United States v. 2010-08-25 | 08-15780 | NORTHERN CALIFORNIA RIVER WATC V. CARL WILCOX | precedential…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 NORTHERN CALIFORNIA RIVER
WATCH, a non-profit corporation;
ROBERT G. EVANS,
Plaintiffs-Appellants, No. 08-15780
v. D.C. No.
CARL WILCOX; GENE COOLEY; 3:06-CV-06685- 
ROBERT FLOERKE; WILLIAM R. CRB
SCHELLINGER; FRANK H. OPINION
SCHELLINGER, individually and
doing business as Schellinger
Brothers; SCOTT SCHELLINGER,
Defendants-Appellees. 
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
July 14, 2009—San Francisco, California
Filed August 25, 2010
Before: Dorothy W. Nelson, William A. Fletcher, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
12777

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COUNSEL
Jack Silver, Law Office of Jack Silver, Santa Rosa, Califor-
nia, for plaintiffs-appellants Northern California River Watch
and Robert G. Evans.
Christopher J. Carr, Shaye Diveley, Morrison & Foerster
LLP, San Francisco, California, for defendants-appellees Wil-
liam R. Schellinger and Frank H. Schellinger, dba Schellinger
Brothers, and Scott Schellinger.
Edmund G. Brown Jr., Attorney General of the State of Cali-
fornia, James Humes, Chief Deputy Attorney General, Matt
Rodriguez, Chief Assistant Attorney General, Mary E. Hack-
enbracht, Senior Assistant Attorney General, Robert W.
Byrne, Supervising Deputy Attorney General, Michael W.
Neville, Deputy Attorney General, San Francisco, California,
for defendants-appellees Carl Wilcox, Gene Cooley, and Rob-
ert Floerke.
Ronald J. Tenpas, Assistant Attorney General, Andrew Mer-
gen, Attorney, Ellen Durkee, Attorney, Bradford T. McLane,
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Attorney, Environment & Natural Resources Division,
Department of Justice, Washington, DC, David Gayer, of
Counsel, Office of the Solicitor, United States Department of
the Interior, Washington, DC, for amicus curiae United States
of America.
OPINION
PAEZ, Circuit Judge:
Robert Evans and Northern California River Watch (“River
Watch”) appeal the district court’s grant of summary judg-
ment to the Schellinger defendants and three employees of the
California Department of Fish and Game (collectively “Defen-
dants”).1 River Watch contends that Defendants violated the
Endangered Species Act (“ESA”), codified at 16 U.S.C.
§ 1531 et seq. Specifically, River Watch argues that Defen-
dants dug up and removed the endangered plant species,
Sebastopol meadowfoam (Limnanthes vinculans) and, there-
fore, violated § 9 of the ESA, which makes it unlawful for
anyone to “take” a listed plant on areas under federal jurisdic-
tion.2 See 16 U.S.C. § 1538(a)(2)(B).
The district court granted Defendants’ motion for summary
judgment, concluding that River Watch could not establish, as
a matter of law, that the areas in which the Sebastopol mead-
owfoam plants were growing were “areas under Federal juris-
diction.” On appeal, we consider the meaning of the term
1The Schellinger defendants include William and Frank Schellinger,
individually and doing business as Schellinger Brothers, and Scott Schel-
linger, son of defendant William Schellinger. The California Department
of Fish and Game employee defendants are Carl Wilcox, Gene Cooley,
and Robert Floerke.
2“The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
16 U.S.C. § 1532(19).
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“areas under Federal jurisdiction” as used in ESA § 9. River
Watch argues that the term encompasses privately-owned
wetlands adjacent to navigable waters that have been desig-
nated as “waters of the United States” by the Army Corps of
Engineers. The United States, representing the interests of the
Department of the Interior’s Fish and Wildlife Service as
amicus curiae, argues that § 9 is ambiguous, that we must
apply the deference principles set forth in Chevron, U.S.A.,
Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837
(1984), and that under Chevron the privately-owned land at
issue in this case is not an “area[ ] under Federal jurisdiction.”
Although we agree that the term “areas under Federal juris-
diction” is ambiguous, we are not convinced that the U.S.
Fish and Wildlife Service (“FWS”), the agency with rule
making authority, has interpreted the term. Nonetheless, for
the reasons set forth in this opinion, we hold that “areas under
Federal jurisdiction” does not include the privately-owned
land at issue here. We therefore agree with the district court’s
ultimate legal conclusion in this case and affirm the grant of
summary judgment to Defendants.3
I. Factual and Procedural Background
William and Frank Schellinger are brothers and business
partners who seek to develop 21 acres of private property in
Sebastopol, California. These 21 acres (“the Site”) are com-
prised of grasslands containing seasonal vernal pools, wet-
lands, seasonal creeks, vernal pools, and vernal swales. N.
Cal. River Watch v. Wilcox, 547 F. Supp. 2d 1071, 1072-73
(N.D. Cal. 2008). The Site sits adjacent to the Laguna de
Santa Rosa, a tributary of the Russian River. Id. at 1073; see
also Russian River Watershed Prot. Comm. v. City of Santa
Rosa, 142 F.3d 1136, 1139 (9th Cir. 1998). The Russian
River, as the parties acknowledge, is a navigable water of the
United States. See N. Cal. River Watch v. City of Healdsburg,
3We have jurisdiction pursuant to 28 U.S.C. § 1291.
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496 F.3d 993, 996 (9th Cir. 2007). “Navigable waters” are
defined in the Clean Water Act (“CWA”) as “waters of the
United States,” 33 U.S.C. § 1362(7), which include wetlands
adjacent to navigable waters. 33 C.F.R. § 328.3(a)(7); see also
Rapanos v. United States, 547 U.S. 715, 782 (2006).
