Forest Guardians v. United States Fish & Wildlife Service

FILED
United States Court of Appeals
Tenth Circuit

July 7, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FOREST GUARDIANS,

Plaintiff-Appellant,

v.

UNITED STATES FISH AND
WILDLIFE SERVICE,

Defendant-Appellee,

and
No. 08-2226
THE PEREGRINE FUND,

Defendant-Intervenor-
Appellee.

____________

ENVIRONMENTAL DEFENSE
FUND, NEW MEXICO CATTLE
GROWERS’ ASSOCIATION,

Amicus Curiae.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:06-CV-00231-WJ-KBM)
James J. Tutchton (Melissa Hailey with him on the briefs), Forest Guardians,
Denver, Colorado, for Plaintiff-Appellant.

Anna T. Katselas, Attorney, U.S. Department of Justice, Environment & Natural
Resources Division, Washington, D.C. (John C. Cruden, Acting Assistant Attorney
General; M. Alice Thurston, Joseph H. Kim, and Brian McLachlan, Attorneys, U.S.
Department of Justice, Environment & Natural Resources Division, Washington,
D.C.; Justin S. Tade, Attorney-Advisor, U.S. Department of the Interior, Southwest
Regional Solicitor’s Office, with her on the brief), for Defendant-Appellee.

Frank M. Bond (Faith Kalman Reyes with him on the brief), Simons & Slattery,
LLP, Sante Fe, New Mexico, for Defendant-Intervenor-Appellee.

Daniel Grossman, Environmental Defense Fund, Boulder, Colorado, as Amicus
Curiae in support of Appellees.

Karen Budd-Falen and Kathryn Brack Morrow, Budd-Falen Law Offices, LLC,
Cheyenne, Wyoming, for New Mexico Cattle Growers’ Association, as Amicus
Curiae in support of Appellees.

Before GORSUCH, McKAY, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Forest Guardians 1 appeals the denial of its petition for review of the U.S.

Fish and Wildlife Service’s (“FWS”) decision to reintroduce a nonessential

experimental population of endangered Northern Aplomado Falcons (“Falcons”)

into southern New Mexico. Forest Guardians contends that the FWS violated

1
Since the time of the events at issue in this appeal, the Appellant
Forest Guardians merged with another group and changed its name to WildEarth
Guardians. In keeping with the practice of the district court and the parties,
throughout this opinion we continue to refer to the Appellant as Forest Guardians
rather than WildEarth Guardians.

2
section 10(j) of the Endangered Species Act (“ESA”), 16 U.S.C. § 1539(j), when it

allegedly promulgated a final rule to release captive-bred Falcons within the

current range of the species and in an area that is not wholly separate

geographically from an existing Falcon population. Forest Guardians also argues

that the FWS violated the National Environmental Policy Act (“NEPA”), 42 U.S.C.

§§ 4321–4370f, when it decided to release captive-bred Falcons before completing

its environmental impact analysis. Because the FWS allegedly had predetermined

the outcome of its NEPA analysis, Forest Guardians claims that the FWS failed to

take the requisite “hard look” at the environmental impacts of its proposed action.

The district court rejected both arguments. We exercise jurisdiction under 28

U.S.C. § 1291 and AFFIRM the district court’s denial of the petition for review.

I. BACKGROUND

Forest Guardians contends that the Falcon, an endangered species, should be

permitted to repopulate the United States naturally, while enjoying full protection

of its yet-to-be-designated critical habitat under the ESA. On the other hand, the

FWS and The Peregrine Fund, which intervened in this action, advocate the release

of captive-bred Falcons into southern New Mexico, while decreasing the Falcon’s

protection under the ESA. Our task is not to decide which strategy is more

scientifically sound; rather, we must review the 10(j) rule under the Administrative

Procedure Act (“APA”) to determine if the rule was promulgated in accordance

with the ESA and NEPA.

3
A. Extirpation and Possible Restoration of the Falcon in the United States

The Falcon, “perhaps one of our most colorful birds of prey,” 2 Determination

of the Northern Aplomado Falcon To Be an Endangered Species, 51 Fed. Reg.

6686, 6686 (Feb. 25, 1986) (to be codified at 50 C.F.R. pt. 17), is a medium-sized

subspecies of the aplomado falcon historically located in the “savannas, coastal

prairies, and higher-elevation grasslands” stretching across the southwestern United

States through Mexico and into Guatemala and Nicaragua. Dean P. Keddy-Hector,

Aplomado Falcon, The Birds of North America, No. 549, at 1, 1 (2000); accord

Determination of the Northern Aplomado Falcon to Be an Endangered Species, 51

Fed. Reg. at 6686. The Falcon is the only subspecies of the aplomado falcon to be

recorded in the United States. Establishment of a Nonessential Experimental

Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.

Reg. 42,298, 42,298 (July 26, 2006) (to be codified at 50 C.F.R. pt. 17).

In 1986, the Secretary of the Interior (“Secretary”) listed the Falcon as

endangered 3 because it had been extirpated from its historic range in Arizona, New

Mexico, and Texas for approximately thirty years and was known to nest only in

Mexico. Determination of the Northern Aplomado Falcon To Be an Endangered

2
The Peregrine Fund also describes the Falcon as “a beautiful,
charismatic raptor.” The Peregrine Fund Br. at 1 (hereinafter “TPF Br.”).
3
With an exception not relevant here, the ESA states that “[t]he term
‘endangered species’ means any species which is in danger of extinction
throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6).

4
Species, 51 Fed. Reg. at 6686. As of 1986, the Falcon had not nested in the United

States or northern Mexico since the discovery of nests near Deming, New Mexico,

and in northern Chihuahua in 1952. Id. The Secretary determined that the main

factor leading to the Falcon’s disappearance was “habitat degradation due to brush

encroachment” and that “the most serious threat to th[e] falcon [wa]s the continued

use of DDT and other persistent pesticides within the ranges of the falcon and some

of its prey species.” Id. at 6686; see also id. at 6687, 6688. The Secretary

concluded that “the species is sensitive to habitat degradation and chemical

contamination, and needs the type of active management and protective measures

provided for in the [ESA].” Id. at 6688.

In listing the Falcon as endangered, the Secretary did not designate a critical

habitat. 4 Id. The Secretary found that such a designation “[w]as not prudent . . .

4
Critical habitat is defined as “the specific areas within the
geographical area occupied by the species, at the time it is listed . . . on which are
found those physical or biological features (I) essential to the conservation of the
species and (II) which may require special management considerations or
protection,” as well as “specific areas outside the geographical area occupied by
the species at the time it is listed . . . upon a determination by the Secretary that
such areas are essential for the conservation of the species.” 16 U.S.C. §
1532(5)(A). Designation of areas as critical habitat requires federal agencies to
ensure that their actions are not likely to result in the destruction or adverse
modification of the critical habitat; agencies must both prevent extinction of the
species and allow for its recovery so that the species may be removed from the
list of endangered species (“delisted”). Ctr. for Native Ecosys. v. Cables, 509
F.3d 1310, 1321–22 (10th Cir. 2007) (citing 16 U.S.C. §§ 1532(3), (5),
1536(a)(2)). Although “[c]ritical habitat shall be specified to the maximum
extent prudent and determinable at the time a species is proposed for listing,” 50
(continued...)

5
because there [wer]e no known active nesting areas within the past 25 years in the

United States.” Id. Although the Falcon continued to reside in portions of Mexico,

the Secretary noted that “[c]ritical habitat is not designated in areas outside U.S.

jurisdiction.” Id. (citing 50 C.F.R. § 424.12(h)).

In September 2002, Forest Guardians petitioned the FWS to designate critical

habitat for the Falcon, pursuant to 16 U.S.C. § 1533(b)(3)(D)(і), after a pair of

Falcons successfully nested in Luna County, New Mexico in 2001 and bred chicks

in 2002. Forest Guardians contended that the FWS should designate a critical

habitat for the Falcon in Arizona, New Mexico, and Texas because the Falcon was

no longer extirpated from the United States. In subsequent years, other wild

Falcons were increasingly sighted in that area. Nevertheless, the FWS did not

respond to the petition.

B. Proposed 10(j) Rule

In 2005, the FWS proposed a rule under section 10(j) of the ESA that would

reintroduce captive-bred Falcons into New Mexico and Arizona in an attempt to

4
(...continued)
C.F.R. § 424.12(a) (2008), designation of critical habitat is not appropriate if it
“would not be beneficial to the species,” id. § 424.12(a)(1)(ii). Moreover,
“[c]ritical habitat shall not be designated within foreign countries or in other
areas outside of United States jurisdiction.” Id. § 424.12(h). Critical habitat may
be established later, even if it is not previously designated. 16 U.S.C.§
1532(5)(B).

6
establish a viable resident population of Falcons. 5 Establishment of a Nonessential

Experimental Population of Northern Aplomado Falcons in New Mexico and

Arizona and Availability of Draft Environmental Assessment, 70 Fed. Reg. 6819,

6819 (Feb. 9, 2005) (to be codified at 50 C.F.R. pt. 17). Section 10(j) allows the

Secretary to authorize the release of an experimental population of an endangered

species “outside the current range of such species if the Secretary determines that

such release will further the conservation of such species.” 16 U.S.C. §

1539(j)(2)(A). Ordinarily, such a population “shall be treated as a threatened

species,” 6 rather than as an endangered species. Id. § 1539(j)(2)(C). If “an[]

5
Although we will discuss section 10(j) in greater detail, infra, we
introduce the concept of a 10(j) rule by noting that section 10(j) of the ESA
provides the Secretary with “flexibility and discretion in managing the
reintroduction of endangered species.” Wyo. Farm Bureau Fed’n v. Babbitt, 199
F.3d 1224, 1233 (10th Cir. 2000). “By regulation, the Secretary can identify
experimental populations, determine whether such populations are essential or
nonessential, and, consistent with that determination, provide control mechanisms
(i.e., controlled takings) where the [ESA] would not otherwise permit the exercise
of such control measures against listed species.” Id.
6
The ESA provides that “[t]he term ‘threatened species’ means any
species which is likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20).
Congress’s goal in enacting the ESA unquestionably was to safeguard both
endangered and threatened species. See id. § 1531(c)(1) (“It is further declared to
be the policy of Congress that all Federal departments and agencies shall seek to
conserve endangered species and threatened species and shall utilize their
authorities in furtherance of the purposes of this chapter.” (emphasis added)); Rio
Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1104 (10th Cir.
2010) (“Listing a species as endangered or threatened under 16 U.S.C. § 1533
triggers the ESA’s provisions.”); Gordon v. Norton, 322 F.3d 1213, 1215 (10th
Cir. 2003) (“The ESA is designed to protect and conserve endangered and
(continued...)

