The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL DIVERSITY;
FRIENDS OF THE SANTA CLARA
RIVER,
Plaintiffs-Appellants,
v.
No. 04-55084
UNITED STATES FISH & WILDLIFE
SERVICE,
Defendant-Appellee,
D.C. No.
CV-02-00412-RMT
CEMEX INC., a Louisiana OPINION
Corporation qualified to do
business in California f/k/a
Southdown Inc. d/b/a Transit
Mixed Concrete (TMC),
Defendant-Intervenor-Appellee.
Appeal from the United States District Court
for the Central District of California
Robert M. Takasugi, District Judge, Presiding
Argued and Submitted
October 19, 2005—Pasadena, California
Filed June 5, 2006
Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain,
and Richard A. Paez, Circuit Judges.
Opinion by Judge O’Scannlain
6127
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6131
COUNSEL
John Buse, Environmental Defense Center, Ventura, Califor-
nia, argued the cause for the petitioners; Brent Plater, Center
for Biological Diversity, Oakland, California, and Karen M.
Kraus, Environmental Defense Center, Santa Barbara, Cali-
fornia, were on the briefs.
Andrew Mergen, United States Department of Justice, Wash-
ington, D.C., argued the cause for respondent United States
Fish & Wildlife Service; Assistant Attorney General Thomas
L. Sansonetti, James C. Kilbourne, and Paul S. Weiland,
United States Department of Justice, Washington, D.C., were
on the brief.
6132 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
Michael Hassen, Jeffer, Mangels, Butler & Marmaro, LLP,
San Francisco, California, argued the cause for respondent
CEMEX, Inc.; Kerry Shapiro and Scott N. Castro, Jeffer,
Mangels, Butler & Marmaro, LLP, San Francisco, California,
were on the brief.
Robert J. Uram, Ella Foley-Gannon, and Aaron J. Foxworthy,
Sheppard, Mullin, Richter & Hampton LLP, San Francisco,
California, filed a brief for amicus curiae Building Industry
Legal Defense Foundation and California Building Industry
Association.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the Endangered Species Act
requires the United States Fish and Wildlife Service to com-
plete formal designation of critical habitat for an endangered
fish species listed over thirty-five years ago.
I
A
The United States Fish and Wildlife Service (“Service”)
listed the unarmored threespine stickleback (“stickleback”), a
small, scaleless freshwater fish, as an endangered species in
1970 under the Endangered Species Act (“ESA”), 16 U.S.C.
§§ 1531-1599. The stickleback is found chiefly in parts of
Santa Barbara, Los Angeles, and San Diego counties in south-
ern California. The stickleback prefers to make its nest where
there is ample vegetation and a gentle flow of water, avoiding
areas with either too much or no water flow. In fact, the rate
of water flow is a key factor in preferred stickleback habitat.
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6133
In 1980, the Service proposed a rule designating three
stream zones of the Santa Clara River watershed as critical
habitat for the stickleback but never completed the designa-
tion.
In 1990, the Bureau of Land Management (“BLM”)
awarded CEMEX, Inc.,1 a contract to mine fifty-six million
tons of sand and gravel from a location in Los Angeles Coun-
ty’s Soledad Canyon. Although the mining would not take
place within the stickleback’s habitat, the project involves
pumping water from the Santa Clara River and could cause
portions of the river to run dry periodically. Parts of the Santa
Clara River commonly dry out during the summer season,
trapping stickleback in isolated pools, which eventually dry
completely. Uncontrolled pumping during particularly dry
periods could exacerbate the problem, significantly impacting
the stickleback. Because of the project’s potential impact, the
BLM initiated formal consultation with the Service under the
ESA, submitting its final biological assessment for the project
in June 1996.
The Service reviewed the project’s likely impact on the
stickleback and CEMEX’s proposals to mitigate those
impacts. Ultimately, the Service issued its January 1998 bio-
logical opinion, which concluded that the project was “not
likely to jeopardize the continued existence of the stickle-
back.” The biological opinion included an incidental take
statement (“ITS”) “which if followed, [would] exempt[ ] the
[Service and CEMEX] from the prohibition on takings2 found
in Section 9 of the ESA.” Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv., 422 F.3d 782, 790 (9th Cir. 2005) (citing 16
U.S.C. § 1536(b)(4) and Aluminum Co. of America v. Adm’r,
1
We refer to CEMEX and its predecessor-in-interest, Transit Mixed
Concrete, collectively as “CEMEX.”
2
The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
16 U.S.C. § 1532(19).
6134 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
Bonneville Power Admin., 175 F.3d 1156, 1159 (9th Cir.
1999)). The Service was unable to predict how many stickle-
back might be taken by the project, particularly in light of the
difficulty in isolating the cause of any particular stickleback’s
death.
