PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FOREST GUARDIANS, a non-profit New Mexico corporation, andDEFENDERS OF WILDLIFE, a nonprofit Washington, D.C. corporation, Plaintiffs-Appellants, v. BRUCE BABBITT, Secretary of the Interior, Defendant-Appellee. No. 97-2370 (D.C. No. CIV 97-0453)

ORDER Filed April 22, 1999

Before PORFILIO , EBEL and KELLY , Circuit Judges.

This matter comes on for consideration of appellee’ s petition for rehearing and suggestion for rehearing en banc. Upon conside ration whereof, the petition for rehearing is denied by the panel that rendered the decision. The Court will, however, amend the opinion filed on December 22, 19 98, as follows: The first sentence of the first full paragraph in c olumn two at 164 F.3d 1269 of the West’s Federal Reporter advance sh eets (first sentence of first full paragraph on page 20 of our slip opinion) is amended to read: Even in mandamus cases, which inh erently involve- 2 -

court discretion, we have often spoken in strong, a nd occasionally even absolute, language with regard to the court’s duty to enforce agency action mandated by Congress. The first sentence of the first full paragraph in c olumn two at 164 F.3d at 1274 of the West’s Federal Reporter advance sheets (first sentence of first full paragraph on page 34 of the slip opinion) is amended to read: While we hold that the Secretary must be ordered to comply with his statutory duty to publish a fina l regulation regarding designation of the critical habitat for t he silvery minnow without regard to his preferred priorities, any ord er now to impose a new deadline for compliance must consider what workis necessary to publish the final rule and how quickly that can be accomplished. The last paragraph of the opinion, at 164 F.3d at 1 274 of the West’s Federal Reporter advance sheets (page 35 of the sli p opinion) is amended to read: We REVERSE the district court’s d enial of plaintiffs’ motion to review agency action, VACATE the stay order, and REMAND to the district court to order the Secre tary to publish, as soon as possible , “a final regulation, based on such data as may be available at that time, designating, to the maximum extent prudent,” the critical habitat for the Rio Grande silvery min now, as is required by 16 U.S.C. § 1533(b)(6)(C)(ii). An amended copy of this opinion is attached to this order. A copy of the petition was circulated to all active judges of the court. No judge called for a poll. Consequently, the en banc suggestion is denied.

Entered for the Court PATRICK FISHER, Clerk of Court By: Keith Nelson Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 22 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FOREST GUARDIANS, a non-profit New Mexico corporation, andDEFENDERS OF WILDLIFE, a nonprofit Washington, D.C. corporation, Plaintiffs-Appellants, v. BRUCE BABBITT, Secretary of the Interior, Defendant-Appellee. No. 97-2370

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV 97-0453)
Matt Kenna, Kenna & Hickcox, Durango, Colorado, forPlaintiffs-Appellants. James C. Kilbourne, Attorney, Department of Justice (Lois J. Schiffer, Assistant Attorney General; John J. Kelly, United States Atto rney; John W. Zavitz, Assistant United States Attorney; Ellen J. Durkee, Attorney, Department of Justice; and Warigia Bowman, Attorney, Department o f Justice, with him on the briefs), Washington, D.C., for Defendant-Appellee.

Before PORFILIO , EBEL and KELLY , Circuit Judges.

EBEL , Circuit Judge.- 2 -

In 1991, the administrative process was set in moti on to list the Rio Grande silvery minnow as an endangered species and designate its critical habitat under the Endangered Species Act of 1973 and its subseque nt amendments (“ESA” or “Act”). In July 1994, the Secretary of the Interio r (“Secretary”) listed the fish as an endangered species, but failed to issue a rule r egarding its critical habitat. By statute, a final rule designating the silvery minno w’s critical habitat was due March 1, 1995. That date passed without a critical habitat designation, and to date the Secretary has not designated the critical habitat for the silvery minnow. On April 4, 1997, two environmental organizations b rought an action in federal district court to compel the Secretary to designate the critical habitat for the silvery minnow within 30 days. The Secretary, whil e admitting that he had violated the timing requirements of the ESA, asked the district court to stay the action until October 1999. The Secretary explained that it was impossible for him to meet all of the ESA deadlines because of a backl og created by a 13-month spending moratorium imposed by Congress which laste d from April 1995 through April 1996. Despite the fact that the Secretary’s duty to designate critical habitat inured before Congress enacted the moratorium and that the Secretary had not fulfilled his duty in the two-and-one-half years si nce the moratorium expired, the district court credited the Secretary’s impossibili ty argument, denied the plaintiffs’ motion to review agency action, and gra nted the Secretary’s motion to- 3 -

stay the case until October 1999. Because the Secr etary failed to comply with a mandatory, non-discretionary duty unambiguously imp osed by the ESA, and because the Administrative Procedure Act requires c ourts to compel agency action unlawfully withheld, we reverse the district court.

I. BACKGROUND The Rio Grande silvery minnow (Hybognathus amarus ) is a stout silver fish with emerald reflections reaching lengths of up to 3 1⁄2 inches. Historically, it was one of the most abundant and widespread fishes in the Rio Grande basin. See Final Rule To List the Rio Grande Silvery Minnow as an Endangered Species, 59 Fed. Reg. 36, 988, 36,988 (1994) [hereinafter “Fina l Rule”]. Over the past 30 years, however, due in large part to dam constructi on and dewatering of a large percentage of its habitat, the silvery minnow’s pre sence has been reduced to 5% of its historic range. See id. The fish can now be found only along a 170-mile stretch of the middle Rio Grande, extending from th e Cochiti Dam, in Sandoval County, New Mexico to the headwaters of the Elephan t Butte Reservoir, in Socorro County, New Mexico. See id.1 The Fish and Wildlife Service is located in the Dep artment of the Interior

and the Secretary has delegated species listing and habitat designation authority to the Fish and Wildlife Service. See Brief of Appellee, at 5; see also 55 Fed. Reg. 26114, 26122 (1990).

2 “Critical habitat” is defined under the ESA as: (i) the specific areas within the geographical areaoccupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found t hose physical or biological features (I) essential to the conservati on of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area o ccupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species. 16 U.S.C. § 1532(5)(A). - 4 - On March 1, 1993, the Fish and Wildlife Service 1 (“FSW” or “Service”) published a proposed rule to list the Rio Grande si lvery minnow as endangered and to designate its critical habitat. 2 See Proposed Rule to List the Rio Grande Silvery Minnow as Endangered, With Critical Habitat , 58 Fed. Reg. 11,821, 11,822 (1993). After publishing the proposed rule, the ESA required the Service to issue a final rule regarding the silvery minnow' s endangered status and its critical habitat within one year — in this case, by March 1, 1994. See Endangered Species Act, 16 U.S.C. § 1533(b)(6)(A) [ hereinafter “ESA”]. The Service failed to meet its March 1, 1994 deadli ne. Over four months later, on July 20, 1994, the Service published a fi nal rule listing the Rio Grande3 Section 4(b)(6)(C) of the ESA reads:

(C) A final regulation designating critical habitat of an endangered species or a threatened species shall be published concurre ntly with the final regulation implementing the determination that such species is endangered or threatened, unless the Secretary deems that —

. . . (ii) critical habitat of such species is not then d eterminable, in which case the Secretary, with respect to the proposed re gulation to designate such habitat, may extend the one-year per iod specified in subparagraph (A) by not more than one additional ye ar, but not later than the close of such additional year the Secretary must publish a final regulation, based on such data as may be avai lable at that time, designating, to the maximum extent prudent, such ha bitat. (continued...) - 5 - silvery minnow as an endangered species. See Final Rule, 59 Fed. Reg. at 36,988. In its July 20 final rule, the Service explained th at it could not make a concurrent designation of the silvery minnow’s critical habitat as the ESA strongly encourages. See ESA, 16 U.S.C. § 1533(a)(3) (“The Secretary . . . to the maximum extent prudent and determinable . . . shall , concurrently with making a determination . . . that a species is an endangered species . . . designate any habitat of such species which is then considered to be critical habitat . . . .”). Instead, the Service concluded that the silvery min now’s critical habitat was “not then determinable,” and thereby extended its deadli ne to make a critical habitat determination under Section 4(b)(6)(C) of the Act. See Final Rule, 59 Fed. Reg. at 36,994. 3 Accordingly, the Service announced that “[t]he fi nal decision on3 (...continued)

ESA, 16 U.S.C. § 1533(b)(6)(C).

4 In this litigation, the district court found, and t he Secretary does not contest, that the final statutory deadline to make the critical habitat determination for the Rio Grande silvery minnow was March 1, 1995 . See Forest Guardians v. Babbitt , No. CIV 97-0453 JC/DJS (D.N.M. Oct. 23, 1997). - 6 - designation of critical habitat for the Rio Grande silvery minnow must be made by March 1, 1995, pursuant to section 4(b)(6)(C)(ii) o f the Act.” 4 Id. The March 1, 1995 deadline passed without action by the Service, and now, more than threeand-one-half years later, the Service still has notmade a final determination of the silvery minnow’s critical habitat. On April 4, 1997, Forest Guardians and Defenders of Wildlife (together “plaintiffs”) filed suit against the Secretary, all eging that his failure to designate the silvery minnow’s critical habitat violated the ESA. Plaintiffs sought both a declaration that the Secretary was in violation of the ESA and an injunction compelling the Secretary to issue a final rule on d esignation of critical habitat for the silvery minnow within 30 days of the court’s or der. In his answer, the Secretary admitted his failure to comply with his s tatutory duty to designate critical habitat for the silvery minnow, but defend ed his inaction on the ground that “no resources are available at this time to co mplete a critical habitat determination for the silvery minnow.”5 Listing duties and critical habitat designations ar e sometimes referred to

collectively as Section 4 duties, because they eman ate from § 4 of the Endangered Species Act of 1973 and amendments thereto. See Pub. L. No. 93-205, 87 Stat. 884, 886-89 (1973); Pub. L. No. 97-304, 96 Stat. 14 11, 1411-13 (1982).

