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.
Court Description: Final Agency Action The panel affirmed, on different grounds, the district court’s summary judgment against the Center for Biological Diversity in the Center’s action petitioning to amend the Grizzly Bear Recovery Plan that the Secretary of the Interior adopted as a “recovery plan” for an endangered or threatened species under the Endangered Species Act (“ESA”). 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 * The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 3 several Plan Supplements that provide habitat-based recovery criteria for identified recovery zones. The district court entered summary judgment against the Center because it found that the Plan was not a “rule” subject to a petition for amendment under 5 U.S.C § 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. § 1540(g)(1)(C), because the Center did not allege that the Service failed to perform any nondiscretionary duty. 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.” 5 U.S.C. § 704. The Center filed this action seeking judicial review under the APA and the ESA, claiming that the Service failed to develop and implement a recovery plan that provided for the conservation and survival of the grizzly bear; violated its affirmative duty to conserve the grizzly bear by not pursuing additional recovery areas; and unreasonably denied the Center’s petition to update the Plan. On appeal, the Center did not challenge the district court’s holding that it lacked ESA jurisdiction. Because the Center did not claim that the Service’s denial of its petition was otherwise reviewable by statute, the sole issue is whether 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. See 5 U.S.C. § 551(4). The panel also assumed that an interested party could file a petition under § 553(e) to amend a recovery plan. 4 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND Pursuant to Bennett v. Spear, 520 U.S. 154, 177-78 (1997), an agency action is final if it both marks the consummation of the agency’s decisionmaking process, and it determines rights or obligations from which legal consequences flow. Under the first Bennett criterion, the panel held that the Service plainly did not treat the 1993 Plan as the last step, where it repeatedly issued Plan Supplements. The panel further held that even assuming that the adoption of a recovery plan satisfied the first Bennett criterion, it did not satisfy the second criterion. The Service does not initiate enforcement actions based on recovery plans; recovery plans do not impose any obligation on or confer any right to anyone; and a recovery plan does not contain any binding legal obligations on the agency. 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 § 704 of the APA. Judge Sung dissented. She disagreed with the district court’s holding that the Recovery Plan was not a “rule” under the APA, and therefore not subject to a rulemaking petition, because recovery plans are “non-binding.” She also disagreed with the majority’s holding that even if the Recovery Plan was a “rule,” the Service’s denial of the Center’s petition was not a final agency action because recovery plans are non-binding. She would hold that the text of the APA and precedent provide that the statutory definition of “rule” encompasses both binding and non- binding rules, and that both binding and non-binding rules are subject to rulemaking petitions. Further, an agency’s denial of a rulemaking petition is final agency action, even where the underlying rule is non-binding. Judge Sung would CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 5 conclude that the Recovery Plan was a “rule” as that term is defined by the APA, and the Service’s denial of the Center’s rulemaking petition was a final agency action subject to judicial review. She would reverse and remand to the district court to review the denial of the rulemaking petition for abuse of discretion under the highly deferential arbitrary and capricious standard.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.