National Ass'n of Home Builders v. Norton

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 3, 2004 Decided July 8, 2005

No. 04-5048

NATIONAL ASSOCIATION OF HOME BUILDERS ET AL.,
APPELLANTS

v.

GALE A. NORTON, SECRETARY OF THE UNITED STATES
DEPARTMENT OF INTERIOR ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 00cv02155)

Robert D. Thornton argued the cause for the appellants. John
J. Flynn, III, Duane J. Desiderio, Thomas J. Ward and Felicia
K. Watson were on brief.
Seth M. Barsky, Attorney, United States Department of
Justice, argued the cause for the appellees. Andrew J. Doyle and
Ellen J. Durkee, Attorneys, United States Department of Justice
were on brief.
Before: HENDERSON, TATEL and ROBERTS, Circuit Judges.
 2

Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The National
Association of Home Builders (Home Builders) appeals the
district court’s summary judgment order dismissing its suit
against the United States Department of the Interior (Interior)
and its Fish and Wildlife Service (FWS).1 Nat’l Ass’n of Home
Builders v. Norton, 298 F. Supp. 2d 68 (D.D.C. 2003) (NAHB).
The lawsuit revolves around the FWS’s promulgation of a
survey protocol, first in 1999 and again in revised form in 2000
(together, Protocols), that provides a methodology for the
detection of an endangered subspecies of butterfly in certain
areas of southern California. Before the district court, Home
Builders asserted violations of the Administrative Procedure Act
(APA), 5 U.S.C. §§ 701 et seq., and the Endangered Species Act
(ESA), 16 U.S.C. §§ 1531 et seq., arguing that the FWS failed
to comply with those statutes’ notice and comment provisions.
The district court dismissed the claims for lack of jurisdiction.
NAHB, 298 F. Supp. 2d at 80. We now affirm.
I.
The ESA provides “a means whereby the ecosystems upon
which endangered species and threatened species depend may
be conserved.” 16 U.S.C. § 1531(b). Under section four of the
ESA, the Secretary of the Interior (Secretary) must promulgate
regulations that list species deemed “endangered” or
“threatened” due to, inter alia, the “present or threatened
destruction, modification, or curtailment of its habitat or range.”
Id. § 1533(a)(1)(A), ©)(1); see also Bennett v. Spear, 520 U.S.

1
Home Builders’ lawsuit originally named Bruce Babbitt and James
Clark as defendants in their official capacities as Secretary of the
Interior and Director of the Fish and Wildlife Service, respectively.
Pursuant to FED. R. APP . P. 43©)(2), Gale Norton, current Secretary
of the Interior, and Steven A. Williams, current FWS Director, have
been automatically substituted as parties.
 3

154, 157–58 (1997).2 The Secretary is further charged with
developing and implementing a “recovery plan” for the
“conservation and survival of endangered species and threatened
species.” Id. § 1533(f).
Once a species is designated “endangered” or “threatened,”
the ESA provides a variety of protections, including a
prohibition on “take” of the species. Id. § 1538(a)(1). “Take”
is a term uniquely defined by the ESA to mean: “to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect”
the listed species. Id. § 1532(19). Following the statutory
labyrinth one step deeper, regulations passed pursuant to the
ESA define “harm” as used in the definition of “take” to include

2
The ESA also authorizes the Secretary to designate a certain
geographical area as “critical habitat.” 16 U.S.C. § 1533(a)(3).
Critical habitat is defined as land “essential for the conservation of the
species.” Id. § 1532(5)(A)(ii). A critical habitat designation under
section four affects the obligations of federal agencies under section
seven of the ESA, id. § 1536, but does not alter the scope of an
individual’s potential liability under section nine, id. § 1538, which
extends beyond land specifically designated as critical habitat.
Compare id. § 1536(a)(2) (“Each Federal agency shall … insure that
any [agency action] is not likely to result in the destruction or adverse
modification of habitat of such species which is determined by the
Secretary … to be critical....”) with 50 C.F.R. § 17.3 (establishing
liability under section nine if an individual’s action causes “significant
habitat modification or degradation where it actually kills or injures
wildlife”). “The designation of critical habitat has no effect on non-
Federal actions taken on private land, even if the private land is within
the mapped boundary of designated critical habitat.” Endangered and
Threatened Wildlife and Plants; Designation of Critical Habitat for
the Cactus Ferruginous Pygmy-owl (Glaucidium brasilianum
cactorum) 64 Fed. Reg. 37,419, 37,428 (1999). That there is some
overlap between section nine and section seven of the ESA “is
unexceptional and simply reflects the broad purpose of the Act.”
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,
515 U.S. 687, 703 (1995) (internal citation omitted).
 4

