Conservancy of Southwest Florida v. U.S. Fish & Wildlife Service

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11915 APRIL 18, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:10-cv-00106-JES-SPC

CONSERVANCY OF SOUTHWEST FLORIDA,
CENTER FOR BIOLOGICAL DIVERSITY,
PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY,
COUNSEL OF CIVIC ASSOCIATIONS, INC.,

lllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants,

SIERRA CLUB,

llllllllllllllllllllllllllllllllllllllll Third Party Custodian - Appellant,

versus

U.S. FISH & WILDLIFE SERVICE,
DIRECTOR, U.S. FISH & WILDLIFE SERVICE,
DEPARTMENT OF INTERIOR,
SECRETARY OF THE DEPARTMENT OF INTERIOR,

llllllllllllllllllllllllllllllllllllllll Defendants - Appellees,

FLORIDA WILDLIFE FEDERATION, et al.,

lllllllllllllllllllllllllllllllllllllllll
Defendants,

SEMINOLE TRIBE OF FLORIDA,
lllllllllllllllllllllllllllllllllllllllllll Intervenor Defendant - Appellee,

EASTERN COLLIER PROPERTY OWNERS,

llllllllllllllllllllllllllllllllllllllll Movant - Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 18, 2012)

Before TJOFLAT, MARCUS and SILER,* Circuit Judges.

TJOFLAT, Circuit Judge:

This case concerns a challenge, brought under the Administrative Procedure

Act (the “APA”), 5 U.S.C. §§ 551–559, 701–706, to the United States Fish and

Wildlife Service’s denial of petitions to designate critical habitat for the Florida

panther. The Endangered Species Act of 1973 (the “ESA”), 16 U.S.C.

§§ 1531–1544, empowers the Secretary of the Interior to designate “critical

habitat” for species of fish, wildlife, or plants that have been identified by the

Secretary as “endangered” or “threatened.” Id. §§ 1532(5)(B), 1533(a)(3)(A).1

*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
1
An “endangered species” is defined as “any species which is in danger of extinction
throughout all or a significant portion of its range,” except for certain types of pests. 16 U.S.C.
§ 1532(6). A “threatened species” is defined as “any species which is likely to become an
endangered species within the foreseeable future throughout all or a significant portion of its

2
The practical result of designating critical habitat is that federal agencies must

then, in consultation with the Secretary, ensure not only that their actions are “not

likely to jeopardize the continued existence” of such species, but also that they do

not “result in the destruction or adverse modification” of critical habitat. Id.

§ 1536(a)(2).

In this case, environmental-advocacy groups petitioned the Fish and

Wildlife Service, an agency within the Department of the Interior, to begin

rulemaking to designate critical habitat for the Florida panther and, when the

Service denied their petitions, sued in district court under the APA. They claimed

that the denial of their petitions was arbitrary and capricious. See 5 U.S.C.

§ 706(2)(A). We conclude, however, that the denial of their petitions is not

subject to judicial review under the APA because it is “committed to agency

discretion by law.” 5 U.S.C. § 701(a)(2). Accordingly, we affirm the district

court’s order of dismissal.

range.” Id. § 1532(20). “Critical habitat” means
(i) the specific areas within the geographical area occupied by the species,
at the time it is listed [as an endangered or threatened species] in accordance with
the provisions of section 1533 of this title, 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; and
(ii) specific areas outside the geographical area occupied by the species at
the time it is listed [as an endangered or threatened species] in accordance with
the provisions of section 1533 of this title, upon a determination by the Secretary
that such areas are essential for the conservation of the species.
Id. § 1532(5)(A).

3
 I.

A.

We begin with the necessary statutory background. In 1966, Congress

enacted the Endangered Species Preservation Act (the “ESPA”), Pub. L. No. 89-

669, 80 Stat. 926 (1966), the predecessor to the ESA. The ESPA authorized the

Secretary of the Interior to list a species as endangered in the Federal Register

after finding that “its existence is endangered because its habitat is threatened with

destruction, drastic modification, or severe curtailment, or because of

overexploitation, disease, predation, or because of other factors, and that its

survival requires assistance.” ESPA § 1(c), 80 Stat. at 926. The ESPA did not,

however, require the Secretary to designate critical habitat for listed species. Nor

did the original ESA, enacted in 1973.2

But in 1978, that changed. That year, Congress amended the ESA to require

that “[a]t the time any such regulation [listing a species as endangered or

2
The ESPA contains no mention of critical habitat. And the original ESA’s only
mention of critical habitat is in a provision requiring federal agencies, “in consultation with and
with the assistance of the Secretary,” to ensure “that actions authorized, funded, or carried out by
them do not jeopardize the continued existence of . . . endangered species and threatened species
or result in the destruction or modification of habitat of such species which is determined by the
Secretary, after consultation as appropriate with the affected States, to be critical.” Endangered
Species Act of 1973, Pub. L. No. 93-205, § 7, 87 Stat. 884, 892. But the original ESA “provided
no guidance on how or when [the Secretary] should determine a species’ critical habitat.” Ala.-
Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1264 (11th Cir. 2007).

