Northern California River Watch v. Wilcox

ORDER

The unopposed motion of the United States, as amicus curiae, to clarify the court’s Opinion is granted as follows:

The Opinion, filed on August 25, 2010, and reported at 620 F.3d 1075 (9th Cir.2010), is amended as follows:

At Slip Op. 12801, [620 F.3d at 1089-90], the first full paragraph beginning with <the broad sweep > and ending with <a majority opinion)). > is deleted and replaced with:

*769The 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 plurality 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, 126 S.Ct. 2208 (citing 42 Fed.Reg. 37,122, 37,127 (1977)). Even Justice Kennedy’s concurrence is based on his concern about “the potential over-breadth of the Corps’ regulations.” Id. at 782, 126 S.Ct. 2208 (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). In City of Healdsburg, 496 F.3d at 999-1000, the court found that Justice Kennedy’s concurrence in Rapanos “provides the controlling rule of law for our case.” We did not, however, foreclose the argument that Clean Water Act jurisdiction may also be established under the plurality’s standard.

An Amended Opinion is filed concurrently with this Order.

OPINION

Robert Evans and Northern California River Watch (“River Watch”) appeal the district court’s grant of summary judgment to the Schellinger defendants and three employees of the California Department of Fish and Game (collectively “Defendants”).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 Defendants dug up and removed the endangered plant species, Sebastopol meadowfoam (Limnanthes vinculans) and, therefore, violated § 9 of the ESA, which makes it unlawful for anyone to “take” a listed plant on areas under federal jurisdiction.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 meadowfoam plants were growing were “areas under Federal jurisdiction.” On appeal, we consider the meaning of the term “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 designated 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 Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and that under Chevron the privately-owned land at issue in this case is not an “area[ ] under Federal jurisdiction.”

*770Although we agree that the term “areas under Federal jurisdiction” 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 comprised of grasslands containing seasonal vernal pools, wetlands, 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, 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, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006).

In the course of the Sehellingers’ 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 adjacency 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 Sehellingers 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 walking 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 C.F.R. § 17.12 *771(listing Sebastopol meadowfoam as an endangered plant species). A local biology professor determined that, although Evans had identified only the common meadow-foam, 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 Schelling-er, visited the Site in order to further 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 naturally 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 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 jurisdiction,” 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. Wilcox, 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 *772granted 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.

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 meadowfoam populations were discovered and removed is, as a matter of law, an “area[] under Federal jurisdiction” for purposes 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 respective 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, federal 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 “federal property interests such as conservation easements, leasehold estates, and special management areas.” “[Ajreas under Federal jurisdiction” does not include, the United States argues, privately-owned lands that are merely subject to regulatory 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 procedure” laid out in Chevron. See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). At step one, we evaluate whether Congressional intent regarding the meaning of the text in question is clear from the statute’s plain language. Id. If it is, we must give effect to that meaning. Id. If *773the statute is ambiguous, and an agency purports 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 delegated 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, 121 S.Ct. 2164, 150 L.Ed.2d 292 (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 interpretation of the statute is “a reasonable policy choice for the agency to make.” Brand X, 545 U.S. at 986, 125 S.Ct. 2688 (quoting Chevron, 467 U.S. at 845, 104 S.Ct. 2778).

River Watch and Defendants implicitly argue that our analysis 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 endangered plant species under the ESA and in a guidance manual. The United States argues that we should, therefore, defer to the FWS’s interpretation. We examine the parties’ arguments below, applying Chevron’s analytical framework.

A. Chevron Step One

In determining whether “areas under Federal jurisdiction” 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, 104 S.Ct. 2778; United States v. W.R. Grace & Co., 429 F.3d 1224, 1236 (9th Cir.2005). “If the intent of Congress 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, 104 S.Ct. 2778.

To determine if Congress has spoken directly to the meaning of “areas under Federal jurisdiction” in the ESA, “we employ the traditional tools of statutory construction.” Resident 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 provisions and to read the words of statutes in their context 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 history offers valuable guidance and insight into Congressional 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)).

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 threatened species....” 16 U.S.C. § 1531(b). Section 9 prohibits “any person subject to the ju*774risdiction 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 endangered 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 jurisdiction; 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).

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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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, 117 S.Ct. 843, 136 L.Ed.2d 808 (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 jurisdiction.” 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, 106 S.Ct. 455). Indeed, the Corps calls wetlands subject to the CWA, “jurisdictional wetlands,” Rapanos, 547 U.S. at 763, 126 S.Ct. 2208, and the Corps makes an “assertion of jurisdiction” 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 regulatory 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 Federal 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 supports River Watch’s arguments. It is clear from the statutory text that Congress did not intend for § 7 *775and § 9 to be coextensive. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 702-03, 115 S.Ct. 2407, 132 L.Ed.2d 597 (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 manifested 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 ‘represent the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation.’ ” Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984) (quoting Zuber v. Allen, 396 U.S. 168, 186, 90 S.Ct. 314, 24 L.Ed.2d 345 (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 preceded 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 jurisdiction” signals Congress’ clear intent that the terms are equivalent. 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 ambiguous and could arguably include lands over which the federal government maintains some interest, such as conservation 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 “federal 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 protection 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. *776at 12, reprinted in 1988 U.S.C.C.A.N. at 2711-12. The Senate Report further noted that “[additional 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 “private and other non-federal lands,” the 1988 Senate Report, like the 1982 House Report, fails to define “federal lands.”

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 jurisdiction” in the ESA, rather than “federal lands,” further confuses the issue. Therefore, we conclude that the meaning of the statutory 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 requirements set forth in Mead. See Wilcox, 547 F.Supp.2d at 1076.

B. Mead Requirements

Under Chevron, “ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.” Brand X, 545 U.S. at 980, 125 S.Ct. 2688. Chevron deference, however, applies only “when it appears that Congress delegated authority 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, 121 S.Ct. 2164.

Here, the FWS is the agency responsible for the protection 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 Home, 515 U.S. at 691 n. 2, 115 S.Ct. 2407. The Supreme Court has explained that “[t]he latitude the ESA gives the Secretary [of the Interior] in enforcing the statute, together with the degree of regulatory 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, 115 S.Ct. 2407; see also 16 U.S.C. § 1540(f).

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 exper*777tise 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 jurisdiction.” Cf. Rapanos, 547 U.S. at 766, 126 S.Ct. 2208 (noting that the Court permitted 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 Bayview Homes, Inc., 474 U.S. at 134, 106 S.Ct. 455); Sweet Home, 515 U.S. at 698, 115 S.Ct. 2407 (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 Mead for granting Chevron deference, that “the agency interpretation claiming deference was promulgated in the exercise of that authority,” is also met. Mead Corp., 533 U.S. at 227, 121 S.Ct. 2164. 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, 125 S.Ct. 2688. 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