National Ass'n of Home Builders v. United States Fish & Wildlife Service

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2015 Decided May 26, 2015

No. 14-5121

NATIONAL ASSOCIATION OF HOME BUILDERS, ET AL.,
APPELLANTS

v.

UNITED STATES FISH AND WILDLIFE SERVICE AND SALLY
JEWELL, IN HER OFICIAL CAPACITY AS SECRETARY, U.S.
DEPARTMENT OF THE INTERIOR,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-02013)

Rafe Petersen argued the cause and filed the briefs for
appellant.

Nicholas A. DiMascio, Attorney, U.S. Department of
Justice, argued the cause for appellees.
With him on the brief were John C. Cruden, Assistant
Attorney General, and Joan M. Pepin, Attorney.

Before: BROWN, SRINIVASAN and PILLARD, Circuit
Judges.
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BROWN, Circuit Judge: Four associations challenge
consent decrees that require the U.S. Fish and Wildlife
Service to determine, in accordance with a settlement-defined
schedule for action, whether 251 species should be listed as
endangered or threatened. Because the associations lack
standing to raise their challenge, we affirm the district court’s
dismissal.

I

Under the Endangered Species Act (“ESA” or “Act”), the
public may petition the U.S. Fish and Wildlife Service
(“Service”) to list a particular species as endangered or
threatened. The Service is required to determine, within
twelve months, if listing is (1) not warranted, (2) warranted,
or (3) warranted-but-precluded. 16 U.S.C. § 1533(b)(3)(B).
A warranted-but-precluded determination allows the Service
to defer action on a candidate species in order to focus agency
resources on higher priority determinations. The Service
must monitor precluded candidate species and annually revisit
the determination. On revisiting, the Service may continue to
identify the species as precluded. See id. § 1533(b)(3)(C).

“[T]he number of warranted-but-precluded findings has
outpaced the number of listings, [and] the backlog of
[precluded] candidate species had grown to 251 as of 2010.”
Nat’l Ass’n of Home Builders v. U.S. Fish & Wildlife Serv., 34
F. Supp. 3d 50, 54 (D.D.C. 2014). Two environmental groups
brought suits seeking “to compel the . . . [agency] to comply
with deadlines set forth in the Endangered Species Act.” In re
Endangered Species Act Section 4 Deadline Litig.-MDL No.
2165, 704 F.3d 972, 974 (D.C. Cir. 2013). Under the terms of
subsequent settlements, the Service must meet strict deadlines
for submitting either a warranted or not-warranted finding for
 3
all 251 candidate species. The Service maintains discretion
regarding the substance of each listing determination.

Appellants, four membership associations involved in
building and developing land, filed suit under the APA and
the ESA’s citizen-suit provision, 16 U.S.C. § 1540(g), seeking
to set aside the consent decrees implementing the Service’s
settlements. The district court granted the Service’s motion to
dismiss for lack of standing. Our review is de novo.
LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011).

II

As we have noted, the practical effect of the Service’s
heavy reliance on warranted-but-precluded determinations
was an “average delay in candidate species listings” of more
than ten years. Section 4 Deadline Litig., 704 F.3d at 975.
Appellants’ members were apparently able to exploit this
leisurely pace to seek cooperative solutions to the problem of
habitat destruction and thus ameliorate the impact of the ESA
on their commercial activities. But from the
environmentalists’ perspective, going slow was a perversion
of the Act. Soon after the ESA became law, the Supreme
Court recognized that “Congress intended endangered species
to be afforded the highest of priorities,” and “[t]he plain intent
of Congress in enacting th[e] statute was to halt and reverse
the trend toward species extinction, whatever the cost.” Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 174, 184 (1978). And the
1982 amendments, which added the warranted-but-precluded
procedures, were designed to force the Service to pick up the
pace. The consent decrees acknowledge this core purpose.

Appellants assert procedural injuries based on loss of
opportunity to comment at the warranted-but-precluded stage,
withdrawal of the warranted-but-precluded classification, and
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acceleration of final listing determinations. See generally Ctr.
for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157
(D.C. Cir. 2005) (relaxing certain standing requirements in
cases of procedural injury). These theories of procedural
harm are foreclosed by binding precedent from our Circuit.

We have previously held there is no procedural right to
comment at the warranted-but-precluded stage. Section 4
Deadline Litig., 704 F.3d at 979. There may be benefit in
information obtained through comments submitted after
species are classified as precluded, but “neither the ESA nor
the implementing regulations require the Service to invite
comment when [] it makes a warranted-but-precluded
finding.” Id. Appellants likewise have no procedural right
against withdrawal of the warranted-but-precluded status or
the acceleration of listing determinations. Appellants identify
no plausible statutory basis for such rights and fail to show
that the procedures are “designed to protect some threatened
concrete interest of [theirs] that is the ultimate basis of [their]
claim of standing.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 573 n.8 (1992); Section 4 Deadline Litig., 704 F.3d at
978–79 (the only purpose of the warranted-but-precluded
provisions is to allow the Service to delay a rulemaking to
focus resources on other species facing greater threats). 1 In

1
Appellants argue the procedures need not be designed to protect
their members’ interests because suit was brought under the ESA’s
citizen-suit provision, as well as the APA, thus negating the APA’s
zone-of-interest test. Any negation of the APA’s zone-of-interest
test is beside the point. Appellants must still satisfy the
“irreducible constitutional minimum of [Article III] standing,”
Lujan, 504 U.S. at 560, and “[t]he grant of a procedural right cannot
serve as the basis for Article III standing unless the procedures in
question are designed to protect some threatened concrete interest
of [the plaintiff] that is the ultimate basis of his standing.” Fund
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practice, prolonged delay of final listing decisions may have
benefited Appellants’ members’ interests, but the procedures
at issue are not designed to protect such interests. The
warranted-but-precluded “procedures . . . [are instead
intended] to expedite the listing process consistent with the
Service’s available resources.” Id. at 979. 2 Unfortunately for
Appellants, the warranted-but-precluded determination is a
safety valve for the Service, not an escape hatch for
beleaguered landowners.

