UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


SW CTR BIO DIVRSTY

v.

BABBITT, BRUCE


99-5313a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: The only issue raised on appeal in  this case is
whether the Endangered Species Act ("Act")  requires the Fish and
Wildlife Service to conduct an on-site  population count of birds when
the currently available data  are sparse and calculations of a bird
species population must  of necessity be based on estimates. The Act
provides that  the Secretary of the Interior must make decisions
whether to  list a species as endangered or threatened "solely on the
basis  of the best scientific and commercial data available to 
him...." 16 U.S.C. s 1533(b)(1)(A) (1994). Appellees, the  Southwest
Center for Biological Diversity, et al., ("Center"),  argued below
that the best available evidence demonstrates  that the Fish and
Wildlife Service should list the Queen  Charlotte goshawk as a
threatened or endangered species  under 16 U.S.C. s 1533. Appellants,
Bruce Babbitt, et al.,  ("Government") countered that the data did not
compel such  a listing. The principal dispute between the parties
before  the District Court was over what to make of the best avail-
able data, not whether such data existed. The District Court, 
however, sidestepped the parties' real dispute and concluded  instead
that the best available data simply was not good  enough.


Indeed, instead of resolving the parties' dispute on the  basis of the
best available data in the record, the District  Court issued an order
remanding the case back to the Fish  and Wildlife Service with
instructions to count the goshawk  population. See Southwest Ctr. for
Biological Diversity v.  Babbitt, Civ. No. 98-934, Order (D.D.C. July
20, 1999) ("Or- der"), reprinted in Joint Appendix ("J.A.") 1973.
Appellants  now challenge this order, claiming that the District
Court's  decision is completely at odds with the statute. We agree. 
The statute provides that the Secretary's decision must be  made
"solely on the basis of the best scientific and commer-


cial data available to him." Therefore, on the record at hand,  the
District Court was without authority to order the Secre- tary to
conduct an independent population count of the birds.  Accordingly, we
reverse the District Court's order, and we  remand the case to the
District Court for proper consider- ation of the parties' positions in
light of the Act and an  assessment of the available evidence.


I. FACTS


On May 9, 1994, the Southwest Center for Biological Diver- sity filed a
petition requesting that the Queen Charlotte  goshawks, which are a
"large, but rarely-seen" subspecies of  hawks, be listed as threatened
or endangered under the Act.  Southwest Ctr. for Biological Diversity
v. Babbitt, 939  F. Supp. 49, 50 (D.D.C. 1996); see 16 U.S.C. s
1533(b)(3)(A)  (1994). On May 19, 1995, the Fish and Wildlife Service
found  that, based on the best available scientific and commercial 
evidence, no listing was warranted. See Babbitt, 939 F. Supp.  at 51.
This initial decision was based on the Fish and  Wildlife Service's
conclusion that the Forest Service would  address land management
options to ensure goshawk habitat  conservation. The Center challenged
this decision, and, on  September 25, 1996, the District Court granted
a summary  judgment in favor of the Center, finding that the Secretary
 could not rely on the Forest Service's possible future actions  "as
an excuse for not making a determination based on the  existing
record." Id. at 52.


On remand, the Fish and Wildlife Service once again  declined to list
the Queen Charlotte goshawk as a threatened  or endangered species,
and the Center once again challenged  the agency's determination. In a
July 9, 1999 hearing before  the District Court, the Government argued
that its sole  obligation under the Endangered Species Act is to
consider  and act on the best available data, which the Government 
claimed it had done. The District Court persisted, however,  in
suggesting that a population count was necessary. See,  e.g., Trial
Tr. at 2-3, reprinted in J.A. 1913-14. The trial  judge could not be
moved from this position, not even by 


plaintiffs' acknowledgment that the District Court was re- quired to
assess the parties' positions in light of the best  available
evidence, not a population count. Following argu- ment by the parties,
the District Court issued an opinion on  July 20, 1999, remanding the
case to the Fish and Wildlife  Service "for a more reliable
determination of the Queen  Charlotte goshawk population...." Order at
3, reprinted in  J.A. 1975. This appeal followed.


