Defenders of Wildlife; Center for Biological Diversity; Craig Miller v. UNITED STATES ENVIRONMENTAL  EPA No. PROTECTION AGENCY, 67-Reg. 79629

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 DEFENDERS OF WILDLIFE;
CENTER FOR BIOLOGICAL DIVERSITY;
CRAIG MILLER,
Petitioners,
v. No. 03-71439
UNITED STATES ENVIRONMENTAL  EPA No.
PROTECTION AGENCY, 67-Reg. 79629
Respondent,
NATIONAL ASSOCIATION OF HOME
BUILDERS; STATE OF ARIZONA;
ARIZONA CHAMBER OF COMMERCE,
Intervenors. 
 DEFENDERS OF WILDLIFE;
CENTER FOR BIOLOGICAL DIVERSITY;
CRAIG MILLER, No. 03-72894
Petitioners, No. CV-02-
v.  01195-CKJ
UNITED STATES ENVIRONMENTAL ORDER
PROTECTION AGENCY; ROBERT B.
FLOWERS,
Respondents. 
Filed June 8, 2006
Before: Stephen Reinhardt, David R. Thompson, and
Marsha S. Berzon, Circuit Judges.
6287

-- 1 of 24 --

Order;
Dissent by Judge Kozinski;
Dissent by Judge Kleinfeld;
Concurrence by Judge Berzon;
ORDER
The panel has voted to deny the petition for panel rehear-
ing. The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc.
FED. R. APP. P. 35. The request for panel rehearing and
rehearing en banc is DENIED. Judge Kozinski’s and Judge
Kleinfeld’s dissents from denial of en banc rehearing, and
Judge Berzon’s concurrence in denial of en banc rehearing,
are filed concurrently herewith.
KOZINSKI, Circuit Judge, with whom Judges
O’SCANNLAIN, KLEINFELD, TALLMAN, CALLAHAN
and BEA join, dissenting from denial of rehearing en banc:
Less than two years ago, the Supreme Court unanimously
reversed our interpretation of the National Environmental Pol-
icy Act (NEPA). See Dep’t of Transp. v. Pub. Citizen, 541
U.S. 752 (2004). Tone-deaf to the Supreme Court’s message,
the panel majority in this case interprets the Endangered Spe-
cies Act (ESA) in precisely the same incorrect way we inter-
preted NEPA, dramatically expanding agencies’ obligations
under the law. Along the way, the majority tramples all over
the Fish and Wildlife Service’s (FWS) reasonable interpreta-
tion of the ESA, deliberately creates a square inter-circuit
conflict with the Fifth and D.C. Circuits, and ignores at least
six prior opinions of our own court. Finally, the decision is
6288 DEFENDERS OF WILDLIFE v. EPA

-- 2 of 24 --

one of considerable importance to the federal government and
the states of our circuit. This is precisely the kind of case we
should take en banc to set our own house in order.
Background
The Clean Water Act (CWA) instructs that the Environ-
mental Protection Agency (EPA) “shall” transfer pollution
permitting authority to a state if the state’s proposal meets
nine criteria. See 33 U.S.C. § 1342(b). None of the criteria
involves consideration of endangered species. Arizona
applied to take over the CWA permitting process within its
borders—the forty-fifth state to do so. There is no dispute that
its proposal met all nine criteria listed in the CWA.
The EPA regional office in San Francisco, however, was
worried that the transfer might affect endangered species. See
16 U.S.C. § 1536(a)(2) (section 7(a)(2) of the ESA) (requiring
federal agencies to “insure” that their actions do not jeopar-
dize endangered species). It thus initiated consultation with
FWS pursuant to ESA section 7. The regional office also
stated publicly that section 7 required EPA to take endangered
species into account when making a transfer decision. FWS’s
local office in Arizona similarly expressed concerns about the
transfer.
Next, the matter was “elevated,” meaning the national
offices of EPA and FWS took over. After national-level dis-
cussions, FWS reversed course, recommending immediate
approval of the transfer. That agency issued a Biological
Opinion (BiOp) concluding that any impact of the transfer on
endangered species would be the unavoidable result of (1)
Congress’s decision to make ESA section 7 inapplicable to
the states, and (2) Congress’s decision to require transferring
the permitting process to the states, provided the nine criteria
were met (none of which included consideration of endan-
gered species). Thus, under FWS’s interpretation, the ESA
was inapplicable: EPA’s decision to grant the transfer could
6289 DEFENDERS OF WILDLIFE v. EPA