“significant habitat modification or degradation where it actually
kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding or sheltering.”
50 C.F.R. § 17.3; see also, generally, Endangered and
Threatened Wildlife and Plants; Final Redefinition of “Harm,”
46 Fed. Reg. 54,748 (1981). Thus, a landowner can effect a take
of an endangered species, subjecting himself to liability under
the ESA, if he alters the habitat of an endangered species in a
manner that causes death or injury to a member of the species.
The ESA establishes civil and criminal penalties for any person
who unlawfully takes an endangered species. 16 U.S.C. § 1540.
In addition to more traditional enforcement mechanisms using
federal and state personnel, id. § 1540(e), the ESA contains a
“citizen suit” provision that permits a private party to seek
injunctive relief against any landowner “alleged to be in
violation” of the ESA, id. § 1540(g)(1)(A).
Section 10 of the ESA does permit landowners and other non-
federal entities to obtain a permit to “take” a listed species “if
such taking is incidental to, and not the purpose of, the carrying
out of an otherwise lawful activity.” Id. § 1539(a)(1)(B). To
obtain such a permit, the landowner must demonstrate to the
Secretary through a documented conservation plan that the
owner will, inter alia, minimize the impact of the taking and that
the “likelihood of the survival and recovery of the species” will
not be diminished by the taking. Id. § 1539(a)(2)(B)(iv). In
addition, the ESA authorizes the grant of a “recovery” permit,
which enables a researcher to engage in actions “for scientific
purposes” that could result in a taking. Id. § 1539(a)(1)(A).
II.
The quino checkerspot butterfly (Quino) is a small butterfly
native to southwestern California and northwestern Mexico.
The Quino was listed as an endangered species on January 16,
1997. Endangered and Threatened Wildlife and Plants;
Determination of Endangered Status for the Laguna Mountains
 5

Skipper and the Quino Checkerspot Butterfly (Euphydryas
editha quino), 62 Fed. Reg. 2313 (1997) (Listing Rule). Once
abundant, only seven or eight known colonies of Quino remain
in the United States, all in Riverside and San Diego counties in
California. Id. at 2315. The primary suspected cause of the loss
of the species is the destruction of Quino habitat through
development, grazing and fragmentation. Id. at 2317–2319. See
also Endangered and Threatened Wildlife and Plants;
Designation of Critical Habitat for the Quino Checkerspot
Butterfly (Euphydryas editha quino), 67 Fed. Reg. 18,356,
18,359 (2002) (Critical Habitat Designation). Quino require a
very particular habitat to survive, owing in part to their reliance
on specific host plants during the larval life stage. Listing Rule,
62 Fed. Reg. at 2314. The Quino live as adult butterflies only
for a period of roughly four to eight weeks. Id. The wingspan
of an adult Quino measures a mere one inch. Id. Their flight
season lasts from mid-January until late April, but peaks in
March and April. Id. Quino do not fly in adverse weather
conditions such as rain or wind, however, which, combined with
their short lifespan and small size, can make detection difficult.
The FWS issued its first guidance for detecting the Quino
several months after listing the butterfly as fully protected by the
ESA. See U.S. Fish and Wildlife Service, Interim General
Survey Protocols and Mitigation Guidelines for the Endangered
Quino Checkerspot Butterfly (November 4, 1997) (Interim
Protocol).
Based on information gathered during the 1998 field season,
as well as consultation with scientists and species experts, the
FWS revised the Interim Protocol and promulgated the “Survey
Protocol for the Endangered Quino Checkerspot Butterfly
(Euphydryas editha quino) for the 1999 Field Season” (1999
Protocol), reprinted in Joint Appendix (J.A.) at 87–111, on
January 25, 1999. The FWS did not, however, engage in formal
notice and comment proceedings in drafting the 1999 Protocol.
On February 1, 1999, a notice of availability for the 1999
 6