6 On April 10, 1995, Congress passed the first such m oratorium, Emergency Supplemental Appropriations and Rescissions for the Department of Defense to (continued...) - 7 - On July 14, 1997, plaintiffs filed a motion caption ed Motion for Review of Agency Decision, seeking review of the Secretary’s failure to issue a final decision on the silvery minnow’s critical habitat. This motion expressly requested that the court declare the Secretary in violation o f his non-discretionary ESA duties and order him to carry out his duties within30 days. That same day, the Secretary filed his opposition to the plaintiffs’ m otion along with a motion to stay the proceedings until October 30, 1999. The Secretary opposed plaintiffs’ motion to compel a critical habitat designation essentially on the grounds of fiscal impracticability. The Secretary argued that a funding moratorium instituted by Cong ress in 1995 had prevented him from making any critical habitat determinations or listing any species as endangered or threatened, 5 thus creating an enormous backlog of overdue nondiscretionary duties. Beginning in April 1995 Congress passed a number of spending moratoria, prohibiting the Service from listing species as end angered or threatened and prohibiting the designation of critical habitats fo r species already listed. 6 This6 (...continued)

Preserve and Enhance Military Readiness Act of 1995 , Pub. L. No. 104-6, 109 Stat. 73, 86 (1995), which stated in pertinent part : Of the funds made available under this heading in P ublic Law 103-322 — (1) $1,500,000 are rescinded from the amounts avail able for making determinations whether a species is a threatened orendangered species and whether habitat is critical habitat under the [ESA] ; and (2) none of the remaining funds appropriated under that heading may be made available for making a final determination that a species is threatened or endangered or that habitat constitute s critical habitat (except a final determination that a species previously det ermined to be endangered is no longer endangered but continues to be threate ned). - 8 - moratorium on expenditures for critical habitat det erminations lasted through September 30, 1995, the end of the Fiscal Year (“FY ”) 1995. From the beginning of FY 1996 — October 1, 1995 — until April 26, 1996 , the moratorium in Pub. L. No. 104-6 was continued by over a dozen resolutions and the Acting Director of the Service was forced to reassign listing staff to other duties. See 61 Fed. Reg. 24,722, 24,723 (1996) (describing spending moratori a imposed by Congress and Service response). Because of the moratoria, betwe en October 1995 and April 1996, the Service expended only $233,000 on the ent ire nationwide listing program — a modest sum compared to the nearly $4 mi llion it received for the first six months of FY 1995. On April 26, 1996, Congress passed an appropriation s bill for the Department of the Interior for FY 1996. See Omnibus Consolidated Rescissions7 In addition, the Service had outstanding 182 candid ate species whose

conservation status needed determination, numerous court orders to take various actions under Section 4 of the ESA, and 57 petition s to list species under the ESA. See 61 Fed Reg. at 24,723. - 9 - and Appropriations Act of 1996, Pub. L. No. 104-134 , 110 Stat. 1321 (1996). The bill continued the 1995 moratorium, but contain ed a provision permitting the President to waive the moratorium. President Clint on waived the moratorium the day he signed the bill into law. The appropriation bill provided the Service with approximately $4 million to carry out its listing a nd critical habitat designations for the balance of FY 1996. Due to these budgetary restrictions, when the Servi ce received its funding in April 1996, it was faced with a backlog of 243 p roposed species listings on which it was required to make a final determination

. 7See 61 Fed. Reg. 24,722, 24,724 (1996). Concluding that it could not feasib ly complete all of its Section 4 duties in a timely manner, the Service, after notic e and comment, published a rule establishing a priority system for eliminating its backlog. See id. at 24,727- 24,728. The Service dubbed its hierarchy the Final Listing Priority Guidance (“LPG”). The LPG established a three-tier system for eliminating the Service’s backlog. Critical habitat designations were relegated to the third tier, based on the Service's conclusion that critical habitat desi gnation provided only a limited8 The regulation extending the LPG reclassified some Section 4 activities

and changed the three-tier system into a four-tier system. See 61 Fed. Reg. at 64,479-64,480. Critical habitat determinations wer e lowered to the fourth tier. See id. at 64,480. - 10 - increase in protection to a species already listed as endangered or threatened. See 61 Fed. Reg. at 24,727-24,728. Because the Service received only $5 million for Section 4 activities for FY 1997 — approximately $2 .5 million less than President Clinton requested from Congress — the Service, agai n after notice and comment, extended the LPG. See 61 Fed. Reg. 64,475, 64,479 (1996). 8 At the beginning of FY 1998 — October 1, 1997 — Con gress had not appropriated funds for the Service’s listing program; thus, the program proceeded under a continuing resolution at FY 1997 listing le vels. In response to what it perceived to be continued inadequate funding, the S ervice extended the FY 1997 LPG into FY 1998. See 62 Fed. Reg. 55,268, 55,269 (1997). On November 1 4, 1997, Congress enacted the Department of the Interi or’s FY 1998 Appropriations
Act. See Department of the Interior and Related Agencies Ap propriations Act, 1998, Pub. L. No. 105-83, 111 Stat. 1543 (1997). T herein, Congress expressly limited spending on listings and critical habitat d eterminations to $5.19 million.
See id. at 1547. Again concluding that Congress’ allo cation was inadequate to accomplish all of its required duties, the Service extended its LPG through the remainder of FY 1998 and into FY 1999. See 63 Fed. Reg. 25,502, 25,5099 This new LPG returned to the three-tier hierarchy, placing critical habitat

determination as the lone duty in tier three. See 63 Fed. Reg. at 25,510.

10 While in Biodiversity Legal Foundation v. Babbitt , 146 F.3d 1249 (10th Cir. 1998), this court recognized the LPG as a vali d hierarchy under which the Secretary may order his discretionary duties, we explicitly reserved the question of whether the Secretary may use the LPG as a basis to deviate from (continued...) - 11 - (1998). 9 The LPG is currently in place and governs the Service’s choices as to which non-discretionary duties to perform and whichto delay. The district court recognized that “it is clear that the ESA has been violated in this case.” Forest Guardians v. Babbitt , No. CIV 97-0453 JC/DJS, at 4. However, the district court deferred to the Secreta ry’s LPG, persuaded by the Secretary’s claim of fiscal impossibility and the S ervice’s argument that the LPG served the ESA’s “overarching purposes” — “maximizi ng species protection and reversing the trends of extinction.” Id. at 5. Thus, though the court “admonishe[d]” the Secretary to ensure that the sil very minnow’s critical habitat was designated “as soon as fiscally possible,” the district court denied plaintiffs’ motion for review of agency decision and granted de fendant’s motion to stay proceedings until October 30, 1999. See id. at 6. Plaintiffs filed a timely notice of appeal to this court on November 12, 1997. This case presents the question whether resource li mitations can justify the Secretary’s failure to comply with mandatory, non-d iscretionary duties imposed by the ESA. 10 We hold that they cannot, and accordingly we reve rse.10 (...continued)

congressionally-imposed mandatory duties. See id. at 1256 (“We note that the question of the 1997 LPG's validity where a violati on of a mandatory provision of the ESA is alleged is not before us.”). - 12 - II. JURISDICTION After an initial review, we ordered the parties to brief the issue whether the district court order is immediately appealable to t his court. We now conclude that it is. “[T]he courts of appeals shall have jurisdiction of appeals from . . . [i]nterlocutory orders of the district courts of th e United States . . . or of the judges thereof, granting, continuing, modifying, re fusing or dissolving injunctions . . . .” 28 U.S.C. § 1292(a) (emphasis added). Th e Tenth Circuit has recognized “two strands of analysis” for § 1292(a)(1) appeals under which we have jurisdiction. See Utah State Dept. of Health v. Kennecott Corp. , 14 F.3d 1489, 1496 (10th Cir. 1994). The first strand applies to orders regarding “express motions for injunctive relief” and the second appli es to orders with the “practical effect” of disposing of a request for injunctive re lief. See id. We believe the district court order is appealable under either ana lysis. When plaintiffs' motion is read in conjunction with their complaint, it is clear that plaintiffs were seeking injunctive relie f. First, in their complaint, plaintiffs expressly requested an “injunction” orde ring the Secretary to “issue a11 The labels of the plaintiff and the district court cannot be dispositive of

whether an injunction has been requested or denied. See 11A Wright et al., Federal Practice and Procedure § 2962, at 413 (1995) (“[A] district court may not avoid immediate review of its determination simply by failing to characterize or label its decision as one denying or granting injun ctive relief.”). - 13 - final rule on designation of critical habitat for t he minnow within 30 days of this Court’s order.” Likewise, although plaintiffs’ mot ion before the district court was captioned “Motion for Review of Agency Decision ,” it too sought injunctive relief. The plaintiffs expressly requested that th e district court “declare that the defendant violated his non-discretionary duty” and that the district court “order [the Secretary] to carry out [his duty to designate the critical habitat for the Rio Grande silvery minnow] within 30 days of the Court’ s order.” In short, plaintiffs have sought injunctive relief. Even though plaintiffs failed to label their motion in the district court as one for injunction, it is clear from the content of the motion that plaintiffs were seeking injunctive relief. 11 The district court’s order denying that motion was an “interlocutory order expressly denying . . . an injunction [and] it fits squarely within the plain language of § 1292(a)(1) . . . .” Kennecott Corp. , 14 F.3d at 1496. Alternatively, we have jurisdiction because the dis trict court’s order had the “practical effect” of refusing plaintiffs’ injuncti on. In order to have appellate jurisdiction under this second strand of analysis, the challenged order must: (1) have “the practical effect of refusing an injunctio n,” (2) threaten a “‘serious,- 14 -

perhaps irreparable, consequence,’” and (3) be “‘ef fectually challenged’” only by immediate appeal. Carson v. American Brands, Inc. , 450 U.S. 79, 84 (1981) (citation omitted). Here, the practical effect of the district court’s order was to deny the injunctive relief sought by plaintiffs. Had plaint iffs’ motion been granted, an injunction would have issued. See Oregon Natural Resources Council, Inc. v.
Kantor , 99 F.3d 334, 337 (9th Cir. 1996) (holding that de nial of motion for summary judgment was sufficient to establish first prong of Carsonwhere it effectively denies or obviates the need for injunct ive relief). The environmental organizations sought to compel the Secretary to comply with his statutorilyimposed duty within 30 days of a court order. The district court’s denial of plaintiffs’ motion and the accompanying grant of th e Secretary’s motion to stay proceedings until October 30, 1999 had the effect o f denying plaintiffs’ request for an order enjoining the Secretary to comply presentl y. In addition, the consequences of denying plaintiffs ’ motion and staying proceedings for over 14 months threatens serious, p erhaps irreparable, consequences regarding the continued vitality of th e silvery minnow. Despite the Secretary’s argument to the contrary, critical habi tat designations serve to protect species vulnerable to extinction. Without a design ated critical habitat, the ESA's requirement that “[e]ach Federal agency shall . . . insure that any [of its actions] is12 The Secretary argues that even if we view the distr ict court’s stay as a

denial of a motion for injunctive relief — which we do — the standard governing (continued...) - 15 - not likely to . . . result in the destruction or ad verse modification of [critical] habitat,” 16 U.S.C. § 1536(a)(2), becomes unenforce able. Congress expressed its opinion regarding the importance of critical habitat designations by requiring, with limited exception, a contemporaneous designation of critical habitat at the time of listing a species as either endangered or threatene d. See 16 U.S.C. § 1533(b)(6)(C). Delaying a decision on the Secretary’s duties regarding designation of critical habitat — a designation alr eady 3 1⁄2 years overdue — for over a year more could result in continued and pote ntially irreparable loss of the silvery minnow. Finally, immediate review in this court is necessary to challenge effectually the Secretary’s inaction. Plaintiffs have no otherrecourse. Without review in this court, the action will be stayed until October 30, 1999. Accordingly, we have jurisdiction to reach the meri ts of plaintiffs’ appeal.

III. MERITS A. Standard of Review. We review the district court’s denial of plaintiffs ’ motion to compel agency action de novo. 12 See Webb v. Hodel , 878 F.2d 1252, 1254 (10th Cir. 1989). “We12 (...continued)

our review should be abuse of discretion. The Secr etary takes this standard from Ute Indian Tribe of Unitah & Ouray Reservation v. U tah , 114 F.3d 1513, 1520 (10th Cir. 1997), cert. denied , 118 S. Ct. 1034 (1998). However, Ute Indian Trib e did not involve a request for an injunction againstan agency coming under the Administrative Procedure Act. The cases cited here in demonstrate that the Secretary misapprehends our review standard. - 16 - give no deference . . . to the legal or factual dec isions of the district court.” Nazaraghaie v. INS , 102 F.3d 460, 463 (10th Cir. 1996). In determini ng the proper remedy for the Secretary’s failure to complywith the ESA, we rely on the standards of review provided in the Administrative Procedure Act (“APA”). See Biodiversity Legal Foundation v. Babbitt , 146 F.3d 1249, 1252 (10th Cir. 1998).

