FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORTHERN CALIFORNIA RIVER 

WATCH, a non-profit corporation;

ROBERT G. EVANS,

Plaintiffs-Appellants, No. 08-15780

v. D.C. No.

CARL WILCOX; GENE COOLEY;  3:06-CV-06685-

ROBERT FLOERKE; WILLIAM R. CRB

SCHELLINGER; FRANK H. OPINION SCHELLINGER, individually and

doing business as Schellinger

Brothers; SCOTT SCHELLINGER,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

July 14, 2009—San Francisco, California

Filed August 25, 2010

Before: Dorothy W. Nelson, William A. Fletcher, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

12777
COUNSEL

Jack Silver, Law Office of Jack Silver, Santa Rosa, California, for plaintiffs-appellants Northern California River Watch

and Robert G. Evans.

Christopher J. Carr, Shaye Diveley, Morrison & Foerster

LLP, San Francisco, California, for defendants-appellees William R. Schellinger and Frank H. Schellinger, dba Schellinger

Brothers, and Scott Schellinger.

Edmund G. Brown Jr., Attorney General of the State of California, James Humes, Chief Deputy Attorney General, Matt

Rodriguez, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Robert W.

Byrne, Supervising Deputy Attorney General, Michael W.

Neville, Deputy Attorney General, San Francisco, California,

for defendants-appellees Carl Wilcox, Gene Cooley, and Robert Floerke.

Ronald J. Tenpas, Assistant Attorney General, Andrew Mergen, Attorney, Ellen Durkee, Attorney, Bradford T. McLane,

12780 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
Attorney, Environment & Natural Resources Division,

Department of Justice, Washington, DC, David Gayer, of

Counsel, Office of the Solicitor, United States Department of

the Interior, Washington, DC, for amicus curiae United States

of America.

OPINION

PAEZ, Circuit Judge: 

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

1The Schellinger defendants include William and Frank Schellinger,

individually and doing business as Schellinger Brothers, and Scott Schellinger, son of defendant William Schellinger. The California Department

of Fish and Game employee defendants are Carl Wilcox, Gene Cooley,

and Robert Floerke. 

2

“The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound,

kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

16 U.S.C. § 1532(19). 

NORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12781
“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.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,

3We have jurisdiction pursuant to 28 U.S.C. § 1291. 

12782 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
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.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 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.5See 50

4The fact that the Corps’ designation expired in 2006 is of no consequence to our decision, because land either is or is not an “adjacent wetland,” and a private property owner must comply with the CWA’s

permitting requirements on adjacent wetlands regardless of whether they

have been so designated by the Corps. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139 (1985) (holding that the Corps acted

reasonably when it defined “waters of the United States” to include “adjacent wetlands” and that the Corps could sue a developer who filled in

adjacent wetlands on his own property without a permit). 

5Evans has led hikes around the Laguna de Santa Rosa, helped develop

historical data of the tributary for the Laguna de Santa Rosa website, and

for the past 20 years has enjoyed recreational activities in and around the

tributary. Evans is a past president of the Laguna de Santa Rosa Foundation, and he is a member of the Laguna Preservation Council, the Northern

California River Watch, and a number of other environmental organizations. 

NORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12783
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 meadowfoam, 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,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

6

In the district court, the Schellingers alleged that the plants were illegally transplanted to the Site in an effort to delay their development plans.

Although this issue is disputed by the parties, it is irrelevant to our review.

12784 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
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.7See

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.”

8

Id. at 1075-76, 1078. River Watch

appealed.

7

In September 2007, River Watch filed a second amended complaint

adding the Schellingers as defendants and alleging that the Schellingers

“solicited or otherwise assisted” in removing the plants from the Site in

violation of ESA § 9(g).

8River Watch also alleged that Defendants violated ESA § 9(a)(2)(B)’s

third prong, which makes it unlawful to “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 . . . .” 16 U.S.C. § 1538(a)(2)(B); see Wilcox, 547 F. Supp. 2d at 1075. The district court found that no reasonable

trier of fact could find that Defendants had acted in knowing violation of

state law, because they were “indisputably acting for a law enforcement

NORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12785
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.” “[A]reas under

Federal jurisdiction” does not include, the United States

purpose or, at least, not in knowing violation of state law.” Id. at 1078.

River Watch does not challenge the district court’s ruling on this issue. 

Although not specifically mentioned in the district court’s ruling, River

Watch’s allegations that the Schellingers violated ESA § 9(g), by “attempting to commit, soliciting another to commit, and causing to be committed, offenses defined in ESA § 9” are dependent on whether the

Sebastopol meadowfoam plants were located on “areas under Federal

jurisdiction.” 