Protocol was published in the Federal Register.3 Notice of
Availability of a Recommended Survey Protocol for the
Endangered Quino Checkerspot Butterfly (Euphydryas editha
quino) for the 1999 Field Season, 64 Fed. Reg. 4890 (1999)
(1999 Notice of Availability). The notice of availability referred
to the 1999 Protocol in both its title and text as “recommended.”
Id. It also provided an address where “comments,” “data” and
“materials concerning the survey protocol” could be sent for the
FWS’s consideration during the development of a revised
protocol for the 2000 field season. Id. The text of the 1999
Protocol identified on a map attached to the 1999 Protocol as
Appendix B “areas with no potential for Quino, with potential
habitat where adult surveys may be necessary of [sic] suitable
habitat occurs on a site, and with Quino habitat where adult
surveys should be conducted.” 1999 Protocol at 1 & App. B,
reprinted in J.A. at 90, 98. It recommended, but did not
mandate, habitat assessment in areas designated by the FWS as
Potential Habitat Areas and adult surveys in the Adult Focused
Survey Areas or if a habitat assessment indicated suitable Quino
habitat. Id. The 1999 Protocol stipulated that in order to avoid
take of the species, adult surveys “must be conducted by a
biologist possessing a recovery permit pursuant to section
10(a)(1)(A) of the [ESA].” Id. at 1, reprinted in J.A. at 90; see
16 U.S.C. § 1539(a)(1)(A).
The FWS published a revised protocol in the year 2000. U.S.
Fish and Wildlife Service, Quino Checkerspot Butterfly
(Euphydryas editha quino) Year 2000 Survey Protocol (2000
Protocol), reprinted in J.A. at 112–21. Again, a notice of
availability regarding the “recommended survey protocol for the
3
The protocol itself was not published in the Federal Register; it
could be obtained by visiting either the FWS’s Region 1 web page or
the Carlsbad, California Fish and Wildlife Office. Notice of
Availability of a Recommended Survey Protocol for the Endangered
Quino Checkerspot Butterfly (Euphydryas editha quino) for the 1999
Field Season, 64 Fed. Reg. 4890 (1999).
 7

2000 field season” was published in the Federal Register.
Notice of Availability of a Recommended Year 2000 Survey
Protocol for the Endangered Quino Checkerspot Butterfly
(Euphydryas editha quino), 65 Fed. Reg. 8188 (2000) (2000
Notice of Availability). The revisions were based on
information derived from public workshops, the input of a new
“recovery team,” the development of the recovery plan, the 1999
survey reports and public comments. 2000 Protocol at 1,
reprinted in J.A. at 113. The 2000 Protocol provides
substantially more detail regarding survey methodology than the
1999 Protocol did. Compare 1999 Protocol at 1–4, reprinted in
J.A. at 90–93, with 2000 Protocol at 2–6, reprinted in J.A. at
114–118. As with the 1999 Protocol, however, the FWS
describes the 2000 Protocol as merely “recommended” except
for “requirements for biologists conducting quino butterfly
surveys under recovery permits.” 2000 Protocol at 1, reprinted
in J.A. at 113. Both Protocols also warn that “surveys may not
be considered valid if … the specific survey methods described
above are not followed.” 2000 Protocol at 6, reprinted in J.A.
at 118; see also 1999 Protocol at 4, reprinted in J.A. at 93.
Home Builders, a non-profit advocacy group that represents
individuals and companies in the residential construction
industry, filed suit in federal district court, alleging, inter alia,
that the 1999 and 2000 Protocols constituted a “rule” subject to
the notice and comment provisions of the APA. 5 U.S.C. § 553.
Thus, according to Home Builders, in promulgating the
Protocols the FWS exceeded its authority under the ESA by
failing to comply with section 553 of the APA and section
4(b)(4) of the ESA, 16 U.S.C. § 1533(b)(4) (incorporating
APA’s notice and comment requirements with respect to “any
regulation promulgated to carry out the purposes” of the ESA).
Compl. 13–25. In NAHB, the district court dismissed the suit at
the summary judgment stage, holding that the Protocols did not
constitute “final agency action” and thus the court lacked
jurisdiction under sections 702 and 704 of the APA. 298 F.
 8