B. The Endangered Species Act. First, we consider whether the Secretary was under a statutorily-imposed mandatory deadline to designate the critical habitat for the silvery minnow. As discussed above, with limited exceptions, the ESA r equires the Secretary to take final action on species listing and critical habitat designation within one year after he publishes general notice as to a proposed rule, although the Secretary may declare a one-year extension of time to designate c ritical habitat if certain criteria
are met. See ESA, 16 U.S.C. § 1533(b)(6)(A). Here, the Secretary published a proposed rule to list the Rio Grande silvery minnowas endangered and to designate its critical habitat on March 1, 1993. S ee Proposed Rule to List the Rio13 If the Secretary deems that a critical habitat is n ot determinable when a

final rule regarding species status is issued, this section permits the Secretary to “extend the one-year period specified in subparagraph (A) by not more than one additional year, but not later than the close of su ch additional year the Secretary mustpublish a final regulation, based on such data as may be available at that time, designating, to the maximum extent prudent, s uch habitat.” 15 U.S.C. §1533(b)(6)(C) (emphasis added). - 17 - Grande Silvery Minnow as Endangered, With Critical Habitat, 58 Fed. Reg. 11821 (1993). Thus, a final rule or notice of a one-yearextension respecting the critical habitat for the fish was due on March 1, 1994. On July 20, 1994, the Secretary, pursuant to 16 U.S.C. § 1533(b)(6)(C), 13 issued notice that the silvery minnow's habitat was “not then determinable,” and extended t he deadline for a final rule on critical habitat until March 1, 1995. See Final Rule, 59 Fed. Reg. at 36,994. Consequently, we have no problem concurring with th e district court, the plaintiffs, and the Secretary himself, that the Sec retary had a duty under the ESA to designate the silvery minnow’s critical habitat by March 1, 1995, and that he has yet to fulfill that duty.

C. The Administrative Procedure Act. Having determined that the Secretary violated his n on-discretionary duty to issue a critical habitat designation for the Rio Gr ande silvery minnow, we now look to the APA to determine the proper remedy to b e prescribed upon judicial review. The APA provides that “the reviewing courtshall decide all relevant- 18 -

questions of law, interpret constitutional and stat utory provisions, and determine the meaning or applicability of the terms of an age ncy action. The reviewing court shall . . . compel agency action unlawfully withheld or unreasonably d elayed.” 5 U.S.C. § 706(1) (emphasis added); see Mt. Emmons Mining Co. v. Babbitt , 117 F.3d 1167, 1170 (10th Cir. 1997).

1. “Shall” means shall. The Supreme Court and this circuit have made clear that when a statute uses the word “shall,” Co ngress has imposed a mandatory duty upon the subject of the command. See United States v. Monsanto , 491 U.S. 600, 607 (1989) (by using “shall” in civil forfeitu re statute, “Congress could not have chosen stronger words to express its intent th at forfeiture be mandatory in cases where the statute applied”); Pierce v. Underw ood , 487 U.S. 552, 569-70 (1988) (Congress' use of “shall” in a housing subsi dy statute constitutes “mandatory language”); Barrentine v. Arkansas-Best Freight Sys., Inc. 450 U.S. 728, 739 n.15 (1981) (same under Fair Labor Standar ds Act); United States v. Myers , 106 F.3d 936, 941 (10th Cir.) (“It is a basic can on of statutory construction that use of the word 'shall' [in 18 U.S.C. § 3553(f )] indicates mandatory intent.”), cert. denied , 117 S.Ct. 2446 (1997); see also Black's Law Dictionary1233 (5th ed. 1979) (“As used in statutes . . . [shall] is genera lly imperative or mandatory.”).- 19 -

Unpersuaded by the clear language of § 706 and the weight of authority interpreting the imperative nature of “shall,” the Secretary argues that this court is not required to issue an injunction. Instead, the Secretary urges this court to use its equitable discretion to permit his continued no n-compliance with the ESA, citing several Supreme Court opinions that hold that even in the face of a government statutory violation, the power to grant or deny injunctive relief rests in the sound discretion of the court. See Amoco Prod. Co. v. Village of Gambell , 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barc elo , 456 U.S. 305, 313 (1982); Tennessee Valley Authority v. Hill , 437 U.S. 153, 193 (1978). However, these cases also unmistakably hold that Congress may “restrict[] the court's jurisdiction in equity” by making injunctive relief mandatory for a violation. Weinberger , 456 U.S. at 313; see Amoco Prod. Co. , 480 U.S. at 542-43 & n.9; see also TVA , 437 U.S. at 194. While the Supreme Court has made clear that courts should not lightly infer Congress' intent to curtail the courts' traditional equitable power to exercise discretion in the granting of injunctive relief, th e Court has likewise made clear Congress' power to curb the courts' discretion by c lear expression. See Weinberger , 456 U.S. at 313 (“Of course, Congress may interve ne and guide or control the exercise of the courts' discretion, butwe do not lightly assume that Congress has intended to depart from established pr inciples.”). Through § 706- 20 -

Congress has stated unequivocally that courts must compel agency action unlawfully withheld or unreasonably delayed. Even in mandamus cases, which inherently involve co urt discretion, we have often spoken in strong, and occasionally even absol ute, language with regard to the court’s duty to enforce agency action mandated by C ongress. “If, after studying the statute and its legislative history, the court determines that the defendant official has failed to discharge a duty which Congr ess intended him to perform, the court shouldcompel performance, thus effectuating the congress ional purpose.” Estate of Smith v. Heckler , 747 F.2d 583, 591 (10th Cir. 1984) (emphasis adde d);

see Mt. Emmons Mining Co. , 117 F.3d at 1170 (“[A]s a reviewing court, we mus t ‘compel agency action unlawfully withheld or unreas onably delayed.’” (emphasis added)); Marathon Oil Co. v. Lujan , 937 F.2d 498, 500 (10th Cir. 1991) (“Mandamus relief is an appropriate remedy to compe l an administrative agency to act where it has failed to perform a nondiscretiona ry, ministerial duty. Administrative agencies do not possess the discreti on to avoid discharging the duties that Congress intended them to perform.” (ci tations omitted)); Health Sys. Agency of Oklahoma v. Norman , 589 F.2d 486, 492 (10th Cir. 1978) (“trial court

must‘compel’” agency action unlawfully withheld (empha sis added)). We believe our “shall”-means-shall approach has bee n implicitly recognized by the Ninth Circuit. In Environmental Defense Ctr . v. Babbitt , 73 F.3d 867 (9th- 21 -

Cir. 1995), the Environmental Defense Center (“EDC” ) filed a suit to compel the Secretary to make a final determination on a petiti on to list the California redlegged frog as an endangered species, which the Sec retary admitted he had failed to do by the statutory deadline. While the court s topped short of compelling immediate action, we believe the following passage indicates that it would have done so, but for the then-existing congressional sp ending moratorium on listing activities: On May 1, 1995, EDC filed the instant suit to compe l the Secretary to make and publish a final determination . EDC would prevail except for the fact that between the time the Secr etary failed to meet the deadline and the time EDC filed suit, C ongress passed an appropriations bill which precluded the expenditure of fiscal year 1995 funds on specified activities under the ESA. Id. at 869 (emphasis added). The Ninth Circuit held t hat the Secretary had violated his non-discretionary duty to take final a ction on the California redlegged frog by February 2, 1995. See id. at 872. However, the court recognized that the appropriations rider prevented the Secreta ry from complying with ESA deadlines. See id. Notwithstanding the Ninth Circuit's statement that it would have compelled the Secretary to act absent the moratorium, the Sec retary argues that Environmental Defense Center v. Babbittsupports his position that we should excuse his present non-compliance based on resource limitations. He contends that since the Ninth Circuit concluded both (1) that the moratorium did not modify14 We express serious doubt as to the first conclusion , although we need not

decide it in this case. We note that when a later duly enacted law of Congress makes impossible compliance with duties imposed by earlier laws, we would impute to Congress knowledge of the earlier laws an d the intent to modify them. See Morton v. Mancari , 417 U.S. 535, 550 (1974) (“[T]he only permissible justification for a repeal by implication is when t he earlier and later statutes are irreconcilable.”). As to the second conclusion, to the extent that the Ninth Circuit held that a court considering whether to compel an agency to co mply with its mandatory, non-discretionary duties should consider available resources when deciding whether to enjoin the agency, we disagree. Of cour se, courts must consider resource availability; but since we believe our duty to compel agency action is controlled by 5 U.S.C. §706, which strips courts of their traditional tools of equity, we hold the agency defense of unavailable r esources must be reserved as a defense against contempt if an injunction issues. See infraSection III. - 22 - or repeal the Secretary's duties under the ESA, and (2) that a “lack of available appropriated funds prevent[ed] the Secretary from c omplying with the [ESA],” id. at 872, that the Ninth Circuit recognized the inade quate resources defense to the motion to compel agency action. 14 While the Secretary's argument highlights some of the ambiguity in Environmental Defense Center v. Babbitt , we accept the clear statement by the Ninth Circuit in that case that ha d the spending moratorium not been in effect at the time that the court rendered its decision, it would have affirmed the district court order compelling agency action. This conclusion is bolstered by the district court's disposition on re mand. After a remand hearing held only 10 days after the congressional spending moratorium was lifted, the district court ordered the Secretary to “complete t he listing of the red-legged frog”- 23 -

within two weeks. See Environmental Defense Ctr. v. Babbitt , CV-95-2867-R (C.D. Cal. May 6, 1996) (unreported order). Consequently, we believe that Environmental Defense Center v. Babbitt supports our conclusion that if the Secretary unlaw fully withheld agency action or unreasonably delayed it at a time when the moratori um was not in effect, we must compel the Secretary to perform the mandatory dutie s required by the ESA. With our discretion so limited, we now turn to whether the Secretary's failure to designate the silvery minnow's critical habitat wit hin the statutory time frame constitutes agency action unlawfully withheld or un reasonably delayed.

2. “Unlawfully withheld” vs. “unreasonably delayed.” Courts have given little attention to the distinction between agency action “unlawfully withheld” and agency action “unreasonably delayed” from the draft ing of APA. However, that distinction is important in this case because the d iscretion Congress took away from courts by using “shall” in the first portion o f § 706(1) arguably could come back to the courts through Congress' use of the mod ifier “unreasonably” as applied to actions “delayed” (as opposed to actions “withhe ld”) in the second portion of § 706(1). As with all questions of statutory interpretation, we first look to the text of Congress' provisions. Unfortunately, the ambiguityof § 706 is the source of our15Nor can we find any guidance regarding a distinctio n in the rest of the

United States Code. The terms “unlawfully withheld ” and “unreasonably delayed” appear in only two sections of the Code be sides the APA. These sections explicitly or in legislative history refer ence 5 U.S.C. §706 and provided no further clarification. In 1996, Congress amende d the Federal Environmental Pesticide Control Act of 1972 as follows: “If the Administrator fails to notify an applicant within the period of time required under clause (i), the failure shall be considered an agency action unlawfully withheld or unreasonably delayed for purposes of judicial review under chapter 7 of Titl e 5.” 7 U.S.C. § 136a (h)(3)(F)(ii). In 1989, Congress amended 38 U.S.C. § 7261(a)(2) to read: “(a) In any action brought under this chapter, the Court of Veterans Appeals . . . shall . . . compel action of the Secretary unlawfully withheld or unreasonably delayed.” Prior to the amendment, 38 U.S.C. §7261(a)(2) only required the secretary to compel action “unlawfully withheld.” The amendmentadded “or unreasonably delayed” to the end of the existing law to bring itinto accord with 5 U.S.C. § 706(1). See 135 Cong. Rec. 30,627 (1989) (Explanatory Statement on the Compromise Agreement on H.R. 901, as amended).

