United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2015 Decided March 1, 2016

No. 14-5284

DEFENDERS OF WILDLIFE AND CENTER FOR BIOLOGICAL

DIVERSITY,

APPELLANTS

v.

SALLY JEWELL, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-00919)

Jason C. Rylander argued the cause for appellants. With

him on the briefs were Karimah Schoenhut, Michael P.

Senatore, and Collette L. Adkins.

Brian C. Toth, Attorney, U.S. Department of Justice, argued

the cause for appellees. With him on the brief was John C.

Cruden, Assistant Attorney General.

Wayne J. D’Angelo and Michael B. Wigmore were on the

brief for intervenor-defendants-appellees American Petroleum

Institute, et al. David E. Frulla entered an appearance.
2

Nancie G. Marzulla and Roger J. Marzulla were on the

brief for intervenor/defendant-appellee Glenn Hegar, Texas

Comptroller of Public Accounts.

M. Reed Hopper and Jonathan C. Wood were on the brief

for amicus curiae Pacific Legal Foundation in support of

appellees.

Before: HENDERSON, ROGERS and KAVANAUGH, Circuit

Judges.

Opinion for the court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The issue in this appeal concerns

when a voluntary state conservation agreement may be

considered in deciding whether or not to list a species under the

Endangered Species Act. In 2012, the Fish and Wildlife Service

withdrew its 2010 proposal to list the dunes sagebrush lizard,

whose habitat is in New Mexico and Texas, as endangered. The

Defenders of Wildlife and the Center for Biological Diversity

(together “Appellants”) sued and now appeal the grant of

summary judgment to the Secretary of Interior. They contend

the withdrawal decision was arbitrary and capricious because (1)

the voluntary plan by the State of Texas to engage private

businesses in conservation efforts was neither sufficiently

certain to be implemented nor to be effective under the Service’s

evaluation policy, and (2) the Service’s decision unreasonably

elevates unenforceable voluntary State agreements over the

statute’s required consideration of the adequacy of “existing

regulatory mechanisms.” For the following reasons, we

conclude the first contention is unpersuasive and the second was

affirmatively waived by appellants in the district court.

Between the time the Service proposed listing the lizard and

the time it decided to withdraw that proposal, the Service
3

received updated information about the conservation efforts in

the two States and by the Bureau of Land Management in New

Mexico. Based on this information, the Service concluded that

“current and future threats are not of sufficient imminence,

intensity, or magnitude to indicate that the . . . lizard is in danger

of extinction (endangered), or likely to become endangered

within the foreseeable future (threatened), throughout all or a

significant portion of its range.” Withdrawal of the Proposed

Rule to List Dunes Sagebrush Lizard (“Withdrawal”), 77 Fed.

Reg. 36,872, 36,897–98 (June 19, 2012). Appellants fail to

show the Service did not rationally apply its policy in evaluating

the Texas plan inasmuch as the Service’s factual conclusions are

supported by substantial evidence in the record. Accordingly,

we affirm. 

I.

The Endangered Species Act (“ESA”) “provide[s] a

program for the conservation of . . . endangered species and

threatened species.” 16 U.S.C. § 1531(b). Acting on behalf of

the Secretary of the Interior, the Fish and Wildlife Service must

determine whether to list a species as being “threatened” or

“endangered.” 16 U.S.C. § 1533(a)(1); 50 C.F.R. § 402.01(b);

see also Am. Wildlands v. Kempthorne, 530 F.3d 991, 994 (D.C.

Cir. 2008). Once a species is listed, it is unlawful for any person

to “take” the listed species (except in narrow circumstances), 16

U.S.C. § 1538(a)(1)(B), i.e., to “harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect, or to attempt to

engage in any such conduct,” id. § 1532(19). Federal agencies

must “insure that any action authorized, funded, or carried out

by such agency . . . is not likely to jeopardize the continued

existence” of a listed species, id. § 1536(a)(2).

An “endangered species” under the ESA is one “in danger

of extinction throughout all or a significant portion of its range”
4

while a “threatened species” is “likely to become an endangered

species within the foreseeable future throughout all or a

significant portion of its range.” Id. § 1532(6), (20). A danger

of species extinction exists where there is evidence of: 

(A) the present or threatened destruction, modification,

or curtailment of its habitat or range;

(B) overutilization for commercial, recreational,

scientific, 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. 

Id. § 1533(a)(1)(A)–(E) (emphasis added). The extent of the

dangers of extinction is to be determined “solely on the basis of

the best scientific and commercial data available to [the Service]

after conducting a review of the status of the species and after

taking into account those efforts, if any, being made by any State

or foreign nation, or any political subdivision . . . to protect such

species,” including “predator control, protection of habitat and

food supply, or other conservation practices.” Id.

§ 1533(b)(1)(A) (emphasis added). 

The Service adopted the Policy for Evaluation of

Conservation Efforts when Making Listing Decisions (“Policy”),

68 Fed. Reg. 15,100, 15,113 (March 28, 2003), to assist it in

making predictive evaluations about the persistence of a species

where there are “formalized conservation efforts that have not

yet been implemented or have been implemented, but have not

yet demonstrated whether they are effective at the time of a

listing decision.” The policy is designed to “ensure consistent

and adequate evaluation of recently formalized conservation

efforts when making listing decisions,” Withdrawal, 77 Fed.