In the course of the Schellingers’ efforts to develop the Site
in 2003, the United States Army Corps of Engineers (“the
Corps”) designated 1.84 acres of the Site as wetlands subject
to the permitting requirements of the CWA, due to their adja-
cency to the Laguna de Santa Rosa.4 Wilcox, 547 F. Supp. 2d
at 1073. In other words, under the CWA, this portion of the
Site is considered a “navigable water.” The CWA prohibits
discharges of pollutants—including dredged soil, rock, sand,
and cellar dirt—into the “navigable waters of the United
States,” unless one receives a special permit. 33 U.S.C.
§§ 1311(a), 1344, 1362(6); City of Healdsburg, 496 F.3d at
995. The Schellingers applied for such a permit under § 401
and § 404 of the CWA, because their development plans
included filling in and paving over parts of the Site designated
as wetlands.
In April 2005, amateur naturalist Robert Evans was walk-
ing with his dog along one of the paths on the Site, when he
found what he believed was the endangered plant species
Sebastopol meadowfoam on the Site’s wetlands.5 See 50
4The fact that the Corps’ designation expired in 2006 is of no conse-
quence to our decision, because land either is or is not an “adjacent wet-
land,” and a private property owner must comply with the CWA’s
permitting requirements on adjacent wetlands regardless of whether they
have been so designated by the Corps. See United States v. Riverside Bay-
view Homes, Inc., 474 U.S. 121, 139 (1985) (holding that the Corps acted
reasonably when it defined “waters of the United States” to include “adja-
cent wetlands” and that the Corps could sue a developer who filled in
adjacent wetlands on his own property without a permit).
5Evans has led hikes around the Laguna de Santa Rosa, helped develop
historical data of the tributary for the Laguna de Santa Rosa website, and
for the past 20 years has enjoyed recreational activities in and around the
tributary. Evans is a past president of the Laguna de Santa Rosa Founda-
tion, and he is a member of the Laguna Preservation Council, the Northern
California River Watch, and a number of other environmental organiza-
tions.
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C.F.R. § 17.12 (listing Sebastopol meadowfoam as an endan-
gered plant species). A local biology professor determined
that, although Evans had identified only the common mead-
owfoam, there were Sebastopol meadowfoam plants on the
Site’s wetlands. The professor notified the relevant federal
and state authorities about the presence of the endangered
plants. A biologist from the California Department of Fish
and Game (“CDFG”) also surveyed the Site and confirmed
the presence of Sebastopol meadowfoam, noting that the
plants were healthy and that there was no evidence of ground
disturbance or replanting.
After learning of the discovery of Sebastopol meadowfoam,
CDFG Habitat Conservation Manager Carl Wilcox, CDFG
biologist Gene Cooley, and Project Manager for the Site’s
development Scott Schellinger, visited the Site in order to fur-
ther investigate the presence of the plants. Wilcox, 547 F.
Supp. 2d at 1073. Wilcox confirmed that the vegetation was
the endangered plant species Sebastopol meadowfoam. In
examining the plants to determine whether they were rooted
in the soil and thus naturally occurring, Wilcox lifted the
plants, along with their substrates, out of the wetland. Because
the CDFG employees suspected that the plants were not natu-
rally occurring,6 Cooley later returned to the Site to gather
evidence. Wilcox, 547 F. Supp. 2d at 1073. Upon his return
visit, he removed the Sebastopol meadowfoam plants, placed
them in plastic bags, and transported them to the local CDFG
office, where he placed most of the plants in an evidence
locker. Id. at 1073, 1079.
River Watch, in response to the discovery of the Sebastopol
meadowfoam and the Schellingers’ continuing efforts to
develop the Site, filed a complaint in 2006 in the Northern
District of California. Id. at 1073. River Watch alleged that
6In the district court, the Schellingers alleged that the plants were ille-
gally transplanted to the Site in an effort to delay their development plans.
Although this issue is disputed by the parties, it is irrelevant to our review.
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the CDFG employees’ treatment and removal of the plants
violated ESA § 9(a)(2)(B), and named Wilcox, Cooley, and
Robert Floerke (another CDFG employee) as defendants.7 See
id. River Watch sought declaratory and injunctive relief.
Under § 9(a)(2)(B), it is unlawful to remove, damage, or
destroy an endangered plant species in “areas under Federal
jurisdiction.” 16 U.S.C. § 1538(a)(2)(B). Although the Site is
privately owned, River Watch alleges that the Sebastopol
meadowfoam was found in an “area[ ] under Federal jurisdic-
tion,” because it was found in the portion of the Site that was
designated as adjacent wetlands under the CWA. Therefore,
River Watch argues that Defendants violated § 9 when they
removed the Sebastopol meadowfoam plants.
Defendants filed a motion for summary judgment in which
they argued that the term “areas under Federal jurisdiction”
was limited to land owned by the Federal government. Wil-
cox, 547 F. Supp. 2d at 1075. The district court denied their
motion, ruling that “areas under Federal jurisdiction” was not
so limited. Id. Following discovery, both parties moved for
summary judgment, and the district court granted Defendants’
motion, concluding that River Watch could not prevail on its
§ 9(a)(2)(B) claims because, as a matter of law, River Watch
could not establish that the wetlands qualified as “areas under
Federal jurisdiction.”8 Id. at 1075-76, 1078. River Watch
appealed.
7In September 2007, River Watch filed a second amended complaint
adding the Schellingers as defendants and alleging that the Schellingers
“solicited or otherwise assisted” in removing the plants from the Site in
violation of ESA § 9(g).