The Service’s biological opinion requires CEMEX to take
specific “reasonable and prudent measures” in order to mini-
mize incidental take of stickleback. The measures include
continuous monitoring of water levels in the Santa Clara
River and the cessation of pumping from the river “if the hab-
itat requirements of the . . . stickleback are not being met.”
The BLM’s formal consultation process with the Service
ended with the issuance of the biological opinion.3
B
The Center for Biological Diversity (“CBD”), an organiza-
tion dedicated to the protection and restoration of natural eco-
systems and imperiled species, filed suit in 2002, claiming
that the Service violated the ESA by failing to complete the
designation of critical habitat for the stickleback. CBD subse-
quently amended its complaint to claim that the Service vio-
lated the ESA and its own regulations by issuing the ITS to
CEMEX. Following such amendment, the district court
granted CEMEX’s motion to intervene as a defendant based
on its interest in the mining project.
On September 11, 2002, the Service published its finding
that critical habitat should not be designated for the stickle-
back. Designation of Critical Habitat for the Unarmored
Threespine Stickleback, 67 Fed. Reg. 58,580, 58,581 (Sept.
17, 2002) (“Critical Habitat Finding” or “Finding”). Coinci-
3
In August 2001, the BLM reinitiated formal consultation with the Ser-
vice because of the presence of other endangered species, including the
arroyo toad, in the project area. The resulting consultation did not alter the
Service’s conclusion regarding project impact on the stickleback.
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6135
dentally, CBD moved for summary judgment on the same
day. After the Service also moved for summary judgment,
CBD amended its complaint a second time, challenging the
Finding as arbitrary and capricious.
Following cross-motions for summary judgment in Decem-
ber 2002 and January 2003, the district court granted sum-
mary judgment to the Service and CEMEX. The court
declared CBD’s original claim moot. The court rejected
CBD’s other claims, concluding that the decision not to desig-
nate critical habitat was within the Service’s discretion and
that the Service did not violate the ESA by issuing an ITS to
CEMEX. The district court also granted motions to strike sev-
eral CBD exhibits that were not part of the administrative
record.
CBD timely appealed.4
II
CBD challenges the Service’s Finding on three grounds.
First, CBD argues that the Service exceeded its statutory
authority because the ESA requires designations of critical
habitat to be made “to the maximum extent prudent and deter-
4
We review the grant of summary judgment de novo, Citizens for Better
Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969 (9th Cir. 2003), and
apply the same standards as the district court. Brower v. Evans, 257 F.3d
1058, 1065 (9th Cir. 2001). When reviewing administrative decisions
involving the ESA, we are guided by section 706 of the Administrative
Procedure Act (“APA”). Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wild-
life, 273 F.3d 1229, 1235-36 (9th Cir. 2001). Under the APA, agency
actions and findings shall be set aside only when they are found to be “ar-
bitrary, capricious, an abuse of discretion,” “in excess of statutory . . .
authority,” or “without observance of procedure required by law.” 5
U.S.C. § 706(2)(A), (C)-(D). This is a narrow scope of review, which does
not allow us to “substitute [our] judgment for that of the agency.” Ariz.
Cattle, 276 F.3d at 1236. We must uphold the agency’s decision if the
agency considered the relevant factors and made no clear error of judg-
ment. Id.
6136 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
minable.” Second, CBD claims that the Finding was arbitrary
and capricious because the Service did not articulate a rational
connection between the facts and its decision. Third, CBD
insists that the Finding is invalid because the Service did not
provide a notice and comment period. We consider each argu-
ment in turn.
A
To begin, CBD claims—based on its interpretation of the
ESA—that the Service has a mandatory duty to complete the
proposed designation of critical habitat for the stickleback.
[1] The ESA subsection governing designations of critical
habitat states:
The [Service],5 by regulation promulgated in accor-
dance with subsection (b) of this section and to the
maximum extent prudent and determinable—
(A) shall, concurrently with making a
determination under paragraph (1) that a
species is an endangered species or a threat-
ened species, designate any habitat of such
species which is then considered to be criti-
cal habitat; and
(B) may, from time-to-time thereafter as
appropriate, revise such designation.
16 U.S.C. § 1533(a)(3)(A). Under this provision, designations
of critical habitat must be made at the time a species is listed
5
The Secretary of the Interior (“Secretary”) has responsibility for imple-
menting the provisions of the ESA for the majority of land animals and
freshwater fish species. The Secretary has delegated these duties under the
ESA to the Service. See 16 U.S.C. §§ 1532(15), 1533(a)(1)-(3); 50 C.F.R.
§ 402.01(b) (2005). Where the ESA uses “Secretary,” we substitute “Ser-
vice” to reflect this delegation.
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6137
as endangered, but this requirement was added to the ESA in
1982. Indeed, the 1982 amendments to the ESA specified that
[a]ny regulation proposed after, or pending on, the
date of the enactment of this Act to designate critical
habitat for a species that was determined before such
date of enactment to be endangered or threatened
shall be subject to the procedures . . . for regulations
proposing revisions to critical habitat instead of
those for regulations proposing the designation of
critical habitat.
