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General Land Office of State of Texas v. United States Department of The Interior

United States Court of Appeals, Fifth Circuit

January 15, 2020

UNITED STATES DEPARTMENT OF THE INTERIOR; DAVID BERNHARDT, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, in his official capacity as Secretary for the United States of the Interior; UNITED STATES FISH AND WILDLIFE SERVICE; GREG SHEEHAN, in his official capacity as Acting Director of the U.S. Fish and Wildlife Service; AMY LUEDERS, in her official capacity as Southwest Regional Director U.S. Fish and Wildlife Service, Defendants - Appellees

          Appeal from the United States District Court for the Western District of Texas

          Before KING, JONES, and DENNIS, Circuit Judges.


         The United States Fish and Wildlife Service listed the Golden-Cheeked Warbler as an endangered species in 1990. Approximately twenty-six years later, the Service denied a petition asking it to delist the Warbler. The General Land Office of the State of Texas claims that both of these decisions are invalid, but its challenge to the Service's decision to list the Warbler is untimely. We agree with the General Land Office, however, that the Service applied the incorrect standard when reviewing the delisting petition. Consequently, we conclude that the Service's decision denying the delisting petition was arbitrary and capricious, vacate that decision, and remand to the Service for further proceedings.


         The General Land Office identifies three issues associated with the Service's decision to list the Warbler and its decision to deny the delisting petition. First, the General Land Office contends that the Service violated the Endangered Species Act (ESA), Pub. L. No. 93-205, 87 Stat. 884 (1973) when it listed the Warbler as endangered, because the Service never designated the Warbler's critical habitat. Second, the General Land Office argues that both of the Service's decisions concerning the Warbler violated the National Environmental Policy Act (NEPA), Pub. L. No. 91-190, 83 Stat. 852 (1970). Third, the General Land Office asserts that the Service violated the ESA and its implementing regulations when reviewing the delisting petition. Because of the central role the ESA and NEPA play in the General Land Office's claims, we begin by describing how those statutes operate.

         A. The Endangered Species Act

         The ESA affords certain protections to endangered and threatened species. 16 U.S.C. §§ 1533, 1536, 1538, 1539. An endangered species is defined as "any species which is in danger of extinction throughout all or a significant portion of its range," id. § 1532(6), while a threatened species is "any species which is likely to become an endangered species within the foreseeable future," id. § 1532(20). The ESA lists five biological factors that can cause a species to be endangered or threatened:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, 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. § 1533(a)(1). Whether a species is endangered or threatened is determined "solely on the basis of the best scientific and commercial data available . . . after conducting a review of the status of the species and after taking into account" existing conservation efforts. Id. § 1533(b)(1)(A). Similarly, determinations regarding the critical habitat of a species must be determined "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 a critical habitat." Id. § 1533(b)(2); see also id. § 1532(5)(A) (defining critical habitat).

         Determinations regarding whether a species is endangered or threatened are made through a modified form of notice-and-comment rulemaking. 16 U.S.C. § 1533(b)(4). As relevant to this case, upon publication of a final determination that a species is endangered or threatened, its critical habitat should, "to the maximum extent prudent and determinable," be designated "concurrently with" that publication. Id. § 1533(a)(3)(A). Even if the critical habitat of an endangered or threatened species is not designated concurrently, it must be designated, "to the maximum extent prudent," within two years of publication of the proposed rule classifying the species. Id. § 1533(b)(6)(C)(ii).

         The ESA directs the Secretary of the Interior to publish and maintain lists of all endangered and all threatened species. 16 U.S.C. § 1533(c)(1). These lists "shall . . . specify with respect to each such species over what portion of its range it is endangered or threatened, and specify any critical habitat within such range." Id. The ESA calls for, "at least once every five years, a review of all species included in a list which is published pursuant to [the ESA] and which is in effect at the time of such review." Id. § 1533(c)(2)(A). Following this review, the ESA requires a determination of whether any species should be removed from the lists or moved from one list to the other. Id. § 1533(c)(2)(B). Such a determination is made "in accordance" with the provisions governing an initial decision to list a species. Id. § 1533(c)(2).

         Any interested party can petition to add or remove a species from these lists. 16 U.S.C. § 1533(b)(3). Within ninety days of receiving such a petition, there should, "[t]o the maximum extent practicable," be 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). If this ninety-day finding is negative, then it is subject to judicial review. Id. § 1533(b)(3)(C)(ii). If the ninety-day finding is positive, then the status of the species must be reviewed. 16 U.S.C. § 1533(b)(3)(B). This review, called a twelve-month review, is followed by a finding regarding whether the petitioned action is warranted, which must be made within twelve months of the petition's receipt. Id. The ESA does not provide details regarding what constitutes substantial information, the amount of information required for a positive ninety-day finding, but implementing regulations fill that void. Specifically, when the Service denied the petition to delist the Warbler, then-applicable regulations[1] defined substantial information as "that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted." 50 C.F.R. § 424.14(b)(1) (2014).

         B. The National Environmental Policy Act

         Congress passed NEPA "to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment." Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772 (1983). Under NEPA, federal agencies must include an environmental impact statement in every "recommendation or report on . . . major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C); accord City of Dallas v. Hall, 562 F.3d 712, 717 (5th Cir. 2009). An environmental impact statement is "a detailed statement by the responsible official" regarding, among other things, the "environmental impact of the ...

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