Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No. 3:06-CV-06685-CRB.
The opinion of the court was delivered by: Paez, Circuit Judge
Argued and Submitted July 14, 2009-San Francisco, California
Before: Dorothy W. Nelson, William A. Fletcher, and Richard A. Paez, Circuit Judges.
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").*fn1 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.*fn2 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 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 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 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.*fn3
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, 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, 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 adjacency to the Laguna de Santa Rosa.*fn4 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 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.*fn5 See 50 C.F.R. § 17.12 (listing Sebastopol meadowfoam as an endangered 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 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,*fn6 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.*fn7 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 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."*fn8 Id. at 1075-76, 1078. River Watch appealed.
Because the parties agree that there are no genuine issues of material fact, the predicate legal issue is ripe for summary judgment.*fn9 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 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, lease-hold estates, and special management areas." "[A]reas 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 (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 the 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 (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 (quoting Chevron, 467 U.S. at 845).
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 ...