ESA Amendments of 1982, Pub. L. No. 97-304, § 2(b)(2), 96
Stat. 1411 (1982) (emphasis added).
[2] Pursuant to the 1982 Amendments, critical habitat des-
ignations for the stickleback—listed as an endangered species
in 19706 —are governed by the procedures for critical habitat
revisions. While the Service “shall” designate critical habitat,
it “may” revise critical habitat designations “from time-to-
time . . . as appropriate.” 16 U.S.C. § 1533(a)(3)(A). When
“may” and “shall” are both used in a statute, “the normal
inference is that each is being used in its ordinary sense—the
one being permissive, the other mandatory.” Haynes v. United
States, 891 F.2d 235, 239-40 (9th Cir. 1989). It follows that
critical habitat designations are mandatory, but revisions are
discretionary.
CBD concedes as much but argues that once a proposal is
made the Service has a mandatory duty to complete the desig-
nation “to the maximum extent prudent and determinable.”
Put another way, CBD contends that once the Service pro-
poses a designation of critical habitat, that designation must
be completed unless not prudent or determinable. The Service
6
The Service listed the stickleback as an endangered species in 1970,
under the precursor to the ESA. 35 Fed. Reg. 16,047, 16,048 (Oct. 13,
1970).
6138 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
published a proposed rule for designation of critical habitat
for the stickleback in 1980. Proposed Designation of Critical
Habitat for the Endangered Unarmored Threespine Stickle-
back (“Proposed Critical Habitat Designation”), 45 Fed. Reg.
76,012 (Nov. 17, 1980). Under CBD’s theory, the Service has
a mandatory duty to complete this proposed designation.7 We
are not persuaded.
The 1982 Amendments state that pending proposals for
designation of critical habitat are governed by the statutory
provision on critical habitat revisions. ESA Amendments of
1982 § 2(b)(2). As such, the Service has discretion in choos-
ing a course of action with respect to such proposals, just as
it does in deciding whether or not to propose a designation.
We cannot accept the contention that “to the maximum
extent prudent and determinable” should be read as the con-
trolling language of § 1533(a)(3)(A) and that it mandates
completion of the 1982 critical habitat proposal. Such conten-
tion fails to account for Congress’s use of “shall” for designa-
tions and “may” for revisions. If CBD’s interpretation is
accepted, the statute’s use of the discretionary “may” for revi-
sions is rendered superfluous because the Service would be
required to complete proposals pending at the time of the
1982 Amendments “to the maximum extent prudent and
determinable.” If this were truly Congress’s intent, it would
not have explicitly stated that pending proposals would be
controlled by the provision on critical habitat revisions. Sig-
nificantly, CBD does not explain why, under its logic, all crit-
ical habitat revisions would not be mandatory “to the
7
The Service has by regulation defined “not determinable” as when
“[i]nformation sufficient to perform required analyses of the impacts of
the designation is lacking, or [t]he biological needs of the species are not
sufficiently well known to permit identification of an area as critical habi-
tat.” 50 C.F.R. § 424.12 (a)(2). By comparison, a designation is “not pru-
dent” if it would be detrimental to the species. 50 C.F.R. § 424.12(a)(1).
In the present case, the Service made no express findings that designation
was either “not determinable” or “not prudent.”
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6139
maximum extent prudent and determinable,” rendering mean-
ingless the statute’s separate treatment of revisions and desig-
nations. We decline to interpret the statute in this manner, and
thus, we reject CBD’s proposed interpretation.8 See Boise
Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991).
We also reject the argument that a mandatory duty to com-
plete the critical habitat designation arose when the Service
failed to make a final determination on the proposal by Octo-
ber 13, 1983—a year after enactment of the 1982 Amend-
ments. We previously held that the ESA’s time requirements
are meant to spur agency action rather than to prohibit it once
the specified time lapses. See Idaho Farm Bureau Fed’n v.
Babbitt, 58 F.3d 1392, 1400 (9th Cir. 1995). Agency delay
alone does not transform a discretionary duty into a manda-
tory duty, especially where Congress provided a specific rem-
edy for such a violation—a citizen suit to compel a decision.
See id.
[3] For these reasons, we conclude that the proposed desig-
nation of critical habitat for an endangered species listed prior
to the 1982 Amendments does not create a mandatory duty to
make the “designation.”
B
CBD next argues that the Service’s Finding was arbitrary
and capricious.
8
Neither do we accept CBD’s argument that a failure to designate criti-
cal habitat will render the ESA’s consultation requirement unenforceable.
This argument ignores 16 U.S.C. § 1536(a)(2), which requires consulta-
tion to ensure that agency actions are “not likely to jeopardize the contin-
ued existence of any endangered species.” In fact, the BLM and CEMEX
initiated consultation on the Soledad Canyon project under that subsection.
The mining project is downstream of the formerly proposed critical habitat
and thus will not affect it.