Reg. at 36,885, by identifying criteria for assessing whether such

an effort “provides a high level of certainty that the effort will
5

be implemented and/or effective and results in the elimination

or adequate reduction of the threats” posed to any species being

considered for a listing, see Policy, 68 Fed. Reg. at 15,114–15.1

When the Service’s decision not to list a species is based in part

on consideration of a formalized conservation effort, the Service

will monitor the “progress of implementation and effectiveness

of the conservation effort.” Id. at 15,114. If it determines the

conservation effort lags behind schedule, does not achieve its

objectives, is not modified to respond to changed circumstances,

or new information comes to light, the Service will reevaluate

1

 To evaluate the certainty of implementation, the Service

identified nine, non-exclusive criteria: (1) “[t]he conservation effort,

the party(ies) to the agreement or plan that will implement the effort,

and the staffing, funding level, funding source, and other resources

necessary to implement the effort,” (2) the legal authority to

implement the effort and the commitment to do so, (3) the status of

legal procedural requirements (e.g., environmental review) that must

be done to implement, (4) whether necessary authorizations – like

permits – have been identified and the likelihood of obtaining them,

(5) the type and level of voluntary participation needed to implement

is both identified and likely to occur (including review of incentives

to join the plan), (6) regulatory mechanisms needed for

implementation, (7) funding requirements, (8) implementation

schedule, and (9) approval by parties involved. Policy, 68 Fed. Reg.

at 15,114–15. 

To evaluate the effectiveness of implementation, the six nonexclusive criteria are: (1) the nature and extent of the threats to the

species and the efforts designed to reduce them, (2) explicit

incremental objectives for achieving those goals, (3) the steps

necessary to implement the effort, (4) scientific factors that can be

used to measure achievement objectives and the standard against

which success will be measured, (5) provisions for monitoring

progress on implementation and effectiveness, (6) how adaptive

management principles will be implemented. Id. at 15,115. 
6

whether the species needs be listed. Id. 

Appellants challenge the Service’s application of the Policy

in deciding it could rely on a state voluntary conservation

agreement as a basis for withdrawing its proposed listing of the

dunes sagebrush lizard as endangered. Endangered Status for

Dunes Sagebrush Lizard (“NPRM Listing”), 75 Fed. Reg.

77,801 (Dec. 14, 2010). The lizard lives in a specific habitat in

southeastern New Mexico and western Texas, and the lizard’s

survival is “directly linked to the quality and quantity of

available shinnery oak dune habitat,” which is a dynamic dune

system created by a shinnery oak tree and the large root and

stem system that surrounds it. NPRM Listing, 75 Fed. Reg. at

77,802–03. By 2004, surveys of the New Mexico habitat

indicated extirpation of the lizard in areas where there was

shinnery oak removal (caused by herbicide treatments and oiland-gas development). See 12-Month Findings on Resubmitted

Petitions to List the Southern Idaho Ground Squirrel, Sand

Dune Lizard, and Tahoe Yellow Cress, 69 Fed. Reg. 77,167,

77,172 (Dec. 27, 2004). If those activities continued, the

Service expected further destruction of the lizard’s habitat and

the threat to the lizard to increase. See id. By 2010, these

activities had persisted, and the Service once again was

concerned about the threats to the shinnery oak habitat in terms

of its total destruction and its fragmentation. See NPRM Listing,

75 Fed. Reg. at 77,809–10. 

At the time it proposed listing, the Service had concluded

that the federal, State, and local conservation efforts were “not

adequate to protect the dunes sagebrush lizard from known

threats.” Id. at 77,811; see 16 U.S.C. § 1533(a)(1)(D) (“Factor

D”). The Interior Department’s Bureau of Land Management

(“BLM”) administered a land-use plan in New Mexico to help

protect the lizard on federal lands, and there were voluntary

conservation agreements for private lands, NPRM Listing, 75
7

Fed. Reg. at 77,810–11, but the Service considered these efforts

inadequate. Although BLM’s plan “addresses the threats of

shinnery oak removal,” the Service was concerned that the plan

“provides for a variety of exceptions and has no schedule or

planned monitoring to ensure that the protections are being

provided.” Id. at 77,810. The Service concluded that the

efficacy of BLM’s plan would be determined only following

future implementation. Id. at 77,811. The New Mexico

voluntary agreements consisted of a Candidate Conservation

Agreement and Candidate Conservation Agreements with

Assurances; the former allowed private landowners to

participate voluntarily in lizard conservation efforts (including

limiting habitat modification and protecting habitat between

shinnery oak complexes) and the latter provided assurances that,

in view of such voluntary efforts, “additional conservation

measures will not be required and additional land, water, or

resource use restrictions will not be imposed should the species

become listed in the future.” Announcement of Final Policy for

Candidate Conservation Agreements with Assurances, 64 Fed.

Reg. 32,726, 32,727 (June 17, 1999). These agreements might

have been promising, but the Service was concerned that there

were no similar agreements in Texas. NPRM Listing, 75 Fed.

Reg. at 77,811. “[F]or the agreements to benefit the dunes

sagebrush lizard,” the Service was of the view that “oil and gas

operators need to enroll throughout the lizard’s range.” Id.

Because this had not happened, “the efficacy of these

conservation agreements has not yet been fully implemented and

determined to be effective.” Id. A listing was therefore needed. 

In response to publication of the NPRM Listing, the Service

received new information about these conservation efforts. 

Withdrawal, 77 Fed. Reg. at 36,898. Comments about the BLM

plan afforded the Service a better understanding of the plan, and

upon reconsideration the Service concluded that the BLM plan

provided a standard that would consistently guide the protection
8

of the lizard and reduce or eliminate threats to the species and its

habitat on BLM lands in New Mexico. See id. at 36,879. The

Service found that this, coupled with the preliminary success of

the voluntary agreements in New Mexico, had resulted in 95%

of the sagebrush lizard’s habitat in New Mexico being removed

from oil and gas leasing, enrolled in the conservation

agreements, or covered by the BLM plan. Id. at 36,885. The

Service also noted that it had “identified more known occupied

sites for the lizard, especially in Texas, where 28 new sites were

found.” Fish & Wildlife Serv., Summary of Dunes Sagebrush

Lizard Final Determination (2012); see also Withdrawal, 77

Fed. Reg. at 36,784–85.

Additionally, stakeholders with an interest in the lizard’s

range in Texas — including the Texas Comptroller, industry,

landowners, and agricultural interests — had developed with the

Service a Texas Candidate Conservation Agreement with

Assurances and a Habitat Conservation Plan (together, the

“Texas plan”). Id. at 36,885; TEXAS CONSERVATION PLAN

(2012); see also Proposed Endangered Status for the Dunes

Sagebrush Lizard, 77 Fed. Reg. 11,061, 11,061–62 (Feb. 24,

2012). The focus of the Texas plan is to guide development

away from lizard habitat and permit development in lizard

habitat only when there is no feasible alternative. Any habitat

loss must be reported and mitigated through specified mitigation

activities; mitigation credits can be “banked” for future use. 

