Biodiversity Legal Foundation v. Babbitt

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 29 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

BIODIVERSITY LEGAL
FOUNDATION and MARIE ELLEN
MORRISSEY,

Plaintiffs-Appellants,
v. No. 97-1131

BRUCE BABBITT, in his official
capacity as Secretary of the Interior; and
MOLLIE BEATTIE, in her official
capacity as Director of the United States
Fish and Wildlife Service,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 95-S-2575)

Neal Levine of Earthlaw, Denver, Colorado for Plaintiffs-Appellants.

James C. Kilbourne (James F. Simon, Henry L. Solano, and Stephen D. Taylor of the
Office of the United States Attorney, and M. Alice Thurston and Mark A. Brown with
him on the brief), Department of Justice, Washington, D.C., for Defendants-Appellees.

Before KELLY and HENRY, Circuit Judges, and BRETT, Senior District Judge.1

The Honorable Thomas R. Brett, Senior District Judge for the Northern District of
1

Oklahoma, sitting by designation.
KELLY, Circuit Judge.

Plaintiffs-Appellants Marie Morrissey and the Biodiversity Legal Fund

(collectively “Biodiversity”) appeal from the district court’s grant of summary judgment

in favor of defendants-appellees Bruce Babbitt, Mollie Beattie, and the Fish and Wildlife

Service (collectively “the Service”). The district court held that the Service’s failure to

make a preliminary 90-day finding on the petition to list the Columbian sharp-tail grouse

and its reliance upon the 1997 Listing Priority Guidance (1997 LPG) to guide the

Service’s allocation of resources in meeting its listing obligations did not violate section

4(b)(3)(A) of the Endangered Species Act (ESA), 16 U.S.C. § 1533(b)(3)(A). Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

The facts of this case are undisputed. On March 14, 1995, Biodiversity filed a

petition with the Service to list the Columbian sharp-tailed grouse as an endangered

species. The Service began to review the petition upon receipt, but on April 10, 1995,

Congress passed a rider to an appropriations bill rescinding $ 1.5 million from the

Service’s 1995 listing budget and prohibiting the Service from spending previously

appropriated funds on final listings. See Emergency Supplemental Appropriations and

Rescissions for the Department of Defense to Preserve and Enhance Military Readiness

2
Act of 1995, Pub. L. No. 104-06, 109 Stat. 73, 86 (1995).2 Funding for the Service’s

1996 listing program was similarly limited by a number of resolutions which continued

the funding moratorium on final listing and critical habitat determinations. See 61 Fed.

Reg. 24723 (describing effect of continuing resolutions on listing program). According

to § 4(b)(3)(A) of the Endangered Species Act, a preliminary finding on petitions to list

species must be made within 90 days “to the maximum extent practicable.” 16 U.S.C. §

1533(b)(3)(A). The Service continued to work sporadically on the grouse petition during

this time, but made no 90-day finding.

The moratorium was lifted at the end of fiscal year 1996. See Omnibus

Consolidated Rescissions & Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat.

1321, 1321-159 (1996). As a result of the funding shortage, however, the Service was

confronted with over 240 species upon which final listing action was pending, as well as

several petitions for assessment of conservation status, pending petitions to list species,

and court orders directing the Service to take action under section 4 of the ESA. After

2
The rider provided in pertinent part:

Of the funds made available [for the Department of Interior’s fiscal year 1995]
(1) $1,500,000 are rescinded from the amounts available for making
determinations whether a species is a threatened or endangered species and whether
habitat is critical habitat under the Endangered Species Act . . .; and
(2) none of the remaining funds appropriated [for the Department of Interior’s
fiscal year 1995] may be made available for making a final determination that a species is
threatened or endangered or that habitat constitutes critical habitat . . . .

109 Stat. at 86.

3
public notice and comment the Service adopted a set of guidelines to prioritize the use of

funding remaining for fiscal year 1996. See 61 Fed. Reg. 64475-81 (Dec. 5, 1996). The

1997 Listing Priority Guidance (1997 LPG)3 supplements the Service’s 1983 guidelines,

see 48 Fed. Reg. 43098-43105 (Sept. 21, 1983), which allocate listing appropriations

based on species’ taxonomic distinctions and the magnitude and immediacy of threat

facing them. See id. at 43103-04. The 1997 LPG further prioritizes the allocation of

funding based on the type of listing action undertaken by the Service. Funds are allocated

to listing activities according to their relative placement in one of four tiers. Emergency

listing actions and the processing of final decisions on proposed listings are placed in

Tiers 1 and 2, receiving the highest priority for funding. See id. After a preliminary

review of petitions to determine whether an emergency listing action is warranted,

petitions to list, such as the grouse petition, are placed in Tier 3 along with issuance of

new proposed listings for candidate species. See 61 Fed. Reg. at 64479-80. All other

actions are placed in Tier 4 and given the lowest priority for funding. See id.