8River Watch also alleged that Defendants violated ESA § 9(a)(2)(B)’s
third prong, which makes it unlawful to “remove, cut, dig up, or damage
or destroy any such species on any other area in knowing violation of any
law or regulation of any State . . . .” 16 U.S.C. § 1538(a)(2)(B); see Wil-
cox, 547 F. Supp. 2d at 1075. The district court found that no reasonable
trier of fact could find that Defendants had acted in knowing violation of
state law, because they were “indisputably acting for a law enforcement
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II. Discussion
Because the parties agree that there are no genuine issues
of material fact, the predicate legal issue is ripe for summary
judgment.9 Fed. R. Civ. P. 56(c). The sole question we must
address is whether the land upon which the Sebastopol mead-
owfoam populations were discovered and removed is, as a
matter of law, an “area[ ] under Federal jurisdiction” for pur-
poses of ESA § 9(a)(2)(B), 16 U.S.C. § 1538(a)(2)(B).
Both River Watch and Defendants argue that the text of
§ 9(a)(2)(B) is clear and that it plainly supports their respec-
tive positions. River Watch argues that the term “areas under
Federal jurisdiction” plainly “includes all waters of the United
States subject to the jurisdiction of the federal agencies, fed-
eral courts and the federal environmental protection laws of
the United States,” such as the wetlands here. Defendants
argue that the statutory text is plainly limited to land that is
owned by the federal government. Finally the United States,
as amicus curiae, urges us to conclude that the statutory text
is ambiguous and that the FWS’s construction of the ESA is
entitled to Chevron deference. The United States interprets
the FWS’s construction of “areas under Federal jurisdiction”
to include federal lands owned in fee simple, as well as “fed-
eral property interests such as conservation easements, lease-
hold estates, and special management areas.” “[A]reas under
Federal jurisdiction” does not include, the United States
purpose or, at least, not in knowing violation of state law.” Id. at 1078.
River Watch does not challenge the district court’s ruling on this issue.
Although not specifically mentioned in the district court’s ruling, River
Watch’s allegations that the Schellingers violated ESA § 9(g), by “at-
tempting to commit, soliciting another to commit, and causing to be com-
mitted, offenses defined in ESA § 9” are dependent on whether the
Sebastopol meadowfoam plants were located on “areas under Federal
jurisdiction.”
9We review de novo the district court’s grant of summary judgment. Or.
Natural Res. Council v. Allen, 476 F.3d 1031, 1036 (9th Cir. 2007).
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argues, privately-owned lands that are merely subject to regu-
latory jurisdiction under a federal statute. Finally, the United
States argues that according to the FWS’s interpretation,
“ESA section 9(a)(2)(B) [does not] regulate actions that harm
a listed plant species on private property unless that action
occurs in knowing violation of a state law or regulation or in
the course of a violation of a state criminal trespass law.”
We begin our analysis with the “familiar two-step proce-
dure” laid out in Chevron. See Nat’l Cable & Telecomm.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005).
At step one, we evaluate whether Congressional intent regard-
ing the meaning of the text in question is clear from the stat-
ute’s plain language. Id. If it is, we must give effect to that
meaning. Id. If the statute is ambiguous, and an agency pur-
ports to interpret the ambiguity, prior to moving on to step
two, we must determine whether the agency meets the
requirements set forth in Mead: (1) that Congress clearly dele-
gated authority to the agency to make rules carrying the force
of law, and (2) that the agency interpretation was promulgated
in the exercise of that authority. United States v. Mead Corp.,
533 U.S. 218, 226-27 (2001); Marmolejo-Campos v. Holder,
558 F.3d 903, 908 (9th Cir. 2009) (en banc). If both of these
requirements from Mead are met, then we proceed to step
two. Under step two, we must determine if the agency’s inter-
pretation of the statute is “a reasonable policy choice for the
agency to make.” Brand X, 545 U.S. at 986 (quoting Chevron,
467 U.S. at 845).
River Watch and Defendants implicitly argue that our anal-
ysis is limited to step one of the Chevron framework. The
United States, however, argues that “areas under Federal
jurisdiction” is ambiguous and that, for purposes of step one,
Congress delegated authority to the FWS to interpret the term.
Proceeding to Chevron step two, the United States argues that
the FWS has interpreted the term in three rules that list endan-
gered plant species under the ESA and in a guidance manual.
The United States argues that we should, therefore, defer to
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the FWS’s interpretation. We examine the parties’ arguments
below, applying Chevron’s analytical framework.
A. Chevron Step One
[1] In determining whether “areas under Federal jurisdic-
tion” under § 9 include “waters of the United States,” and thus
the wetlands on the Site, we must first determine “whether
Congress has directly spoken to the precise question at issue.”
Chevron, 467 U.S. at 842; United States v. W.R. Grace & Co.,
429 F.3d 1224, 1236 (9th Cir. 2005). “If the intent of Con-
gress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Chevron, 467 U.S. at 842-43.
To determine if Congress has spoken directly to the mean-
ing of “areas under Federal jurisdiction” in the ESA, “we
employ the traditional tools of statutory construction.” Resi-
dent Councils of Wash. v. Leavitt, 500 F.3d 1025, 1031 (9th
Cir. 2007) (quoting Student Loan Fund of Idaho, Inc. v. U.S.
Dep’t of Educ., 272 F.3d 1155, 1165 (9th Cir. 2001) (internal
quotations omitted)).
These tools of construction require us first to engage
in a textual analysis of the relevant statutory provi-
sions and to read the words of statutes in their con-
text and with a view to their place in the overall
statutory scheme. If the proper interpretation is not
clear from this textual analysis, the legislative his-
tory offers valuable guidance and insight into Con-
gressional intent. However, it is well established that
legislative history which does not demonstrate a
clear and certain congressional intent cannot form
the basis for enjoining regulations.