-- 3 of 24 --

not “cause” any impact on endangered species because the
decision was non-discretionary. Two days after receiving
FWS’s recommendation, EPA approved the transfer.
Discussion
In striking down EPA’s transfer approval, the majority
makes five fundamental blunders: First, it mistakes EPA’s
internal deliberations for analytical inconsistency. Second, the
majority fails to give appropriate deference to FWS’s inter-
pretation of the ESA. Third, the majority treats the ESA as
superior to all other laws, thereby nullifying a crucial ESA
regulation and forcing agencies to violate their governing stat-
utes. Fourth, the majority contradicts the Supreme Court’s
recent pronouncement in Public Citizen. Finally, the majority
dismisses the reasoned opinions of two other circuits, creating
a square conflict.
1. The majority first finds that EPA’s decisionmaking pro-
cess was internally inconsistent. See Defenders of Wildlife,
420 F.3d at 959-62. On the one hand, EPA stated several
times that the ESA required it to consider endangered species
before approving the transfer. On the other hand, the agency
concluded it had no discretion under the CWA to take endan-
gered species into account when making the transfer decision.
Thus, the majority finds, EPA’s decision “cannot stand.” Id.
at 962.
The majority makes a big fuss over the supposed internal
inconsistency in EPA’s reasoning, but the so-called problem
is of the panel’s own making. The only “inconsistency” is
between the San Francisco regional office’s interpretation of
the ESA and the interpretation by EPA headquarters in Wash-
ington, D.C. In other words, EPA changed its mind upon fur-
ther reflection at a higher level. The agency’s position is that
adopted by EPA at the national level; the position taken by
the agency’s regional office was simply overruled by the
national office in Washington. There is no inconsistency in
6290 DEFENDERS OF WILDLIFE v. EPA

-- 4 of 24 --

the agency’s final action, which is the only one we are entitled
to review. See 5 U.S.C. § 704.
The majority also points out that EPA’s final action in this
case was inconsistent with the actions it has taken when other
states have applied for a transfer. See Defenders of Wildlife,
420 F.3d at 952 n.3 (noting that all of EPA’s transfer deci-
sions since 1993—six besides Arizona—have taken endan-
gered species into account, whereas none before 1993 did).
But there is no indication that EPA’s deliberations in the other
cases were ever elevated to the national level. As far as we
know, this is the only case in which EPA’s Washington, D.C.
office has opined on the applicability of the ESA to the trans-
fer of the CWA permitting process. Moreover, an agency is
not locked into a particular position forever; it is entitled to
change its view over time. See Mesa Verde Constr. Co. v. N.
Cal. Dist. Council of Laborers, 861 F.2d 1124, 1130 (9th Cir.
1988) (en banc). EPA’s actions in other cases are irrelevant
to whether its analysis was internally inconsistent in this one.
In any event, the majority’s finding of an inconsistency in
EPA’s analysis, if correct, should have been the end of the
case; the majority should have remanded to EPA for further
clarification, as the agency asked the panel to do. See Defend-
ers of Wildlife, 420 F.3d at 969 n.19. Even the majority itself
says it “must remand” to EPA for clarification. See id. at 962.
Instead, it embarks on a 17-page boondoggle, conducting the
very analysis that EPA should have had an opportunity to
conduct for itself. See Gonzales v. Thomas, 126 S. Ct. 1613,
1614 (2006) (“The Ninth Circuit’s failure to remand is legally
erroneous, and that error is ‘obvious in light of Ventura,’ itself
a summary reversal.”).
2. In faulting EPA for its alleged internal inconsistencies,
the majority misconstrues the way the ESA was meant to
operate. Under the ESA, a federal agency must consider
whether its action “may affect” endangered species. 50 C.F.R.
§ 402.14(a). If the agency thinks endangered species might be
6291 DEFENDERS OF WILDLIFE v. EPA

-- 5 of 24 --

affected, it must ask FWS whether its supposition is correct—
whether its action would, in fact, affect endangered species—
and, if so, what the impact on endangered species will be. See
id.; id. §§ 402.14(e), (h). Then, FWS must respond by issuing
a BiOp that the agency must take into account before making
its decision. See id. §§ 402.14(e), 402.15(a).
In this case, EPA was initially concerned that its approval
of Arizona’s transfer application might affect endangered spe-
cies. EPA does not administer the ESA, so it doesn’t have the
expertise to know for sure. See Am. Forest & Paper Ass’n v.
EPA, 137 F.3d 291, 297 (5th Cir. 1998). In order to find out
whether its transfer approval would, in fact, affect endangered
species, EPA did exactly what it was supposed to do: It asked
FWS, the agency that is charged with administering the ESA.
See United States v. McKittrick, 142 F.3d 1170, 1174 (9th
Cir. 1998). And FWS did exactly what it was supposed to do:
It responded with a BiOp informing EPA that its approval
would not, in fact, affect endangered species. See p. 6289
supra. With this advice from the congressionally designated
experts in hand, EPA decided that its initial concerns were
unfounded and that it could go forward with the transfer
approval.
The majority finds this perfectly logical sequence of events
to be “nonsensical” and impermissible. See Defenders of
Wildlife, 420 F.3d at 961. According to the majority, once
EPA expressed concern that its action might affect endan-
gered species, it had already conclusively determined that its
decision was governed by the ESA. See id. In other words,
under the majority’s interpretation, once FWS is consulted for
guidance, it is precluded from ever determining that the ESA
is inapplicable.
With all due respect to my colleagues, it is their conclusion
that is nonsensical, undermining the entire consultative pro-
cess that the ESA establishes and striking down FWS’s per-
fectly reasonable interpretation of the ESA. The majority
6292 DEFENDERS OF WILDLIFE v. EPA

