FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`FRIENDS OF ANIMALS,
`Plaintiff-Appellant,
`
`
`
` No. 20-35318
`
`D.C. No.
`1:18-cv-00064-
`SPW-TJC
`
`
`OPINION
`
`v.
`
`
`DEB HAALAND, in her official
`capacity as Secretary of the U.S.
`Department of Interior; MARTHA
`WILLIAMS, in her official capacity as
`Principal Deputy Director of the U.S.
`Fish and Wildlife Service; UNITED
`STATES FISH AND WILDLIFE SERVICE,
`Defendants-Appellees.
`
`Appeal from the United States District Court
`for the District of Montana
`Susan P. Watters, District Judge, Presiding
`
`Argued and Submitted March 1, 2021
`Portland, Oregon
`
`Filed May 17, 2021
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`FRIENDS OF ANIMALS,
`Plaintiff-Appellant,
`
`
`
` No. 20-35318
`
`D.C. No.
`1:18-cv-00064-
`SPW-TJC
`
`
`OPINION
`
`v.
`
`
`DEB HAALAND, in her official
`capacity as Secretary of the U.S.
`Department of Interior; MARTHA
`WILLIAMS, in her official capacity as
`Principal Deputy Director of the U.S.
`Fish and Wildlife Service; UNITED
`STATES FISH AND WILDLIFE SERVICE,
`Defendants-Appellees.
`
`Appeal from the United States District Court
`for the District of Montana
`Susan P. Watters, District Judge, Presiding
`
`Argued and Submitted March 1, 2021
`Portland, Oregon
`
`Filed May 17, 2021
`
`
`
`
`
`
`2
`
`
`FRIENDS OF ANIMALS V. HAALAND
`
`Before: Richard A. Paez and Paul J. Watford, Circuit
`Judges, and John R. Tunheim,* District Judge.
`
`Opinion by Judge Tunheim
`
`
`SUMMARY**
`
`Environmental Law
`
`
`
`
`the district court’s summary
`The panel reversed
`
`judgment entered in favor of federal officials and the U.S.
`Fish and Wildlife Service (“FWS”), and remanded to the
`district court to enter judgment in favor of the Friends of
`Animals (“Friends”) in an action challenging FWS’s rule, 50
`C.F.R. § 424.14(b), which required that affected states
`receive 30-day notice of an intent to file a petition to list an
`endangered species.
`
`In 2017, Friends filed a petition requesting that FWS list
`
`the Pryor Mountain wild horse population as a threatened or
`endangered distinct population
`segment under
`the
`Endangered Species Act (“ESA”). The FWS notified
`Friends that the submission did not qualify as a petition
`because it did not include copies of required notification
`letters or electronic communications to state agencies in
`affected areas. Friends filed this action seeking a declaration
`that federal defendants violated
`the ESA and
`the
`
`* The Honorable John R. Tunheim, Chief United States District
`Judge for the District of Minnesota, sitting by designation.
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
`3
`
`FRIENDS OF ANIMALS V. HAALAND
`
`
`
`Administrative Procedure Act by impermissibly requiring
`that the 30-day notice be made to affected states and refusing
`to issue a finding on Friends’ petition within 90 days, and
`vacatur of 50 C.F.R. § 424.14(b)’s 30-day notice
`requirement. The district court concluded that the pre-file
`notice requirement was a permissible construction of the
`ESA.
`
`The panel held that the FWS’s pre-file notice rule was
`
`inconsistent with the statutory scheme of the ESA. Because
`the pre-file notice rule was enacted through notice-and-
`comment rulemaking procedures pursuant to 16 U.S.C.
`§ 1533(h), the panel reviewed the agency rulemaking under
`the two-step Chevron framework. The panel held that the
`pre-file notice rule survived step one – determining whether
`Congress clearly spoke to the question at issue – because the
`ESA was silent as to pre-petition procedures and notice
`requirements. At step two, the panel assessed whether
`FWS’s construction of the rule was reasonable. The panel
`held that the pre-file notice rule created a procedural hurdle
`for petitioners that did not comport with the ESA. Here, the
`FWS used the pre-file notice rule to refuse to consider a
`petition that was properly submitted, complied with the
`substantive requirements in all other aspects, and was
`otherwise entitled to a 90-day finding, while relying on an
`unreasonable justification that did not accord with the aims
`of the ESA. The panel concluded that the pre-file notice rule
`did not survive the second step of the Chevron test.