Id. (quoting Student Loan Fund, 272 F.3d at 1165 (citations
and quotation marks omitted)).
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1. Textual Analysis
The ESA was enacted “to provide a means whereby the
ecosystems upon which endangered species and threatened
species depend may be conserved, [and] to provide a program
for the conservation of such endangered species and threat-
ened species . . . .” 16 U.S.C. § 1531(b). Section 9 prohibits
“any person subject to the jurisdiction of the United States”
from committing certain acts against or relating to endangered
or threatened fish and wildlife or plant species. Id. § 1538(a).
Section 9(a)(2) describes the prohibitions relating to endan-
gered plants. Id. The prohibitions at issue here are found at
§ 9(a)(2)(B), which states that it is unlawful to:
remove and reduce to possession any [endangered
species of plants] from areas under Federal jurisdic-
tion; maliciously damage or destroy any such species
on any such area; or remove, cut, dig up, or damage
or destroy any such species on any other area in
knowing violation of any law or regulation of any
State or in the course of any violation of a State
criminal trespass law.
Id. § 1538(a)(2)(B) (emphasis added).
[2] The meaning of “areas under Federal jurisdiction” is
not immediately clear, nor is it explicitly defined in the ESA.
“Jurisdiction, it has been observed, is a word of many, too
many, meanings.” Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 90 (1998) (internal quotation marks and citations
omitted). Review of the specific context in which the term is
used, and the broader context of the statute as a whole, also
fails to elucidate the meaning of the phrase. See Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997).
River Watch argues that when privately-owned lands are
subject to the jurisdiction of the CWA, as are the wetlands on
the Site, they should be considered “areas under Federal juris-
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diction.” River Watch’s argument is not without some legal
support. It is well established that the Corps may regulate
“wetlands adjacent to navigable waters and their tributaries.”
City of Healdsburg, 496 F.3d at 997 (citing Riverside Bayview
Homes, Inc., 474 U.S. 121). Indeed, the Corps calls wetlands
subject to the CWA, “jurisdictional wetlands,” Rapanos, 547
U.S. at 763, and the Corps makes an “assertion of jurisdic-
tion” when enforcing the CWA. See City of Healdsburg, 496
F.3d at 1000. Waters subject to the jurisdiction of the CWA
are also referred to as “jurisdictional waters.” See Defenders
of Wildlife v. Bernal, 204 F.3d 920, 923 (9th Cir. 2000). River
Watch therefore contends that, when the Corps asserts regula-
tory jurisdiction by deeming private land an adjacent wetland
under the CWA, the private land becomes an “area[ ] under
Federal jurisdiction,” which is then subject to regulation by
the FWS under § 9(a)(2)(B).
In addition, River Watch argues that the only way the ESA
can maintain internal consistency is if areas that are protected
under ESA § 7 are also protected under § 9. Section 7 requires
agencies to consult with the FWS prior to authorizing any
action that may affect an endangered species. See 16 U.S.C.
§ 1536(a)(2). Thus, when a private party like the Schellingers
applies for a permit under § 401 and § 404 of the CWA, the
Corps must confer with the FWS prior to granting a permit to
discharge pollutants into a navigable water like an adjacent
wetland. See id. River Watch argues that, if “areas under Fed-
eral jurisdiction” in § 9 is not read to apply to the privately-
owned adjacent wetlands regulated by the CWA, then § 9
would have the perverse effect of allowing (and perhaps
incentivizing) a private landowner to circumvent ESA § 7’s
protections by destroying endangered plants on his property
before requesting a permit under the CWA.
We are not persuaded that a plain reading of the text sup-
ports River Watch’s arguments. It is clear from the statutory
text that Congress did not intend for § 7 and § 9 to be coex-
tensive. See Babbitt v. Sweet Home Chapter of Communities
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for a Great Oregon, 515 U.S. 687, 702-03 (1995). We cannot
discern from the text of the ESA why Congress crafted § 9 to
leave the gap in coverage identified by River Watch. We are
certain, however, that Congress has not unambiguously mani-
fested its intent to adopt River Watch’s view. Therefore, we
proceed to examine the legislative history of the ESA to see
if it “offers valuable guidance and insight into Congressional
intent.” See Resident Councils of Wash., 500 F.3d at 1031
(quoting Student Loan Fund, 272 F.3d at 1165 (quotation
marks and citations omitted)).
2. Legislative History
“[T]he authoritative source for finding the Legislature’s
intent lies in the Committee Reports on the bill, which
‘represen[t] the considered and collective understanding of
those Congressmen involved in drafting and studying pro-
posed legislation.’ ” Garcia v. United States, 469 U.S. 70, 76
(1984) (quoting Zuber v. Allen, 396 U.S. 168, 186 (1969)).
Here, there are only two committee reports that discuss the
extension of the ESA’s protections to plants: (1) a House
Conference Report that preceded the passage of the 1982
Amendments to the ESA, and (2) a Senate Report that pre-
ceded the passage of the 1988 Amendments to the ESA.
The 1982 House Conference Report provides virtually no
insight into Congress’ intent in passing the amendments. The
report states only that the bill “amends section 9 of the Act by
adding a provision to prohibit the removal and reduction to
possession of any endangered plant that is on Federal land.”
H.R. Rep. No. 97-835, at 35 (1982), reprinted in 1982
U.S.C.C.A.N. 2860, 2876. Defendants argue that the use of
the term “federal land” in lieu of “areas of Federal jurisdic-
tion” signals Congress’ clear intent that the terms are equiva-
lent. They additionally argue that the term “federal land”
means lands owned by the federal government. Neither the
report nor the proposed bill defines “federal land,” and we
agree with the district court that the term “federal land” is
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ambiguous and could arguably include lands over which the
federal government maintains some interest, such as conser-
vation easements, leasehold estates, special management
areas, and jurisdictional wetlands. See Wilcox, 547 F. Supp.