6140 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
1
[4] Before reaching the argument’s merits, we must first
address CEMEX’s claim that CBD lacks standing under the
APA to challenge the Finding because designation of critical
habitat for the stickleback is discretionary. The review provi-
sions of the APA do not apply when “agency action is com-
mitted to agency discretion by law.” 5 U.S.C. § 701(a)(2). We
must therefore decide whether the Service had a mandatory
duty to issue its Finding.
[5] Once a critical habitat revision proposal is published,
the Service has one year in which to publish one of four
actions in the Federal Register. 16 U.S.C. § 1533(b)(6)(A)(i).
The Service “shall publish”:
(I) a final regulation to implement the revision,
(II) a finding that the revision should not be made,
(III) notice that the one-year period is being
extended, or
(IV) notice that the proposed revision is being with-
drawn together with the finding on which the with-
drawal is based.
Id. Although the Service has some discretion in selecting one
of these options, it must choose one of the four.
[6] Discretion means choice on whether or not to act, not
required choice among several options. Because the Service
had a mandatory duty to select one of the four actions in the
statute based on its proposed designation of critical habitat for
the stickleback, the action is not one “committed to agency
discretion by law.” The APA’s review provision therefore
applies, and CBD indeed has standing under the statute to
challenge the Service’s Finding as arbitrary and capricious.
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6141
2
[7] An agency decision is 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, [or] offered an explanation for its deci-
sion that runs counter to the evidence before the agency.”
Pac. Coast Fed’n of Fishermen’s Ass’ns, Inc. v. Nat’l Marine
Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001) (internal
quotation marks omitted); see also Rybacheck v. EPA, 904
F.2d 1276, 1284 (9th Cir. 1990) (“Our function is to deter-
mine whether the Agency has considered the relevant factors
and articulated a rational connection between the facts found
and the choice made.” (internal quotation marks omitted)).
CBD argues that the Service failed to articulate a rational con-
nection between the fact that “critical habitat is a high priori-
ty” for the stickleback and its Finding that the proposed
designation should not be made. See Rybacheck, 904 F.2d at
1284.
We evaluate the Service’s Finding based on its stated ratio-
nale. See Ariz. Cattle, 273 F.3d at 1236 (“The basis for the
decision . . . must come from the agency.”). In its Finding, the
Service examined the four available options and determined
that it could not justify taking three of the four actions. Criti-
cal Habitat Finding, 67 Fed. Reg. at 58,581.
First, the Service stated that it could not justify publishing
a final regulation designating the area as critical habitat under
16 U.S.C. § 1533 (b)(6)(A)(i)(I) because the 1980 proposal no
longer satisfied the ESA’s requirement that such designations
“be made on the basis of the best scientific data available”
after considering the economic impact of the designation. Id.
(citing 16 U.S.C. § 1533(b)(2)). The existence of considerable
new information would have required the Service to reassess
the proposed designation because both the scientific evidence
and the economic impact analysis were seriously outdated. Id.
6142 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
Second, the Service stated that it could not defer its deci-
sion under subsection (i)(III) to redo the economic analysis
and update its scientific information. Doing so would have
forced the Service to divert resources from its mandatory
duties under the ESA, including a backlog of non-
discretionary designations of critical habitat for approximately
475 species—many mandated by court order and court-
approved settlement agreements. Id. These mandatory desig-
nations were, by definition, a higher priority than the discre-
tionary designation of critical habitat for the stickleback.9 Id.
Third, the Service similarly stated that it could not justify
withdrawing the proposed designation because a notice of
withdrawal must be accompanied by a finding that “there is
not sufficient evidence to justify the action proposed.” See 16
U.S.C. § 1533(b)(6)(A)(i)(IV), (B)(ii). Such a finding could
not be made based on stale information, but gathering the
required information would have compromised the Service’s
ability to address its backlog of mandatory duties. Critical
Habitat Finding, 67 Fed. Reg. at 58,581.
Having rejected the other three possible actions, the Service
concluded that “the proposed designation of critical habitat
for the . . . stickleback should not be made.” Id. at 58,582. It
did so after reviewing the existing protections for the stickle-
back that would be unaffected by the decision. Id.
Nevertheless, CBD claims that the Critical Habitat Finding
frustrates the policy mandate of the ESA. However, the Ser-
vice stated that the Finding would not “alter the protection
[the stickleback] and its habitat will continue to receive under
9
CBD does not dispute the Service’s backlog of mandatory critical habi-
tat designations, asserting instead that the ESA allows the Service to leave
the designation in place while it updates the necessary data. However, the
ESA authorizes only one six month extension to the mandatory duty to act
within one year. 16 U.S.C. § 1533(b)(6)(B). Significantly, CBD does not
claim that the Service could both eliminate its significant backlog and
gather information on the stickleback in six months.