7
experimental population [is] determined . . . to be not essential to the continued

existence of a species,” the Secretary may not designate critical habitat for that

population. Id. § 1539(j)(2)(C)(ii) (emphasis added). The FWS intended the

proposed 10(j) rule to fulfill one of the goals identified in the Falcon’s Recovery

Plan, viz., to reestablish the Falcon in the United States.

The FWS proposed to release captive-bred Falcons and “to designate this

reintroduced population as a nonessential experimental population . . . according to

6
(...continued)
threatened species and the ecosystems upon which they may be conserved.”
(emphasis added)); see also N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife
Serv., 248 F.3d 1277, 1282 (10th Cir. 2001) (“The process set forth in the ESA
for the protection of endangered and threatened species and the conservation of
their ecosystem begins by granting the Secretary of the Interior, through the FWS,
authority to list species in need of protection as either endangered or threatened.”
(emphasis added)). However, the FWS has more regulatory leeway concerning
the crafting and implementation of protections for threatened species. In
particular, the ESA’s protections automatically extend by statutory mandate to
species designated as endangered, but they do not do so with regard to species
denominated as threatened; it is through administrative rulemaking that the latter
receive a measure of the ESA’s protections—including protection against
takings—and they do so only to the extent that the FWS considers the protections
to be necessary and appropriate for their conservation. See Sweet Home Chapter
of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1, 3 (D.C. Cir. 1993) (“On its face, 16
U.S.C. § 1538(a)(1) applies its prohibitions, including the prohibition against
takings, only to endangered species. However, the ESA allows the FWS to apply
these prohibitions to threatened species, as well.”); Andrew A. Smith, Margaret
A. Moote & Cecil R. Schwalbe, The Endangered Species Act at Twenty: An
Analytical Survey of Federal Endangered Species Protection, 33 Nat. Resources
J. 1027, 1038 (1993) (“Threatened species do not receive protection from taking
automatically, but the Secretary may make any portion or all of section 9 [of the
ESA] applicable as required for their conservation.”); see also 16 U.S.C.
§ 1533(d) (“Whenever any species is listed as a threatened species . . . the
Secretary shall issue such regulations as he deems necessary and advisable to
provide for the conservation of such species.”).

8
section 10(j) of the [ESA].” 7 Establishment of a Nonessential Experimental

Population of Northern Aplomado Falcons in New Mexico and Arizona and

Availability of Draft Environmental Assessment, 70 Fed. Reg. at 6819. In support

of this proposed 10(j) rule, the FWS stated that “the continued pesticide influence,

shrub encroachment into Chihuahuan grasslands, low densities of avian prey in

some areas, and the increased presence of the great horned owl . . . , which preys

upon the falcon, may be limiting recovery of the species.” Id. at 6821. The FWS

noted that there had been “no documented nesting attempts by wild birds in New

Mexico between 1952 and 2001 . . . [and] no verified sightings of falcons in

Arizona since 1940.” Id. The FWS acknowledged that “[s]poradic sightings of

falcons have occurred in New Mexico with sightings from every decade since the

1970s.” Id. However,

at least some of these sightings may be juvenile birds that are
dispersing from existing populations in the Mexican state of
Chihuahua. Any significant natural re-colonization of habitats
in Arizona and New Mexico would likely take decades, if it
occurred at all, because the reproductive rate of the population

7
The FWS concluded that the experimental population was
nonessential to the continued existence of the Falcon because: (1) there were
three existing populations of Falcons (in eastern Mexico, in northern Chihuahua,
Mexico, and in southern Texas), so “[t]he threat of extinction from a single
catastrophic event” was decreased and any “loss of the experimental population
w[ould] not appreciably reduce the likelihood of falcon survival in the United
States,” and (2) “[a]ny [Falcon]s lost during the reintroduction attempt c[ould] be
replaced through captive breeding.” Establishment of a Nonessential
Experimental Population of Northern Aplomado Falcons in New Mexico and
Arizona and Availability of Draft Environmental Assessment, 70 Fed. Reg. at
6823.

9
 in Mexico has declined . . . .

Id.

The FWS concluded that the presence of Falcons in the proposed

nonessential experimental population area was too minimal to constitute a

population. See id. at 6822. Based on annual Falcon surveys in New Mexico, the

first documented successful nesting attempt in fifty years occurred in Luna

County, New Mexico, in 2001. Id. That nesting pair fledged three chicks in

2002. Id. However, “[i]n 2003, only a single female [Falcon] was seen in the

area of [that] nest.” Id. “In 2004, a pair of falcons was seen on one monitoring

site visit and a single falcon was seen on several other occasions.” Id.

“Based on definitions of ‘population’ used in other experimental population

rules . . . , [the FWS] believe[d] that a determination that a falcon population

already exists in a designated area would require a minimum of two successfully-

reproducing falcon pairs over multiple years.” Id. The FWS concluded that

“[b]iologically, the term ‘population’ is not normally applied to a single pair, and

so the few birds in New Mexico could be considered emigrants disconnected from

the Chihuahuan population.” Id. Moreover, the FWS noted that “two, or even

three, birds are not considered a self-sustaining population. Self-sustaining

populations need a sufficient number of individuals to avoid inbreeding

depression and occurrences of chance local extinction; this can range from 50 to

500 breeding individuals . . . .” Id.

10
 Furthermore, not only did the FWS conclude that there was no current wild

Falcon population, but it also found that repopulation was unlikely because

“[n]atural, i.e., unaided, falcon recolonization of New Mexico and Arizona would

be dependent on dispersing falcons” from other areas, including Mexico. Id. at

6824. “The half-century absence of falcons in Arizona and New Mexico suggests

that the Chihuahua, Mexico, falcon population cannot recolonize New Mexico and

Arizona with sufficient numbers to establish a population.” Id. at 6825. In

addition, the FWS found that “[t]he low fledgling success in Chihuahua, and

stable or declining breeding numbers there . . . suggest that birds in this area are

not likely to provide enough dispersers to populate New Mexico.” Id. (citation

omitted).

The FWS determined that the reintroduction of captive-bred Falcons as a

nonessential experimental population would help to restore the Falcon. Id. at

6819. In particular, the FWS noted that The Peregrine Fund’s captive-bred

Falcons “were propagated with the intention of re-establishing a wild population

within the United States to achieve recovery goals.” Id. at 6821; see also id. at

6821–23 (outlining procedure for raising and releasing Falcons). The FWS also

observed that this type of reintroduction “ha[d] been successful for other species,

including the peregrine falcon . . . [and the] California condor.” Id. at 6821.

Moreover, the FWS successfully had reintroduced Falcons to two national

11
wildlife refuge areas in southern Texas under a safe harbor agreement 8 with The

Peregrine Fund. 9 Id. Based on this experience, the FWS “believe[d] that it is

possible to accelerate the establishment of a breeding population in the Southwest

through releases of captive-raised birds.” 10 Id. at 6822; see also id. at 6823 (“We

8
Safe harbor agreements are voluntary agreements between the FWS
and private landowners, whereby the landowners agree to contribute to the
recovery of a threatened or endangered species in exchange for assurances that
the FWS will not require any other management activities by the landowners
without their consent. See FWS, Safe Harbor Agreements for Private
Landowners, at 1 (Sept. 2009), available at http://www.fws.gov/endangered/esa-
library/pdf/harborqa.pdf.
9
At the time of the proposed rule, The Peregrine Fund had forty-six
pairs of breeding Falcons in its captive-breeding program. Establishment of a
Nonessential Experimental Population of Northern Aplomado Falcons in New
Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed.
Reg. at 6821, 6822. From that population, 1004 Falcons had been released in
southern Texas. Id. at 6821. Of those Falcons, at least thirty-nine pairs had been
established in southern Texas and the adjacent area in Mexico. Id. Those pairs
had produced more than 179 young. Id. The FWS concluded that these releases
had established a wild population of Falcons in that area. Id. at 6822. One
hundred and twenty-five Falcons had also been released on private ranches in
western Texas, pursuant to a safe harbor agreement, and had successfully fledged
young. Id.
10
The FWS concluded that safe harbor agreements, which it relied
upon in Texas, would not work well in this instance. “Despite the relative
success of the falcon releases in Texas, [the FWS] believe[d] the Safe Harbor
Agreements used to release falcons in Texas [we]re not the best mechanism for
establishing falcons in New Mexico and Arizona.” Establishment of a
Nonessential Experimental Population of Northern Aplomado Falcons in New
Mexico and Arizona and Availability of Draft Environmental Assessment, 70 Fed.
Reg. at 6824. Safe harbor agreements apply only to private lands; not only are
public lands more predominant in New Mexico and Arizona, but the public lands
in those states are more suited to the Falcon’s behavioral ecology than private
lands. Id. The FWS therefore proposed promulgation of the 10(j) rule, covering
(continued...)

12
fully expect that the proposed [nonessential experimental population] will result

in the establishment of a self-sustaining, resident population, which will

contribute to the recovery of the species.”).

The geographic boundary of the proposed nonessential experimental

population was to cover all of New Mexico and Arizona, even though Falcons

would be released only within New Mexico. Id. at 6822. The FWS concluded

that the proposed area was geographically separate from other Falcon populations,

as required by section 10(j), because the “area is geographically isolated from

existing falcon populations in Mexico and Texas by a sufficient distance to

preclude significant contact between populations.” Id. at 6823. Although

“taking” an endangered species is normally prohibited by the ESA, the proposed

rule would allow a person to “take” 11 a Falcon within the proposed area “provided

that the take is unintentional and was not due to negligent conduct.” Id. at 6824.

The FWS predicted that takings would be rare because “the reintroduction is

compatible with existing land use practices for the area.” Id.

C. Final 10(j) Rule

The FWS prepared a draft environmental assessment (“EA”) and solicited

10
(...continued)
both private and public lands, rather than relying on safe harbor agreements.
Establishment of a Nonessential Experimental Population of Northern Aplomado
Falcons in New Mexico and Arizona, 71 Fed. Reg. at 42,301.
11
Under 16 U.S.C. § 1532(19), “taking” a Falcon means “to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” the Falcon.

13
public comment. Id. at 6819, 6825. After the public comment period, the FWS

issued a final 10(j) rule on July 26, 2006, which finalized its plan to release

captive-bred Falcons into southern New Mexico as a nonessential experimental

population. Establishment of a Nonessential Experimental Population of Northern

Aplomado Falcons in New Mexico and Arizona, 71 Fed. Reg. at 42,298.