-- 6 of 24 --

forgets that FWS is the agency charged with administering the
ESA, and that its interpretation of the ESA is thus entitled to
Chevron deference. See Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 515 U.S. 687, 703 (1995)
(citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984)). Here, FWS determined—after careful
study at the local and national levels—that the ESA was inap-
plicable to EPA’s decision, and it issued a BiOp relaying its
conclusion to the EPA. The majority cannot overturn FWS’s
statutory interpretation simply because it disagrees with it.
3. Having decided to conduct—on its own—the very analy-
sis that FWS already conducted, the majority comes out the
other way, getting it flatly wrong. The majority concludes that
section 7 of the ESA required EPA to take endangered species
into account when making the transfer decision, notwithstand-
ing the plain contrary language of the CWA. It thus trans-
formed the ESA into an overriding mandate that trumps an
agency’s obligations under its own governing statute. See
Defenders of Wildlife, 420 F.3d at 963-67.
Further, the majority handily disposes of a regulation
issued by FWS that was supposed to limit ESA’s applicability
to “actions in which there is discretionary Federal involve-
ment or control.” 50 C.F.R. § 402.03 (emphasis added).
Unable to reconcile this regulation with its newly expansive
interpretation of the ESA’s mandate, the majority simply
finds that the word “discretionary” in the regulation is mean-
ingless; the regulation, announces the majority, is “cotermi-
nous” with the statute it interprets. See Defenders of Wildlife,
420 F.3d at 967-69. In other words, despite FWS’s regulation,
the majority finds that the ESA applies to anything “autho-
rized, funded, or carried out” by a federal agency, 16 U.S.C.
§ 1536(a)(2), whether discretionary or not. Again, the major-
ity fails to give FWS the deference it is due.1
1The majority points out that “§ 402.03 is a regulation, not a statute,”
Defenders of Wildlife, 420 F.3d at 969 n.19, as if that somehow robs its
6293 DEFENDERS OF WILDLIFE v. EPA

-- 7 of 24 --

In his dissent, Judge Thompson succinctly identifies the
serious flaws in the majority’s analysis. He points out that
EPA had no authority under the CWA to consider endangered
species when making the transfer decision. And he explains
that the majority’s interpretation of the scope of ESA’s appli-
cability contradicts our precedents: “[W]e have consistently
recognized that an agency may have decisionmaking authority
and yet not be empowered . . . to act to protect endangered
species.” Defenders of Wildlife, 420 F.3d at 979-80 (Thomp-
son, J., dissenting) (citing six Ninth Circuit precedents that
contradict the majority’s holding). Once the nine criteria were
met, the dissent concludes, the CWA mandated the transfer;
nothing in ESA section 7 allows—let alone requires—the
EPA to ignore the clear language of the CWA. See id. at 980-
81.2
4. The majority’s superfluous holding—that ESA forces an
agency to consider the impact of its decisions on endangered
species, even when the agency’s governing statute precludes
it from doing so—also flies in the face of Public Citizen,
where the Supreme Court unanimously reversed our interpre-
tation of NEPA. See 541 U.S. at 770, 773.
The issue in Public Citizen was whether NEPA “require[s]
the Federal Motor Carrier Safety Administration (FMCSA) to
interpretation of deference. But FWS issued the regulation in question. See
id. at 951 n.1. Its interpretation of the regulation is therefore also entitled
to “substantial deference.” Martin v. Occupational Safety & Health
Review Comm’n, 499 U.S. 144, 150 (1991) (internal quotation marks
omitted).
2We cannot presume that Congress repealed the CWA’s categorical
mandate sub silentio, simply by passing the ESA. See n.4 infra. But even
if we were inclined to believe, as the panel majority does, that the CWA
and ESA need to be reconciled, FWS’s regulation is a perfectly plausible
way to do so: By limiting the ESA’s applicability to “discretionary”
agency actions, 50 C.F.R. § 402.03, the regulation avoids the supposed
conflict the majority has created between the ESA and governing statutes
—like the CWA—that mandate agency action.
6294 DEFENDERS OF WILDLIFE v. EPA

-- 8 of 24 --

evaluate the environmental effects of cross-border operations
of Mexican-domiciled motor carriers” before deciding
whether to grant registration to Mexican trucks. Id. at 756.
NEPA’s language, regarding when and how an agency must
take into account the impact of its actions on the environment,
is similar to ESA’s language regarding endangered species.
Compare 42 U.S.C. § 4332(2)(C) and 40 C.F.R. § 1508.18,
with 16 U.S.C. § 1536(a)(2) and 50 C.F.R. § 402.03. And the
FMCSA’s governing statute, like the CWA, instructs that the
agency “shall” grant registration to any carrier meeting certain
criteria, none of which involves environmental concerns. See
49 U.S.C. § 13902(a)(1).
In upholding the agency’s decision to grant registration
without taking into account the environmental impact of Mex-
ican trucks, the Supreme Court stressed that “FMCSA has
only limited discretion regarding motor vehicle carrier regis-
tration: It must grant registration to all domestic or foreign
motor carriers that are willing and able to comply with the
applicable . . . requirements. FMCSA has no statutory author-
ity to impose or enforce emissions controls or to establish
environmental requirements unrelated to motor carrier safe-
ty.” Id. at 758-59 (internal quotation marks and citation omit-
ted). The Supreme Court concluded that “where an agency
has no ability to prevent a certain effect due to its limited stat-
utory authority over the relevant actions, the agency cannot be
considered a legally relevant ‘cause’ of the effect.[3] Hence,
under NEPA . . . the agency need not consider these effects
. . . . [B]ecause FMCSA has no discretion to prevent the entry
of Mexican trucks, [it] did not need to consider the environ-
mental effects arising from the entry.” Public Citizen, 541
U.S. at 770.
3The majority quotes this sentence verbatim from Public Citizen.
Defenders of Wildlife, 420 F.3d at 963. But, instead of recognizing that
this language controls the case, the majority uses it as a springboard to
launch into its unnecessary analysis.
6295 DEFENDERS OF WILDLIFE v. EPA