`
`The panel concluded that the FWS’s decision to deny
`
`Friend’s petition because of its non-compliance with the pre-
`file notice rule could not be sustained.
`
`
`
`
`
`4
`
`
`FRIENDS OF ANIMALS V. HAALAND
`
`COUNSEL
`
`
`Michael Ray Harris (argued) and Jennifer Best, Friends of
`Animals Wildlife Law Program, Centennial, Colorado, for
`Plaintiff-Appellant.
`
`Robert J. Lundman (argued) and Mark R. Haag, Attorneys;
`Eric Grant, Deputy Assistant Attorney General; Jonathan D.
`Brightbill, Principal Deputy Assistant Attorney General;
`Environment and Natural Resources Division, United States
`Department of Justice, Washington, D.C.; Linus Y. Chen,
`Attorney, Office of the Solicitor, United States Department
`of the Interior, Washington, D.C.; for Defendants-Appellees.
`
`
`
`OPINION
`
`TUNHEIM, District Judge:
`
`Plaintiff-Appellant, Friends of Animals (“Friends”),
`brought this action challenging a Fish and Wildlife Service
`(“FWS”) rule, 50 C.F.R. § 424.14(b), which requires that
`affected states receive 30-day notice of an intent to file a
`petition to list an endangered species. Friends asserts claims
`under the Endangered Species Act (“ESA”), 16 U.S.C.
`§§ 1531–1544, and the Administrative Procedure Act
`(“APA”), 5 U.S.C. §§ 701–706. Friends alleges that the
`FWS used the “pre-file notice rule” to improperly reject
`Friends’s petition to list the Pryor Mountain wild horse as a
`threatened or endangered distinct population segment, and
`argues that the rule revision violates the ESA’s requirements
`for review of petitions and is inconsistent with the APA.
`
`The district court granted summary judgment for
`Defendants. Friends appeals. We have jurisdiction under
`
`
`
`FRIENDS OF ANIMALS V. HAALAND
`
`
`
`28 U.S.C. § 1291. Because we conclude that the pre-file
`notice rule is inconsistent with the statutory scheme of the
`ESA, we reverse the district court’s grant of summary
`judgment for Defendants and remand to the district court to
`enter summary judgment in favor of Friends.
`
`5
`
`I. BACKGROUND
`
`A. The Endangered Species Act
`
`The purpose of the ESA is to provide a program for the
`conservation of endangered and threatened species and to
`preserve the ecosystems on which these species depend.
`16 U.S.C. § 1531(b). The term ‘species’ includes “any
`subspecies of fish or wildlife or plants, and any distinct
`population segment of any species of vertebrate fish or
`wildlife which interbreeds when mature.” Id. § 1532(16).
`The ESA establishes two methods for identifying and listing
`species as threatened or endangered: the Secretary of the
`United States Department of the Interior (“Secretary”) and
`delegated agencies, the National Marine Fisheries Services
`and
`the FWS
`(collectively, “the Services”) may
`independently identify species for protection; or, interested
`persons may petition the Secretary and the Services to list a
`species as threatened or endangered. 16 U.S.C. §§ 1532(15),
`1533(b); 5 U.S.C. § 553(e); 50 C.F.R. §§ 402.01(b),
`424.14(a).
`
`Section 4 of the ESA establishes the process for listing,
`delisting, or modifying the status of a species or habitat by
`petition:
`
`To the maximum extent practicable, within
`90 days after receiving the petition of an
`interested person under section 553(e) of
`[T]itle 5, to add a species to, or to remove a
`
`
`
`6
`
`
`FRIENDS OF ANIMALS V. HAALAND
`
`species from, either of the lists published
`under subsection (c), the Secretary shall
`make a finding as to whether the petition
`presents substantial scientific or commercial
`information indicating that the petitioned
`action may be warranted. If such a petition is
`found to present such information, the
`Secretary shall promptly commence a review
`of the status of the species concerned. The
`Secretary shall promptly publish each finding
`made under this subparagraph in the Federal
`Register.
