In re Am. Stewards Liberty

960 F.3d 223

AMERICAN STEWARDS OF LIBERTY ; Charles Shell ; Cheryl Shell ; Walter Sidney Shell Management Trust; Kathryn Heidemann; Robert V. Harrison, Plaintiffs

John Yearwood; Williamson County, Texas, Intervenor Plaintiffs - Appellants - Cross Appellees

v.DEPARTMENT OF INTERIOR; United States Fish and Wildlife Service; David Bernhardt, Secretary, U.S. Department of the Interior, in his official capacity; Margaret E. Everson, in her official capacity as Director of the U.S. Fish and Wildlife Service; Amy Lueders, in her official capacity as the Southwest Regional Director of the U.S. Fish and Wildlife Service, Defendants - Appellees - Cross Appellants

Center for Biological Diversity; Travis Audubon; Defenders of Wildlife, Intervenor Defendants - Appellees

No. 19-50321

United States Court of Appeals, Fifth Circuit.

FILED May 29, 2020

Robert E. Henneke, Theodore Hadzi-Antich, Texas Public Policy Foundation, Chance Weldon, Austin, TX, for Intervenor Plaintiff - Appellant Cross-Appellee.

Varu Chilakamarri, U.S. Department of Justice, Environment & Natural Resources Division-Appellate Section, Washington, DC, for Intervenors Defendants - Appellees Cross-Appellants.

Ryan Adair Shannon, Esq., Attorney, Center for Biological Diversity, Portland, OR, for Intervenors Defendants - Appellees Center for Biological Diversity and Travis Audubon.

Jason Craig Rylander, Esq., Defenders of Wildlife, Washington, DC, for Defenders of Wildlife

Trevor Caldwell Burrus, Ilya Shapiro, Esq., Cato Institute, Washington, DC, for Amici Curiae Cato Institute, Southeastern Legal Foundation, and Mountain States Legal Foundation.

Jonathan Matthew Riches, Goldwater Institute, Phoenix, AZ, for Amicus Curiae Goldwater Institute.

Kyle Douglas Hawkins, Natalie Deyo Thompson, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Amicus Curiae State of Texas.

Jason Everett Boatright, Attorney, Cantey Hanger, L.L.P., Dallas, TX, for Amicus Curiae Terry M. Wilson.

Paul J. Beard, II, Attorney, FisherBroyles, L.L.P., Los Angeles, CA, for Amici Curiae American Farm Bureau Federation, Chamber of Commerce of the United States, National Association of Home Builders of the United States, National Federation of Independent Business Small Business Legal Center, Texas Farm Bureau.

Brian Wolfman, Georgetown Law Appellate Courts Immersion Clinic, Washington, DC, for Amicus Curiae Environmental Law Professors.

Before STEWART, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:

The Bone Cave harvestman is a small arachnid known to live only in central Texas that is currently included on the federal endangered species list. In 2014, a non-profit group and several individuals, including John Yearwood, filed a petition with the U.S. Fish and Wildlife Service ("FWS") calling for the Bone Cave harvestman to be delisted because it does not currently meet the standards for an endangered species. After reviewing the petition, FWS issued a negative "90-day finding," which is a summary denial based on the agency’s conclusion that the petition did not present sufficient scientific or commercial evidence indicating that delisting was warranted.

Some of the petitioners (collectively, "the Original Plaintiffs")—but not Yearwood— filed an action in federal district court under the Administrative Procedures Act ("APA"), challenging FWS’s negative 90-day finding as arbitrary and capricious. While the case was pending, the district court allowed Yearwood and Williamson County (collectively, "the Intervening Plaintiffs") to intervene to separately argue that federal regulation of the purely intrastate species is unconstitutional because it exceeds Congress’s power under the Commerce and Necessary and Proper Clauses.

The district court ultimately rejected the Intervening-Plaintiffs’ constitutional arguments but granted summary judgment to the Original Plaintiffs, concluding that FWS had erred by demanding a higher quantum of evidence than was statutorily required for a 90-day finding. The court vacated and remanded FWS’s negative 90-day finding, and FWS has since issued a positive 90-day finding and begun a more substantial 12-month review to determine whether the Bone Cave harvestman should be delisted. The Intervening Plaintiffs now appeal the denial of their motion for summary judgment, arguing that this court retains jurisdiction to hear their separate constitutional arguments for delisting the Bone Cave harvestman. Because we find that their appeal is alternatively moot or barred by sovereign immunity, we dismiss the appeal for lack of jurisdiction.

I.

A.