Total lizard habitat loss is limited to one percent during the first

three years and can be increased to up to a ten percent cap over

the life of the 30-year plan. And like the New Mexico

agreements, the Texas plan permits an entity to agree to

undertake voluntary measures to benefit the lizard in exchange

for assurances that if the species is listed, the entity will not be

required to undertake additional conservation efforts to restrict

activities on its property.
9

Upon applying its Policy criteria, the Service concluded that

the States’s voluntary conservation agreements were sufficiently

“certain to be implemented and effective,” 68 Fed. Reg. at

15,114–15, to be relied upon in determining whether listing was

appropriate. Fish & Wildlife Serv., Policy for Evaluation of

Conservation Efforts Evaluation for the New Mexico

CCA/CCAA and Texas Conservation Plan (“2012 Evaluation”)

20–21, 38–40 (2012); see also Withdrawal, 77 Fed. Reg. at

36,885–86. Based on the high enrollment and compliance under

the New Mexico agreements and the anticipated effectiveness of

the New Mexico and Texas efforts to reduce and eliminate

threats to the lizard by moving further impacts outside occupied

dune complexes, the Service was satisfied the monthly and

annual monitoring and reporting requirements would ensure

conservation measures are implemented as planned and are

effective at removing threats to the lizard and its habitat. 2012

Evaluation 20–21, 38–40; see Withdrawal, 77 Fed. Reg. at

36,899.

Given the States’s conservation agreements and other

evidence necessary for evaluating the threat to the lizard (such

as studies of the lizard’s current habitat and distribution of the

species), the Service concluded that withdrawal of the NPRM

Listing was appropriate under the statutory factors, see 16

U.S.C. § 1533(a)(1)(A)–(E). Withdrawal, 77 Fed. Reg. at

36,885–97. Although listing in 2010 had been an “appropriate

conclusion based on the best scientific and commercial

information available at that time,” the Service explained that

the “significant ongoing and future conservation efforts, in

combination with new information on the status and distribution

of the species, have reduced the magnitude of potential impacts

now and in the future such that the species no longer meets the

definition of an endangered or threatened species.” Id. at

36,898. Conservation measures covered 95% of the habitat in

New Mexico and 71% of habitat in Texas and would therefore
10

ameliorate further habitat loss. Id. at 36,894. Surveys and other

data indicated that “the species currently has adequate habitat to

persist into the future.” Id. at 36,895. Notwithstanding the

historical and potential threat to the lizard’s habitat as a result of

habitat loss and fragmentation caused by oil-and-gas

development and other human behavior, the Service concluded

that the States’s agreements indicated that habitat loss will not

continue at historical rates. Id. at 36,894. The Service was

convinced that the “discontinuation of habitat loss and

fragmentation, and the restoration of already fragmented habitat,

will have the benefit of decreasing edge habitat and increasing

interior habitat.” Id. In other words, the conservation

agreements were critical to the Service’s analysis; absent

reliable conservation agreements throughout the lizard’s range

in both states, the Service anticipated the threats of oil and gas

development would have continued, but “with the conservation

agreements, the current habitat conditions will be maintained or

improved, such that [the Service] no longer find[s] this factor to

be a threat, either now or in the future.” Id. at 36,895. If these

circumstances changed, the Service stated that it would consider

re-listing, whether on an emergency basis or otherwise. Id. at

36,899. 

Appellants unsuccessfully challenged the Service’s

withdrawal decision in the district court, Defs. of Wildlife v.

Jewell, 70 F. Supp. 3d 183, 199 (D.D.C. 2014), and now appeal. 

Our review is de novo. Am. Wildlands, 530 F.3d at 998.

II.

Appellants contend the Service’s decision to withdraw its

proposal for listing the lizard as endangered was arbitrary and

capricious because, first, consideration of the Texas plan

violated the Policy in finding the plan was sufficiently certain to

be implemented and effective, and second, the decision
11

unreasonably elevates unenforceable, voluntary state agreements

over the ESA’s required consideration of the adequacy of

“existing regulatory mechanisms.” Notably, appellants do not

challenge any of the Service’s determinations under the five

statutory factors regarding the status of the species, see 16

U.S.C. § 1533(a)(1), beyond how the Texas plan may have

altered the Service’s consideration of those factors. Nor do

appellants challenge the Service’s consideration of the New

Mexico agreements or the BLM plan as part of its ESA

determination regarding the threat of extinction pursuant to

section 1533(b)(1). Because we conclude that appellants are

bound by their affirmative waiver of their statutory challenge to

the Policy, the only question is whether the Service could

properly rely on the Texas plan in determining whether or not to

withdraw its proposed listing of the lizard. That question cannot

be resolved on the basis that the Service’s reliance on the Texas

plan was harmless, for in deciding in 2010 to list the lizard, the

Service explained that the absence of a conservation agreement

in Texas was significant, see NPRM Listing, 75 Fed. Reg. at

77,811, and in deciding in 2012 that listing was no longer

needed the Service was similarly clear that the Texas plan was

critical to its decision, see Withdrawal, 77 Fed. Reg. at

36,894–95, 36,898–99.

A.

Taking appellants’s contentions in reverse order — if the

Policy violates the ESA, a challenge to its application becomes

moot — we hold that they affirmatively waived their statutory

challenge to the Service’s interpretation of the Policy as

allowing consideration of voluntary conservation agreements in

determining that a species need not be listed. On appeal,

appellants contend that even if the Texas plan satisfied the

requirements of the Service’s Policy, the court must nonetheless

evaluate whether the outcome complied with the ESA. In their

view, the Policy “criteria cannot wholly substitute for the ESA’s
12

five factor evaluation,” Appellants’s Br. 54, because any

voluntary conservation agreement should be considered under

both Factor D (“the inadequacy of existing regulatory

mechanisms”), 16 U.S.C. § 1533(a)(1)(D), and the Policy in

order for such an agreement to affect a listing decision. See

Appellants’s Br. 55. 