- 24 - confusion. Section 706 merely sets out the alternative conditions under which a court must compel agency action — i.e., when agency action is “unlawfully withheld” or “unreasonably delayed.” Moreover, nei ther the APA's other substantive provisions nor its structure cast lighton the meaning of § 706. 15 Further, notwithstanding the debate concerning the propriety of finding statutory meaning by reference to legislative histo ry, the floor debates and committee reports attendant to the APA provide litt le guidance regarding any possible distinction between “unlawfully withheld” and “unreasonably delayed.” The Senate Report accompanying the original APA exp lained only that the judicial review provisions “expressly recognize[] the right of properly interested parties to16 The judicial review provision of the APA which became 5 U.S.C. §

706(1) originally appeared as § 10(e)(A) of the APAin 1946. - 25 - compel agencies to act where they improvidently ref use to act.” 16 S. Rep. No. 79- 752 (1945), reprinted inAdministrative Procedure Act Legislative History, at 214 (1946). Even the document which has been called th e “Government's own most authoritative interpretation of the APA, the 1947 Attorney General's Manual on the Administrative Procedure Act (AG's Manual), which [ the Court has] repeatedly given great weight,” Bowen v. Georgetown Univ. Hos p ., 488 U.S. 204, 218 (1988) (Scalia, J., concurring), fails to illuminat e any distinction between “unlawfully withheld” and “unreasonably delayed.” With respect to § 10(e)(A) of the APA, the AG's Manual explains that:

Clause (A) authorizing a reviewing court to “compel agency action unlawfully withheld or unreasonably delayed” , appears to be a particularized restatement of existing judicial pra ctice under section 262 of the Judicial Code (28 U.S.C. 377). . . . Ord ers in the nature of a writ of mandamus have been employed to compel an administrative agency to act, Safeway Stores, Inc. v. Brown , [138 F.2d 278 (Emer. Ct. App. 1943)], . . . or to compel an agency or of ficer to perform a ministerial or non-discretionary act. Clause (A) o f section 10(e) was apparently intended to codify these judicial functi ons. Obviously, the clause does not purport to empower acourt to substitute its discretion for that of an administrative agency . . . . However, as in Safeway Stores v. Brown , supra , a court may require an agency to take action upon a matter, without dir ecting how it shall act. Attorney General's Manual on the Administrative Pro cedure Act, at 108 (1947).17 The Safeway Stores case cited in the AG's Manual concluded that if th e

Administrator should unreasonably delay final actio n, a court may issue a writ of mandamus directing the Price Administrator to take action upon a pending request. That case appeared, without analysis, to conflate the concepts of “unlawfully withheld” and “unreasonably delayed,” p erhaps because the statute it was interpreting had both an absolute time period w ithin which the Price Administrator must act and an additional requirement that the Administrator act “within a reasonable time” within the absolute maxi mum time fixed for action. See Safeway Stores , 138 F.2d at 278-80. - 26 - Thus, while the AG's Manual places the APA's judici al review provisions in their historical context and clarifies the courts' power to compel agency action, it sheds no light on the difference between agency action “u nlawfully withheld” and “unreasonably delayed.” 17 In the absence of any clear statutory guidance we w ill simply apply the most straight forward common sense reading of these two phrases. Thus, if an agency has no concrete deadline establishing a date by whi ch it must act, and instead is governed only by general timing provisions — such a s the APA's general admonition that agencies conclude matters presented to them “within a reasonable time,” see 5 U.S.C. § 555(b) — a court must compel only actio n that is delayed unreasonably. Conversely, when an entity governed by the APA fails to comply with a statutorily imposed absolute deadline, it ha s unlawfully withheld agency action and courts, upon proper application, must co mpel the agency to act. Thus, the distinction between agency action “unlawf ully withheld” and “unreasonably delayed” turns on whether Congress imposed a date-certain deadline- 27 -

on agency action. See Sierra Club v. Thomas , 828 F.2d 783, 794-95 & nn. 77-80 (D.C. Cir. 1987) (citing cases and drawing a distin ction between an agency’s refusal to comply with an absolute time requirementfor action and an agency’s more generalized unreasonable delay in acting). In our opinion, when an agency is required to act — either by organic statute or by t he APA — within an expeditious, prompt, or reasonable time, § 706 leaves in the cou rts the discretion to decide whether agency delay is unreasonable. However, whe n Congress by organic statute sets a specific deadline for agency action, neither the agency nor any court has discretion. The agency must act by the deadlin e. If it withholds such timely action, a reviewing court must compel the action un lawfully withheld. To hold otherwise would be an affront to our tradition of l egislative supremacy and constitutionally separated powers. In support of the contrary position, the Secretary argues that we should exercise our discretion and consider the context su rrounding his legislative duty, as the District of Columbia Circuit did under simil ar circumstances in In re Barr Labs., Inc. , 930 F.2d 72 (D.C. Cir. 1991). In In re Barr , the court refused to order the Food and Drug Administration (“FDA”) to comply with a statutorily-imposed 180-day deadline for approving or disapproving gene ric drug applications. The court held that the “FDA’s sluggish pace violate[d] a statutory deadline,” but refused to issue the writ of mandamus sought by Barr Laboratories. See id. at 73.18 The six factors the District of Columbia recognized in

Telecommunications Research Action Ctr. v. FCC , 750 F.2d 70, 80 (D.C. Cir. 1984) [“TRAC ”], are as follows: (1) the time agencies take to make decisions must b e governed by a “rule of reason”; (2) where Congress has provided atimetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory sch eme may supply content for this rule of reason; (3) delays that mi ght be reasonable in the sphere of economic regulation are less tolerabl e when human health and welfare are at stake; (4) the court shou ld consider the effect of expediting delayed action on agency activ ities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by de lay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonabl y delayed.’” - 28 - Without reference to § 706, the court explained that “[e]quitable relief, particularly mandamus, does not necessarily follow a finding of a violation.” Id. at 74. The court then stated that: “[o]ur leading case in this area, TRAC , identified six principles that have helped courts d etermine when mandamus is an appropriate remedy for agency delay . . . .” Id. 18 Dismissing the import of Congress' deadline, the court concluded that “a fin ding that delay is unreasonable does not, alone, justify judicial intervention.” I d. at 75. In light of the clear command of § 706, we cannot a gree. Section 706 requires that a reviewing court “shall compel agenc y action . . . unreasonably delayed,” and despite the In re Barrcourt's contrary conclusion, we believe that once a court deems agency delay unreasonable, it mu st compel agency action.19 The FCC delay at issue in TRAC was not governed by any mandatory

deadline. Instead, the only timing requirement Con gress imposed on the FCC was the general APA mandate that agencies decide matter s within a reasonable time. See id. at 79. Moreover, none of the cases on which TRAC relies involves mandatory agency deadlines. See Public Citizen Health Research Group v. FDA , 740 F.2d 21, 32 (D.C. Cir. 1984) (relying on APA re quirement that agency “proceed to conclude a matter presented to it withi n a reasonable time” (quotation omitted)); Potomac Elec. Power Co. v. ICC , 702 F.2d 1026, 1034 (D.C. Cir.) (statute required ICC to “act in a timely manner”), supplemented by , 705 F.2d 1343 (D.C. Cir. 1983); Public Citizen Health Resear ch Group v. Auchter , 702 F.2d 1150, 1158 (D.C. Cir. 1983) (ordering agency a ction after a finding that rulemaking was “unreasonably delayed” based in parton APA's requirement that agency act “within a reasonable time”); MCI Telecom ms. Corp. v. FCC , 627 F.2d 322, 340 (D.C. Cir. 1980) (statute requiring FCC ratemaking “within a reasonable time”; Blankenship v. Secretary of HEW , 587 F.2d 329, 333 (6th Cir. 1978) (relying in part on APA's general “reasonable time” requirement). - 29 - Neither TRAC nor any of the cases it relied on to “discern the hexagonal contours of a standard” involved agency inaction in the face of a mandatory statutory deadline. 19 TRAC , 750 F.2d at 80. However helpful the hexagonal standard of TRAC may be when considering a discretionary time sched ule, we decline to apply it to the Secretary's failure to d esignate the critical habitat for the silvery minnow where Congress has established a spe cific, non-discretionary time within which the agency must act. When an agency f ails to meet a concrete statutory deadline, it has unlawfully withheld agen cy action.

IV. REMEDY- 30 -

The Secretary concedes that he failed to perform a non-discretionary duty, but urges us to excuse his failure on the basis of resource limitations and the impossibility of compliance due to the moratorium a nd insufficient monetary allocations since its expiration. We are not unsympathetic to the Secretary's practic al predicament. Moreover, we respect the Secretary's goal, reflecte d in the LPG, of prioritizing duties in order to achieve the greatest conservatio n benefit for the greatest number of species, instead of allowing those decisions to be driven by the exigencies of litigation. See 61 Fed. Reg. 24722, 24723-24 (1996). While we appreciate the Secretary's objective and t he difficult position in which Congress has placed him, we believe his impos sibility argument is premature. The Secretary's impossibility defense ( based on a generalized claim of inadequate resources) hypothetically could arise atthree distinct junctures in the litigation. First, the inadequate resource argumen t could arise at the duty stage; essentially the claim would be that Congress’ inade quate appropriations relieve the Secretary of his non-discretionary duties under the ESA. This is essentially a “repeal by implication” argument, or more precisely , a “suspension by implication” argument. However, repeals (or suspension) of legi slation by implication are disfavored, especially “when the claimed repeal res ts solely on an Appropriations20 We distinguish the present circumstances from those in effect during the

moratorium. While the express congressional morato rium was in effect, that congressional enactment constituted an express susp ension of the Secretary's listing responsibilities under the ESA. However, o nce the moratorium expired, the Secretary can no longer point to any extant leg islation expressly modifying his duties under the ESA. - 31 - Act.” 20 Tennessee Valley Authority v. Hill , 437 U.S. 153, 190 (1978); cf. United States v. United Continental Tuna Corp. , 425 U.S. 164, 168 (1976) (It is “a cardinal principle of statutory construction that r epeals by implication are not favored.” (internal quotation omitted)). Wisely, t he Secretary does not press the argument that inadequate congressional appropriatio ns relieved him of his ESA duties. We could not accept that argument if it ha d been raised, especially in light of the fact that the specific statutory date by whi ch the Secretary was required to designate the critical habitat for the silvery minn ow had already passed one month before the moratorium was enacted, and the Secretary has continued to ignore that clear statutory deadline for more than two-and-one- half years since the moratorium has been lifted. Second, the inadequate resources defense could aris e at the remedy stage; the claim would be that notwithstanding the Secreta ry’s failure to perform a mandatory duty, lack of resources should cause this court to disregard the mandated statutory remedy. The Secretary does adva nce this argument, but in light of the lengthy discussion above, we cannot ac cept it. In sum, we hold that- 32 -

Congress, through 5 U.S.C. § 706, has explicitly re moved from the courts the traditional equity balancing that ordinarily attend s decisions whether to issue injunctions. In the face of Congress' clear comman d, the Secretary's inadequate resource argument must fail with respect to the app ropriate remedy. Section 706 requires us to compel the unlawfully withheld agenc y action. Third, the inadequate resources defense could arise at the contempt stage, as a traditional impossibility defense at any subseque nt contempt proceeding that may occur if the Secretary fails to comply with an orde r enjoining him to designate the critical habitat by a time certain. See United States v. Rylander , 460 U.S. 752, 757 (1983) (“In a civil contempt proceeding . . . a def endant may assert a present inability to comply with the order in question.”); Donovan v. Burgett Greenhouses,
Inc. , 759 F.2d 1483, 1486 (10th Cir. 1985) (“the defend ant could avoid a contempt adjudication by showing through clear and convincin g evidence that he was unable to meet the requirements of the injunction”); NRDC v. Train , 510 F.2d 692, 713 (D.C. Cir. 1975) (noting, with respect to the Admin istrator of EPA claiming inadequate resources to comply with statutory duty, that “[t]he sound discretion of an equity court does not embrace enforcement throug h contempt of a party’s duty to comply with an order that calls him to do an imp ossibility”(quotation omitted)). While the Secretary's historic practice and oral as surance during argument convince us that the Secretary will comply with cou rt orders, we note that in a- 33 -

contempt proceeding, if one should occur, the Secre tary will have the opportunity of proving impossibility. See Donovan , 759 F.2d at 1486.