-- 9 of 24 --

The Supreme Court’s holding in Public Citizen applies
equally to this case: Because EPA had no discretion under the
CWA to prevent the transfer of permitting authority to Ari-
zona, it did not need to consider the transfer’s effects on
endangered species. The majority’s contrary conclusion can-
not be reconciled with the Supreme Court’s unanimous deci-
sion.4
4Judge Berzon’s concurrence dismisses Public Citizen as “entirely unin-
formative,” concurrence at 6308, by labeling NEPA as a “strictly proce-
dural statute” and the ESA as a “partially substantive statute,” id. at 6307.
What Judge Berzon must be arguing is that the ESA effected a sub silentio
repeal of EPA’s categorical obligation under the CWA, so that the statu-
tory “shall” was foreshortened to “may.” There is absolutely no indication
that Congress meant to do any such thing and we should long hesitate
before concluding that it did this unknowingly. See Watt v. Alaska, 451
U.S. 259, 267 (1981) (noting the maxim of statutory interpretation that
“repeals by implication are not favored,” and stating that “[t]he intention
of the legislature to repeal must be clear and manifest” (internal quotation
marks omitted)); id. at 280 (Stewart, J., dissenting) (“The maxim that
‘repeals by implication are disfavored’ has force when the argument is
made that a general statute . . . eviscerates an earlier and more specific
enactment of limited coverage but without an indication of congressional
intent to do so.”); see also Ex parte Yerger, 8 Wall. 85, 105 (1869)
(“Repeals by implication are not favored. They are seldom admitted
except on the ground of repugnancy; and never, we think, when the former
act can stand together with the new act.”).
If the ESA were as powerful as the majority contends, it would modify
not only EPA’s obligation under the CWA, but every categorical mandate
applicable to every federal agency. We should be particularly chary of
holding that the ESA made such sweeping changes when the agency
charged with implementing the statute has adopted a regulation allowing
the ESA to coexist peacefully with all categorical mandates. See 50 C.F.R.
§ 402.03; n.2 supra. There is no justification for nullifying countless con-
gressional directives by casting aside the agency’s authoritative interpreta-
tion of the ESA, formally adopted pursuant to notice and comment
procedures.
Unless one buys into the dubious proposition that Congress somehow
repealed the term “shall” in 33 U.S.C. § 1342(b), this case is a carbon
copy of Public Citizen. “Shall” means shall here as it did there; thus EPA
has no discretion to deny the transfer once the nine statutory criteria are
satisfied. See Kleinfeld dissent at 6300. Just as in Public Citizen, the agen-
6296 DEFENDERS OF WILDLIFE v. EPA

-- 10 of 24 --

5. Finally, the majority opinion squarely, and admittedly,
conflicts with the Fifth and D.C. Circuits. See Defenders of
Wildlife, 420 F.3d at 970. In American Forest & Paper Ass’n
v. EPA, the Fifth Circuit considered precisely the same ques-
tion at issue in this case: whether the ESA imposes its own
criteria on EPA’s decision to transfer CWA permitting author-
ity to a state—in that case, Louisiana—or whether the nine
factors enumerated in the CWA are, as the plain text of the
statute requires, an exhaustive list that precludes consideration
of endangered species. See 137 F.3d 291, 297-99 (5th Cir.
1998).
In American Forest, unlike in this case, the EPA wanted to
condition the transfer of the permitting process on protection
of endangered species. But the Fifth Circuit determined—in
direct contradiction to the majority here—that “[t]he [CWA’s]
plain language directs EPA to approve proposed state pro-
grams that meet the enumerated criteria; particularly in light
of the command ‘shall approve,’ [the CWA] cannot be con-
strued to allow EPA to expand the list of permitting require-
ments” to include consideration of endangered species. Id. at
298. Further, when EPA argued that the ESA compelled it to
consider endangered species, the Fifth Circuit interpreted sec-
tion 7(a)(2) of the ESA to mean exactly the opposite of the
majority’s holding:
[I]f EPA lacks the power to add additional criteria to
CWA § 402(b), nothing in the ESA grants the
cy’s action—granting the transfer—is not a legally relevant “cause” of any
impact on endangered species because the agency had no discretion in the
matter once the statutory criteria were met. See 541 U.S. at 769.
When we are confronted with a question of statutory interpretation, we
must take into account the Supreme Court’s previous interpretation of
highly similar words in an analogous situation, even if the two cases are
not “identical.” Concurrence at 6305. It is no doubt symptomatic of my
“myopic” view of the world, id. at 6307, but I believe we should treat
Supreme Court pronouncements as binding, not as mere hazards to navi-
gation.
6297 DEFENDERS OF WILDLIFE v. EPA

