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Wildwest Institute v. Kurth

United States Court of Appeals, Ninth Circuit

April 28, 2017

Wildwest Institute; Alliance for the Wild Rockies, Plaintiffs-Appellants,
v.
Jim Kurth, in his official capacity as Acting Director of the U.S. Fish and Wildlife Service, an agency of the U.S. Department of Interior; Ryan Zinke, in his official capacity as Secretary of the Department of Interior, Defendants-Appellees, State of Wyoming, Intervenor-Defendant-Appellee.

          Argued and Submitted October 4, 2016 Seattle, Washington

         Appeal from the United States District Court No. 9:13-cv-00006-DLC for the District of Montana DanaL. Christensen, Chief Judge, Presiding

          Rebecca Kay Smith (argued), Public Interest Defense Center, Missoula, Montana; Timothy M. Bechtold, Bechtold Law Firm, Missoula, Montana; for Plaintiffs-Appellants.

          Robert Parke Stockman (argued), H. Hubert Yang, David C. Shilton, and Andrew C. Mergen, Attorneys; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Kristin Tita, Office of the Solicitor, Rocky Mountain Region, United States Department of the Interior, Denver, Colorado; for Defendants-Appellees.

          Michael J. McGrady (argued), Wyoming Office of the Attorney General, Cheyenne, Wyoming, for Intervenor-Defendant-Appellee.

          Before: William A. Fletcher, Ronald M. Gould, and N. Randy Smith, Circuit Judges.

         SUMMARY[*]

         Endangered Species Act

         The panel affirmed the district court's summary judgment in favor of the Director of the U.S. Fish and Wildlife Service and the Secretary of the Department of the Interior ("FWS") and the State of Wyoming in a suit brought by environmental groups under the Endangered Species Act, challenging FWS's finding that listing the whitebark pine as a threatened or endangered species is "warranted but precluded."

         The Secretary's "warranted but precluded" finding recognizes that a species qualifies for protection under the Endangered Species Act, but does not actually give any protection to the species.

         The panel held that because the case was capable of repetition, yet evading review, the case was not moot.

         The panel held that the FWS's finding that listing the whitebark pine was "warranted but precluded" satisfied the Endangered Species Act, and that the decision was not arbitrary, capricious, an abuse of discretion, or otherwise in violation of the law. The panel held that the FWS was not bound to list species based solely on the degree of threat they face as demonstrated by the assigned Listing Priority Number, and that instead it could properly consider factors outside of those listed in the guidelines. The panel further held that FWS's decision contained a sufficient "description and evaluation of the reasons and data on which the finding is based" to satisfy the Endangered Species Act. 16 U.S.C. § 1533(b)(3)(B)(iii).

         The panel held that the FWS may properly consider its budget, and court orders or statutory deadlines relating to pending proposals for other species, when concluding that the listing of a given species was "warranted but precluded."

          OPINION

          GOULD, Circuit Judge.

         Wildwest Institute and the Alliance for the Wild Rockies (collectively, Wildwest) appeal a district court's summary judgment ruling in favor of the Director of the United States Fish and Wildlife Service and the Secretary of the Department of the Interior (collectively, FWS), and the State of Wyoming, in this suit under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544. Wildwest challenges FWS's finding that listing the whitebark pine as a threatened or endangered species is "warranted but precluded." Wildwest asserts that FWS's decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law because FWS, (1) did not strictly follow its listing priority guidelines, (2) considered factors outside of the guidelines, and (3) found that listing the whitebark pine was precluded by species that did not face a higher degree of threat than the whitebark pine, while it did not give an individualized explanation for each such precluding species. We reject the appeal, concluding that FWS is not bound to list species based solely on the degree of threat they face as demonstrated by the assigned Listing Priority Number (LPN), that instead it could properly consider factors outside of those listed in the guidelines, and further that FWS's decision contained a sufficient "description and evaluation of the reasons and data on which the finding is based" to satisfy the ESA. 16 U.S.C. § 1533(b)(3)(B)(iii). We affirm.

