Coos County Board of County Commissioners v. Kempthorne

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COOS COUNTY BOARD OF COUNTY 

COMMISSIONERS,

Plaintiff-Appellant,

v.

No. 06-35634

DIRK KEMPTHORNE,* in his official

capacity as Secretary of the  D.C. No.

CV-06-06010-MRH

Interior; UNITED STATES FISH &

WILDLIFE SERVICE; H. DALE HALL, OPINION

in his official capacity as Director,

United States Fish and Wildlife

Services,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Oregon

Michael R. Hogan, District Judge, Presiding

Argued and Submitted

March 5, 2008—Portland, Oregon

Filed June 26, 2008

Before: Ferdinand F. Fernandez and Marsha S. Berzon,

Circuit Judges, and Otis D. Wright II,** District Judge.

Opinion by Judge Berzon

*Dirk Kempthorne is substituted for his predecessor, Gale A. Norton,

as Secretary of the Interior. Fed. R. App. P. 43(c)(2).

**The Honorable Otis D. Wright II, United States District Judge for the

Central District of California, sitting by designation.

7469

COOS COUNTY v. KEMPTHORNE 7471

COUNSEL

Ralph Kasarda (argued), J. David Breemer, M. Reed Hopper,

and Scott Andrew Shepard, of the Pacific Legal Foundation,

7472 COOS COUNTY v. KEMPTHORNE

for plaintiff-appellant Coos County Board of County Com-

missioners.

Ellen J. Durkee (argued), Courtney Taylor, and Lisa Jones,

Environment & Natural Resources Division, U.S. Department

of Justice, Sue Ellen Wooldridge, Assistant Attorney General,

and Benjamin C. Jessup and Eric Nagle, Office of the Solici-

tor, U.S. Department of the Interior, for defendants-appellees

Dirk Kempthorne, Secretary of the Interior, United States Fish

and Wildlife Service, and H. Dale Hall, Director, United

States Fish and Wildlife Service.

OPINION

BERZON, Circuit Judge:

We are asked to decide whether the Fish and Wildlife Ser-

vice (“FWS”)1 has an enforceable duty promptly to withdraw

a threatened species from the protections of the Endangered

Species Act (the “ESA” or the “Act”), 16 U.S.C. §§ 1531-

1544, after a five-year agency review mandated by the Act

found that the species does not fit into one of the several types

of population categories protected under the ESA. We answer

that FWS does not have such a duty.

I. BACKGROUND

The Coos County Board of County Commissioners (“Coos

County”) brought this action under the ESA’s citizen suit pro-

vision, 16 U.S.C. § 1540(g), and under the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 551-559. The suit rests

on the results of a FWS species status review of the marbled

murrelet, a rare seabird that nests in mature and old-growth

forests. See generally U.S. Fish & Wildlife Service, Marbled

1

The Secretary of the Interior and the Director of FWS are also defen-

dants in this case. We refer to all of the defendants collectively as FWS.

COOS COUNTY v. KEMPTHORNE 7473

Murrelet 5-Year Review (“Five Year Review”). The murrelets

living in Washington, Oregon, and California — which we

will refer to as the tri-state murrelets — are the protected pop-

ulation. The tri-state murrelets — and only the tri-state murre-

lets — were listed under the ESA as a “threatened species,”

after the detailed consideration required by the statute. See

Determination of Threatened Status for the Washington, Ore-

gon, and California Population of the Marbled Murrelet, 57

Fed. Reg. 45,328, 45,328-29 (Oct. 1, 1992) (“Listing Rule”).

FWS is required to “conduct, at least once every five years,

a review of all species” protected under the ESA and to “de-

termine on the basis of such review whether” the listing status

of protected species should be changed. 16 U.S.C.

§ 1533(c)(2). The five-year review of the tri-state murrelet

listing, released in 2004, concluded that the tri-state murrelets

do not meet the definition of a “distinct population segment,”

one of the population categories which may be protected

under the ESA, see 16 U.S.C. § 1532(16), but determined that

they nonetheless remained threatened. Five-Year Review at 6,

28. FWS also noted that a district court had held that the tri-

state murrelets could be protected even if they did not consti-

tute a distinct population segment, because they occupied a

significant portion of the range of the entire species. Id. at 6.

FWS therefore determined not to alter the protections

afforded the species pending a more complete review. Id. at

28.

Coos County maintains that this cautious approach to spe-

cies protection is illegal, and that, instead, FWS had a manda-

tory duty promptly to remove the tri-state murrelets from the

ESA’s threatened species list, “delisting” the birds, as a result

of the Five-Year Review. Seizing on a statutory deadline for

“promptly publish[ing]” proposed regulations in response to

a citizen petition so warranting, Coos County argues that

FWS had such a duty here and must follow the same deadline,

even though no petition has been filed. To explain why Coos

County is mistaken, and why the dismissal of its suit was

7474 COOS COUNTY v. KEMPTHORNE

appropriate, we first set out the biological and legal history of

the tri-state murrelet listing and of the subsequent litigation.

A. The Marbled Murrelet

In 1988, the National Audubon Society petitioned FWS to

list the California, Oregon, and Washington population of the

marbled murrelet as a threatened species. See Proposed

Threatened Status for the Marbled Murrelet in Washington,

Oregon and California, 56 Fed. Reg. 28,362, 28,364 (June 20,

1991) (“Proposed Rule”).2 A “threatened” species is one

which “is likely to become an endangered species within the

foreseeable future throughout all or a significant portion of its

range.” 16 U.S.C. § 1532(20). The Audubon Society alleged

that the marbled murrelet population in the three states was

dangerously depleted.

Murrelets — small, dove-sized birds — feed primarily on

sea life and nest in coastal mature and old-growth forests. See

Listing Rule, 57 Fed. Reg. at 45,328-29. “[T]he main cause

of population decline has been the loss of older forest and

associated nest sites,” in large part because of timber harvest-

ing. Id. at 45,330. At the time the tri-state murrelets were

listed for ESA protection, over 80% of their habitat had been

lost in Washington and Oregon and as much as 96% had been

lost in California. Id. at 45,333. Murrelet nests in the remain-

ing fragments of old growth forest are more accessible to

predators than they were before the forests were lost, further

threatening the species. Id. at 45,334. Also, when murrelets

leave the forest to feed at sea, they are threatened by gill-net

fishing boats and by oil spills. Id. at 45,335. Because murre-

lets do not reproduce every year and generally lay only one

egg when they do, the species recovers slowly from popula-

tion losses. Id. at 45,336.

2

Technically, the Secretary of the Interior has authority over the tri-state

murrelets, see 16 U.S.C. § 1532(15), but that authority has been delegated

to FWS, see 50 C.F.R. § 402.01(b). Thus, references to the Secretary in

this opinion refer interchangeably to FWS, unless otherwise noted.

COOS COUNTY v. KEMPTHORNE 7475

As a result of these various forces, murrelet populations

crashed. Historically, as many as 60,000 murrelets may have

lived in California alone. Id. at 45,329. By 1992, when the tri-

state murrelets were listed as threatened, FWS believed that

only 9,000 birds all together then remained in all three states.

Id. at 45,329. Some years after listing, FWS estimated the

annual rate of population decline in the three states as

between four and six percent. See Final Designation of Criti-

cal Habitat for the Marbled Murrelet, 61 Fed. Reg. 26,256,

26,259 (May 24, 1996) (“Critical Habitat Rule”). These popu-

lation losses are important, as the three states comprise

roughly one-third of the murrelet’s range, which extends

north to Alaska. See Proposed Rule, 56 Fed. Reg. at 28,364,

28,366. The Proposed Rule concluded that “California, Ore-

gon, and Washington constitute a significant portion of the

marbled murrelet’s range.” Id. at 28,366.

B. Legal Protections for the Marbled Murrelet

FWS moved slowly in considering the Audubon Society’s

petition to list the tri-state murrelets. Eventually, the Audubon

Society sued, contending that FWS had missed mandatory

ESA deadlines triggered by a listing petition. See Marbled

Murrelet v. Lujan, No. C91-522R, 4-7 (D. Wash. Sept. 17,

1992).