-- 11 of 24 --

agency the authority to do so. Section 7 of the ESA
. . . confers no substantive powers.
. . . [T]he ESA serves not as a font of new authority,
but as something far more modest: a directive to
agencies to channel their existing authority in a par-
ticular direction. The upshot is that EPA cannot
invoke the ESA as a means of creating and imposing
requirements that are not authorized by the CWA.
Id. at 298-99 (second emphasis added) (footnote omitted). In
recognition of the circuit split it is creating, the majority dis-
misses the Fifth Circuit’s reasoning out of hand, calling it a
“fundamental misconception” and “simply incorrect.”
Defenders of Wildlife, 420 F.3d at 971.
The D.C. Circuit has also considered the ESA’s power to
override the mandate of an agency’s governing statute. See
Platte River Whooping Crane Critical Habitat Maint. Trust v.
FERC, 962 F.2d 27, 32-33 (D.C. Cir. 1992). Under the Fed-
eral Power Act, the Federal Energy Regulatory Commission
(FERC) was precluded from amending the annual licenses it
gave to a hydroelectric plant, and thus could not insert wild-
life protective conditions into the license upon renewal. See
id. at 32. Petitioners alleged, however, that notwithstanding
the Federal Power Act, section 7 of the ESA required FERC
to impose such conditions on the licensee. See id. at 33. The
D.C. Circuit disagreed:
The Trust reads section 7 essentially to oblige the
Commission to do “whatever it takes” to protect the
threatened and endangered species that inhabit the
Platte River basin; any limitations on FERC’s
authority contained in the [Federal Power Act] are
implicitly superseded by this general command. . . .
We think the Trust’s interpretation of the ESA is far-
fetched. As the Commission explained, the statute
directs agencies to “utilize their authorities” to carry
6298 DEFENDERS OF WILDLIFE v. EPA

-- 12 of 24 --

out the ESA’s objectives; it does not expand the
powers conferred on an agency by its enabling act.
Id. at 34. Like the Fifth Circuit, the D.C. Circuit’s interpreta-
tion of the ESA directly contradicts the majority’s holding in
this case. But again, the majority dismisses its sister circuit’s
reasoning as “cursory” and unpersuasive. Defenders of Wild-
life, 420 F.3d at 971.5
* * *
The majority’s opinion has far-reaching effects on the
scope of the Endangered Species Act. Its holding—that the
ESA imposes an affirmative duty on a federal agency to pro-
tect endangered species, even in the face of a governing stat-
ute that explicitly precludes the agency from doing so—
contradicts FWS’s statutory interpretation, ignores the very
recent instructions of the Supreme Court, and creates a con-
flict with two other circuits. And for what? All EPA asks for
is to have an opportunity to clarify its position on the issue,
and explain why its decision to transfer permitting authority
5The majority concedes the conflict with the Fifth and D.C. Circuits but
claims it is merely taking sides in a preexisting conflict, because the First
and Eighth Circuits have issued opinions agreeing with its position. See id.
at 970-71 (citing Conservation Law Found. v. Andrus, 623 F.2d 712 (1st
Cir. 1979), and Defenders of Wildlife v. EPA, 882 F.2d 1294 (8th Cir.
1989)). The First and Eighth Circuit cases, however, do not support the
majority’s position. Both cases addressed situations where the governing
statute and the ESA were complementary, not where the governing statute
precluded consideration of endangered species as the CWA does. See
Andrus, 623 F.2d at 715 (“[T]he assumption that the ESA and OCSLA are
mutually exclusive . . . is incorrect—the standards of these two acts are
complementary, and the ESA will continue to apply of its own force
. . . .”); Defenders of Wildlife, 882 F.2d at 1299 (“FIFRA does not exempt
the EPA from complying with ESA requirements when the EPA registers
pesticides.”). Neither circuit held, as the majority in this case does, that the
ESA trumps the governing statute, or that the ESA applies when the gov-
erning statute precludes agency discretion regarding endangered species.
The inter-circuit conflict is entirely of the panel’s own making.
6299 DEFENDERS OF WILDLIFE v. EPA

-- 13 of 24 --

to Arizona made sense. Even more recent Supreme Court
instructions emphatically command us to do just that. See
Thomas, 126 S. Ct. at 1614-15. The majority’s stubborn
refusal to give the agency that opportunity before vacating its
transfer decision has put us in a highly precarious position
vis-à-vis the executive branch, the states, the other circuits
and the Supreme Court. We should have taken the case en
banc and fixed the problems ourselves.
KLEINFELD, Circuit Judge, dissenting from denial of rehear-
ing en banc:
I join in Judge Kozinski’s thorough dissent, but write sepa-
rately to show just how simple this case should have been. As
Judge Thompson pointed out in his dissent from the panel’s
decision, the statute is mandatory. Congress commands that
the agency “shall approve” state programs “unless” one or
more of nine conditions are not met. The “shall/unless” for-
mula makes the nine condition list exclusive, and courts can-
not add conditions to the list.1 The language has the look of
a careful legislative compromise necessary to get the votes for
passage.2 The statute leaves no room for conditions ten,
eleven, or whatever else we may think Congress should have
added.3
1See, e.g., Department of Transp. v. Public Citizen, 541 U.S. 752, 767
(2005).
2Cf. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1113
(9th Cir. 2000) (“Legislation often results from a delicate compromise
among competing interests and concerns. If we were to ‘fully effectuate’
what we take to be the underlying policy of the legislation, without careful
attention to the qualifying words in the statute, then we would be overturn-
ing the nuanced compromise in the legislation, and substituting our own
cruder, less responsive mandate for the law that was actually passed.”).
3Cf. Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312-13 (9th
Cir. 1992).
6300 DEFENDERS OF WILDLIFE v. EPA