Appellants’s contention that the Service unlawfully

considered “voluntary” actions and “unenforceable restrictions”

in violation of Factor D is in essence a challenge to the

interpretation of the Policy, which envisions consideration of

voluntary agreements, see 68 Fed. Reg. at 15,113–14. Yet in the

district court, appellants stated in their pleadings that they “are

not challenging the [Policy] so neither [the Chevron nor

Skidmore] standard is applicable here. [Rather, they] are merely

challenging the Service’s application of its [Policy] to the lizard. 

The issue is whether the Texas and New Mexico Agreements

were ‘sufficiently certain to be implemented and effective.’” Pls.

Sum. J. Reply Br. 7 n.5 (emphasis added). The district court

noted their waiver in granting summary judgment to the

Secretary. See Defs. of Wildlife, 70 F. Supp. 3d at 196 n.19, 198

n.24. Having waived this challenge in the district court,

appellants ordinarily may not revive it on appeal. See United

States v. Volvo Powertrain Corp., 758 F.3d 330, 338–39 (D.C.

Cir. 2014); cf. United States v. Olejiya, 754 F.3d 986, 992 (D.C.

Cir. 2014).

Appellants attempt to refocus this contention in their

appellate reply brief, stating that they are not challenging the

Policy but maintaining that “the Service cannot rely on an

agreement or mechanism, regulatory or otherwise, under [ESA]

section 4(b)(1)(A) [16 U.S.C. § 1553(b)(1)(A)] or the [Policy]

that would be rejected under Factor D as too speculative and

uncertain.” See Appellants’s Reply Br. 26–27. This is a nonstarter. Both parties agree that the Policy does not permit the
13

Service to rely upon speculative conservation agreements. 

Indeed, the point of the Policy was to establish criteria for

determining when the Service could deem otherwise incomplete

and unproven voluntary conservation efforts sufficiently certain

to be implemented and effective to be relied on in evaluating

ESA’s listing factors. See 68 Fed. Reg. at 15,113–14. Here the

Service found that the Texas plan was sufficiently certain to be

implemented and be effective. Consequently, if its findings are

supported by substantial evidence, there was no risk that the

Service relied on an overly speculative agreement when it

considered the Texas plan. 

To the extent appellants resist application of the policy on

the basis that the Texas plan and New Mexico agreements “fail

a reasonable analysis under Factor D because they are by

definition not regulatory mechanisms and are too speculative to

ensure the conservation of the species,” Appellants’s Reply Br.

27, this amounts to an attempt to supplement the Policy with a

requirement that is not in it. Whether appellants are contending

that the Policy must incorporate Factor D, or otherwise interpret

its existing requirements in light of Factor D, appellants have

simply rephrased their waived statutory challenge to the Policy. 

The court thus has no occasion to address whether the Policy’s

criteria for evaluating voluntary conservation agreements are

inconsistent with the ESA, and we turn to appellants’s remaining

challenge. 

B.

In addressing the merits of appellants’s challenge to the

Service’s application of the Policy, our review is limited to

determining whether the Service’s consideration of the Texas

plan in deciding to withdraw the proposed listing was “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” Am. Wildlands, 530 F.3d at 997–98

(quoting 5 U.S.C. § 706(2)(A)). Such review is “highly
14

deferential” and “presumes agency action to be valid.” 

Id. (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir.

1976)). An agency acts arbitrarily or capriciously if it has relied

on factors Congress did not intend it to consider, entirely failed

to consider an important aspect of the problem, or offered an

explanation either contrary to the evidence before the agency or

so implausible as not to reflect either a difference in view or

agency expertise. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). An

agency’s factual findings must be upheld when supported by

substantial evidence in the record considered as a whole. Ctr.

for Auto Safety v. Fed. Highway Admin., 956 F.2d 309, 313–14

(D.C. Cir. 1992). “Substantial evidence” means enough

evidence “to justify, if the trial were to a jury, a refusal to direct

a verdict when the conclusion sought to be drawn . . . is one of

fact for the jury.” NLRB v. Columbian Enameling & Stamping

Co., 306 U.S. 292, 300 (1939); see INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992).

Appellants maintain that the Service failed to establish that

the Texas plan is “sufficiently certain to be implemented and

effective” under the criteria in the Policy, 68 Fed. Reg. at

15,114–15. As regards implementation, appellants point to two

of the nine implementation criteria, arguing that the lack of an

implementation schedule in the Texas plan permits habitat loss

to continue with no certainty of conservation benefit and the

absence of evidence the necessary level of voluntary

participation would be achieved. As regards effectiveness,

appellants point to two of the six effectiveness criteria, arguing

that the Texas plan neither reduced specific threats to the lizard

species nor had the requisite incremental objectives. In

particular, appellants maintain the Service did not evaluate

whether the limit on habitat destruction was sufficient, relied on

speculative estimates of future enrollment, and did not

appreciate the effect of being unable to determine which
15

individual properties are enrolled in the conservation effort and

the conservation measures to be undertaken by enrollees.

Appellants’s objections present a variety of narrow, factbased challenges that are refuted by the record as interpreted by

the Service based on its experience and expertise. In addressing

appellants’s criteria-based contentions, we recognize the Service

emphasized that the analysis under its Policy may vary across

agreements and that the purpose of its criteria is merely to

“direct” its analysis; the Service has not identified any one

criterion or set of criteria as necessary or sufficient. See Policy,

68 Fed. Reg. at 15,114; see also PDK Labs. Inc. v. Drug

Enforcement Admin., 438 F.3d 1184, 1194–95 (D.C. Cir. 2006). 

Upon reviewing the Service’s consideration of the Texas plan,

the success it had already achieved, and its likely continued

success based on the progress under the New Mexico

agreements, we conclude that the Service adequately explained

its basis for relying on the Texas plan.

