TJOFLAT, Circuit Judge:
This case concerns a challenge, brought under the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 551-559, 701-706, to the United States Fish and Wildlife Service's denial of petitions to designate critical habitat for the Florida panther. The Endangered Species Act of 1973 (the "ESA"), 16 U.S.C. §§ 1531-1544, empowers the Secretary of the Interior to designate "critical habitat" for species of fish, wildlife, or plants that have been identified by the Secretary as "endangered" or "threatened." Id. §§ 1532(5)(B), 1533(a)(3)(A).
In this case, environmental-advocacy groups petitioned the Fish and Wildlife Service, an agency within the Department of the Interior, to begin rulemaking to designate critical habitat for the Florida panther and, when the Service denied their petitions, sued in district court under the APA. They claimed that the denial of their petitions was arbitrary and capricious. See 5 U.S.C. § 706(2)(A). We conclude, however, that the denial of their petitions is not subject to judicial review under the APA because it is "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). Accordingly, we affirm the district court's order of dismissal.
We begin with the necessary statutory background. In 1966, Congress enacted
But in 1978, that changed. That year, Congress amended the ESA to require that "[a]t the time any such regulation [listing a species as endangered or threatened] is proposed, the Secretary shall also by regulation, to the maximum extent prudent, specify any habitat of such species which is then considered to be critical habitat." Endangered Species Act Amendments of 1978, Pub.L. No. 95-632, § 11(1), 92 Stat. 3751, 3764. The 1978 amendments also provided, however, that this requirement "shall not apply with respect to any species which was listed prior to enactment of the [1978 amendments]." Id. As for those species, Congress instead allowed that "[c]ritical habitat may be established." Id. § 2(2), 92 Stat. at 3751 (emphasis added).
The law now stands, in relevant part, essentially as the 1978 amendments left it, although further amendments in 1982 modified slightly the required timing of the critical-habitat designation.
In 1967—more than a decade before the 1978 amendments required a critical-habitat designation to accompany the listing of a species—the Secretary of the Interior listed the Florida panther as an endangered species. Endangered Species, 32 Fed.Reg. 4001 (Feb. 24, 1967) (codified at 50 C.F.R. § 17.11). No critical habitat for the Florida panther was designated at that time, and none has been designated since. Nor has the Secretary initiated rulemaking procedures to designate critical habitat for the Florida panther.
In 2009, environmental-advocacy groups, dissatisfied with this state of affairs, petitioned the United States Fish and Wildlife Service (the "Service") to initiate rulemaking to designate critical habitat for the Florida panther.
The first two petitions cited scientific studies, including some relied on in the Service's own Florida Panther Recovery Plan,
The Service denied the petitions. On February 11, 2010, the Service explained its decision in three substantially identical letters to the Conservancy, the Center, and the Sierra Club. The letters briefly described other efforts that the Service was pursuing to protect the Florida panther's habitat. The letters explained that, in the Service's view, those efforts were sufficient in themselves, eliminating any need to designate critical habitat.
On February 18, 2010, the groups that had petitioned the Service—the Conservancy, the Center, PEER, the Council, and the Sierra Club (collectively, "Plaintiffs")— filed suit in the United States District Court for the Middle District of Florida under the APA and the citizen-suit provisions of the ESA.
Plaintiffs alleged that the Service's denial of their rulemaking petitions was arbitrary and capricious under § 706(2)(A) of the APA. They claimed that the Service had (1) made a decision contrary to the evidence before it, which allegedly demonstrated the need for critical habitat; (2) overlooked the expected impact of climate change on the Florida panther's habitat; and (3) in listing other efforts being taken to preserve panther habitat, rather than directly addressing the science discussed in the petitions, failed to provide a rational explanation for its decision.