9We review de novo the district court’s grant of summary judgment. Or.

Natural Res. Council v. Allen, 476 F.3d 1031, 1036 (9th Cir. 2007). 

12786 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
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 should, therefore, defer to

NORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12787
the FWS’s interpretation. We examine the parties’ arguments

below, applying Chevron’s analytical framework.

A. Chevron Step One

[1] 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; 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.

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)). 

12788 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
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 jurisdiction 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). 

[2] 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 (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 (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 jurisNORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12789
diction.” 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). Indeed, the Corps calls wetlands

subject to the CWA, “jurisdictional wetlands,” Rapanos, 547

U.S. at 763, 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 privatelyowned 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 and § 9 to be coextensive. See Babbitt v. Sweet Home Chapter of Communities

12790 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
for a Great Oregon, 515 U.S. 687, 702-03 (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

‘represen[t] the considered and collective understanding of

those Congressmen involved in drafting and studying proposed legislation.’ ” Garcia v. United States, 469 U.S. 70, 76

(1984) (quoting Zuber v. Allen, 396 U.S. 168, 186 (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

NORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12791
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. at 12, reprinted in 1988 U.S.C.C.A.N. at 2711-12. The

Senate Report further noted that “[a]dditional 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 “pri10River Watch asserts that it is inappropriate to consider the 1988 Senate Report as it is “subsequent legislative history.” River Watch is mistaken. First, the 1988 Amendments added the “maliciously damage or

destroy” provision to § 9(a)(2)(B); consequently, the Senate Report is not

“subsequent to,” but rather concurrent with that provision. Further,

because that provision mirrors the scope of the “remove and reduce to possession” provision, which was enacted in 1982, by referring to its jurisdictional limitation (“on any such area”), the 1988 Report’s analysis may be

properly consulted to discern the intent behind the “remove and reduce to

possession” provision as well. Finally, as Defendants note, Solid Waste

Agency v. U.S. Army Corps of Engineers expresses concern over relying

on subsequent legislative history to contradict the “plain text and import”

of a statutory provision. 531 U.S. 159, 170 (2001). Here, however, we

look to the 1988 report in order to gain insight into the pertinent text of

§ 9(a)(2)(B), which has no plain meaning. 

12792 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
vate and other non-federal lands,” the 1988 Senate Report,

like the 1982 House Report, fails to define “federal lands.” 

[3] 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

[4] 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. 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. 

[5] 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

NORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12793
Home, 515 U.S. at 691 n.2. 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; see also 16 U.S.C. § 1540(f). 

[6] 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 expertise 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 (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); Sweet Home, 515 U.S. at

698 (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

11The United States also asks us to grant Chevron deference to the Habitat Conservation Planning And Incidental Take Permit Processing Handbook, which is a guidance manual. For the reasons described later in this

opinion, we determine that the Handbook is not entitled to Chevron deference. See infra Part II.C.2. 

12794 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
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.

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. 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 Handbook”) provide an

interpretation of “areas under Federal jurisdiction” which is

due Chevron deference. We are not persuaded.

 1. The Three Rules

The United States cites three rules, which were promulgated by the FWS using formal rule-making authority, as evidence of the FWS’s interpretation of the phrase “areas under

Federal jurisdiction.” The three rules designate certain plant

species as endangered or threatened. None of these rules,

however, interprets “areas under Federal jurisdiction;”

instead, the rules use the phrase in passing and somewhat

interchangeably with the term “federal lands.” Thus, the three

rules do not provide an agency interpretation to which we

could defer under Chevron.

For example, in the first rule, Endangered or Threatened

Status for Seven Central Florida Plants, the FWS writes only,

“for endangered plants, the 1988 amendments (Pub. L. 100-

478) to the Act prohibit the malicious damage or destruction

on Federal lands . . . .” 58 Fed. Reg. 25,746, 25,754 (Apr. 27,

1993). This language offers no assistance, because it is not

clear from the rule’s text how “areas under Federal jurisdiction” relates to “Federal lands.” Moreover, as with the conNORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12795
gressional reports, the rule offers no definition of “Federal

lands.” The question we must answer is whether “areas under

Federal jurisdiction” includes “waters of the United States” as

defined by the CWA and the Corps. This rule, like the legislative history of the ESA, simply does not address this issue.

