CENTER FOR BIO. DIVERSITY V. DEB HAALAND, ET AL, No. 21-35121 (9th Cir. 2023)Annotate this Case
The U.S. Fish & Wildlife Service (the “Service”) approved the original Grizzly Bear Recovery Plan in 1982 and revised it in 1993. Since 1993, the Service has issued several Plan Supplements that provide habitat-based recovery criteria for identified recovery zones. The district court entered summary judgment against the Center for Biological Diversity (the “Center”) because it found that the Plan was not a “rule” subject to a petition for amendment under 5 U.S.C Section 553(e). It also found that it lacked jurisdiction to review the denial of the petition under the citizen-suit provision of the ESA, 16 U.S.C. Section 1540(g)(1)(C), because the Center did not allege that the Service failed to perform any nondiscretionary duty.
The Ninth Circuit affirmed, on different grounds, the district court’s summary judgment against the Center. The panel affirmed on the ground that Administrative Procedure Act (“APA”) review was not available because, even assuming the Plan was a “rule,” the denial of the Center’s petition was not “final agency action.” Because the Center did not claim that the Service’s denial of its petition was otherwise reviewable by statute, the sole issue is whether the denial of the petition is “final agency action.” Because the term “rule” under the APA is defined broadly, the panel assumed that a recovery plan fit under this broad umbrella. The panel concluded that a decision not to modify a plan was not a final agency action. Because the Center’s suit did not challenge a final agency action, the district court was not authorized to review the denial of the petition under Section 704 of the APA.