`
`the 90-day finding
` If
`16 U.S.C. § 1533(b)(3)(A).
`demonstrates that the petition warrants action, the Services
`move to the second phase and undertake a 12-month review
`to determine whether listing the species is either (i) not
`warranted; (ii) warranted; or (iii) warranted but precluded by
`other pending proposals. Id. § 1533(b)(3)(B). The Services
`continue to review and monitor species in the third category
`until it is determined whether protection is “warranted” or
`“not warranted.” Id. § 1533(b)(3)(C)(i), (iii).
`
`The ESA also authorizes the Secretary to “establish, and
`publish in the Federal Register, agency guidelines to insure
`that the purposes of [the ESA] are achieved efficiently and
`effectively.” Id. § 1533(h). These guidelines include
`procedures for recording the receipt and disposition of
`citizen petitions, criteria for making required findings, a
`ranking system to prioritize review of species; and, a system
`of developing, implementing, and prioritizing recovery
`plans. Id.
`
`
`
`FRIENDS OF ANIMALS V. HAALAND
`
`
`
`B. The “Pre-File Notice” Rule
`
`7
`
`In May of 2015, the Services published a proposed rule
`revision related to the petition process. 80 Fed. Reg. 29,286
`(May 21, 2015). The proposed modification would have
`required a petitioner to provide a copy of the petition to the
`state agencies responsible for
`the management and
`conservation of fish, plant, or wildlife resources in each state
`where the species occurs at least 30 days prior to submitting
`the petition to the Services, and would have required the
`petitioner to append any data or written comments from the
`state to their petition. Id. at 29,288.
`
`The Services promulgated the final rule revision in
`September 2016. 81 Fed. Reg. 66,462 (Sept. 27, 2016)
`(codified at 50 C.F.R. § 424.14). In response to comments
`expressing concern about the burdens on petitioners and
`state agencies, the final rule jettisoned the requirement that
`petitioners coordinate with states, requiring instead that a
`petitioner “provide notice to the State agency responsible for
`the management and conservation of fish, plant, or wildlife
`resources in each State where the species that is the subject
`of the petition occurs” at least 30 days prior to submitting the
`petition. 50 C.F.R. § 424.14(b); 81 Fed. Reg. at 66,464,
`66,484.
`
`The final rule revision was intended to “improve the
`quality of petitions through clarified content requirements
`and guidelines, and, in so doing, better focus the Services’
`resources on petitions that merit further analysis.” 81 Fed.
`Reg. at 66,462. The Services explained that the rule revision
`would give affected states “the opportunity to submit data
`and information to the Services in the 30-day period before
`a petition is filed” that the Services could then rely on in their
`90-day review. Id. at 66,465. The Services acknowledged
`that the use of state-supplied information in making the 90-
`
`
`
`FRIENDS OF ANIMALS V. HAALAND
`
`8
`
`day determination was a change from prior practice, but
`found that this change would “expand the ability of the
`States and any interested parties to take the initiative of
`submitting input and information for the Services to consider
`in making 90-day findings, thereby making the petition
`process both more efficient and more thorough.” Id.
`
`C. Friends’s Petition
`
`In 2017, Friends filed a petition requesting that the FWS
`list the Pryor Mountain wild horse population as a threatened
`or endangered distinct population segment under the ESA.
`The Pryor Mountain wild horse population resides in
`Montana and Wyoming and represents a unique Old-World
`Spanish genetic lineage. Friends contends that the Pryor
`Mountain wild horse population is critically small and its
`continued survival is threatened by curtailment of the horses’
`habitat
`range,
`inadequacy of
`existing
`regulatory
`mechanisms, and political pressure to remove or dispose of
`free-roaming wild horses.