4
threatened] is proposed, the Secretary shall also by regulation, to the maximum

extent prudent, specify any habitat of such species which is then considered to be

critical habitat.” Endangered Species Act Amendments of 1978, Pub. L. No. 95-

632, § 11(1), 92 Stat. 3751, 3764. The 1978 amendments also provided, however,

that this requirement “shall not apply with respect to any species which was listed

prior to enactment of the [1978 amendments].” Id. As for those species, Congress

instead allowed that “[c]ritical habitat may be established.” Id. § 2(2), 92 Stat. at

3751 (emphasis added).3

The law now stands, in relevant part, essentially as the 1978 amendments

left it, although further amendments in 1982 modified slightly the required timing

of the critical-habitat designation.4 Under current law, the Secretary generally

3
The full text of this provision reads as follows: “Critical habitat may be established for
those species now listed as threatened or endangered species for which no critical habitat has
heretofore been established as set forth in subparagraph (A) of this paragraph.” Endangered
Species Act Amendments of 1978 § 2(2), 16 U.S.C. § 1532(5)(B). The cross-reference to
subparagraph (A) refers to the statutory definition of “critical habitat.” See id., 16 U.S.C.
§ 1532(5)(A).
4
By 1982, some members of Congress had apparently grown frustrated that requiring the
Secretary to propose both the listing of a species and the specification of its critical habitat at the
same time had slowed the listing process. Ala.-Tombigbee Rivers Coal. v. Kempthorne, 477
F.3d 1250, 1265 (11th Cir. 2007). As a result, Congress replaced the timing requirement enacted
in 1978 with a command that
[t]he Secretary, by regulation promulgated in accordance with subsection (b)
[which prescribes the appropriate bases for the Secretary’s determinations] and to
the maximum extent prudent and determinable—
(A) shall, concurrently with making a determination under paragraph (1)
that a species is an endangered species or a threatened species, designate any
habitat of such species which is then considered to be critical habitat; and

5
must designate critical habitat “concurrently with making a determination . . . that

a species is an endangered species or a threatened species.” 16 U.S.C.

§ 1533(a)(3)(A)(i). But for species listed before the ESA required a concurrent

critical-habitat designation, a different rule applies: “Critical habitat may be

established for those species now listed as threatened or endangered species for

which no critical habitat has heretofore been established . . . .” Id. § 1532(5)(B)

(emphasis added).

B.

In 1967—more than a decade before the 1978 amendments required a

critical-habitat designation to accompany the listing of a species—the Secretary of

the Interior listed the Florida panther as an endangered species. Endangered

Species, 32 Fed. Reg. 4001 (Feb. 24, 1967) (codified at 50 C.F.R. § 17.11). No

critical habitat for the Florida panther was designated at that time, and none has

been designated since. Nor has the Secretary initiated rulemaking procedures to

designate critical habitat for the Florida panther.

In 2009, environmental-advocacy groups, dissatisfied with this state of

(B) may, from time-to-time thereafter as appropriate, revise such
designation.
Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, § 2(a)(1)(E), 96 Stat. 1411,
1411. After this amendment, the Secretary had to designate critical habitat concurrently with the
final decision to list a species, but was no longer required to propose critical habitat at the same
time that listing was proposed. Ala.-Tombigbee, 477 F.3d at 1266.

6
affairs, petitioned the United States Fish and Wildlife Service (the “Service”) to

initiate rulemaking to designate critical habitat for the Florida panther.5 The

Conservancy of Southwest Florida (the “Conservancy”) filed a petition on January

21. On July 23, other advocacy groups, including the Sierra Club, joined the

Conservancy’s petition. On September 17, the Center for Biological Diversity (the

“Center”), Public Employees for Environmental Ethics (“PEER”), and the Council

of Civic Associations (the “Council”) filed another petition. And on November

19, the Sierra Club filed a supplemental petition.

The first two petitions cited scientific studies, including some relied on in

the Service’s own Florida Panther Recovery Plan,6 detailing the decline of the

5
The APA provides that “[e]ach agency shall give an interested person the right to
petition for the issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e). And 50 C.F.R.
§ 424.14(a) provides that “[a]ny interested person may submit a written petition to the Secretary
requesting that one of the actions described in § 424.10”—which include the designation of
critical habitat—“be taken.” 50 C.F.R. §§ 424.10, 424.14(a).
6
The ESA requires the Secretary to develop recovery plans “for the conservation and
survival of endangered species and threatened species.” 16 U.S.C. § 1533(f)(1). Each recovery
plan must include
(i) a description of such site-specific management actions as may be
necessary to achieve the plan’s goal for the conservation and survival of the
species;
(ii) objective, measurable criteria which, when met, would result in a
determination . . . that the species be removed from the list [of endangered or
threatened species]; and
(iii) estimates of the time required and the cost to carry out those measures
needed to achieve the plan’s goal and to achieve intermediate steps toward that
goal.
Id. § 1533(f)(1)(B).

