Amer Bird v. Secretary Interior

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit

3-11-2009

Amer Bird v. Secretary Interior
Precedential or Non-Precedential: Precedential

Docket No. 07-4609

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 07-4609

AMERICAN BIRD CONSERVANCY; AMERICAN
LITTORAL SOCIETY; CITIZENS CAMPAIGN FOR THE
ENVIRONMENT; DEFENDERS OF WILDLIFE;
DELAWARE AUDUBON SOCIETY; DELAWARE
RIVERKEEPER NETWORK; NATIONAL AUDUBON
SOCIETY; NEW JERSEY AUDUBON SOCIETY; SIERRA
CLUB - DELAWARE CHAPTER; SIERRA CLUB OF NEW
JERSEY CHAPTER,
Appellants

v.

DIRK KEMPTHORNE, SECRETARY, UNITED STATES
DEPARTMENT OF THE INTERIOR;
H. DALE HALL, DIRECTOR, UNITED STATES
FISH AND WILDLIFE SERVICE

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 06-cv-02641)
District Judge: The Honorable Joel A. Pisano

Argued: January 12, 2009

Before: SLOVITER, BARRY, Circuit Judges, and POLLAK,*

*
The Honorable Louis H. Pollak, Senior District Judge, United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
 District Judge

(Opinion Filed: March 11, 2009)

Julia A. LeMense, Esq. (Argued)
Eastern Environmental Law Center
744 Broad Street
Suite 1525
Newark, NJ 07102-0000

Counsel for Appellants

Charles R. Scott, Esq. (Argued)
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 23795
L'Enfant Plaza Station
Washington, DC 20026-0000

Counsel for Appellees

OPINION OF THE COURT

BARRY, Circuit Judge

In July and August 2005, appellants, a number of
conservation groups,1 petitioned the U.S. Fish and Wildlife Service
(“FWS”) to list as endangered on an emergency basis the red knot,

1
Appellants are the American Bird Conservancy, American
Littoral Society, Defenders of Wildlife, Delaware Audubon
Society, Delaware Riverkeeper Network, New Jersey Audubon
Society, and the Delaware and New Jersey Chapters of the Sierra
Club.

2
a species of migratory shorebird. The FWS declined to undertake
emergency rulemaking by letter of December 22, 2005, but
continued to review the petition in the context of a non-emergency.
On June 13, 2006, before the FWS made a final determination,
appellants filed a complaint in the U.S. District Court for the
District of New Jersey claiming (1) that the denial of emergency
rulemaking was arbitrary and capricious, in violation of the
Endangered Species Act (“ESA”), and (2) that the FWS violated
the ESA by failing to issue timely findings on the petition. The
FWS issued its final determination—that the listing of the red knot
was warranted but precluded by higher-priority listing activity—in
its periodic Candidate Notice of Review (“CNOR”) published on
September 12, 2006. In response, appellants dismissed their
timeliness claim, but persisted with their challenge to the denial of
emergency rulemaking. In an opinion and order dated October 11,
2007, the District Court dismissed the complaint for lack of subject
matter jurisdiction, finding that the FWS’s denial of the emergency
listing request was not reviewable under either the ESA or the
Administrative Procedure Act (“APA”). Given this finding, the
District Court did not find it necessary to reach the FWS’s claim
that the publication of the warranted but precluded listing
determination in the CNOR rendered moot appellants’ challenge to
the denial of emergency rulemaking. This appeal followed.

I.

A. The Red Knot

The red knot (Calidris canutus rufa) is a medium-sized
shorebird that undertakes an annual 30,000-kilometer migration
from its wintering grounds in Patagonia and Tierra del Fuego to its
breeding grounds in the high Arctic. Red knots begin their
northern migration in February, with peak numbers leaving
Argentina and Chile between mid-March and mid-April. As part
of their northward migration, red knots stop over in the Delaware
Bay between late April and early June, coinciding with the
spawning season of horseshoe crabs. There, the birds feed on
horseshoe crab eggs in order to refuel for the final leg of their
journey to the Arctic.

3
 Surveys of the Delaware Bay region during recent spring
migration seasons indicate a substantial decline in the red knot
population. It is believed that the reduction in numbers is in large
part attributable to the overharvesting of horseshoe crabs for
commercial purposes. Because of the corresponding drop in the
quantity of horseshoe crab eggs, red knots have failed to attain the
critical weight necessary to fly to their breeding grounds and
survive an initial few days of Arctic snow cover. Since 1999,
regional and state conservation authorities have adopted a series of
timing restrictions and substantially lower harvest quotas for
horseshoe crab harvesting. Nevertheless, the number of red knots
observed in the Delaware Bay has dwindled to approximately
14,000 in recent years, down from highs of approximately 95,000.