In the final rule, the FWS again concluded that there was no wild

population of Falcons in New Mexico or Arizona. Id. The FWS indicated that

“[f]ormal surveys and reliable sightings . . . show that a small number of falcons

have occurred in New Mexico, with a small number of sightings occurring in

every decade since the 1960s.” Id. at 42,299. The FWS also noted that

“[r]epeated follow-up by highly qualified, experienced falcon surveyors . . .

revealed that none of [those] falcons appeared to be local residents or defending a

territory.” Id. The FWS concluded that the Falcon sightings in New Mexico and

Arizona “may represent falcons dispersing from the population in Chihuahua that

were opportunistically foraging in areas rich in prey due to vegetative growth

from precipitation.” Id.

The FWS emphasized that the nonessential experimental population would

be wholly separate geographically from naturally occurring Falcon populations.

Id. at 42,300. The FWS explained that

[i]n the case of the falcon, (1) [t]his subspecies has been
known to disperse up to 250 kilometers, (2) it would be
virtually impossible to preclude naturally occurring individual

14
 falcons from intermingling with the experimental population,
and (3) there has been only one pair that has reproduced one
time within the [nonessential experimental population] area.
Designation of a 10(j) [nonessential experimental population]
requires that the reintroduced animals be “wholly separate”
from any existing population. We do not consider the pair of
falcons that bred in 2002 in Luna County to constitute a
population. Therefore, the exclusion of the counties
surrounding the 2002 pair from the 10(j) designation is not
necessary. We identify the experimental population as all
falcons found within the [nonessential experimental
population] area, including reintrod[uced falcons and any lone
dispersers and their offspring. We believe this is the best
manner by which to manage the falcon reintroduction program
to achieve species recovery.

Id. Relying on regulatory definitions of “population,” the FWS concluded that

“lone dispersers do not constitute a population or even part of a population”

because dispersers “are not in common spatial arrangement sufficient to

interbreed with other members of a population.” Id. (internal quotation marks

omitted). Individual animals, the FWS emphasized, do not constitute a

population. Id. Accordingly,

[t]he single pair of New Mexico falcons that successfully
reproduced only once in 2002 (after a 50-year absence) is
neither self-sustaining, a group, nor in common spatial
relationship with the group of approximately 25 to 35 breeding
falcon pairs in Mexico. These Mexico falcons occur 160
kilometers (km) (100 miles (mi)) or more south of the United
States border.

Id. Moreover, the FWS noted that “the few birds sighted in New Mexico could be

considered dispersers from the Chihuahuan population.” Id. at 42,300–01.

Because the FWS asserted that it “ha[s] no authority to manage a population in a

15
different country,” it concluded that “the existence of a group in Mexico should

not preclude conservation and management of falcons in the United States in

order to achieve species recovery.” Id. at 42,301.

Accordingly, the FWS planned to release captive-bred Falcons into New

Mexico every year during the spring or summer and to evaluate the progress of

the program every five years. Id. at 42,298, 42,301, 42,302, 42,309, 42,311. The

Peregrine Fund was to conduct annual surveys of the surrounding areas to locate

and record the surviving birds. Id. at 42,307–08. At the time of the promulgation

of the 10(j) rule, the FWS “anticipate[d] releasing falcons for 10 years or more.”

Id. at 42,310. The FWS stated that “[e]fforts under th[e] 10(j) rule will cease

when or if it is determined that the program no longer furthers the conservation of

the falcon.” Id. The FWS intended “the 10(j) rule to remain in place until the

status of the species improves to a point where listing is no longer necessary, and

the falcon can . . . be delisted.” Id. at 42,311.

The Peregrine Fund began releasing captive-bred Falcons into New Mexico

in 2006. As of July 2007, a grant agreement between the FWS and The Peregrine

Fund reflected that The Peregrine Fund had received $295,793 to implement this

program. As we noted in a related appeal, The Peregrine Fund “has released

some 100 birds altogether, of which at least 50 have successfully reached

independence in the wild and some have begun to reproduce.” New Mexico ex

rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702 (10th Cir. 2009). In

16
this appeal, The Peregrine Fund claims that it released eleven Falcons in 2006,

thirty-nine Falcons in 2007, and seventy Falcons in 2008.

D. The Instant Litigation

On March 27, 2006, Forest Guardians filed an action in the District of New

Mexico to compel the FWS to answer its 2002 petition requesting the designation

of critical habitat for the Falcon in Arizona, New Mexico, and Texas. 12 Forest

Guardians also challenged the 10(j) rule, alleging that the FWS had violated the

APA because the rule did not comply with the ESA or NEPA. 13 Specifically,

Forest Guardians alleged that the FWS had violated provisions of section 10(j) of

the ESA that: (1) require that an experimental population be released only

“outside the current range of such species”; and (2) state that an experimental

population remains experimental only as long as it is “wholly separate

12
Forest Guardians was joined by Chihuahuan Desert Conservation
Alliance, Public Employees for Environmental Responsibility, New Mexico
Audubon Council, Sierra Club, and Southwest Environmental Center in filing this
action against the FWS. Because they are not parties to this appeal, we refer only
to Forest Guardians.

Even though this action was originally filed in the form of a
complaint, the parties later agreed to proceed as if it properly had been filed as a
petition for review of agency action. See Olenhouse v. Commodity Credit Corp.,
42 F.3d 1560, 1579–80 (10th Cir. 1994). On October 22, 2007, Forest Guardians
filed an opening brief on the merits of its petition for review, arguing that it was
entitled to judgment on all of its claims.
13
Although the action originally only encompassed a challenge to the
FWS’s failure to respond to the critical habitat petition, Forest Guardians
amended its original complaint after the 10(j) rule was finalized to include the
instant challenges to the rule.

17
geographically from nonexperimental populations of the same species.” Forest

Guardians predicated these ESA arguments on the assertion that “[t]he current

range of the Northern Aplomado Falcon . . . includes Southern New Mexico and

Northern Chihuahua, Mexico.” R., Doc. 12, at 33 ¶ 83, 34 ¶ 86 (Am. Compl.,

filed Sept. 11, 2006). Forest Guardians also alleged that the FWS had violated

NEPA because it had predetermined the outcome of its environmental analysis.

The district court granted the petition for agency review as to the

designation of critical habitat in Texas and ordered the FWS to answer within

thirty days. That ruling is not before us on appeal. The court also denied the

petition as to all of Forest Guardians’ other claims, upholding the 10(j) rule under

the ESA and finding that the FWS had not predetermined the outcome of its

NEPA analysis. 14 This appeal timely followed.

II. DISCUSSION

On appeal, Forest Guardians argues that: (1) the FWS violated section

10(j) of the ESA by releasing an experimental population of captive-bred Falcons

inside the current range of the species and not wholly separate geographically

from populations of wild Falcons, and (2) the FWS violated NEPA by conducting

14
Because the district court upheld the 10(j) rule, it denied as moot
Forest Guardians’ petition for review as to the claims involving the designation of
critical habitat in New Mexico and Arizona. The parties correctly conceded that
those states cannot be designated simultaneously as a nonessential experimental
population area and as critical habitat for the Falcon. See 16 U.S.C.
§ 1539(j)(2)(C)(ii).

18
a biased analysis that did not constitute a “hard look” at the environmental impact

of the proposed 10(j) rule, but rather was intended to reach a predetermined

outcome. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we disagree

with Forest Guardians and affirm the district court’s denial of the petition for

review of agency action.

A. The 10(j) Rule and the ESA

We turn first to the validity of the 10(j) rule establishing a nonessential

experimental population of captive-bred Falcons in New Mexico and Arizona.

Forest Guardians argues that the rule violates section 10(j) of the ESA because it

authorizes the release of captive-bred Falcons within the current range of the

species and in an area that is not wholly separate geographically from a cross-

border Falcon population. See 16 U.S.C. § 1539(j)(1), (2)(A). Forest Guardians

contends that “[t]he reappearance of wild Falcons in New Mexico establishe[s]

that the State is within the Falcon’s ‘current range’” because there is “a wild

Falcon population span[ning] the border between New Mexico and Mexico.”

Aplt. Opening Br. at 7. It maintains that the record contains “abundant evidence”

of Falcon sightings in New Mexico to support the existence of a cross-border

population. Id. at 4; see also id. at 8. Forest Guardians argues that the FWS’s

position to the contrary “is simply wrong,” id. at 40, because “there is no

substantial evidence in the Record supporting [the] FWS’s position that a cross-

border Falcon population does not exist,” id. at 13. Consequently, Forest

19
Guardians claims that the FWS “did not make a reasoned choice among fairly

conflicting views.” Id. at 32. Forest Guardians also alleges that the FWS issued

the 10(j) rule to avoid ruling on its critical habitat petition.

The FWS responds that its conclusions were based “on the results of

extensive surveys by expert biologists using [FWS]-approved survey protocols

designed to maximize detection of Falcons.” Aplee. Br. at 16. Moreover, “[t]he

record reflects that the [FWS] endeavored to repeatedly follow-up on every

credible Falcon sighting to ascertain whether any Falcons were resident and/or

defending a territory.” Id. The FWS argues that “[t]he record contains extensive

evidence supporting [its] conclusion that despite occasional sightings of lone

Falcons in the [nonessential experimental population] area and an isolated

breeding occurrence by one pair of Falcons in 2002, an interbreeding, self-

sustaining population did not exist in New Mexico, as part of a continuous swath

or otherwise.” Id. at 23. The FWS also contends that Forest Guardians’ position

is “predicated upon a statutory interpretation squarely rejected by this Court in

Wyoming Farm Bureau.” Id. at 22 (citing Wyo. Farm Bureau Fed’n, 199 F.3d at

1231). The FWS concludes by arguing that it has used political boundaries in the

past to designate experimental areas, as in Wyoming Farm Bureau Federation,

and that the use of political boundaries does not violate the ESA.

The Peregrine Fund agrees that the evidence in the record

“overwhelming[ly]” supports the FWS’s action. TPF Br. at 6. The Peregrine

20
Fund adds that the success of the Falcon’s recovery “is far more likely. . . . with

the infusion of a concentrated number of captive produced birds.” Id. at 2.

Furthermore, The Peregrine Fund maintains that “[p]olitical borders do have

relevance in considerations involving the management and conservation of

wildlife species, for the obvious reason that laws, rules, and practices regarding

such matters often differ greatly on the two sides of an international border.” Id.

at 15.