7
Florida panther population due to the gradual loss, degradation, and fragmentation

of its habitat.7 These petitions explained that because of their hunting, breeding,

and other needs, panthers require broad home ranges—up to about 250 square

miles for a male panther and 150 square miles for a female. In sum, the first two

petitions presented evidence that dwindling habitat threatened the Florida

panther’s recovery and requested that the Service designate as critical habitat areas

identified in one of the studies relied on by the Service in its Recovery Plan. The

subsequent Sierra Club petition added evidence of the expected effect of climate

change on the Florida panther’s habitat. The Sierra Club petition further requested

that the Service designate as critical habitat an additional area identified in another

study.

The Service denied the petitions. On February 11, 2010, the Service

explained its decision in three substantially identical letters to the Conservancy,

the Center, and the Sierra Club. The letters briefly described other efforts that the

Service was pursuing to protect the Florida panther’s habitat. The letters

explained that, in the Service’s view, those efforts were sufficient in themselves,

eliminating any need to designate critical habitat.

7
Because we conclude that we may not review the Service’s decision on these petitions,
we need not detail the scientific evidence they set forth. It suffices to describe that evidence in
general terms.

8
 C.

On February 18, 2010, the groups that had petitioned the Service—the

Conservancy, the Center, PEER, the Council, and the Sierra Club (collectively,

“Plaintiffs”)—filed suit in the United States District Court for the Middle District

of Florida under the APA and the citizen-suit provisions of the ESA.8 The

complaint named as defendants the Service, the Director of the Service in his

official capacity, the United States Department of the Interior, and the Secretary of

the Interior in his official capacity (collectively, “Federal Defendants”). Later the

Seminole Tribe and Eastern Collier Property Owners (collectively, “Intervenor-

Defendants”), an unincorporated association of companies that own, use, and

develop land in the area that Plaintiffs seek to have designated as critical habitat,

successfully moved to intervene as defendants under Federal Rule of Civil

Procedure 24.

Plaintiffs alleged that the Service’s denial of their rulemaking petitions was

arbitrary and capricious under § 706(2)(A) of the APA. They claimed that the

Service had (1) made a decision contrary to the evidence before it, which allegedly

8
The ESA’s citizen-suit provisions allow that “any person may commence a civil suit on
his own behalf . . . against the Secretary where there is alleged a failure of the Secretary to
perform any act or duty under section 1533 of this title which is not discretionary with the
Secretary.” 16 U.S.C. § 1540(g)(1)(C). On appeal, however, Plaintiffs have expressly
abandoned any claims for relief under the ESA’s citizen-suit provisions; they press only their
APA claims. We limit our discussion accordingly.

9
demonstrated the need for critical habitat; (2) overlooked the expected impact of

climate change on the Florida panther’s habitat; and (3) in listing other efforts

being taken to preserve panther habitat, rather than directly addressing the science

discussed in the petitions, failed to provide a rational explanation for its decision.9

Plaintiffs also alleged that the Service had failed to comply with 50 C.F.R.

§ 424.12(b), which, according to Plaintiffs, required the Service to consider

specified factors in responding to their petitions.10 Plaintiffs also alleged that the

Service had failed to comply with 16 U.S.C. § 1533(b)(2) and 50 C.F.R.

§ 424.12(a), which, they claimed, required the Service to respond to their petitions

“on the basis of the best scientific data available.” 16 U.S.C. § 1533(b)(2); 50

C.F.R. § 424.12(a).11 Plaintiffs sought a declaratory judgment that the Service’s

denial of their petitions was unlawful and an order vacating that denial and

9
The APA’s arbitrary-and-capricious standard requires the agency to “examine the
relevant data and articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2866, 77 L. Ed. 2d 443 (1983)
(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S. Ct. 239, 246, 9
L. Ed. 2d 207 (1962)) (internal quotation marks omitted). Agency action is arbitrary and
capricious if the agency has “entirely failed to consider an important aspect of the problem” or
has “offered an explanation for its decision that runs counter to the evidence before the agency.”
Id., 103 S. Ct. at 2867.
10
An agency’s failure to follow its own regulations is arbitrary and capricious. Simmons
v. Block, 782 F.2d 1545, 1550 (11th Cir. 1986).
11
The regulations and statutory provisions cited by Plaintiffs, as well as their
applicability—or, rather, inapplicability—to this case, are discussed further in part II.A, infra.