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6143
the [ESA].” Id. at 58,582. Indeed, the Finding has no effect
on an agency’s duty to consult with the Service to ensure that
its actions are “not likely to jeopardize the continued exis-
tence” of the stickleback. 16 U.S.C. § 1536(a)(2). Nor does it
eliminate the ESA’s prohibition on take10 of stickleback. 16
U.S.C. § 1538(a)(1) (“it is unlawful for any person . . . to [ ]
take any [endangered] species”). In any event, in order to
accept CBD’s contention, we would be forced to question
Congress’s decision to allow the Service discretion regarding
designation of critical habitat for species listed as endangered
prior to 1982. This, we cannot do. Therefore, we must con-
clude that the Service’s Finding is not at cross-purposes with
the ESA’s protection of the stickleback as an endangered spe-
cies.
CBD next argues that the Service may refuse to designate
critical habitat only if “the benefits of such exclusion out-
weigh the benefits of specifying such area.” 16 U.S.C.
§ 1533(b)(2)). But subsection 1533(b)(2) only establishes a
“basis for determinations,” requiring the Service to base des-
ignations of critical habitat on the best scientific evidence
available and after consideration of any resulting economic
impact. Further, it establishes a standard for excluding areas
from mandatory designation only when the benefits of exclu-
sion outweigh the benefits of inclusion. Id. Because we have
already determined that designation of critical habitat for the
stickleback is discretionary, § 1533(b)(2) simply does not
apply in this case.11
10
As previously noted, ‘take’ means “to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture or collect, or to attempt to engage in any
such conduct.” 16 U.S.C. § 1532(19).
11
CBD’s reliance on Natural Resources Defense Council v. United
States Department of the Interior, 113 F.3d 1121 (9th Cir. 1997), is unper-
suasive. There, the designation of critical habitat was mandatory under
§ 1533(a)(3)(A), subject to the balancing of benefits in § 1533(b)(2). Id.
at 1127. We held that the Service had failed to weigh properly the benefit
to the species and thus could not exclude the area in question from manda-
tory critical habitat designation. Id. at 1124. The same rationale does not
apply here where the designation of critical habitat for the stickleback was
not mandatory.
6144 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
[8] Based on our review, it is clear that the Service “consid-
ered the relevant factors and articulated a rational connection
between the facts found and the choice made.” See Ryba-
check, 904 F.2d at 1284. The Service’s Finding was not arbi-
trary or capricious.
3
Finally, CBD argues that we should set aside the Finding
because the Service did not provide an adequate opportunity
for public comment. Under the APA, agency actions must be
set aside if taken “without observance of procedure required
by law.”12 5 U.S.C. § 706(2)(A).
[9] With respect to critical habitat revisions, the ESA spe-
cifically requires notice and comment in only two circum-
stances: (1) when the one-year period for taking action is
being extended and (2) when a proposed revision is being
withdrawn. § 1533(b)(6)(A)(i)(III), (IV). The statute does not
expressly require notice for the remaining two available
actions in § 1533(b)(6)(A)(i), including a finding that a revi-
sion should not be made. Indeed, § 1533(b)(6)(A)(i)(II)
directs the Service to issue a “final regulation” to implement
a finding that a revision or, as here, a designation, will not be
made. We therefore infer that Congress did not intend to
require notice when the Service takes one of these two actions.13
12
The ESA states that “[e]xcept as provided in paragraphs (5) and (6)
of this subsection,” the APA shall apply to “any regulation promulgated
to carry out the purposes of this chapter.” 16 U.S.C. § 1533(b)(4). Para-
graph (6) describes the Service’s mandatory duty to act on proposed criti-
cal habitat revisions. Thus, the APA’s notice requirements are not
applicable to the Service’s Critical Habitat Finding.
13
Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392 (9th Cir.
1995), does not support CBD’s argument. That case concerned publication
requirements for proposed rule-making, id. at 1401-02, but a formal find-
ing that a discretionary proposal to designate critical habitat should not be
made final is simply not a proposed rule. The ESA contains specific notice
and comment requirements for proposed rules, 16 U.S.C. § 1533(b)(5), but
it does not require notice when the Service finds that a critical habitat des-
ignation under § 1533(b)(6)(A)(i)(II) should not be made.
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6145
See Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir.
1991) (noting that the expressio unius est exclusio alterius
canon “creates a presumption that when a statute designates
certain . . . manners of operation, all omissions should be
understood as exclusions”).
[10] We are satisfied that Congress did not intend to
impose a notice requirement on agency actions taken under 16
U.S.C. § 1533(b)(6)(A)(i)(I)-(II). We therefore decline to set
aside the Critical Habitat Finding on such ground.
C
Based on the plain language of the ESA and its amend-
ments, we are convinced that Congress conferred discretion
on the U.S. Fish and Wildlife Service to choose whether to
designate critical habitat for endangered species listed before
1982, including the stickleback. Although the Service was
required to act on the proposed designation, we are satisfied
that the Service’s Finding was a proper exercise of its discre-
tion. In any event, neither the APA nor the ESA require a
notice and comment period that would force us to set the
Finding aside. The district court therefore acted properly in
granting defendants’ motions for summary judgment.