2d at 1076. Furthermore, “federal land” is not clearly the
same thing as “areas under Federal jurisdiction.” Even if “fed-
eral land” was unambiguous, it would not necessarily aid our
interpretation here.
The 1988 Senate Report provides a bit more substance,
stating that at present the ESA “is deficient in the level of pro-
tection provided for plants, which is insufficient and lags
behind that provided for animals.” Senate Comm. on Env’t &
Pub. Works, S. Rep. 100-240, at 4 (1987), reprinted in 1988
U.S.C.C.A.N. 2700, 2703. The 1988 Senate Report, like the
1982 House Conference Report, uses the term “federal land”
in lieu of the statutory text “areas under Federal jurisdiction.”10
Id. at 12, reprinted in 1988 U.S.C.C.A.N. at 2711-12. The
Senate Report further noted that “[a]dditional protection for
endangered plants on private and other non-federal lands is
also needed” and that “[t]he Act currently offers no protection
for endangered plants on these lands.” Id. Although that text
suggests that “areas under Federal jurisdiction” is limited to
“federal land,” and that “federal land” does not include “pri-
10River Watch asserts that it is inappropriate to consider the 1988 Sen-
ate Report as it is “subsequent legislative history.” River Watch is mis-
taken. First, the 1988 Amendments added the “maliciously damage or
destroy” provision to § 9(a)(2)(B); consequently, the Senate Report is not
“subsequent to,” but rather concurrent with that provision. Further,
because that provision mirrors the scope of the “remove and reduce to pos-
session” provision, which was enacted in 1982, by referring to its jurisdic-
tional limitation (“on any such area”), the 1988 Report’s analysis may be
properly consulted to discern the intent behind the “remove and reduce to
possession” provision as well. Finally, as Defendants note, Solid Waste
Agency v. U.S. Army Corps of Engineers expresses concern over relying
on subsequent legislative history to contradict the “plain text and import”
of a statutory provision. 531 U.S. 159, 170 (2001). Here, however, we
look to the 1988 report in order to gain insight into the pertinent text of
§ 9(a)(2)(B), which has no plain meaning.
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vate and other non-federal lands,” the 1988 Senate Report,
like the 1982 House Report, fails to define “federal lands.”
[3] In sum, the text examined in the two reports does not
signal Congress’ “clear intent” to limit “areas under Federal
jurisdiction” to land owned by the federal government, as
Defendants suggest, or to extend it to “waters of the United
States” as defined by the CWA, as River Watch contends.
Indeed, even if we concluded that based on the two reports
“federal lands” has a specific meaning, the fact that Congress
made a conscious choice to use “areas under Federal jurisdic-
tion” in the ESA, rather than “federal lands,” further confuses
the issue. Therefore, we conclude that the meaning of the stat-
utory text “areas under Federal jurisdiction” is not plainly
clear from the text of the ESA, nor does the ESA’s legislative
history elucidate Congress’ intent in using the term. We agree
with the district court’s conclusion that “Congress did not
explain what it meant by ‘areas under Federal jurisdiction,’ ”
and we proceed to examine whether the FWS’s interpretations
offered in the United States’ amicus brief satisfy the require-
ments set forth in Mead. See Wilcox, 547 F. Supp. 2d at 1076.
B. Mead Requirements
[4] Under Chevron, “ambiguities in statutes within an
agency’s jurisdiction to administer are delegations of author-
ity to the agency to fill the statutory gap in reasonable fash-
ion.” Brand X, 545 U.S. at 980. Chevron deference, however,
applies only “when it appears that Congress delegated author-
ity to the agency generally to make rules carrying the force of
law, and that the agency interpretation claiming deference
was promulgated in the exercise of that authority.” Mead
Corp., 533 U.S. at 226-27.
[5] Here, the FWS is the agency responsible for the protec-
tion and recovery of endangered plant species. 50 C.F.R.
§ 402.01(b). The FWS, therefore, has the authority to interpret
the ESA in rules carrying the force of law. See, e.g., Sweet
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Home, 515 U.S. at 691 n.2. The Supreme Court has explained
that “[t]he latitude the ESA gives the Secretary [of the Inte-
rior] in enforcing the statute, together with the degree of regu-
latory expertise necessary to its enforcement, establishes that
we owe some degree of deference to the Secretary’s [and by
extension the FWS’s] reasonable interpretation.” See id. at
703; see also 16 U.S.C. § 1540(f).
[6] Moreover, just as the Corps’ expertise gives it the
authority to make certain determinations about the extent of
its jurisdiction under the CWA, the FWS’s expertise on
endangered species provides it with an adequate basis to
determine whether, under the ESA, certain privately-owned
lands might also be considered “areas under Federal jurisdic-
tion.” Cf. Rapanos, 547 U.S. at 766 (noting that the Court per-
mitted the Corps to find that it had jurisdiction under the
CWA to regulate some privately-owned land on the basis of
their “ecological judgment about the relationship between
waters and their adjacent wetlands”) (quoting Riverside Bay-
view Homes, Inc., 474 U.S. at 134); Sweet Home, 515 U.S. at
698 (concluding that “the broad purpose of the ESA supports
the Secretary’s decision to extend protection against activities
that cause the precise harms Congress enacted the statute to
avoid”). Therefore, the first requirement under Mead for
granting Chevron deference is met.