10
remanding the matter to the Service.12

Federal Defendants and Intervenor-Defendants moved to dismiss under

Federal Rule of Civil Procedure 12(b)(1) and (b)(6), arguing that Plaintiffs lacked

standing under Article III of the United States Constitution; that APA review was

unavailable because the Service’s decision was “committed to agency discretion

by law,” 5 U.S.C. § 701(a)(2); and that even if review were available, Plaintiffs’

claims failed on the merits. The district court concluded that Plaintiffs had

adequately alleged Article III standing. It also concluded, however, that none of

the regulations or statutory provisions that Plaintiffs insisted the Service had

violated applied to the decision whether to designate critical habitat for the Florida

panther. In the absence of any standards to limit the Service’s discretion, the

district court concluded that the Service’s denial of Plaintiffs’ petitions was

committed to agency discretion by law and therefore could not be reviewed under

the APA. Accordingly, the court granted the motions to dismiss.13 Plaintiffs now

appeal, arguing that the district court erred in concluding that APA review was

12
Plaintiffs also sought an injunction requiring Federal Defendants to initiate rulemaking
to designate critical habitat for the Florida panther. On appeal, however, they have expressly
abandoned any claim of entitlement to such relief.
13
The lack of standards limiting the Service’s discretion also led the district court to
conclude that the denial of Plaintiffs’ petitions was not a nondiscretionary action that could be
challenged under the ESA’s citizen-suit provisions. See 16 U.S.C. § 1540(g)(1)(C).

11
unavailable.

II.

The APA authorizes federal courts to set aside agency actions found to be

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A). The APA provisions subjecting agency action to

judicial review are inapplicable, however, “to the extent that . . . agency action is

committed to agency discretion by law.” Id. § 701(a)(2). Section 701(a)(2), as

interpreted by the Supreme Court, precludes APA review wherever the statute

under which the agency acts “is drawn so that a court would have no meaningful

standard against which to judge the agency’s exercise of discretion”—that is,

where a court would have “no law to apply.” Heckler v. Chaney, 470 U.S. 821,

830, 105 S. Ct. 1649, 1655, 84 L. Ed. 2d 714 (1985) (quoting Citizens to Pres.

Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 821, 28 L. Ed. 2d

136 (1971)) (internal quotation marks omitted).

Plaintiffs argue that several regulations and statutory provisions govern the

Service’s decision whether to designate critical habitat for species listed as

endangered or threatened before the 1978 ESA amendments and thus provide law

to apply in this case. We first address this argument. We conclude that these

provisions do not, in fact, apply in this case. We then explain why, in light of that

12
fact, we must conclude that the decision challenged here is not subject to APA

review. We hold that the Service’s decision not to initiate rulemaking to designate

critical habitat for species listed before the 1978 amendments is committed to

agency discretion by law.

A.

1.

Plaintiffs point to 50 C.F.R. § 424.14(d), which provides in pertinent part,

“Upon receiving a petition to designate critical habitat . . . , the Secretary shall

promptly conduct a review in accordance with the [APA] (5 U.S.C. 553) and

applicable Departmental regulations, and take appropriate action.” 50 C.F.R.

§ 424.14(d). According to Plaintiffs, “applicable Departmental regulations”

include the provisions of 50 C.F.R. § 424.12(b). Section 424.12(b) provides in

full:

In determining what areas are critical habitat, the Secretary
shall consider those physical and biological features that are essential
to the conservation of a given species and that may require special
management considerations or protection. Such requirements
include, but are not limited to the following:
(1) Space for individual and population growth, and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, rearing of offspring,

13
 germination, or seed dispersal; and generally[,]
(5) Habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
When considering the designation of critical habitat, the Secretary
shall focus on the principal biological or physical constituent
elements within the defined area that are essential to the conservation
of the species. Known primary constituent elements shall be listed
with the critical habitat description. Primary constituent elements
may include, but are not limited to, the following: roost sites, nesting
grounds, spawning sites, feeding sites, seasonal wetland or dryland,
water quality or quantity, host species or plant pollinator, geological
formation, vegetation type, tide, and specific soil types.

Id. § 424.12(b). Plaintiffs argue that the factors specified in this regulation

provide ample standards for judicial review.

Context shows, however, that § 424.12(b) does not apply to the decision

whether to designate critical habitat for a species listed before the 1978

amendments. The first sentence of § 424.12 provides that “[c]ritical habitat shall

be specified to the maximum extent prudent and determinable at the time a species

is proposed for listing.” Id. § 424.12(a). This provision embodies the requirement

created by the 1978 amendments and modified by the 1982 amendments—that

critical habitat must be designated concurrently with the listing of a species—and

thus cannot apply to any pre-1978 species, like the Florida panther, that has

already been listed without a concurrent designation of critical habitat. That

§ 424.12 opens with this sentence suggests that the entire section is not intended to

14
apply to the designation of critical habitat for pre-1978 species.

This conclusion is further supported by examination of subsection (b) itself.

According to Plaintiffs, the phrases “In determining what areas are critical habitat”

and “When considering the designation of critical habitat” suggest that

§ 424.12(b) applies to the Secretary’s initial decision whether to designate critical

habitat at all. Id. § 424.12(b). But the factors listed in subsection (b) make sense

only if it is presupposed that some area will be designated as critical habitat,

leaving only the question of “what areas are critical habitat.” Id. (emphasis

added). If the question is which areas should be designated as critical habitat, it

makes sense to choose an area with “[s]pace for individual and population

growth”; “[f]ood, water, [and] air”; and “[s]ites for breeding, reproduction, [and]

rearing of offspring.” Id. § 424.12(b)(1)–(2), (4). But these factors are poorly

suited to guide the antecedent decision whether to designate critical habitat at all.