At issue in that case was whether there was a “substantial

disagreement,” see 16 U.S.C. § 1533(b)(6)(B)(i), concerning

whether the tri-state population of the marbled murrelet was

a “distinct population segment” of the larger species. The

ESA defines species to “include[ ] . . . any distinct population

segment of any species of vertebrate fish or wildlife which

interbreeds when mature.” 16 U.S.C. § 1532(16) (emphasis

added). FWS maintained that the tri-state murrelets could be

listed only as a distinct population segment, and that there

was a substantial scientific disagreement as to that question,

justifying a six-month delay. Notice of Extension of the Final

Decision to List the Washington, Oregon, and California Pop-

7476 COOS COUNTY v. KEMPTHORNE

ulation of the Marbled Murrelet as a Threatened Species, 57

Fed. Reg. 33,478, 33,479 (July 29, 1992) (“Extension

Notice”); see 16 U.S.C. § 1533(b)(6)(B)(i) (providing for

such a delay for the purpose of “soliciting additional data”).

The district court in Marbled Murrelet disagreed with both

FWS’s premises and its conclusion. It first held that FWS

could list the tri-state population whether or not that popula-

tion was a distinct population segment, rendering any substan-

tial disagreement as to that question irrelevant. Marbled

Murrelet, No. C91-522R at 11-12. The court observed that a

threatened species is one which “is likely to become an

endangered species within the foreseeable future throughout

all or a significant portion of its range.” Id. at 11 (quoting 16

U.S.C. § 1532(20), emphasis added). In light of this defini-

tion, the court reasoned as follows:

Plaintiffs argue that, in order to support listing the

marbled murrelet as threatened under the ESA, the

Secretary [of the Interior] need only find that the

North American subspecies of the marbled murrelet

is threatened throughout a significant portion of its

range. Plaintiffs then point out that the Secretary

reached those very conclusions in his [Proposed

Rule] and that he has never retreated from or

retracted them.

Indeed, the [Proposed Rule] cites the definition of

a “threatened species” quoted above and then states

that “California, Oregon, and Washington constitute

a significant portion of the marbled murrelet’s range.

In those states the species is immediately threatened

by the loss of nesting habitat (old-growth and mature

forests).” [Citation omitted] Nothing in the [Exten-

sion Notice] contradicts or casts any doubt on these

conclusions. Therefore, the court concludes that,

based on the uncontradicted findings that the mar-

bled murrelet qualifies for listing as a threatened spe-

COOS COUNTY v. KEMPTHORNE 7477

cies throughout a significant portion of its range

within the meaning of the ESA, there is no need to

consider the alternative basis of whether the tri-state

population is a distinct population segment which

might qualify for protection under the ESA.

Marbled Murrelet, No. C91-522R at 11-12.3 The court further

held that, in any event, there was no substantial disagreement

as to the distinct population segment question, so no delay

was justified even if the distinct population segment issue

mattered. Id. at 12-22. It ordered FWS promptly to make its

final listing decision. Id. at 22-25. FWS complied with the

district court’s order a few days later, and did not appeal it.

In its final listing rule, FWS discussed in an interwoven

fashion whether the tri-state murrelets are a distinct popula-

tion segment and whether they inhabit a significant portion of

the species’s range. The rule provides, in a section entitled

“Distinct Population Segment”:

[E]xisting legal mechanisms are not adequate to pro-

tect the marbled murrelet in California, Oregon, and

Washington. The three states encompass roughly

one-third of the geographic area occupied by this

subspecies, comprising a significant portion of its

range. The amount of nesting habitat has undergone

3

The district court referred to the North American marbled murrelet as

a “subspecies” because, at the time of listing, that population was thought

to be within the same species as an Asian murrelet species. See Listing

Rule, 57 Fed. Reg. at 45,328. After reviewing more recent studies, FWS

concluded that the North American murrelet is a distinct species. See Des-

ignation of Critical Habitat for the Marbled Murrelet; Proposed Rule, 71

Fed. Reg. 53,838, 53,840 (Sept. 12, 2006). The distinction is not of any

relevance to the ESA’s protections, as the statute specifies that “[t]he term

‘species’ includes any subspecies of fish or wildlife,” 16 U.S.C.

§ 1532(16), and FWS has construed the statute to allow it to protect dis-

tinct population segments of subspecies. See Policy Regarding the Recog-

nition of Distinct Vertebrate Population Segments Under the Endangered

Species Act, 61 Fed. Reg. 4,722, 4,724 (Feb. 7, 1996).

7478 COOS COUNTY v. KEMPTHORNE

a tremendous decline since the late 1800s (most of

which has taken place during the last 20 to 30 years),

especially in the coastal areas of all three states.

At the time of proposing to list the marbled murre-

let in Washington, Oregon, and California, the Ser-

vice considered the murrelets in these States to

constitute a distinct population segment comprising

a significant portion of the eastern Pacific subspecies

of the marbled murrelet. While the Service continues

to believe that existing legal protection is not ade-

quate to ensure survival of murrelets in the three-

state area, some question remains whether the popu-

lation listed in this rule qualifies for protection under

the [ESA’s] definition of “species.”

Compliance with a court order required a final

decision on listing to be made at this time. Based on

the information now available to the Service, the

only supportable decision that can be reached within

the limit imposed by the court is to list the popula-

tion as proposed. Nevertheless, the Service intends

to reexamine the basis of recognizing this population

of murrelets as a “species” under the Act. Within 90

days, the Service will announce the results of this

examination and at that time may propose a regula-

tory change that would alter the listing of the murre-

let as a threatened species.

Listing Rule, 57 Fed. Reg. at 45,330.

Despite its equivocation in the Listing Rule, FWS never

proposed altering the listing. In 1996, FWS designated critical

habitat for the murrelets, see 16 U.S.C. § 1533(a)(3), observ-

ing that the “loss of nesting habitat [is] one of the primary fac-

tors limiting current population size from British Columbia to

California.” Critical Habitat Rule, 61 Fed. Reg. at 26,258.

COOS COUNTY v. KEMPTHORNE 7479

In 1997, FWS adopted a Recovery Plan for the murrelets.

See U.S. Fish & Wildlife Service, Recovery Plan for the Mar-

bled Murrelet (“Recovery Plan”);4 see also 16 U.S.C.

§ 1533(f). Recovery plans set out, among other goals, “objec-

tive, measurable criteria which, when met, would result in a

determination . . . that [a] species be removed from the list.”

16 U.S.C. § 1533(f)(B)(ii). The Recovery Plan did not

develop final specific delisting criteria, pending further

research, but did provide “[i]nterim delisting criteria,” which

include:

1) Trends in estimated population size, densities and

productivity have been stable or increasing in four of

the six zones [into which the region occupied by the

tri-state murrelets has been divided] over a 10-year

period. This period of time will encompass at least

one to two El Niño events, based on recent fre-

quency of occurrences.

2) Management commitments (marine and terres-

trial) and monitoring have been implemented that

provide adequate protection of marbled murrelets in

the six Conservation Zones for at least the near

future (50 years).

Recovery Plan at 112-13; see also Five-Year Review at 17.

Since 1992, when the tri-state murrelets were listed, their

population appears to have somewhat increased, although

improvements in data collection in the interim makes absolute

population comparisons difficult. See id. at 6-7. The 2004

Five-Year Review estimated that as many as 24,400 birds

may now be present in the three states. Id. at 18. Nonetheless,

the Five-Year Review also found that the murrelet continues

to face serious threats and, while there is not adequate infor-

4

The Recovery Plan is available online at http://ecos.fws.gov/docs/

recovery_plans/1997/970924.pdf.

7480 COOS COUNTY v. KEMPTHORNE

mation presently to determine a population trend, many

experts suspect the population is now declining. Id. at 6-7, 18-

20. The population north of the border also appears to be in

trouble, as Canada recently listed the marbled murrelet as a

threatened species under its Species at Risk Act (“SARA”),

S.C. ch. 29, enacted in 2002. See Five-Year Review at 14-16.

C. The Distinct Population Segment Policy and the

Five-Year Review

After the tri-state murrelets were listed as threatened, and

before the Five-Year Review, FWS promulgated a policy

defining characteristics of “distinct population segments” for

purposes of the ESA. See Policy Regarding the Recognition

of Distinct Vertebrate Population Segments Under the Endan-

gered Species Act, 61 Fed. Reg. 4,722, 4,724 (Feb. 7, 1996)

(“DPS Policy”); see also 16 U.S.C. § 1532(16). We recently

determined that the DPS Policy is “based on a reasonable con-

struction” of the ESA. Nw. Ecosystem Alliance v. U.S. Fish &

Wildlife Serv., 475 F.3d 1136, 1143-45 (9th Cir. 2007).

In the DPS Policy, FWS set out a two-step process for

determining whether a population qualifies as a “distinct pop-

ulation segment.” DPS Policy, 61 Fed. Reg. at 4,725; see also

Nw. Ecosystem Alliance, 475 F.3d at 1138 (describing the

DPS Policy). FWS first asks if the population is “discrete”

with regard to “the remainder of the species to which it

belongs,” and, if the population is discrete, then inquires into

the “significance” of the population to the species as a whole.