III
We next consider CBD’s challenge to the incidental take
statement (“ITS”) contained in the biological opinion that the
Service issued to CEMEX for the Soledad Canyon project.
CBD claims that the Service must ensure that agency action
will not violate any federal or state law before it issues an
ITS. Before reaching the merits, we address CEMEX’s
renewed claim that CBD lacks standing and the Service’s
contention that CBD’s claim is not ripe.
6146 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
A
[11] CBD does not ground its right to bring this claim on
the ESA private action provisions.14 Instead it relies on the
APA, which provides a right to judicial review of all “final
agency action for which there is no other adequate remedy in
a court.” 5 U.S.C. § 704. This right applies universally except
where a statute specifically precludes judicial review or
“agency action is committed to agency discretion by law.”
§ 701(a). The ESA does not expressly preclude review, and
CBD alleges that the Service has a mandatory duty to ensure
that agency actions comply with all applicable laws before
issuing an ITS. We are satisfied that CBD has standing to
bring its claim under the APA.
B
[12] The Service contends that CBD’s claim is not ripe for
review because CEMEX has not completed all of the permit
requirements for the proposed project. To resolve a ripeness
claim, “we must consider (1) whether delayed review would
cause hardship to the plaintiffs; (2) whether judicial interven-
tion would inappropriately interfere with further administra-
tive action; and (3) whether the courts would benefit from
further factual development of the issues presented.” Ohio
14
CEMEX argues that CBD does not have standing to bring its claim
under 16 U.S.C. § 1540(g)(1)(C), which permits any person to file suit
against the Service “where there is alleged a failure . . . to perform any act
or duty under section 1533 of this title which is not discretionary.” Were
the ESA’s citizen suit provisions the only source of CBD’s standing,
CEMEX would be correct. CBD cannot bring a claim under such provi-
sion because its claim is based not on § 1533, but on the Service’s duties
under § 1536. Neither could CBD base standing on 16 U.S.C.
§ 1540(g)(1)(A), which authorizes citizen suits “to enjoin any person,
including the United States and any other governmental instrumentality or
agency . . . , who is alleged to be in violation of any provision of this chap-
ter or regulation issued under the authority thereof.” This provision cannot
be used to seek judicial review of the Service’s implementation of the
ESA. Bennett v. Spear, 520 U.S. 154, 173-74 (1997).
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6147
Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998);
Citizens for Better Forestry, 341 F.3d at 976-77 (quoting
Ohio Forestry). We analyze the present case with these three
considerations in mind.
[13] First, the Service’s issuance of an ITS will cause
“hardship” to CBD because it creates a legal right; the ITS
directly authorizes the incidental taking of stickleback. See
Ohio Forestry, 523 U.S. at 733. The Service’s action “is a
definitive statement of [the] agency’s position,” “has a direct
and immediate effect on the complaining parties,” and “has
the status of law.” Ass’n of Am. Med. Colls. v. United States,
217 F.3d 770, 780 (9th Cir. 2000).
[14] Second, immediate judicial review of CBD’s claim
will not interfere with further administrative action. See Ohio
Forestry, 523 U.S. at 735. The Service’s policy on the Sole-
dad Canyon project is fixed and will not be reconsidered
because the consultation process is complete once the biologi-
cal opinion is issued.15
[15] Third and finally, further factual development will not
assist us in resolving the legal question at issue. See id. at 737.
The voluminous administrative record in the case covers vir-
tually every conceivable angle of the project, and we may
safely base our decision on it.
We cannot agree with the Service’s contention that we
should follow the Third Circuit’s direction in New Hanover
Township v. United States Corps of Engineers, 992 F.2d 470
(3d Cir. 1993). New Hanover held a controversy unripe
because future permitting was required, stressing pragmatic
considerations where an order to begin the permitting process
15
The Service will have some involvement in monitoring the project,
and formal consultation will be reinitiated once stickleback are actually
taken. The Service will not, however, have any further input into the proj-
ect before it begins.
6148 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
under the Clean Water Act would be pointless if a required
state permit were denied. Id. at 472-73. Significantly, the
Clean Water Act specifically contemplates dual permit
requirements at the state and federal levels. See id. at 472.
Pragmatic concerns bear far less consideration in this case.
If CBD prevails, the Service will be forced to withdraw its
biological opinion until the mining project’s compliance with
all applicable state and federal laws is ensured. Unlike New
Hanover, the very existence of additional legal requirements
is at the heart of CBD’s claim. CBD claims that no ITS
should issue until the Service addresses those other legal
requirements. Once CEMEX is in compliance with these
laws, the Service could reissue the biological opinion contain-
ing the ITS. Additionally, the ESA and its regulations—unlike
the Clean Water Act—do not explicitly involve compliance
with other state and federal laws when issuing a biological
opinion. For these reasons, we are not persuaded that New
Hanover is applicable.16
[16] Instead, we are convinced that CBD’s challenge is ripe
for review, and we turn to the merits of the claim.