1. Sufficiently certain to be implemented: Appellants cite

criterion five, on the need for an agreement to identify the type

and level of voluntary participation needed to implement the

plan and explain how such participation is likely to occur, in

maintaining the Service improperly analyzed whether the

requisite level of participation would be achieved and sustained. 

It is true that the Service did not explain how the Texas plan has

identified the specific level of participation necessary for the

plan’s success, but the administrative record indicated that the

level of participation would be high and consistent with the

levels the Service previously identified as being necessary for

the lizard’s survival. At the time it published the NPRM Listing,

the Service stated that “participation throughout the majority of

the dunes sagebrush lizard habitat would be necessary for the

conservation of the species.” 75 Fed. Reg. at 77,811. By 2012,

Texas had adopted a voluntary conservation plan to achieve that
16

conservation goal in Texas. The Service was convinced that a

high level of participation in that plan would come about after

finding that 71% of lizard habitat was already enrolled in Texas,

including a significant portion (a little over half) of some of the

most important habitat, and that Texas enrollees had paid over

$773,000 in participation fees. Also, two major operators that

had been instrumental to the success of the New Mexico

conservation effort were enrolled in the Texas plan. Overall,

then, there was substantial evidence that the level of

implementation and success found in New Mexico, which had

achieved 83% enrollment, would also be found in Texas. 2012

Evaluation 33–34;see also Withdrawal, 77 Fed. Reg. at 36,886.

To the extent appellants assert that the Service failed to

consider that any future determination not to list the lizard might

be a disincentive to further enrollment and cause current

enrollees to opt out of the plan — inasmuch as the only benefits

an enrollee might lose would be fees already paid to enroll and

accrued habitat destruction credits — they overlook the

rulemaking and policy records. First, the Service emphasized in

deciding not to list the lizard that the threat of listing persists

even after a decision not to list is made. Withdrawal, 77 Fed.

Reg. at 36,899. The Service explained: 

If at any time data indicate that the protective status

under the Act should be reinstated, including, but not

limited to, information that enrollment in the voluntary

agreements has declined substantially, or if [the

Service] become[s] aware of noncompliance issues

with the conservation measures, or if there are new or

increasing threats, [the Service] can initiate listing

procedures, including, if appropriate, emergency

listing pursuant to section 4(b)(7) of the Act.
17

Id. Based on the continued threat of listing, the Service had

reason to conclude that incentives for joining the Texas plan

remain and current enrollees would be unlikely to wish to

surrender benefits already received and fees already paid under

the plan. Appellants speculate that the lizard would suffer as a

result of the Service’s limited resources to reinitiate listing

proceedings, yet the Service made clear it would reconsider

listing the lizard should its initial analysis prove to be overly

optimistic and emphasized it had the authority to reinitiate

listing proceedings on its own initiative or in response to a

petition for listing based on new information showing listing

was appropriate. Id.; see also 16 U.S.C. § 1533(b)(3)(A),

(b)(6)(B)(ii). Indeed, the Service noted it can initiate, as

necessary, an emergency listing. Withdrawal, 77 Fed. Reg. at

36,899 (citing 16 U.S.C. § 1533(b)(7)). 

Second, in developing the Policy, the Service considered

how to address the effect listing decisions have on the incentives

to enroll in voluntary conservation efforts. Because it is not a

foregone conclusion that an agreement satisfying the Policy will

preclude a need to list, the Service suggested that it was

unnecessary to consider the impact the later listing decision

might have on the implementation of a voluntary agreement. 

See Policy, 68 Fed. Reg. at 15,107, 15,114. That is, the

Policy assumes that implementation will continue and that the

Service will reevaluate its listing decision should there be a

“failure to implement the conservation effort” for any reason. 

Id. at 15,114. In view of the possibility of listing a species if

voluntary conservation efforts are not successfully implemented,

the Service rejected the idea posed in a comment that “parties

lack incentives to develop conservation programs until after the

species is listed.” Id. at 15,107 (Response to Comment Issue

36).
18

Where, as here, the Service was aware that withdrawing the

proposed listing could weaken the incentive for operators to

enroll but determined, in view of updated information about

efforts in New Mexico, that a high level of participation was

likely under the Texas plan, appellants fail to show that it was

arbitrary or capricious for the Service not to subject the Texas

plan to scrutiny beyond that contemplated by the Policy. 

Appellants’s objection that the Service should have required

the Texas plan to specify enrollment goals at a granular level

appears to have been forfeit. Because not all lizard habitat is

treated equally under the Texas plan, appellants maintain that

the Service should have considered how successful the plan

would be in enrolling the most valuable habitat. (The plan

classifies lizard habitat as being in one of four categories, from

very low likelihood of occurrence to very high likelihood of

occurrence.) Appellants also maintain that the Service should

have considered how total enrollment would be affected by

habitat being owned by more than one entity in order to make

sure that all individuals with an interest in the property

(including sub-surface rights) were enrolled in the project. See

NPRM Listing, 75 Fed. Reg. at 77,811. Appellants failed to

raise these challenges in the district court and offer no basis to

excuse their forfeiture because “injustice might otherwise

result.” Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 867 (D.C.

Cir. 2008) (quoting Ben-Kotel v. Howard Univ., 319 F.3d 532,

535 (D.C. Cir. 2003)); Blackmon-Malloy v. U.S. Capitol Police

Bd., 575 F.3d 699, 707 (D.C. Cir. 2009); cf. United States ex rel.

Davis v. District of Columbia, 793 F.3d 120, 126 (D.C. Cir.

2015). Nor does the record support their position that they are

now merely refining arguments relating to claims they made in

the district court. See Appellants’s Reply Br. 5–6 (citing Teva

Pharm., USA, Inc. v. Leavitt, 548 F.3d 103, 105 (D.C. Cir.