B. The Listing Petitions and Agency Response

The ESA provides a mechanism by which interested persons
may petition the Secretary of the Interior for the listing of species
as either endangered or threatened. 16 U.S.C. § 1533(b)(3)(A); 50
C.F.R. § 424.14(a). In the normal course, upon receipt of a
petition, the FWS has 90 days to make a finding as to whether the
petition presents substantial information indicating that the
petitioned action may be warranted. 16 U.S.C. § 1533(b)(3)(A); 50
C.F.R. § 424.14(b). If the FWS concludes that the action may be
warranted, then within 12 months after receiving the petition, it
must make one of the following findings: (1) that the action is not
warranted; (2) that the action is warranted; or (3) that the action is
“warranted but precluded” by other higher priority listing actions.
16 U.S.C. § 1533(b)(3)(B); 50 C.F.R. § 424.14(b)(3).

In addition to the normal listing mechanism, the FWS is also
authorized to list a species immediately in case of an “emergency
posing a significant risk to the well-being of [that] species.” 16
U.S.C. § 1533(b)(7).2 It is the position of the FWS, a position with

2
The full text of the emergency provision is as follows:

Neither paragraph (4), (5), or (6) of this subsection
nor section 553 of Title 5 shall apply to any
regulation issued by the Secretary in regard to any

4
which the District Court agreed, that this emergency provision is
committed solely to the discretion of the FWS and is not
reviewable under the so-called discretion exemption to the APA,
5 U.S.C. § 701(a)(2).

In July and August 2005, appellants petitioned the FWS to

emergency posing a significant risk to the well-being
of any species of fish or wildlife or plants, but only
if—

(A) at the time of publication of the
regulation in the Federal Register the
Secretary publishes therein detailed
reasons why such regulation is
necessary; and

(B) in the case such regulation applies
to resident species of fish or wildlife,
or plants, the Secretary gives actual
notice of such regulation to the State
agency in each State in which such
species is believed to occur.

Such regulation shall, at the discretion of the
Secretary, take effect immediately upon the
publication of the regulation in the Federal Register.
Any regulation promulgated under the authority of
this paragraph shall cease to have force and effect at
the close of the 240-day period following the date of
publication unless, during such 240-day period, the
rulemaking procedures which would apply to such
regulation without regard to this paragraph are
complied with. If at any time after issuing an
emergency regulation the Secretary determines, on
the basis of the best appropriate data available to
him, that substantial evidence does not exist to
warrant such regulation, he shall withdraw it.

16 U.S.C. § 1533(b)(7).

5
list the red knot as endangered on an emergency basis. In
December, the FWS replied in a two-page letter, which stated, in
part:

While we have not made a decision on whether the
petition presents substantial information that the
petitioned action may be warranted, we have looked
at the immediacy of possible threats to the species to
determine if emergency listing may be warranted at
this time. Our initial review of your petition, and the
information within our files, does not indicate that an
emergency situation exists.

(App. 153.) The letter also explained that several regional and
state protection measures were already in place and that observed
conditions during the 2005 stopover indicated a slight increase in
the number of red knots. The FWS did not rule out the possibility
of future listing activity, indicating that it would “review the
petition in the context of a non-emergency, through [its] petition
process.” (App. 154.) It anticipated making its already-belated 90-
day finding in early 2006.

Before hearing again from the FWS regarding the red knot,
appellants filed this action in the District Court, claiming, as noted
above, that (1) the decision not to list the red knot on an emergency
basis was arbitrary and capricious,3 and (2) the FWS failed to meet

3
According to the ESA, listing determinations must be based
on “the best scientific and commercial data available.” 16 U.S.C.
§ 1533(b)(1)(A). A species is adjudged to be endangered or
threatened if it meets one or more of five statutorily defined
factors:

(A) the present or threatened destruction,
modification, or curtailment of [the species’] habitat
or range;
(B) overutilization for commercial, recreational,
scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory

6
its response deadlines set forth in 16 U.S.C. § 1533(b)(3)(A) and
(B).

Three months later, the FWS formally responded to the
petition when, on September 12, 2006, it published its CNOR in
the Federal Register. See Endangered and Threatened Wildlife and
Plants; Review of Native Species That Are Candidates or Proposed
for Listing as Endangered or Threatened; Annual Notice of
Findings on Resubmitted Petitions; Annual Description of Progress
on Listing Actions, 71 Fed. Reg. 53,756 (Sept. 12, 2006) (to be
codified at 50 C.F.R. pt. 17). The CNOR concluded that

the threats, in particular the modification of habitat
through harvesting of horseshoe crabs to such an
extent that it puts the viability of the knot at
substantial risk, are of a high magnitude, but are
nonimminent because of reductions and restrictions
on harvesting horseshoe crabs.