Federal Defendants and Intervenor-Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (b)(6), arguing that Plaintiffs lacked standing under Article III of the United States Constitution; that APA review was unavailable because the Service's decision was "committed to agency discretion by law," 5 U.S.C. § 701(a)(2); and that even if review were available, Plaintiffs' claims failed on the merits. The district court concluded that Plaintiffs had adequately alleged Article III standing. It also concluded, however, that none of the regulations or statutory provisions that Plaintiffs insisted the Service had violated applied to the decision whether to designate critical habitat for the Florida panther. In the absence of any standards to limit the Service's discretion, the district court concluded that the Service's denial of Plaintiffs' petitions was committed to agency discretion by law and therefore could not be reviewed under the APA. Accordingly, the court granted the motions to dismiss.
The APA authorizes federal courts to set aside agency actions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The APA provisions subjecting agency action to judicial review are inapplicable, however, "to the extent that . . . agency action is committed to agency discretion by law." Id. § 701(a)(2). Section 701(a)(2), as interpreted by the Supreme Court, precludes APA review wherever the statute under which the agency acts "is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion"—that is, where a court would have "no law to apply." Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985) (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971)) (internal quotation marks omitted).
Plaintiffs argue that several regulations and statutory provisions govern the Service's decision whether to designate critical habitat for species listed as endangered or threatened before the 1978 ESA amendments and thus provide law to apply in this case. We first address this argument.
Plaintiffs point to 50 C.F.R. § 424.14(d), which provides in pertinent part, "Upon receiving a petition to designate critical habitat . . ., the Secretary shall promptly conduct a review in accordance with the [APA] (5 U.S.C. 553) and applicable Departmental regulations, and take appropriate action." 50 C.F.R. § 424.14(d). According to Plaintiffs, "applicable Departmental regulations" include the provisions of 50 C.F.R. § 424.12(b). Section 424.12(b) provides in full:
Id. § 424.12(b). Plaintiffs argue that the factors specified in this regulation provide ample standards for judicial review.
Context shows, however, that § 424.12(b) does not apply to the decision whether to designate critical habitat for a species listed before the 1978 amendments. The first sentence of § 424.12 provides that "[c]ritical habitat shall be specified to the maximum extent prudent and determinable at the time a species is proposed for listing." Id. § 424.12(a). This provision embodies the requirement created by the 1978 amendments and modified by the 1982 amendments—that critical habitat must be designated concurrently with the listing of a species—and thus cannot apply to any pre-1978 species, like the Florida panther, that has already been listed without a concurrent designation of critical habitat. That § 424.12 opens with this sentence suggests that the entire section is not intended to apply to the designation of critical habitat for pre-1978 species.
This conclusion is further supported by examination of subsection (b) itself. According to Plaintiffs, the phrases "In determining what areas are critical habitat" and "When considering the designation of
Plaintiffs also rely heavily on 50 C.F.R. § 424.12(a). Section 424.12(a) provides that "[a] final designation of critical habitat shall be made on the basis of the best scientific data available, after taking into consideration the probable economic and other impacts of making such a designation in accordance with § 424.19." Id. § 424.12(a). Section 424.19 provides in full:
Id. § 424.19.
Similar remarks apply to these regulations. As noted above, § 424.12 begins by providing that critical habitat must be specified when a species is proposed for listing, suggesting that that section does not apply to species listed before the 1978 amendments. See id. § 424.12(a). And § 424.12(a)'s requirement that the Secretary consult "the best scientific data available" expressly applies only to "[a] final designation of critical habitat," not to the Secretary's consideration of a petition for such a designation. Id.
Section 424.19 is no more helpful to Plaintiffs. That section, like § 424.12(b), presupposes that some area will be designated as critical habitat. Provisions allowing the Secretary to "exclude" certain areas from the critical habitat evidently take it for granted that some area will be designated. Id. § 424.19. And the requirement that the Secretary consider the "economic and other impacts" of designating critical habitat applies only "after [the Secretary has] propos[ed] designation of such an area," which did not happen in this case. Id. None of these regulations, therefore, governs the Secretary's initial decision whether to commence rulemaking to designate critical habitat for a pre-1978 species.
Plaintiffs also argue that the Service's decision was subject to 16 U.S.C.
