Friends of Animals v. Haaland

997 F.3d 1010

FRIENDS OF ANIMALS, Plaintiff-Appellant,

v.Deb HAALAND, in her official capacity as Secretary of the U.S. Department of Interior; Martha Williams, in her official capacity as Principal Deputy Director of the U.S. Fish and Wildlife Service; United States Fish and Wildlife Service, Defendants-Appellees.

No. 20-35318

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 1, 2021 Portland, Oregon

Filed May 17, 2021

Michael Ray Harris (argued) and Jennifer Best, Friends of Animals Wildlife Law Program, Centennial, Colorado, for Plaintiff-Appellant.

Robert J. Lundman (argued) and Mark R. Haag, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Linus Y. Chen, Attorney, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Defendants-Appellees.

Before: Richard A. Paez and Paul J. Watford, Circuit Judges, and John R. Tunheim,^* District Judge.

TUNHEIM, District Judge:

Plaintiff-Appellant, Friends of Animals ("Friends"), brought this action challenging a Fish and Wildlife Service ("FWS") rule, 50 C.F.R. § 424.14(b), which requires that affected states receive 30-day notice of an intent to file a petition to list an endangered species. Friends asserts claims under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 – 1544, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 706. Friends alleges that the FWS used the "pre-file notice rule" to improperly reject Friends's petition to list the Pryor Mountain wild horse as a threatened or endangered distinct population segment, and argues that the rule revision violates the ESA's requirements for review of petitions and is inconsistent with the APA.

The district court granted summary judgment for Defendants. Friends appeals. We have jurisdiction under 28 U.S.C. § 1291. Because we conclude that the pre-file notice rule is inconsistent with the statutory scheme of the ESA, we reverse the district court's grant of summary judgment for Defendants and remand to the district court to enter summary judgment in favor of Friends.

I. BACKGROUND

A. The Endangered Species Act

The purpose of the ESA is to provide a program for the conservation of endangered and threatened species and to preserve the ecosystems on which these species depend. 16 U.S.C. § 1531(b). The term ‘species’ includes "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16). The ESA establishes two methods for identifying and listing species as threatened or endangered: the Secretary of the United States Department of the Interior ("Secretary") and delegated agencies, the National Marine Fisheries Services and the FWS (collectively, "the Services") may independently identify species for protection; or, interested persons may petition the Secretary and the Services to list a species as threatened or endangered. 16 U.S.C. §§ 1532(15), 1533(b) ; 5 U.S.C. § 553(e) ; 50 C.F.R. §§ 402.01(b), 424.14(a).

Section 4 of the ESA establishes the process for listing, delisting, or modifying the status of a species or habitat by petition:

To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 553(e) of [T]itle 5, to add a species to, or to remove a species from, either of the lists published under subsection (c), the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If such a petition is found to present such information, the Secretary shall promptly commence a review of the status of the species concerned. The Secretary shall promptly publish each finding made under this subparagraph in the Federal Register.

16 U.S.C. § 1533(b)(3)(A). If the 90-day finding demonstrates that the petition warrants action, the Services move to the second phase and undertake a 12-month review to determine whether listing the species is either (i) not warranted; (ii) warranted; or (iii) warranted but precluded by other pending proposals. Id. § 1533(b)(3)(B). The Services continue to review and monitor species in the third category until it is determined whether protection is "warranted" or "not warranted." Id. § 1533(b)(3)(C)(i), (iii).

The ESA also authorizes the Secretary to "establish, and publish in the Federal Register, agency guidelines to insure that the purposes of [the ESA] are achieved efficiently and effectively." Id. § 1533(h). These guidelines include procedures for recording the receipt and disposition of citizen petitions, criteria for making required findings, a ranking system to prioritize review of species; and, a system of developing, implementing, and prioritizing recovery plans. Id.