Id. The DPS Policy does not equate the “significant portion

of the range” and “distinct population segment” issues,

although range considerations are incorporated into the signif-

icance aspect of the inquiry. Id.5

5

A population may, for instance, be significant if its loss “would result

in a significant gap in the range of a taxon,” or if it is “the only surviving

natural occurrence of a taxon” outside of its historic range. DPS Policy,

61 Fed. Reg. at 4,725.

COOS COUNTY v. KEMPTHORNE 7481

Of particular relevance here, under the DPS Policy a spe-

cies may be discrete even if it is not separated from other

members of its species by physical or ecological barriers, if

“[i]t is delimited by international governmental boundaries

within which differences in control of exploitation, manage-

ment of habitat, conservation status, or regulatory mecha-

nisms exist that are significant in light of [16 U.S.C.

§ 1533(a)(1)(D), which addresses “the inadequacy of existing

regulatory mechanisms” to protect a species].” DPS Policy,

61 Fed. Reg. at 4,725. FWS “recognize[d] that the use of

international boundaries as a measure of discreteness may

introduce an artificial and non-biological element to the rec-

ognition” of distinct population segments, but maintained that

“national legislation, which has its principal effects on a

national scale, [could properly] recognize units delimited by

international boundaries.” Id. at 4,723.

FWS understood that earlier distinct population segment

determinations might not satisfy the DPS Policy, and so

announced that “[a]ny [distinct population segment] of a ver-

tebrate taxon that was listed prior to implementation of this

policy will be reevaluated on a case-by-case basis as recom-

mendations are made to change the listing status for that dis-

tinct population segment.” Id. at 4,725. The policy is also to

“be considered in the 5-year reviews of the status of listed

species required by [16 U.S.C. § 1533(c)(2)].” Id. The tri-state

murrelet distinct population segment determination was thus

subject to consideration under the new DPS Policy when it

came up for a five-year review.

The ESA provides for such reviews in 16 U.S.C. § 1533(c),

which is entitled “Lists” and addresses generally FWS’s obli-

Taxonomy is “the science dealing with the description, identification,

naming, and classification of organisms;” a taxon is a taxonomic category,

such as a genus or species. THE RANDOM HOUSE DICTIONARY OF THE

ENGLISH LANGUAGE 1947 (2nd ed. 1987).

7482 COOS COUNTY v. KEMPTHORNE

gation to maintain and update the endangered and threatened

species lists. The five-year review provision, 16 U.S.C.

§ 1533(c)(2), states:

The Secretary shall —

(A) conduct, at least once every five years, a review

of all species included [in the endangered and threat-

ened species lists provided for in 16 U.S.C.

§ 1533(c)(1)]; and

(B) determine on the basis of such review whether

any such species should —

(i) be removed from such list;

(ii) be changed in status from an endan-

gered species to a threatened species; or

(iii) be changed in status from a threatened

species to an endangered species.

Each determination under subparagraph (B) shall be

made in accordance with the provisions of subsec-

tions (a) and (b) of [16 U.S.C. § 1533].

The murrelet review was delayed for several years. In

2002, a timber industry group, the American Forest Resource

Council, along with several lumber companies, filed suit argu-

ing that FWS had failed to comply with a mandatory duty,

imposed by 16 U.S.C. § 1533(c)(2), to review the tri-state

murrelet listing. The suit settled, with FWS agreeing to com-

plete the review. See Settlement Agreement and Stipulation of

Dismissal with Prejudice, Am. Forest Res. Council v. Sec’y of

the Interior, Civ. No. 02-06087-AA (D. Or., Jan. 2003). As a

result, FWS published an announcement in the Federal Regis-

ter, as it is required to do when it initiates a review. See 5-

Year Review of the Marbled Murrelet and the Northern Spot-

COOS COUNTY v. KEMPTHORNE 7483

ted Owl, 68 Fed. Reg. 19,569 (Apr. 21, 2003) (“Review

Notice”); see also 50 C.F.R. § 424.21 (requiring a published

review announcement). In the Review Notice, FWS explained

that the review would assess:

(a) Whether new information suggests that the spe-

cies’ population is increasing, declining, or stable;

(b) whether existing threats are increasing, the same,

reduced, or eliminated; (c) if there are any new

threats; and (d) if new information or analysis calls

into question any of the conclusions in the original

listing determination as to the species’ status. The

review will also apply this new information to con-

sideration of the appropriate application of the [DPS

Policy] to the listed entity, if applicable.

68 Fed. Reg. at 19,570. The notice invited the public to sub-

mit relevant information. Id. at 19,569, 19,571. FWS

explained that “[i]f the present classification of [the murrelet]

is not consistent with the best scientific and commercial infor-

mation available, we may, at the conclusion of this review,

initiate a separate action to propose changes to the List

accordingly.” Id.

The Five-Year Review was conducted by “over a dozen

biologists,” along with “an international environmental con-

sulting company.” Five-Year Review at 1. Once these experts

had gathered relevant information, FWS managers convened

to answer three questions:

1) Does the currently listed distinct population seg-

ment meet the criteria established in the Service’s

[DPS Policy]?

2) Is there new information about the threats or pop-

ulation status of [sic] the murrelet?

3) If so, does the new information suggest that a

change in listing status is warranted?

7484 COOS COUNTY v. KEMPTHORNE

Id. at 2.

In accord with this outline, the Five-Year Review first ana-

lyzed whether the tri-state murrelets qualified as a distinct

population segment under the DPS Policy. Id. at 6, 14-17.

FWS found that, as of 2002 when Canada protected its murre-

let population under SARA, there were no significant differ-

ences at the American/Canadian border in legal protections

for the species. Id. at 14-17. As the American and Canadian

murrelet populations are not otherwise separate, FWS found

that they did not meet the DPS Policy’s discreteness criterion,

and so could not properly be termed a distinct population seg-

ment. Id. at 6, 14-17. FWS noted, however, that the district

court in Marbled Murrelet “found that, as the murrelet quali-

fies for listing as a threatened species throughout a significant

portion of its range, ‘there is no need to consider the alterna-

tive basis of whether the tri-state population is a distinct popu-

lation segment.’ ” Id. at 6 (quoting Marbled Murrelet, No.

C91-522R at 12).

The Review went on to find that the tri-state murrelets are

still threatened and that none of the interim delisting criteria

from the Recovery Plan have been met. Five-Year Review at

17-18. Further, the new information FWS collected

supports the conclusion that the past harvest of old-

growth forests in the Washington, Oregon, and Cali-

fornia range of the murrelet has significantly contrib-

uted to a commensurate decline in the number of

murrelets [from historic numbers]. There is no com-

pelling information indicating this situation has

improved through the production of significant new

suitable nesting habitat since listing.

Five-Year Review at 18-19 (internal citation omitted).

Accordingly, the Review concluded, a change in ESA clas-

sification was not warranted because “[t]he threat situation

COOS COUNTY v. KEMPTHORNE 7485

has not changed such that the murrelet DPS [(distinct popula-

tion segment)] is no longer likely to become an endangered

species within the foreseeable future throughout all or a sig-

nificant portion of its range.”6 Five-Year Review at 21. FWS

did opt to “complet[e] . . . a range-wide status review,”after

which it might take further action regarding the tri-state mur-

relet listing. Five-Year Review at 28. Pending completion of

that larger review, “[t]here will be no change in the species

status.” Id.

D. The Litigation

With the Five-Year Review in hand, Coos County wrote

FWS and advised of its intent to sue to force the delisting of

the tri-state murrelets. See 16 U.S.C. § 1540(g)(2) (providing

notice requirements for ESA citizen suits). Coos County con-

tended that the Five-Year Review’s determination that the tri-

state population did not fulfill the DPS Policy meant that

FWS had a duty promptly to publish a proposed rule delisting

the murrelets, and, moreover, to publish a final rule imple-

menting the delisting within a year of the proposed rule.

Overlooking the Review’s conclusion that the tri-state murre-

lets had not met the recovery criteria and remained threatened

as well as the Review’s reference to the Marbled Murrelet

court’s “significant portion of the range” holding, Coos

County charged that FWS’s determination to continue pro-

tecting the murrelets, at least pending the completion of a ful-

ler review, had been made “[w]ithout explanation or claim of

authority.”

