IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50321

AMERICAN STEWARDS OF LIBERTY; CHARLES SHELL; CHERYL 

SHELL; WALTER SIDNEY SHELL MANAGEMENT TRUST; KATHRYN 

HEIDEMANN; ROBERT V. HARRISON,

 

 Plaintiffs

JOHN YEARWOOD; WILLIAMSON COUNTY, TEXAS, 

 Intervenor Plaintiffs - Appellants - Cross Appellees

v.

DEPARTMENT OF INTERIOR; UNITED STATES FISH AND WILDLIFE 

SERVICE; DAVID BERNHARDT, SECRETARY, U.S. DEPARTMENT OF 

THE INTERIOR, in his official capacity; MARGARET E. EVERSON, in her 

official capacity as Director of the U.S. Fish and Wildlife Service; AMY 

LUEDERS, in her official capacity as the Southwest Regional Director of the 

U.S. Fish and Wildlife Service, 

 Defendants - Appellees - Cross Appellants

CENTER FOR BIOLOGICAL DIVERSITY; TRAVIS AUDUBON; 

DEFENDERS OF WILDLIFE,

 Intervenor Defendants - Appellees

Appeals from the United States District Court

for the Western District of Texas

Before STEWART, DENNIS, and HAYNES, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

May 29, 2020

Lyle W. Cayce

Clerk

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PER CURIAM:

The Bone Cave harvestman is a small arachnid known to live only in 

central Texas that is currently included on the federal endangered species list. 

In 2014, a non-profit group and several individuals, including John Yearwood,

filed a petition with the U.S. Fish and Wildlife Service (“FWS”) calling for the 

Bone Cave harvestman to be delisted because it does not currently meet the 

standards for an endangered species. After reviewing the petition, FWS issued 

a negative “90-day finding,” which is a summary denial based on the agency’s 

conclusion that the petition did not present sufficient scientific or commercial 

evidence indicating that delisting was warranted. 

Some of the petitioners (collectively, “the Original Plaintiffs”)—but not 

Yearwood— filed an action in federal district court under the Administrative 

Procedures Act (“APA”), challenging FWS’s negative 90-day finding as 

arbitrary and capricious. While the case was pending, the district court 

allowed Yearwood and Williamson County (collectively, “the Intervening 

Plaintiffs”) to intervene to separately argue that federal regulation of the 

purely intrastate species is unconstitutional because it exceeds Congress’s 

power under the Commerce and Necessary and Proper Clauses. 

The district court ultimately rejected the Intervening-Plaintiffs’

constitutional arguments but granted summary judgment to the Original 

Plaintiffs, concluding that FWS had erred by demanding a higher quantum of 

evidence than was statutorily required for a 90-day finding. The court vacated 

and remanded FWS’s negative 90-day finding, and FWS has since issued a 

positive 90-day finding and begun a more substantial 12-month review to 

determine whether the Bone Cave harvestman should be delisted. The 

Intervening Plaintiffs now appeal the denial of their motion for summary 

judgment, arguing that this court retains jurisdiction to hear their separate 

constitutional arguments for delisting the Bone Cave harvestman. Because we 

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find that their appeal is alternatively moot or barred by sovereign immunity, 

we dismiss the appeal for lack of jurisdiction.

I.

A.

Texella reyesi, or the Bone Cave harvestman, is a tiny, pale orange, 

eyeless arachnid1 known to live only in caves within a 150-square-mile stretch 

of Travis and Williamson Counties in Texas. FWS first added the arachnid to 

the endangered species list in 1988 as the Bee Creek Cave harvestman, see 53 

Fed. Reg. 36,029 (Sept. 16, 1988), then listed the Bone Cave harvestman 

separately in 1993 after further studies revealed that the population was 

composed of two distinct species, 58 Fed. Reg. 43,818 (Aug. 18, 1993). The 

inclusion of the Bone Cave harvestman on the endangered species list makes

it a federal crime to “take” the species or disturb its habitat. See 16 U.S.C. § 

1538(a)(1)(B); 50 C.F.R. § 17.21(c). A “take” is defined as “harassing, harming, 

pursuing, hunting, shooting, wounding, killing, trapping, capturing, or 

collecting” members of the species “or attempting to engage in any such 

conduct.” 16 U.S.C. § 1532(19).