         I

         The whitebark pine, Pinus albicaulis, is a slow-growing, long-lived, five-needled conifer species found in western North America.[1] This species grows in poor soils and on steep slopes and windy exposures at the alpine tree line and at subalpine elevations. Although there are scattered occurrences of the whitebark pine in areas of the Great Basin, it typically occurs on windy and cold high-elevation or high-latitude sites in western North America. No other stone pine species[2] is found in North America.

         In western North America, the whitebark pine is considered a keystone, or foundation species. This is so because it "increases biodiversity and contributes to critical ecosystem functions." It acts as an important source of food for several species of birds and mammals, and, as the first conifer that may become established after a disturbance, it stabilizes soils and regulates runoff. At higher elevations, snow drifts around the trees, "thereby increasing soil moisture, modifying soil temperatures, and holding soil moisture later into the season." The trees also reduce lower elevation spring flooding by shading and protecting higher elevation snow, thereby slowing the progression of snow melt.

         The whitebark pine grows slowly, and the generation time[3] is about 60 years. "[S]eedlings have highly variable survival rates" ranging from 56% survival over the first year, to 25% survival by the fourth year. The whitebark pine is facing "substantial and pervasive decline throughout almost [its] entire range." It faces threats from white pine blister rust, an exotic disease, and predation from the mountain pine beetle. It has also been negatively impacted by fire suppression efforts, and habitat loss due to climate change, which may also result in additional epidemics of the mountain pine beetle.

         In 2008, The Natural Resources Defense Counsel (NRDC) petitioned FWS to list the whitebark pine as an endangered species under the ESA. FWS determined that emergency listing was not warranted. After waiting more than a year, NRDC sent to FWS its required 60-day notice[4] of intent to sue under the ESA for failing to make the required 90-day finding[5] on the 2008 petition. NRDC filed its complaint in February 2010. On July 20, 2010, FWS published its 90-day finding, in which it found that the petition to list the whitebark pine presented substantial scientific or commercial information indicating that listing the whitebark pine may be warranted. See Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List Pinus albicaulis (Whitebark Pine) as Endangered or Threatened with Critical Habitat, 75 Fed. Reg. 42, 033 (July 20, 2010).

         FWS issued its 12-month finding[6] on July 19, 2011, finding that listing the whitebark pine rangewide as a threatened or endangered species is warranted, but precluded. See Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List Pinus albicaulis as Endangered or Threatened with Critical Habitat, 76 Fed. Reg. 42, 631, 42, 647 (July 19, 2011) (hereinafter 2011 Finding). FWS concluded that a primary threat facing the whitebark pine is the white pine blister rust, but that it is also significantly threatened by mountain pine beetle predation, habitat loss from fire suppression and climate change, and the exacerbating effects climate change has on the other threats. Id. FWS also found that existing regulations would not adequately protect the species. Id. FWS determined that the whitebark pine "is in danger of extinction, or likely to become so in the foreseeable future, throughout all or a significant portion of its range, " and that listing the whitebark pine as threatened or endangered is warranted. Id. Those findings present a natural prelude to effective protective actions. After all, once a species is extinct and gone, it is gone forever, with resulting loss to biodiversity and the benefits that it gives to mankind. However, FWS concluded that an immediate proposal to list the whitebark pine as threatened or endangered was "precluded by court-ordered and court-approved settlement agreements, and listing actions with absolute statutory deadlines, and work on proposed listing determinations for those candidate species with a higher listing priority." Id. at 42, 649. It also concluded that "progress is being made to add or remove qualified species from the Lists of Endangered and Threatened Wildlife and Plants." Id. at 42, 647.[7] FWS assigned the whitebark pine a LPN of 2 (on a scale from 1 to 12, 1 being the highest priority and 12 being the lowest), finding that it faced high magnitude threats, that the threats are imminent, and that it is a valid taxon[8] at the species level. Id. at 42, 648; see also Endangered and Threatened Listing and Recovery Priority Guidelines, 48 Fed. Reg. 43, 098, 43, 103 (Sept. 21, 1983) (hereinafter Guidelines). FWS added the whitebark pine to the list of candidate species. 2011 Finding, 76 Fed. Reg. at 42, 654. "A candidate species is one for which [FWS has] on file sufficient information on biological vulnerability and threats to support a proposal for listing as endangered or threatened, but for which preparation and publication of a proposal is precluded by higher priority listing actions." Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions, 80 Fed. Reg. 80, 584, 80, 584 (Dec. 24, 2015) (hereinafter 2015 CNOR).[9]