V. CONCLUSION We hold that the Secretary violated his non-discret ionary duty by failing to designate the critical habitat for the Rio Grande s ilvery minnow by the statutory deadline. After all the permissible delays and ext ensions, the ESA required the Secretary to publish a final critical habitat desig nation by March 1, 1995. This preceded any appropriations cutback or moratorium o n spending. Moreover, the moratorium on funding activities essential for maki ng critical habitat designations ended well over two years ago. In sum, the Secreta ry unlawfully withheld agency action here, and we are required by § 706 to compel the Secretary to act. That said, we are left to work out the details. Co ncerned by the Secretary's delay and the prospect of more delay if the case is remanded to the district court, plaintiffs ask this court to order the Secretary to complete the critical habitat determination within 30 days. In support of this r emedy, plaintiffs cite nine district court orders requiring the Secretary to co mply with statutory obligations, within between 5 and 120 days. The plaintiffs, how ever, cite no case in which a circuit court has set the deadline for compliance.- 34 -

While we hold that the Secretary must be ordered to comply with his statutory duty to publish a final regulation regard ing designation of the critical habitat for the silvery minnow without regard to hi s preferred priorities, any order now to impose a new deadline for compliance must co nsider what work is necessary to publish the final rule and how quicklythat can be accomplished. Accordingly, we remand the case to the district cou rt with instructions to order the Secretary to issue a final critical habitat designation for the silvery minnow as soon as possible, without regard to the Secretary’s other priorities under the ESA. For guidance, we refer the district court to the pr oceedings in Environmental Defense Center v. Babbitt , 73 F.3d 867 (9th Cir. 1995). There, in a case de cided during the moratorium, the Ninth Circuit held that the Secretary violated his nondiscretionary duties to take final action on the California red-legged frog, but remanded to the district court to specify the time for compliance with the ESA after appropriated funds became available. See id. at 872. At a hearing which took place only 10 days after the moratorium was li fted, the district court ordered the Secretary to list the red-legged frog within 14 days. See Environmental Defense Center v. Babbitt , CV-95-2867-R, (D. C. Cal. May 6, 1996), Appellant ’s Appendix, at 145. We REVERSE the district court’s denial of plaintiff s’ motion to review agency action, VACATE the stay order, and REMAND to the district court to- 35 -

order the Secretary to publish, as soon as possible , “a final regulation, based on such data as may be available at that time, designating, to the maximum extent prudent,” the critical habitat for the Rio Grande s ilvery minnow, as is required by 16 U.S.C. § 1533(b)(6)(C)(ii).

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 22 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FOREST GUARDIANS, a non-profit New Mexico corporation, andDEFENDERS OF WILDLIFE, a nonprofit Washington, D.C. corporation, Plaintiffs-Appellants, v. BRUCE BABBITT, Secretary of the Interior, Defendant-Appellee. No. 97-2370

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-97-0453-JC)
Matt Kenna, Kenna & Hickcox, Durango, Colorado, forPlaintiffs-Appellants. James C. Kilbourne, Attorney, Department of Justice (Lois J. Schiffer, Assistant Attorney General; John J. Kelly, United States Atto rney; John W. Zavitz, Assistant United States Attorney; Ellen J. Durkee, Attorney, Department of Justice; and Warigia Bowman, Attorney, Department o f Justice, with him on the briefs), Washington, D.C., for Defendant-Appellee.

Before PORFILIO , EBEL and KELLY , Circuit Judges.

EBEL , Circuit Judge.- 2 -

In 1991, the administrative process was set in moti on to list the Rio Grande silvery minnow as an endangered species and designate its critical habitat under the Endangered Species Act of 1973 and its subseque nt amendments (“ESA” or “Act”). In July 1994, the Secretary of the Interio r (“Secretary”) listed the fish as an endangered species, but failed to issue a rule r egarding its critical habitat. By statute, a final rule designating the silvery minno w’s critical habitat was due March 1, 1995. That date passed without a critical habitat designation, and to date the Secretary has not designated the critical habitat for the silvery minnow. On April 4, 1997, two environmental organizations b rought an action in federal district court to compel the Secretary to designate the critical habitat for the silvery minnow within 30 days. The Secretary, whil e admitting that he had violated the timing requirements of the ESA, asked the district court to stay the action until October 1999. The Secretary explained that it was impossible for him to meet all of the ESA deadlines because of a backl og created by a 13-month spending moratorium imposed by Congress which laste d from April 1995 through April 1996. Despite the fact that the Secretary’s duty to designate critical habitat inured before Congress enacted the moratorium and that the Secretary had not fulfilled his duty in the two-and-one-half years si nce the moratorium expired, the district court credited the Secretary’s impossibili ty argument, denied the plaintiffs’ motion to review agency action, and gra nted the Secretary’s motion to- 3 -

stay the case until October 1999. Because the Secr etary failed to comply with a mandatory, non-discretionary duty unambiguously imp osed by the ESA, and because the Administrative Procedure Act requires c ourts to compel agency action unlawfully withheld, we reverse the district court.

I. BACKGROUND The Rio Grande silvery minnow (Hybognathus amarus ) is a stout silver fish with emerald reflections reaching lengths of up to 3 1⁄2 inches. Historically, it was one of the most abundant and widespread fishes in the Rio Grande basin. See Final Rule To List the Rio Grande Silvery Minnow as an Endangered Species, 59 Fed. Reg. 36, 988, 36,988 (1994) [hereinafter “Fina l Rule”]. Over the past 30 years, however, due in large part to dam constructi on and dewatering of a large percentage of its habitat, the silvery minnow’s pre sence has been reduced to 5% of its historic range. See id. The fish can now be found only along a 170-mile stretch of the middle Rio Grande, extending from th e Cochiti Dam, in Sandoval County, New Mexico to the headwaters of the Elephan t Butte Reservoir, in Socorro County, New Mexico. See id.1 The Fish and Wildlife Service is located in the Dep artment of the Interior

and the Secretary has delegated species listing and habitat designation authority to the Fish and Wildlife Service. See Brief of Appellee, at 5; see also 55 Fed. Reg. 26114, 26122 (1990).

2 “Critical habitat” is defined under the ESA as: (i) the specific areas within the geographical areaoccupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found t hose physical or biological features (I) essential to the conservati on of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area o ccupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species. 16 U.S.C. § 1532(5)(A). - 4 - On March 1, 1993, the Fish and Wildlife Service 1 (“FSW” or “Service”) published a proposed rule to list the Rio Grande si lvery minnow as endangered and to designate its critical habitat. 2 See Proposed Rule to List the Rio Grande Silvery Minnow as Endangered, With Critical Habitat , 58 Fed. Reg. 11,821, 11,822 (1993). After publishing the proposed rule, the ESA required the Service to issue a final rule regarding the silvery minnow' s endangered status and its critical habitat within one year — in this case, by March 1, 1994. See Endangered Species Act, 16 U.S.C. § 1533(b)(6)(A) [ hereinafter “ESA”]. The Service failed to meet its March 1, 1994 deadli ne. Over four months later, on July 20, 1994, the Service published a fi nal rule listing the Rio Grande3 Section 4(b)(6)(C) of the ESA reads:

(C) A final regulation designating critical habitat of an endangered species or a threatened species shall be published concurre ntly with the final regulation implementing the determination that such species is endangered or threatened, unless the Secretary deems that —

. . . (ii) critical habitat of such species is not then d eterminable, in which case the Secretary, with respect to the proposed re gulation to designate such habitat, may extend the one-year per iod specified in subparagraph (A) by not more than one additional ye ar, but not later than the close of such additional year the Secretary must publish a final regulation, based on such data as may be avai lable at that time, designating, to the maximum extent prudent, such ha bitat. (continued...) - 5 - silvery minnow as an endangered species. See Final Rule, 59 Fed. Reg. at 36,988. In its July 20 final rule, the Service explained th at it could not make a concurrent designation of the silvery minnow’s critical habitat as the ESA strongly encourages. See ESA, 16 U.S.C. § 1533(a)(3) (“The Secretary . . . to the maximum extent prudent and determinable . . . shall , concurrently with making a determination . . . that a species is an endangered species . . . designate any habitat of such species which is then considered to be critical habitat . . . .”). Instead, the Service concluded that the silvery min now’s critical habitat was “not then determinable,” and thereby extended its deadli ne to make a critical habitat determination under Section 4(b)(6)(C) of the Act. See Final Rule, 59 Fed. Reg. at 36,994. 3 Accordingly, the Service announced that “[t]he fi nal decision on3 (...continued)

ESA, 16 U.S.C. § 1533(b)(6)(C).

4 In this litigation, the district court found, and t he Secretary does not contest, that the final statutory deadline to make the critical habitat determination for the Rio Grande silvery minnow was March 1, 1995 . See Forest Guardians v. Babbitt , No. CIV 97-0453 JC/DJS (D.N.M. Oct. 23, 1997). - 6 - designation of critical habitat for the Rio Grande silvery minnow must be made by March 1, 1995, pursuant to section 4(b)(6)(C)(ii) o f the Act.” 4 Id. The March 1, 1995 deadline passed without action by the Service, and now, more than threeand-one-half years later, the Service still has notmade a final determination of the silvery minnow’s critical habitat. On April 4, 1997, Forest Guardians and Defenders of Wildlife (together “plaintiffs”) filed suit against the Secretary, all eging that his failure to designate the silvery minnow’s critical habitat violated the ESA. Plaintiffs sought both a declaration that the Secretary was in violation of the ESA and an injunction compelling the Secretary to issue a final rule on d esignation of critical habitat for the silvery minnow within 30 days of the court’s or der. In his answer, the Secretary admitted his failure to comply with his s tatutory duty to designate critical habitat for the silvery minnow, but defend ed his inaction on the ground that “no resources are available at this time to co mplete a critical habitat determination for the silvery minnow.”5 Listing duties and critical habitat designations ar e sometimes referred to

collectively as Section 4 duties, because they eman ate from § 4 of the Endangered Species Act of 1973 and amendments thereto. See Pub. L. No. 93-205, 87 Stat. 884, 886-89 (1973); Pub. L. No. 97-304, 96 Stat. 14 11, 1411-13 (1982).