The Service allocates listing appropriations among its seven regional offices

according to the percentage of total proposed and candidate species for which the region

3
Although there is some confusion among the parties regarding the proper name of
the regulations which are being challenged, it is clear from the briefs and the record both
parties are referring to the Final LPG published at 61 Fed. Reg. 64475-81 (Dec. 5, 1996),
which is the “Final Listing Priority Guidance for Fiscal Year 1997.” For sake of clarity,
we refer to these regulations as the 1997 LPG, though Biodiversity’s briefs refer to them
as the 1996 LPG.

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is responsible. The region to which the grouse petition was assigned received the largest

allocation of the remaining 1996 funds, but also had a backlog of 111 proposed species to

list. The Service thus expected when it promulgated the 1997 LPG that it would not

complete all Tier 2 activities given the limited funding provided during fiscal year 1996

and that no Tier 3 activities would be undertaken.

After issuing a notice of intent to sue, Biodiversity filed suit on October 10, 1995,

seeking injunctive and declaratory relief under the ESA and the Administrative

Procedures Act (APA), see 5 U.S.C. §§ 701-706, to enforce the 90-day finding deadline

on the grouse petition. The parties filed cross-motions for summary judgment, and upon

review the district court adopted the magistrate’s recommendation to deny Biodiversity’s

motion and grant the Service’s cross-motion. See Aplt. App. at 6. Specifically, the

district court determined that the Service had adequately demonstrated impracticability

due to the funding moratorium, and that the Service accordingly acted within its statutory

discretion in promulgating the 1997 LPG. See Aplt. App. at 5-6.

The 1997 LPG remains in effect until the Final LPG for fiscal year 1998 is

published. See 62 Fed. Reg. 55268-69 (Oct. 23, 1997); 63 Fed. Reg. 10931 (Mar. 5,

1998). To date, no 90-day finding has been issued on the grouse petition, and it is

undisputed that the Service could make such a finding within 2 to 3 weeks at a cost of

approximately $4,000 to $7,000. See Aplt. App. at 23. According to the Service, it has

failed to make a 90-day finding on the grouse petition due to inadequate funding. See

5
Aplt. App. at 32.

Discussion

We review the district court’s grant of summary judgment de novo, applying the

same summary judgment standard used by the district court. See Fed. R. Civ. P. 56(c);

Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1182 (10th Cir. 1995). Where, as here, the

facts are largely undisputed, our duty is simply to discern whether the moving party --

here, the Service -- is entitled to judgment as a matter of law. See id. Accordingly, in

examining whether the Service’s actions violate the ESA, we rely on the standards of

review provided in the APA. See Sierra Club v. Glickman, 67 F.3d 90, 96 (5th Cir.

1995); Village of False Pass v. Clark, 733 F.2d 605, 609 (9th Cir. 1984). Biodiversity is

entitled to relief if the Service’s failure to make a 90-day finding on the grouse petition

constitutes “agency action unlawfully withheld.” See 5 U.S.C. § 706(1); Mt. Emmons

Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir. 1997); Carpet, Linoleum &

Resilient Tile Layers Local Union No. 419 v. Brown, 656 F.2d 564, 566-67 (10th Cir.

1981) (“[S]ection 706(1) is a source of injunctive relief to remedy an arbitrary or

capricious delay or denial of agency action.”). Under the APA, administrative decisions

involving the ESA are upheld unless they are “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Village

of False Pass, 733 F.2d at 609-10, or if they are “in excess of statutory . . . authority.” 5

U.S.C. § 706(2)(C).

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 Although not explicitly stated in its brief, Biodiversity appears to challenge the

validity of the 1997 LPG in that it directly conflicts with or is an unreasonable

interpretation of section 4 of the ESA. Thus, our review of the district court’s grant of

summary judgment in favor of the Service focuses on whether the Service’s promulgation

of, and reliance on, the 1997 LPG are in violation of section 4 of the ESA, 16 U.S.C. §

1533(b)(3)(A), and whether the Service’s resulting failure to make a 90-day finding on

the grouse petition is agency action unlawfully withheld.

