UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CENTER FOR BIOLOGICAL No. 21-35121 DIVERSITY, Plaintiff-Appellant, D.C. No. 9:19-cv- 00109-DLC v. DEBRA ANNE HAALAND, in her OPINION official capacity as Secretary of the U.S. Department of the Interior; MARTHA WILLIAMS, in her official capacity as Director of the U.S. Fish and Wildlife Service, Defendants-Appellees, STATE OF WYOMING; STATE OF IDAHO; WYOMING STOCK GROWERS ASSOCIATION; WYOMING FARM BUREAU FEDERATION; UTAH FARM BUREAU FEDERATION, Intervenor-Defendants- Appellees.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding 2 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

Argued and Submitted April 12, 2022 Seattle, Washington

Filed January 19, 2023

Before: Danny J. Boggs, * Andrew D. Hurwitz, and Jennifer Sung, Circuit Judges.

Opinion by Judge Hurwitz; Dissent by Judge Sung

SUMMARY **

Final Agency Action

The panel affirmed, on different grounds, the district court’s summary judgment against the Center for Biological Diversity in the Center’s action petitioning to amend the Grizzly Bear Recovery Plan that the Secretary of the Interior adopted as a “recovery plan” for an endangered or threatened species under the Endangered Species Act (“ESA”). The U.S. Fish & Wildlife Service (the “Service”) approved the original Grizzly Bear Recovery Plan in 1982 and revised it in 1993. Since 1993, the Service has issued

* The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 3

several Plan Supplements that provide habitat-based recovery criteria for identified recovery zones. The district court entered summary judgment against the Center because it found that the Plan was not a “rule” subject to a petition for amendment under 5 U.S.C § 553(e). It also found that it lacked jurisdiction to review the denial of the petition under the citizen-suit provision of the ESA, 16 U.S.C. § 1540(g)(1)(C), because the Center did not allege that the Service failed to perform any nondiscretionary duty. The panel affirmed on the ground that Administrative Procedure Act (“APA”) review was not available because, even assuming the Plan was a “rule,” the denial of the Center’s petition was not “final agency action.” 5 U.S.C. § 704. The Center filed this action seeking judicial review under the APA and the ESA, claiming that the Service failed to develop and implement a recovery plan that provided for the conservation and survival of the grizzly bear; violated its affirmative duty to conserve the grizzly bear by not pursuing additional recovery areas; and unreasonably denied the Center’s petition to update the Plan. On appeal, the Center did not challenge the district court’s holding that it lacked ESA jurisdiction. Because the Center did not claim that the Service’s denial of its petition was otherwise reviewable by statute, the sole issue is whether denial of the petition is “final agency action.” Because the term “rule” under the APA is defined broadly, the panel assumed that a recovery plan fit under this broad umbrella. See 5 U.S.C. § 551(4). The panel also assumed that an interested party could file a petition under § 553(e) to amend a recovery plan. 4 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

Pursuant to Bennett v. Spear, 520 U.S. 154, 177-78 (1997), an agency action is final if it both marks th