6 On April 10, 1995, Congress passed the first such m oratorium, Emergency Supplemental Appropriations and Rescissions for the Department of Defense to (continued...) - 7 - On July 14, 1997, plaintiffs filed a motion caption ed Motion for Review of Agency Decision, seeking review of the Secretary’s failure to issue a final decision on the silvery minnow’s critical habitat. This motion expressly requested that the court declare the Secretary in violation o f his non-discretionary ESA duties and order him to carry out his duties within30 days. That same day, the Secretary filed his opposition to the plaintiffs’ m otion along with a motion to stay the proceedings until October 30, 1999. The Secretary opposed plaintiffs’ motion to compel a critical habitat designation essentially on the grounds of fiscal impracticability. The Secretary argued that a funding moratorium instituted by Cong ress in 1995 had prevented him from making any critical habitat determinations or listing any species as endangered or threatened, 5 thus creating an enormous backlog of overdue nondiscretionary duties. Beginning in April 1995 Congress passed a number of spending moratoria, prohibiting the Service from listing species as end angered or threatened and prohibiting the designation of critical habitats fo r species already listed. 6 This6 (...continued)

Preserve and Enhance Military Readiness Act of 1995 , Pub. L. No. 104-6, 109 Stat. 73, 86 (1995), which stated in pertinent part : Of the funds made available under this heading in P ublic Law 103-322 — (1) $1,500,000 are rescinded from the amounts avail able for making determinations whether a species is a threatened orendangered species and whether habitat is critical habitat under the [ESA] ; and (2) none of the remaining funds appropriated under that heading may be made available for making a final determination that a species is threatened or endangered or that habitat constitute s critical habitat (except a final determination that a species previously det ermined to be endangered is no longer endangered but continues to be threate ned). - 8 - moratorium on expenditures for critical habitat det erminations lasted through September 30, 1995, the end of the Fiscal Year (“FY ”) 1995. From the beginning of FY 1996 — October 1, 1995 — until April 26, 1996 , the moratorium in Pub. L. No. 104-6 was continued by over a dozen resolutions and the Acting Director of the Service was forced to reassign listing staff to other duties. See 61 Fed. Reg. 24,722, 24,723 (1996) (describing spending moratori a imposed by Congress and Service response). Because of the moratoria, betwe en October 1995 and April 1996, the Service expended only $233,000 on the ent ire nationwide listing program — a modest sum compared to the nearly $4 mi llion it received for the first six months of FY 1995. On April 26, 1996, Congress passed an appropriation s bill for the Department of the Interior for FY 1996. See Omnibus Consolidated Rescissions7 In addition, the Service had outstanding 182 candid ate species whose

conservation status needed determination, numerous court orders to take various actions under Section 4 of the ESA, and 57 petition s to list species under the ESA. See 61 Fed Reg. at 24,723. - 9 - and Appropriations Act of 1996, Pub. L. No. 104-134 , 110 Stat. 1321 (1996). The bill continued the 1995 moratorium, but contain ed a provision permitting the President to waive the moratorium. President Clint on waived the moratorium the day he signed the bill into law. The appropriation bill provided the Service with approximately $4 million to carry out its listing a nd critical habitat designations for the balance of FY 1996. Due to these budgetary restrictions, when the Servi ce received its funding in April 1996, it was faced with a backlog of 243 p roposed species listings on which it was required to make a final determination

. 7See 61 Fed. Reg. 24,722, 24,724 (1996). Concluding that it could not feasib ly complete all of its Section 4 duties in a timely manner, the Service, after notic e and comment, published a rule establishing a priority system for eliminating its backlog. See id. at 24,727- 24,728. The Service dubbed its hierarchy the Final Listing Priority Guidance (“LPG”). The LPG established a three-tier system for eliminating the Service’s backlog. Critical habitat designations were relegated to the third tier, based on the Service's conclusion that critical habitat desi gnation provided only a limited8 The regulation extending the LPG reclassified some Section 4 activities

and changed the three-tier system into a four-tier system. See 61 Fed. Reg. at 64,479-64,480. Critical habitat determinations wer e lowered to the fourth tier. See id. at 64,480. - 10 - increase in protection to a species already listed as endangered or threatened. See 61 Fed. Reg. at 24,727-24,728. Because the Service received only $5 million for Section 4 activities for FY 1997 — approximately $2 .5 million less than President Clinton requested from Congress — the Service, agai n after notice and comment, extended the LPG. See 61 Fed. Reg. 64,475, 64,479 (1996). 8 At the beginning of FY 1998 — October 1, 1997 — Con gress had not appropriated funds for the Service’s listing program; thus, the program proceeded under a continuing resolution at FY 1997 listing le vels. In response to what it perceived to be continued inadequate funding, the S ervice extended the FY 1997 LPG into FY 1998. See 62 Fed. Reg. 55,268, 55,269 (1997). On November 1 4, 1997, Congress enacted the Department of the Interi or’s FY 1998 Appropriations
Act. See Department of the Interior and Related Agencies Ap propriations Act, 1998, Pub. L. No. 105-83, 111 Stat. 1543 (1997). T herein, Congress expressly limited spending on listings and critical habitat d eterminations to $5.19 million.
See id. at 1547. Again concluding that Congress’ allo cation was inadequate to accomplish all of its required duties, the Service extended its LPG through the remainder of FY 1998 and into FY 1999. See 63 Fed. Reg. 25,502, 25,5099 This new LPG returned to the three-tier hierarchy, placing critical habitat

determination as the lone duty in tier three. See 63 Fed. Reg. at 25,510.

10 While in Biodiversity Legal Foundation v. Babbitt , 146 F.3d 1249 (10th Cir. 1998), this court recognized the LPG as a vali d hierarchy under which the Secretary may order his discretionary duties, we explicitly reserved the question of whether the Secretary may use the LPG as a basis to deviate from (continued...) - 11 - (1998). 9 The LPG is currently in place and governs the Service’s choices as to which non-discretionary duties to perform and whichto delay. The district court recognized that “it is clear that the ESA has been violated in this case.” Forest Guardians v. Babbitt , No. CIV 97-0453 JC/DJS, at 4. However, the district court deferred to the Secreta ry’s LPG, persuaded by the Secretary’s claim of fiscal impossibility and the S ervice’s argument that the LPG served the ESA’s “overarching purposes” — “maximizi ng species protection and reversing the trends of extinction.” Id. at 5. Thus, though the court “admonishe[d]” the Secretary to ensure that the sil very minnow’s critical habitat was designated “as soon as fiscally possible,” the district court denied plaintiffs’ motion for review of agency decision and granted de fendant’s motion to stay proceedings until October 30, 1999. See id. at 6. Plaintiffs filed a timely notice of appeal to this court on November 12, 1997. This case presents the question whether resource li mitations can justify the Secretary’s failure to comply with mandatory, non-d iscretionary duties imposed by the ESA. 10 We hold that they cannot, and accordingly we reve rse.10 (...continued)

congressionally-imposed mandatory duties. See id. at 1256 (“We note that the question of the 1997 LPG's validity where a violati on of a mandatory provision of the ESA is alleged is not before us.”). - 12 - II. JURISDICTION After an initial review, we ordered the parties to brief the issue whether the district court order is immediately appealable to t his court. We now conclude that it is. “[T]he courts of appeals shall have jurisdiction of appeals from . . . [i]nterlocutory orders of the district courts of th e United States . . . or of the judges thereof, granting, continuing, modifying, re fusing or dissolving injunctions . . . .” 28 U.S.C. § 1292(a) (emphasis added). Th e Tenth Circuit has recognized “two strands of analysis” for § 1292(a)(1) appeals under which we have jurisdiction. See Utah State Dept. of Health v. Kennecott Corp. , 14 F.3d 1489, 1496 (10th Cir. 1994). The first strand applies to orders regarding “express motions for injunctive relief” and the second appli es to orders with the “practical effect” of disposing of a request for injunctive re lief. See id. We believe the district court order is appealable under either ana lysis. When plaintiffs' motion is read in conjunction with their complaint, it is clear that plaintiffs were seeking injunctive relie f. First, in their complaint, plaintiffs expressly requested an “injunction” orde ring the Secretary to “issue a11 The labels of the plaintiff and the district court cannot be dispositive of

whether an injunction has been requested or denied. See 11A Wright et al., Federal Practice and Procedure § 2962, at 413 (1995) (“[A] district court may not avoid immediate review of its determination simply by failing to characterize or label its decision as one denying or granting injun ctive relief.”). - 13 - final rule on designation of critical habitat for t he minnow within 30 days of this Court’s order.” Likewise, although plaintiffs’ mot ion before the district court was captioned “Motion for Review of Agency Decision ,” it too sought injunctive relief. The plaintiffs expressly requested that th e district court “declare that the defendant violated his non-discretionary duty” and that the district court “order [the Secretary] to carry out [his duty to designate the critical habitat for the Rio Grande silvery minnow] within 30 days of the Court’ s order.” In short, plaintiffs have sought injunctive relief. Even though plaintiffs failed to label their motion in the district court as one for injunction, it is clear from the content of the motion that plaintiffs were seeking injunctive relief. 11 The district court’s order denying that motion was an “interlocutory order expressly denying . . . an injunction [and] it fits squarely within the plain language of § 1292(a)(1) . . . .” Kennecott Corp. , 14 F.3d at 1496. Alternatively, we have jurisdiction because the dis trict court’s order had the “practical effect” of refusing plaintiffs’ injuncti on. In order to have appellate jurisdiction under this second strand of analysis, the challenged order must: (1) have “the practical effect of refusing an injunctio n,” (2) threaten a “‘serious,- 14 -

perhaps irreparable, consequence,’” and (3) be “‘ef fectually challenged’” only by immediate appeal. Carson v. American Brands, Inc. , 450 U.S. 79, 84 (1981) (citation omitted). Here, the practical effect of the district court’s order was to deny the injunctive relief sought by plaintiffs. Had plaint iffs’ motion been granted, an injunction would have issued. See Oregon Natural Resources Council, Inc. v.
Kantor , 99 F.3d 334, 337 (9th Cir. 1996) (holding that de nial of motion for summary judgment was sufficient to establish first prong of Carsonwhere it effectively denies or obviates the need for injunct ive relief). The environmental organizations sought to compel the Secretary to comply with his statutorilyimposed duty within 30 days of a court order. The district court’s denial of plaintiffs’ motion and the accompanying grant of th e Secretary’s motion to stay proceedings until October 30, 1999 had the effect o f denying plaintiffs’ request for an order enjoining the Secretary to comply presentl y. In addition, the consequences of denying plaintiffs ’ motion and staying proceedings for over 14 months threatens serious, p erhaps irreparable, consequences regarding the continued vitality of th e silvery minnow. Despite the Secretary’s argument to the contrary, critical habi tat designations serve to protect species vulnerable to extinction. Without a design ated critical habitat, the ESA's requirement that “[e]ach Federal agency shall . . . insure that any [of its actions] is12 The Secretary argues that even if we view the distr ict court’s stay as a

denial of a motion for injunctive relief — which we do — the standard governing (continued...) - 15 - not likely to . . . result in the destruction or ad verse modification of [critical] habitat,” 16 U.S.C. § 1536(a)(2), becomes unenforce able. Congress expressed its opinion regarding the importance of critical habitat designations by requiring, with limited exception, a contemporaneous designation of critical habitat at the time of listing a species as either endangered or threatene d. See 16 U.S.C. § 1533(b)(6)(C). Delaying a decision on the Secretary’s duties regarding designation of critical habitat — a designation alr eady 3 1⁄2 years overdue — for over a year more could result in continued and pote ntially irreparable loss of the silvery minnow. Finally, immediate review in this court is necessary to challenge effectually the Secretary’s inaction. Plaintiffs have no otherrecourse. Without review in this court, the action will be stayed until October 30, 1999. Accordingly, we have jurisdiction to reach the meri ts of plaintiffs’ appeal.