At the outset, we construe Biodiversity’s argument that the 1997 LPG “finds

absolutely no support in the ESA” as a challenge to the Service’s statutory authority to

promulgate the 1997 LPG. See Reply Brief at 3-4; Aplt. Brief at 17-19. Section 4(h) of

the ESA, however, allows the Service to promulgate “agency guidelines to insure the

purposes of [section 4] are achieved efficiently and effectively,” including “ranking

system[s] to assist in the identification of species that should receive priority review . . . .”

16 U.S.C. § 1533(h). Though Biodiversity argues this section only allows prioritization

of species “based on the magnitude and immediacy of the threat to the species,” Reply

Brief at 4, the plain language of section 4(h)(3) indicates the Service has the authority to

promulgate any regulations which may “assist in the identification of species that should

receive priority review,” as long as such regulations effectively achieve the purposes of

section 4. 16 U.S.C. § 1533(h)(3). Thus, section 4(h)(3) provides the Service with the

authority to promulgate the 1997 LPG, and to the extent Biodiversity’s argument

7
challenges that authority, we reject it.

Biodiversity’s chief complaint, as we read the briefs, is that the 1997 LPG, which

funds actions for final listing of pending petitions to list before funding non-emergency

petitions to list, is invalid because it conflicts with the statutory requirements of the ESA,

specifically section 4(b)(3)(A). It provides:

[t]o the maximum extent practicable, within 90 days after receiving the petition of
an interested person . . . to add a species to [the endangered or threatened species
list], the Secretary shall make a finding as to whether the petition presents
substantial scientific or commercial information indicating that the petitioned
action may be warranted . . . . The Secretary shall promptly publish each finding
made under this subparagraph in the Federal Register.

16 U.S.C. § 1533(b)(3)(A). The Service and Biodiversity both appear to agree that the

“maximum extent practicable” language contained in section 4(b)(3)(A) provides an

exception to what would otherwise be a mandatory requirement. See Aplt. Brief at 1;

Aple. Brief at 28-29. Further, both parties agree that this language limits the agency’s

discretion, requiring the Service to make 90-day findings where practicable. See Aplt.

Brief at 14-15; Aple. Brief at 28-29.

Beyond this, however, the parties’ positions diverge. Biodiversity asserts that the

“maximum extent practicable” language clearly limits the Service’s discretion to refrain

from acting on a petition to list only if the Service can establish it is impracticable to act

on that particular petition to list. See Aplt. Brief at 11-16. Accordingly, Biodiversity

claims that the 1997 LPG, which ranks findings on petitions to list below emergency and

final listings based on the Service’s need to allocate limited resources, exceeds the

8
Service’s statutory authority or, alternatively, is an unreasonable interpretation of section

4. See Aplt. Brief at 16-21. Conversely, the Service argues Congress envisioned a

broader meaning of impracticability in section 4(b)(3)(A), encompassing limitations

placed on the Service by budgetary shortfalls such as the one imposed by the funding

moratoria. See Aple. Brief at 29-33. Thus, the Service considers the 1997 LPG a

reasonable and prudent exercise of the discretion Congress provided in section 4 to

implement the Act generally and section 4 specifically.

At the outset, we note “Congress delegated broad administrative and interpretive

powers to the Secretary” when it enacted the ESA. See Babbitt v. Sweet Home Chapter

of Communities for a Great Oregon, 115 S. Ct. 2407, 2418 (1995) (citing 16 U.S.C. §§

1533, 1540(f)). Although the Service “must give effect to the unambiguously expressed

intent of Congress,” courts must defer to the Service’s interpretation of the ESA if

Congressional intent is ambiguous or nonexistent and the Service’s construction of the

statute is a permissible one. See Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842-43 (1984). A challenge to an agency construction of a

statutory provision must fail if, in light of Congress’s ambiguity or silence, the agency’s

action “is a reasonable choice.” Id. at 866.

We first determine whether Congress has given specific meaning to section

4(b)(3)(A)’s requirement that petitions to list be acted on within 90 days “to the maximum

extent practicable.” See id. at 842-43. In light of the statutory language and

9
Biodiversity’s previous concession, we reject any suggestion that section 4(b)(3)(A)

imposes a mandatory, nondiscretionary duty on the Service to act on new petitions to list

within 90 days. See Aplt. Brief at 11-12, 19-21; Reply Brief at 2. Though Congress’

1982 amendments to the ESA were enacted to force the Service to act more quickly on

petitions to list, see H.R. Conf. Rep. No. 97-835, reprinted in 1982 U.S.C.C.A.N. 2860,

2861-62, the language of section 4(b)(3)(a), which Biodiversity admits provides at least a

“limited exception” to the 90-day time limit, controls. See Aplt. Brief at 12; Robinson v.

