Friends of the Wild Swan, Inc. v. U.S. Fish and Wildlife Service

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2018
• Docket: 17-35572
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRIENDS OF THE WILD SWAN, INC., a No. 17-35572 Montana nonprofit corporation; ALLIANCE FOR THE WILD ROCKIES, a Montana D.C. No. 3:16-cv-00681-AC nonprofit corporation,

Plaintiffs-Appellants, MEMORANDUM*

v.

DIRECTOR OF THE UNITED STATES FISH & WILDLIFE SERVICE, Robyn Thorson, Pacific Region Director; UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the U.S. Department of the Interior; SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, Ryan K. Zinke, Secretary; U.S. DEPARTMENT OF THE INTERIOR, a federal executive department of the United States,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, Chief Judge, Presiding

Argued and Submitted August 14, 2018 Anchorage, Alaska

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: HAWKINS, McKEOWN, and OWENS, Circuit Judges.

Friends of the Wild Swan, Inc. and Alliance for the Wild Rockies

(collectively, “Friends”) appeal the district court’s order dismissing their eight

claims for relief alleging various deficiencies in the U.S. Fish and Wildlife

Service’s (“the Service”) recovery plan for the bull trout, a species listed as

“threatened” under the Endangered Species Act (the “ESA”), 16 U.S.C. § 1531 et

seq. Friends asserted their claims pursuant to the ESA’s citizen-suit provision, 16

U.S.C. § 1540(g)(1)(C), or, in the alternative, the Administrative Procedure Act

(the “APA”), 5 U.S.C. § 704. Because the parties are familiar with the facts, we do

not repeat them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. The district court properly dismissed Friends’ claims under the Endangered Species Act’s citizen-suit provision.

The ESA’s citizen-suit provision empowers “any person” to “commence a

civil suit on his own behalf” against “the Secretary where there is alleged 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). Section 1533

provides, among other things, that in promulgating a recovery plan, the Secretary

“shall, to the maximum extent practicable . . . incorporate in each plan . . .

objective, measurable criteria which, when met, would result in a determination, in

accordance with the provisions of this section, that the species be removed from

the list.” Id. § 1533(f)(1)(B)(ii).

2 The district court properly dismissed Friends’ claims brought under the

ESA’s citizen-suit provision. Friends’ claims alleged no failure by the Service to

perform a nondiscretionary duty under § 1533(f). Nor did they plausibly allege

that the recovery criteria the Service employed in the plan were neither

“objective” nor “measurable.”

We reject Friends’ new argument on appeal that the Service failed to

perform a nondiscretionary duty to account for the five delisting factors in 16

U.S.C. § 1533(a)(1) in the recovery criteria. This claim appears nowhere in—and

is not plausibly inferable from—Friends’ complaint, aside from a rote recitation of

§ 1533(f). See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

action will not do.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007))). The district court granted Friends leave to amend their complaint to

allege facts pointing to the Service’s failure to perform a nondiscretionary duty.

Instead, Friends chose to appeal. As Friends concede, however, our review is

limited to the claims as they were raised in the original complaint. See, e.g.,

Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 511 (9th Cir.

2013) (holding that a plaintiff “may not try to amend its complaint through . . .

arguments on appeal”) (citation and alteration omitted). Accordingly, we affirm

the judgment of the district court dismissing Friends’ claims under the ESA’s

3 citizen-suit provision.

II. The district court properly dismissed Friends’ claims under the Administrative Procedure Act.

In the alternative, Friends asserted the same eight claims for relief pursuant

to the APA, which provides that “[a]gency action made reviewable by statute and

final agency action for which there is no other adequate remedy in a court are

subject to judicial review.” 5 U.S.C. § 704. Because the parties agree that

recovery plans are not agency actions “made reviewable by statute,” the APA

provides review only if a recovery plan is a “final agency action.”

“For an agency action to be final, the action must (1) ‘mark the

consummation of the agency’s decisionmaking process’ and (2) ‘be one by which

rights or obligations have been determined, or from which legal consequences will

flow.’” Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir.

2006) (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997)). In making this

determination, courts are to “focus on the practical and legal effects of the agency

action,” so as to determine finality “in a pragmatic and flexible manner.” Id.

(citation omitted).

The district court properly concluded that recovery plans are not “final

agency actions” and dismissed Friends’ claims under the APA.

Friends concede that recovery plans are not legally binding. Instead, Friends

claim that the recovery plan satisfies Bennett’s second condition because it has

4 “direct effects on the day-to-day operations of the Service and other federal

agencies.” This interpretation reads far too much into Bennett, which did not

involve an analogous situation.

The recovery plan does not create any legal rights or obligations for the

Service or any third parties. See, e.g., Cascadia Wildlands v. Bureau of Indian

Affairs, 801 F.3d 1105, 1114 n.8 (9th Cir. 2015) (“The Endangered Species Act

does not mandate compliance with recovery plans for endangered species.”);

Conservation Cong. v. Finley, 774 F.3d 611, 614 (9th Cir. 2014) (noting that

although recovery plans “provide guidance for the conservation of those species,

they are not binding authorities”). Accordingly, recovery plans are not agency

actions “by which rights or obligations have been determined, or from which legal

consequences will flow.” Bennett, 520 U.S. at 170. We affirm the district court’s

dismissal of Friends’ claims under the APA.

AFFIRMED.