-- 14 of 24 --

BERZON, Circuit Judge, concurring in the order denying the
petition for rehearing en banc:
I.
I begin by explaining why I am writing this concurrence:
A practice has developed in this court of writing dissents from
denial of rehearing en banc consideration as a matter of rou-
tine. Those dissents sometimes read more like petitions for
writ of certiorari than judicial opinions of any stripe. They
pose a dilemma for those who believe the original opinion
correct, as they may raise issues not addressed by that opinion
because not articulated by the parties before the petition for
rehearing stage—or ever.
The result, absent some response, is a distorted presentation
of the issues in the case, creating the impression of rampant
error in the original panel opinion although a majority—often
a decisive majority—of the active members of the court either
perceived no error or thought the case not one of much conse-
quence. At the same time, answering the newly raised conten-
tions by amending the panel opinion is usually not feasible.
The court has voted not to rehear en banc the original opinion
and ought not to have to accept a new version without a sec-
ond opportunity to determine whether the opinion deserves en
banc consideration. The result, quite obviously, could be a
form of infinite regression which precludes us from ever
finally deciding the case.
In this case, Judge Kozinski writes an impassioned dissent
from denial of en banc consideration, accusing the panel
majority of all manner of judicial perfidy. The problem is that
his accusations are either flat wrong or indicate a misunder-
standing of the holdings in the panel opinion. As the author
of the panel opinion, I have no choice but to try to set the
record straight. So as to avoid establishing a new tradition of
group concurrences in denial of en banc to match the group
6301 DEFENDERS OF WILDLIFE v. EPA

-- 15 of 24 --

dissents, I intentionally write for myself alone, without the
concurrence of any of my colleagues.
II.
The majority opinion in Defenders of Wildlife v. EPA, 420
F.3d 946 (9th Cir. 2005), if carefully read, contains responses
to most of the baseless attacks that Judge Kozinski has
dropped upon it. Among other errors in the dissent from
denial of rehearing en banc that are exposed in the opinion
are:
(1) the notion that the national Environmental Protection
Agency (EPA) did not endorse in this case the position that
the Endangered Species Act requires consultation with regard
to Clean Water Act permitting decisions, Kozinski Dissent at
6290-91, when it did, see Defenders of Wildlife, 420 F.3d at
959-60;1
1Judge Kozinski insists that “[a]ll EPA asks for is to have an opportu-
nity to clarify its position on the issue, and explain why its decision to
transfer permitting authority to Arizona made sense.” Kozinski Dissent at
6299-6300; see also id. at 6291. In fact, in its petition for rehearing en
banc the EPA quarreled at length with the merits of the majority opinion,
and, building upon Judge Thompson’s dissent, asserted an intracircuit con-
flict. The possibility of a remand for clarification of the agency’s interpre-
tation of the statute is mentioned in a single footnote and only with regard
to the portion of the opinion that discusses EPA’s prior inconsistent posi-
tions (an inconsistency which, unlike Judge Kozinski, the EPA does not
dispute).
Furthermore, Judge Kozinski’s citation to Gonzales v. Thomas, 126
S. Ct. 1613 (2006) is inapposite. In Thomas, the Supreme Court faulted
this court for not giving the agency an opportunity to decide an issue in
the first instance. Here, in contrast, the EPA did decide that a transfer was
appropriate and that it did not have the authority to consider the impact on
endangered and threatened species of the transfer decision. We disagreed
with both conclusions. Now, the EPA wants to decide the issue again,
explaining its reasoning once more. INS v. Ventura, 537 U.S. 12 (2002),
does not require that an agency have two chances to consider a factual or
legal question before appellate review, only one. Further, the majority
opinion ultimately does remand the transfer decision for consideration on
proper legal grounds.
6302 DEFENDERS OF WILDLIFE v. EPA