B. The "Pre-File Notice" Rule

In May of 2015, the Services published a proposed rule revision related to the petition process. 80 Fed. Reg. 29,286 (May 21, 2015). The proposed modification would have required a petitioner to provide a copy of the petition to the state agencies responsible for the management and conservation of fish, plant, or wildlife resources in each state where the species occurs at least 30 days prior to submitting the petition to the Services, and would have required the petitioner to append any data or written comments from the state to their petition. Id. at 29,288.

The Services promulgated the final rule revision in September 2016. 81 Fed. Reg. 66,462 (Sept. 27, 2016) (codified at 50 C.F.R. § 424.14 ). In response to comments expressing concern about the burdens on petitioners and state agencies, the final rule jettisoned the requirement that petitioners coordinate with states, requiring instead that a petitioner "provide notice to the State agency responsible for the management and conservation of fish, plant, or wildlife resources in each State where the species that is the subject of the petition occurs" at least 30 days prior to submitting the petition. 50 C.F.R. § 424.14(b) ; 81 Fed. Reg. at 66,464, 66,484.

The final rule revision was intended to "improve the quality of petitions through clarified content requirements and guidelines, and, in so doing, better focus the Services’ resources on petitions that merit further analysis." 81 Fed. Reg. at 66,462. The Services explained that the rule revision would give affected states "the opportunity to submit data and information to the Services in the 30-day period before a petition is filed" that the Services could then rely on in their 90-day review. Id. at 66,465. The Services acknowledged that the use of state-supplied information in making the 90-day determination was a change from prior practice, but found that this change would "expand the ability of the States and any interested parties to take the initiative of submitting input and information for the Services to consider in making 90-day findings, thereby making the petition process both more efficient and more thorough." Id.

C. Friends's Petition

In 2017, Friends filed a petition requesting that the FWS list the Pryor Mountain wild horse population as a threatened or endangered distinct population segment under the ESA. The Pryor Mountain wild horse population resides in Montana and Wyoming and represents a unique Old-World Spanish genetic lineage. Friends contends that the Pryor Mountain wild horse population is critically small and its continued survival is threatened by curtailment of the horses’ habitat range, inadequacy of existing regulatory mechanisms, and political pressure to remove or dispose of free-roaming wild horses.

On July 20, 2017, the FWS notified Friends that the submission did not qualify as a petition because it did not include copies of required notification letters or electronic communications to state agencies in affected states. The FWS did not identify any other deficiencies with Friends's petition.

D. Procedural History

Friends filed an action in federal court in the District of Montana against the Secretary and the Director of the FWS, in their official capacities, and the FWS. Friends requested a declaration that Defendants violated the ESA and APA by impermissibly requiring that the 30-day notice be made to affected states and refusing to issue a finding on Friends's petition within 90 days, as well as vacatur of 50 C.F.R. § 424.14(b) ’s 30-day notice requirement and issuance of a finding on the Pryor Mountain wild horse petition within 60 days.

Friends moved for summary judgment, arguing that the notice provision is inconsistent with the ESA's legal standards for review of petitions; that the rule alters statutory deadlines and unlawfully restricts petitioners’ discretion to control the timing of filing petitions; and that the rule is inconsistent with the APA. Defendants filed a cross-motion for summary judgment asserting that Friends had failed to establish that their petition was improperly denied or that the notice provision is contrary to law.

The magistrate judge found that the notice provision contravened the ESA's purpose to require agency findings after 90-day review, was inconsistent with the ESA and was therefore arbitrary and capricious, and recommended granting summary judgment to Friends. The district court, however, concluded that the pre-file notice requirement is a permissible construction of the ESA, which was designed to improve the efficiency and effectiveness of the petition process, and therefore granted summary judgment to Defendants.

II. DISCUSSION

A. Standard of Review

We review the district court's grant of summary judgment de novo . Ctr. for Biological Diversity v. Zinke , 868 F.3d 1054, 1057 (9th Cir. 2017). The Court reviews agency decisions under the ESA pursuant to Section 706 of the APA. Turtle Island Restoration Network v. U.S....