1. Standard of Review

“We afford the district court’s decision no particular deference, but rather,

review the rules and administrative record independently.” Wyo. Farm Bureau

Fed’n, 199 F.3d at 1231. “Our review of the rules and record is governed by the

[APA], 5 U.S.C. § 706. Essentially, we must determine whether the [agency]:

(1) acted within the scope of [its] authority, (2) complied with prescribed

procedures, and (3) took action that was neither arbitrary and capricious, nor an

abuse of discretion.” Id. (citing Olenhouse, 42 F.3d at 1574). “Review under the

arbitrary and capricious standard is narrow in scope, but is still a ‘probing,

in-depth review.’” Sorenson Commc’ns, Inc. v. FCC, 567 F.3d 1215, 1221 (10th

Cir. 2009) (quoting Qwest Commc’ns Int’l, Inc. v. FCC, 398 F.3d 1222, 1229

(10th Cir. 2005)). An agency’s action is entitled to a presumption of validity, and

the petitioner challenging that action bears the burden of establishing that the

action is arbitrary or capricious. Citizens’ Comm. to Save Our Canyons v.

21
Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008).

“Within this context, we will set aside the [agency’s] factual determinations

only if they are unsupported by substantial evidence.” Wyo. Farm Bureau Fed’n,

199 F.3d at 1231. “Evidence is substantial in the APA sense if it is enough to

justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion

to be drawn is one of fact.” Olenhouse, 42 F.3d at 1575 (internal quotation marks

omitted). “‘The substantial-evidence standard does not allow a court to displace

the [agency’s] choice between two fairly conflicting views, even though the court

would justifiably have made a different choice had the matter been before it de

novo.’” Wyo. Farm Bureau Fed’n, 199 F.3d at 1231 (quoting Trimmer v. U.S.

Dep’t of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999)). We will review matters

of law de novo and will defer to the agency’s construction of the ESA if Congress

has not clearly spoken on the issue before us and has delegated authority over the

subject at issue to the agency, unless the agency’s “construction is unreasonable

or impermissible.” Id.; accord Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 842–43, 845 (1984).

2. Overview of the ESA and Section 10(j)

“Congress enacted the [ESA] in 1973 to ‘provide for the conservation,

protection, restoration, and propagation of species of fish, wildlife, and plants

facing extinction.’” Wyo. Farm Bureau Fed’n, 199 F.3d at 1231 (emphasis

omitted) (quoting S. Rep. No. 93-307, at 1 (1973), reprinted in 1982

22
U.S.C.C.A.N. 2989). “Toward that end, the [ESA] authorizes the Secretary of the

Interior to list domestic or foreign species as endangered or threatened.” Id.

Once a species or subspecies is listed as endangered, it receives certain

protections under the ESA, including a prohibition against trading or “taking” the

species. 16 U.S.C. § 1538(a)(1); see also id. § 1532(16) (defining “species” to

include subspecies). “The Secretary [must] develop and implement [recovery]

plans . . . for the conservation and survival of endangered species . . . , unless he

finds that such a plan will not promote the conservation of the species.” Id. §

1533(f)(1). In addition, federal agencies “assume special obligations to conserve,

recover and protect that species.” Wyo. Farm Bureau Fed’n, 199 F.3d at 1231.

Agencies are required to use their authority to “carry[] out programs for the

conservation of endangered species” and to ensure that their actions are “not

likely to jeopardize . . . any endangered species . . . or result in the destruction or

adverse modification of [its critical] habitat.” 16 U.S.C. § 1536(a)(1), (2).

Congress amended the ESA in 1982 to broaden the FWS’s discretion to

reintroduce endangered and threatened species into their historic ranges. Wyo.

Farm Bureau Fed’n, 199 F.3d at 1231–32. In particular, Congress added section

10(j) to authorize the FWS to designate certain reintroduced populations of

endangered and threatened species as “experimental populations.” See id.; see

also 16 U.S.C. § 1539(j). An “experimental population” is “any population . . .

authorized by the Secretary for release . . . but only when, and at such times as,

23
the population is wholly separate geographically from nonexperimental

populations of the same species.” 16 U.S.C. § 1539(j)(1). “The Secretary may

authorize the release . . . of any population . . . of an endangered species . . .

outside the current range of such species if the Secretary determines that such

release will further the conservation of such species.” Id. § 1539(j)(2)(A).

“Before authorizing the release of any population . . . the Secretary shall . . .

identify the population and determine, on the basis of the best available

information, whether or not such population is essential to the continued

existence of an endangered species . . . .” Id. § 1539(j)(2)(B). As this court

explained in Wyoming Farm Bureau Federation:

Congress added section 10(j) to the Endangered Species Act in
1982 to address the Fish and Wildlife Service’s and other
affected agencies’ frustration over political opposition to
reintroduction efforts perceived to conflict with human
activity. Although the Secretary already had authority to
conserve a species by introducing it in areas outside its current
range, Congress hoped the provisions of section 10(j) would
mitigate industry’s fears experimental populations would halt
development projects, and, with the clarification of the legal
responsibilities incumbent with the experimental populations,
actually encourage private parties to host such populations on
their lands.

199 F.3d at 1231–32 (citing 16 U.S.C. § 1539(j); H.R. Rep. No. 97-567, at 8

(1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2808, 2817). Designation of a

population as “experimental” also allows the Secretary “flexibility and discretion

in managing the reintroduction of endangered species.” Id. at 1233.

24
 Forest Guardians brought this challenge because, in its view, the 10(j) rule

“dramatically weakened ESA protection, including habitat protection, for wild

Falcons in New Mexico.” Aplt. Opening Br. at 7. In short, Forest Guardians is

concerned because the 10(j) rule allows the Falcon to be treated on public land as

threatened rather than endangered, permits incidental takings of the Falcon

(although not intentional takings, i.e., hunting), reduces consultation requirements

for federal agencies concerning the Falcon, and prohibits the designation of

critical habitat for the Falcon in New Mexico and Arizona. See 16 U.S.C.

§§ 1536(a), 1539(j)(2)(C); 50 C.F.R. § 17.83(a)(2).

3. Forest Guardians’ ESA Challenge

Forest Guardians challenges the FWS’s application of its definition of

“population” to the facts of this case and, relatedly, suggests that FWS has

misconstrued our decision in Wyoming Farm Bureau Federation. Although the

parties appear to agree on the number of Falcons that have been observed in New

Mexico, they dispute the conclusion to be drawn from those observations. The

resolution of this ESA challenge depends on whether the Falcons sighted in New

Mexico constitute a cross-border population of wild Falcons such that the

establishment of a nonessential experimental population in that area is not

“outside the current range” of the species and is not “wholly separate

geographically” from the cross-border population. See 16 U.S.C. § 1539(j)(1),

(2).

25
 We first examine the ESA to determine the appropriate method of applying

section 10(j). As we noted in Wyoming Farm Bureau Federation, the ESA does

not define the term “population,” nor does it specify the meaning of the phrases

relevant to this appeal—that is, “current range” or “wholly separate

geographically from nonexperimental populations”; that is so because the

conservation of a species requires flexibility and specialized management tailored

to the circumstances of that particular species. 199 F.3d at 1233–34. “We

therefore defer to the [FWS]’s interpretation of the phrase ‘wholly separate

geographically from nonexperimental populations,’ so long as its interpretation

does not conflict with the plain language of the Endangered Species Act.” Id. at

1234.

The FWS generally defines a “population” as a self-sustaining “group of

fish or wildlife . . . in common spatial arrangement that interbreed when mature.”

50 C.F.R. § 17.3; see also Wyo. Farm Bureau Fed’n, 199 F.3d at 1234 & n.3;

Establishment of a Nonessential Experimental Population of Northern Aplomado

Falcons in New Mexico and Arizona, 71 Fed. Reg. 42,300. The FWS also has

defined “experimental population” as

an introduced and/or designated population (including any
off-spring arising solely therefrom) that has been so designated
in accordance with the procedures of this subpart but only
when, and at such times as the population is wholly separate
geographically from nonexperimental populations of the same
species. Where part of an experimental population overlaps
with natural populations of the same species on a particular

26
 occasion, but is wholly separate at other times, specimens of
the experimental population will not be recognized as such
while in the area of overlap. That is, experimental status will
only be recognized outside the areas of overlap. Thus, such a
population shall be treated as experimental only when the
times of geographic separation are reasonably predictable; e.g.,
fixed migration patterns, natural or man-made barriers. A
population is not treated as experimental if total separation
will occur solely as a result of random and unpredictable
events.

50 C.F.R. § 17.80(a).

The FWS’s conclusion under those definitions, that there is no wild

population of Falcons in New Mexico or Arizona, is explained in detail in the

10(j) rule. In brief, the FWS determined that the nonessential experimental

population would be “wholly separate geographically” from the wild Falcons.

Establishment of a Nonessential Experimental Population of Northern Aplomado

Falcons in New Mexico and Arizona, 71 Fed. Reg. at 42,300. The FWS

concluded that the 2001 pair of nesting Falcons in Luna County, New Mexico,

which bred in 2002, did not constitute a population because a single pair is

“neither self-sustaining, a group, nor in common spatial relationship” to the

Falcons in Mexico. Id. The FWS reasoned that the Falcons in Mexico occurred

at least 160 kilometers (or 100 miles) south of the border, so that population was

not in “common spatial relationship” with the pair of New Mexico Falcons. Id.

The FWS also determined that the sightings of “lone dispersers” that did not

appear to be resident birds or birds defending a territory did not constitute a

27
population or even part of a population since they are not in “common spatial

arrangement” sufficient to interbreed with other members of a population. Id. at

42,300–01. “Furthermore, two, or even three, birds are not considered a

self-sustaining population. Self-sustaining populations require a sufficient

number of individuals to avoid inbreeding depression and occurrences of chance

local extinction.” Id. at 43,201. Accordingly, the FWS declined to exclude the

area in New Mexico from the 10(j) designation because that area had no existing

population of wild Falcons. Id. Moreover, the FWS concluded that because it did

not have the authority to manage the Mexican Falcon population, the existence of

those Falcons “should not preclude conservation and management of [non-

essential experimental] falcons in the United States in order to achieve species

recovery.” Id.

In deciding this case, we may draw guidance from our decision in Wyoming

Farm Bureau Federation, which involved an analogous 10(j) rule. In that case,

we upheld a rule establishing a nonessential experimental population of gray

wolves in Yellowstone National Park and central Idaho. Wyo. Farm Bureau

Fed’n, 199 F.3d at 1229, 1241. In so holding, we concluded that the Department

of the Interior’s interpretation of the phrase “wholly separate geographically from

nonexperimental populations” did not conflict with the ESA’s plain language. Id.

at 1234. The Department had defined “population” as “a potentially self-

sustaining group in common spatial arrangement, and thus determined a

28
geographic separation is any area outside the area in which a particular

population sustains itself.” Id. (internal quotation marks omitted).

Although the Department “d[id] not dispute individual wolves may leave

(and, from time to time, ha[d] left) Canada and Montana and enter the

experimental population areas,” id. at 1233, we held that such a possibility did

not violate section 10(j)’s requirement that experimental populations be wholly

separate from nonexperimental populations, id. at 1235–36. We instead

concluded that the Department’s determination that a population is more than one

dispersing individual was a reasonable interpretation of the ESA. Id. at 1234–36.

