In Re: Endangered Species Act Section 4

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2012 Decided January 4, 2013

No. 11-5274

IN RE: ENDANGERED SPECIES ACT SECTION 4
DEADLINE LITIGATION - MDL NO. 2165,

WILDEARTH GUARDIANS AND CENTER
FOR BIOLOGICAL DIVERSITY,
APPELLEES

SAFARI CLUB INTERNATIONAL,
APPELLANT

v.

KENNETH LEE SALAZAR AND UNITED STATES
FISH AND WILDLIFE SERVICE,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-mc-00377)

Douglas S. Burdin argued the cause for appellant. With him
on the briefs was Anna M. Seidman.

Nicholas A. DiMascio, Attorney, U.S. Department of
Justice, argued the cause for federal appellees. With him on the
brief was Joan M. Pepin, Attorney. Ellen J. Durkee and
 2

Sambhav N. Sankar, Attorneys, entered appearances. R. Craig
Lawrence, Assistant U.S. Attorney, entered an appearance.

James Jay Tutchton and Amy Atwood were on the brief for
appellees Center for Biological Diversity, et al. Melissa A.
Hailey entered an appearance.

Before: ROGERS and TATEL, Circuit Judges, and EDWARDS,
Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The Center for Biological Diversity
and the WildEarth Guardians sued to compel the Secretary of
the Interior and the U.S. Fish and Wildlife Service (together, the
“Service”) to comply with deadlines set forth in the Endangered
Species Act, 16 U.S.C. § 1533(b)(3), for determining whether
to list species as endangered or threatened. As the cases neared
settlement, the Safari Club International (“Safari Club”) moved
to intervene pursuant to Federal Rule of Civil Procedure 24 in
order to oppose the settlements which would include three
species that its members hunt. The district court denied
intervention and approved the settlement agreements. On
appeal, the Safari Club contends it qualified for intervention as
of right, as well as permissively. We affirm.

I.

The Endangered Species Act (“ESA”) was enacted, in part,
“to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be
conserved, [and] a program for the conservation of such
endangered species and threatened species.” 16 U.S.C.
§ 1531(b). Species receive protection pursuant to a listing
process commenced either by the Service, acting on behalf of
 3

the Secretary of Interior, or by petition of an interested party.
Id. § 1533(a), (b)(3)(A). If the Service determines that listing
a species is warranted, it must proceed by rulemaking. Id.
§ 1533(b)(3)(B)(ii), (b)(5)-(6). The Service must make the
decision to formally list a species “solely on the basis of the best
scientific and commercial data available,” and upon
consideration of any of five factors. Id. § 1533(a)(1), (b)(1)(A).
The ESA’s protections apply only after a species is formally
listed. Id. § 1538(a). Those protections make it unlawful to
“take” any listed species, id. § 1538(a)(1)(B), which includes
hunting, id. § 1532(19). Neither the ESA nor the implementing
regulations prohibit hunting of species prior to formal listing,
including those determined to be warranted-but-precluded
candidates for listing.

The ESA also establishes timetables for the Service to act
on petitions. First, “[t]o the maximum extent practicable, within
90 days after receiving” a petition, the Service “shall make a
finding as to whether the petition presents substantial scientific
or commercial information indicating that the petitioned action
may be warranted.” Id. § 1533(b)(3)(A) (the “90-day finding”).
Second, “[w]ithin 12 months after receiving a petition . . .
indicating that the petitioned action may be warranted, the
[Service] shall make one of the following findings”: (1) the
petitioned action is not warranted, (2) the petitioned action is
warranted, or (3) the petitioned action is warranted but “the
immediate proposal and timely promulgation of a final
regulation implementing the petitioned action . . . is precluded
by pending proposals to determine whether any species is an
endangered species or a threatened species” and “expeditious
progress is being made to add qualified species to either of the
lists.” Id. § 1533(b)(3)(B). Third, the Service must annually
review its warranted-but-precluded findings as if they were
resubmitted petitions. Id. § 1533(b)(3)(C)(i), (b)(3)(B)(iii).
 4