Supp. 2d at 79. Specifically, the court found that the Protocols
did not satisfy the finality test established by the United States
Supreme Court in Bennett v. Spear, 520 U.S. 154, 178 (1997),
because “the Protocols do not determine rights or obligations of
landowners and legal consequences do not flow from them.”
NAHB, 298 F. Supp. 2d at 76. 4 Home Builders timely filed this
appeal.
III.
We review the district court’s grant of summary judgment de
novo. Saint Luke’s Hosp. v. Thompson, 355 F.3d 690, 693 (D.C.
Cir. 2004). The APA authorizes judicial review of “[a]gency
action made reviewable by statute and final agency action for
which there is no other adequate remedy in a court.”5 5 U.S.C.

4
The district court also noted that the claim was not yet ripe for
review and that Home Builders lacked standing because there was
insufficient evidence of injury in fact. Home Builders, 298 F. Supp.
2d at 79–81. Because we affirm the district court’s finding that the
Protocols do not constitute final agency action necessary to confer
jurisdiction under the APA and the ESA, we express no opinion on the
standing and ripeness issues discussed by the district court and raised
in the parties’ briefs. See N.J. Television Corp. v. FCC, 393 F.3d 219,
221 (D.C. Cir. 2004).

5
“Agency action” is defined by the APA as “the whole or part of an
agency rule, order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act.” 5 U.S.C. § 551(13). The FWS and Interior
argue that “ ‘the term [agency action] is not so all-encompassing as to
authorize … judicial review over everything done by an administrative
agency,’ ” and that the Protocols at issue in this case do not meet the
statutory definition of “agency action.” Appellee’s Br. at 21 (quoting
Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir.
2004) (omission in brief)). Home Builders counters that the Protocols
are “rules” within the APA’s definition of “agency action.”
Appellant’s Br. at 16–17. A “rule” is defined as “the whole or part of
an agency statement of general or particular applicability and future
 9

§ 704 (emphasis added). There exists no statutory review
provision in the ESA that authorizes judicial review of agency
action beyond that provided for in the APA. See Cabinet
Mountains Wilderness/Scotchman’s Peak Grizzly Bears v.
Peterson, 685 F.2d 678, 685 (D.C. Cir. 1982). Thus, an agency
action must be final in order to be judicially reviewable. See,
e.g., Ctr. for Law and Educ. v. Dep’t of Educ., 396 F.3d 1152,
1165 (D.C. Cir. 2005) (“APA … bars review prior to final
agency action.”); Indep. Petroleum Ass’n of Am. v. Babbitt, 235
F.3d 588, 594 (D.C. Cir. 2001) (“ ‘[T]he requirement of a final
agency action has been considered jurisdictional. If the agency
action is not final, the court … cannot reach the merits of the
dispute.’ ” (quoting DRG Funding Corp. v. Sec’y of Housing &
Urban Dev., 76 F.3d 1212 (D.C. Cir. 1996))).
The Supreme Court has established a two-part test to
determine when an agency action is reviewable as “final.” First,
the action under review “must mark the ‘consummation’ of the
agency’s decisionmaking process—it must not be of a merely
tentative or interlocutory nature.” Bennett v. Spear, 520 U.S.
154, 177–78 (1997) (citing Chicago & S. Air Lines, Inc. v.