2008), and Koch v. Cox, 489 F.3d 384, 391 (D.C. Cir. 2007),

which both cite Yee v. City of Escondido, 503 U.S. 519, 534
19

(1992)). Most of their district court pleadings on which they

rely focus on whether the Texas plan was sufficiently certain to

be effective — not implemented. Their only challenge to

implementation was that enrollment will slow once the proposed

listing was withdrawn. To reach the theory raised on appeal

would require this court to “recast [a]ppellant[s’s] position in the

district court.” See In re Harman Int’l Indus., Inc. Sec. Litig.,

791 F.3d 90, 101 (D.C. Cir. 2015). 

In any event, the record demonstrates that the Service

appreciated the importance of the different occupancy

categories, focusing on enrollment in three types of habitat

where a lizard was most likely to be found. 2012 Evaluation 33.

Because survey information for this species is limited and does

not conclusively establish the lizard’s abundance in certain

areas, see Withdrawal, 77 Fed. Reg. at 36,876, the Service

reasonably lumped together these three categories. Indeed, even

the fourth category, which carries only a very low likelihood of

lizard occurrence, is in most respects “good quality” lizard

habitat. See TEXAS CONSERVATION PLAN fig. 1-2. The

comments by a random Service employee about a need for

higher enrollment levels among the top-three habitat categories

at best indicate a lack of consensus within the Service; they do

not bind the Service, see Comcast Corp. v. FCC, 526 F.3d 763,

769 (D.C. Cir. 2008), which had previously stated that

“participation throughout the majority” of lizard habitat was all

that was necessary for “the conservation of the species,” see

NPRM Listing, 75 Fed. Reg. at 77,811. Appellants speculate

that a pattern of relatively higher enrollment in the lowlikelihood habitat categories demonstrates that Texas and the inState operators are gaming the system, but the enrollment

pattern does not make bad faith so clear that it was arbitrary for

the Service not to address such concerns, particularly in view of

its relisting authority. 
20

Appellants also failed to object in the district court that the

Service was required by the Policy to separately analyze the

level of participation in the Texas plan by mineral and surface

estate owners. On appeal, the Service does respond that the

Texas plan makes explicit some of the difficulties posed by

split-estate ownership, but maintains this argument is forfeit and

that the Policy does not provide so specific a rule. Whether

because forfeited or because deference is owed to the Service’s

interpretation of its Policy, see, e.g., Christopher v. SmithKline

Beecham Corp., 132 S. Ct. 2156, 2166 (2012), the court need

not conclude that the Service acted arbitrarily. The rulemaking

record shows that the Service considered the problem and

remained confident that overall enrollment would be high. See

supra Part II.B.1; 2012 Evaluation 32–35. 

Appellants also point to criterion eight regarding an

implementation schedule (including incremental completion

dates). Policy, 68 Fed. Reg. at 15,115. The Texas plan does not

include an implementation schedule as such. The Service

recognized this, and it was not unreasonable for it to conclude

nonetheless that the plan has “sufficient structure, regulatory

mechanisms, and planning to achieve the necessary conservation

benefit.” See 2012 Evaluation 35. The Service concluded that

the plan’s design “requires that a positive biological response

must precede habitat loss authorized by the [Certificates of

Inclusion].” Id. By design, habitat will be reconnected at a

higher rate than habitat lost during the 30-year life of the Texas

plan. To that end, there is “stringent monitoring and research to

develop conservation actions that benefit the species prior to any

further habitat loss.” Id. Further, there are many schedule-like

elements to the plan, including habitat loss limits of 1% and

10% set at three- and thirty-year marks. The Service stated that

it intends to strictly monitor the implementation of the Texas

plan for the first three years and then evaluate effectiveness and

determine whether and how much additional habitat loss above
21

the 1% may be authorized under the Texas plan.

Appellants’s objection that the Texas plan contains a

“loophole” allowing habitat loss to continue with no certainty of

conservation benefit also appears to be forfeit. They claim the

Service erred in stating “the plan’s design requires that a

positive biological response must precede habitat loss authorized

by the [Certificates of Inclusion].” Appellants’s Br. 36 (citing

2012 Evaluation 35). Instead, they read the plan to permit those

engaging in such activities to receive 50% of the value of the

recovery activity before biological effectiveness is

demonstrated. Nowhere in their district court pleadings did

appellants refer to the “loophole theory” or their concerns about

delayed determinations of biological effectiveness. In moving

for summary judgment, appellants noted at most the plan’s lack

of an implementation schedule generally and argued that there

was no factual support for the Service’s conclusion that “the

plan has sufficient structure, regulatory mechanisms, and

planning to achieve the necessary conservation benefit.” Pls.

Sum. J. Br. 30 & n.12. Moreover, appellants ignore the

Service’s statement in a related section of its evaluation

explaining why it was confident that a positive biological

response would result: 

Mitigation credits will be generated by implementing

on-the-ground conservation actions prior to authorizing

any activities that may result in habitat loss. A positive

biological response must first be demonstrated before

full credit is given for a mitigation activity. Despite

not having an implementation schedule, the plan and

the permit have requirements that will ensure that

mitigation results in positive biological responses . . . .

2012 Evaluation 37 (emphasis added). As noted, the Service

relied on the requirement of strict monitoring, the goal of
22

restoring habitat at a much greater rate than habitat loss, and the

limits to habitat loss over the life of the Texas plan. See id. at

35–36, 38. 

2. Sufficiently certain to be effective. Here, appellants

challenge the adequacy of the Service’s analysis under two

criteria, contending that the Service failed to analyze how the

Texas plan reduces specific threats to the lizard and to identify

the explicit incremental objectives for the conservation effort. 