In the second rule, Determination of Endangered Status for

Three Plants, Blennosperma Bakeri (Sonoma Sunshine or

Baker’s Stickyseed), Lasthenia Burkei (Burke’s Goldfields),

and Limnanthes Vinculans (Sebastopol Meadowfoam), the

United States relies on language discussing how to protect

Sebastopol meadowfoam, which is primarily found on

privately-owned land. 56 Fed. Reg. 61173, 61,180-81 (Dec. 2,

1991). The United States finds it significant that the rule

states that the “[p]rotection of these species’ habitats will be

addressed through the recovery process and through the

[ESA’s] section 7 consultation process,” but that the rule fails

to mention that habitats on privately-owned land also can be

protected under § 9(a)(2)(B). Id. at 61181. River Watch does

not contest that the § 7 consultation process is one way the

ESA protects Sebastopol meadowfoam growing on private

land.12 The question is whether that is the only way the ESA

protects endangered plants growing on privately-owned land.

Again, the rule simply does not indicate that the FWS gave

any thought to this issue. Because this issue is, if anything,

only addressed tangentially (and possible only through the

United States’ post-hoc litigation arguments), we conclude

that it is inappropriate to grant Chevron deference to this rule.

12As described earlier, under § 7, an agency must confer with the FWS

prior to authorizing any action, in order to make sure that the action is “not

likely to jeopardize the continued existence of any endangered species or

threatened species or result in the destruction or adverse modification of

habitat of such species . . . .” 16 U.S.C. § 1536(a)(2). Such authorization

requiring a § 7 conference with the FWS takes place when the Corps

grants a permit to discharge prohibited material like dredged soil, rock,

sand, and cellar dirt into a navigable water, like an adjacent wetland. See

id. 

12796 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
In the third rule cited by the United States, Determination

of Endangered or Threatened Status for Five Desert Milkvetch Taxa from California, 63 Fed. Reg. 53,596 (Oct. 6,

1998), the FWS explains that “[l]isted plants have limited protection under the Act, particularly on private lands. . . . Generally, on private lands, collection of, or vandalism to, listed

plants must occur in violation of State law to be a violation

of section 9.” 63 Fed. Reg. at 53,610-11. The text in the rule

indicates only that a violation of state law is “[g]enerally” the

way in which § 9’s protections for endangered plants growing

on private land are invoked. The text of the rule, however,

does not act as limiting language and thus does not help us in

this case.

2. The Handbook

The United States also urges us to give Chevron deference

to an “interpretation” of “areas under Federal jurisdiction”

found in the Habitat Conservation Planning And Incidental

Take Permit Processing Handbook, an FWS guidance manual

for conducting the incidental take permit program under ESA

§ 10. Habitat Conservation Planning And Incidental Take

Permit Processing Handbook (1996), available at http://

www.nmfs.noaa.gov/pr/pdfs/laws/hcp_handbook.pdf [hereinafter HCP Handbook]. The Handbook states that “the ESA

does not prohibit the incidental take of federally listed plants

on private lands unless the take or the action resulting in the

take is a violation of state law (which in most cases eliminates

the need for an incidental take permit for plants).” Id. at 3-17.

Although issued after public notice and comment, see 61

Fed. Reg. 63,854 (Dec. 2, 1996); 59 Fed. Reg. 65,782 (Dec.

21, 1994), the Handbook is not deserving of Chevron deference. First, “interpretations contained in policy statements,

agency manuals, and enforcement guidelines, all of which

lack the force of law-do not warrant Chevron-style deference.”

13

13This case is distinguishable from Northwest Ecosystem Alliance v.

U.S. Fish & Wildlife Service, 475 F.3d 1136 (9th Cir. 2007), where we

NORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12797
Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Second, the Handbook explicitly states that “nothing in this handbook is intended to supersede or alter any aspect of Federal

law or regulation pertaining to the conservation of endangered

species.” HCP Handbook at 1-3. Indeed, the Handbook is

meant only to provide “guidance on” the ESA § 10 permit

process. See id. at 1-1 (“The purpose of this handbook is to

guide the [FWS] and National Marine Fisheries Services . . .

in processing incidental take permit applications and participating in associated habitat conservation.”), 1-3 (“[T]his

handbook establishes detailed but flexible guidelines to be

used in developing HCPs [habitat conservation planning],

processing section 10(a)(1)(B) permit applications, and managing ongoing HCP programs.”); see also 61 Fed. Reg.

19,308, 19,310 (May 1, 1996). Third, although the Handbook

has been cited in at least four circuit opinions, none has

treated it as meriting Chevron deference. See, e.g., Nw.