III

This is therefore “not a ‘procedural injury’ case.”
Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1323
(D.C. Cir. 2013). Appellants must show actual or imminent,
concrete and particularized injury-in-fact; causation, such that
the injury is fairly traceable to the challenged conduct; and
redressability. See generally Lujan, 504 U.S. at 572–73.

Appellants assert harm to the property interests of
members who own land where subject species or their

Democracy, LLC v. SEC, 278 F.3d 21, 28 (D.C. Cir. 2002) (internal
quotation marks omitted).
2
Appellants also suggest the Service failed to use the best available
science by determining listing priority pursuant to the settlements’
schedule. Because the warranted-but-precluded status is not
designed to protect Appellants’ members’ interests, any such failure
is not the basis of a valid procedural injury. To the extent
Appellants’ theory is that later “warranted” determinations were not
based on the best available science, this argument is misplaced in a
challenge against the consent decrees that includes no challenge to
the merits of any listing determination. Cf. infra Part III.
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habitats are present. 3 Notably, “[t]he ESA’s protections apply
only after a species is formally listed,” Section 4 Deadline
Litig., 704 F.3d at 974, but Appellants do not challenge the
warranted determination as to any candidate species. They
instead challenge the consent decrees implementing the
Service’s settlements. “[T]he consent decree[s] do[] not
require [the Service] to promulgate a . . . [listing] rule.”
Perciasepe, 714 F.3d at 1324 (emphasis omitted). As in
Perciasepe, the settlements simply require the agency to
render a final listing decision—warranted or not-warranted—
using a specific timeline, without dictating the agency’s
substantive judgment. Accordingly, Appellants have failed to
allege cognizable harm, see id. at 1324–25; Appellants’
“members face only the possibility of regulation, as they did
before.” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 13
(D.C. Cir. 2011). “Article III standing requires more than the
possibility of potentially adverse regulation. . . . That the
consent decree[s] prescribe[] a date by which regulation could
occur does not establish . . . standing.” Perciasepe, 714 F.3d
1324–25.

Appellants also contend their members have been harmed
because they have expended resources on conservation efforts
to reduce risk to candidate species, and the purpose of such
expenditures is obviated 4 with the withdrawal of the

3
Appellants specifically claim their members’ properties are
occupied by, or are habitats suitable for, nine subspecies of
Mazama pocket gopher and four Central Texas salamander species.
4
Although Appellants have understandable concerns about the
potentially serious economic ramifications for landowners of a
listing under the Act, the ESA has offered limited traction to
support weighing such economic factors in some cases. See, e.g.,
Thomas Sarver, Note, Salmon, Suckers and Sorrow: Rural
Cleansing Under the Shadow of the Endangered Species Act, 8
DRAKE J. AGRIC. L. 455, 461–65 (2003); Editorial, Can Congress
 7
warranted-but-precluded status. Yet, none of the expenditures
specifically identified in the complaint and declarations were
dictated by the Service. Appellants’ members expended
resources to satisfy various state and local requirements, see
Worf Aff. ¶¶ 6–9, or as a voluntary effort to reduce harm in
the hopes of persuading the Service that listing was
unwarranted. As to state requirements, “independent action
of some third party not before the court” is not fairly traceable
to challenged actions by the Service. Lujan, 504 U.S. at 560. 5
And, as to volitional expenditures, Appellants’ members
cannot show injury by “inflicting harm on themselves based
on their fears of hypothetical future harm that is not certainly
impending.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,
1151 (2013).

help the Klamath Basin restore itself? It must, OREGONIAN, Nov.
22, 2014 (describing how a 2001 shutoff of the water supply to
irrigators in the Klamath Basin caused over $40 million in losses to
farmers and ranchers); John Kass, California Gives Up Its
Swatters’ Rights, CHI. TRIBUNE, Sept. 2, 1999 (noting the discovery
of perhaps a dozen endangered flies stopped a $500 million
building project and cost a hospital about $4 million in added
construction costs). See also San Luis & Delta-Mendota Water
Auth. v. Jewell, 747 F.3d 581, 593 (9th Cir. 2014) (“We recognize
the enormous practical implications of this decision[,] . . . [b]ut the .
. . law prohibits us from . . . balanc[ing] the [delta] smelt’s interests
against the interests of the citizens of California.”).
5
Appellants argue the Service coerced state and local officials, but
Appellants’ declarations simply indicate that local officials
“forward[ed] the proposal to the local [Service] office for comment,
notwithstanding the fact that the proposal had already received
[state agency] approval.” Kaufman Aff. ¶ 19. As the district court
concluded, this is insufficient to create an inference of coercion.
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IV

For the foregoing reasons, the district court’s dismissal is

Affirmed.