III. MERITS A. Standard of Review. We review the district court’s denial of plaintiffs ’ motion to compel agency action de novo. 12 See Webb v. Hodel , 878 F.2d 1252, 1254 (10th Cir. 1989). “We12 (...continued)

our review should be abuse of discretion. The Secr etary takes this standard from Ute Indian Tribe of Unitah & Ouray Reservation v. U tah , 114 F.3d 1513, 1520 (10th Cir. 1997), cert. denied , 118 S. Ct. 1034 (1998). However, Ute Indian Trib e did not involve a request for an injunction againstan agency coming under the Administrative Procedure Act. The cases cited here in demonstrate that the Secretary misapprehends our review standard. - 16 - give no deference . . . to the legal or factual dec isions of the district court.” Nazaraghaie v. INS , 102 F.3d 460, 463 (10th Cir. 1996). In determini ng the proper remedy for the Secretary’s failure to complywith the ESA, we rely on the standards of review provided in the Administrative Procedure Act (“APA”). See Biodiversity Legal Foundation v. Babbitt , 146 F.3d 1249, 1252 (10th Cir. 1998).

B. The Endangered Species Act. First, we consider whether the Secretary was under a statutorily-imposed mandatory deadline to designate the critical habitat for the silvery minnow. As discussed above, with limited exceptions, the ESA r equires the Secretary to take final action on species listing and critical habitat designation within one year after he publishes general notice as to a proposed rule, although the Secretary may declare a one-year extension of time to designate c ritical habitat if certain criteria
are met. See ESA, 16 U.S.C. § 1533(b)(6)(A). Here, the Secretary published a proposed rule to list the Rio Grande silvery minnowas endangered and to designate its critical habitat on March 1, 1993. S ee Proposed Rule to List the Rio13 If the Secretary deems that a critical habitat is n ot determinable when a

final rule regarding species status is issued, this section permits the Secretary to “extend the one-year period specified in subparagraph (A) by not more than one additional year, but not later than the close of su ch additional year the Secretary mustpublish a final regulation, based on such data as may be available at that time, designating, to the maximum extent prudent, s uch habitat.” 15 U.S.C. §1533(b)(6)(C) (emphasis added). - 17 - Grande Silvery Minnow as Endangered, With Critical Habitat, 58 Fed. Reg. 11821 (1993). Thus, a final rule or notice of a one-yearextension respecting the critical habitat for the fish was due on March 1, 1994. On July 20, 1994, the Secretary, pursuant to 16 U.S.C. § 1533(b)(6)(C), 13 issued notice that the silvery minnow's habitat was “not then determinable,” and extended t he deadline for a final rule on critical habitat until March 1, 1995. See Final Rule, 59 Fed. Reg. at 36,994. Consequently, we have no problem concurring with th e district court, the plaintiffs, and the Secretary himself, that the Sec retary had a duty under the ESA to designate the silvery minnow’s critical habitat by March 1, 1995, and that he has yet to fulfill that duty.

C. The Administrative Procedure Act. Having determined that the Secretary violated his n on-discretionary duty to issue a critical habitat designation for the Rio Gr ande silvery minnow, we now look to the APA to determine the proper remedy to b e prescribed upon judicial review. The APA provides that “the reviewing courtshall decide all relevant- 18 -

questions of law, interpret constitutional and stat utory provisions, and determine the meaning or applicability of the terms of an age ncy action. The reviewing court shall . . . compel agency action unlawfully withheld or unreasonably d elayed.” 5 U.S.C. § 706(1) (emphasis added); see Mt. Emmons Mining Co. v. Babbitt , 117 F.3d 1167, 1170 (10th Cir. 1997).

1. “Shall” means shall. The Supreme Court and this circuit have made clear that when a statute uses the word “shall,” Co ngress has imposed a mandatory duty upon the subject of the command. See United States v. Monsanto , 491 U.S. 600, 607 (1989) (by using “shall” in civil forfeitu re statute, “Congress could not have chosen stronger words to express its intent th at forfeiture be mandatory in cases where the statute applied”); Pierce v. Underw ood , 487 U.S. 552, 569-70 (1988) (Congress' use of “shall” in a housing subsi dy statute constitutes “mandatory language”); Barrentine v. Arkansas-Best Freight Sys., Inc. 450 U.S. 728, 739 n.15 (1981) (same under Fair Labor Standar ds Act); United States v. Myers , 106 F.3d 936, 941 (10th Cir.) (“It is a basic can on of statutory construction that use of the word 'shall' [in 18 U.S.C. § 3553(f )] indicates mandatory intent.”), cert. denied , 117 S.Ct. 2446 (1997); see also Black's Law Dictionary1233 (5th ed. 1979) (“As used in statutes . . . [shall] is genera lly imperative or mandatory.”).- 19 -

Unpersuaded by the clear language of § 706 and the weight of authority interpreting the imperative nature of “shall,” the Secretary argues that this court is not required to issue an injunction. Instead, the Secretary urges this court to use its equitable discretion to permit his continued no n-compliance with the ESA, citing several Supreme Court opinions that hold that even in the face of a government statutory violation, the power to grant or deny injunctive relief rests in the sound discretion of the court. See Amoco Prod. Co. v. Village of Gambell , 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barc elo , 456 U.S. 305, 313 (1982); Tennessee Valley Authority v. Hill , 437 U.S. 153, 193 (1978). However, these cases also unmistakably hold that Congress may “restrict[] the court's jurisdiction in equity” by making injunctive relief mandatory for a violation. Weinberger , 456 U.S. at 313; see Amoco Prod. Co. , 480 U.S. at 542-43 & n.9; see also TVA , 437 U.S. at 194. While the Supreme Court has made clear that courts should not lightly infer Congress' intent to curtail the courts' traditional equitable power to exercise discretion in the granting of injunctive relief, th e Court has likewise made clear Congress' power to curb the courts' discretion by c lear expression. See Weinberger , 456 U.S. at 313 (“Of course, Congress may interve ne and guide or control the exercise of the courts' discretion, butwe do not lightly assume that Congress has intended to depart from established pr inciples.”). Through § 706- 20 -

Congress has stated unequivocally that courts must compel agency action unlawfully withheld or unreasonably delayed. This conclusion accords with the Tenth Circuit’s es tablished approach under the APA to requests for writs of mandamus to compel agency action unlawfully withheld. “If, after studying the statute and its legislative history, the court determines that the defendant official has failed t o discharge a duty which Congress intended him to perform, the court shouldcompel performance, thus effectuating the congressional purpose.” Estate of Smith v. Heckler , 747 F.2d 583, 591 (10th Cir. 1984) (emphasis added); see Mt. Emmons Mining Co. , 117 F.3d at 1170 (“[A]s a reviewing court, we must‘compel agency action unlawfully withheld or unreasonably delayed.’” (emphasis added )); Marathon Oil Co. v. Lujan , 937 F.2d 498, 500 (10th Cir. 1991) (“Mandamus rel ief is an appropriate remedy to compel an administrative agency to act wh ere it has failed to perform a nondiscretionary, ministerial duty. Administrative agencies do not possess the discretion to avoid discharging the duties that Con gress intended them to perform.” (citations omitted)); Health Sys. Agencyof Oklahoma v. Norman , 589 F.2d 486, 492 (10th Cir. 1978) (“trial court must‘compel’” agency action unlawfully withheld (emphasis added)). We believe our “shall”-means-shall approach has bee n implicitly recognized by the Ninth Circuit. In Environmental Defense Ctr . v. Babbitt , 73 F.3d 867 (9th- 21 -

Cir. 1995), the Environmental Defense Center (“EDC” ) filed a suit to compel the Secretary to make a final determination on a petiti on to list the California redlegged frog as an endangered species, which the Sec retary admitted he had failed to do by the statutory deadline. While the court s topped short of compelling immediate action, we believe the following passage indicates that it would have done so, but for the then-existing congressional sp ending moratorium on listing activities: On May 1, 1995, EDC filed the instant suit to compe l the Secretary to make and publish a final determination . EDC would prevail except for the fact that between the time the Secr etary failed to meet the deadline and the time EDC filed suit, C ongress passed an appropriations bill which precluded the expenditure of fiscal year 1995 funds on specified activities under the ESA. Id. at 869 (emphasis added). The Ninth Circuit held t hat the Secretary had violated his non-discretionary duty to take final a ction on the California redlegged frog by February 2, 1995. See id. at 872. However, the court recognized that the appropriations rider prevented the Secreta ry from complying with ESA deadlines. See id. Notwithstanding the Ninth Circuit's statement that it would have compelled the Secretary to act absent the moratorium, the Sec retary argues that Environmental Defense Center v. Babbittsupports his position that we should excuse his present non-compliance based on resource limitations. He contends that since the Ninth Circuit concluded both (1) that the moratorium did not modify14 We express serious doubt as to the first conclusion , although we need not

decide it in this case. We note that when a later duly enacted law of Congress makes impossible compliance with duties imposed by earlier laws, we would impute to Congress knowledge of the earlier laws an d the intent to modify them. See Morton v. Mancari , 417 U.S. 535, 550 (1974) (“[T]he only permissible justification for a repeal by implication is when t he earlier and later statutes are irreconcilable.”). As to the second conclusion, to the extent that the Ninth Circuit held that a court considering whether to compel an agency to co mply with its mandatory, non-discretionary duties should consider available resources when deciding whether to enjoin the agency, we disagree. Of cour se, courts must consider resource availability; but since we believe our duty to compel agency action is controlled by 5 U.S.C. §706, which strips courts of their traditional tools of equity, we hold the agency defense of unavailable r esources must be reserved as a defense against contempt if an injunction issues. See infraSection III. - 22 - or repeal the Secretary's duties under the ESA, and (2) that a “lack of available appropriated funds prevent[ed] the Secretary from c omplying with the [ESA],” id. at 872, that the Ninth Circuit recognized the inade quate resources defense to the motion to compel agency action. 14 While the Secretary's argument highlights some of the ambiguity in Environmental Defense Center v. Babbitt , we accept the clear statement by the Ninth Circuit in that case that ha d the spending moratorium not been in effect at the time that the court rendered its decision, it would have affirmed the district court order compelling agency action. This conclusion is bolstered by the district court's disposition on re mand. After a remand hearing held only 10 days after the congressional spending moratorium was lifted, the district court ordered the Secretary to “complete t he listing of the red-legged frog”- 23 -

within two weeks. See Environmental Defense Ctr. v. Babbitt , CV-95-2867-R (C.D. Cal. May 6, 1996) (unreported order). Consequently, we believe that Environmental Defense Center v. Babbitt supports our conclusion that if the Secretary unlaw fully withheld agency action or unreasonably delayed it at a time when the moratori um was not in effect, we must compel the Secretary to perform the mandatory dutie s required by the ESA. With our discretion so limited, we now turn to whether the Secretary's failure to designate the silvery minnow's critical habitat wit hin the statutory time frame constitutes agency action unlawfully withheld or un reasonably delayed.