Under the definition of “population,” “lone dispersers d[id] not constitute a

population or even part of a population [because] they [we]re not in ‘common

spatial arrangement’ sufficient to interbreed with other members of a population.”

Id. at 1234, see also id. at 1235–36. We also upheld the Department’s

interpretation of the phrase “current range” to mean the current range of a

population and not of an individual wolf. Id. at 1236. In addition, we approved

the Department’s designation of the experimental area to include all wolves found

within the area, reasoning that

[b]ased on the facts (1) there were no reproducing wolf pairs
and no pack activity within the designated experimental areas,
(2) wolves can and do roam for hundreds of miles, and (3) it
would be virtually impossible to preclude naturally occurring
individual gray wolves from intermingling with the
experimental population, the Secretary intentionally identified
the experimental population as all wolves found within the

29
 experimental areas, including imported wolves and any lone
dispersers and their offspring. The Department determined it
could best manage the wolf reintroduction program to achieve
species recovery in this manner. We find nothing in the Act
that invalidates this approach by requiring the protection of
individuals to the exclusion or detriment of overall species
recovery, or otherwise limiting the Department’s flexibility
and discretion to define and manage an experimental
population pursuant to section 10(j).

Id. at 1236–37 (citations omitted).

In this case, the FWS closely followed the definitions upheld in Wyoming

Farm Bureau Federation. Accordingly, we conclude that the FWS’s definition of

what constitutes a population for purposes of the 10(j) rule is not in conflict with

the plain language of the ESA and is a reasonable interpretation of that language.

Forest Guardians acknowledges the precedential effect of Wyoming Farm Bureau

Federation. However, Forest Guardians reasons that Wyoming Farm Bureau

Federation does not offer definitive answers to the issues that it advances

here—whether there is substantial evidence in the record to support the FWS’s

conclusions that: (1) one breeding pair and the individual Falcons seen in New

Mexico themselves do not constitute a population; (2) the dispersing Falcons in

New Mexico were too distant from the Mexican population to form part of that

population; and (3) the international border was a barrier that prevented a finding

that there was such a population.

After carefully reviewing the record, we conclude that substantial evidence

supports the FWS’s first two conclusions. And we therefore need not reach the

30
FWS’s third conclusion. In particular, we note that the record contains several

biologists’ surveys that monitored the status of the Falcon in New Mexico and

Mexico. 15 Many of those surveys support the FWS’s conclusions that the limited

number of Falcons in New Mexico were likely long-range lone dispersers from

the Mexican Falcons located 160 km (or 100 mi) south and that the Mexican

15
In reviewing the evidence, we reject Forest Guardians’ contention
that we should discount evidence obtained by the FWS or The Peregrine Fund.
Forest Guardians relies on Exxon Shipping Co. v. Baker, __ U.S. __, 128 S. Ct.
2605, 2626 & n.17 (2008), to argue that we must give greater weight to the
research of independent scientists rather than the research of scientists employed
by the FWS or The Peregrine Fund. Forest Guardians urges that we should view
evidence proffered by the FWS and The Peregrine Fund with “a substantial degree
of skepticism” because it is “self-serving,” Aplt. Opening Br. at 40 n.29, and
“there is absolutely nothing here other than [The Peregrine Fund] and its affiliates
singing the company song,” Aplt. Reply Br. at 8.

However, Baker is distinguishable from the case at hand. In Baker, the
Supreme Court stated that it was “aware of no scholarly work” on the propriety of
the award of punitive damages for the Exxon Valdez incident under maritime law.
128 S. Ct. at 2626. The Court went on to note that it was aware of some literature
“examining the predictability of punitive awards by conducting numerous ‘mock
juries,’” but “[b]ecause this research was funded in part by Exxon, [it] decline[d]
to rely on it.” Id. at 2626 n.17. By contrast, this case involves scientific studies
and opinions by environmental groups and governmental agencies and is a far cry
from Exxon’s commercial support of research funded to aid Exxon in arguing
against an adverse large punitive damage award. See Adam Liptak, From One
Footnote, a Debate Over the Tangles of Law, Science and Money, N.Y. Times,
Nov. 24, 2008, at A16, available at
http://www.nytimes.com/2008/11/25/washington/25bar.html?_r=1. Furthermore,
“agencies are entitled to rely on their own experts so long as their decisions are
not arbitrary and capricious.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162,
1173 n.12 (10th Cir. 1999) (citing Marsh v. Or. Natural Res. Council, 490 U.S.
360, 378 (1989)).

31
Falcons were not likely to recolonize the southwestern United States. 16

Establishment of a Nonessential Experimental Population of Northern Aplomado

Falcons in New Mexico and Arizona, 71 Fed. Reg. at 42,299–301, 42,307. For

example, after conducting a survey of the Falcons in Mexico in 1986, a biologist

16
The FWS and The Peregrine Fund analogize the lone Falcon
dispersers to the individual wolves in Wyoming Farm Bureau Federation that
dispersed over long distances and occasionally entered the nonessential
experimental population area. The FWS argues that “the fact that dispersers can
enter and have entered the [nonessential experimental population] area plainly
does not indicate that a naturally occurring population of Falcons sustains itself in
this area.” Aplee. Br. at 41. In promulgating the rule at issue, the FWS explained
that

[e]ven though falcons from Mexico may enter New Mexico
occasionally, the 10th Circuit Court in the wolf case
(Wyoming Farm Bureau Federation v. Babbitt) supported the
use of the 10(j) designation under very similar circumstances
of occasional, low frequency contact. In over 50 years, we
know of only one pair of successfully reproducing falcons in
New Mexico. This one occurrence does not indicate that there
is self-sustaining, regular interbreeding occurring between
falcons in New Mexico and those in Mexico. The single pair
of falcons that successfully reproduced once in 2002, after a
50-year absence, is not self-sustaining, not a group, and not in
common spatial relationship with the group of approximately
25 to 35 breeding falcon pairs in the Mexican State of
Chihuahua, 160 km (100 mi) south of the United States border.
These Mexican birds appear to be self-sustaining and
interbreeding, even though the population is not expanding. In
addition, there is a significant gap between the location of the
pair in the United States and the most northern breeding pair in
Chihuahua, and even more distance to the main cluster of
breeding pairs there.

Establishment of a Nonessential Experimental Population of Northern Aplomado
Falcons in New Mexico and Arizona, 71 Fed. Reg. at 42,307.

32
concluded that there were not a large number of Falcons in Chihuahua or other

areas of Mexico adjacent to the United States. He also noted that grasslands in

that area, which constitute the Falcons’ potential habitat, were limited and

scattered. Based on these observations, he tentatively concluded that “[p]ortions

of Mexico adjacent to the United States probably do not support enough

Aplomado Falcons to foster natural recolonization of the United States.” FWS

Supp. App. at 166.

The record indicates that other experts have agreed with that conclusion.

Although the record does contain reports describing occasional sightings of

apparently non-resident Falcons either alone or hunting in pairs, many surveys

have repeatedly found no Falcons. At the time the FWS promulgated the 10(j)

rule, the breeding pair in Luna, New Mexico, was the only recorded nesting pair

of Falcons in New Mexico since 1952. Thus, the record contains substantial

evidence to support the FWS’s conclusions that the Falcons seen in New Mexico

do not constitute a population themselves and that those dispersers were too

geographically removed from the Mexican Falcons to form part of that

interbreeding, self-sustaining population.

Although the record also contains evidence to support Forest Guardians’

argument, we are not free to displace the FWS’s choice between two fairly

conflicting views. See Wyo. Farm Bureau Fed’n, 199 F.3d at 1231 (quoting

Trimmer, 174 F.3d at 1102). In commenting upon the appropriateness of the 10(j)

33
rule, an expert even acknowledged that the question of whether there was a

population of wild Falcons in New Mexico was “equivocal[] and cogent

arguments can be made for either position.” J.A. at 83; see also id. at 87 (stating

that the definition of what constitutes a population “could go on endlessly”).

Forest Guardians does not point to any evidence in the record indicating that the

FWS failed to acknowledge the existence of any other Falcons in New Mexico or

Arizona.

Forest Guardians instead relies on the conclusion drawn from scholarly

articles and by individual biologists that are contrary to the conclusion drawn by

the FWS. In particular, Forest Guardians argues that two scholarly articles should

be given the most weight of any evidence in the record under Baker. Aplt.

Opening Br. at 8–13 (citing J.A. at 362–66 (Raymond A. Meyer & Sartor O.

Williams, III, Recent nesting and current status of Aplomado Falcon (Falco

Femoralis) in New Mexico, 59 N. Am. Birds 352–56 (2005)); J.A. at 367–77

(Kendal E. Young et al., Aplomado Falcon Abundance and Distribution in the

Northern Chihuahuan Desert of Mexico, 38 J. Raptor Res. 107–17 (2004))).

Those articles conclude that the Falcons sighted in New Mexico are part of a

cross-border population with the Falcons in Mexico. The FWS and The Peregrine

Fund criticize these articles for neither defining a “population” nor explaining the

basis for the authors’ conclusions. Moreover, we reject Forest Guardians’

argument that some evidence should be given greater weight than other evidence

34
in the record. See supra note 15. Although this conflict among the experts

indicates that biologists disagree as to the conclusion that may be drawn from the

facts, nothing in the record indicates that the FWS’s conclusion contrary to that

advocated by Forest Guardians was arbitrary or capricious.

In sum, the FWS did not act arbitrarily or capriciously in promulgating the

10(j) rule under the ESA. The FWS’s definition of what constitutes a population

is not in conflict with the plain language of the ESA and is a reasonable

interpretation of that language. We also conclude that substantial evidence in the

record supports the FWS’s conclusion that no wild population of Falcons in New

Mexico would prevent the release of captive-bred Falcons into that area as part of

a nonessential experimental population. Thus, because we determine that the rule

was promulgated in accordance with the ESA and that the FWS’s actions did not

violate the APA, we next turn to the second issue on appeal—whether the FWS

complied with NEPA in promulgating the 10(j) rule.

B. The 10(j) Rule and NEPA

Forest Guardians also contends that the FWS violated NEPA in

promulgating the 10(j) rule. In particular, Forest Guardians argues that the FWS

failed to take the requisite hard look at the environmental impacts of its proposed

actions because it predetermined the outcome of its environmental analysis.