In June 2014, the non-profit advocacy group American Stewards of 

Liberty, Yearwood, and several other individuals that owned land inhabited by 

Bone Cave harvestmen collectively filed with FWS a “Petition to delist the 

Bone Cave harvestman (Texella reyesi) in accordance with Section 4 of the 

Endangered Species Act of 1973.” The petition argued that the Bone Cave 

harvestman should no longer be considered endangered because scientists had 

discovered 166 new localities containing the species since the time of the 

original listing; many of the localities were protected by other federal, state, 

1 Although harvestmen bear a superficial resemblance to spiders, they are actually a 

distinct order of arachnids known as Opiliones.

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and local regulations; and development and other human activity in the 

vicinity of the localities had been shown to be less harmful to Bone Cave 

harvestman populations than was previously thought. 

A year later, FWS issued a 90-day finding on the petition, which is a 

preliminary ruling required under 16 U.S.C. § 1533(b)(3)(A) regarding whether 

further consideration of a petition is warranted. 80 Fed. Reg. 30,990 (June 1, 

2015). FWS determined that, although population data on the species was 

likely impossible to obtain due to much of the population’s residing in caves 

that are inaccessible to humans, the petition was deficient because it did not 

include population “trend analysis to indicate that this species can withstand 

the threats associated with development or climate change over the long term.” 

Id. Accordingly, FWS concluded that no further review was necessary and 

denied the petition. Id.

B.

In December 2015, the Original Plaintiffs filed an action challenging 

FWS’s negative 90-day finding in the U.S. District Court for the Western 

District of Texas under Section 702 of the APA, 5 U.S.C. § 702. The complaint 

argued that FWS had applied an inappropriately heightened standard at the 

90-day review stage, demanding more than the regulatorily required “amount 

of information that would lead a reasonable person to believe that the measure 

proposed in the petition may be warranted.” 50 C.F.R. § 424.14(b)(1). Shortly 

thereafter, the Intervening Plaintiffs filed a motion to intervene, seeking a 

declaration that federal regulation of the Bone Cave harvestman is

unconstitutional and a permanent injunction preventing FWS from enforcing 

the prohibition on Bone Cave harvestman takes in addition to vacatur of the 

90-day finding. The district court granted the Intervening Plaintiffs

permissive intervention under FEDERAL RULE OF CIVIL PROCEDURE

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24(b)(1)(B), stating without elaboration that their claims shared common 

questions of fact with those of the Original Plaintiffs.

The parties filed cross motions for summary judgment, and, on March 

28, 2019,2 the district court entered an order granting summary judgment to 

the Original Plaintiffs and disposing of all parties’ claims. Am. Stewards of 

Liberty v. Dep’t of the Interior, 370 F. Supp. 3d 711 (W.D. Tex. 2019). The court 

first determined that, by requiring population data that was admittedly 

unavailable, FWS had not made its decision based on the best available data 

as was statutorily required. Id. at 727-28. The court found that the delisting 

petition had presented sufficient data that a reasonable person would conclude 

that delisting may be warranted and it thus met the standard for a positive 90-

day finding and a more substantial 12-month review. Id. The district court

therefore vacated FWS’s negative 90-day finding and remanded the case for 

further consideration. Id. at 728-29. FWS accepted the remand and has since 

issued a positive 90-day finding, see 84 Fed. Reg. 54,542 (Oct. 10, 2019), and 

this aspect of the district court’s ruling is not at issue in this appeal.

Turning to the Intervening Plaintiffs’ motion for summary judgment, the 

district court observed that the general six-year statute of limitations for civil 

actions against the United States applies to claims brought under the APA. 

Am. Stewards of Liberty, 370 F. Supp. 3d at 731 (citing 28 U.S.C. § 2401(a)). 

The court reasoned that, under this court’s decision in Dunn-McCampbell 

Royalty Interest, Inc. v. National Park Service, 112 F.3d 1283, 1286 (5th Cir. 