`
`On July 20, 2017, the FWS notified Friends that the
`submission did not qualify as a petition because it did not
`include copies of required notification letters or electronic
`communications to state agencies in affected states. The
`FWS did not identify any other deficiencies with Friends’s
`petition.
`
`D. Procedural History
`
`Friends filed an action in federal court in the District of
`Montana against the Secretary and the Director of the FWS,
`in their official capacities, and the FWS. Friends requested
`a declaration that Defendants violated the ESA and APA by
`impermissibly requiring that the 30-day notice be made to
`affected states and refusing to issue a finding on Friends’s
`
`
`
`FRIENDS OF ANIMALS V. HAALAND
`
`
`
`petition within 90 days, as well as vacatur of 50 C.F.R.
`§ 424.14(b)’s 30-day notice requirement and issuance of a
`finding on the Pryor Mountain wild horse petition within
`60 days.
`
`9
`
`Friends moved for summary judgment, arguing that the
`notice provision is inconsistent with the ESA’s legal
`standards for review of petitions; that the rule alters statutory
`deadlines and unlawfully restricts petitioners’ discretion to
`control the timing of filing petitions; and that the rule is
`inconsistent with the APA. Defendants filed a cross-motion
`for summary judgment asserting that Friends had failed to
`establish that their petition was improperly denied or that the
`notice provision is contrary to law.
`
`The magistrate judge found that the notice provision
`contravened the ESA’s purpose to require agency findings
`after 90-day review, was inconsistent with the ESA and was
`therefore arbitrary and capricious, and recommended
`granting summary judgment to Friends. The district court,
`however, concluded that the pre-file notice requirement is a
`permissible construction of the ESA, which was designed to
`improve the efficiency and effectiveness of the petition
`process, and therefore granted summary judgment to
`Defendants.
`
`II. DISCUSSION
`
`A. Standard of Review
`
`We review the district court’s grant of summary
`judgment de novo. Ctr. for Biological Diversity v. Zinke,
`868 F.3d 1054, 1057 (9th Cir. 2017). The Court reviews
`agency decisions under the ESA pursuant to Section 706 of
`the APA. Turtle Island Restoration Network v. U.S. Dep’t
`of Commerce, 878 F.3d 725, 732–33 (9th Cir. 2017). The
`
`
`
`FRIENDS OF ANIMALS V. HAALAND
`
`10
`
`APA requires courts to “hold unlawful and set aside agency
`action, findings, and conclusions found to be . . . arbitrary,
`capricious, an abuse of discretion, or otherwise not in
`accordance with law,” “in excess of statutory jurisdiction,”
`or “without observance of procedure required by law.”
`5 U.S.C. § 706(2).
`
`Under the arbitrary and capricious standard, the scope of
`review is deferential and narrow, and the court is not to
`substitute its judgment for the agency’s judgment. Alaska
`Wilderness League v. Jewell, 788 F.3d 1212, 1217 (9th Cir.
`2015).
` Nevertheless, the agency must “articulate a
`satisfactory explanation for its action,” and the Court will
`find an agency rule arbitrary and capricious if the agency
`“has relied on factors which Congress has not intended it to
`consider, entirely failed to consider an important aspect of
`the problem, offered an explanation for its decision that runs
`counter to the evidence before the agency, or . . . is so
`implausible that it could not be ascribed to a difference in
`view or the product of agency expertise.” Turtle Island,
`878 F.3d at 732–33 (quoting Motor Vehicle Mfrs. Ass’n of
`U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
`(1983)).
`
`B. Chevron Deference
`
`Because the pre-file notice rule was enacted through
`notice-and-comment rulemaking procedures pursuant to
`16 U.S.C. § 1533(h),
`the Court also reviews agency
`rulemaking under the two-step Chevron framework. Ctr. for
`Biological Diversity v. Zinke, 900 F.3d 1053, 1063 (9th Cir.
