National Ass'n of Home Builders v. Norton
340 F.3d 835, 2003 WL 21961532 (2003)
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Rule of Law:
Under the Endangered Species Act, an agency's designation of a Distinct Population Segment (DPS) is arbitrary and capricious if the agency fails to articulate a rational basis in the administrative record for its finding that the population is significant to the taxon as a whole, rather than just significant to the United States.
Facts:
- The cactus ferruginous pygmy-owl is a subspecies of bird whose range extends from central Arizona and southern Texas southward through Mexico.
- The pygmy-owl population in Arizona represents the northernmost periphery of the subspecies' range.
- While the pygmy-owl was once common in Arizona, its population has declined to between 20 and 40 individuals.
- The pygmy-owl population is significantly more numerous in the adjacent region of Sonora, Mexico.
- Conservation organizations petitioned the Fish and Wildlife Service (FWS) to list the pygmy-owl in the United States and Mexico as an endangered species.
- In response, the FWS designated the Arizona population of the owl as a 'distinct population segment' (DPS) and listed it as endangered.
- The FWS justified the DPS designation on the grounds that the Arizona population was discrete from the Mexican population due to the international border and differing conservation statuses, and significant because its loss would create a gap in the subspecies' range and decrease genetic variability.
- The National Association of Home Builders, whose members' development activities were affected by the listing, challenged the FWS's designation.
Procedural Posture:
- Conservation organizations petitioned the Fish and Wildlife Service (FWS) to list the cactus ferruginous pygmy-owl as endangered.
- The FWS issued a final rule (the 'Listing Rule') designating the Arizona population of the pygmy-owl as a Distinct Population Segment (DPS) and listing it as endangered.
- The National Association of Home Builders sued the FWS in the U.S. District Court for the District of Arizona, seeking to vacate the Listing Rule.
- The district court granted summary judgment in favor of the FWS, upholding the DPS designation.
- The National Association of Home Builders, as appellant, appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit, with the FWS as appellee.
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Issue:
Does the Fish and Wildlife Service's designation of the Arizona cactus ferruginous pygmy-owl population as a 'distinct population segment' under the Endangered Species Act violate its own policy because the agency failed to articulate a rational basis for finding the population is significant to its taxon as a whole?
Opinions:
Majority - Tashima, Circuit Judge.
Yes, the Fish and Wildlife Service's designation violates its policy because the agency failed to articulate a rational basis for finding the population significant to its taxon as a whole. While the FWS's finding that the Arizona pygmy-owl population is 'discrete' was not arbitrary, its finding that the population is 'significant' was. The court deferred to the agency's expertise on the discreteness prong, accepting that a difference in 'conservation status' (i.e., population size) across the U.S.-Mexico border was sufficient. However, the court found the agency's reasoning on the significance prong to be arbitrary and capricious because it was not supported by the administrative record. The FWS claimed the loss of the Arizona population would create a 'significant gap' in the taxon's range, but failed to explain why the loss of this small, peripheral population was important to the taxon as a whole, which is much more numerous in Mexico. The agency's arguments about decreased genetic variability were speculative and lacked evidentiary support in the record. The court explicitly rejected the notion that a population can be deemed significant merely because it is located within the United States, emphasizing that the 'DPS Policy' requires significance to the taxon as a whole.
Analysis:
This decision significantly clarifies the evidentiary requirements for the 'significance' prong of the Distinct Population Segment (DPS) analysis under the Endangered Species Act. It establishes that while courts will defer to agency expertise on scientific questions, they will not accept conclusory statements or post-hoc rationalizations to satisfy legal standards. The ruling mandates that the agency must provide a clear, rational explanation in the administrative record demonstrating a population's biological and ecological importance to the entire taxon. This makes it more difficult for the FWS to list peripheral populations that cross international borders, as the agency can no longer rely on the population's mere presence within the U.S. as a basis for its significance.
