SW Ctr Bio Divrsty v. Babbitt, Bruce

                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

         Argued May 11, 2000      Decided June 16, 2000 

                           No. 99-5313

       Southwest Center for Biological Diversity, et al., 
                            Appellees

                                v.

                        Bruce Babbitt and 
                Jamie Rappaport Clark, Director, 
                 U.S. Fish and Wildlife Service, 
                            Appellants

          Appeal from the United States District Court 
                  for the District of Columbia 
                          (No. 98cv934)

     Andrew C. Mergen, Attorney, United States Department of 
Justice, argued the cause for appellants.  With him on the 
briefs were Lois J. Schiffer, Assistant Attorney General, and 
James C. Kilbourne, Attorney.  Lisa E. Jones and Elizabeth 
A. Peterson, Attorneys, entered appearances.

     Katherine A. Meyer argued the cause for appellees.  With 
her on the brief was Eric R. Glitzenstein.

     Before:  Edwards, Chief Judge, Randolph and Rogers, 
Circuit Judges.

     Opinion for the Court filed by Chief Judge Edwards.

     Edwards, Chief Judge:  The only issue raised on appeal in 
this case is whether the Endangered Species Act ("Act") 
requires the Fish and Wildlife Service to conduct an on-site 
population count of birds when the currently available data 
are sparse and calculations of a bird species population must 
of necessity be based on estimates.  The Act provides that 
the Secretary of the Interior must make decisions whether to 
list a species as endangered or threatened "solely on the basis 
of the best scientific and commercial data available to 
him...."  16 U.S.C. s 1533(b)(1)(A) (1994).  Appellees, the 
Southwest Center for Biological Diversity, et al., ("Center"), 
argued below that the best available evidence demonstrates 
that the Fish and Wildlife Service should list the Queen 
Charlotte goshawk as a threatened or endangered species 
under 16 U.S.C. s 1533.  Appellants, Bruce Babbitt, et al., 
("Government") countered that the data did not compel such 
a listing.  The principal dispute between the parties before 
the District Court was over what to make of the best avail-
able data, not whether such data existed.  The District Court, 
however, sidestepped the parties' real dispute and concluded 
instead that the best available data simply was not good 
enough.

     Indeed, instead of resolving the parties' dispute on the 
basis of the best available data in the record, the District 
Court issued an order remanding the case back to the Fish 
and Wildlife Service with instructions to count the goshawk 
population.  See Southwest Ctr. for Biological Diversity v. 
Babbitt, Civ. No. 98-934, Order (D.D.C. July 20, 1999) ("Or-
der"), reprinted in Joint Appendix ("J.A.") 1973.  Appellants 
now challenge this order, claiming that the District Court's 
decision is completely at odds with the statute.  We agree.  
The statute provides that the Secretary's decision must be 
made "solely on the basis of the best scientific and commer-

cial data available to him."  Therefore, on the record at hand, 
the District Court was without authority to order the Secre-
tary to conduct an independent population count of the birds.  
Accordingly, we reverse the District Court's order, and we 
remand the case to the District Court for proper consider-
ation of the parties' positions in light of the Act and an 
assessment of the available evidence.

                             I. FACTS

     On May 9, 1994, the Southwest Center for Biological Diver-
sity filed a petition requesting that the Queen Charlotte 
goshawks, which are a "large, but rarely-seen" subspecies of 
hawks, be listed as threatened or endangered under the Act.  
Southwest Ctr. for Biological Diversity v. Babbitt, 939 
F. Supp. 49, 50 (D.D.C. 1996);  see 16 U.S.C. s 1533(b)(3)(A) 
(1994).  On May 19, 1995, the Fish and Wildlife Service found 
that, based on the best available scientific and commercial 
evidence, no listing was warranted.  See Babbitt, 939 F. Supp. 
at 51.  This initial decision was based on the Fish and 
Wildlife Service's conclusion that the Forest Service would 
address land management options to ensure goshawk habitat 
conservation.  The Center challenged this decision, and, on 
September 25, 1996, the District Court granted a summary 
judgment in favor of the Center, finding that the Secretary 
could not rely on the Forest Service's possible future actions 
"as an excuse for not making a determination based on the 
existing record."  Id. at 52.

