United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2000 Decided June 16, 2000
No. 99-5313
Southwest Center for Biological Diversity, et al.,
Appellees
v.
Bruce Babbitt and
Jamie Rappaport Clark, Director,
U.S. Fish and Wildlife Service,
Appellants
Appeal from the United States District Court
for the District of Columbia
(No. 98cv934)
Andrew C. Mergen, Attorney, United States Department of
Justice, argued the cause for appellants. With him on the
briefs were Lois J. Schiffer, Assistant Attorney General, and
James C. Kilbourne, Attorney. Lisa E. Jones and Elizabeth
A. Peterson, Attorneys, entered appearances.
Katherine A. Meyer argued the cause for appellees. With
her on the brief was Eric R. Glitzenstein.
Before: Edwards, Chief Judge, Randolph and Rogers,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: The only issue raised on appeal in
this case is whether the Endangered Species Act ("Act")
requires the Fish and Wildlife Service to conduct an on-site
population count of birds when the currently available data
are sparse and calculations of a bird species population must
of necessity be based on estimates. The Act provides that
the Secretary of the Interior must make decisions whether to
list a species as endangered or threatened "solely on the basis
of the best scientific and commercial data available to
him...." 16 U.S.C. s 1533(b)(1)(A) (1994). Appellees, the
Southwest Center for Biological Diversity, et al., ("Center"),
argued below that the best available evidence demonstrates
that the Fish and Wildlife Service should list the Queen
Charlotte goshawk as a threatened or endangered species
under 16 U.S.C. s 1533. Appellants, Bruce Babbitt, et al.,
("Government") countered that the data did not compel such
a listing. The principal dispute between the parties before
the District Court was over what to make of the best avail-
able data, not whether such data existed. The District Court,
however, sidestepped the parties' real dispute and concluded
instead that the best available data simply was not good
enough.
Indeed, instead of resolving the parties' dispute on the
basis of the best available data in the record, the District
Court issued an order remanding the case back to the Fish
and Wildlife Service with instructions to count the goshawk
population. See Southwest Ctr. for Biological Diversity v.
Babbitt, Civ. No. 98-934, Order (D.D.C. July 20, 1999) ("Or-
der"), reprinted in Joint Appendix ("J.A.") 1973. Appellants
now challenge this order, claiming that the District Court's
decision is completely at odds with the statute. We agree.
The statute provides that the Secretary's decision must be
made "solely on the basis of the best scientific and commer-
cial data available to him." Therefore, on the record at hand,
the District Court was without authority to order the Secre-
tary to conduct an independent population count of the birds.
Accordingly, we reverse the District Court's order, and we
remand the case to the District Court for proper consider-
ation of the parties' positions in light of the Act and an
assessment of the available evidence.
I. FACTS
On May 9, 1994, the Southwest Center for Biological Diver-
sity filed a petition requesting that the Queen Charlotte
goshawks, which are a "large, but rarely-seen" subspecies of
hawks, be listed as threatened or endangered under the Act.
Southwest Ctr. for Biological Diversity v. Babbitt, 939
F. Supp. 49, 50 (D.D.C. 1996); see 16 U.S.C. s 1533(b)(3)(A)
(1994). On May 19, 1995, the Fish and Wildlife Service found
that, based on the best available scientific and commercial
evidence, no listing was warranted. See Babbitt, 939 F. Supp.
at 51. This initial decision was based on the Fish and
Wildlife Service's conclusion that the Forest Service would
address land management options to ensure goshawk habitat
conservation. The Center challenged this decision, and, on
September 25, 1996, the District Court granted a summary
judgment in favor of the Center, finding that the Secretary
could not rely on the Forest Service's possible future actions
"as an excuse for not making a determination based on the
existing record." Id. at 52.