C
CBD argues that no ITS can be issued unless the Service
ensures compliance with all federal and state laws.17 Although
16
We also reject the Service’s reliance on Texas v. United States, 523
U.S. 296 (1998), which involved an unripe controversy where application
of a statute was not foreseeable or likely. Id. at 300. The present case is
clearly distinguishable. We have a concrete application of the ESA, and
we may properly view the statute in light of that application. See id. at
301.
17
We review the district court’s grant of summary judgment on the issue
de novo. Citizens for Better Forestry, 341 F.3d at 969. Under the APA, we
may set aside the Service’s action only if it is “arbitrary, capricious, an
abuse of discretion,” “in excess of statutory . . . authority,” or “without
observance of procedure required by law.” 5 U.S.C. § 706(2)(A),(C)-(D).
In analyzing an agency’s responsibilities under a statute, we ordinarily
defer to the agency’s interpretation. Mt. Graham Red Squirrel v. Espy, 986
F.2d 1568, 1578 (9th Cir. 1993).
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6149
the district court based summary judgment on preemption
grounds, we may affirm “on any grounds supported by the
record.” Mustang Mktg., Inc. v. Chevron Prods. Co., 406 F.3d
600, 606 (9th Cir. 2005).
[17] Under the ESA, the Service must issue an ITS to a fed-
eral agency as part of its biological opinion after confirming
that the agency’s actions, including any incidental takings,
will not jeopardize the continued existence of an endangered
species. 16 U.S.C. § 1536(b)(4). The recipient agency is
immunized for incidental takings of endangered species as
long as the agency complies with the “reasonable and prudent
measures” specified by the Service for minimizing the
action’s impact on the endangered species. § 1536(b)(4)(i)-
(ii).
Service regulations define “incidental take” as “takings that
result from, but are not the purpose of, carrying out an other-
wise lawful activity.” 50 C.F.R. § 402.02. “Otherwise lawful
activities” are defined as “those actions that meet all State and
Federal legal requirements except for the prohibition against
taking.” Interagency Cooperation—Endangered Species Act
of 1973, as Amended; Final Rule, 51 Fed. Reg. 19926, 19936
(June 3, 1986). On the basis of these regulatory definitions,
CBD argues that the Service cannot issue an ITS unless it first
determines that an agency action will comply with all state
and federal legal requirements. Specifically, CBD claims that
the Service may not issue an ITS for the Soledad Canyon
mining project because California law independently protects
the stickleback, prohibiting any take of the species, incidental
or not. Cal. Fish & Game Code § 5515 (West 2004) (known
as the California Fully Protected Fish Statute). CBD insists
that any take of stickleback will violate California law, and
thus, the Soledad Canyon project cannot be considered an
“otherwise lawful activity.” CBD’s lone citation to support
this contention is to a case which does nothing more than
repeat verbatim the regulatory definition of “incidental tak-
ing.” See Mt. Graham Red Squirrel, 986 F.2d at 1580.
6150 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
According to the ESA, once the Service is satisfied that an
agency’s action will not threaten an endangered species’ con-
tinued existence, it must issue the ITS. 16 U.S.C. § 1536(b)(4)
(“the [Service] shall provide . . . a written statement”). If the
recipient agency complies with all the terms and conditions of
the biological opinion, the ITS immunizes it from the prohibi-
tion against take of endangered species: “any taking that is in
compliance with the terms and conditions specified in [this
statement] shall not be considered to be a prohibited taking of
the species concerned.” 16 U.S.C. § 1536(o)(2).
[18] The ESA says nothing about issuing a biological opin-
ion or ITS only after ensuring a planned action’s compliance
with all state and federal laws. Indeed, an ITS does not immu-
nize its holder for violations of any other law, be it state or
federal. Congress knows how to require compliance with
other laws, but it did not specifically do so here. See Cal.
Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 587
(1987) (detailing 43 U.S.C. § 1712(c)(8)’s requirement that
the Secretary of the Interior “provide for compliance with
applicable pollution control laws, including State, and Federal
air, water, noise, or other pollution standards or implementa-
tion plans”).
The Service interprets the regulatory language at issue to
mean that “an ITS does not relieve the action agency or appli-
cant of its responsibility to comply with all other . . . legal
requirements.” This is a reasonable interpretation, especially
considering the specificity of other regulations that do require
compliance with other laws. See, e.g., 36 C.F.R. § 228.8(a)
(1986) (requiring compliance with state air quality standards
in national forests). Significantly, CBD cannot identify any
instance in which the Service acted to ensure compliance with
all other laws before issuing an ITS. We therefore cannot
accept CBD’s argument that the Service’s interpretation is an
expedient litigation position that is not entitled to deference.