     On remand, the Fish and Wildlife Service once again 
declined to list the Queen Charlotte goshawk as a threatened 
or endangered species, and the Center once again challenged 
the agency's determination.  In a July 9, 1999 hearing before 
the District Court, the Government argued that its sole 
obligation under the Endangered Species Act is to consider 
and act on the best available data, which the Government 
claimed it had done.  The District Court persisted, however, 
in suggesting that a population count was necessary.  See, 
e.g., Trial Tr. at 2-3, reprinted in J.A. 1913-14.  The trial 
judge could not be moved from this position, not even by 

plaintiffs' acknowledgment that the District Court was re-
quired to assess the parties' positions in light of the best 
available evidence, not a population count.  Following argu-
ment by the parties, the District Court issued an opinion on 
July 20, 1999, remanding the case to the Fish and Wildlife 
Service "for a more reliable determination of the Queen 
Charlotte goshawk population...."  Order at 3, reprinted in 
J.A. 1975.  This appeal followed.

                           II. ANALYSIS

     On the record before us, it is clear that the District Court 
exceeded its authority in ordering the Government to conduct 
a population count of the goshawk species.  16 U.S.C. 
s 1533(a)(1) instructs the Secretary to

     determine whether any species is an endangered species 
     or a threatened species because of any of the following 
     factors:
     
          (A) the present or threatened destruction, modifica-
          tion, or curtailment of its habitat or range;
          
          (B) overutilization for commercial, recreational, scien-
          tific or educational purposes;
          
          (C) disease or predation;
          
          (D) the inadequacy of existing regulatory mechanisms;  
          or
          
          (E) other natural or manmade factors affecting its 
          continued existence.
          
16 U.S.C. s 1533(a)(1) (1994).  The Secretary is to make such 
a determination "solely on the basis of the best scientific and 
commercial data available to him...."  16 U.S.C. 
s 1533(b)(1)(A).  Read together, the two statutory provisions 
require the Secretary to list a species as endangered or 
threatened if, based solely on the best available data, any of 
s 1533(a)(1)'s five factors are sufficiently implicated.  The 
"best available data" requirement makes it clear that the 
Secretary has no obligation to conduct independent studies.  
As we noted in City of Las Vegas v. Lujan, 891 F.2d 927, 933 
(D.C. Cir. 1989), in the context of emergency listings under 16 

U.S.C. s 1533(b)(7), 16 U.S.C. s 1533(b)(1)(A) "merely pro-
hibits the Secretary from disregarding available scientific 
evidence that is in some way better than the evidence he 
relies on.  Even if the available scientific and commercial data 
were quite inconclusive, he may--indeed must--still rely on it 
at that stage."

     Appellees do not claim--for good reason, we think-that the 
statute's reference to "best scientific data available" requires 
the Secretary to find and consider any information that is 
arguably susceptible to discovery.  In other words, appellees 
never have contended in this case that the Government is 
obliged to conduct an on-site population count of the goshawk.  
And appellees never have contended that the Secretary acted 
on the basis of no data.  Rather, appellees have argued that 
the best available scientific data in this record demonstrate 
that the goshawk is already on the verge of extinction due to 
low population estimates and "some 'natural or manmade 
factors affecting its continued existence.' "  Appellees Br. at 
20 (quoting 16 U.S.C. s 1533(a)(1)(E)).  This is the issue that 
properly was before the District Court, and this is the issue 
that should have been decided below.

     The trial judge, however, ignored the statute, disregarded 
the parties' arguments, and determined instead that, because 
he found the available evidence inconclusive, the Secretary 
was obligated to find better data.  The Government forth-
rightly concedes that "the district court's view has a superfi-
cial appeal--certainly the [Fish and Wildlife Service] would 
like to know how many [Queen Charlotte] goshawks there 
are...."  Reply Br. at 3.  But, as the Government contends 
(with no real contest from appellees), this superficial appeal 
cannot circumvent the statute's clear wording:  The Secretary 
must make his decision as to whether to list a species as 
threatened or endangered "solely on the basis of the best 
scientific and commercial data available to him...."  16 
U.S.C. s 1533(b)(1)(A);  Reply Br. at 3 ("[T]he court's view is 
at odds with both the practical realities of endangered species 
work and the governing legal regime.").  The Secretary 
argued below that the best available evidence supports the 
Government's decision not to list the goshawk, while the 

Center argued that the available evidence supports the oppo-
site view.  The District Court's responsibility was to assess 
the evidence and resolve the parties' dispute.  The court's 
decision to sidestep this responsibility by imposing an obli-
gation upon the Secretary to find better data was error.

                         III. CONCLUSION

     For the foregoing reasons, we reverse the District Court's 
decision to remand the case to the Fish and Wildlife Service, 
and we remand the case to the District Court for consider-
ation of the parties' positions in light of the Endangered 
Species Act and an assessment of the available evidence.