When FWS did not comply with Coos County’s requests,

6

The Review referred to the tri-state murrelet population as a distinct

population segment, even though it also explained that the population did

not meet the DPS Policy. It seems apparent that FWS was referring to the

tri-state murrelets as a group, not to their technical status. At oral argu-

ment, government counsel so indicated, suggesting that the use of “DPS”

as shorthand for the tri-state murrelets was due to sloppy editing.

7486 COOS COUNTY v. KEMPTHORNE

Coos County filed suit. In its first cause of action, it argued

that FWS had violated the ESA; in the second, it charged

FWS had violated the APA. The ESA provisions which Coos

County argued were violated are:

• 16 U.S.C. § 1533(c)(2), which requires FWS to

conduct a five-year review and to make a deter-

mination based upon it;

• 16 U.S.C. § 1533(b)(3)(B)(ii), which requires

FWS to “promptly publish” a proposed rule

within twelve months after receiving a petition to

alter a species’s listing status, if it concludes that

“[t]he petitioned action is warranted”;

• 16 U.S.C. § 1533(b)(5)(A), which provides that,

once FWS decides to issue a regulation imple-

menting a determination, the proposed regulation

must be published not less than 90 days before

the effective date of the regulation;

• 16 U.S.C. § 1533(b)(6)(A), which provides that

after publication of a proposed regulation, FWS

generally must decide whether to finalize the reg-

ulation within one year.

In its second cause of action, Coos County alleged that

FWS’s failure to publish either a proposed or a final rule del-

isting the murrelets was, under the APA, “agency action

unlawfully withheld or unreasonably delayed.” 5 U.S.C.

§ 706(1).

FWS filed a motion to dismiss under Federal Rules of Civil

Procedure 12(b)(1) (lack of subject-matter jurisdiction) and

12(b)(6) (failure to state a claim upon which relief can be

granted). The district court granted the motion, holding that it

lacked jurisdiction and, in the alternative, that Coos County

had failed to state a claim upon which relief could be granted.

COOS COUNTY v. KEMPTHORNE 7487

The court reasoned as follows: FWS had made the determi-

nation required by 16 U.S.C. § 1533(c)(2), but that determina-

tion did not implicate the requirement to “promptly publish”

a proposed rule triggered by 16 U.S.C. § 1533(b)(3)(B)(ii).

That provision, on its face, applies only when FWS has deter-

mined that a petitioned action is warranted. As Coos County

had not filed a petition, FWS had no duty under either the

ESA or the APA promptly to publish a proposed regulation

and, so, no duty to publish a final regulation. And, because

the citizen suit provisions of those statutes act to waive fed-

eral sovereign immunity, and Coos County had not stated a

claim under those provisions, immunity was not waived. The

district court therefore held that it lacked jurisdiction and dis-

missed the case without prejudice.

Coos County filed this timely appeal. We essentially agree

with the district court and so affirm.

II. ANALYSIS

A. Analytic Framework

Before us, as before the district court, Coos County’s argu-

ment proceeds as follows: (1) once FWS determined in the

Five-Year Review that the tri-state murrelets were not a dis-

tinct population segment, the agency should have concluded

that the species could not be protected under the ESA; (2) the

five-year review process is governed by the deadlines nor-

mally associated with citizen petitions, including the

“promptly publish” obligation of 16 U.S.C. § 1533(b)(3)

(B)(ii); and (3) FWS’s determination in the Five-Year Review

that the tri-state murrelets were not a distinct population seg-

ment thus triggered a judicially-enforceable duty promptly to

publish a proposed rule delisting the murrelets and then,

within a year, a final rule doing so. Coos County so argues

even though FWS’s ultimate determination in the Five-Year

Review was that delisting is not warranted.

7488 COOS COUNTY v. KEMPTHORNE

Coos County’s suit, then, is premised on FWS’s failure to

act upon what Coos County maintains is a statutory duty aris-

ing from the distinct population segment determination made

in the Five-Year Review. This “failure to act” suit proceeds

principally under 16 U.S.C. § 1540(g)(1), the ESA’s citizen

suit provision. Coos County secondarily relies on an APA

provision, 5 U.S.C. § 706(1).

The ESA’s citizen suit provision allows for suits in three

contexts. Coos County’s complaint did not explicitly state

which provision it is suing under, but, as it charges that FWS

has failed to act, we presume it brings suit under 16 U.S.C.

§ 1540(g)(1)(C), which allows suits “against the Secretary

where there is alleged a failure of the Secretary to perform

any act or duty under [16 U.S.C. § 1533] which is not discre-

tionary with the Secretary.”7

The APA provides that “[a] person suffering legal wrong

because of agency action, or adversely affected or aggrieved

by agency action within the meaning of a relevant statute, is

entitled to judicial review thereof.” 5 U.S.C. § 702. “Agency

action” is defined to include an agency’s “failure to act.” 5

U.S.C. § 551(13). Coos County’s complaint specifically con-

tends that, under 5 U.S.C. § 706(1), FWS’s failure to delist

the tri-state murrelets is “agency action unlawfully withheld

or unreasonably delayed.” Review under that provision is lim-

ited to “discrete . . . action[s] that [an agency] is required to

take.” Norton v. S. Utah Wilderness Alliance (“SUWA”), 542

U.S. 55, 64 (2004) (emphases omitted).

7

The other two ESA citizen suit provisions are inapposite. The first, 16

U.S.C. § 1540(g)(1)(A), “is a means by which private parties may enforce

the substantive provisions of the ESA against regulated parties — both

private entities and Government agencies — but is not an alternative ave-

nue for judicial review of the Secretary’s implementation of the statute.”

Bennett v. Spear, 520 U.S. 154, 173 (1997). The second, 16 U.S.C.

§ 1540(g)(1)(B), concerns suits to “compel” the Secretary to take various

species-protective actions, not at issue here.

COOS COUNTY v. KEMPTHORNE 7489

The scope of 5 U.S.C. § 706(1) tracks that of 16 U.S.C.

§ 1540(g)(1)(C) for the purposes of this appeal, as the appli-

cability of both provisions depends upon whether FWS has

failed to act on a nondiscretionary duty to publish proposed

regulations delisting the murrelets (and final regulations

thereafter). Importantly, to the extent that the two causes of

action are identical, the APA provision is not applicable,

because “[i]f a plaintiff can bring suit against the responsible

federal agencies under [a citizen suit provision], this action

precludes an additional suit under the APA.” Brem-Air Dis-

posal v. Cohen, 156 F.3d 1002, 1005 (9th Cir. 1998) (quota-

tion marks omitted). We consider the impact of Brem-Air later

in this opinion.

Because “[t]he United States must waive its sovereign

immunity before a federal court may adjudicate a claim

brought against a federal agency,” and has done so through

the above-discussed ESA and APA provisions, to “establish

waiver of immunity” Coos County must have successfully

stated a claim under those provisions. See Rattlesnake Coal.

v. U. S. Envtl. Prot. Agency, 509 F.3d 1095, 1103 (9th Cir.

2007); see also U.S. Dep’t of Energy v. Ohio, 503 U.S. 607,

615 (1992); Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d

1194, 1198 (9th Cir. 1998). Thus, if the district court’s Rule

12(b)(6) dismissal was justified, its Rule 12(b)(1) ruling was

also correct.

In sum, leaving aside for the moment the question whether

5 U.S.C. § 706(1) is available to Coos County on its present

complaint, its 16 U.S.C. § 1540(g)(1)(C) and 5 U.S.C.

§ 706(1) causes of action may proceed only if FWS has a non-

discretionary duty to begin the delisting process — promptly

or otherwise — as a result of the determination made in the

Five-Year Review and has failed to act upon that duty.

We begin our analysis, therefore, by examining the rela-

tionship between the five-year review provision, 16 U.S.C.

§ 1533(c)(2) and the remainder of 16 U.S.C. § 1533. We then

7490 COOS COUNTY v. KEMPTHORNE

consider whether, given the determination FWS made in the

Five-Year Review, it failed to act upon any duties imposed by

16 U.S.C. § 1533(c)(2). Our “failure to act” inquiry necessar-

ily depends upon the determination FWS made; it does not go

behind the determination to inquire whether it should have

been made differently.8

B. The Five-Year Review Provision and the Statutory

Context

In Coos County’s view, the last sentence of 16 U.S.C.

§ 1533(c)(2), which provides that “[e]ach [five-year review]

determination . . . shall be made in accordance with the provi-

sions of subsections (a) and (b) of [16 U.S.C. § 1533],” incor-

porates several statutory deadlines in 16 U.S.C. § 1533(b),

ordinarily triggered only by the filing of a citizen petition or

by FWS’s independent decision to publish a proposed rule

based upon one of its determinations. See 16 U.S.C.