See Policy, 68 Fed. Reg. at 15,115; supra note 1. The Secretary

maintains that the effectiveness of the Texas plan is shown by

the fact that it: (1) prioritizes avoidance of habitat loss; (2) limits

(on a percentage basis) overall habitat loss; (3) specifically

identifies efforts to remove threats to shinnery oak (removal of

mesquite and moving of oil-and-gas infrastructure);

(4) identifies efforts to eliminate other threats like predator

perches and threats from roads; (5) requires each individual

certificate to list conservation measures specific to each site; and

(6) details provisions for mitigation and adaptive management,

both of which should ensure active management and monitoring

of the conservation effort. 2012 Evaluation 36–37. Appellants

contend the Service’s analysis was deficient because (a) the

Texas plan’s limit on habitat destruction was insufficient to

ensure its effectiveness in protecting the lizard, (b) the plan’s

effectiveness was assessed on the basis of speculative future full

enrollment rather than the current level of enrollment, and (c)

state confidentiality laws would interfere with the Service

receiving the information on enrolled properties necessary to

protect the lizard from habitat fragmentation, including the

actual conservation measures that enrollees agreed to undertake. 

Appellants fail to show the Service’s conclusions were

unreasonable or arbitrary or capricious.

(a) Appellants maintain that the Service should have

determined whether the plan’s 1% cap actually reduces the
23

threat to the lizard in light of its determination in 2010 that the

lizard “faces immediate and significant threats due to oil and gas

activities, and herbicide treatments,” NPRM Listing, 75 Fed.

Reg. at 77,813. In their view, any cap that permits oil-and-gas

development to occur at the same level it could have occurred

without the cap cannot rationally be described as reducing the

threat to the lizard. Assuming the cap was based on the

maximum potential amount of gas and oil development as of

2012, a cap system appears from the record to have been the

only available method given the difficulty of determining “how

large habitat patches need to be in order to maintain viable

populations of dunes sagebrush lizards.” Withdrawal, 77 Fed.

Reg. at 36,887; see also id. at 36,881 (discussing how it had

been impossible to calculate the lizard’s critical habitat “because

the location and distribution of physical and biological features

that may be considered essential to the conservation of the

species were not sufficiently understood at that time”). Because

predicting the future status of wildlife is a difficult task, the

court has acknowledged deference is appropriate to the agency’s

evaluation of scientific data within its technical expertise. See

Am. Wildlands, 530 F.3d at 1000–01. Appellants point to no

superior habitat evidence that the Service should have

considered. Cf. City of Las Vegas v. Lujan, 891 F.2d 927,

932–33 (D.C. Cir. 1989) (citing 16 U.S.C. § 1533(b)(1)(A)). 

Further, even though the cap may suggest that development

will continue at historical rates, appellants are not correct that

the cap system necessarily permits developers to destroy habitat

at the same rate as the historical trend. Although the Service

could authorize as much as 10% habitat loss over the 30-year

life of the Texas plan, it is not a foregone conclusion it will do

so. The Service must first authorize any additional habitat loss

above the initial 1% cap, and whether it does will depend on the

outcome of its study of the success of the Texas plan over its

first three years. Withdrawal, 77 Fed. Reg. at 36,885; see also
24

2012 Evaluation 35. Moreover, habitat loss is authorized only

to the extent it cannot be avoided, and the cap structure limits

how much may be lost in specific categories of habitat,

potentially limiting the loss of the most valuable habitat. 

Significantly, the conclusion that the cap would be effective at

limiting habitat loss is further supported by the Service’s

determination that the lizard is not threatened by any further oil

and gas development, in part because “more than 50 percent of

the dunes sagebrush lizard’s habitat is not fragmented,”

Withdrawal, 77 Fed. Reg. at 36,889; see also id. at 36,881,

36,895. The Service recognized that there is currently enough

lizard habitat such that “if future development and activities

involving oil and gas exploration . . . are placed outside of the

dunes sagebrush lizard’s habitat . . . the species currently has

adequate habitat to persist into the future.” Id. at 36,895. With

the conservation plans in place, the Service did “not anticipate

future development to mirror the historical development that has

already occurred” and concluded that “oil and gas development

will not continue within dunes sagebrush lizard habitat at

historical rates.” Id. at 36,894.

Notwithstanding the combination of the Texas plan’s

avoidance, mitigation, and recovery strategies, appellants

maintain that enrollees will never be forced to avoid habitat loss

because avoidance is necessary only “when feasible” or based

on some other undefined, open-textured phrases, under the loss

avoidance principles. In fact, the plan includes criteria for

unavoidable habitat loss, see TEXAS CONSERVATION PLAN app.

H, and those involved in the conservation process understand the

standard to be demanding, such that loss is available only “[i]f

avoidance of lizard habitat cannot be accomplished,”

Withdrawal, 77 Fed. Reg. at 36,885. Oil-and-gas producers

have stated that most production will likely occur outside of

suitable habitat; only smaller, less flexible operators may need

to take advantage of the need to engage in habitat loss. 2012
25

Evaluation 23. To further ensure that loss avoidance is not

easily skirted, the plan contemplates more stringently applying

the relevant criteria in the event that habitat loss reaches 75% of

the 1% cap. 

Even when loss is permitted, those engaging in the loss

must “adopt conservation measures that minimize habitat

impacts, and as a last resort, mitigate for the loss of lizard

habitat.” Withdrawal, 77 Fed. Reg. at 36,885. Appellants

suggest that any mitigation efforts would be valueless, either

because shinnery oak cannot be created or (repeating the

“loophole” argument) because operators can get the benefit of

mitigation prior to showing that it provided some real benefit to

the lizard. The science before the Service supports its view that

many conservation efforts may improve existing habitat, in part

by removing obstacles to expansion of existing shinnery oak. 

See id. at 36,894–95. In this context, the “loophole” argument,

assuming it is not forfeit, is even less persuasive. Regardless of

the biological response to the mitigation ultimately, the operator

is required to complete the entirety of the mitigation activity

prior to engaging in any habitat loss. Further, operators are not

free to select whichever mitigation and recovery activities they

might want; some examples of available mitigation activities are

enumerated in the Texas plan and operators must work with

those administering the plan to develop a management plan that

lays out which mitigation and recovery activities are appropriate

for each property. See TEXAS CONSERVATION PLAN 47, 51–52,

85–86. To the extent that these completed activities might prove

to have less biological value than initially anticipated, the

Service was persuaded that with the “robust feedback

mechanisms . . . there is a high degree of certainty that the

biological objectives will be accomplished through

implementation, research, and then adjustment of the strategy,

as appropriate.” 2012 Evaluation 37. And in the meantime, the

Service concluded that a net positive response is more likely
26

because of the need to “secure commensurate mitigation, often

at a rate higher than that which is impacted, prior to habitat

disturbance.” Id. Even if the biological response rate later turns

out to be less than 100%, the Service could reasonably view the

need to engage in mitigation at greater than a one-to-one level

to help ensure appropriate offsets. 