Id. at 53,759. Accordingly, the FWS designated the listing of the
red knot as warranted but precluded pursuant to 16 U.S.C. §
1533(b)(3)(B)(iii), and assigned the species a priority level of 6 on
a scale of 1 to 12 (1 being the highest priority). Id.

Following publication of the CNOR, appellants voluntarily
dismissed their claim pertaining to the FWS’s failure to abide by
the response deadlines but did not seek leave to amend their
complaint in order to challenge the warranted but precluded finding
set forth in the CNOR. Thus, the only remaining claim before the
District Court was that the denial of an emergency listing in

mechanisms;
(E) other natural or manmade factors affecting [the
species’] continued existence.

Id. § 1533(a)(1). Appellants claim, as they did before the District
Court, that the FWS’s denial of their emergency listing requests
was based on considerations that fell outside this narrow statutory
framework and, therefore, was arbitrary and capricious. Given our
disposition herein, we need not address this claim.

7
December 2005 was arbitrary and capricious. As noted above, the
District Court concluded that the challenged action fell within the
“discretion” exception to the APA, 5 U.S.C. § 701(a)(2), and
dismissed appellants’ claim as unreviewable.

II.

The FWS argues that the District Court correctly concluded
that appellants’ claim was unreviewable and that any challenge to
the denial of emergency rulemaking was rendered moot by the
publication of the warranted but precluded listing in the CNOR.
Although the District Court did not reach the issue of mootness, we
will address it as a threshold matter as it implicates our jurisdiction.
See Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336
F.3d 211, 216 (3d Cir. 2003) (citing Rogin v. Bensalem Twp., 616
F.2d 680, 684 (3d Cir. 1980)).

The mootness doctrine derives from Article III of the
Constitution, which limits the “judicial Power” of the United States
to the adjudication of “Cases” or “Controversies.” U.S. Const. art.
III, § 2; see Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir. 2007).
“[T]he central question of all mootness problems is whether
changes in circumstances that prevailed at the beginning of the
litigation have forestalled any occasion for meaningful relief.” In
re Surrick, 338 F.3d 224, 230 (3d Cir. 2003).

The only issue remaining in the complaint once the
timeliness claim was dismissed was the propriety of the FWS’s
determination that an emergency listing of the red knot was not
warranted. In the subsequent publication of the CNOR, however,
the FWS concluded, after careful study and consideration of all
possible factors, that listing of the red knot was, in fact, warranted
but precluded by other listing priorities. Because appellants never
sought to amend their complaint to contest in any way that
conclusion, there is no issue for us to decide and no “meaningful
relief” to award.

Appellants would have us reach back from the CNOR and
declare the FWS’s denial of emergency rulemaking violative of the
ESA based on the FWS’s consideration of what appellants allege

8
to be improper factors. We will not do so. Instructive in this
regard is Fund for Animals, Inc. v. Hogan, 428 F.3d 1059 (D.C.
Cir. 2005), in which the D.C. Circuit observed that “[t]his sequence
of events is analogous to the merger of a preliminary injunction
into a permanent injunction, upon which ‘an appeal from the grant
of [the] preliminary injunction becomes moot.’” 428 F.3d at 1064
(quoting Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond
Fund, Inc., 527 U.S. 308, 314 (1999)) (second alteration in
original); see also Save Our Springs Alliance v. Norton, 361 F.
Supp. 2d 643, 648 (W.D. Tex. 2005) (holding that a 90-day finding
stating there was no emergency mooted the plaintiff’s challenge for
failure to make an emergency listing determination in its earlier
letter). The December 2005 letter was never meant to be anything
but an interlocutory pronouncement that circumstances did not
warrant emergency attention; the FWS specifically noted that a
final listing determination would be postponed in favor of
additional, in-depth review, which review, when completed, was
not challenged.

We note, as we conclude, that appellants have received quite
substantial relief. Now that the CNOR has issued, the red knot is
on the agency’s watchlist. This means that the emergency
monitoring system set forth at 16 U.S.C. § 1533(b)(3)(C)(iii) has
become available in the event of exigent circumstances that warrant
immediate protection of the red knot.4

III.

We will dismiss the appeal as moot.

4
Section 1533(b)(3)(C)(iii) directs the Secretary to “make prompt
use of the authority under [16 U.S.C. § 1533(b)(7)] to prevent a
significant risk to the well being” of a warranted but precluded
species. 16 U.S.C. § 1533(b)(3)(C)(iii).

9