effect designed to implement, interpret, or prescribe law or policy.” 5
U.S.C. § 551(4). Courts have struggled to classify documents such as
the Protocols here. See, e.g., Syncor Int’l Corp. v. Shalala, 127 F.3d
90, 93–94 (D.C. Cir. 1997) (citing cases discussing difficulty in
distinguishing between “guidance” documents and rules). Because we
find the issue of finality dispositive on the question of jurisdiction, we
need not decide whether each Protocol constitutes a “rule” as defined
by the APA. Moreover, we express no opinion on whether the
Protocols might constitute a procedural or substantive rule for
purposes of the APA’s notice and comment provisions. Compare 5
U.S.C. § 553(b)(1)–(3), ©), (d) (requiring notice and comment
proceedings to promulgate rule) with id. § 553(b)(A) (exempting
“interpretive rules, general statements of policy, or rules of agency
organization, procedure, or practice” from notice and comment
requirement).
 10

Waterman S.S. Corp., 333 U.S. 431, 437 (1948). Second, the
action must “be one by which ‘rights or obligations have been
determined,’ or from which ‘legal consequences will flow.’ ”
Bennett, 520 U.S. at 178 (quoting Port of Boston Marine
Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S.
62, 71 (1970)). The Protocols at issue in this case clearly
marked the consummation of the decisionmaking process. The
Protocols were published after the FWS solicited input from
specialists and reviewed data from past field seasons. 1999
Protocol at 1, reprinted in J.A. at 90; 2000 Protocol at 2,
reprinted in J.A. at 114. A notice of availability was published
each year in the Federal Register. 1999 Notice of Availability,
64 Fed. Reg. at 4890; 2000 Notice of Availability, 65 Fed. Reg.
at 8180. Ongoing revisions to the Protocols based on new data
and feedback from interested parties do not negate finality. See
United States Air Tour Ass’n. v. FAA, 298 F.3d 997, 1013 (D.C.
Cir. 2002). Thus, the pivotal issue is whether the 1999 and 2000
Protocols published by the FWS are documents “by which rights
or obligations have been determined, or from which legal
consequences will flow.” Bennett, 520 U.S. at 178 (internal
quotation marks omitted).
Home Builders asserts three arguments to support its view that
the Protocols impose legal obligations. It first claims that the
Protocols are binding on their face. This argument fails to pass
muster. The Protocols are consistently referred to in agency
documents as “recommended,” rather than mandatory. See, e.g.,
1999 Notice of Availability, 64 Fed. Reg. at 4890 (referring to
1999 Protocol as “recommended” in both title and text); 2000
Notice of Availability, 65 Fed. Reg. at 8188 (same); 1999
Protocol at I, reprinted in J.A. at 88 (protocol “recommended”);
2000 Protocol at 3, reprinted in J.A. at 114 (protocol surveys
“recommended”). Morever, in a letter from the FWS Director
to several members of the Congress, the agency stated that the
“survey protocol does not contain any prohibitions or
restrictions on land development, nor should the protocol be
 11

interpreted as such.” Letter from Clark to Calvert at 1 (Apr. 16,
1999). An agency’s past characterization of its own action,
while not decisive, is entitled to respect in a finality analysis.
See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (agency
opinion constitutes “body of experience and informed judgment
to which courts and litigants may properly resort for guidance”);
see also Christensen v. Harris County, 529 U.S. 576, 587 (2000)
(opinion letters entitled to respect under Skidmore “to the extent
those interpretations have the power to persuade” (internal
quotation marks omitted)). But cf. Appalachian Power Co. v.
Envt’l Prot. Agency, 208 F.3d 1015, 1023 (D.C. Cir. 2000)
(disregarding “boilerplate” non-final action language in
guidance document). Despite some mandatory language in the
Protocols regarding how the survey should be conducted in
order to maximize accuracy and minimize incidental take of the
species (“Butterfly surveys may only be conducted by a
biologist possessing a current recovery permit,” 2000 Protocol
at 2, reprinted in J.A. at 113), neither the 1999 nor the 2000
Protocol contains any language compelling a landowner to
conduct a survey at all. “Protocol surveys,” according to the
FWS, merely “are recommended for all sites partially or
completely within … survey areas.” 2000 Protocol at 2,
reprinted in J.A. at 113 (emphasis added).
Given the voluntary nature of the language contained in the
Protocols, it is futile for Home Builders to argue that the
Protocols are binding on their face. Home Builders goes on to
argue, however, that the Protocols constitute final agency action
because in practice they have a coercive effect on both
landowners and local governments, in effect compelling
compliance with the Protocols in order to avoid prosecution for
unlawful take of the species. Appellant’s Br. at 24–35. Finality
resulting from the practical effect of an ostensibly non-binding
agency proclamation is a concept we have recognized in the
past. See Gen. Elec. Co. v. Envt’l Prot. Agency, 290 F.3d 377,
383 (D.C. Cir. 2002) (“if the language of the document is such
 12