§§ 1533(b)(3)(B)(ii), (b)(5)(A), (b)(6)(A). The latter two pro-

visions, 16 U.S.C. §§ 1533(b)(5)(A) and (b)(6)(A) do not con-

tain deadlines governing the period of time between a

determination and the publication of a proposed rule, but

instead govern the publication process for proposed and final

rules.9 Coos County therefore primarily grounds its contention

that FWS has failed to act upon a nondiscretionary duty aris-

ing from the five-year review determinations on 16 U.S.C.

8

Coos County argues that its complaint also alleges a violation of a dif-

ferent APA provision, 5 U.S.C. § 706(2)(C), although the complaint

nowhere cites that provision and specifically cites 5 U.S.C. § 706(1)

instead. Were we to review the Five-Year Review determination under

§ 706(2)(C), we would inquire whether it is “in excess of statutory juris-

diction, authority, or limitations, or short of statutory right,” and “hold [it]

unlawful and set [it] aside” if it is. After addressing the “failure to act”

causes of action actually alleged in the complaint we address Coos Coun-

ty’s 5 U.S.C. § 706(2)(C) argument, concluding that it is not properly

before us. See infra note 16.

9

16 U.S.C. § 1533(b)(5)(A)(i) does, however, require that a proposed

regulation be published “not less than 90 days” before its effective date.

COOS COUNTY v. KEMPTHORNE 7491

§ 1533(b)(3)(B)(ii). That provision, again, imposes a duty on

FWS to “promptly publish” a proposed regulation when it

determines that an action that it has been petitioned to take is

warranted. On its face, the provision applies only when FWS

has been petitioned to act. Coos County nonetheless maintains

that “the five-year review process substitutes for the

interested-party petition process” and so should be governed

by the petition process deadline.

We disagree. Contrary to Coos County’s view, the “in

accordance with” clause of 16 U.S.C. § 1533(c)(2) does not

incorporate the deadlines (and corresponding duties) associ-

ated with the petition process. To explain why requires us to

discuss in some detail the text and context of 16 U.S.C.

§ 1533; cf., e.g., K & N Engineering, Inc. v. Bulat, 510 F.3d

1079, 1081 (9th Cir. 2007) (“Statutory interpretation begins

with the plain language of the statute.”) (internal quotation

marks omitted), as well as the regulations implementing the

statute.

1. Text and Statutory Structure

Section 4 of the ESA, which is codified at 16 U.S.C. § 1533

(hereinafter § 1533), sets out “two methods . . . for listing spe-

cies for protection as endangered or threatened,” and, like-

wise, for making other determinations under the ESA

concerning those species. Ctr. for Biological Diversity v. Nor-

ton, 254 F.3d 833, 834 (9th Cir. 2001). “One method allows

the Secretary to act on [his or] her own initiative to identify

species for protection [or for regulatory action, generally].

The second allows interested citizens to compel the Secre-

tary’s consideration of a species by filing a petition.” Id.

“There are . . . important differences between the two meth-

ods that dictate how (and when) the Secretary” must act, how-

ever. Id. The fundamental flaw in Coos County’s statutory

argument is that it conflates these two different mechanisms,

inappropriately shoe-horning the five-year review process, a

statutory step of the kind conducted on the Secretary’s initia-

7492 COOS COUNTY v. KEMPTHORNE

tive, into the system of deadlines created to address citizen-

initiated petitions.

a. The Text of the ESA

i. Coos County’s Interpretation of the “in accordance

with” Clause

[1] Section 1533(b)(3) is the petition provision from which

Coos County draws its “promptly publish” requirement. One

point is immediately obvious: The unambiguous text of that

provision, quoted below in pertinent part, establishes that it

requires a petition to operate:

(A) To the maximum extent practicable, within 90

days after receiving the petition of an interested per-

son under section 553(e) of Title 5, to add a species

to, or to remove a species from, either of the lists

published under subsection (c) of this section, the

Secretary shall make a finding as to whether the peti-

tion 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 com-

mence a review of the status of the species con-

cerned. The Secretary shall promptly publish each

finding made under this subparagraph in the Federal

Register.

(B) Within 12 months after receiving a petition that

is found under subparagraph (A) to present substan-

tial information indicating that the petitioned action

may be warranted, the Secretary shall make one of

the following findings:

(i) The petitioned action is not warranted, in which

case the Secretary shall promptly publish such find-

ing in the Federal Register.

COOS COUNTY v. KEMPTHORNE 7493

(ii) The petitioned action is warranted, in which case

the Secretary shall promptly publish in the Federal

Register a general notice and the complete text of a

proposed regulation to implement such action in

accordance with paragraph (5).

(iii) The petitioned action is warranted, but that—

(I) the immediate proposal and timely pro-

mulgation of a final regulation implement-

ing the petitioned action in accordance with

paragraphs (5) and (6) is precluded by

pending proposals to determine whether

any species is an endangered species or a

threatened species, and

(II) expeditious progress is being made to

add qualified species to either of the lists

published under subsection (c) of this sec-

tion and to remove from such lists species

for which the protections of this chapter are

no longer necessary,

in which case the Secretary shall promptly

publish such finding in the Federal Regis-

ter, together with a description and evalua-

tion of the reasons and data on which the

finding is based.

§ 1533(b)(3) (emphases added).

[2] The piece of this provision which Coos County primar-

ily seizes upon, § 1533(b)(3)(B)(ii) is, plainly, part of the peti-

tion process — indeed, the words “petition” or “petitioned”

appear sixteen times in the text of § 1533(b)(3)(B), including

in § 1533(b)(3)(B)(ii) itself. Equally plainly, the petition pro-

cess is explicitly governed by a series of carefully calibrated

deadlines. The system of deadlines for the petition process is

7494 COOS COUNTY v. KEMPTHORNE

demanding and relatively clear: First, “[t]o the maximum

extent practicable, within 90 days after receiving the petition

of an interested person . . . 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.” § 1533(b)(3)(A). The finding shall be

“promptly publish[ed]” in the Federal Register, and the Secre-

tary is to “promptly commence” a review if further action is

warranted. Id. In no circumstances shall this initial ninety-day

determination take more than a year. Biodiversity Legal

Found. v. Badgley, 309 F.3d 1166, 1176 (9th Cir. 2002). And,

within 12 months of receiving the petition, the Secretary must

decide whether the petitioned action is warranted, warranted

but precluded, or not warranted. §§ 1533(b)(3)(B)(i)-(iii). No

matter what FWS determines, its decision is to be “promptly

publish[ed] in the Federal Register.” Id. Critically, “if the

petitioned action is warranted,” a proposed rule is to be

promptly published, “in accordance with [§ 1533(b)(5)].” Id.

§ 1533(b)(3)(B)(ii).

[3] In contrast, the five-year review provision does not con-

tain any explicit publication deadlines, although it, like the

petition provision, contemplates “a review of the status of the

species concerned.” Compare § 1533(b)(3)(A) with

§ 1533(c)(2). The statute thus sets out two review processes,

one with deadlines, one without, and includes deadlines only

for the petition process.

[4] To the extent that § 1533(b)(3) sets deadlines for

petition-initiated actions only, the directive in the five-year

review section, § 1533(c)(2), that “[e]ach determination . . .

shall be made in accordance with the provisions of

[§ 1533(b)]” could not possibly require the application of

deadlines that, in the incorporated section, depend on a cir-

cumstance not here present, namely, a petition. To require the

agency to act according to those deadlines would not mandate

the making of the determination “in accordance with” the pro-

visions, as § 1533(c)(2) requires. Instead, it would mandate

COOS COUNTY v. KEMPTHORNE 7495

the opposite — making the determination not in accordance

with § 1533(b), by applying deadlines explicitly applicable

under § 1533(b) only when there is a citizen petition to a cir-

cumstance in which there has been no such petition.

Further, Coos County’s theory of the “in accordance with”

clause would require courts to embark upon an entirely inap-

propriate exercise in judicial invention. Section 1533(b)(3)(B)

sets out many deadlines for reviews triggered by citizen peti-

tions, some of which have no possible application here. For

example, there is no possible reason for requiring FWS to

make ninety-day findings concerning its own five-year

reviews, nor to publish such tentative conclusions, as it does

for petitions. See § 1533(b)(3)(A). Coos County does not sug-

gest otherwise. Instead, Coos County would require us to pick

and choose among the portions of the petition provision to

decide which are applicable to the five-year review provision.

