United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 9, 2001 Decided May 8, 2001
No. 00-5143
Building Industry Association of Superior California, et al.,
Appellants
v.
Gale A. Norton, Secretary of the Interior, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(95cv0726)
Lawrence R. Liebesman argued the cause for appellants.
With him on the briefs was Rafe Petersen.
Elizabeth Ann Peterson, Attorney, United States Depart-
ment of Justice, argued the cause for the federal appellees.
With her on the brief were John Cruden, Deputy Assistant
Attorney General, and Ellen J. Durkee, Attorney.
Neil Levine argued the cause and filed the brief for the
non-federal appellees.
Robin L. Rivett and Anne M. Hayes were on the brief for
amici curiae Pacific Legal Foundation, et al., in support of
appellants. Reed Hopper entered an appearance.
Before: Sentelle and Henderson, Circuit Judges, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
Silberman.
Silberman, Senior Circuit Judge: Appellants Building In-
dustry Association, et al., sought review of the Fish and
Wildlife Service's listing of various fairy shrimp species as
endangered or threatened. They now challenge a district
court decision denying their motion for summary judgment.
Determining that we have jurisdiction, we affirm the denial.
I.
In those regions of California with Mediterranean climates,
one finds shallow depressions called "vernal pools" that fill
with rainwater in fall and winter only to evaporate in spring.
In these pools reside numerous indigenous aquatic inverte-
brates that have evolved to survive in the pools' variable
environmental conditions. In 1992 the Fish and Wildlife
Service proposed to list as endangered species five tiny
crustaceans resident in California's vernal pools: the vernal
pool fairy shrimp, Conservancy fairy shrimp, longhorn fairy
shrimp, California linderiella, and vernal pool tadpole shrimp
(collectively, "fairy shrimp"). The proposed rule specified
actual and threatened destruction of vernal pools as a justifi-
cation for the listing.1
After a comment period, the Service withdrew the proposal
to list the California linderiella. It listed vernal pool fairy
shrimp as threatened and the three remaining species as
__________
1 See Proposal to Determine Endangered Status for Fairy
Shrimp, 57 Fed. Reg. 19,856, 19,858 (proposed May 8, 1992).
endangered. Though the Endangered Species Act (ESA)
requires the Service to designate "critical habitat[s]" for
listed species "to the maximum extent prudent and determin-
able," the Service declined to make designations on the
ground that so doing would put the listed species at risk of
vandalism.2
The Service's decision then began its long and bumpy
journey to appellate review. Appellants challenged the list-
ing decision in the district court, asserting violations of the
ESA, the Administrative Procedure Act (APA), and the Con-
stitution. Along with contesting on various grounds the
general validity of the listing decision, appellants took issue
with the Service's failure to designate critical habitats. In
response to cross-motions for summary judgment, the district
court in July 1997 granted summary judgment to the Service
on all claims except the critical habitat claim. On that claim,
the court held that the failure to designate critical habitat was
arbitrary and capricious and remanded to the Service either
for designation or for explanation why designation was not
prudent.3
While the critical habitat remand was pending, the district
court certified the listing claims under Rule 54(b). An appeal
of that portion of the decision followed, but we dismissed for
lack of jurisdiction. The listing claims and the critical habitat
claim arose out of the same body of law and fact, meaning
that the listing appeal would be intertwined with a possible
critical habitat appeal. With the threat of such a piecemeal
appeal looming, and without an explanation from the district
court as to why such an approach was desirable, we held that
we lacked jurisdiction.4
__________
2 16 U.S.C. s 1533(a)(3) (2000); see Determination of Endan-
gered Status for Fairy Shrimp, 59 Fed. Reg. 48,136, 48,151 (Sept.
19, 1994); Withdrawal of Proposal as to the California Linderiella,
59 Fed. Reg. 48,154 (Sept. 19, 1994).
3 See Bldg. Indus. Ass'n v. Babbitt, 979 F. Supp. 893, 905-06,
908 (D.D.C. 1997).
4 See Bldg. Indus. Ass'n v. Babbitt, 161 F.3d 740 (D.C. Cir.
1998).
In March 1999, the district court reviewed additional record
citations the Service had provided in support of its conclusion
that critical habitat designations would be imprudent. It
ruled that these materials did not adequately support the
Service's conclusion, vacated the Service's decision not to
designate critical habitats, and remanded once again. Ac-
cording to the district court, the decision constituted a final
judgment on all claims.
Appellants brought a second appeal of the listing decision.
We ordered the parties to address whether a final decision
existed because the critical habitat remand was still before
the Service, which had not itself appealed. In an attempt to
resolve any possible jurisdictional infirmity, appellants decid-
ed to abandon litigation of the critical habitat claim, leaving
for resolution only the listing claims, which were clearly final.
To that end, appellants moved the district court to amend its
March 1999 judgment remanding to the Service or in the
alternative for leave to amend their complaint to delete the
critical habitat claim. The district court determined that due
to the pending appeal it had no jurisdiction to consider the
motion; it also indicated that if it were to regain jurisdiction,
it would deny the motion to amend the judgment but grant
leave to amend the complaint.5 Soon thereafter appellants
moved this court to dismiss their appeal, which we did. The
district court then granted appellants' motion to strike from
their complaint the critical habitat claim, the only claim on
which they had prevailed. Appellants immediately brought
this appeal, their third attempt to gain review of the district
court's dismissal of the listing claims. We once again ordered
the parties to address our jurisdiction.