Forest Guardians alleges that The Peregrine Fund refused to allow the FWS to use

its captive-bred Falcons unless the FWS agreed to promulgate a 10(j) rule. The

35
remedy sought by Forest Guardians is similar to that awarded in Metcalf v. Daley,

214 F.3d 1135, 1145–46 (9th Cir. 2000), that is, a direction to the district court to

order the agency to set aside the Finding of No Significant Impact (“FONSI”) and

begin the NEPA process anew.

The FWS responds that the record “wholly fail[s] to demonstrate

predetermination.” Aplee. Br. at 46. The agency contends that NEPA does not

“require agency personnel to be subjectively impartial” and that the proper focus

should be on the adequacy of its EA analysis. Aplee. Br. at 44, 46. In fact, the

FWS maintains that Forest Guardians has not alleged that the substance of the EA

was flawed or incomplete and has not challenged the issuance of the FONSI. The

Peregrine Fund adds that Forest Guardians “muddles the distinction between a

‘predetermined NEPA analysis’ and acceptance of the Agency’s preferred action

alternative.” TPF Br. at 20. The Peregrine Fund argues that “agencies and other

third parties were uniformly supportive of the preferred alternative,” which was

the 10(j) rule. Id. at 21. It also argues that there is no evidence in the record that

the FWS failed to consider other action alternatives; rather, the evidence shows

that the FWS took a hard look over six years before adopting the preferred action

alternative.

1. Standard of Review

We review NEPA claims under the APA independently, giving “no

particular deference to the district court’s review of an agency action.” See Colo.

36
Envtl. Coal., 185 F.3d at 1167 n.5. “As with other challenges arising under the

APA, we review an agency’s NEPA compliance to see whether it is ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.’”

New Mexico ex rel. Richardson, 565 F.3d at 704 (quoting 5 U.S.C. § 706(2)(A)).

In the context of a NEPA challenge, “[a]n agency’s decision is arbitrary and

capricious if the agency (1) ‘entirely failed to consider an important aspect of the

problem,’ (2) ‘offered an explanation for its decision that runs counter to the

evidence before the agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise,’ (3) ‘failed to base its

decision on consideration of the relevant factors,’ or (4) made a ‘clear error of

judgment.’” Id. (quoting Utah Envtl. Cong. v. Troyer, 479 F.3d 1269, 1280 (10th

Cir. 2007)); accord Colo. Envtl. Coal., 185 F.3d at 1167; see also Metcalf, 214

F.3d at 1143–45 (using arbitrary and capricious standard in reviewing

predetermination claim); cf. Davis v. Mineta, 302 F.3d 1104, 1111, 1112–13 (10th

Cir. 2002) (applying the arbitrary and capricious standard in preliminary

injunction context involving claim of NEPA predetermination). “When called

upon to review factual determinations made by an agency as part of its NEPA

process, short of a ‘clear error of judgment’ we ask only whether the agency took

a ‘hard look’ at information relevant to the decision.” New Mexico ex rel.

Richardson, 565 F.3d at 704; see also Balt. Gas & Elec. Co. v. Natural Res. Def.

Council, Inc., 462 U.S. 87, 97–98 (1983). Finally, “[a] presumption of validity

37
attaches to the agency action and the burden of proof rests with the appellants

who challenge such action.” Citizens’ Comm. to Save Our Canyons, 513 F.3d at

1176 (internal quotation marks omitted).

2. Overview of NEPA

“The centerpiece of environmental regulation in the United States, NEPA

requires federal agencies to pause before committing resources to a project and

consider the likely environmental impacts of the preferred course of action as

well as reasonable alternatives.” New Mexico ex rel. Richardson, 565 F.3d at

703; see also 42 U.S.C. §§ 4331, 4332. “NEPA has twin aims. First, it places

upon an agency the obligation to consider every significant aspect of the

environmental impact of a proposed action. Second, it ensures that the agency

will inform the public that it has indeed considered environmental concerns in its

decisionmaking process.” Balt. Gas & Elec. Co., 462 U.S. at 97 (citation

omitted) (internal quotation marks omitted); see also New Mexico ex rel.

Richardson, 565 F.3d at 703 (“By focusing both agency and public attention on

the environmental effects of proposed actions, NEPA facilitates informed

decisionmaking by agencies and allows the political process to check those

decisions.”).

Under NEPA, “[b]efore an agency may take ‘major Federal actions

significantly affecting the quality of the human environment,’ an agency must

prepare an environmental impact statement (‘EIS’) in which the agency considers

38
the environmental impacts of the proposed action and evaluate[s] ‘alternatives to

the proposed action,’ including the option of taking ‘no action.’” Silverton

Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 780 (10th Cir. 2006)

(quoting 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.14(d)). In doing so, the

agency must take a “hard look” at information relevant to its decision. New

Mexico ex rel. Richardson, 565 F.3d at 704; see also Balt. Gas & Elec. Co., 462

U.S. at 97; Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814 (9th

Cir. 1999) (per curiam) (“NEPA does not mandate particular results, but simply

provides the necessary process to ensure that federal agencies take a hard look at

the environmental consequences of their actions.” (internal quotation marks

omitted)). “When it is unclear whether a proposed action requires an EIS, the

agency may first prepare a less detailed [EA].” Greater Yellowstone Coal. v.

Flowers, 359 F.3d 1257, 1274 (10th Cir. 2004) (citing 40 C.F.R. § 1501.4(b)). “If

the EA leads the agency to conclude that the proposed action will not

significantly affect the environment, the agency may issue a [FONSI] and forego

the further step of preparing an EIS.” Id. (citing 40 C.F.R. § 1501.4(e)).

In this case, the FWS prepared an EA followed by a FONSI. In 2003, the

FWS began its NEPA analysis by requesting public comment and holding public

meetings in Arizona and New Mexico as part of the scoping process. In 2005, the

FWS initiated a second public comment period on the proposed 10(j) rule and the

draft EA and held two public hearings in New Mexico. In the EA, the FWS

39
considered five alternatives: (1) the no-action alternative, (2) the preferred and

chosen alternative of reintroducing Falcons in New Mexico and designating the

species as a 10(j) nonessential experimental population in all of New Mexico and

Arizona, (3) reintroducing Falcons in New Mexico and designating the species as

a 10(j) nonessential experimental population in parts of New Mexico and all of

Arizona, (4) reintroducing Falcons in New Mexico by entering into safe harbor

agreements with private landowners but without designating the species as a 10(j)

nonessential experimental population, and (5) reintroducing Falcons in New

Mexico without designating the species as a 10(j) nonessential experimental

population or entering into safe harbor agreements. The FWS issued a final EA in

June 2006 and a FONSI in July 2006.

3. Forest Guardians’ NEPA Challenge

Forest Guardians challenges the entire NEPA analysis as suspect because

the FWS allegedly did not take a hard look at the environmental impacts of its

proposed actions due to its alleged bias. We disagree.

NEPA does not require agency officials to be “subjectively impartial.”

Envtl. Def. Fund, Inc. v. Corps of Eng’rs of the U.S. Army, 470 F.2d 289, 295 (8th

Cir. 1972). An agency can have a preferred alternative in mind when it conducts

a NEPA analysis. 40 C.F.R. § 1502.14(e); see also Ass’n of Pub. Agency

Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1185 (9th Cir. 1997)

(noting that “an agency can formulate a proposal or even identify a preferred

40
course of action before completing an EIS”). “The test of compliance . . . then, is

one of good faith objectivity rather than subjective impartiality.” Envtl. Def.

Fund, Inc., 470 F.2d at 296. However, “the comprehensive ‘hard look’ mandated

by Congress and required by [NEPA] must be timely, and it must be taken

objectively and in good faith, not as an exercise in form over substance, and not

as a subterfuge designed to rationalize a decision already made.” Metcalf, 214

F.3d at 1142; accord Int’l Snowmobile Mfrs. Ass’n v. Norton, 340 F. Supp. 2d

1249, 1257–58 (D. Wyo. 2004); see also 40 C.F.R. § 1502.2(g) (“Environmental

impact statements shall serve as the means of assessing the environmental impact

of proposed agency actions, rather than justifying decisions already made.”

(emphasis added)); 40 C.F.R. § 1502.5 (“The statement shall be prepared early

enough so that it can serve practically as an important contribution to the

decisionmaking process and will not be used to rationalize or justify decisions

already made.” (emphasis added)).

We have previously addressed similar predetermination claims. E.g.,

Silverton Snowmobile Club, 433 F.3d at 780–81; Lee v. U.S. Air Force, 354 F.3d

1229, 1240 (10th Cir. 2004); Davis, 302 F.3d at 1112–13; cf. Utahns for Better

Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1186 (10th Cir. 2002)

(“find[ing] no . . . preordained result” under Davis in a case involving illegal

delegation of preparation of an EIS to a state agency and its contractor). We find

Davis’s discussion regarding the predetermination of a NEPA analysis to be

41
instructive, even though Davis arose from a different procedural posture. See 302

F.3d at 1109–11 (reviewing the denial of a motion for a preliminary injunction).

In Davis, the plaintiffs sought to enjoin the defendants from proceeding

with a highway-construction project on the grounds that the defendants had

violated NEPA and the Department of Transportation Act by preparing an

inadequate EA and issuing a FONSI rather than an EIS. Id. at 1109. We

concluded that the plaintiffs were likely to prevail on the merits of their claim

that the agency had acted arbitrarily and capriciously; not only were procedural

and substantive deficiencies identifiable in the environmental analysis itself, but

the record also established that the defendants had “prejudged the NEPA issues.”

Id. at 1112. The contractor hired by the agency to prepare a draft EA for the

agency’s approval “was contractually obligated to prepare a FONSI and to have it

approved, signed and distributed by [the agency] by a date certain. The decision

whether to prepare a FONSI should have been based on the EA, of course, not the

other way around.” Id. We found that the contractor’s predetermination was

attributable to the agency because the agency “was involved throughout the NEPA

process” and had indicated in a meeting that it was aware that a FONSI had been

prepared prior to the public’s opportunity to comment on the EA. Id. at 1112–13

(internal quotation marks omitted). The agency also was aware of many of the

inadequacies of the EA and the FONSI but failed to fix the problems. Id. at 1113.