Shell Oil Co., 70 F.3d 325, 328 (4th Cir. 1995) (“Courts are charged with the duty to

apply the law that Congress enacted.”).

We look first to the statute to determine the exception’s scope. Since Congress did

not define or otherwise explain the meaning of the facially ambiguous phrase “maximum

extent practicable” within the statute, we assume Congress intended the words to be given

their ordinary meaning, which we may discover through the use of dictionaries. See

United States v. LaBonte, 117 S. Ct. 1673, 1677 (1997). “Practicable is . . . that which is

performable, feasible, [or] possible. . . .” Black’s Law Dictionary 1172 (6th ed. 1991);

see also Webster’s Ninth New Collegiate Dictionary 923 (defining “practicable” as that

which is “possible to practice or perform: feasible”). “Maximum” is defined as “the

highest or greatest amount, quality, value or degree.” Black’s Law Dictionary at 979; see

also Webster’s Ninth New Collegiate Dictionary at 735 (defining “maximum” as “the

greatest quantity or value attainable”). Based on these definitions, the phrase “to the

10
maximum extent practicable” “imposes a clear duty on the agency to fulfill the statutory

command to the extent that it is feasible or possible.” Fund for Animals v. Babbitt, 903

F. Supp. 96, 107 (D.D.C. 1995) (construing same language in another subsection of the

ESA).

Though the ordinary language of the statute speaks in general terms of the greatest

extent feasible or possible, the phrase remains ambiguous because neither the statutory

language nor its ordinary meaning specifies the circumstances under which the Service

may forego the 90-day deadline. Thus, we turn to legislative history to divine Congress’

intent to control the Service’s discretion, if any such intent exists. See Chevron, 467 U.S.

at 851-53. Both parties argue that the following discussion of the practicability language

of section 4(b)(3)(A) contained in a House Conference Report supports their construction

of the statute:

The phrase “to the maximum extent practicable” addresses the concerns that a
large influx of petitions coupled with an absolute requirement to act within 90 days
would force the devotion of staff resources to petitions and deprive the Secretary
of the use of those resources to list a species that might be in greater need of
protection. The phrase is not intended to allow the Secretary to delay commencing
the rulemaking process for any reason other than that the existence of pending and
imminent proposals to list species subject to a greater degree of threat would make
allocation of resources to such a petition unwise. The listing agencies should
utilize a scientifically based priority system to list and delist species, subspecies
and populations based on the degree of threat, and proceed in an efficient and
timely manner.

H. Conf. Rep. No. 97-835, at 21 (1982), reproduced in 1982 U.S.C.C.A.N. 2807, 2860-62

(emphasis added). Biodiversity argues this passage indicates that only actions pertaining

11
to “species subject to a greater degree of threat” may excuse noncompliance with the 90-

day finding deadline, and that the Service must accordingly make an individualized

showing that the species in Tier 2 awaiting final listings are more imperilled than the

grouse. See Aplt. Brief at 13-14. Conversely, the Service argues the passage’s references

to the allocation of resources to species most in need supports a broader reading of the

statutory language, allowing the Service to prioritize its actions according to biological

need when funding and manpower are limited. See Aple. Brief at 30.

It is telling that both parties rely on the same passage to support such widely

divergent meanings of the statute, and we decline to choose between them, as we believe

the only thing clear about the statutory provision before us is its ambiguity. Although

there is “no errorless test” for recognizing ambiguity, see United States v. Turkette, 452

U.S. 576, 580 (1981), where the legislative history of an admittedly ambiguous statutory

provision “is scant and capable of differing interpretations” we are not inclined to impart

meaning where Congress fails to do so itself. See Miller v. Commissioner, 836 F.2d

1274, 1282 (10th Cir. 1988). Even if the legislative history were clear, we are not

convinced “Congress has . . . directly addressed the precise question at issue.” Chevron,

467 U.S. at 843. The legislative history nowhere suggests Congress explicitly considered

the effect of a budgetary shortfall; rather, Congress’ concern was that “a large influx of

petitions” might divert resources from other, more pressing listing activities if the

deadline for 90-day substantial findings was mandatory. 1982 U.S.C.C.A.N. at 2862.