The Service annually publishes a Candidate Notice of
Review (“CNOR”), which includes findings on species for
which the Service has determined listing is warranted but
precluded. This notice responds to petitions to list species as
well as the Service’s own identification of species suitable for
listing. See, e.g., 2011 CNOR, 76 Fed. Reg. 66370 (Oct. 26,
2011); 2010 CNOR, 75 Fed. Reg. 69222 (Nov. 10, 2010). As
explained in the 2010 CNOR, “[a] candidate species is one for
which [the Service has] on file sufficient information on
biological vulnerability and threats to support a proposal to list
as endangered or threatened, but for which preparation and
publication of a proposal is precluded by higher priority listing
actions.” 75 Fed. Reg. at 69222. Over the years, the number of
warranted-but-precluded findings has outpaced the number of
listings, creating a backlog of candidate species – 251 species as
of the end of 2010. See id. at 69222-24, 69229-31. At the end
of the end of 2007, the average delay in candidate species
listings was 10.6 years.

In June 2010, the Judicial Panel on Multidistrict Litigation
consolidated a dozen lawsuits filed by the Guardians and the
Center against the Service, and transferred the cases to the
district court in the District of Columbia. Within a year, two
settlement agreements emerged:

P On May 10, 2011, the Guardians and the Service
reached an agreement, and the Guardians moved for approval of
a consent decree. Under the agreement, the Service committed
to adhere to its fiscal year 2011 and 2012 work plans, submit
either a proposed rule or a not-warranted finding for the 251
species on the 2010 CNOR by September 2016, in accordance
with certain benchmarks, and meet specific deadlines for
findings on several candidate species. In return, the Guardians
agreed to dismiss their claims in the multidistrict litigation as
well as several other cases, not to file any lawsuit to compel
 5

compliance with the statutory deadlines or challenge any
warranted-but-precluded finding before March 31, 2017, and not
to submit more than 10 new petitions annually until September
30, 2016.

P On June 16, 2011, the Center and Service reached a
tentative agreement. Under the agreement, the Service
committed to make certain 90-day and 12-month findings by the
end of fiscal year 2011 or 2012 and to submit either proposed
rules or not-warranted findings for certain candidate species by
specific deadlines, while reserving discretion as to the substance
of those decisions. The Center agreed to dismiss its claims in
the consolidated cases and several other lawsuits, and to the
extension of most deadlines set in the agreement if the Center
exceeded specified limitations on its ability to sue the Service.
The agreement was filed in the district court on July 12, 2011.

The Safari Club moved to intervene, pursuant to Rule 24, on
June 27, 2011, in order “to oppose and defeat the settlement[s].”
Safari Mot. to Intervene at 19. The three species of concern to
the Safari Club appear on the 2010 CNOR list: the New
England cottontail, the greater sage grouse, and the lesser
prairie-chicken.1 Under the Guardians’ agreement, the Service
must list the candidates on the 2010 CNOR as endangered or
threatened or find their listing not warranted by September 30,
2016. Both settlements call for the Service to act on the

1
Attached to the motion to intervene were declarations of four
members of the Safari Club attesting that they hunted (1) greater sage
grouse for at least the last five years and had plans to hunt them again,
see Decl. of Rew Goodenow, June 15, 2011; Decl. of Philip Spulnik,
June 15, 2011; (2) New England cottontails for many years and had
plans to continue to do so, see Decl. of Charles Souza, June 19, 2011;
and (3) the lesser prairie-chicken for years and intended to do so again,
see Decl. of Robert Robel, June 21, 2011.
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petitions for the greater sage grouse and New England cottontail
by the end of fiscal year 2015; and for the lesser prairie-chicken,
by November 29, 2012.