-- 16 of 24 --

(2) the repeated assertion that section 401 of the Clean
Water Act “precludes” application of the plain language of
section 7 of the after-enacted Endangered Species Act, Kozin-
ski Dissent at 6294, when the pertinent part of the Clean
Water Act does not mention the Endangered Species Act at
all, see Defenders of Wildlife, 420 F.3d at 963-69;
(3) the insistence that the Endangered Species Act does not
apply to any action “authorized, funded, or carried out” by a
federal agency, Kozinski Dissent at 6293, when that is exactly
what section 7(a)(2) says, in a perfectly clear statutory
requirement that may not be contravened by an interpretative
regulation, see Chevron U.S.A., Inc. v. Natural Res. Def.
Counsel, 476 U.S. 837, 842-43 & n.9 (1984); Defenders of
Wildlife, 420 F.3d at 969;
(4) the allegation that there was not a preexisting circuit
split, even though Defenders of Wildlife v. EPA, 882 F.2d
1294 (8th Cir. 1989), and Conservation Law Foundation v.
Andrus, 623 F.2d 712 (1st Cir. 1979), held that agencies do
have to comply with the Endangered Species Act as well as
their own governing statutes, see Defenders of Wildlife, 420
F.3d at 970;
(5) the contention that the analysis contained in Platte
River Whooping Crane Critical Habitat Maintenance Trust v.
Federal Energy Regulatory Commission, 962 F.2d 27, 34
(D.C. Cir. 1992), and American Forest & Paper Ass’n v. U.S.
Environmental Protection Agency, 137 F.3d 291, 293-94 (5th
Cir. 1998), is more accurate than the analysis in Defenders of
Wildlife, even though those cases rely on the language of sec-
tion 7(a)(1) and disregard the quite different wording of sec-
tion 7(a)(2), see Defenders of Wildlife, 420 F.3d at 970-71;
(6) the statement that American Forest decided precisely
the same question addressed in Defenders of Wildlife, Kozin-
ski Dissent at 6297, when the issue in that case was not what
factors the EPA must consider in making the transfer decision
6303 DEFENDERS OF WILDLIFE v. EPA

-- 17 of 24 --

but whether the EPA must impose Endangered Species Act
requirements on the states as a condition of transfer;
(7) the accusation that the panel opinion “ignor[ed] at least
six prior opinions of our own court,” Kozinski Dissent at
6288, when the panel opinion discusses and distinguishes
those opinions at some length, Defenders of Wildlife, 420 F.3d
at 967-69; and
(8) the assertion that the Fish and Wildlife Service’s (FWS)
position regarding the impact of the transfer is entitled to
Chevron deference, Kozinski Dissent at 6293, even though
that position required, in part, an interpretation of the Clean
Water Act, over which the FWS has no regulatory power, 33
U.S.C. § 1251(d) (designating the Administrator of the EPA
to “administer this chapter”).2
2Judge Kozinski also insists that the majority opinion “presume[s] that
Congress repealed the CWA’s categorical mandate sub silentio, simply by
passing the ESA.” Kozinski Dissent at 6294 n.2. As the opinion makes
clear, we do not see the Endangered Species Act as repealing any part of
the Clean Water Act. Rather, the Endangered Species Act, a later-enacted
statute, adds one requirement to the list of considerations under the Clean
Water Act permitting transfer provision. The repeal accusation places
entirely too much weight on the word “shall,” supposing that it shuts out
any and all additional federal requirements concerning federal decision-
making.
Moreover, if the precept disfavoring repeals by implication does apply,
the very definite, unqualified language of the after-enacted Endangered
Species Act must still prevail. See United Ass’n of Journeymen v. Reno,
73 F.3d 1134, 1140 (D.C. Cir. 1996) (finding that a specific, detailed pro-
vision precludes operation of an earlier-enacted general statute that would
otherwise apply); id. at 1142 (Edwards, J., dissenting) (noting that the spe-
cific provision did not mention the other provision or statute at issue in the
case); see also Tenn. Valley Auth. v. Hill, 437 U.S. 153, 188 (1978) (not-
ing that Congress expressly limited the Endangered Species Act’s “broad
sweep” in certain, enumerated situations, and because of such express lim-
itations “we must presume that these were the only ‘hardship cases’ Con-
gress intended to exempt”).
6304 DEFENDERS OF WILDLIFE v. EPA

-- 18 of 24 --

There is, however, one point upon which Judge Kozinski
places much stock—perhaps more than on any other—that is
not addressed in the majority panel opinion. The reason for
the lapse is not that Judge Kozinski is correct in his emphatic
assertions regarding Department of Transportation v. Public
Citizen, 541 U.S. 752 (2004), but that he is so wrong that
there was no reason we would have addressed his argument
in the first instance.
III.
Judge Kozinski boldly asserts that the panel opinion “flies
in the face of Public Citizen.” The assertion that the two cases
are identical, even similar, misunderstands both Public Citi-
zen and Defenders of Wildlife itself, while ignoring a Supreme
Court case that is closely on point, Tennessee Valley Authority
v. Hill, 434 U.S. 153 (1978).
The Endangered Species Act, at issue in Defenders of Wild-
life, sets a substantive requirement that all agencies must fol-
low. As Tennessee Valley Authority states, the Endangered
Species Act “affirmatively command[s] all federal agencies
‘to insure that actions authorized, funded, or carried out by
them do not jeopardize the continued existence’ of an endan-
gered species.” Defenders of Wildlife, 420 F.3d at 964 (quot-
ing Tenn. Valley Auth., 437 U.S. at 173).
Public Citizen concerned an entirely different environmen-
tal statute, the National Environmental Policy Act (NEPA).
NEPA, in contrast to the Endangered Species Act, establishes
only the requirement that environmental impact must be con-
sidered when making certain federal decisions. See 42 U.S.C.
§ 4332(2)(C) (requiring a statement of environmental impact
for “major Federal actions” but requiring no federal response
to any environmental impact demonstrated); Public Citizen,
541 U.S. at 756-57 (citing Robertson v. Methow Valley Citi-
zens Council, 490 U.S. 332, 350 (1989)).
6305 DEFENDERS OF WILDLIFE v. EPA