2 Prior to the motions for summary judgment, FWS requested that the matter be 

returned to the agency for consideration of additional materials that it had inadvertently 

omitted during its initial decision, and the district court granted the motion. Several months 

later, FWS issued a new 90-day finding that mirrored the reasoning of the first, again 

concluding that the petition had failed to present substantial scientific and commercial data 

indicating delisting was warranted. 82 Fed. Reg. 20,861 (May 4, 2017). Subsequently, the 

Original Plaintiffs and the Intervening Plaintiffs amended their respective complaints to 

instead challenge the new 90-day finding.

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1997), the law distinguishes between facial challenges to agency regulations 

and challenges to a subsequent agency action applying the regulation for 

purposes of determining when an APA claim accrues. Am. Stewards of Liberty, 

370 F. Supp. 3d at 731. A naked facial claim alleging that the regulation 

exceeds the agency’s statutory or constitutional authority accrues upon the 

agency’s publishing the regulation, the court continued, and such a challenge

thus must be brought within six years thereof. Id. By contrast, a challenge to 

a specific application of the regulation accrues at the time of the agency action 

applying the regulation to the plaintiff, the district court explained, including 

an agency’s denial of a plaintiff’s petition to rescind the regulation or its

issuance of an order requiring the plaintiff to comply with the regulation. Id. 

Applying this framework to the Intervening Plaintiffs’ claims, the court 

determined that Yearwood’s challenge to FWS’s constitutional authority to 

regulate the Bone Cave harvestman was timely because he was a signatory to 

the delisting petition and therefore could demonstrate a recent final agency 

action applying the regulation to him personally. Id. at 731-32. Williamson 

County was not a party to the petition, however, and its claim was therefore 

time-barred because it was not brought within six years of the original listing 

of the species, the court concluded. Id. at 732.

As for the merits of Yearwood’s challenge, the court found that the Fifth 

Circuit had already specifically determined in GDF Realty Investments, Ltd. v. 

Norton, 326 F.3d 622 (5th Cir. 2003), that, because regulation of the Bone Cave 

harvestman is an essential part of the economic scheme established by the 

Endangered Species Act, it does not exceed Congress’s power under the 

Commerce Clause. Am. Stewards of Liberty, 370 F.Supp. 3d at 732-33. 

Accordingly, the court denied the Intervening-Plaintiffs’ motion for summary 

judgment. Id. at 735.

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The Intervening Plaintiffs timely appealed. While the appeal was 

pending before this court, the Government filed a motion to dismiss for lack of 

jurisdiction. The Government argued, inter alia, that the appeal was moot 

because the challenged agency action that formed the basis of the InterveningPlaintiffs’ claims had been vacated. A motions panel of this court ordered the 

motion carried with the case.

II.

This Court is “obligated to determine de novo” whether it has jurisdiction 

over an appeal. In re Scruggs, 392 F.3d 124, 128 (5th Cir. 2004). Here, the 

Intervening Plaintiffs ultimately seek a judicial ruling as to the 

constitutionality of FWS’s regulation of activities affecting the Bone Cave 

harvestman. However, it is well settled that “[t]he federal courts established 

pursuant to Article III of the Constitution do not render advisory opinions”;

“concrete legal issues, presented in actual cases, not abstractions are 

requisite.” Golden v. Zwickler, 394 U.S. 103, 108 (1969) (quoting United Public 

Workers of American (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947)). Thus, the 

Intervening Plaintiffs must allege an actual or imminent injury that is 

traceable to a specific action by FWS that is redressable by relief the court is 

authorized to grant. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 

(1992).

In cases against the federal government and its instrumentalities, this 

inquiry is intertwined with questions of sovereign immunity. “[T]he United 

States is immune from suit unless it consents, and the terms of its consent 

circumscribe our jurisdiction.” Dunn-McCampbell Royalty Interest, Inc. v. 

National Park Service, 112 F.3d 1283, 1287 (5th Cir. 1997). Thus, the 

Intervening Plaintiffs may only bring suit against FWS and the other federal 

defendants if they are able to trace their alleged injury to an action by the 

defendants that federal law allows to be challenged, and even then only if the 

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action is brought within the time period that federal law allows for such a suit. 