But this provision does not apply to the decision whether to initiate rulemaking to designate critical habitat for species, like the Florida panther, that were listed before the 1978 amendments. Subsection (a)(3) provides that the Secretary "shall, concurrently with making a determination. . . that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat." Id. § 1533(a)(3)(A)(i) (emphasis added). Thus, the provision Plaintiffs rely on cannot apply to designations of critical habitat for species listed before the 1978 amendments without a concurrent designation of critical habitat, because for those species, the Secretary does not "designate critical habitat. . . under subsection (a)(3)" of § 1533. Id. § 1533(b)(2) (emphasis added). For those species, the Secretary designates critical habitat, if at all, under § 1532(5)(B).
Plaintiffs argue that an uncodified provision of the 1982 amendments to the ESA makes § 1533(b)(2)'s standards applicable to their petitions. The provision they cite reads as follows:
Endangered Species Act Amendments of 1982, Pub.L. No. 97-304, § 2(b)(2), 96 Stat. 1411, 1416. Plaintiffs' argument, in effect, is that their petition to designate critical habitat for the Florida panther is a "regulation proposed after . . . the date of the enactment" of the 1982 amendments and therefore "subject to the procedures set forth" in 16 U.S.C. § 1533. Id. These procedures, Plaintiffs argue, include the "best scientific data" requirement discussed above, as well as § 1533(b)(3)(D)(i)'s requirement that "within 90 days after receiving [a] petition. . . to revise a critical habitat designation, the Secretary shall make a finding as to whether the petition presents substantial scientific information indicating that the revision may be warranted." 16 U.S.C. § 1533(b)(3)(D)(i).
The uncodified 1982 provision might change our answer to the question whether statutory standards govern the Service's discretion in this case if the Service had proposed a regulation designating critical habitat for the Florida panther. But the uncodified provision does not apply in this case because a regulation proposed only in a petition for rulemaking, and not by the Secretary, is not a "regulation proposed" within the meaning of the statute. Apart from the provision Plaintiffs rely on, the statute uses variants of the phrase "proposed regulation" several times. Each time, the phrase refers to a regulation proposed by the Secretary, not one proposed in a rulemaking petition submitted to the Secretary. See, e.g., Endangered Species Act Amendments of 1982 § 2(a)(2), 96 Stat. at 1412 (codified at 16 U.S.C. § 1533(b)(3)(B)(ii)) ("[T]he Secretary shall promptly publish in the Federal
We conclude, accordingly, that the uncodified 1982 provision does not apply to Plaintiffs' petitions to designate critical habitat. That provision thus does not change the fact that the ESA provides no standards against which to review the initial decision whether to designate critical habitat for a species listed before the 1978 amendments.
Neither the ESA nor the regulations cited by Plaintiffs provide any "meaningful standard"—or, indeed, any standard— "against which to judge the agency's exercise of discretion" in this case. Heckler, 470 U.S. at 830, 105 S.Ct. at 1655. We conclude, therefore, that the decision challenged here is "committed to agency discretion by law." 5 U.S.C. § 701(a)(2).
We have held before that the absence of any applicable legal standard that limits the agency's discretion precludes APA review. See Greenwood Utils. Comm'n v. Hodel, 764 F.2d 1459, 1464 (11th Cir.1985) ("Only if a specific statute somehow limits the agency's discretion to act is there sufficient `law to apply' as to allow judicial review."). In Lenis v. United States Attorney General, 525 F.3d 1291 (11th Cir. 2008), we held that the Board of Immigration Appeals' decision whether to reopen a case sua sponte was committed to agency discretion by law because neither any statute nor any regulation provided any standard that limited the Board's discretion. Id. at 1293-94. And in Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498 (11th Cir.1992) (per curiam), we held that the Immigration and Naturalization Service's procedures for identifying refugees were not subject to APA review because no statute, executive order, regulation, or treaty provided any standards that constrained the agency's discretion in determining who qualified as a refugee. Id. at 1507-08. Although those cases involved contexts different from this case, and therefore cannot be considered directly controlling, they support our conclusion