that private parties can rely on it as a norm or safe harbor by
which to shape their actions, it can be binding as a practical
matter”); McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317,
1321 (D.C. Cir. 1988) (agency action, though facially non-
binding, “created a norm with present day binding effect”)
(internal quotation marks omitted). Nevertheless, if the practical
effect of the agency action is not a certain change in the legal
obligations of a party, the action is non-final for the purpose of
judicial review. See DRG Funding Corp. v. Sec’y of Housing
and Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996) (agency
order non-final that “does not itself adversely affect complainant
but only affects his rights adversely on the contingency of future
administrative action”) (internal quotation marks omitted).
Thus, we have held that “[p]ractical consequences, such as the
threat of having to defend itself in an administrative hearing
should the agency actually decide to pursue enforcement, are
insufficient to bring an agency’s conduct under our purview.”
Indep. Equip. Dealers Ass’n v. Envt’l Prot. Agency, 372 F.3d
420 (2004) (internal quotation marks omitted).
There is nothing in the record to support Home Builders’
claim that the Protocols could affect the outcome of an
enforcement proceeding. Just as compliance with the Protocols
does not provide a “safe harbor” from prosecution, Gen. Elec.,
290 F.3d at 383, failure to comply does not change the legal
burden placed on the government (or on a private party in a
citizen suit) in a suit for injunctive relief: the enforcing party
must convince the court that “the alleged activity has actually
harmed the species or … will actually, as opposed to potentially,
cause harm to the species.” Am. Bald Eagle v. Bhatti, 9 F.3d
163, 166 (1st Cir. 1993). The results of the survey, the decision
to conduct a site assessment but not a survey, the failure to
perform either, or any other course of action by the landowner
would constitute just one piece of the evidence necessary to
obtain an injunction. At the time of any enforcement
proceeding, the landowner can challenge the soundness of the
 13

Protocols’ methodology, Pac. Gas & Elec. Co. v. Fed. Power
Comm’n, 506 F.2d 33, 39 (D.C. Cir. 1974) (methodology
“subject to complete attack”), and to demonstrate that no take is
likely to result from his actions. AT&T v. Equal Employment
Opportunity Comm’n, 270 F.3d 973, 976 (D.C. Cir. 2001)
(Agency guidance “has force only to the extent the agency can
persuade a court to the same conclusion.”).6 Moreover, the ESA
has not brought any enforcement action against a landowner for
failing to comply with the Protocols. Thus, in the absence of
any record evidence to the contrary, it appears that the scope of
a landowner’s liability under section nine of the ESA remains
exactly as it was before the Protocols’ publication: a complete
prohibition on “take” of any endangered species. 16 U.S.C. §
1538(a)(1)(B); see Indep. Equip. Dealers, 372 F.3d at 428
(agency action “left the world just as it found it, and thus cannot
be fairly described as implementing, interpreting, or prescribing
law or policy”); Reliable Automatic Sprinkler Co. v. Consumer
Prod. Safety Comm’n, 324 F.3d 726, 732 (D.C. Cir. 2003)
(Agency action not reviewable if action does not “impos[e] any
obligation…, deny[] any right…, or fix[] any legal
relationship.”).