In other words, a “failure to sue the United States within the limitations 

period” for a specific cause of action “is not merely a waivable defense. It 

operates to deprive federal courts of jurisdiction.” Id. (citing Sisseton–

Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 592 (9th Cir. 1990)).

By including a mechanism in the APA for a person “adversely affected or 

aggrieved by agency action” to obtain judicial review, Congress has waived 

sovereign immunity specifically for challenges to final agency decisions. See 

id.; 5 U.S.C. § 702. To fall within this waiver, however, a challenge must be 

brought within six years of the final agency action allegedly causing a 

plaintiff’s injury.3 Dunn-McCampbell, 112 F.3d at 1287. This means that, to 

bring a challenge to an original agency action adopting a regulation like FWS’s

listing of the Bone Cave harvestman, plaintiffs must bring their claims within 

six years of the publication of the rule—here, FWS’s 1988 decision to add the 

harvestman to the endangered species list (or at least the 1993 decision to list 

harvestman as a separate species).4 See id. 

This court held in Dunn-McCampbell, however, that a plaintiff who 

misses this window may still obtain effective review of the regulation by 

instead bringing a challenge within six years of a later final agency action that 

applies the regulation to the plaintiff. See id. (“[A]n agency’s application of a 

rule to a party creates a new, six-year cause of action to challenge to [sic] the 

agency’s constitutional or statutory authority.” (citing Texas v. United States, 

749 F.2d 1144, 1146 (5th Cir. 1985); Wind River Mining Corp. v. United States,

3 As the district court noted, because the APA does not contain its own statute of 

limitations, the general six-year statute of limitations for civil suits against the United States 

applies to APA claims. Dunn-McCampbell, 112 F.3d at 1286 (citing 28 U.S.C. § 2401(a)).

4 This is the only time in which a plaintiff may bring a challenge to a regulation based 

on the procedures by which it was adopted. See Pub. Citizen v. Nuclear Regulatory Comm’n, 

901 F.2d 147, 152 (D.C. Cir. 1990).

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946 F.2d 710, 715 (9th Cir. 1991); Pub. Citizen v. Nuclear Regulatory Comm’n, 

901 F.2d 147, 152 (D.C. Cir. 1990))). An agency applies a regulation to a party 

when it, for example, issues an order requiring a plaintiff to comply with the 

regulation, imposes a fine or other sanction against the plaintiff for violating 

the regulation, or denies a plaintiff’s petition to rescind the regulation. See id.

In the present case, the Intervening Plaintiffs argue that, by denying the 

petition to delist the Bone Cave harvestman, FWS engaged in a new final 

agency action that reaffirmed the validity of the listing and restarted the clock 

on the six-year statute of limitations to challenge the listing. As an initial 

matter, it is not totally clear that the delisting petition at issue in this case was 

equivalent to the kind of petition to rescind a regulation contemplated in DunnMcCampbell. 16 U.S.C § 1533(a)(1) lays out the five substantive, fact-based

factors that FWS may consider when choosing to list or delist a species. The 

petition in this case argued that, under these factors, the Bone Cave 

harvestman either never warranted listing in the first place or had recovered 

sufficiently enough that listing was no longer warranted. The petition did not 

argue that the listing was unconstitutional, and, had the delisting petition 

been granted, the effect of delisting the Bone Cave harvestman would likely 

not be the same as rescinding the original listing on constitutional grounds. 

For example, individuals who violated the prohibition on taking Bone Cave 

harvestmen during the time the species was listed would still be prosecutable 

if the species were delisted on statutory grounds, but they likely would not be 

prosecutable if the original listing were rescinded as unconstitutional. Cf.

United States v. Goodner Bros. Aircraft, 966 F.2d 380, 384-85 (8th Cir. 1992) 

(holding that convictions based on violations of invalidated regulation must be 

reversed because regulation was “void ab initio”). Thus, it is not totally clear 

that the denial of the delisting petition opened the Bone Cave harvestman 

listing to attack on constitutional grounds in the first place. See National Ass’n 

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of Reversionary Property Owners v. STB, 158 F.3d 135, 141-42 (D.C. Cir. 1998) 

(discussing limits on when a subsequent agency decision “reopens” a previous 

decision to challenge).