Ecosystem Alliance, 475 F.3d at 1142-43; Spirit of the Sage

extended Chevron deference to the FWS’s policy guidelines on criteria for

consideration of petitions to list endangered species. Id. at 1150. In Northwest Ecosystem Alliance, we emphasized that 16 U.S.C. § 1533(h)

required the FWS to publish the proposed guidelines in the Federal Register and to provide an opportunity for written comment, in a process similar

to the notice-and-comment rule making under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. Nw. Ecosystem Alliance, 475

F.3d at 1142. Further, there was no evidence that the agency ever treated

the guidelines as anything other than legally binding. Id. at 1143. 

The situation here is markedly different. Although the FWS published

the Handbook and sought comments, it did not do so pursuant to § 1533(h)

or as notice-and-comment rule making under the APA. Moreover, the purpose of the Handbook was to provide “detailed but flexible guidelines” on

granting incidental take permits and not to define “areas under Federal

jurisdiction.” HCP Handbook at 1-3. And, as noted infra in footnote 14,

the FWS previously argued that the Handbook was not binding. Nw.

Ecosystem Alliance, 475 F.3d at 1142 n.5 (quoting Nat’l Wildlife Fed’n v.

Babbitt, 128 F. Supp. 2d 1274, 1292 (E.D. Cal. 2000)). In light of the conclusory use of the term in several sections of the Handbook, there appears

to have been little thought given to the meaning of the term. 

12798 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
Council v. Norton, 411 F.3d 225, 227 (D.C. Cir. 2005); Morris v. United States, 392 F.3d 1372, 1377 (Fed. Cir. 2004);

Loggerhead Turtle v. Cnty. Council of Volusia Cnty., Fla.,

148 F.3d 1231, 1243, 1243 n.11 (11th Cir. 1998).14 Finally,

the 300+ page Handbook does not discuss “areas under Federal jurisdiction” other than in one paragraph where it restates

the statute. In sum, the focus of the Handbook is the § 10 incidental take permit program, and any interpretation one might

glean from the Handbook is attenuated at best.

[7] Therefore, although the FWS has the authority to fill in

the statutory “gaps” of the ESA through the promulgation of

rules and regulations, we hold that contrary to the United

States’ arguments, the FWS has not yet interpreted “areas

under Federal jurisdiction.”

D. Alternatives to Chevron deference

Although an agency may not have formally interpreted a

statute, the agency’s construction may still “merit some deference whatever its form, given the ‘specialized experience and

broader investigations and information’ available to the agency.” Mead Corp., 533 U.S. at 234 (quoting Skidmore v. Swift

& Co., 323 U.S. 134, 139 (1944)). We give such an agency

interpretation “respect proportional to its ‘power to persuade.’ ” Id. at 235 (quoting Skidmore, 323 U.S. at 140).

Here, we conclude, however, that for the reasons set forth

above, the FWS’s three rules and the Handbook address the

issue before us only tangentially. The rules and the Hand14The Eleventh Circuit recognized that the Handbook was only an “informal publication” which was not binding on the court. Loggerhead Turtle, 148 F.3d at 1243, 1243 n.11. And, in at least one district court case,

the Secretary of the Department of the Interior previously argued that the

Handbook was not legally binding. Nat’l Wildlife Fed’n, 128 F. Supp. 2d

at 1292; see also WildEarth Guardians v. U.S. Fish & Wildlife Serv., 622

F. Supp. 2d. 1155, 1164 (D. Utah 2009) (holding that the Handbook was

an informal guidance material that was not binding). 

NORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12799
book, therefore, have no “power to persuade” us of any particular interpretation of “areas under Federal jurisdiction.”

The United States also urges us to defer to the interpretation of the ESA set forth in its amicus brief, pursuant to Auer

v. Robbins, 519 U.S. 452 (1997). This argument is without

merit. In Auer, the Supreme Court gave weight to an agency

interpretation advanced in an amicus brief of an ambiguous

regulation promulgated by the same agency. Id.; see also

Gonzales v. Oregon, 546 U.S. 243, 256 (2006); Siskiyou Reg’l

Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 555 n.9 (9th

Cir. 2009) (reviewing cases in which the Ninth Circuit has

granted Auer deference). In this case, the amicus brief purports to interpret statutory, not regulatory, language. Moreover, in Gonzales, the Supreme Court refused to extend Auer

deference to regulations that simply parroted a statute, holding that “[a]n agency does not acquire special authority to

interpret its own words when, instead of using its expertise

and experience to formulate a regulation, it has elected merely

to paraphrase the statutory language.” Gonzales, 546 U.S. at

257. Here, the three rules cited by the United States essentially parrot the statutory language. Because they “give[ ] little

or no instruction on a central issue in this case,” the FWS’s

three rules and the Handbook cannot support the FWS’s

efforts to decide the meaning of “areas under Federal jurisdiction” in the amicus brief. See id.