(b) Appellants are correct that the Texas plan cannot

constrain those who are not enrolled. But the cap already

assumes that under a reasonable worst-case scenario, there could

be development in 10% of the lizard’s habitat. More

fundamentally, appellants’s concerns about the level of

enrollment merely repackage their challenge to the Service’s

predictions about the likelihood that the Texas plan will be

successfully implemented. As noted, see supra Part II.B.1,

substantial evidence supports the conclusion that Texas

enrollment will approach the enrollment level in New Mexico,

thereby mitigating concern about unenrolled land. Contrary to

appellants’s view, nothing in the Policy precludes the Service

from estimating future enrollment so long as the Service

explains the basis for its view that the level of enrollment is

sufficiently certain to come about. See 68 Fed. Reg. at

15,114–15.

(c) Appellants emphasize the problems posed by Texas’s

confidentiality law, see Tex. Gov’t Code § 403.454, and the

confidentiality provisions in the Texas plan itself. Based on

these provisions, the Service will not know the specific location

of enrolled land as information is disclosed only at the

aggregate, dune complex habitat-polygon level. A dune

complex may include both unenrolled and enrolled lands, which

appellants maintain permits unchecked habitat fragmentation —

the greatest threat to the lizard. Further, they maintain that the

Service could not have determined that sufficient reclamation

and restoration activities would take place because it had no way
27

of knowing which reclamation and restoration measures

enrollees agreed to undertake as the individual Certificates of

Inclusion are confidential. Appellants also assume that because

enrollees need not report conservation efforts to the Service,

enrollees will not engage in conservation efforts. 

The problems posed by the confidentiality requirement are

not as extreme as appellants suggest. First, the Texas plan

requires the State to provide the Service with all information it

needs to monitor plan compliance. See TEXAS CONSERVATION

PLAN 32–33 § 8.2.4. Although this information will be provided

at the dune complex level, the Service was satisfied that this is

“at a scale-of-resolution appropriate for assessing status/trends

as well as operational decisions regarding compliance,

effectiveness and adaptive management.” 2012 Evaluation 31. 

Contrary to appellants’s view, the Service did not merely

“‘[s]tat[e] that a factor was considered’ — or found,” Gerber v.

Norton, 294 F.3d 173, 185 (D.C. Cir. 2002) (first alteration in

original) (quoting Getty v. Fed. Savs. & Loan Ins. Corp., 805

F.2d 1050, 1055 (D.C. Cir. 1986)), but rather evaluated, in the

Service’s judgment, the scale of resolution necessary for it to

carry out its monitoring efforts.

Second, the Service can expect to learn, based on the plan’s

reporting requirements, the overall number of enrollees, the

activities taken by enrollees (as a group) in a dune complex,

information about the quantity and quality of lizard habitat, the

amount of incidental “take,” issues of noncompliance, and the

overall effectiveness of the plan. See TEXAS CONSERVATION

PLAN 31–32 § 8.2.3. The Service will have data on noncompliance events and not be wholly unable to determine

whether observed habitat loss is the result of non-compliance or

non-enrollment. Although the Service may not know in advance

the details about the conservation efforts agreed to by an

individual enrollee, it will have information about when
28

conservation efforts were necessary in an individual dune

complex because an operator wished to engage in an activity

that would result in habitat loss. To the extent the lack of

knowledge about the precise location of unenrolled and enrolled

property increases the risk of fragmentation, the record provides

substantial evidence supporting the Service’s evaluation

regarding the scope of information it requires, inasmuch as the

Service concluded that prevention of all fragmentation is

unnecessary because “more dunes sagebrush lizards were found

in large areas of abundant habitat, regardless of whether the

overall landscape was fragmented.” Withdrawal, 77 Fed. Reg.

at 36,888. 

The confidentiality provisions may limit the Service’s

ability to monitor individual parcels, but that does not mean that

individual enrollees’ compliance with the Texas plan goes

unverified. For the Texas plan to have legal effect, the Service

recognized that it must meet the conditions for obtaining a

permit under ESA section 10(a), 16 U.S.C. § 1539(a)(1); see 50

C.F.R. §§ 17.22(d)(2), 17.32(d)(2). Under the Texas plan, an

administrator — and not the Service — is responsible for

enforcing the terms of the individual Certificate of Inclusion by

which an operator agreed to join the plan. If the administrator

finds that an operator is not in compliance, the administrator

may revoke the benefits the operator receives by joining the

Texas plan. If, however, the Service concludes the plan

administrator is not appropriately tracking mitigation activities

and engaging in compliance monitoring and reporting, it has

authority to suspend or revoke the permit, thereby limiting the

benefits of the Texas plan for all enrollees. See 50 C.F.R.

§§ 13.27, 13.28; TEXAS CONSERVATION PLAN 56. 

Consequently, it was not unreasonable for the Service to agree

to receive data at the dune complex level; such information is

sufficient, in its judgment, for the Service to monitor the

administrator’s implementation of the plan and determine
29

whether plan terms need modification. Nor, in view of the

Texas administrator’s role in that process, was it unreasonable

for the Service to conclude that the confidentiality provisions

would not interfere with ensuring enforcement of the conditions

of enrollment. 

The Texas plan may not be foolproof, but neither is every

regulatory regime. The evaluation of the adequacy of the Texas

plan involves the Service’s judgment based on its expertise and

experience. Appellants have failed to demonstrate that the

Service was arbitrary and capricious in exercising that judgment

to rely on the Texas plan. Accordingly, we affirm the grant of

summary judgment.