Endangered species will always need space for growth, food and water, sites for

breeding, and so on. Such factors thus do little to distinguish cases in which the

designation of critical habitat is warranted from those in which it is not. These

regulations, therefore, are best read not to apply to the decision whether to

designate critical habitat for a pre-1978 species. Thus, they do not limit the

Service’s discretion in this case.

15
 Plaintiffs also rely heavily on 50 C.F.R. § 424.12(a). Section 424.12(a)

provides that “[a] final designation of critical habitat shall be made on the basis of

the best scientific data available, after taking into consideration the probable

economic and other impacts of making such a designation in accordance with

§ 424.19.” Id. § 424.12(a). Section 424.19 provides in full:

The Secretary shall identify any significant activities that would
either affect an area considered for designation as critical habitat or
be likely to be affected by the designation, and shall, after proposing
designation of such an area, consider the probable economic and
other impacts of the designation upon proposed or ongoing activities.
The Secretary may exclude any portion of such an area from the
critical habitat if the benefits of such exclusion outweigh the benefits
of specifying the area as part of the critical habitat. The Secretary
shall not exclude any such area if, based on the best scientific and
commercial data available, he determines that the failure to designate
that area as critical habitat will result in the extinction of the species
concerned.

Id. § 424.19.

Similar remarks apply to these regulations. As noted above, § 424.12

begins by providing that critical habitat must be specified when a species is

proposed for listing, suggesting that that section does not apply to species listed

before the 1978 amendments. See id. § 424.12(a). And § 424.12(a)’s requirement

that the Secretary consult “the best scientific data available” expressly applies only

to “[a] final designation of critical habitat,” not to the Secretary’s consideration of

16
a petition for such a designation. Id.

Section 424.19 is no more helpful to Plaintiffs. That section, like

§ 424.12(b), presupposes that some area will be designated as critical habitat.

Provisions allowing the Secretary to “exclude” certain areas from the critical

habitat evidently take it for granted that some area will be designated. Id.

§ 424.19. And the requirement that the Secretary consider the “economic and

other impacts” of designating critical habitat applies only “after [the Secretary has]

propos[ed] designation of such an area,” which did not happen in this case. Id.

None of these regulations, therefore, governs the Secretary’s initial decision

whether to commence rulemaking to designate critical habitat for a pre-1978

species.

2.

Plaintiffs also argue that the Service’s decision was subject to 16 U.S.C.

§ 1533(b)(2). Section 1533(b)(2) requires the Secretary to “designate critical

habitat, and make revisions thereto, under subsection (a)(3) of this section on the

basis of the best scientific data available and after taking into consideration the

economic impact, the impact on national security, and any other relevant impact,

of specifying any particular area as critical habitat.” 16 U.S.C. § 1533(b)(2).

But this provision does not apply to the decision whether to initiate

17
rulemaking to designate critical habitat for species, like the Florida panther, that

were listed before the 1978 amendments. Subsection (a)(3) provides that the

Secretary “shall, concurrently with making a determination . . . that a species is an

endangered species or a threatened species, designate any habitat of such species

which is then considered to be critical habitat.” Id. § 1533(a)(3)(A)(i) (emphasis

added). Thus, the provision Plaintiffs rely on cannot apply to designations of

critical habitat for species listed before the 1978 amendments without a concurrent

designation of critical habitat, because for those species, the Secretary does not

“designate critical habitat . . . under subsection (a)(3)” of § 1533. Id. § 1533(b)(2)

(emphasis added). For those species, the Secretary designates critical habitat, if at

all, under § 1532(5)(B).

Plaintiffs argue that an uncodified provision of the 1982 amendments to the

ESA makes § 1533(b)(2)’s standards applicable to their petitions. The provision

they cite reads as follows:

Any regulation proposed after, or pending on, the date of the
enactment of this Act to designate critical habitat for a species that
was determined before such date of enactment to be endangered or
threatened shall be subject to the procedures set forth in section 4 of
[the ESA (codified at 16 U.S.C. § 1533)] . . . for regulations
proposing revisions to critical habitat instead of those for regulations
proposing the designation of critical habitat.

Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, § 2(b)(2), 96

18
Stat. 1411, 1416. Plaintiffs’ argument, in effect, is that their petition to designate

critical habitat for the Florida panther is a “regulation proposed after . . . the date

of the enactment” of the 1982 amendments and therefore “subject to the

procedures set forth” in 16 U.S.C. § 1533. Id. These procedures, Plaintiffs argue,

include the “best scientific data” requirement discussed above, as well as

§ 1533(b)(3)(D)(i)’s requirement that “within 90 days after receiving [a] petition

. . . to revise a critical habitat designation, the Secretary shall make a finding as to

whether the petition presents substantial scientific information indicating that the

revision may be warranted.” 16 U.S.C. § 1533(b)(3)(D)(i).