The United States asks us to defer to several purportedly
relevant statements found in three rules that add plants to the
endangered species list.11 We have previously determined that
such rulings were promulgated by the FWS in the exercise of
its delegated authority. See Trout Unlimited v. Lohn, 559 F.3d
946, 954 (9th Cir. 2009). Thus the second requirement under
11The United States also asks us to grant Chevron deference to the Hab-
itat Conservation Planning And Incidental Take Permit Processing Hand-
book, which is a guidance manual. For the reasons described later in this
opinion, we determine that the Handbook is not entitled to Chevron defer-
ence. See infra Part II.C.2.
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Mead for granting Chevron deference, that “the agency inter-
pretation claiming deference was promulgated in the exercise
of that authority,” is also met. Mead Corp., 533 U.S. at 227.
Therefore, we proceed to the second step of Chevron.
C. Chevron Step Two
At step two of the Chevron analysis, we normally review
an agency’s interpretation of a statute to determine if it is a
reasonable construction of the law at issue. Brand X, 545 U.S.
at 986. The United States concedes that the FWS has not
explicitly defined “areas under Federal jurisdiction” through
regulation. Instead, the United States argues that three FWS
rules and a guidance manual (“the Handbook”) provide an
interpretation of “areas under Federal jurisdiction” which is
due Chevron deference. We are not persuaded.
1. The Three Rules
The United States cites three rules, which were promul-
gated by the FWS using formal rule-making authority, as evi-
dence of the FWS’s interpretation of the phrase “areas under
Federal jurisdiction.” The three rules designate certain plant
species as endangered or threatened. None of these rules,
however, interprets “areas under Federal jurisdiction;”
instead, the rules use the phrase in passing and somewhat
interchangeably with the term “federal lands.” Thus, the three
rules do not provide an agency interpretation to which we
could defer under Chevron.
For example, in the first rule, Endangered or Threatened
Status for Seven Central Florida Plants, the FWS writes only,
“for endangered plants, the 1988 amendments (Pub. L. 100-
478) to the Act prohibit the malicious damage or destruction
on Federal lands . . . .” 58 Fed. Reg. 25,746, 25,754 (Apr. 27,
1993). This language offers no assistance, because it is not
clear from the rule’s text how “areas under Federal jurisdic-
tion” relates to “Federal lands.” Moreover, as with the con-
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gressional reports, the rule offers no definition of “Federal
lands.” The question we must answer is whether “areas under
Federal jurisdiction” includes “waters of the United States” as
defined by the CWA and the Corps. This rule, like the legisla-
tive history of the ESA, simply does not address this issue.
In the second rule, Determination of Endangered Status for
Three Plants, Blennosperma Bakeri (Sonoma Sunshine or
Baker’s Stickyseed), Lasthenia Burkei (Burke’s Goldfields),
and Limnanthes Vinculans (Sebastopol Meadowfoam), the
United States relies on language discussing how to protect
Sebastopol meadowfoam, which is primarily found on
privately-owned land. 56 Fed. Reg. 61173, 61,180-81 (Dec. 2,
1991). The United States finds it significant that the rule
states that the “[p]rotection of these species’ habitats will be
addressed through the recovery process and through the
[ESA’s] section 7 consultation process,” but that the rule fails
to mention that habitats on privately-owned land also can be
protected under § 9(a)(2)(B). Id. at 61181. River Watch does
not contest that the § 7 consultation process is one way the
ESA protects Sebastopol meadowfoam growing on private
land.12 The question is whether that is the only way the ESA
protects endangered plants growing on privately-owned land.
Again, the rule simply does not indicate that the FWS gave
any thought to this issue. Because this issue is, if anything,
only addressed tangentially (and possible only through the
United States’ post-hoc litigation arguments), we conclude
that it is inappropriate to grant Chevron deference to this rule.
12As described earlier, under § 7, an agency must confer with the FWS
prior to authorizing any action, in order to make sure that the action is “not
likely to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification of
habitat of such species . . . .” 16 U.S.C. § 1536(a)(2). Such authorization
requiring a § 7 conference with the FWS takes place when the Corps
grants a permit to discharge prohibited material like dredged soil, rock,
sand, and cellar dirt into a navigable water, like an adjacent wetland. See
id.
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In the third rule cited by the United States, Determination
of Endangered or Threatened Status for Five Desert Milk-
vetch Taxa from California, 63 Fed. Reg. 53,596 (Oct. 6,
1998), the FWS explains that “[l]isted plants have limited pro-
tection under the Act, particularly on private lands. . . . Gener-
ally, on private lands, collection of, or vandalism to, listed
plants must occur in violation of State law to be a violation
of section 9.” 63 Fed. Reg. at 53,610-11. The text in the rule
indicates only that a violation of state law is “[g]enerally” the
way in which § 9’s protections for endangered plants growing
on private land are invoked. The text of the rule, however,
does not act as limiting language and thus does not help us in
this case.
2. The Handbook
The United States also urges us to give Chevron deference
to an “interpretation” of “areas under Federal jurisdiction”
found in the Habitat Conservation Planning And Incidental
Take Permit Processing Handbook, an FWS guidance manual
for conducting the incidental take permit program under ESA
§ 10. Habitat Conservation Planning And Incidental Take
Permit Processing Handbook (1996), available at http://
www.nmfs.noaa.gov/pr/pdfs/laws/hcp_handbook.pdf [herein-
after HCP Handbook]. The Handbook states that “the ESA
does not prohibit the incidental take of federally listed plants
on private lands unless the take or the action resulting in the
take is a violation of state law (which in most cases eliminates
the need for an incidental take permit for plants).” Id. at 3-17.
Although issued after public notice and comment, see 61
Fed. Reg. 63,854 (Dec. 2, 1996); 59 Fed. Reg. 65,782 (Dec.