II.
Appellants allege numerous errors in the district court's
decision. They argue that the rule's heavy reliance on a
study, the so-called "Simovich study," not made available
during the comment period violated the APA, as did the rule's
__________
5 See Bldg. Indus. Ass'n v. Babbitt, 70 F. Supp. 2d 1 (D.D.C.
1999).
enumeration of fairy shrimp populations in terms of vernal
pool complexes rather than individual pools. They further
contend that the listing was not supported by the best
available scientific data, as required by the ESA, and that the
Service misapplied its own policy on independent peer review.
The nonfederal appellees, public interest groups that inter-
vened below ("intervenors"), argue that we lack jurisdiction
because no final judgment exists. We address that argument
before reaching the merits.
A.
Intervenors' jurisdictional argument is subtle. Absent ap-
peal by the agency, an order remanding to an agency for
further proceedings is not an appealable final decision even
where the district court dismisses the case. See NAACP v.
United States Sugar Corp., 84 F.3d 1432, 1436 (D.C. Cir.
1996). Before amendment of the complaint, therefore, the
critical habitat remand pending before the Service prevented
our assertion of appellate jurisdiction over the listing claims.
Accordingly, appellants amended their complaint to omit the
critical habitat claim. Though the 1997 decision was not final
at the time it was entered, under the doctrine of cumulative
finality the dismissal of the only claim that survived that
decision retroactively rendered it final and appealable. See
15A Charles Alan Wright, Arthur R. Miller, & Edward H.
Cooper, Federal Practice & Procedure s 3914.9, at 631-42
(2d ed. 1992); cf. Sacks v. Rothberg, 845 F.2d 1098, 1099 (D.C.
Cir. 1988) (per curiam).
Intervenors argue, however, that the district court abused
its discretion in allowing amendment of the complaint after
judgment. If that were so, the March 1999 decision remand-
ing to the Service would still be in force, and there would be
no final judgment for this court to review. Ordinarily post-
judgment amendment of a complaint under Rule 15(a) re-
quires reopening of the judgment pursuant to Rule 59(e) or
60(b). See Cassell v. Michaux, 240 F.2d 406, 407-08 (D.C.
Cir. 1956). This prevents litigants from resurrecting claims
on which they have lost. Cf. Firestone v. Firestone, 76 F.3d
1205, 1207-08 (D.C. Cir. 1996) (per curiam). But that con-
cern is absent here: appellants prevailed on the claim in
question, and dropped it only so that they might appeal
dismissal of other claims.
Appellants respond (and the Service agrees) that because
the remand was not a final judgment, no motion under Rule
59 or 60 was necessary to amend the complaint to abandon
claims they no longer wished to pursue. We agree. The
general requirement of a Rule 59 or 60 motion prior to post-
judgment amendment is employed to serve the judicial policy
"favoring finality of judgments and the expeditious termi-
nation of litigation." See 6 Charles Alan Wright, Arthur R.
Miller, & Mary Kay Kane, Federal Practice & Procedure
s 1489, at 694 (2d ed. 1990). Neither goal is served by
requiring a Rule 59 or 60 motion here. Indeed, it would be
passing strange if in order to secure appeal of the claims on
which they lost appellants were forced to litigate to finality
claims on which they preliminarily prevailed and that they
now wish to abandon.6
B.
As noted, the rule relies heavily on the Simovich study,
which was released after the proposal and which the agency
received only during the comment period. The study was
therefore not among the materials published for public com-
ment. Appellants argue that the Service's failure to seek
comment on the study violated the APA.
__________
6 Intervenors argue that they are prejudiced by appellants'
amendment because they are forced to relitigate the dropped claim
in a separate suit. But the inability of a third party to rely on the
disposition of a claim cannot force a plaintiff to litigate what it
wishes to drop. In any event, one intervenor recently sued the
Service to compel designation of critical habitats for the four listed
species. The district court has granted summary judgment to that
intervenor and ordered the Service to designate critical habitats by
August 8, 2001. See Butte Envtl. Council v. White,
No. Civ. S-00-0797 WBS GGH (E.D. Cal. Feb. 8, 2001).
It is not disputed that the Service placed great weight on
the Simovich study. It is cited frequently in the rule, which
touted it as "[s]cientifically credible." 59 Fed. Reg. at 48,141.
The Service concedes that the study is "the first long-term
multidisciplinary study" and "the most scientifically based
and well-documented professional study" of California vernal
pools ever attempted, that it is "more comprehensive than
any previous study," and that "the final rule relied substan-
tially on the findings in the Simovich study."
The Service nonetheless contends that it was not required
to publish the Simovich study for public comment, and we
agree. The APA generally obliges an agency to publish for
comment the technical studies and data on which it relies.