6
The Ninth Circuit confronted an analogous situation with respect
to the Incidental Take Permit (ITP), a statutorily-authorized permit
issued by the FWS under certain circumstances to applicants whose
actions may result in take incident to other lawful activity. 16 U.S.C.
§ 1539(a)(1)(B). In Defenders of Wildlife v. Bernal, 204 F.3d 920
(9th Cir. 1999), the Ninth Circuit held that “pursuing an ITP is not
mandatory and a party can choose whether to proceed with the
permitting process. However, if a party chooses not to secure a
permit and the proposed activity, in fact, takes a listed species, the
ESA authorizes civil and criminal penalties.” Id. at 927 (internal
citations omitted). The Protocols differ from an ITP in that
compliance with the Protocols is not a bar to liability if take occurs,
but in both situations the landowner must decide how confident he is
of his own ability—without agency guidance—to act without causing
take of the species.
 14

Home Builders’ argument that the Protocols exert a coercive
effect on local governments is likewise unavailing. Home
Builders asserts that local permitting agencies have adopted the
Protocols to guard against their own potential liability under
section nine of the ESA. See, e.g., Strahan v. Coxe, 127 F.3d
155, 164 (1st Cir. 1997) (state regulatory scheme constituted
“continuing violation” of section nine of ESA); United States v.
Town of Plymouth, 6 F. Supp. 2d 81, 91 (D. Mass. 1998)
(inadequate shoreline management “harmed” protected species).
Drawing on Appalachian Power, Home Builders characterizes
this case as one in which the agency action “leads private parties
or State permitting authorities to believe that it will declare
permits invalid unless they comply with the terms of the
document.” 208 F.3d at 1021. Yet in Appalachian Power we
were addressing a very different statutory scheme from the one
at issue here. Appalachian Power involved the Clean Air Act,
42 U.S.C. §§ 7401 et seq., which establishes an intricate
permitting process that involves federal review of state operating
permits. See Appalachian Power, 208 F.3d at 1017. The FWS
does not have comparable authority under the ESA to “declare
permits invalid,” id. at 1021. Furthermore, while the record
demonstrates that Riverside and San Diego counties have
adopted the 1999 Protocol as part of their building permit
process, there is no evidence that helps to reveal the local
officials’ reason for doing so, much less evidence that local
officials were coerced by the FWS. While the FWS did issue a
letter to the City of Thousand Oaks, California in response to a
draft environmental impact report for a proposed golf course in
which it noted that the location of the golf course was within a
potential habitat area for Quino, Letter from Noda to Smith
(Feb. 22, 1999), such warning is within the authority of the FWS
under section nine of the ESA. Marbled Murrelet v. Babbitt, 83
F.3d 1068, 1074 (9th Cir. 1996). Thus, the record is inadequate
to support a finding that the Protocols have the practical effect
 15

of binding interested parties to their terms. Gen. Elec. Co., 290
F.3d at 383; McLouth Steel, 838 F.2d at 1321.
Home Builders’ third argument is that the Protocols constitute
final agency action because they cabin the agency’s discretion.
Appellant’s Br. at 36. In Cmty. Nutrition Inst. v. Young, 818
F.2d 943 (D.C. Cir. 1987), this court concluded that an FDA
action level for alfatoxins in corn was a substantive rule because
the language of the action level resulted in a “cabining of [the]
agency’s prosecutorial discretion.” Id. at 948. The language of
the Protocols at issue here is not nearly as severe as that in
Community Nutrition. The regulation in Community Nutrition
stated that “an action level … may be established to define the
level of contamination at which food will be deemed to be
adulterated.” Id. at 947 (emphasis in original). The FDA had
also made statements that any shipment exceeding the stated
toxin level would “be considered adulterated and subject to
condemnation.” Id. at 948 (emphasis in original). No such
binding language appears in either of the Protocols. Non-
conforming surveys may be accepted. 2000 Protocol at 6.
Conforming surveys may also be rejected through the “false
negative” designation.7 There have been no enforcement actions
that indicate whether the FWS considers itself bound by survey
results. Thus, there is insufficient evidence in the record to
conclude that either of the Protocols binds the agency
sufficiently to make it a substantive rule under the reasoning of
Community Nutrition.

7
The “false negative” designation is one used by the FWS if it has
reason to believe that a survey in close proximity to a known Quino
population may have incorrectly found no Quino present. See, e.g.,
Letter from Barrett to Lacy (Sept. 9, 1999) (“[T]he … flight season
was poor and … false negative surveys were highly probable in the
vicinity (within 2 km) of known Quino colonies.”).
 16

For the foregoing reasons, the judgment of the district court is
affirmed.
So ordered.