We cannot read the “in accordance with” clause as bestowing

on the courts such a statutory revision project.

Interpreting the “in accordance with” clause in the five-year

review determination as incorporating the petition provisions

would also lead to strange results elsewhere in § 1533, where

essentially identical language is used. In § 1533(a)(1), for

example, the statute provides that “[t]he Secretary shall by

regulation promulgated in accordance with subsection (b) of

this section determine” (emphasis added) whether species are

endangered or threatened; and, in § 1533(a)(3)(A), the Secre-

tary is directed to “by regulation promulgated in accordance

with subsection (b) of this section” (emphasis added) desig-

nate critical habitat for endangered and threatened species.

Coos County does not argue that these tasks, too, are to be

undertaken under the petition deadlines in subsection (b),

despite the relevant provisions’ use of the same “in accor-

dance with subsection (b)” language present in § 1533(c)(2).

Yet, we are offered no principled basis to support treating

§§ 1533(a)(1)(A) and (a)(3)(A) differently than the five-year

review provision. Far more sensible than supposing that only

7496 COOS COUNTY v. KEMPTHORNE

one of three “in accordance with” clauses incorporates the

petition provision is to conclude that none of them do so.

In sum, we find nothing in § 1533(c)(2), or in the ESA gen-

erally, to support Coos County’s tortured reading of the stat-

ute’s plain text.

ii. The Proper Construction of the “in accordance

with” Clause

The text of the statute points to a much simpler, and much

more logical, interpretation of the “in accordance with”

clause. Most of the provisions of §§ 1533(a) and (b) govern

the decisionmaking process in general, not the petition pro-

cess in particular. Section 1533(c)(2) is naturally read as man-

dating that “[e]ach [five-year review] determination . . . shall

be made in accordance with” those generally applicable provi-

sions. Indeed, if five-year review determinations were not

made in accordance with those provisions, the ESA’s pur-

poses would be quite ill-served.

Among the most important of those provisions is

§ 1533(a)(1), which sets out the factors to be considered in

making a listing decision:

The Secretary shall by regulation promulgated in

accordance with subsection (b) of this section deter-

mine whether any species is an endangered species

or a threatened species because of any of the follow-

ing factors:

(A) the present or threatened destruction, modifica-

tion, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, sci-

entific, or educational purposes;

(C) disease or predation;

COOS COUNTY v. KEMPTHORNE 7497

(D) the inadequacy of existing regulatory mecha-

nisms; or

(E) other natural or manmade factors affecting its

continued existence.

These factors are of obvious relevance to five-year reviews,

which result in determinations about whether a reviewed spe-

cies’s listing should be changed or remain the same.

Also critical to all ESA determinations is § 1533(b)(1)(A),

which dictates the information upon which determinations are

to be based:

The Secretary shall make determinations required by

subsection (a) (1) of this section solely on the basis

of the best scientific and commercial data available

to him after conducting a review of the status of the

species and after taking into account those efforts, if

any, being made by any State or foreign nation, or

any political subdivision of a State or foreign nation,

to protect such species, whether by predator control,

protection of habitat and food supply, or other con-

servation practices, within any area under its juris-

diction, or on the high seas.

Again, were a five-year review determination not to rely

“solely on the basis of the best scientific and commercial data

available,” it would not be made “in accordance with” the

statute. It is provisions like these — which generally direct

how determinations regarding listings are to be made and

implemented — that § 1533(c)(2) incorporates.

[5] In sum, our construction of § 1533(c)(2)’s “in accor-

dance with” clause as incorporating provisions which gener-

ally govern determinations, and not the deadlines that pertain

only to petitions, is well supported by the text. Coos County’s

7498 COOS COUNTY v. KEMPTHORNE

reading of the statute is, on the other hand, flatly contradicted

by the plain language of the ESA.

b. Statutory Structure

Coos County’s construction of § 1533(c)(2) disregards not

only the statutory language but the overall structure of the

ESA, which, as we have indicated, reflects a basic distinction

between agency-initiated determinations and determinations

triggered by citizen petition. “Under the first method [of mak-

ing determinations], the Secretary may, on [his or] her own

accord, consider whether a species is eligible for protection as

endangered or threatened.” Ctr. for Biological Diversity, 254

F.3d at 834. If the Secretary determines that a species is “en-

dangered or threatened,” he or she “must publish a proposed

rule identifying the species as such.” Id. at 835 (citing 50

C.F.R. § 424.11 (discussing circumstances in which a species

“shall be listed or reclassified”)).

[6] Importantly, the statute provides no timeline governing

the period which begins when the Secretary commences his

or her own deliberations and ends with the publication of a

proposed rule. Deadlines governing agency-initiated listing

decisions appear only in provisions governing the publication

process itself. See §§ 1533(b)(5)(A), (b)(6)(A). So, while a

delay between an agency-initiated determination, including a

five-year review determination, and publication of a proposed

rule might be so long as to amount to a judicially-enforceable

breach of statutory duty, a matter we consider briefly below,

there is no fixed deadline for publication.

In practice, the period between the Secretary’s first consid-

eration of an action concerning a species and the publication

of a proposed rule implementing that action can be quite

lengthy. For example, the Secretary may conclude that more

research is required before publishing a proposed rule of any

kind. Specifically, after considering the relevant factors, he or

she may determine that “one of the actions” available with

COOS COUNTY v. KEMPTHORNE 7499

regard to a species “may be warranted, but that the available

evidence is not sufficiently definitive to justify proposing the

action at that time.” 50 C.F.R. § 424.15(a). If so, the Secretary

“may” publish a brief notice so stating in the Federal Register.

Id. In such cases, species considered candidates for listing

may “sit on candidate lists for extraordinarily long periods

before becoming the subject of protective rules.” Ctr. for Bio-

logical Diversity, 254 F.3d at 840. Moreover, the Secretary

will often assign a low priority to removing a species from the

endangered or threatened species list, which is the action that

Coos County argues is appropriate here. See Endangered and

Threatened Species Listing and Recovery Priority Guidelines,

48 Fed. Reg. 43,098, 43,100 (Sept. 21, 1983) (“Priority

Guidelines”). So the Secretary enjoys considerable scheduling

discretion in the management of listing and research priori-

ties.

After the basic provisions of the ESA as it now exists were

enacted in 1973, Congress became aware that such delays

could sometimes undermine implementation of the statutory

scheme. As a result, “[i]n order to force action on listing and

delisting proposals, [it] amended the ESA[ ] . . . to provide

certain mandatory deadlines by which the Secretary must act”

when presented with a citizen petition. Ctr. for Biological

Diversity, 254 F.3d at 840 (citations and quotation marks

omitted); see Endangered Species Act Amendment of 1982,

Pub. L. No. 97-304, § 2, 96 Stat. 1411, 1412-14 (1982)

(adding the petition process deadlines).10 The petition process

and its deadlines are set out at § 1533(b)(3), which we have

quoted and outlined above. This process, which “[e]mbrac[es]

citizen participation,” Biodiversity Legal Found., 309 F.3d at

1170, is “intended . . . to interrupt the [FWS’s] priority system

by requiring immediate review.” Id. at 1177 (quoting Ctr. for

Biological Diversity, 254 F.3d at 840, alteration and quotation

marks omitted). It “replace[s] the Secretary’s discretion with

10

In Center for Biological Diversity, we wrongly stated that this amend-

ment was made in 1992. See 254 F.3d at 840.

7500 COOS COUNTY v. KEMPTHORNE

mandatory, nondiscretionary duties.” Ctr. for Biological

Diversity, 254 F.3d at 840 (alteration and quotation marks

omitted).

Coos County’s radical construction of the “in accordance

with” clause of the five-year review provision, § 1533(c)(2),

would, as we have explained, import at least one of the peti-

tion process’s deadlines into the agency-initiated five-year

review process. It would, as a result, turn the five-year review

process into a hybrid of the two, otherwise distinct, decision-

making models that the ESA sets out. Moreover, as we have

demonstrated, see supra Part II(B)(1)(A)(i), applying the peti-

tion deadlines to the five-year review process would entail

considerable judicial ingenuity, as some of the petition dead-

lines simply have no sensible application to the five-year

review process.

“The petition process strikes a delicate balance between

judicial review, agency expertise and the public’s right to a

healthy, sustainable ecosystem which fosters biological diver-

sity.” Wyoming v. U.S. Dep’t of the Interior, 360 F. Supp. 2d

1214, 1229 (D. Wyo. 2005), aff’d on other grounds, 442 F.3d

1262 (10th Cir. 2006). Its “statutory requirements are not

mere bureaucratic hoops to jump through, but rather are the

stated will of Congress, and the people, and as such should be

adhered to with great care.” Id. at 1245. Importing some —

but not all — of the petition process into the agency-initiated

process risks upsetting that delicate balance. Our construction,

in contrast, maintains the ESA’s usual division between

agency-initiated determinations and petition-driven actions.