Our conclusion is also bolstered by the permissive language of the statutory provision authorizing the Secretary to designate critical habitat for species listed before the 1978 amendments: "Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph." 16 U.S.C. § 1532(5)(B) (emphasis added); cf. Webster v. Doe, 486 U.S. 592, 600, 108 S.Ct. 2047, 2052, 100 L.Ed.2d 632 (1988) (holding that the CIA Director's decision to fire an employee was committed to agency discretion in part because the relevant statute authorized firing "whenever the Director `shall deem such termination necessary or advisable in the interests of the United States'") (quoting National Security Act of 1947, Pub.L. No. 80-235, § 102(c), 61 Stat. 495, 498); Fla. Dep't of Bus. Regulation v. U.S. Dep't of the Interior, 768 F.2d 1248, 1256 (11th Cir.1985) (emphasizing that "[t]he statute states that the decision to acquire land is one within the Secretary's discretion"). Plaintiffs argue that the
We also note that courts often consider the nature of the challenged decision and its suitability for judicial review in determining whether it is committed to agency discretion. In Florida Department of Business Regulation, we held the Secretary's decision to be committed to agency discretion in part because it "involve[d] a myriad of factors, including internal management constraints relating to budget limits, the particular needs of the numerous individual Indians and Indian tribes, the proposed use of the land, and government resources for overseeing the land." 768 F.2d at 1256. And in Heckler, the Supreme Court relied on "the general unsuitability for judicial review of agency decisions to refuse enforcement" to justify a presumption that such decisions are committed to agency discretion by law. 470 U.S. at 831, 105 S.Ct. at 1655.
In this case, similarly, our conclusion finds support in the fact that the challenged agency decision is a refusal to initiate rulemaking. As the D.C. Circuit has explained, a denial of a petition for rulemaking shares some, though not all, of the features that justify the presumption that an agency's decision not to take enforcement action is committed to its discretion. See Am. Horse Prot. Ass'n v. Lyng, 812 F.2d 1, 4 (D.C.Cir.1987) ("[Heckler's] reasoning applies to some extent to a refusal to institute a rulemaking."). The decision whether to initiate rulemaking, like the exercise of enforcement discretion, typically involves a complex balancing of factors, such as the agency's priorities and the availability of resources, that the agency is better equipped than courts to undertake. See id. ("[S]uch decisions require a high level of agency expertise and coordination in setting priorities."); cf. Heckler, 470 U.S. at 831-32, 105 S.Ct. at 1656 ("The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities."). And a refusal to initiate rulemaking, like a nonenforcement decision, does not involve the exercise of "`coercive power over an individual's liberty or property rights.'" Am. Horse Prot. Ass'n, 812 F.2d at 4 (quoting Heckler, 470 U.S. at 832, 105 S.Ct. at 1656).
We take care to note that not every agency action that is in some sense discretionary is exempt from APA review. Otherwise there would be little sense in the APA's provision for abuse of discretion review. See Heckler, 470 U.S. at 829, 105 S.Ct. at 1654 (pointing out the tension, noted by some commentators, between a too-literal reading of the statutory phrase "committed to agency discretion by law" and 5 U.S.C. § 706(2)(A)'s provision for review for abuse of discretion). Rulemaking inevitably requires the exercise of discretion, but courts nevertheless review agency rulemaking under the APA. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46, 51, 103 S.Ct. 2856, 2868, 2871, 77 L.Ed.2d 443 (1983) (holding that the National Highway Traffic Safety Administration had acted arbitrarily and capriciously when it issued a rule rescinding a requirement that all cars be manufactured with passive restraints because the agency "apparently gave no consideration whatever to modifying the Standard to require that airbag technology be utilized" and "was too quick to dismiss the safety benefits of automatic seatbelts"). Even an agency's denial of a petition for rulemaking may often be reviewable. See Massachusetts v. EPA, 549 U.S. at 527-28, 127 S.Ct. at 1459. Cases in which § 701(a)(2) precludes APA review are thus uncommon. See, e.g., Overton Park, 401 U.S. at 410, 91 S.Ct. at 820-21 (characterizing § 701(a)(2) as a "very narrow exception" applicable only in "rare instances"); Haitian Refugee Ctr., 953 F.2d at 1507 (characterizing § 701(a)(2) as a "very narrow" exception).