The district court denied intervention, finding the Safari
Club lacked standing to intervene as of right and that permissive
intervention at this late date would cause undue delay and
prejudice the parties, and approved the settlement agreements.
In re Endangered Species Act Section 4 Deadline Litig., 277
F.R.D. 1 (D.D.C. 2011) (“Section 4 Deadline Litig.”). The
Safari Club appeals. This court has jurisdiction over the appeal
of the denial of intervention as of right, see Alt. Research &
Dev. Found. v. Veneman, 262 F.3d 406, 409 (D.C. Cir. 2001),
and may exercise supplemental jurisdiction in some instances
over the appeal of a denial of permissive intervention, see In re
Vitamins Antitrust Class Actions, 215 F.3d 26, 31 (D.C. Cir.
2000). Our review of the district’s court’s determination on
standing is de novo. See, e.g., LaRoque v. Holder, 650 F.3d 777,
785 (D.C. Cir. 2011); Nat’l Wrestling Coaches Ass’n v. Dep’t of
Educ., 366 F.3d 930, 937 (D.C. Cir. 2004).

II.

Rule 24(a) provides, in relevant part:

On timely motion, the court must permit anyone to
intervene who . . . claims an interest relating to the
property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a
practical matter impair or impede the movant’s ability
to protect its interest, unless existing parties adequately
represent that interest.

Fed. R. Civ. P. 24(a). See Fund for Animals, Inc. v. Norton, 322
F.3d 728, 731 (D.C. Cir. 2003); Mova Pharm. Corp. v. Shalala,
 7

140 F.3d 1060, 1074 (D.C. Cir. 1998). This court has held that
a movant seeking to intervene as of right must additionally
demonstrate Article III standing. See United States v. Philip
Morris USA, Inc., 566 F.3d 1095, 1146 (D.C. Cir. 2009); Fund
for Animals, 322 F.3d at 731–32; Military Toxics Project v.
EPA, 146 F.3d 948, 953 (D.C. Cir. 1998); Mova Pharm., 140
F.3d at 1074; Bldg. & Constr. Trades Dep’t v. Reich, 40 F.3d
1275, 1282 (D.C. Cir. 1994). “[T]he underlying rationale for
this requirement is clear: because a Rule 24 intervenor seeks to
participate on an equal footing with the original parties to the
suit, he must satisfy the standing requirements imposed on those
parties.” City of Cleveland v. NRC, 17 F.3d 1515, 1517 (D.C.
Cir. 1994).

To demonstrate its standing, the Safari Club invokes the
procedural rights doctrine, contending that the settlement
agreements “establish an illegal procedure — the elimination of
the Service’s statutory authority to find that a proposal to list a
species is warranted but precluded by higher priorities.”
Appellant’s Br. 28. It maintains that it has shown standing
because “this illegal procedure is likely to lead to the listing of
three game species,” which “would end the hunting and
sustainable use conservation of these species by Safari Club and
its members.” Id. Put otherwise, the Safari Club asserts an
interest in hunting the three species during the Service’s delays
in listing those candidate species.

The Supreme Court has afforded special treatment to
procedural injuries under Article III, noting that “[t]here is much
truth to the assertion that ‘procedural rights’ are special: The
person who has been accorded a procedural right to protect his
concrete interests can assert that right without meeting all the
normal standards for redressability and immediacy.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992). The
doctrine “loosen[s] the strictures” of the standing inquiry,
 8

Summers v. Earth Island Inst., 129 S. Ct. 1142, 1151 (2009), by
relaxing the immediacy and redressability requirements, Lujan,
504 U.S. at 572 n.7. An individual can enforce his procedural
rights “so long as the procedures in question are designed to
protect some threatened concrete interest of his that is the
ultimate basis of his standing.” Id. at 573 n.8. As explained by
this court, the doctrine “relieves the plaintiff of the need to
demonstrate that (1) the agency action would have been
different but for the procedural violation, and (2) . . . court-
ordered compliance with the procedure would alter the final
result.” Nat’l Parks Conserv. Ass’n v. Manson, 414 F.3d 1, 5
(D.C. Cir. 2005) (citation omitted). It has treated “[t]he
hypothetical in footnote 7 of Lujan [as] represent[ing] the
archetypal procedural injury: an agency’s failure to prepare a
statutorily required environmental statement before taking
action with potential adverse consequences to the environment.”
Nat’l Parks Conserv. Ass’n, 414 F.3d at 5. In that hypothetical,
“one living adjacent to the site for proposed construction of a
federally licensed dam has standing to challenge the licensing
agency’s failure to prepare an environmental impact statement,
even though he cannot establish with any certainty that the
statement will cause the license to be withheld or altered, and
even though the dam will not be completed for many years.”
Lujan, 504 U.S. at 572 n.7.