2. Regulations

The ESA’s implementing regulations support our view that

the last sentence of § 1533(c)(2) is intended only to ensure

that five-year review determinations are made consistently

with the process provided for agency-initiated determinations

in subsections (a) and (b), and with the substantive standards

COOS COUNTY v. KEMPTHORNE 7501

that apply generally under those subsections to listing-related

determinations.

The regulation governing five-year reviews, 50 C.F.R.

§ 424.21, does not contain any “promptly publish” require-

ment for proposed rules based upon five-year review determi-

nations. Instead, it requires that “[a] notice announcing those

species under active review . . . be published in the Federal

Register,” but does not mandate publishing five-year review

determinations at all, much less developing and publishing

rules resulting from them. Id.11

Moreover, 50 C.F.R. § 424.21 provides, in language echo-

ing the last sentence of § 1533(c)(2), that five-year review

determinations “shall be made in accordance with” three regu-

lations which parallel the statutory provisions applying to

determinations generally, not the statutory petition process

provisions. See id. The first of these regulations, 50 C.F.R.

§ 424.11, tracks §§ 1533(a)(1) and (b)(1)(A): It sets out

“[f]actors for listing, delisting, or reclassifying species,” dis-

cusses when species “shall be listed or reclassified” or “may”

be delisted due to these factors, and provides that determina-

tions are to be made on “the basis of the best scientific and

commercial data available.” The second, 50 C.F.R. § 424.16,

like § 1533(b)(5), provides a procedure for publishing pro-

posed rules that applies to both petition-initiated rules and to

rules proposed as a result of agency-initiated determinations.

Finally, the third regulation, 50 C.F.R. § 424.17, like

11

In full, 50 C.F.R. § 424.21 provides:

At least once every 5 years, the Secretary shall conduct a review

of each listed species to determine whether it should be delisted

or reclassified. Each such determination shall be made in accor-

dance with §§ 424.11, 424.16, and 424.17 of this Part, as appro-

priate. A notice announcing those species under active review

will be published in the Federal Register. Notwithstanding this

section’s provisions, the Secretary may review the status of any

species at any time based upon a petition (see § 424.14) or upon

other data available to the Service.

7502 COOS COUNTY v. KEMPTHORNE

§ 1533(b)(6), sets out the deadline for making a decision on

a final rule following the publication of a proposed rule.

[7] In short, the regulations implementing § 1533(c)(2)

fully support the reading we have adopted. The regulations

specify how a determination during the five-year review pro-

cess is to be made and provide guidance on the publication of

proposed and final rules arising from that process, without

importing any of the deadlines from the petition process into

the five-year review determination.

C. Coos County’s “Failure to Act” Causes of Action

[8] Given the construction of § 1533(c)(2) we adopt, Coos

County’s causes of action challenging FWS’s failure to act to

delist the tri-state murrelets cannot go forward. As we

explained earlier, the ESA and APA provisions under which

Coos County filed its complaint require that it be able to

allege either, under the ESA, “a failure of the Secretary to

perform any act or duty under section 1533 . . . which is not

discretionary with the Secretary,” 16 U.S.C. § 1540(g)(1)(C),

or, under the APA, that FWS has “failed to take a discrete

agency action that it is required to take,” SUWA, 542 U.S. at

64 (interpreting 5 U.S.C. § 706(1), emphases in original).

Coos County cannot meet these requirements.12

12

We note, in that regard, that National Ass’n of Home Builders v. Nor-

ton, 340 F.3d 835 (9th Cir. 2003), and Northwest Ecosystem Alliance v.

U.S. Fish & Wildlife Serv., 475 F.3d 1136 (9th Cir. 2007), upon which

Coos County relies, do not support its position that the Five-Year Review

is reviewable, or that the Review’s final determination not to delist the tri-

state murrelets is improper.

In National Ass’n of Home Builders, we reviewed “a final rule listing

the Arizona pygmy-owl[ ] as endangered” as a distinct population seg-

ment. Id. at 839. The National Association of Home Builders contended

that the owls were not a distinct population segment and so could not be

listed as one. Id. at 840. Because FWS had not articulated a rational basis

for its designation, we remanded to the district court for further proceed-

ings. Id. at 852.

COOS COUNTY v. KEMPTHORNE 7503

[9] Preliminarily, we hold that Coos County’s 5 U.S.C.

§ 706(1) cause of action is precluded because it is identical in

all relevant respects to the ESA cause of action, which pro-

vides Coos County with an “adequate remedy.” See Brem-Air,

156 F.3d at 1004-05. In so determining, we acknowledge that

“[n]othing in the ESA’s citizen-suit provision expressly pre-

cludes review under the APA,” and that “the causes of action

against the Secretary set forth in the ESA’s citizen-suit provi-

sion are [not] exclusive, [and do not] supplant[ ] those pro-

vided by the APA.” Bennett, 520 U.S. at 175. Here, however,

Coos County’s APA argument exactly “duplicates the one [it]

brought under the [ESA]. Because review of [Coos County’s]

claim is available under the [ESA], it is not subject to review

under the APA.” Hayes v. Whitman, 264 F.3d 1017, 1025

(10th Cir. 2001) (emphasis in original); see also Bowen v.

Massachusetts, 487 U.S. 879, 903 (1988) (“Congress did not

intend the general grant of review in the APA to duplicate

existing procedures for review of agency action.”).

The remaining — ESA — cause of action cannot succeed

either. As we have demonstrated, the deadlines which the

ESA applies to the petition process are not incorporated, sub

silentio, into the five-year review provision. There can there-

fore be no violation of § 1533(b)(3)(B)(ii)’s “promptly pub-

Similarly, Northwest Ecosystem Alliance held only that the DPS Policy

itself was a reasonable construction of the ESA, 475 F.3d at 1145, and that

FWS’s denial of a petition to list a population of squirrels as a distinct

population segment was not arbitrary and capricious. Id. at 1150.

National Ass’n of Home Builders and Northwest Ecosystem Alliance

establish that we may review a final rule listing a distinct population seg-

ment under the DPS Policy, and that we may also review FWS’s denial

of a petition to list a population under the Policy. They did not consider

whether a five-year review determination imposes nondiscretionary duties

on FWS promptly to publish a proposed rule, nor whether a population

that occupies a significant portion of a species’ range may be listed even

if it is not a distinct population segment. As such, they bear only a tangen-

tial connection to the questions in this case.

7504 COOS COUNTY v. KEMPTHORNE

lish” requirement based upon the determination made in the

Five-Year Review.13

We need not determine whether we nonetheless retain

authority to compel FWS to publish at some point a proposed

regulation based upon a five-year review determination to

change a species’s listing, cf. Forest Guardians v. Babbitt,

164 F.3d 1261, 1270-73 (10th Cir. 1998), because FWS here

determined that the tri-state murrelets’ listing status should

not be changed. See Five-Year Review at 21, 28.

The ESA and APA provisions under which Coos County

brought suit allow challenges to FWS’s alleged failure to act,

not to the substantive content of its actions. This principle is

entirely clear in the 5 U.S.C. § 706(1) context and, as

§ 1540(g)(1)(C) likewise concerns failures to act, it is neces-

sarily also so limited. See, e.g., Bennett, 520 U.S. at 171-72

(explaining that § 1540(g)(1)(C) may be used to challenge

“the omission of . . . required procedures”); Mt. St. Helens

Mining & Recovery Ltd. P’ship v. United States, 384 F.3d

721, 728 (9th Cir. 2004) (“[Section] 706(1) generally only

allows the district court to compel an agency to take action,

rather than compel a certain result, when action is unlawfully

withheld.”). So, in considering whether FWS has fulfilled any

duties arising from its determination, we must look to the

determination FWS actually made.

FWS determined that delisting the tri-state murrelets was

not warranted because the interim delisting criteria in the

Recovery Plan had not been met and “[t]he threat situation

13

At argument, counsel for Coos County posited that deadlines might

alternatively be found in § 1533(c)(1), which provides that “[t]he Secre-

tary shall from time to time revise each list . . . to reflect recent determina-

tions, designations, and revisions made in accordance with subsections (a)

and (b) of this section.” That provision requires FWS only to revise the

list “from time to time,” to reflect “recent determinations”; it does not

create a duty promptly to publish a proposed or final rule based upon a

five-year review determination.