21, 1994), the Handbook is not deserving of Chevron defer-
ence. First, “interpretations contained in policy statements,
agency manuals, and enforcement guidelines, all of which
lack the force of law-do not warrant Chevron-style deference.”13
13This case is distinguishable from Northwest Ecosystem Alliance v.
U.S. Fish & Wildlife Service, 475 F.3d 1136 (9th Cir. 2007), where we
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Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Sec-
ond, the Handbook explicitly states that “nothing in this hand-
book is intended to supersede or alter any aspect of Federal
law or regulation pertaining to the conservation of endangered
species.” HCP Handbook at 1-3. Indeed, the Handbook is
meant only to provide “guidance on” the ESA § 10 permit
process. See id. at 1-1 (“The purpose of this handbook is to
guide the [FWS] and National Marine Fisheries Services . . .
in processing incidental take permit applications and partici-
pating in associated habitat conservation.”), 1-3 (“[T]his
handbook establishes detailed but flexible guidelines to be
used in developing HCPs [habitat conservation planning],
processing section 10(a)(1)(B) permit applications, and man-
aging ongoing HCP programs.”); see also 61 Fed. Reg.
19,308, 19,310 (May 1, 1996). Third, although the Handbook
has been cited in at least four circuit opinions, none has
treated it as meriting Chevron deference. See, e.g., Nw.
Ecosystem Alliance, 475 F.3d at 1142-43; Spirit of the Sage
extended Chevron deference to the FWS’s policy guidelines on criteria for
consideration of petitions to list endangered species. Id. at 1150. In North-
west Ecosystem Alliance, we emphasized that 16 U.S.C. § 1533(h)
required the FWS to publish the proposed guidelines in the Federal Regis-
ter and to provide an opportunity for written comment, in a process similar
to the notice-and-comment rule making under the Administrative Proce-
dure Act (“APA”), 5 U.S.C. § 551 et seq. Nw. Ecosystem Alliance, 475
F.3d at 1142. Further, there was no evidence that the agency ever treated
the guidelines as anything other than legally binding. Id. at 1143.
The situation here is markedly different. Although the FWS published
the Handbook and sought comments, it did not do so pursuant to § 1533(h)
or as notice-and-comment rule making under the APA. Moreover, the pur-
pose of the Handbook was to provide “detailed but flexible guidelines” on
granting incidental take permits and not to define “areas under Federal
jurisdiction.” HCP Handbook at 1-3. And, as noted infra in footnote 14,
the FWS previously argued that the Handbook was not binding. Nw.
Ecosystem Alliance, 475 F.3d at 1142 n.5 (quoting Nat’l Wildlife Fed’n v.
Babbitt, 128 F. Supp. 2d 1274, 1292 (E.D. Cal. 2000)). In light of the con-
clusory use of the term in several sections of the Handbook, there appears
to have been little thought given to the meaning of the term.
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Council v. Norton, 411 F.3d 225, 227 (D.C. Cir. 2005); Mor-
ris v. United States, 392 F.3d 1372, 1377 (Fed. Cir. 2004);
Loggerhead Turtle v. Cnty. Council of Volusia Cnty., Fla.,
148 F.3d 1231, 1243, 1243 n.11 (11th Cir. 1998).14 Finally,
the 300+ page Handbook does not discuss “areas under Fed-
eral jurisdiction” other than in one paragraph where it restates
the statute. In sum, the focus of the Handbook is the § 10 inci-
dental take permit program, and any interpretation one might
glean from the Handbook is attenuated at best.
[7] Therefore, although the FWS has the authority to fill in
the statutory “gaps” of the ESA through the promulgation of
rules and regulations, we hold that contrary to the United
States’ arguments, the FWS has not yet interpreted “areas
under Federal jurisdiction.”
D. Alternatives to Chevron deference
Although an agency may not have formally interpreted a
statute, the agency’s construction may still “merit some defer-
ence whatever its form, given the ‘specialized experience and
broader investigations and information’ available to the agen-
cy.” Mead Corp., 533 U.S. at 234 (quoting Skidmore v. Swift
& Co., 323 U.S. 134, 139 (1944)). We give such an agency
interpretation “respect proportional to its ‘power to per-
suade.’ ” Id. at 235 (quoting Skidmore, 323 U.S. at 140).
Here, we conclude, however, that for the reasons set forth
above, the FWS’s three rules and the Handbook address the
issue before us only tangentially. The rules and the Hand-
14The Eleventh Circuit recognized that the Handbook was only an “in-
formal publication” which was not binding on the court. Loggerhead Tur-
tle, 148 F.3d at 1243, 1243 n.11. And, in at least one district court case,
the Secretary of the Department of the Interior previously argued that the
Handbook was not legally binding. Nat’l Wildlife Fed’n, 128 F. Supp. 2d
at 1292; see also WildEarth Guardians v. U.S. Fish & Wildlife Serv., 622
F. Supp. 2d. 1155, 1164 (D. Utah 2009) (holding that the Handbook was
an informal guidance material that was not binding).
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book, therefore, have no “power to persuade” us of any partic-
ular interpretation of “areas under Federal jurisdiction.”