`2018) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
`Inc., 467 U.S. 837, 842–43 (1984)). First, the Court must
`determine whether “Congress has directly spoken to the
`precise question at issue. If the intent of Congress is clear,
`that is the end of the matter; for the court, as well as the
`
`
`
`11
`
`FRIENDS OF ANIMALS V. HAALAND
`
`
`
`agency, must give effect to the unambiguously expressed
`intent of Congress.” Chevron, 467 U.S. at 842–43. “[I]f the
`statute is silent or ambiguous with respect to the specific
`issue, the question for the court is whether the agency’s
`answer is based on a permissible construction of the statute.”
`Id. at 843.
`
`Friends first argues that the pre-file notice rule is
`contrary to the express intent of Congress as articulated in
`Section 4 of the ESA and therefore cannot overcome
`Chevron step one. Defendants reply that the ESA is silent as
`to pre-petition procedures and notice requirements and
`therefore the agency action passes step one. We agree.
`Although the ESA includes guidance on when to involve the
`states, it does not prohibit the Services from providing notice
`to states and does not directly address procedures prior to
`filing a petition. Therefore, the pre-file notice rule survives
`step one of the Chevron inquiry.
`
`C. The Pre-File Notice Rule Under Chevron Step Two
`
`Because the pre-file notice rule survives step one, we
`next assess whether the Services’ construction of the rule is
`reasonable. Ctr. for Biological Diversity v. Salazar,
`695 F.3d 893, 902 (9th Cir. 2012). Although this Court
`gives deference to agency actions under Chevron, we “must
`reject administrative constructions which are contrary to
`clear congressional intent,” Friends of Animals v. U.S. Fish
`& Wildlife Serv., 879 F.3d 1000, 1010 (9th Cir. 2018)
`(quotation omitted), or “that frustrate the policy Congress
`sought to implement,” Biodiversity Legal Found. v. Badgley,
`309 F.3d 1166, 1175 (9th Cir. 2002) (citation omitted). The
`Services are “entitled to a presumption of regularity, and we
`may not substitute our judgment for that of the agency.” San
`Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581,
`601 (9th Cir. 2014) (quotation omitted). However, an
`
`
`
`FRIENDS OF ANIMALS V. HAALAND
`
`12
`
`“agency's action must be upheld, if at all, on the basis
`articulated
`by
`the
`agency
`itself,
`not
`post-hoc
`rationalizations.” Ctr. for Biological Diversity, 900 F.3d.
`at 1069 (quotation omitted).
`
`Defendants argue that Congress has explicitly left a gap
`for the agency to fill with regard to petition procedure, that
`the pre-file notice rule is based on a permissible construction
`of the statute, and that it imposes only a small burden on
`petitioners. Defendants’ briefing characterizes the pre-file
`notice rule as a mechanism to increase efficiency during the
`12-month review by providing affected states advanced
`notice to begin preparing materials for submission after the
`90-day determination. However, the Services’ comments in
`the Federal Register make clear that the purpose of the notice
`requirement is to encourage states to provide information
`that the Services can then consult when making their 90-day
`finding. See, e.g., 81 Fed. Reg. at 66,463–67,474, 67,476.
`
`Courts have repeatedly admonished the Services for
`soliciting information from states and other third parties
`during the 90-day finding period, noting that the ESA
`requires that the 90-day finding determine whether the
`petition presents sufficient information to warrant a 12-
`month review, and that the Services’ solicitation or
`consideration of outside information not otherwise readily
`available is contrary to the ESA. See, e.g., Ctr. for
`Biological Diversity v. Morgenweck, 351 F. Supp. 2d 1137,
`1142–44 (D. Colo. 2004) (finding that the FWS arbitrarily
`and capriciously conducted a 90-day review by soliciting
`information and opinions from limited outside sources).