         On January 15, 2013, Wildwest filed a complaint for injunctive and declaratory relief against FWS, seeking review of the "warranted but precluded" finding. Wildwest, FWS, and Defendant-Intervenor State of Wyoming filed cross-motions for summary judgment. The district court granted FWS's and Wyoming's motions for summary judgment, holding that the 2011 Finding gave sufficient detail, and was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Wildwest timely appealed.

         II

         We review a district court's grant of summary judgment de novo. Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 837 (9th Cir. 2001) (hereinafter Gila Chub).

         A determination that a petitioned action is "warranted but precluded" under the ESA is subject to judicial review. 16 U.S.C. § 1533(b)(3)(C)(ii). The Administrative Procedure Act (APA) governs our review of agency actions under the ESA. Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1109 (9th Cir. 2012). "[A]n agency action is valid unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. (internal quotation marks omitted). The scope of our review is narrow-we may not "substitute [our] judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

         III

         As a preliminary matter, we must decide whether intervening events have rendered Wildwest's claims for declaratory and injunctive relief moot. While this appeal was pending, FWS issued its 2015 Candidate Notice of Review (CNOR), and assigned the whitebark pine a new, lower-priority, an LPN of 8. See 2015 CNOR, 80 Fed. Reg. at 80, 586. FWS moved to dismiss the appeal as moot, arguing that, "[b]ecause Wildwest's claims are based on a higher- priority LPN that had been assigned to the species in 2011, those claims are now purely academic, and this Court cannot grant relief on them. The new finding and LPN have mooted Wildwest's challenge to the original 2011 decision."[10]Wildwest opposed the motion.

         A claim of mootness must be met and analyzed at the threshold.[11] "A claim is moot if it has lost its character as a present, live controversy. If an event occurs that prevents the court from granting effective relief, the claim is moot and must be dismissed." Conservation Cong. v. Finley, 774 F.3d 611, 618 (9th Cir. 2014) (internal quotations and citations omitted). "The party asserting mootness bears a 'heavy' burden; a case is not moot if any effective relief may be granted." Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (emphasis in original) (quoting Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006)).

         There are exceptions to the mootness doctrine. Relevant here, a case is not moot if it is "capable of repetition, yet evading review." Id. at 1018. This "exception applies when (1) the duration of the challenged action is too short to allow full litigation before it ceases or expires, and (2) there is a reasonable expectation that the plaintiffs will be subjected to the challenged action again." Id. Because this case meets both of the criteria for this exception, it is not moot.

         First, if FWS finds that a petitioned action for a species is "warranted but precluded, " FWS must annually make a new 12-month finding regarding that species' status. See 16 U.S.C. § 1533(b)(3)(C)(i); 50 C.F.R. § 424.14(h)(3). FWS fulfills this obligation through an annual CNOR. See 2015 CNOR, 80 Fed. Reg. at 80, 587. A new CNOR-and potentially a new LPN-is issued every year so long as a petitioned action is found "warranted but precluded." Id. To the extent it differs from prior CNORs or 12-month findings, the newest CNOR supersedes all previous findings. See id. at 80, 585. Thus, an action based on a "warranted but precluded" 12-month finding lasts ...


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