For the foregoing reasons, we conclude that the APA does not authorize judicial review of the Service's denial of Plaintiffs' petitions to initiate rulemaking to designate critical habitat for the Florida panther. Accordingly, the judgment of the district court is
AFFIRMED.
Id. § 1532(5)(A).
Endangered Species Act Amendments of 1982, Pub.L. No. 97-304, § 2(a)(1)(E), 96 Stat. 1411, 1411. After this amendment, the Secretary had to designate critical habitat concurrently with the final decision to list a species, but was no longer required to propose critical habitat at the same time that listing was proposed. Ala.-Tombigbee, 477 F.3d at 1266.
Id. § 1533(f)(1)(B).
16 U.S.C. § 1532(5)(A).
We are unpersuaded. This provision offers nothing that could guide the threshold decision whether to designate critical habitat. It could guide the decision of which areas to designate as critical habitat, once the decision to designate some area has been made. It does not, however, provide law to apply in this case.
Plaintiffs point out that one district court has reviewed the denial of a petition to designate critical habitat for a pre-1978 species. Fund for Animals v. Babbitt, 903 F.Supp. 96, 115-17 (D.D.C.1995). But that court did so without explaining—or even stating—its apparent assumption that that decision was not committed to agency discretion by law. See id. We decline to adopt that unexplained assumption.
The Ninth Circuit has reviewed the Service's decision not to designate critical habitat for a pre-1978 species—a decision made after the Service had already initiated the rulemaking process—over the objection that § 701(a)(2) precluded APA review. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 936-38 (9th Cir.2006). But there, statutory standards limited the Service's discretion. Because a proposed regulation to designate critical habitat—one proposed by the Service—had been pending when the 1982 amendments were enacted, id. at 933, the uncodified 1982 provision discussed above applied, see id. at 935 (relying on the uncodified provision of the 1982 amendments to conclude that "critical habitat designations for the [species at issue]—listed as an endangered species in 1970—are governed by the procedures for critical habitat revisions" (footnote omitted)). As a result, the Service's discretion was subject to statutory limits. See id. at 936-37 (explaining that "[o]nce a critical habitat revision proposal [was] published, the Service ha[d] one year in which" to take "one of four actions" specified by 16 U.S.C. § 1533(b)(6)(A)(i)). In this case, by contrast, no such limits apply.
Other courts have reviewed other agency decisions made under the ESA, though, again, sometimes without explicitly addressing whether § 701(a)(2) precluded review. In Defenders of Wildlife v. Gutierrez, 532 F.3d 913 (D.C.Cir.2008), the D.C. Circuit—without addressing the § 701(a)(2) issue—reviewed the denial of a petition for emergency rulemaking to regulate the speed of ships near whale habitats. Id. at 918-21. But even if the court had addressed the § 701(a)(2) issue, the decision at issue in that case was far from identical to the one challenged here, where neither the ESA nor any regulation provides standards for judicial review. In Sierra Club v. Glickman, 156 F.3d 606 (5th Cir.1998), the Fifth Circuit held that § 701(a)(2) did not preclude review of an agency's failure to follow 16 U.S.C. § 1536(a)(1)'s "clear statutory directive (it uses the word `shall') requiring the federal agencies to consult and develop programs for the conservation of each of the endangered and threatened species listed pursuant to the [ESA]." Id. at 617. In this case, however, there is no such "clear statutory directive," unless we are to count the permissive language providing that "[c]ritical habitat may be established"—language whose permissive character is not qualified by any other statutory limit on the Service's discretion. 16 U.S.C. § 1532(5)(B).
That case is unlike this one. In Amador County, an "only if" clause limited the agency's options, allowing action only under specified conditions. See id. at 381 ("[S]ubsection (d)(8)(B)'s use of `may' is best read to limit the circumstances in which disapproval is allowed."). But in this case, in stark contrast, the permission granted by the word "may" is unqualified. Plaintiffs argue that the clause "as set forth in subparagraph (A) of this paragraph" qualifies the permission granted by the word "may." 16 U.S.C. § 1532(5)(B). But we have already explained why subparagraph (A) does not limit the Service's discretion in making the initial decision whether to designate critical habitat. See supra note 14.