E. Judicial Construction

[8] Without any agency interpretation of “areas under Federal jurisdiction” to which we must defer, we proceed to interpret the term. We agree with the district court that River

Watch’s proposed construction of § 9(a)(2)(B) is not tenable.

The potential for overbreadth posed by interpreting “areas

under Federal jurisdiction” as including all “waters of the

United States” is simply too large. The CWA, which defines

“waters of the United States,” provides for far-reaching regulatory authority based on “the evident breadth of congressio12800 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
nal concern for protection of water quality and aquatic

ecosystems.” Riverside Bayview Homes, Inc., 474 U.S. at 133.

Therefore, under River Watch’s proposed construction, without any discussion or explanation, the FWS would immediately gain coextensive regulatory authority with the Corps. 

The 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 (citing 42 Fed. Reg.

37,122, 37,127 (1977)). Even Justice Kennedy’s controlling

concurrence is based on his concern about “the potential overbreadth of the Corps’ regulations.” Id. at 782 (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); see City of

Healdsburg, 496 F.3d at 999-1000 (noting that Justice Kennedy’s concurrence in Rapanos “provides the controlling rule of

law”) (citing United States v. Gerke, 464 F.3d 723, 724-25

(7th Cir. 2006) (per curiam) (determining that Justice Kennedy’s concurrence meets the test of Marks v. United States, 430

U.S. 188, 193 (1977) for determining the controlling holding

of Supreme Court case without a majority opinion)).

Moreover, River Watch’s reading could arguably be

expanded to apply to private lands which are subject to any

sort of federal regulatory jurisdiction by any federal statute,

i.e. everywhere. Such an interpretation would make the third

prong of § 9(a)(2)(B) mere surplusage. Although the first two

prongs of § 9(a)(2)(B) apply to “areas under Federal jurisdiction,” the third prong applies to “any other area.” The third

prong’s prohibitions apply only when the person acts “in

knowing violation of any law or regulation of any State or in

NORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12801
the course of any violation of a State criminal trespass law.”

16 U.S.C. § 1538(a)(2)(B). This prohibition makes sense only

if non-criminal trespassers who damage or destroy a listed

plant on private lands are generally not liable under the ESA.

[9] River Watch argues that this concern is far-fetched and

that we may narrowly hold that “waters of the United States”

are “areas under Federal jurisdiction.” We are not convinced

that it would be prudent to create such a piecemeal expansion

of the term “areas under Federal jurisdiction,” especially

when the FWS has not yet squarely addressed the issue.

While we recognize that “areas under Federal jurisdiction” or

“federal lands” surely includes areas under the control of the

federal government, i.e. through ownership, leasehold-estates,

or conservation easements, we do not interpret “areas under

Federal jurisdiction” to encompass wetlands that are adjacent

to navigable waters and therefore subject to only the regulatory jurisdiction of the Corps.

[10] In sum, we hold that River Watch has not established

that the plain language of the ESA mandates that “waters of

the United States” are “areas under Federal jurisdiction.” We

agree with the United States that the term is ambiguous, but

we conclude that, thus far, the FWS has not promulgated regulations or offered any guidance materials specifically

addressing this issue to which we must defer. We thus interpret “areas under Federal jurisdiction” as not including all of

the “waters of the United States” as defined by the CWA and

its regulations. Although our ruling will constitute “binding

law,” we recognize that under Brand X, we are not the “authoritative interpreter” of “areas under Federal jurisdiction.”

See 545 U.S. at 983. The FWS might have good reason to

issue regulations or guidance that more thoroughly addresses

this issue at some later date, and our decision does not foreclose the possibility that the FWS might adopt some version

of the statutory construction set forth by River Watch. See id.

After all, the objective of the ESA, to provide a program and

means to conserve endangered species and their ecosystems,

12802 NORTHERN CALIFORNIA RIVER WATCH v. WILCOX
16 U.S.C. § 1531(b), is surely intertwined with that of the

CWA, “to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a).

III. Conclusion

[11] For the reasons set forth above, we conclude that the

district court did not err in rejecting River Watch’s proposed

interpretation of “areas under Federal jurisdiction” in § 9 of

the ESA, and therefore affirm the grant of summary judgment

to Defendants. 

AFFIRMED. 

NORTHERN CALIFORNIA RIVER WATCH v. WILCOX 12803