Texella reyesi , or the Bone Cave harvestman, is a tiny, pale orange, eyeless arachnid¹ known to live only in caves within a 150-square-mile stretch of Travis and Williamson Counties in Texas. FWS first added the arachnid to the endangered species list in 1988 as the Bee Creek Cave harvestman, see 53 Fed. Reg. 36,029 (Sept. 16, 1988), then listed the Bone Cave harvestman separately in 1993 after further studies revealed that the population was composed of two distinct species, 58 Fed. Reg. 43,818 (Aug. 18, 1993). The inclusion of the Bone Cave harvestman on the endangered species list makes it a federal crime to "take" the species or disturb its habitat. See 16 U.S.C. § 1538(a)(1)(B) ; 50 C.F.R. § 17.21(c). A "take" is defined as "harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting" members of the species "or attempting to engage in any such conduct." 16 U.S.C. § 1532(19).

In June 2014, the non-profit advocacy group American Stewards of Liberty, Yearwood, and several other individuals that owned land inhabited by Bone Cave harvestmen collectively filed with FWS a "Petition to delist the Bone Cave harvestman (Texella reyesi ) in accordance with Section 4 of the Endangered Species Act of 1973." The petition argued that the Bone Cave harvestman should no longer be considered endangered because scientists had discovered 166 new localities containing the species since the time of the original listing; many of the localities were protected by other federal, state, and local regulations; and development and other human activity in the vicinity of the localities had been shown to be less harmful to Bone Cave harvestman populations than was previously thought.

A year later, FWS issued a 90-day finding on the petition, which is a preliminary ruling required under 16 U.S.C. § 1533(b)(3)(A) regarding whether further consideration of a petition is warranted. 80 Fed. Reg. 30,990 (June 1, 2015). FWS determined that, although population data on the species was likely impossible to obtain due to much of the population’s residing in caves that are inaccessible to humans, the petition was deficient because it did not include population "trend analysis to indicate that this species can withstand the threats associated with development or climate change over the long term." Id. Accordingly, FWS concluded that no further review was necessary and denied the petition. Id.

B.

In December 2015, the Original Plaintiffs filed an action challenging FWS’s negative 90-day finding in the U.S. District Court for the Western District of Texas under Section 702 of the APA, 5 U.S.C. § 702. The complaint argued that FWS had applied an inappropriately heightened standard at the 90-day review stage, demanding more than the regulatorily required "amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted." 50 C.F.R. § 424.14(b)(1). Shortly thereafter, the Intervening Plaintiffs filed a motion to intervene, seeking a declaration that federal regulation of the Bone Cave harvestman is unconstitutional and a permanent injunction preventing FWS from enforcing the prohibition on Bone Cave harvestman takes in addition to vacatur of the 90-day finding. The district court granted the Intervening Plaintiffs permissive intervention under FEDERAL RULE OF CIVIL PROCEDURE 24(b)(1)(B), stating without elaboration that their claims shared common questions of fact with those of the Original Plaintiffs.

The parties filed cross motions for summary judgment, and, on March 28, 2019,² the district court entered an order granting summary judgment to the Original Plaintiffs and disposing of all parties’ claims. Am. Stewards of Liberty v. Dep’t of the Interior , 370 F. Supp. 3d 711 (W.D. Tex. 2019). The court first determined that, by requiring population data that was admittedly unavailable, FWS had not made its decision based on the best available data as was statutorily required. Id. at 727-28. The court found that the delisting petition had presented sufficient data that a reasonable person would conclude that delisting may be warranted and it thus met the standard for a positive 90-day finding and a more substantial 12-month review. Id. The district court therefore vacated FWS’s negative 90-day finding and remanded the case for further consideration. Id. at 728-29. FWS accepted the remand and has since issued a positive 90-day finding, see 84 Fed. Reg. 54,542 (Oct. 10, 2019), and this aspect of the district court’s ruling is not at issue in this appeal.

Turning to the Intervening Plaintiffs’ motion for summary judgment, the district court observed that the general six-year statute of limitations for civil actions against the United States applies to claims brought under the APA. Am. Stewards of Liberty , 370 F. Supp. 3d at 731 (citing 28 U.S.C. § 2401(a) ). The court reasoned that, under this court’s decision in Dunn-McCampbell Royalty Interest, Inc. v. National Park Service , 112 F.3d 1283, 1286 (5th Cir. 1997), the law distinguishes between facial challenges to agency regulations and challenges to a subsequent agency action applying the regulation for purposes of determining when an APA claim accrues. Am. Stewards of Liberty , 370 F. Supp. 3d at 731. A naked facial claim alleging that the regulation exceeds the agency’s statutory or constitutional authority accrues...