The Safari Club has neither identified a statutory procedure
that the settlement agreements require the Service to violate, nor
shown that the warranted-but-precluded finding is designed to
protect its interest in delaying formal listing. First, it has not
shown that the agreements cause the Service to violate any ESA-
mandated procedure. Rather, as the Service puts it, the
agreements are “an exercise — not an abdication — of the
Service’s authority under the ESA.” Fed. Appellees’ Br. 13.
The Service has set a schedule for addressing all candidate
species on the 2010 CNOR and therefore, by the dates set in the
 9

agreements, will not continue to find listing those species to be
precluded. See id. The Safari Club’s position presumes that
before the Service can propose to list a species, the ESA requires
it first to decide whether listing is precluded. The ESA includes
no such procedure. Although the Service must make one of
three findings — that listing a species is not warranted, is
warranted, or is warranted but precluded — within twelve
months after receiving a petition for listing, 16 U.S.C.
§ 1533(b)(3)(B), the ESA does not require the Service to find
that listing a species is precluded under any specific
circumstances. Instead, the ESA instructs the Service to make
one of the three findings, of which warranted-but-precluded is
one. Additionally, the Service may propose to list any qualified
species on its own initiative, and the ESA does not condition
that authority on findings concerning preclusion. See 16 U.S.C.
§ 1533(a).

Furthermore, Congress has authorized judicial review of
only not-warranted and warranted-but-precluded findings, but
not warranted findings. 16 U.S.C. § 1533(b)(3)(C)(ii). Its
failure to provide for such review indicates it is foreclosed. See
Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003).
Instead, a person aggrieved by a warranted finding may
challenge the Service’s final rule listing the species. See, e.g.,
Bldg. Indus. Ass’n v. Norton, 247 F.3d 1241 (D.C. Cir. 2001).
Thus, as the Safari Club as much as admits, see Appellant’s Br.
29, 42; Oral Arg. Tape. 8:04-37, when the Service proposes to
formally list a species that is on the 2010 CNOR, the ESA
provides no means for the Safari Club to assert that formal
listing of the species is precluded. Congress’ failure to provide
the Safari Club with a means to require continued warranted-
but-precluded findings reinforces the conclusion that the ESA
contains no such procedural right.
 10

Second, the Safari Club has failed to demonstrate that the
warranted-but-precluded procedure is “designed to protect some
threatened concrete interest of [its] that is the ultimate basis of
[its claim of] standing.” Lujan, 504 U.S. at 573 n.8. In Center
for Law & Education v. Dep’t of Education, 396 F.3d 1152,
1152 (D.C. Cir. 2005), several advocacy organizations and a
parent sued the Department of Education challenging the
composition of a rulemaking committee required by the No
Child Left Behind Act. The court held that the organizations
lacked standing because the procedures for the rulemaking
process were not designed to protect their interests. Id. at 1157.
As to the individual plaintiff, the court questioned whether the
procedures were “‘designed to protect’ the interests of parents
and students,’” id., noting that Congress’ concern was that the
process “‘be conducted in a timely manner’” and “did not
endorse ‘protective’ litigation regarding the formation of the
committee amidst the time-limited rulemaking process,” id. So
too here.