There is simply no evidence that the Service has ever inter-
preted its regulatory definitions to impose a sweeping duty to
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6151
require compliance with all other laws before issuing an ITS.
CBD finds no support for its argument in the ESA, its legisla-
tive history, or the regulations governing the consultation pro-
cess, and yet CBD’s proffered interpretation would require
the Service to ensure compliance with a farrago of zoning
laws and permitting requirements that are completely unre-
lated to preservation and conservation efforts. Such a require-
ment would impose an enormous burden on the Service,
which is already operating with a serious backlog of manda-
tory duties, resulting in a diversion of scarce resources away
from conservation efforts.
[19] Based on this analysis, we defer to the agency inter-
pretation of the regulations and conclude that the Service is
not required to ensure compliance with federal and state law
before issuing an ITS.18
IV
Finally, we address the district court’s decision to strike fif-
teen exhibits offered by CBD because the documents were not
part of the administrative record.19
[20] When reviewing an agency decision, “the focal point
for judicial review should be the administrative record already
in existence, not some new record made initially in the
reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973);
see also Sw. Ctr. for Biological Diversity v. United States
Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (citing
Camp). Parties may not use “post-decision information as a
18
Because we resolve the claim on this ground, we need not decide the
meaning of “harm” under California’s Fully Protected Fish Statute or
address CEMEX’s claim that the statute is preempted by federal mining
laws.
19
We review the district court’s decision to exclude extra-record evi-
dence for an abuse of discretion. Friends of the Payette v. Horseshoe Bend
Hydroelectric Co., 988 F.2d 989, 997 (9th Cir. 1993).
6152 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
new rationalization either for sustaining or attacking the
Agency’s decision.” Ass’n of Pac. Fisheries v. EPA, 615 F.2d
794, 811-12 (9th Cir. 1980).
We have recognized four exceptions to this rule, allowing
extra-record materials
(1) if necessary to determine whether the agency has
considered all relevant factors and has explained its
decision,
(2) when the agency has relied on documents not in
the record, [ ]
(3) when supplementing the record is necessary to
explain technical terms or complex subject matter,
[or] . . .
(4) when plaintiffs make a showing of agency bad
faith.
Sw. Center, 100 F.3d at 1450 (internal quotation marks omit-
ted). CBD has not alleged agency bad faith or that the Service
relied on documents not in the record.20
CBD claims that the documents it offered were submitted
for their persuasive force to explain the term ‘take’ under state
law and to show that the Service failed to consider a relevant
factor during its deliberations. We normally refuse to consider
20
The Service issued its biological opinion on January 14, 1998. All of
CBD’s proffered documents postdate the agency decision and thus could
not have been relied on by the agency. The documents offered by CBD
include letters dated November 2000 and January 2002, an August 2001
conference outline, a 2003 declaration concerning an April 2002 seminar,
ten California Endangered Species Act incidental take permits issued
between July 1999 and September 2001, and one undated California ESA
incidental take permit that, from internal references, must date from
November 1998 or later.
CENTER FOR BIOLOGICAL DIVERSITY v. USFWS 6153
evidence that was not before the agency because “it inevitably
leads the reviewing court to substitute its judgment for that of
the agency.” Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th
Cir. 1980). When an agency’s inquiry is inadequate, we gen-
erally “remand the matter to the agency for further consider-
ation.” Id.
[21] We rejected a similar attempt to introduce extra-record
documents in Southwest Center for Biological Diversity v.
United States Forest Service, 100 F.3d at 1450. There a party
offered extra-record documents, including a letter dated a
month after the agency decision was completed, arguing that
they should be admitted to analyze “whether the Forest Ser-
vice [had] considered all of the relevant factors” in its deci-
sion. Id. We held that the district court had not abused its
discretion in striking the letter because post-decision informa-
tion “may not be advanced as a new rationalization . . . for
attacking an agency’s decision.” Id. at 1451-52.
[22] This is precisely the purpose for which CBD offered
the stricken documents, and we agree with the district court
that it is an impermissible use. Thus, the district court did not
abuse its discretion in striking CBD’s extra-record documents.21
V
In summary, it was not arbitrary and capricious for the Ser-
vice to decide not to designate critical habitat for the stickle-
back. The Service was not required to ensure compliance with
federal and state laws before issuing an ITS to CEMEX, and
the district court did not abuse its discretion in striking extra-
record exhibits offered to establish a new rationale for attack-
21
We also grant CBD’s motion to strike extra-record documents filed
with the Court by CEMEX and the portions of its brief that refer to the
documents. The documents are not part of the administrative record and
do not come within one of our exceptions to the rule excluding such mate-
rials.
6154 CENTER FOR BIOLOGICAL DIVERSITY v. USFWS
ing the Service’s decision. The district court’s grant of sum-
mary judgment to the Service and CEMEX is
AFFIRMED.