The United States also urges us to defer to the interpreta-
tion of the ESA set forth in its amicus brief, pursuant to Auer
v. Robbins, 519 U.S. 452 (1997). This argument is without
merit. In Auer, the Supreme Court gave weight to an agency
interpretation advanced in an amicus brief of an ambiguous
regulation promulgated by the same agency. Id.; see also
Gonzales v. Oregon, 546 U.S. 243, 256 (2006); Siskiyou Reg’l
Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 555 n.9 (9th
Cir. 2009) (reviewing cases in which the Ninth Circuit has
granted Auer deference). In this case, the amicus brief pur-
ports to interpret statutory, not regulatory, language. More-
over, in Gonzales, the Supreme Court refused to extend Auer
deference to regulations that simply parroted a statute, hold-
ing that “[a]n agency does not acquire special authority to
interpret its own words when, instead of using its expertise
and experience to formulate a regulation, it has elected merely
to paraphrase the statutory language.” Gonzales, 546 U.S. at
257. Here, the three rules cited by the United States essen-
tially parrot the statutory language. Because they “give[ ] little
or no instruction on a central issue in this case,” the FWS’s
three rules and the Handbook cannot support the FWS’s
efforts to decide the meaning of “areas under Federal jurisdic-
tion” in the amicus brief. See id.
E. Judicial Construction
[8] Without any agency interpretation of “areas under Fed-
eral jurisdiction” to which we must defer, we proceed to inter-
pret the term. We agree with the district court that River
Watch’s proposed construction of § 9(a)(2)(B) is not tenable.
The potential for overbreadth posed by interpreting “areas
under Federal jurisdiction” as including all “waters of the
United States” is simply too large. The CWA, which defines
“waters of the United States,” provides for far-reaching regu-
latory authority based on “the evident breadth of congressio-
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nal concern for protection of water quality and aquatic
ecosystems.” Riverside Bayview Homes, Inc., 474 U.S. at 133.
Therefore, under River Watch’s proposed construction, with-
out any discussion or explanation, the FWS would immedi-
ately gain coextensive regulatory authority with the Corps.
The broad sweep of the Corps’ authority to regulate was
sharply debated in Rapanos, in which the Court split 4-1-4
with regard to the limits of the Corps’ regulatory jurisdiction
of non-adjacent wetlands on privately-owned land. The plu-
rality opinion characterized the Corps’ ability to regulate as
overly expansive, noting that “the Corps consciously sought
to extend its authority to the farthest reaches of the commerce
power.” Rapanos, 547 U.S. at 738 (citing 42 Fed. Reg.
37,122, 37,127 (1977)). Even Justice Kennedy’s controlling
concurrence is based on his concern about “the potential over-
breadth of the Corps’ regulations.” Id. at 782 (holding that the
Corps has jurisdiction on the basis of adjacency to regulate
wetlands adjacent to navigable-in-fact waters, but “must
establish a significant nexus on a case-by-case basis” if the
wetlands are adjacent to nonnavigable tributaries); see City of
Healdsburg, 496 F.3d at 999-1000 (noting that Justice Kenne-
dy’s concurrence in Rapanos “provides the controlling rule of
law”) (citing United States v. Gerke, 464 F.3d 723, 724-25
(7th Cir. 2006) (per curiam) (determining that Justice Kenne-
dy’s concurrence meets the test of Marks v. United States, 430
U.S. 188, 193 (1977) for determining the controlling holding
of Supreme Court case without a majority opinion)).
Moreover, River Watch’s reading could arguably be
expanded to apply to private lands which are subject to any
sort of federal regulatory jurisdiction by any federal statute,
i.e. everywhere. Such an interpretation would make the third
prong of § 9(a)(2)(B) mere surplusage. Although the first two
prongs of § 9(a)(2)(B) apply to “areas under Federal jurisdic-
tion,” the third prong applies to “any other area.” The third
prong’s prohibitions apply only when the person acts “in
knowing violation of any law or regulation of any State or in
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the course of any violation of a State criminal trespass law.”
16 U.S.C. § 1538(a)(2)(B). This prohibition makes sense only
if non-criminal trespassers who damage or destroy a listed
plant on private lands are generally not liable under the ESA.
[9] River Watch argues that this concern is far-fetched and
that we may narrowly hold that “waters of the United States”
are “areas under Federal jurisdiction.” We are not convinced
that it would be prudent to create such a piecemeal expansion
of the term “areas under Federal jurisdiction,” especially
when the FWS has not yet squarely addressed the issue.
While we recognize that “areas under Federal jurisdiction” or
“federal lands” surely includes areas under the control of the
federal government, i.e. through ownership, leasehold-estates,
or conservation easements, we do not interpret “areas under
Federal jurisdiction” to encompass wetlands that are adjacent
to navigable waters and therefore subject to only the regula-
tory jurisdiction of the Corps.
[10] In sum, we hold that River Watch has not established
that the plain language of the ESA mandates that “waters of
the United States” are “areas under Federal jurisdiction.” We
agree with the United States that the term is ambiguous, but
we conclude that, thus far, the FWS has not promulgated reg-
ulations or offered any guidance materials specifically
addressing this issue to which we must defer. We thus inter-
pret “areas under Federal jurisdiction” as not including all of
the “waters of the United States” as defined by the CWA and
its regulations. Although our ruling will constitute “binding
law,” we recognize that under Brand X, we are not the “au-
thoritative interpreter” of “areas under Federal jurisdiction.”
See 545 U.S. at 983. The FWS might have good reason to
issue regulations or guidance that more thoroughly addresses
this issue at some later date, and our decision does not fore-
close the possibility that the FWS might adopt some version
of the statutory construction set forth by River Watch. See id.
After all, the objective of the ESA, to provide a program and
means to conserve endangered species and their ecosystems,
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16 U.S.C. § 1531(b), is surely intertwined with that of the
CWA, “to restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251(a).
III. Conclusion
[11] For the reasons set forth above, we conclude that the
district court did not err in rejecting River Watch’s proposed
interpretation of “areas under Federal jurisdiction” in § 9 of
the ESA, and therefore affirm the grant of summary judgment
to Defendants.
AFFIRMED.
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