The Safari Club seeks to delay listing of three species that
its members hunt while the structure of the ESA’s listing
procedures indicates that Congress did not endorse suits to
forestall listing decisions. As the Service points out, this is
apparent from both the judicial review provision, which does not
authorize review of warranted findings, and the warranted-but-
precluded provision, which requires the Service to find that the
Service is making “expeditious progress . . . to add qualified
species” to the lists of endangered and threatened species. 16
U.S.C. § 1533(b)(3)(B)(iii)(II). Other circuits have observed
that Congress’ purpose in enacting the ESA provisions setting
the timetables for the Service, of which the warranted-but-
precluded provision is a part, was “to facilitate the addition of
endangered species to the endangered species list.” Idaho Farm
Bureau Fed’n v. Babbit, 58 F.3d 1392, 1401 (9th Cir. 1995).
The Ninth Circuit referenced the legislative history indicating
 11

concern about “‘the decline in the pace of listing species . . . in
recent years,’” id. at 1400 (quoting H.R. REP. NO. 97-567
(1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2809), and noted
that in the 1982 amendments Congress sought “‘to expedite the
decisionmaking process and to ensure prompt action in
determining the status of the many species which may require
the protections of the Act.’” Id. (quoting H.R. CONF. REP. NO.
97-835 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2860).
Similarly, the Tenth Circuit concluded that in the 1982
procedures Congress sought “to force the Service to act more
quickly on petitions to list.” Biodiversity Legal Found. v.
Babbitt, 146 F.3d 1249, 1253 (10th Cir. 1998), (citing H.R.
CONF. REP. NO. 97-835 (1982), reprinted in 1982 U.S.C.C.A.N.
2860, 2861-62).

It is true that Congress also included “relief valves for the
benefit of the Service given its limited resources.” Fed.
Appellees’ Br. 19. These include the provisions for the Service
to make a 90 day finding “to the maximum extent practicable”
and temporarily excusing the failure to publish a proposed
listing rule in the Federal Register if “precluded by pending
proposals.” 16 U.S.C. § 1533(b)(3)(A), (b)(3)(B)(iii)(I). But
there is nothing to indicate that Congress intended these
provisions “to allow the Se[rvice] to delay commencing the
rulemaking process for any reason other than the existence of
pending or imminent proposals to list species subject to a greater
degree of threat [that] would make allocation of resources to
such a petition unwise.” H.R. CONF. REP. NO. 97-835 (1982),
reprinted in 1982 U.S.C.C.A.N. 2860, 2862. Regardless of
whether the Safari Club defines its interest as hunting or
“sustainable use conservation,” Appellant’s Br. 30, Congress did
not design the procedures the Safari Club invokes to protect its
interest in delaying formal listing decisions. Instead, those
procedures were designed to expedite the listing process
consistent with the Service’s available resources. Although the
 12

“designed to protect” inquiry, similar to the zone of interest test,
see Int’l Bhd. of Teamsters v. Peña, 17 F.3d 1478, 1483–84
(D.C. Cir. 1994), may not be especially demanding, see, e.g.,
Shays v. FEC, 414 F.3d 76, 91 (D.C. Cir. 2005), it cannot
plausibly be stretched to encompass situations where an
individual interest is contrary to the statutory purpose.

To the extent the Safari Club separately claims that it is
injured by denial of a right to comment, see Appellant’s Reply
Br. 5, 8–10, neither the ESA nor the implementing regulations
require the Service to invite comment when the it makes a
warranted-but-precluded finding. See 16 U.S.C.
§ 1533(b)(3)(B); 50 C.F.R. § 424.15. The ESA merely requires
the Service to publish its warranted-but-precluded findings in
the Federal Register. 16 U.S.C. § 1533(b)(3)(B)(iii). And the
regulations do not require the Service to publish the CNORs on
which the Safari Club appears to claim a right to comment and,
indeed, provide that “none of the substantive or procedural
provisions of the ESA apply to a species that is designated as a
candidate for listing.” 15 C.F.R. § 424.15.