The uncodified 1982 provision might change our answer to the question

whether statutory standards govern the Service’s discretion in this case if the

Service had proposed a regulation designating critical habitat for the Florida

panther. But the uncodified provision does not apply in this case because a

regulation proposed only in a petition for rulemaking, and not by the Secretary, is

not a “regulation proposed” within the meaning of the statute. Apart from the

provision Plaintiffs rely on, the statute uses variants of the phrase “proposed

regulation” several times. Each time, the phrase refers to a regulation proposed by

the Secretary, not one proposed in a rulemaking petition submitted to the

Secretary. See, e.g., Endangered Species Act Amendments of 1982 § 2(a)(2), 96

19
Stat. at 1412 (codified at 16 U.S.C. § 1533(b)(3)(B)(ii)) (“[T]he Secretary shall

promptly publish in the Federal Register a general notice and the complete text of

a proposed regulation . . . .” (emphasis added)); id., 96 Stat. at 1415 (codified at 16

U.S.C. § 1533(b)(8)) (“The publication in the Federal Register of any proposed or

final regulation which is necessary or appropriate to carry out the purposes of this

Act shall include a summary by the Secretary of the data on which such regulation

is based and shall show the relationship of such data to such regulation . . . .”

(emphasis added)). There is no reason to give the phrase a different meaning here.

We conclude, accordingly, that the uncodified 1982 provision does not

apply to Plaintiffs’ petitions to designate critical habitat. That provision thus does

not change the fact that the ESA provides no standards against which to review the

initial decision whether to designate critical habitat for a species listed before the

1978 amendments.14

14
Plaintiffs also argue that the ESA’s definition of “critical habitat” provides law to
apply. That definition is as follows:
The term “critical habitat” for a threatened or endangered species means—
(i) the specific areas within the geographical area occupied by the species,
at the time it is listed in accordance with the provisions of section 1533 of this
title, 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; and
(ii) specific areas outside the geographical area occupied by the species at
the time it is listed in accordance with the provisions of section 1533 of this title,
upon a determination by the Secretary that such areas are essential for the
conservation of the species.
16 U.S.C. § 1532(5)(A).

20
 B.

Neither the ESA nor the regulations cited by Plaintiffs provide any

“meaningful standard”—or, indeed, any standard—“against which to judge the

agency’s exercise of discretion” in this case. Heckler, 470 U.S. at 830, 105 S. Ct.

at 1655. We conclude, therefore, that the decision challenged here is “committed

to agency discretion by law.” 5 U.S.C. § 701(a)(2).

We have held before that the absence of any applicable legal standard that

limits the agency’s discretion precludes APA review. See Greenwood Utils.

Comm’n v. Hodel, 764 F.2d 1459, 1464 (11th Cir. 1985) (“Only if a specific

statute somehow limits the agency’s discretion to act is there sufficient ‘law to

apply’ as to allow judicial review.”). In Lenis v. United States Attorney General,

525 F.3d 1291 (11th Cir. 2008), we held that the Board of Immigration Appeals’

decision whether to reopen a case sua sponte was committed to agency discretion

by law because neither any statute nor any regulation provided any standard that

limited the Board’s discretion. Id. at 1293–94. And in Haitian Refugee Center,

Inc. v. Baker, 953 F.2d 1498 (11th Cir. 1992) (per curiam), we held that the

Immigration and Naturalization Service’s procedures for identifying refugees were

We are unpersuaded. This provision offers nothing that could guide the threshold
decision whether to designate critical habitat. It could guide the decision of which areas to
designate as critical habitat, once the decision to designate some area has been made. It does not,
however, provide law to apply in this case.

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not subject to APA review because no statute, executive order, regulation, or

treaty provided any standards that constrained the agency’s discretion in

determining who qualified as a refugee. Id. at 1507–08. Although those cases

involved contexts different from this case, and therefore cannot be considered

directly controlling, they support our conclusion that § 701(a)(2) applies here as

well.15

15
Plaintiffs cite a number of cases from other circuits, or from district courts, that they
insist establish the availability of judicial review. But none of these cases holds that 5 U.S.C.
§ 701(a)(2) does not preclude APA review of the denial of a petition to designate critical habitat
for a species listed before the 1978 amendments. Nor do they persuade us that we should adopt
such a holding.
Plaintiffs point out that one district court has reviewed the denial of a petition to
designate critical habitat for a pre-1978 species. Fund for Animals v. Babbitt, 903 F. Supp. 96,
115–17 (D.D.C. 1995). But that court did so without explaining—or even stating—its apparent
assumption that that decision was not committed to agency discretion by law. See id. We
decline to adopt that unexplained assumption.
The Ninth Circuit has reviewed the Service’s decision not to designate critical habitat for
a pre-1978 species—a decision made after the Service had already initiated the rulemaking
process—over the objection that § 701(a)(2) precluded APA review. Ctr. for Biological
Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 936–38 (9th Cir. 2006). But there,
statutory standards limited the Service’s discretion. Because a proposed regulation to designate
critical habitat—one proposed by the Service—had been pending when the 1982 amendments
were enacted, id. at 933, the uncodified 1982 provision discussed above applied, see id. at 935
(relying on the uncodified provision of the 1982 amendments to conclude that “critical habitat
designations for the [species at issue]—listed as an endangered species in 1970—are governed by
the procedures for critical habitat revisions” (footnote omitted)). As a result, the Service’s
discretion was subject to statutory limits. See id. at 936–37 (explaining that “[o]nce a critical
habitat revision proposal [was] published, the Service ha[d] one year in which” to take “one of
four actions” specified by 16 U.S.C. § 1533(b)(6)(A)(i)). In this case, by contrast, no such limits
apply.
Other courts have reviewed other agency decisions made under the ESA, though, again,
sometimes without explicitly addressing whether § 701(a)(2) precluded review. In Defenders of
Wildlife v. Gutierrez, 532 F.3d 913 (D.C. Cir. 2008), the D.C. Circuit—without addressing the
§ 701(a)(2) issue—reviewed the denial of a petition for emergency rulemaking to regulate the
speed of ships near whale habitats. Id. at 918–21. But even if the court had addressed the

