service, asking it to

meet its mandatory duty to develop a recovery plan for the grizzly bear, 16 U.S.C. § 1533(f) [,] by revising and updating its 1993 recovery plan for the grizzly bear (Ursus arctos horribilis ) for the populations that were identified at the time the species was listed, and by identifying all additional geographic areas where recovery strategies are needed, to ensure full recovery of the species across its native range in the United States.

The Center contended that the agency had "failed to develop recovery strategies for ecosystems that still contain substantial and sufficient suitable habitat," leaving grizzly bears "endangered across significant portions of their range as a biological fact." The petition proposed recovery areas in Arizona, New Mexico, California, and Utah that it contended could support grizzly-bear populations and urged the Service to "further evaluate the recovery potential of all of these areas" in a revised recovery plan.

The Service denied the petition, stating that neither the ESA nor the APA authorizes petitions to create or revise recovery plans. Although acknowledging that the APA permits the filing of a petition for issuance, amendment, or repeal of a "rule," 5 U.S.C. § 553(e), the Service stated that a recovery plan is not a "rule" under the APA. The Service added that it had satisfied its "statutory responsibilities for recovery planning and implementation for the grizzly bear" pursuant to 16 U.S.C. § 1533(f)(1), explaining that it had prioritized grizzly-bear recovery in locations with historical populations as of 1975 and where habitat and environmental conditions would support species recovery. The Service did not close the door on future revision of the Plan, noting that "any additional recovery planning is subject to Service prioritization and is discretionary."

The Center then filed this action seeking judicial review under the APA and the ESA, claiming that the Service failed to develop and implement a recovery plan that provided for the conservation and survival of the grizzly bear; violated its affirmative duty to conserve the grizzly bear by not pursuing additional recovery areas; and unreasonably denied the Center's petition to update the Plan.² The district court granted summary judgment to the Service and to state and private intervenors. The court agreed with the Service that because the Plan was not a "rule" under the APA, the Plan was not subject to a petition for amendment under 5 U.S.C. § 553(e). It also found that it lacked jurisdiction to review the denial of the petition under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(C), because the Center did not allege that the Service failed to perform any...