Because the Safari Club has failed to identify a violation of
a procedural right afforded by the ESA that is designed to
protect its interests, see Center for Law & Educ., 396 F.3d at
1157, the district court did not err in ruling that the Safari Club
lacked standing and therefore was ineligible to intervene as of
right, see Section 4 Deadline Litig., 277 F.R.D. at 7.

III.

Alternatively, the Safari Club contends that the district court
abused its discretion in denying permissive intervention because
the claims the Safari Club seeks to raise — the reasonableness,
legality, fairness, and public interest of the proposed settlement
agreement — share common questions of law and fact with the
 13

district court’s consideration of whether to approve the
settlement agreements. See Appellant’s Br. 44 (citing Citizens
for a Better Env’t. v. Gorsuch, 718 F.2d 1117, 1128 (D.C. Cir.
1983)).

Rule 24(b) provides, in relevant part:

On timely motion, the court may permit anyone to
intervene who . . . has a claim or defense that shares
with the main action a common question of law or fact.

Id. Subsection (b)(3) provides that “[i]n exercising its
discretion, the court must consider whether the intervention will
unduly delay or prejudice the adjudication of the original
parties’ rights.”

The denial of a Rule 24(b) motion is not usually appealable
in itself, although the court may exercise its pendent appellate
jurisdiction to reach questions that are “‘inextricably intertwined
with ones of which we have direct jurisdiction.’” In re
Vitamins, 215 F. 3d at 31 (quoting Twelve John Does v. District
of Columbia, 117 F.3d 571, 574 (D.C. Cir. 1997)). Here, as in
In re Vitamins, the basis for the Safari’s Club’s motion for
permissive intervention is the same as that for intervention as of
right. To that extent the questions are “inextricably
intertwined.” See id.

It remains, however, an open question in this circuit
whether Article III standing is required for permissive
intervention. See id. at 31–32 (comparing EEOC v. National
Children’s Center, 146 F.3d 1042, 1045–46 (D.C. Cir. 1998)
(stating a would-be intervenor needed “an independent ground
for subject matter jurisdiction”), and Diamond v. Charles, 476
U.S. 54, 76 (1986) (O’Connor, J., concurring) (observing that
“[t]he words ‘claim’ or ‘defense’ manifestly refer to the kinds of
 14

claims or defenses that can be raised in courts of law as part of
an actual or impending lawsuit”), with National Children’s
Center, 146 F.3d at 1045–46 (noting that this circuit avoids strict
readings of the phrase “claim or defense,” allowing intervention
“even in ‘situations where the existence of any nominate ‘claim’
or ‘defense’ is difficult to find.’” (quoting Nuesse v. Camp, 385
F.2d 694, 704 (D.C. Cir. 1967)))). The uncertainty about
whether standing is required for permissive intervention remains
today. The Safari Club’s brief cites only National Children’s
Center, 146 F.3d at 1044, which did not address standing but
rather relied on a narrow exception, inapplicable here, to the
subject matter jurisdiction requirement, see id. at 1046. Steel
Co. v. Citizens for a Better Environment, 523 U.S. 83, 94
(1998), precludes a court from reaching the merits issues in the
absence of jurisdiction. If standing is required, then the Safari
Club could not succeed on this theory, for the reasons discussed
in Part II. If it is not, then the Safari Club would need to show
that the district court abused its discretion in concluding that
allowing the Safari Club to intervene this late in the settlement
process would cause undue delay and prejudice by forcing the
Service to continue to litigate instead of working to meet the
agreed upon schedule in the settlement agreements, thereby
consuming scarce resources and jeopardizing the settlements.
Section 4 Deadline Litig., 277 F.R.D. at 8–9. This court has
long acknowledged the “wide latitude afforded” to district courts
under Rule 24(b). National Children’s Center, 146 F.3d at 1046
(internal citations omitted). “In view of this unresolved standing
issue, however, we think it inappropriate to exercise our pendant
jurisdiction.” In re Vitamins, 215 F. 3d at 32.

Accordingly, we affirm the decision of the district court
without reaching the Safari Club’s objections to the settlement
agreements.