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 Our conclusion is also bolstered by the permissive language of the statutory

provision authorizing the Secretary to designate critical habitat for species listed

before the 1978 amendments: “Critical habitat may be established for those

species now listed as threatened or endangered species for which no critical

habitat has heretofore been established as set forth in subparagraph (A) of this

paragraph.” 16 U.S.C. § 1532(5)(B) (emphasis added); cf. Webster v. Doe, 486

U.S. 592, 600, 108 S. Ct. 2047, 2052, 100 L. Ed. 2d 632 (1988) (holding that the

CIA Director’s decision to fire an employee was committed to agency discretion in

part because the relevant statute authorized firing “whenever the Director ‘shall

deem such termination necessary or advisable in the interests of the United

States’” (quoting National Security Act of 1947, Pub. L. No. 80-235, § 102(c), 61

Stat. 495, 498); Fla. Dep’t of Bus. Regulation v. U.S. Dep’t of the Interior, 768

F.2d 1248, 1256 (11th Cir. 1985) (emphasizing that “[t]he statute states that the

decision to acquire land is one within the Secretary’s discretion”). Plaintiffs argue

§ 701(a)(2) issue, the decision at issue in that case was far from identical to the one challenged
here, where neither the ESA nor any regulation provides standards for judicial review. In Sierra
Club v. Glickman, 156 F.3d 606 (5th Cir. 1998), the Fifth Circuit held that § 701(a)(2) did not
preclude review of an agency’s failure to follow 16 U.S.C. § 1536(a)(1)’s “clear statutory
directive (it uses the word ‘shall’) requiring the federal agencies to consult and develop programs
for the conservation of each of the endangered and threatened species listed pursuant to the
[ESA].” Id. at 617. In this case, however, there is no such “clear statutory directive,” unless we
are to count the permissive language providing that “[c]ritical habitat may be
established”—language whose permissive character is not qualified by any other statutory limit
on the Service’s discretion. 16 U.S.C. § 1532(5)(B).

23
that the word “may” should not be read “in isolation.” Appellants’ Br. 51. But we

do no such thing. Instead, we observe that in context—against the backdrop of a

statutory and regulatory regime that provides absolutely no standards that

constrain the Service’s discretion—the statute’s permissive language makes it all

the more apparent that the decision at issue is committed to agency discretion.16

We also note that courts often consider the nature of the challenged decision

and its suitability for judicial review in determining whether it is committed to

agency discretion. In Florida Department of Business Regulation, we held the

Secretary’s decision to be committed to agency discretion in part because it

“involve[d] a myriad of factors, including internal management constraints

relating to budget limits, the particular needs of the numerous individual Indians

16
The case Plaintiffs cite in support of this argument does nothing to strengthen it. In
Amador County v. Salazar, 640 F.3d 373 (D.C. Cir. 2011), the D.C. Circuit chided an agency for
arguing that Congress’s use of the word “may” showed that the challenged decision was
committed to agency discretion. Id. at 380–81. However, the statute at issue in that case
provided that the agency “may disapprove a compact . . . only if such compact violates—(i) any
provision of this chapter, (ii) any other provision of Federal law . . . , or (iii) the trust obligations
of the United States to Indians.” Id. (alterations in original) (second emphasis added) (quoting 25
U.S.C. § 2710(d)(8)(B)) (internal quotation marks omitted).
That case is unlike this one. In Amador County, an “only if” clause limited the agency’s
options, allowing action only under specified conditions. See id. at 381 (“[S]ubsection
(d)(8)(B)’s use of ‘may’ is best read to limit the circumstances in which disapproval is
allowed.”). But in this case, in stark contrast, the permission granted by the word “may” is
unqualified. Plaintiffs argue that the clause “as set forth in subparagraph (A) of this paragraph”
qualifies the permission granted by the word “may.” 16 U.S.C. § 1532(5)(B). But we have
already explained why subparagraph (A) does not limit the Service’s discretion in making the
initial decision whether to designate critical habitat. See supra note 14.