-- 19 of 24 --

Public Citizen concerned a congressionally enacted morato-
rium prohibiting certain motor carriers from obtaining operat-
ing authority within the United States and authorizing the
President to lift the moratorium. Id. at 759. In 2002, the Presi-
dent lifted the moratorium with respect to Mexican motor
carriers. Id. at 762. The Federal Motor Carrier Safety Admin-
istration, the agency with authority to grant registration to for-
eign motor carriers, issued rules for monitoring Mexican
motor carriers. Id. Petitioners sued, claiming that the rules
were promulgated in violation of NEPA and the Clean Air
Act. Id.
The Supreme Court rejected petitioners’ arguments. Perti-
nent here is the Court’s discussion of NEPA, as that is the
portion of Public Citizen with which Judge Kozinski claims
Defenders of Wildlife is in conflict.3 Critically for present pur-
poses, NEPA is a procedural statute only, see id. at 756; it
provides specific steps that must be taken before making deci-
sions with regard to major actions that the agency has author-
ity to undertake, but does not direct that environmental
considerations actually influence the action.4 In contrast, the
3It is worth noting also that, as Public Citizen recognized, NEPA
requires an agency to provide an Environmental Impact Statement only “if
it will be undertaking a ‘major Federal actio[n],’ which ‘significantly
affect[s] the quality of the human environment.’ ” Id. at 763 (quoting 42
U.S.C. § 4332(2)(C)) (emphasis added). There is no requirement of a
“major Federal actio[n]” in the Endangered Species Act; any “action
authorized, funded, or carried out by the agency” will do. 16 U.S.C.
§ 1536(a)(2).
442 U.S.C. 4332(2)(C) reads:
[A]ll agencies of the Federal Government shall . . . include in
every recommendation or report on proposals for legislation and
other major Federal actions significantly affecting the quality of
the human environment, a detailed statement by the responsible
official on—(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented, (iii) alternatives to the pro-
posed action, (iv) the relationship between local short-term uses
of man’s environment and the maintenance and enhancement of
long-term productivity, and (v) any irreversible and irretrievable
commitments of resources which would be involved in the pro-
posed action should it be implemented.
6306 DEFENDERS OF WILDLIFE v. EPA

-- 20 of 24 --

Endangered Species Act provides that in taking any action
authorized, funded, or carried out by the agency, any agency
must meet a substantive requirement—it must not threaten
listed species. See Hill, 437 U.S. at 188 n.34 (distinguishing
NEPA, as a procedural statute, from the Endangered Species
Act, as a substantive statute).
Public Citizen considered whether the Department of
Transportation (DOT) was required to “take into account the
environmental effects of increased cross-border operations of
Mexican motor carriers.” Id. at 765. The Supreme Court held
that the agency was not required to do so, because it “has no
ability to countermand the President’s lifting of the morato-
rium or otherwise categorically to exclude Mexican carriers
from operating within the United States.” Id. at 766. In other
words, NEPA’s purposes would not be served by requiring
the agency to engage in NEPA’s procedural steps with regard
to a decision it could not make. Id. at 769. Because the DOT
in Public Citizen had no authority to determine whether to
allow in the Mexican trucks, it had no occasion under NEPA
to consider environmental factors in making such a decision.
Here, the central question concerns whether EPA has a sub-
stantive responsibility and authority, created by the Endan-
gered Species Act itself, to refrain from taking action that
threatens listed species. If it does, then there is nothing futile
about considering whether endangered species will be
affected, for that is the inquiry the statute dictates.
The difference between NEPA, a strictly procedural statute,
and the Endangered Species Act, a partially substantive stat-
ute, is critical. Public Citizen determined because there was
no statutory authority for the Department of Transportation to
ban the Mexican trucks for environmental reasons, there were
therefore no procedures mandated by NEPA to inform the
phantom decision. Only the most myopic observer could fail
to see the difference between a statute that simply provides a
procedure to inform decisionmaking processes governed
6307 DEFENDERS OF WILDLIFE v. EPA

-- 21 of 24 --

entirely by other statutes from one that sets a substantive deci-
sionmaking requirement.
The central dispute in this case concerns the reach of the
substantive mandate of section 7 of the Endangered Species
Act. The question in this case is one specific to the Endan-
gered Species Act and depends only on the particular lan-
guage, history, and administrative application of that statute.
As to that question, Public Citizen, a case that has nothing to
do with the Endangered Species Act here at issue and that
construed a statute with no substantive import, emphatically
does not “appl[y] equally to this case.” Kozinski Dissent at
6296. Instead, Public Citizen is entirely uninformative on the
key legal point in this case.
6308 DEFENDERS OF WILDLIFE v. EPA

-- 22 of 24 --

-- 23 of 24 --

PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2006 Thomson/West.

-- 24 of 24 --