In any event, assuming the Intervening Plaintiffs are correct that the 

delisting petition is equivalent to a petition to rescind the Bone Cave 

harvestman listing, the district court’s vacatur of FWS’s denial of the petition 

nevertheless renders their appeal nonjusticiable for two reasons. First, even 

if the Intervening Plaintiffs were correct that the denial of the petition simply 

restarts the clock and allows a plaintiff to challenge the original listing of the 

species, the petition would no longer be “denied” following the vacatur ordered 

by the district court, and the clock would therefore no longer be restarted. See 

Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 64 (D.D.C. 2004) (noting that “vacatur 

restores the status quo before the invalid [agency action] took effect”). 

On a more basic level, however, the Intervening Plaintiffs misconstrue 

the holding of Dunn-McCampbell and the cases that it relied upon. A final 

agency action that applies a regulation to a particular plaintiff does not restart 

the clock on a challenge to the original enactment of the regulation. Rather, 

Dunn-McCampbell “merely stand[s] for the proposition that an agency’s 

application of a rule to a party creates a new, six-year cause of action” to 

challenge that specific application of the rule. 112 F.3d at 1287. It is incidental 

that the new cause of action implicates the same question of law—whether the 

regulation is valid—as a challenge to the original listing. Following the 

vacatur, there is no new agency action to challenge, and in the absence of “some 

[new] direct, final agency action involving the particular plaintiff,” the 

Intervening Plaintiffs may trace their alleged injuries only to FWS’s original 

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listing of the Bone Cave harvestman, to which challenges are jurisdictionally 

time-barred.5 Id. 

The Intervening Plaintiffs argue that vacatur and remand does not moot 

an appeal when a plaintiff has requested and been denied additional relief 

beyond the vacatur because the plaintiff has received only “half a loaf.” 

However, the cases the Intervening Plaintiffs rely on deal exclusively with the 

special statutory judicial review provision of the Social Security Act, which 

permits a court to “modify[] or revers[e] the decision of the [agency] with or 

without remanding the cause for a rehearing.” Forney v. Apfel, 524 U.S. 266, 

269 (1998) (quoting 42 U.S.C. § 405(g)); Bordelon v. Barnhart, 161 F. App’x 

348, 351 (5th Cir. 2005) (unpublished). No comparable provision exists in the 

APA or Endangered Species Act that would have permitted the district court 

to modify or outright reverse FWS’s 90-day finding. And, even if the district 

court was empowered to reverse FWS’s decision, the result would not be the 

delisting of the Bone Cave harvestman, but rather simply a positive 90-day 

finding—an outcome that has already come to pass and that does not redress 

the Intervening Plaintiffs’ alleged injuries.

In sum, if the Intervening Plaintiffs’ claim is construed as a challenge to 

the denial of the delisting petition, their appeal is moot because the denial has 

been vacated and it therefore can no longer be the cause of any of the 

Intervening-Plaintiffs’ alleged injuries. If it is instead viewed as a challenge 

to FWS’s original listing of the Bone Cave harvestman, the challenge is barred 

by sovereign immunity because it was not brought within the six-year statute 

5 Specifically, the Intervening Plaintiffs allege that they are burdened by the 

continued listing of the Bone Cave harvestman because they, for example, cannot develop 

their property without obtaining take permits and must take costly affirmative steps to 

preserve the species. These alleged continuing injuries are a result of FWS’s original listing 

of the Bone Cave harvestman, not of FWS’s no-longer-effective denial of the delisting petition.

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of limitations period applicable to claims brought under the APA. We therefore 

conclude that we lack jurisdiction to resolve this appeal.6

* * *

Based on the foregoing, we DISMISS the appeal for lack of jurisdiction.

6 Because mootness and/or sovereign immunity are independently sufficient to deprive 

this court of jurisdiction, we do not reach the Government’s alternative arguments that the 

remand was not a final judgment subject to appeal, that the APA does not provide a 

jurisdictional basis for the relief the Intervening Plaintiffs seek, that the district court erred 

by allowing the Intervening Plaintiffs to intervene, and that the district court’s determination 

as to the constitutionality of the Bone Cave harvestman listing was correct on the merits.

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