See Solite Corp. v. EPA, 952 F.2d 473, 484 (D.C. Cir. 1991)
(per curiam). But to avoid "perpetual cycles of new notice
and comment periods," Ass'n of Battery Recyclers v. EPA,
208 F.3d 1047, 1058 (D.C. Cir. 2000), a final rule that is a
logical outgrowth of the proposal does not require an addi-
tional round of notice and comment even if the final rule
relies on data submitted during the comment period. See
Int'l Fabricare Inst. v. EPA, 972 F.2d 384, 399 (D.C. Cir.
1992) (per curiam); Solite, 952 F.2d at 484. Such is the case
here. The Simovich study, while the best available, only
confirmed the findings delineated in the proposal. In relying
on it, the Service "did no more than provide support for the
same decision it had proposed to take." Int'l Fabricare, 972
F.2d at 399. Essentially, the proposal advanced for comment
a hypothesis and some supporting data. The Simovich study
provided additional support for that hypothesis--indeed, bet-
ter support than was previously available--but it did not
reject or modify the hypothesis such that additional comment
was necessary. See Solite, 952 F.2d at 484.
Appellants next object to the rule because it counts fairy
shrimp populations by the number of vernal pool complexes,
not the number of individual vernal pools, in which they
reside. See 59 Fed. Reg. at 48,137. (A pool complex is a
group of individual pools that, due to their proximity, are
susceptible to the same threats.) Appellants insist that the
proposal never put the public on notice of the "complexes
methodology" or of the definition of complexes.7 But the use
of complexes to measure fairy shrimp populations was no
surprise: the proposal itself used the term five times. See 57
Fed. Reg. at 19,856, 19,858, 19,859. Moreover, nothing in the
final rule's use of complexes constituted a deviation from the
proposed rule. The proposal posited danger to existing fairy
shrimp populations, which were discussed in terms of both
individual pools and pool complexes; consistent with the
proposal, the final rule found danger to existing fairy shrimp
populations, which were measured--most accurately, accord-
ing to the rule--in terms of pool complexes. The final rule's
measurement of populations solely in terms of complexes,
after the proposal's uncommitted use of both methodologies,
was a tightening of the rule's reasoning, but it was nonethe-
less a logical outgrowth of the proposal. Appellants have not
pointed to any way in which the sharpened focus on complex-
es changed the rule's reasoning or conclusion.
Appellants also claim that methodological flaws in the
Simovich study and other relied-upon authorities mean that
the rule was not based on the "best scientific and commercial
data available," as required by 16 U.S.C. s 1533(b)(1)(A).
Yet as the district court noted, appellants "have pointed to no
data that was omitted from consideration." 979 F. Supp. at
903. Assuming that studies the Service relied on were imper-
fect, that alone is insufficient to undermine those authorities'
status as the "best scientific ... data available." Appellants
misread s 1533(b)(1)(A): the Service must utilize the "best
scientific ... data available," not the best scientific data
possible. The Service may not base its listings on speculation
or surmise or disregard superior data, cf. Bennett v. Spear,
520 U.S. 154, 176 (1997); City of Las Vegas v. Lujan, 891
F.2d 927, 933 (D.C. Cir. 1989), but absent superior data--and
__________
7 Appellants' brief never explains why they were disadvantaged
by the Service's reliance on pool complexes. At oral argument
appellants suggested that reliance on complexes reduced the num-
ber of discrete groups of fairy shrimp, meaning that a threat to a
single shrimp grouping threatens a greater fraction of that species.
Their argument remains somewhat obscure.
appellants point to none--occasional imperfections do not
violate s 1533(b)(1)(A).
Finally, we reject appellants' claim that the listing's validity
is undermined by its failure to comply with the Service's peer
review policy. To be sure, the listing was not subjected to
the present peer review procedure, which requires that "dur-
ing the comment period" the Service obtain three indepen-
dent specialists' opinions on the merits of the decision and
reprint them in the listing. See Peer Review Policy State-
ment, 59 Fed. Reg. 34,270 (July 1, 1994). But the current
peer review policy came into force 22 months after the close
of the fairy shrimp comment period. Appellants point out
that a March 1995 letter from a Service official to Congress-
man Richard Pombo stated that "[i]n conformance with policy
(59 FR 34270), the Service sought scientific peer review of the
listing proposal." Letter from George T. Frampton, Jr.,
Assistant Secretary for the Service, to Hon. Richard Pombo 1
(March 10, 1995). That statement may have misled the
congressman as to the Service's compliance with the specific
peer review procedures promulgated in 1994, but the listing
was in fact subject to peer review that was intense though
less formal than is currently required. In any event, appel-
lants suggest no basis on which the letter would render the
later-enacted policy statement retroactively binding on an
already-concluded comment period.8
* * * *
The denial of appellants' motion for summary judgment is
Affirmed.
__________
8 Appellants also argue that this application of the ESA exceeds
Congress' Commerce Clause power and that the Service misapplied
the ESA's statutory factors. According to appellants' brief, howev-
er, the former claim fails under National Association of Home
Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), and is asserted
only to preserve the possibility of en banc review. Appellants
conceded at oral argument that the latter claim was not pressed
below.