12
We are not inclined to expand Congress’ specific concerns relating to the Service’s

workload to encompass budgetary shortfalls which were not envisioned by Congress

when it enacted the statutory provision. Finally, even if the legislative history means

what Biodiversity says it means, we cannot square such a narrow reading with the broad

language Congress employs in the statute. To so limit the operation of section 4(b)(3)(A)

would require “unequivocal evidence” of such intent, which this slender reed of

legislative history does not provide. See Miller, 836 F.2d at 1284-85. Thus, the question

whether the Service may excuse its compliance with the 90-day finding provision because

of limited funding is a gap left by Congress which the Service may fill, and we will

disturb the Service’s interpretation only if it is inconsistent with the statute. See Chevron,

467 U.S. at 842.

To the extent this snippet of legislative history illuminates the statutory language,

then, it only helps us to determine whether the Service’s interpretation of section

4(b)(3)(A) contained in the 1997 LPG is a reasonable one, in light of the statutory

language, legislative history, and legislative purpose. See generally Chevron, 467 U.S. at

842-43; INS v. Cardoza-Fonseca, 480 U.S. 421, 443-450 (1987). We previously noted

that the statutory language provides the Service with discretion to defer making a 90-day

finding on an initial petition to list, but limits the Service’s discretion only in terms of

feasibility or possibility. The scant legislative history supplements section 4(b)(3)(A)’s

language only to note that the Service may delay the commencement of rulemaking if it

13
determines “the existence of pending and imminent proposals to list species subject to a

greater degree of threat would make allocation of resources to such a petition unwise.”

1982 U.S.C.C.A.N. at 2862. Notwithstanding Biodiversity’s assertions to the contrary,

the legislative history nowhere intimates that the Service’s prioritization or allocation of

resources to “species subject to a greater degree of threat” must be made on an

individualized, species by species basis, nor do the authorities cited by Biodiversity

support such a restricted reading of section 4(b)(3)(a). See Marbled Murrelet v. Babbitt,

918 F. Supp 318, 322 (W.D. Wash. 1996) (interpreting provision of Pub. L. No. 104-6

requiring compliance with court orders issued under ESA unless “making of the

determination is made impracticable” by rescission of funding in preceding sentence);

BLF v. Babbitt, CA 96-1156-JLG (D.D.C. Mar. 27, 1997) (relying on Marbled Murrelet

and failing to analyze section 4(b)(3)(A)).

The 1997 LPG’s prioritization of final listing activities above processing initial

petitions to list is consistent with the language and legislative history of section

4(b)(3)(A) and the broader purpose of the ESA. Both the language and legislative history

of section 4(b)(3)(A) reflect Congress’s recognition that the Service must retain the

ability to order and prioritize its work, particularly when provided limited resources, in

order to adequately fulfill its mission. By enacting the ESA and entrusting its

administration to the Service, Congress recognized that “the task of defining and listing

endangered and threatened species requires an expertise and attention to detail that

14
exceeds the normal province of Congress.” Sweet Home Chapter, 115 S. Ct. at 2418.

With the limited proviso that the Service “utilize a scientifically based priority system to

list and delist species, subspecies and populations based on the degree of threat,” 1982

U.S.C.C.A.N. at 2862; see 16 U.S.C. § 1533(b)(1)(A), Congress left to the Service the

difficult task of ordering the Service’s work to both fulfill the purpose of the ESA and

comply with the statute’s non-discretionary mandates. See, e.g., 16 U.S.C.

§ 1533(b)(3)(B) (requiring finding that a petitioned action is warranted, warranted but

precluded, or not warranted “[w]ithin 12 months after receiving a petition that is found . .

. to present substantial information indicating that the petitioned action may be warranted

. . . .”); 16 U.S.C. § 1533(b)(6)(A) (requiring final determination of endangered or

threatened status or critical habitat “[w]ithin the one-year period beginning on the date on

which general notice is published . . . regarding a proposed regulation” under

§ 1533(5)(A)(I)). By allowing the Service to act within statutory guidelines “to the

maximum extent practicable” in limited circumstances, Congress implicitly recognized

that at times mandatory listing actions would (and should) be given a higher priority than

other listing actions. See, e.g., 16 U.S.C. §§ 1533(b)(3)(A), (b)(3)(D)(I). Thus, by

inserting the “maximum extent practicable” language into section 4(b)(3)(A), Congress

provided the Service the discretion to refrain from acting on initial petitions to list if it

determined that “pending and imminent proposals to list species” in greater biological

danger should be given greater priority. 1982 U.S.C.C.A.N. at 2862.