We held that the predetermination resulted in an environmental analysis that was

42
tainted with bias and then enumerated the inadequacies found in the analysis. Id.

at 1112–13, 1118–26. The plaintiffs ultimately received the requested

preliminary injunction. Id. at 1126. Thus, Davis indicates that if an agency

predetermines the NEPA analysis by committing itself to an outcome, the agency

likely has failed to take a hard look at the environmental consequences of its

actions due to its bias in favor of that outcome and, therefore, has acted arbitrarily

and capriciously. 17

In Silverton Snowmobile Club, we rejected the plaintiffs’ argument that the

agencies had violated NEPA by reaching a predetermined result. 433 F.3d at

780–81. The plaintiffs alleged that the agencies had “structured” their NEPA

analysis and issues to ensure that the ultimate outcome would be inevitable. Id. at

780 (internal quotation marks omitted). After examining the record, we

concluded that, far from conducting a biased NEPA analysis, the agencies had

reached a compromise solution between competing user groups. Id. at 781. In

17
We take this opportunity to clarify the meaning of our statement in
Davis that prejudgment (i.e., predetermination) “diminishes the deference owed to
the federal defendants in our review of their decision to issue a FONSI rather than
an EIS.” 302 F.3d at 1112. We caution that Davis’s reference to “deference”
should not be taken to mean that the arbitrary and capricious standard in the APA
does not apply to this type of claim. To the contrary, our discussion of the
standard of review in Davis quite clearly indicates that we review an agency’s
NEPA analysis and its potential bias “under the APA’s deferential ‘arbitrary and
capricious’ standard.” Id. at 1111 (quoting 5 U.S.C. § 706(2)(A)). What Davis
meant was that, if an agency predetermines the result of its NEPA analysis, this
court is more likely to conclude that the agency failed to take a hard look at the
environmental consequences of its actions and, therefore, acted arbitrarily and
capriciously.

43
reaching that conclusion, we distinguished Silverton Snowmobile Club from the

Ninth Circuit’s decision in Metcalf, where the federal agency had entered into a

binding agreement to reach a certain outcome before conducting a NEPA analysis.

Id. at 781 n.2 (discussing Metcalf, 214 F.3d at 1144). Silverton Snowmobile Club

concluded that Metcalf was “a very different situation from this case, where the

agencies had no preexisting agreement with any user group.” Id.

In light of Davis and its progeny, it is clear that an agency may violate

NEPA, and consequently the APA, when it predetermines the result of its

environmental analysis. As the Ninth Circuit explained in Metcalf, “[i]t is highly

likely that because of the Federal Defendants’ prior written commitment . . . , the

EA was slanted in favor of finding that the . . . proposal would not significantly

affect the environment.” 214 F.3d at 1144; see also Int’l Snowmobile Mfrs.

Ass’n, 340 F. Supp. 2d at 1261 (“Given these definite statements . . . , it does not

seem that the [agency] could have issued any other rule . . . . [T]he issuance of

the FEIS, ROD and Final Rule were nothing more than pro forma compliance

with the requirements of NEPA.”).

A petitioner must meet a high standard to prove predetermination. We now

make explicit what was implicit in our previous decisions: predetermination

occurs only when an agency irreversibly and irretrievably commits itself to a plan

of action that is dependent upon the NEPA environmental analysis producing a

certain outcome, before the agency has completed that environmental

44
analysis—which of course is supposed to involve an objective, good faith inquiry

into the environmental consequences of the agency’s proposed action. See, e.g.,

Silverton Snowmobile Club, 433 F.3d at 781 n.2 (detecting no predetermination

because agency “had no preexisting agreement with any user group”); Lee, 354

F.3d at 1240 (concluding that no predetermination occurred, even though the U.S.

Air Force had entered into a series of agreements with the German Defense

Ministry, because those agreements either were not executed until after the

completion of the NEPA requirements or would not take effect until after the

completion of those requirements); Davis, 302 F.3d at 1112–13 (holding that

predetermination had occurred, when the consultant preparing the EA was

contractually obligated to reach a certain environmental analytic outcome, with

the endorsement of the agency).

Thus, predetermination is different in kind from mere “subjective

impartiality,” Envtl. Def. Fund, Inc., 470 F.2d at 296—which does not undermine

an agency’s ability to engage in the requisite hard look at environmental

consequences—even though subjective impartiality may under certain

circumstances involve something resembling predetermination and lead an agency

down the road to predetermination. This difference is highlighted by the stringent

standard that must be met in order for us to conclude that an agency violated

NEPA by predetermining the outcome of its environmental analysis—a

conclusion that we would not and should not reach lightly. In order for us to

45
conclude that an agency has engaged in predetermination, we must decide that the

agency has irreversibly and irretrievably committed itself to a plan of action that

is dependent upon the NEPA environmental analysis producing a certain outcome,

before the agency has completed that environmental analysis. We would not

hold, therefore, that predetermination was present simply because the agency’s

planning, or internal or external negotiations, seriously contemplated, or took into

account, the possibility that a particular environmental outcome would be the

result of its NEPA review of environmental effects. See Native Ecosys. Council

v. Dombeck, 304 F.3d 886, 892–93 (9th Cir. 2002) (“[W]e read the . . .

memorandum to indicate that the Forest Service contemplated waiving the road

density standard . . . . However, such contemplation does not amount to a NEPA

violation unless the . . . memorandum committed the Forest Service to the

amendments proposed. It did not.” (citations omitted)); cf. Fund for Animals v.

Norton, 281 F. Supp. 2d 209, 230 (D.D.C. 2003) (holding that plaintiffs would

likely succeed on their predetermination claim; noting that “[t]his is not a case in

which the agency merely contemplated the issuance of depredation permits prior

to embarking on an EA which ultimately recommended such a course of action”).

We observe that this clarification of our standard of proof for establishing

predetermination puts us on a similar path as the Ninth Circuit, 18 which would

18
To avoid any possible confusion, we note that our substantial
alignment with the Ninth Circuit is the product of our clarification of the import
(continued...)

46
hold that predetermination has occurred only when an agency has made “an

irreversible and irretrievable commitment of resources” based upon a particular

environmental outcome, prior to completing its requisite environmental analysis.

See Metcalf, 214 F.3d at 1143 (emphasis added). By way of illustration, in

Metcalf, federal agencies had “(1) prepare[d] an EA, (2) decide[d] that the . . .

proposal would not significantly affect the environment, and (3) issue[d] a

FONSI, but . . . [only] after already having signed two agreements binding them

to support the . . . proposal.” Id. at 1142 (emphasis added). The Ninth Circuit in

Metcalf held that the agencies had violated NEPA by making an “irreversible and

irretrievable commitment of resources” prior to completing the environmental

review. Id. at 1145; see also, e.g., id. at 1144 (“By the time the Federal

Defendants completed the final EA . . . , the die already had been cast. The ‘point

of commitment’ to this proposal had come and gone.”); accord Save the Yaak

Comm. v. Block, 840 F.2d 714, 717–19 (9th Cir. 1988) (holding that such an

irreversible and irretrievable commitment was present when construction

18
(...continued)
of our own case law. We do not adopt here the Ninth Circuit’s standard, as
articulated in Metcalf. For example, Metcalf speaks in terms of commitment of
“resources” and subsequent Ninth Circuit authority has suggested that an arguably
narrow construction of that term is appropriate. See WildWest Inst. v. Bull, 547
F.3d 1162, 1168 (9th Cir. 2008) (discussing Metcalf and noting that “[o]ur cases
have focused on the commitment of natural resources, not necessarily the
agency’s financial resources”). However, because we are applying our own
precedent, and not adopting the Ninth Circuit’s standard, we are not to any extent
bound by the Ninth Circuit’s interpretation of its standard, including the
interpretative analysis in WildWest Institute.

47
contracts were awarded prior to the completion of the EAs, and construction of

the road had begun by the time of the preparation of the biological assessment);

Fund for Animals, 281 F. Supp. 2d 229–30 (concluding that the plaintiffs

demonstrated a likelihood that they would succeed in proving that the agency had

failed to take a hard look under NEPA when, prior to completing the EA, the

agency had issued fourteen permits authorizing the killing of mute swans).

We also must identify the proper focus of the predetermination inquiry.

Specifically, we must determine what evidence this court will examine in

evaluating a predetermination claim. To support its claim of predetermination,

Forest Guardians relies on evidence outside of the NEPA analysis itself to prove

the FWS’s alleged bias. This evidence includes intra-agency comments on the

draft rule, agendas and minutes from meetings between the FWS and The

Peregrine Fund, e-mail correspondence within the FWS and between the FWS and

The Peregrine Fund, and the grant agreement between the FWS and The Peregrine

Fund. In other words, Forest Guardians’ argument does not oblige us, as in

Davis, to scrutinize the agency’s NEPA analysis for signs of bias.

Although the FWS rejects the idea that Forest Guardians’ evidence shows

predetermination, it more fundamentally contends that Forest Guardians cannot

properly rely on evidence beyond the environmental analysis itself. In advancing

this argument, the FWS would have us follow the Fourth Circuit’s approach in

National Audubon Society v. Department of the Navy, 422 F.3d 174, 198–99 (4th

48
Cir. 2005). In that case, the court declined to look at internal Navy e-mails and

other documents “to advance the theory that the Navy had irreversibly decided

[on its course of action] before it began its environmental impact analysis.” Id. at

198. The Fourth Circuit instead stated that a reviewing court “should generally

restrict its inquiry to the objective adequacy of the EIS . . . [and] should not

conduct far-flung investigations into the subjective intent of an agency.” Id. The

court explained that

[t]his rule is supported by common sense. Inquiries into
subjective intent in the NEPA context open a Pandora’s box
that courts should in most cases attempt to avoid.
Psychoanalyzing an agency’s intent could restrict the open
exchange of information within an agency, inhibit frank
deliberations, and reduce the incentive to memorialize ideas in
written form. It could also frustrate an agency’s ability to
change its mind or refocus its actions, the very effect that
NEPA was designed to encourage. See 40 C.F.R. § 1502.1
(“primary purpose” of an EIS “is to serve as an action-forcing
device to insure that the policies and goals defined in [NEPA]
are infused into the ongoing programs and actions of the
Federal Government”). Finally, most federal agencies consist
of numerous actors with varying levels of responsibility and
different objectives; discerning one subjective intent is a
speculative exercise at best.

Id. at 198–99 (second alteration in original). The court reasoned that “[w]here an

agency has merely engaged in post hoc rationalization, there will be evidence of

this in its failure to comprehensively investigate the environmental impact of its

actions and acknowledge their consequences.” Id. at 199.

We respectfully decline, however, to follow the Fourth Circuit’s approach

49
for several reasons. First, it is contrary to our precedent. In judging whether an

agency has impermissibly committed itself to a course of action before embarking

upon a NEPA analysis, we have previously looked to evidence outside of the

environmental analysis itself. Recall that, in Davis, this court attributed the

predetermination of private parties (who had contractually agreed to the issuance

of a FONSI and who had been hired by the federal agency to prepare the EA) to

the federal agency itself. 302 F.3d at 1112–13. In doing so, the Davis court

examined the minutes of a meeting and a memorandum and concluded that the

FONSI had been prepared prior to what was apparently nothing more than a pro

forma public opportunity to comment on the EA. Id. In Lee, this court similarly

analyzed the contents of several agreements between the U.S. Air Force and the

German Defense Ministry. 19 354 F.3d at 1240.