On remand, the Fish and Wildlife Service once again
declined to list the Queen Charlotte goshawk as a threatened
or endangered species, and the Center once again challenged
the agency's determination. In a July 9, 1999 hearing before
the District Court, the Government argued that its sole
obligation under the Endangered Species Act is to consider
and act on the best available data, which the Government
claimed it had done. The District Court persisted, however,
in suggesting that a population count was necessary. See,
e.g., Trial Tr. at 2-3, reprinted in J.A. 1913-14. The trial
judge could not be moved from this position, not even by
plaintiffs' acknowledgment that the District Court was re-
quired to assess the parties' positions in light of the best
available evidence, not a population count. Following argu-
ment by the parties, the District Court issued an opinion on
July 20, 1999, remanding the case to the Fish and Wildlife
Service "for a more reliable determination of the Queen
Charlotte goshawk population...." Order at 3, reprinted in
J.A. 1975. This appeal followed.
II. ANALYSIS
On the record before us, it is clear that the District Court
exceeded its authority in ordering the Government to conduct
a population count of the goshawk species. 16 U.S.C.
s 1533(a)(1) instructs the Secretary to
determine whether any species is an endangered species
or a threatened species because of any of the following
factors:
(A) the present or threatened destruction, modifica-
tion, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scien-
tific or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms;
or
(E) other natural or manmade factors affecting its
continued existence.
16 U.S.C. s 1533(a)(1) (1994). The Secretary is to make such
a determination "solely on the basis of the best scientific and
commercial data available to him...." 16 U.S.C.
s 1533(b)(1)(A). Read together, the two statutory provisions
require the Secretary to list a species as endangered or
threatened if, based solely on the best available data, any of
s 1533(a)(1)'s five factors are sufficiently implicated. The
"best available data" requirement makes it clear that the
Secretary has no obligation to conduct independent studies.
As we noted in City of Las Vegas v. Lujan, 891 F.2d 927, 933
(D.C. Cir. 1989), in the context of emergency listings under 16
U.S.C. s 1533(b)(7), 16 U.S.C. s 1533(b)(1)(A) "merely pro-
hibits the Secretary from disregarding available scientific
evidence that is in some way better than the evidence he
relies on. Even if the available scientific and commercial data
were quite inconclusive, he may--indeed must--still rely on it
at that stage."
Appellees do not claim--for good reason, we think-that the
statute's reference to "best scientific data available" requires
the Secretary to find and consider any information that is
arguably susceptible to discovery. In other words, appellees
never have contended in this case that the Government is
obliged to conduct an on-site population count of the goshawk.
And appellees never have contended that the Secretary acted
on the basis of no data. Rather, appellees have argued that
the best available scientific data in this record demonstrate
that the goshawk is already on the verge of extinction due to
low population estimates and "some 'natural or manmade
factors affecting its continued existence.' " Appellees Br. at
20 (quoting 16 U.S.C. s 1533(a)(1)(E)). This is the issue that
properly was before the District Court, and this is the issue
that should have been decided below.
The trial judge, however, ignored the statute, disregarded
the parties' arguments, and determined instead that, because
he found the available evidence inconclusive, the Secretary
was obligated to find better data. The Government forth-
rightly concedes that "the district court's view has a superfi-
cial appeal--certainly the [Fish and Wildlife Service] would
like to know how many [Queen Charlotte] goshawks there
are...." Reply Br. at 3. But, as the Government contends
(with no real contest from appellees), this superficial appeal
cannot circumvent the statute's clear wording: The Secretary
must make his decision as to whether to list a species as
threatened or endangered "solely on the basis of the best
scientific and commercial data available to him...." 16
U.S.C. s 1533(b)(1)(A); Reply Br. at 3 ("[T]he court's view is
at odds with both the practical realities of endangered species
work and the governing legal regime."). The Secretary
argued below that the best available evidence supports the
Government's decision not to list the goshawk, while the
Center argued that the available evidence supports the oppo-
site view. The District Court's responsibility was to assess
the evidence and resolve the parties' dispute. The court's
decision to sidestep this responsibility by imposing an obli-
gation upon the Secretary to find better data was error.
III. CONCLUSION
For the foregoing reasons, we reverse the District Court's
decision to remand the case to the Fish and Wildlife Service,
and we remand the case to the District Court for consider-
ation of the parties' positions in light of the Endangered
Species Act and an assessment of the available evidence.