15
 Just as important, Congress recognized the Service’s actions do not take place in a

vacuum. Agency actions are driven (and constrained) as much by agency funding as by

agency policy and statutory directive. The legislative history of section 4(b)(3)(A)

envisioned that at times funds might be diverted from the earliest stages of the listing

process if the Service determines, considering listing actions already commenced and

pending, that allocation of resources to such listing activities would be “unwise.” 1982

U.S.C.C.A.N. at 2862. Notably, the wisdom of allocating resources to other “pending and

imminent proposals to list” affecting species in greater biological danger is implicitly left

within the sound discretion of the Secretary, and thus, the Service. See id.

Given Congress’s substantial deference to the Service’s prioritization of initial

listing actions based on the relative degree of threat facing species for which the listing

process has already been invoked and the wisdom of allocating resources to those species,

the 1997 LPG is eminently reasonable. Though Biodiversity implies the 1997 LPG

allocates funds primarily on the basis of the stage of listing action undertaken, see Aplt.

Brief at 18-19, the 1997 LPG undeniably assesses biological risk as well. The Service

notes in the 1997 LPG that “[t]he vast majority of the unresolved proposed species face

high-magnitude threats,” and that the 41 proposed species not facing imminent threat are

included in multi-species packages with species facing imminent threat. 61 Fed. Reg. at

64478-79. Recognizing that “only listed species receive the full conservation benefits

and substantive protections of the Act,” 61 Fed. Reg. at 24722, 24725; see 16 U.S.C. §

16
1533(d), (f), the Service decided that handling emergency petitions and resolving the

listing status of the large number of outstanding proposed listings created by the funding

moratoria would be the most conservation-effective use of the limited funds available.

See 61 Fed. Reg. at 64479. Also, the Service reasoned that deferring initiation of the

rulemaking process would minimize the cost of issuing final listings, as the Service could

act on those species while the data was still “fresh,” and would minimize the backlog of

proposed species awaiting final listing. See id. Finally, under the 1997 LPG, the Service

conducts an initial screening of all petitions received, and if the Service determines

emergency listing is warranted, the petition is elevated to Tier 1 status. See id. Thus,

absent a petition to list which warrants emergency action, the 1997 LPG allows the

Service to allocate its resources to pending petitions to list species which face high-

magnitude threats, an action completely consistent with the language and intent of section

4(b)(3)(A).

We find unpersuasive Biodiversity’s suggestion that the 1997 LPG’s priority

system supplants the mandatory statutory deadlines for listing actions contained in section

4(b) of the ESA. See, e.g., 16 U.S.C. § 1533(b)(3)(B), (C)(I). We note that the question

of the 1997 LPG’s validity where a violation of a mandatory provision of the ESA is

alleged is not before us. Given the posture of the case, our review is limited to assessing

whether the 1997 LPG is a reasonable interpretation of section 4(b)(3)(A) in light of the

entire statutory scheme, including section 4(b)(3) generally.

17
 The 1997 LPG nowhere expressly conflicts with any provision of section 4(b)(3).

Nor is the 1997 LPG inconsistent with section 4(b)(3) generally; as we noted before, both

section 4 of the ESA and the 1997 LPG give higher priority to final decisions on proposed

listings than to 90-day findings on petitions to list. Similarly, as we held before, the 1997

LPG is entirely consistent with the language and legislative history of section 4(b)(3)(A),

which is the only statutory “deadline” Biodiversity specifically asserts the Service has

violated. See Aplt. Brief at 19-21. Through the 1997 LPG, the Service furthers the

purpose of the ESA by allocating its limited resources to those species in the greatest

danger of extinction to move those species closer to the greatest protection the ESA can

provide -- “endangered” status. See 16 U.S.C. § 1532(6).

We recognize Biodiversity’s concern that policies embodied in the 1997 LPG do

not further the conservation interests of all species facing biological threat. Biodiversity’s

disagreement with the Service’s policy choice is understandable, as is its obvious

dissatisfaction with Congress’s funding of conservation efforts under the ESA. As a

reviewing court, however, our job is not to assess the wisdom of policy choices. See

Chevron, 467 U.S. at 866. The agency’s interpretation of section 4(b)(3)(A) being

reasonable, Biodiversity’s complaints are better addressed to Congress.

We thus hold that the Service’s implementation of and adherence to the 1997 LPG

are based on a reasonable construction of section 4(b)(3)(A), are entitled to deference,

and support the district court’s grant of summary judgment. We need not reach the

18
question of what relief is proper for violations of the ESA.

AFFIRMED.

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