Second, we conclude that the Fourth Circuit’s restrictive approach does not

permit the predetermination inquiry to be conducted with sufficient analytic rigor.

19
Furthermore, we note that other courts have examined similar
evidence, including e-mails, letters, memoranda, meeting minutes, and statements
made at a press conference—as well as the agency’s issuance of permits and
entrance into binding contracts—to determine if an agency predetermined the
outcome or otherwise acted in bad faith in conducting the NEPA analysis. See,
e.g., WildWest Inst., 547 F.3d at 1168–69; Native Ecosys. Council, 304 F.3d at
892–93; Coal. Against a Raised Expressway, Inc. v. Dole, 835 F.2d 803, 807–08
(11th Cir. 1988); Envtl. Def. Fund, Inc. v. Corps of Eng’rs of the U.S. Army, 492
F.2d 1123, 1129 (5th Cir. 1974); W. Watersheds Project v. Bureau of Land Mgmt.,
552 F. Supp. 2d 1113, 1125–26 (D. Nev. 2008); Colo. Wild, Inc. v. U.S. Forest
Serv., 523 F. Supp. 2d 1213, 1230 (D. Colo. 2007); Int’l Snowmobile Mfrs. Ass’n,
340 F. Supp. 2d at 1260–61; Fund for Animals, 281 F. Supp. 2d at 229–30.

50
Specifically, we doubt the wisdom and efficacy of an approach that would limit

the focus of the predetermination inquiry to the environmental analysis alone.

That approach could fail to detect predetermination in cases where the agency has

irreversibly and irretrievably committed itself to a course of action, but where the

bias is not obvious from the face of the environmental analysis itself. We cannot

be confident that, in every instance, the bias will be evident from the NEPA

analysis. For example, even though the EA and FONSI in Metcalf were not

facially flawed, “[i]t [was] highly likely that because of the Federal Defendants’

prior written commitment . . . and concrete efforts . . . , the EA was slanted in

favor of finding that the . . . proposal would not significantly affect the

environment.” 214 F.3d at 1144. The purpose behind NEPA is to ensure that the

agency will only reach a decision on a proposed action after carefully considering

the environmental impacts of several alternative courses of action and after taking

public comment into account. Accordingly, irrespective of the facial regularity of

the agency’s NEPA analysis, we should not ignore relevant evidence that suggests

that the agency may have violated the procedures established by NEPA, thereby

contravening the statute’s overarching purpose.

We also need not be concerned that extending our review of relevant

evidence beyond the NEPA analysis would have the detrimental effects alluded to

by the Fourth Circuit on agency decisionmaking or the principled adjudication of

predetermination claims. That is because the evidence must meet the rigorous

51
standard of establishing that the agency has made “an irreversible and

irretrievable commitment.” Id. at 1143 (internal quotation marks omitted). Thus,

agency employees need not be afraid to conduct debates over e-mail because the

agency will not be found to have conducted a biased NEPA analysis unless those

communications fairly could be said to have the effect of binding the agency (as a

whole) to an irreversible and irretrievable commitment to a course of conduct

based upon a particular environmental outcome, thereby rendering any subsequent

environmental analysis biased and flawed. Furthermore, because of the rigorous

nature of the predetermination standard, not all voices will be accorded equal

significance. The relevant voices must be those who would be situated by virtue

of their positions to effectuate an irreversible and irretrievable commitment of the

agency regarding the matter at hand. Accordingly, the stray comments of a low-

level scientist or two—no matter how vigorously expressed—would be unlikely to

render fatally infirm the otherwise unbiased environmental analysis of an entire

agency. Therefore, we respectfully conclude that the Fourth Circuit’s concerns

about the detrimental effects on agency deliberations and the principled

adjudication of predetermination claims are not well-founded because the content

of the communications would have to amount to an irreversible and irretrievable

commitment of agency resources. In sum, we respectfully decline to follow the

Fourth Circuit’s approach, as explicated in National Audubon Society.

After reviewing the relevant record evidence in this case, we conclude that

52
there is no indication that the FWS made such an irreversible and irretrievable

commitment to the release of captive-bred Falcons as a 10(j) nonessential

experimental population. At most, the evidence demonstrates that the FWS had a

preferred alternative and that The Peregrine Fund shared that preference. The

record also reveals some internal disagreement among the FWS biologists on the

advisability and propriety of the 10(j) rule. We do not dispute that some of the

comments, particularly those in e-mails authored by one biologist, were

intemperate. 20 But the bottom line is that the evidence before us simply does not

20
The biologist wrote in a string of e-mails that the 10(j) rule was “a
done deal,” that the rule was proposed merely to placate The Peregrine Fund, and
that, because the FWS would lose a court challenge to the rule, “[i]n the long run,
[the head of The Peregrine Fund] probably needs to think about a Kentucky Fried
Falcon chain” because “there won’t be much else he can do with the captive bred
birds.” J.A. at 62. But no matter how inflammatory, an individual’s comments
remain immaterial to the predetermination analysis unless they (1) may fairly be
attributed to the agency, and (2) tend to reflect the agency’s irreversible and
irretrievable commitment to a course of action—in contemplation of a particular
environmental outcome—even before the requisite environmental analysis has
been completed. No tenable arguments could be advanced here to this effect
based upon the comments at issue.

For that same reason, we cannot find that an e-mail authored by a biologist
working for The Peregrine Fund, stating that the FWS “promised” the 10(j)
outcome, is enough to bind the FWS or prove that the FWS had in fact made an
irreversible and irretrievable commitment. There is no comparable evidence in
the record like that in International Snowmobile Manufacturers Ass’n, for
example, where the Assistant Secretary for Fish and Wildlife and Parks had
declared at a press conference that the agency was firmly committed to a course
of action (banning snowmobiles in Yellowstone National Park) before completing
its NEPA analysis. 340 F. Supp. 2d at 1259–61. In that case, the court concluded
that “it does not seem that the [agency] could have issued any other rule.” Id. at
1261.

53
rise to the level required for this court to conclude that the FWS engaged in

predetermination.

We specifically conclude that the grant agreement is not evidence of

predetermination. If Forest Guardians had been able to prove that the FWS and

The Peregrine Fund had entered into a binding contract firmly committing the

FWS to the 10(j) outcome before its NEPA analysis, we would be faced with a

similar set of circumstances to those in Metcalf and very likely would have

reached a different conclusion than we do here. However, we do not agree with

Forest Guardians’ argument that the grant agreement is such a contract. The grant

agreement, which the two parties entered into before the NEPA analysis was

completed, provides that the grant could be expanded upon the promulgation of

the 10(j) rule. If the rule were not promulgated, then the work by The Peregrine

Fund would be limited to activities such as research, captive breeding, and

“[c]ontact[ing] landowners in New Mexico with regard to the potential

establishment of an experimental nonessential 10(j) population.” J.A. at 462.

Forest Guardians contends that the provision allowing The Peregrine Fund

to contact New Mexico landowners should be interpreted to mean that the grant

“began funding work on a[n] experimental non-essential 10(j) population.” Aplt.

Opening Br. at 53. We do not share that interpretation. That provision does not

indicate that there was only one predetermined outcome. If the proposed rule was

not promulgated, a nonessential experimental population would still be possible

54
for the future and so landowner contact in New Mexico could later prove useful.

Thus, because the record contains no evidence that the FWS failed to take a hard

look at the environmental impacts of the 10(j) rule due to bias, we conclude that

the FWS did not act arbitrarily and capriciously in conducting its NEPA analysis.

III. CONCLUSION

For the foregoing reasons, we reject Forest Guardians’ challenge to the

FWS’s 10(j) rule, concluding that the FWS complied with the ESA, the APA, and

NEPA in promulgating the rule. We therefore AFFIRM the district court’s denial

of Forest Guardians’ petition for review of agency action.

55
08-2226, Forest Guardians v. U.S. Fish & Wildlife Service and the Peregrine
Fund

GORSUCH, J., concurring.

I am pleased to concur in the court’s opinion. I write to note only two

minor points.

First, under § 706 of the APA, an agency’s NEPA analysis of course may

not be arbitrary or capricious. As the majority notes, this court has previously

held that one way an agency can fail § 706’s test is if the agency “predecides” the

outcome of a NEPA analysis irreversibly and irretrievably. See Maj. Op. at 44.

In assessing Forest Guardians’ predetermination claim today, the court looks

beyond the four corners of the Fish and Wildlife Service’s environmental

assessment (“EA”) document to other evidence in the administrative record. In

doing so, however, the court does not endorse the practice of looking outside the

administrative record itself, at least absent “extremely limited circumstances,”

such as where a party first makes a predicate “‘strong showing of bad faith or

improper behavior.’” Citizens for Alternatives to Radioactive Dumping v. U.S.

Dep’t of Energy, 485 F.3d 1091, 1096 (10th Cir. 2007) (quoting Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), overruled on

other grounds by Califano v. Sanders, 430 U.S. 99 (1977)) (other internal

quotation marks omitted).

Second, one of our sister circuits seems to have suggested that our review

in cases like this one should be restricted further still, to the EA itself, and not
take account even of other materials in the administrative record. See Nat’l

Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 198-99 (4th Cir. 2005). The

majority suggests that we have previously rejected this approach in Davis v.

Mineta, 302 F.3d 1104 (10th Cir. 2002), and Lee v. U.S. Air Force, 354 F.3d 1229

(10th Cir. 2004). See Maj. Op. at 49-50. As it happens, though, Davis and Lee

did not analyze or resolve the question; in both cases, the parties and this court

simply proceeded on the premise that no legal impediment stood in the way of

examining the full administrative record when deciding a predetermination claim.

In these circumstances, the legal question posed by National Audubon remains an

open one in this circuit. See United States v. Romero, 491 F.3d 1173, 1177 (10th

Cir. 2007) (“Questions which merely lurk in the record, neither brought to the

attention of the court nor ruled upon, are not to be considered as having been so

decided as to constitute precedents.”) (quoting Webster v. Fall, 266 U.S. 507, 511

(1925)); cf. Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (“[S]ince we have

never squarely addressed the issue, and have at most assumed the applicability of

the Chapman standard on habeas, we are free to address the issue on the merits.”).

Neither is the resolution of the question essential to our decision today. This is

because, as the majority amply explains, Forest Guardians’ claim in this case fails

regardless whether we restrict our analysis to the objective adequacy of the Fish

and Wildlife Service’s EA (as the Service and National Audubon would have it)

or consider other administrative record materials beyond the EA itself (as Forest

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Guardians prefers). See Maj. Op. at 52-54.

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