II. ANALYSIS


On the record before us, it is clear that the District Court  exceeded
its authority in ordering the Government to conduct  a population
count of the goshawk species. 16 U.S.C.  s 1533(a)(1) instructs the
Secretary to


determine whether any species is an endangered species  or a threatened
species because of any of the following  factors:


(A) the present or threatened destruction, modifica- tion, or
curtailment of its habitat or range;


(B) overutilization for commercial, recreational, scien- tific or
educational purposes;


(C) disease or predation;


(D) the inadequacy of existing regulatory mechanisms;  or


(E) other natural or manmade factors affecting its  continued
existence.


16 U.S.C. s 1533(a)(1) (1994). The Secretary is to make such  a
determination "solely on the basis of the best scientific and 
commercial data available to him...." 16 U.S.C.  s 1533(b)(1)(A). Read
together, the two statutory provisions  require the Secretary to list
a species as endangered or  threatened if, based solely on the best
available data, any of  s 1533(a)(1)'s five factors are sufficiently
implicated. The  "best available data" requirement makes it clear that
the  Secretary has no obligation to conduct independent studies.  As
we noted in City of Las Vegas v. Lujan, 891 F.2d 927, 933  (D.C. Cir.
1989), in the context of emergency listings under 16 


U.S.C. s 1533(b)(7), 16 U.S.C. s 1533(b)(1)(A) "merely pro- hibits the
Secretary from disregarding available scientific  evidence that is in
some way better than the evidence he  relies on. Even if the available
scientific and commercial data  were quite inconclusive, he
may--indeed must--still rely on it  at that stage."


Appellees do not claim--for good reason, we think-that the  statute's
reference to "best scientific data available" requires  the Secretary
to find and consider any information that is  arguably susceptible to
discovery. In other words, appellees  never have contended in this
case that the Government is  obliged to conduct an on-site population
count of the goshawk.  And appellees never have contended that the
Secretary acted  on the basis of no data. Rather, appellees have
argued that  the best available scientific data in this record
demonstrate  that the goshawk is already on the verge of extinction
due to  low population estimates and "some 'natural or manmade 
factors affecting its continued existence.' " Appellees Br. at  20
(quoting 16 U.S.C. s 1533(a)(1)(E)). This is the issue that  properly
was before the District Court, and this is the issue  that should have


The trial judge, however, ignored the statute, disregarded  the
parties' arguments, and determined instead that, because  he found the
available evidence inconclusive, the Secretary  was obligated to find
better data. The Government forth- rightly concedes that "the district
court's view has a superfi- cial appeal--certainly the [Fish and
Wildlife Service] would  like to know how many [Queen Charlotte]
goshawks there  are...." Reply Br. at 3. But, as the Government
contends  (with no real contest from appellees), this superficial
appeal  cannot circumvent the statute's clear wording: The Secretary 
must make his decision as to whether to list a species as  threatened
or endangered "solely on the basis of the best  scientific and
commercial data available to him...." 16  U.S.C. s 1533(b)(1)(A);
Reply Br. at 3 ("[T]he court's view is  at odds with both the
practical realities of endangered species  work and the governing
legal regime."). The Secretary  argued below that the best available
evidence supports the  Government's decision not to list the goshawk,


Center argued that the available evidence supports the oppo- site view.
The District Court's responsibility was to assess  the evidence and
resolve the parties' dispute. The court's  decision to sidestep this
responsibility by imposing an obli- gation upon the Secretary to find
better data was error.


III. CONCLUSION


For the foregoing reasons, we reverse the District Court's  decision to
remand the case to the Fish and Wildlife Service,  and we remand the
case to the District Court for consider- ation of the parties'
positions in light of the Endangered  Species Act and an assessment of
the available evidence.