24
and Indian tribes, the proposed use of the land, and government resources for

overseeing the land.” 768 F.2d at 1256. And in Heckler, the Supreme Court

relied on “the general unsuitability for judicial review of agency decisions to

refuse enforcement” to justify a presumption that such decisions are committed to

agency discretion by law. 470 U.S. at 831, 105 S. Ct. at 1655.

In this case, similarly, our conclusion finds support in the fact that the

challenged agency decision is a refusal to initiate rulemaking. As the D.C. Circuit

has explained, a denial of a petition for rulemaking shares some, though not all, of

the features that justify the presumption that an agency’s decision not to take

enforcement action is committed to its discretion. See Am. Horse Prot. Ass’n v.

Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987) (“[Heckler’s] reasoning applies to some

extent to a refusal to institute a rulemaking.”). The decision whether to initiate

rulemaking, like the exercise of enforcement discretion, typically involves a

complex balancing of factors, such as the agency’s priorities and the availability of

resources, that the agency is better equipped than courts to undertake. See id.

(“[S]uch decisions require a high level of agency expertise and coordination in

setting priorities.”); cf. Heckler, 470 U.S. at 831–32, 105 S. Ct. at 1656 (“The

agency is far better equipped than the courts to deal with the many variables

involved in the proper ordering of its priorities.”). And a refusal to initiate

25
rulemaking, like a nonenforcement decision, does not involve the exercise of

“‘coercive power over an individual’s liberty or property rights.’” Am. Horse

Prot. Ass’n, 812 F.2d at 4 (quoting Heckler, 470 U.S. at 832, 105 S. Ct. at 1656).

We do not suggest that the denial of a petition for rulemaking is always

unreviewable, or even presumptively unreviewable. Such a notion would be

contrary to precedent. See Massachusetts v. EPA, 549 U.S. 497, 527–28, 127 S.

Ct. 1438, 1459, 167 L. Ed. 2d 248 (2007) (concluding that “[r]efusals to

promulgate rules are . . . susceptible to judicial review, though such review is

extremely limited and highly deferential,” before going on to review the EPA’s

denial of a rulemaking petition requesting the regulation of greenhouse gas

emissions from motor vehicles (internal quotation marks omitted)). But the

features that such a decision shares with nonenforcement decisions further support

our conclusion that, given the absence of any applicable statutory or regulatory

standards, the Service’s decision not to initiate rulemaking to designate critical

habitat for a pre-1978 species is committed to agency discretion by law.

We take care to note that not every agency action that is in some sense

discretionary is exempt from APA review. Otherwise there would be little sense

in the APA’s provision for abuse of discretion review. See Heckler, 470 U.S. at

829, 105 S. Ct. at 1654 (pointing out the tension, noted by some commentators,

26
between a too-literal reading of the statutory phrase “committed to agency

discretion by law” and 5 U.S.C. § 706(2)(A)’s provision for review for abuse of

discretion). Rulemaking inevitably requires the exercise of discretion, but courts

nevertheless review agency rulemaking under the APA. See, e.g., Motor Vehicle

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46, 51, 103 S. Ct.

2856, 2868, 2871, 77 L. Ed. 2d 443 (1983) (holding that the National Highway

Traffic Safety Administration had acted arbitrarily and capriciously when it issued

a rule rescinding a requirement that all cars be manufactured with passive

restraints because the agency “apparently gave no consideration whatever to

modifying the Standard to require that airbag technology be utilized” and “was too

quick to dismiss the safety benefits of automatic seatbelts”). Even an agency’s

denial of a petition for rulemaking may often be reviewable. See Massachusetts v.

EPA, 549 U.S. at 527–28, 127 S. Ct. at 1459. Cases in which § 701(a)(2)

precludes APA review are thus uncommon. See, e.g., Overton Park, 401 U.S. at

410, 91 S. Ct. at 820–21 (characterizing § 701(a)(2) as a “very narrow exception”

applicable only in “rare instances”); Haitian Refugee Ctr., 953 F.2d at 1507

(characterizing § 701(a)(2) as a “very narrow” exception).17 This, however, is

17
It is worth noting, however, that despite the oft-repeated dictum that unreviewability is
rare, for certain types of agency decisions, it is in fact the norm. See Heckler, 470 U.S. at 832,
105 S. Ct. at 1656 (“[A]n agency’s decision not to take enforcement action should be presumed
immune from judicial review under § 701(a)(2).”); see also ICC v. Bhd. of Locomotive Eng’rs,

27
such a case.

III.

For the foregoing reasons, we conclude that the APA does not authorize

judicial review of the Service’s denial of Plaintiffs’ petitions to initiate rulemaking

to designate critical habitat for the Florida panther. Accordingly, the judgment of

the district court is

AFFIRMED.

482 U.S. 270, 282, 107 S. Ct. 2360, 2367–68, 96 L. Ed. 2d 222 (1987) (suggesting that
§ 701(a)(2) “was meant to preserve” a “tradition of nonreviewability [that] exists with regard to
refusals to reconsider for material error [in the original decision, rather than for new evidence or
for changed circumstances arising after the original decision], by agencies as by lower courts”).

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