`
`Defendants attempt to distinguish the pre-file notice rule,
`arguing that it does not mandate that states submit any
`information or that the Services consider any information
`submitted by a state, and therefore does not rise to the level
`
`
`
`13
`
`FRIENDS OF ANIMALS V. HAALAND
`
`
`
`of soliciting new information from states. We find this to be
`a distinction without practical effect. The Services have
`clearly stated that the pre-file notice rule is intended to
`encourage affected states to contribute information for the
`Services to consider when evaluating petitions at the 90-day
`finding stage. The pre-file notice rule therefore provides an
`avenue for the Services to consider factors it was not
`intended to consider during the 90-day finding and runs
`afoul of the ESA’s plain directive that the Services’ initial
`assessment be based on the contents of the petition. See
`Colorado River Cutthroat Trout v. Kempthorne, 448 F.
`Supp. 2d 170, 176 (D.D.C. 2006) (“The FWS simply cannot
`bypass the initial 90-day review and proceed to what is
`effectively a 12-month status review, but without the
`required notice and the opportunity for public comment.”).
`
`The Services have also used the pre-file notice rule as a
`justification for refusing to consider Friends’s otherwise
`compliant petition. The ESA permits the Services to
`establish requirements for petition content and procedure.
`For
`instance,
`the Services have established
`through
`rulemaking
`that ESA petitions must contain certain
`elements, including the scientific and common names of a
`species, a clear indication of the administrative action
`sought, a narrative justifying the action sought and analysis
`of the information presented, verifiable cites to literature,
`electronic or hard copies of supporting materials, and
`information related to species’ distinction and historical
`range. 50 C.F.R. § 424.14(c). Each of these petition
`requirements are material to the proposed action, encourage
`efficiency in petition processing by ensuring that the
`Services have necessary information, and most importantly,
`facilitate the ESA’s goal of identifying specific species or
`population segments that are in need of conservation.
`
`
`
`14
`
`
`FRIENDS OF ANIMALS V. HAALAND
`
`The pre-file notice rule, on the other hand, creates a
`procedural hurdle for petitioners that does not comport with
`the ESA. Congress’s intent in establishing the citizen
`petition procedure in Section 4 was to “interrupt[] the
`department’s priority system by requiring
`immediate
`review.” Ctr. for Biological Diversity v. Norton, 254 F.3d
`833, 840 (9th Cir. 2001) (emphasis in original) (quoting H.R.
`Rep. No. 95-1625, at 5 (1978)). The plain language of the
`ESA establishes that “the Secretary shall make a finding as
`to whether the petition presents substantial scientific or
`commercial information indicating that the petitioned action
`may be warranted[,]” 16 U.S.C. § 1533(b)(3)(A) (emphasis
`added); and Congress has further clarified that when “a
`private citizen petitions the Secretary to list a species, and
`presents substantial evidence in support of the petition, the
`Secretary is required to conduct a review of the species.”
`H.R. Rep. No. 95-1625, at 5 (emphasis added). The
`Services’ authority to establish rules governing petitions
`does not extend to restrictions that frustrate the ESA by
`arbitrarily impeding petitioners’ ability to submit—or the
`Services’ obligation to review—meritorious petitions. See,
`e.g., Biodiversity Legal Found., 309 F.3d at 1175.
`
`Here, the FWS used the pre-file notice rule to refuse to
`consider a petition that was properly submitted, complied
`with the substantive requirements in all other respects, and
`was otherwise entitled to a 90-day finding, while relying on
`an unreasonable justification that does not accord with the
`aims of the ESA. The FWS’s denial of Friends’s petition
`was therefore arbitrary and in excess of statutory jurisdiction
`and must be set aside. Turtle Island Restoration Network,
`878 F.3d at 732.
`
`
`
`
`
`
`FRIENDS OF ANIMALS V. HAALAND
`
`15
`
`III. CONCLUSION
`
`Because the pre-file notice rule is inconsistent with the
`statutory scheme of the ESA, we conclude that it does not
`survive the second step of the Chevron test. Accordingly,
`the FWS’s decision to deny Friends’s petition because of its
`non-compliance with the pre-file notice rule cannot be
`sustained.
`
`For the foregoing reasons, we reverse the district court’s
`grant of summary judgment in favor of Defendants and
`remand to the district court to enter summary judgment in
`favor of Plaintiff.
`
`REVERSED AND REMANDED.
`
`
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