COOS COUNTY v. KEMPTHORNE 7505

has not changed” in a way that would alleviate the threat to

the species. Five-Year Review at 17-18, 21. It concluded that

a “range-wide status review” was the next appropriate step.

Id. at 28. In effect, FWS concluded that “the available evi-

dence is not sufficiently definitive to justify proposing” any

changes to the murrelets’ status at this time, see 50 C.F.R.

§ 424.15, and that what information it did have showed that

the threats to the species continued. Also, in connection with

the distinct population segment issue that so concerns Coos

County, FWS explained that “a court found that, as the murre-

let qualifies for listing throughout a significant portion of its

range, ‘there is no need to consider the alternative basis of

whether the tri-state population is a distinct population seg-

ment.’ ” Five-Year Review at 6 (quoting Marbled Murrelet,

No. C91-522R at 12). So, FWS gave reasons for continuing

the listing, entirely independent of its distinct population seg-

ment determination.14 No duty to delist can possibly arise

from FWS’s determination that delisting was not warranted.15

14

Coos County did allege in its complaint that FWS “determined . . . the

tri-state murrelets . . . should be removed from the list of endangered and

threatened wildlife.” But the Review was attached to the complaint, and

it simply does not say what Coos County alleged; it says the opposite. “A

copy of a written instrument that is an exhibit to a pleading is a part of the

pleading for all purposes.” Fed. R. Civ. P. 10(c); see also Outdoor Media

Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007)

(“When ruling on a motion to dismiss, we may generally consider only

allegations contained in the pleadings, exhibits attached to the complaint,

and matters properly subject to judicial notice.”) (internal quotation marks

omitted).

15

Coos County suggests, in an aside, that the Five-Year Review violates

16 U.S.C. § 1533(b)(1)(A), which provides in pertinent part that “[t]he

Secretary shall make determinations required by subsection (a)(1) of this

section solely on the basis of the best scientific and commercial data avail-

able to him.” Because the last sentence of 16 U.S.C. § 1533(c)(2) incorpo-

rates this provision, as we have explained, FWS does have such a duty

when making its five-year review determinations. See Bennett, 520 U.S.

at 172 (FWS has no “discretion to ignore the required procedures of deci-

sionmaking”). Save for expressing its disagreement with FWS’s conclu-

sions, however, Coos County does not explain how this provision was

7506 COOS COUNTY v. KEMPTHORNE

FWS thus also has not failed to act upon any duty to publish

a proposed delisting rule in accordance with § 1533(b)(5), or

to publish a final rule in accordance with § 1533(b)(6).

[10] In short, Coos County has not alleged a failure to per-

form a nondiscretionary act or duty imposed by § 1533,

whether premised on the petition process deadlines or on the

agency’s more general duty to act on its own determinations.

It has therefore failed to state a claim on its “failure to act”

causes of action.16

violated. Cf. United States v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir.

1997) (holding that an “argument [that] was not coherently developed in

[the] briefs on appeal” was abandoned). Moreover, this allegation cannot

be found in the complaint, even under the notice pleading standard, see

Fed. R. Civ. P. 8(a), (e), so the district court properly did not consider it.

16

As noted earlier, supra note 8, Coos County maintains that its com-

plaint also contained a 5 U.S.C. § 706(2)(C) argument, challenging FWS’s

decision to maintain the tri-state murrelet listing as “in excess of [the

agency’s] statutory jurisdiction.” A violation of this specific provision was

not alleged in the complaint, and the district court did not rule upon it.

Nonetheless, “[n]otice pleading requires the plaintiff to set forth in his

complaint claims for relief, not causes of action, statutes or legal theories,”

Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008) (emphasis in origi-

nal), and the complaint, fairly read, did allege that FWS was acting with-

out legal authority.

But Coos County only mentions a distinct § 706(2)(C) argument fleet-

ingly in its opening brief, and does so by ignoring entirely the “significant

portion of the range” rationale that led to the original listing. See Ghahre-

mani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007) (holding such a

sketchily-made argument abandoned); cf. Defenders of Wildlife v. Norton,

258 F.3d 1136, 1145 (9th Cir. 2001) (citing the tri-state murrelet listing

as an example of a species properly listed in a significant portion of its

range). Coos County finally fleshes out its position in its reply brief, mak-

ing clear that it is really arguing that the Listing Rule’s “significant portion

of the range” rationale for protecting the tri-state murrelets, which is inde-

pendent of the “distinct population segment” rationale, is a “[m]ere unsup-

ported assertion[ ].” In its view, FWS “provided absolutely no evidence”

to support the “significant portion of the range” finding in the original Pro-

posed Rule, lacked authority to list the population on that ground in the

COOS COUNTY v. KEMPTHORNE 7507

III. CONCLUSION

[11] We hold that the dismissal of Coos County’s com-

plaint was entirely proper.

Coos County, however, is not without recourse. It may file

a delisting petition. As the District Court for the District of

Columbia put it while granting summary judgment to the gov-

ernment in American Forest Research Council v. Hall, 533 F.

Supp. 2d 84, 93 (D.D.C. 2008), an action brought by other

parties challenging the tri-state murrelet Five-Year Review on

grounds very similar to those in this case: “[I]f [Coos County]

believes that the threatened listing of the tri-state population

causes [the County] unwarranted injury, [it] has the right and

the ability to petition FWS to delist the tri-state population of

the marbled murrelet. . . . But [Coos County] has failed to

pursue this course of action.” 533 F. Supp. 2d at 93.

Coos County maintains that FWS has already drawn con-

clusions in a five-year review, so that it would be futile now

to file a petition. That argument relies on Coos County’s erro-

neous belief that the five-year review and petition processes

substitute for each other. They do not.

first place, and so could not continue the listing after the Five-Year

Review.

“The general rule is that appellants cannot raise a new issue for the first

time in their reply briefs.” Ghahremani, 498 F.3d at 997 n.3 (internal quo-

tation marks omitted). We decline to consider Coos County’s last-minute

arguments, which have never been fully briefed or argued before us or the

district court. Besides, the statute of limitations for such a challenge to the

original Listing Rule expired long ago. Whatever effect the original List-

ing Rule has on Coos County began with the Rule’s publication in 1992,

and has not been altered by the Five-Year Review. Cf. Wind River Mining

Corp. v. United States, 946 F.2d 710, 713, 715 (9th Cir. 1991) (holding

that the six-year statute of limitations set out by 28 U.S.C. § 2401(a)

applies, with restrictions not relevant here, to APA challenges to allegedly

ultra vires agency decisions).

7508 COOS COUNTY v. KEMPTHORNE

The Five-Year Review here functioned as it was supposed

to: It provided useful information that prompted FWS to con-

sider broadening protections for the murrelets, and to consider

revising aspects of its current listing. It also provided informa-

tion to Coos County and other interested members of the pub-

lic, including parties who may decide, based on the

information provided in the Five-Year Review, to file a delist-

ing petition. To separate this process from the petition process

makes perfect sense.

Nor would such a petition be futile. FWS’s conclusions in

five-year reviews are not set in stone. Rather, five-year

reviews provide useful guidance on the rationales and data

presently supporting an ESA listing, point up remaining

uncertainties, and allow petitioners to marshal arguments and

information that the agency may find germane in light of the

review. The extensive public process triggered by the filing of

a petition may well change the agency’s mind. For instance,

in this case FWS indicated that it would find more informa-

tion on the range-wide health of the murrelets helpful in

deciding on a future course of action. True, a petition still

may not succeed, but the fact that some petitions will lack

merit does not mean that five-year reviews render petitions

futile as a general matter, or in this case.

In sum, our view of Coos County’s suit resembles that of

the court in Wyoming v. U.S. Dep’t of the Interior, which also

considered an attempt to avoid the petition process through an

effort to establish a “mandatory duty to delist” by other

means. See 360 F. Supp. 2d at 1231-33, 1244-45. We are “at

a loss to explain the actions of [Coos County].” Id. at 1245.

It could easily have filed a delisting petition — years ago.

“This action, if it had been taken, would have forced the Fed-

eral Defendants to make choices under hard deadlines set by

Congress . . . . and much of the Federal Defendants’ argu-

ments presented here would have melted away, allowing this

Court to reach the merits of many of [Coos County’s]

claims.” Id.

COOS COUNTY v. KEMPTHORNE 7509

If Coos County wishes to force FWS to act swiftly on del-

isting the tri-state murrelets, the petition process is open to it.

AFFIRMED.