2. “Unlawfully withheld” vs. “unreasonably delayed.” Courts have given little attention to the distinction between agency action “unlawfully withheld” and agency action “unreasonably delayed” from the draft ing of APA. However, that distinction is important in this case because the d iscretion Congress took away from courts by using “shall” in the first portion o f § 706(1) arguably could come back to the courts through Congress' use of the mod ifier “unreasonably” as applied to actions “delayed” (as opposed to actions “withhe ld”) in the second portion of § 706(1). As with all questions of statutory interpretation, we first look to the text of Congress' provisions. Unfortunately, the ambiguityof § 706 is the source of our15Nor can we find any guidance regarding a distinctio n in the rest of the

United States Code. The terms “unlawfully withheld ” and “unreasonably delayed” appear in only two sections of the Code be sides the APA. These sections explicitly or in legislative history refer ence 5 U.S.C. §706 and provided no further clarification. In 1996, Congress amende d the Federal Environmental Pesticide Control Act of 1972 as follows: “If the Administrator fails to notify an applicant within the period of time required under clause (i), the failure shall be considered an agency action unlawfully withheld or unreasonably delayed for purposes of judicial review under chapter 7 of Titl e 5.” 7 U.S.C. § 136a (h)(3)(F)(ii). In 1989, Congress amended 38 U.S.C. § 7261(a)(2) to read: “(a) In any action brought under this chapter, the Court of Veterans Appeals . . . shall . . . compel action of the Secretary unlawfully withheld or unreasonably delayed.” Prior to the amendment, 38 U.S.C. §7261(a)(2) only required the secretary to compel action “unlawfully withheld.” The amendmentadded “or unreasonably delayed” to the end of the existing law to bring itinto accord with 5 U.S.C. § 706(1). See 135 Cong. Rec. 30,627 (1989) (Explanatory Statement on the Compromise Agreement on H.R. 901, as amended).

- 24 - confusion. Section 706 merely sets out the alternative conditions under which a court must compel agency action — i.e., when agency action is “unlawfully withheld” or “unreasonably delayed.” Moreover, nei ther the APA's other substantive provisions nor its structure cast lighton the meaning of § 706. 15 Further, notwithstanding the debate concerning the propriety of finding statutory meaning by reference to legislative histo ry, the floor debates and committee reports attendant to the APA provide litt le guidance regarding any possible distinction between “unlawfully withheld” and “unreasonably delayed.” The Senate Report accompanying the original APA exp lained only that the judicial review provisions “expressly recognize[] the right of properly interested parties to16 The judicial review provision of the APA which became 5 U.S.C. §

706(1) originally appeared as § 10(e)(A) of the APAin 1946. - 25 - compel agencies to act where they improvidently ref use to act.” 16 S. Rep. No. 79- 752 (1945), reprinted inAdministrative Procedure Act Legislative History, at 214 (1946). Even the document which has been called th e “Government's own most authoritative interpretation of the APA, the 1947 Attorney General's Manual on the Administrative Procedure Act (AG's Manual), which [ the Court has] repeatedly given great weight,” Bowen v. Georgetown Univ. Hos p ., 488 U.S. 204, 218 (1988) (Scalia, J., concurring), fails to illuminat e any distinction between “unlawfully withheld” and “unreasonably delayed.” With respect to § 10(e)(A) of the APA, the AG's Manual explains that:

Clause (A) authorizing a reviewing court to “compel agency action unlawfully withheld or unreasonably delayed” , appears to be a particularized restatement of existing judicial pra ctice under section 262 of the Judicial Code (28 U.S.C. 377). . . . Ord ers in the nature of a writ of mandamus have been employed to compel an administrative agency to act, Safeway Stores, Inc. v. Brown , [138 F.2d 278 (Emer. Ct. App. 1943)], . . . or to compel an agency or of ficer to perform a ministerial or non-discretionary act. Clause (A) o f section 10(e) was apparently intended to codify these judicial functi ons. Obviously, the clause does not purport to empower acourt to substitute its discretion for that of an administrative agency . . . . However, as in Safeway Stores v. Brown , supra , a court may require an agency to take action upon a matter, without dir ecting how it shall act. Attorney General's Manual on the Administrative Pro cedure Act, at 108 (1947).17 The Safeway Stores case cited in the AG's Manual concluded that if th e

Administrator should unreasonably delay final actio n, a court may issue a writ of mandamus directing the Price Administrator to take action upon a pending request. That case appeared, without analysis, to conflate the concepts of “unlawfully withheld” and “unreasonably delayed,” p erhaps because the statute it was interpreting had both an absolute time period w ithin which the Price Administrator must act and an additional requirement that the Administrator act “within a reasonable time” within the absolute maxi mum time fixed for action. See Safeway Stores , 138 F.2d at 278-80. - 26 - Thus, while the AG's Manual places the APA's judici al review provisions in their historical context and clarifies the courts' power to compel agency action, it sheds no light on the difference between agency action “u nlawfully withheld” and “unreasonably delayed.” 17 In the absence of any clear statutory guidance we w ill simply apply the most straight forward common sense reading of these two phrases. Thus, if an agency has no concrete deadline establishing a date by whi ch it must act, and instead is governed only by general timing provisions — such a s the APA's general admonition that agencies conclude matters presented to them “within a reasonable time,” see 5 U.S.C. § 555(b) — a court must compel only actio n that is delayed unreasonably. Conversely, when an entity governed by the APA fails to comply with a statutorily imposed absolute deadline, it ha s unlawfully withheld agency action and courts, upon proper application, must co mpel the agency to act. Thus, the distinction between agency action “unlawf ully withheld” and “unreasonably delayed” turns on whether Congress imposed a date-certain deadline- 27 -

on agency action. See Sierra Club v. Thomas , 828 F.2d 783, 794-95 & nn. 77-80 (D.C. Cir. 1987) (citing cases and drawing a distin ction between an agency’s refusal to comply with an absolute time requirementfor action and an agency’s more generalized unreasonable delay in acting). In our opinion, when an agency is required to act — either by organic statute or by t he APA — within an expeditious, prompt, or reasonable time, § 706 leaves in the cou rts the discretion to decide whether agency delay is unreasonable. However, whe n Congress by organic statute sets a specific deadline for agency action, neither the agency nor any court has discretion. The agency must act by the deadlin e. If it withholds such timely action, a reviewing court must compel the action un lawfully withheld. To hold otherwise would be an affront to our tradition of l egislative supremacy and constitutionally separated powers. In support of the contrary position, the Secretary argues that we should exercise our discretion and consider the context su rrounding his legislative duty, as the District of Columbia Circuit did under simil ar circumstances in In re Barr Labs., Inc. , 930 F.2d 72 (D.C. Cir. 1991). In In re Barr , the court refused to order the Food and Drug Administration (“FDA”) to comply with a statutorily-imposed 180-day deadline for approving or disapproving gene ric drug applications. The court held that the “FDA’s sluggish pace violate[d] a statutory deadline,” but refused to issue the writ of mandamus sought by Barr Laboratories. See id. at 73.18 The six factors the District of Columbia recognized in

Telecommunications Research Action Ctr. v. FCC , 750 F.2d 70, 80 (D.C. Cir. 1984) [“TRAC ”], are as follows: (1) the time agencies take to make decisions must b e governed by a “rule of reason”; (2) where Congress has provided atimetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory sch eme may supply content for this rule of reason; (3) delays that mi ght be reasonable in the sphere of economic regulation are less tolerabl e when human health and welfare are at stake; (4) the court shou ld consider the effect of expediting delayed action on agency activ ities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by de lay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonabl y delayed.’” - 28 - Without reference to § 706, the court explained that “[e]quitable relief, particularly mandamus, does not necessarily follow a finding of a violation.” Id. at 74. The court then stated that: “[o]ur leading case in this area, TRAC , identified six principles that have helped courts d etermine when mandamus is an appropriate remedy for agency delay . . . .” Id. 18 Dismissing the import of Congress' deadline, the court concluded that “a fin ding that delay is unreasonable does not, alone, justify judicial intervention.” I d. at 75. In light of the clear command of § 706, we cannot a gree. Section 706 requires that a reviewing court “shall compel agenc y action . . . unreasonably delayed,” and despite the In re Barrcourt's contrary conclusion, we believe that once a court deems agency delay unreasonable, it mu st compel agency action.19 The FCC delay at issue in TRAC was not governed by any mandatory

deadline. Instead, the only timing requirement Con gress imposed on the FCC was the general APA mandate that agencies decide matter s within a reasonable time. See id. at 79. Moreover, none of the cases on which TRAC relies involves mandatory agency deadlines. See Public Citizen Health Research Group v. FDA , 740 F.2d 21, 32 (D.C. Cir. 1984) (relying on APA re quirement that agency “proceed to conclude a matter presented to it withi n a reasonable time” (quotation omitted)); Potomac Elec. Power Co. v. ICC , 702 F.2d 1026, 1034 (D.C. Cir.) (statute required ICC to “act in a timely manner”), supplemented by , 705 F.2d 1343 (D.C. Cir. 1983); Public Citizen Health Resear ch Group v. Auchter , 702 F.2d 1150, 1158 (D.C. Cir. 1983) (ordering agency a ction after a finding that rulemaking was “unreasonably delayed” based in parton APA's requirement that agency act “within a reasonable time”); MCI Telecom ms. Corp. v. FCC , 627 F.2d 322, 340 (D.C. Cir. 1980) (statute requiring FCC ratemaking “within a reasonable time”; Blankenship v. Secretary of HEW , 587 F.2d 329, 333 (6th Cir. 1978) (relying in part on APA's general “reasonable time” requirement). - 29 - Neither TRAC nor any of the cases it relied on to “discern the hexagonal contours of a standard” involved agency inaction in the face of a mandatory statutory deadline. 19 TRAC , 750 F.2d at 80. However helpful the hexagonal standard of TRAC may be when considering a discretionary time sched ule, we decline to apply it to the Secretary's failure to d esignate the critical habitat for the silvery minnow where Congress has established a spe cific, non-discretionary time within which the agency must act. When an agency f ails to meet a concrete statutory deadline, it has unlawfully withheld agen cy action.

IV. REMEDY- 30 -

The Secretary concedes that he failed to perform a non-discretionary duty, but urges us to excuse his failure on the basis of resource limitations and the impossibility of compliance due to the moratorium a nd insufficient monetary allocations since its expiration. We are not unsympathetic to the Secretary's practic al predicament. Moreover, we respect the Secretary's goal, reflecte d in the LPG, of prioritizing duties in order to achieve the greatest conservatio n benefit for the greatest number of species, instead of allowing those decisions to be driven by the exigencies of litigation. See 61 Fed. Reg. 24722, 24723-24 (1996). While we appreciate the Secretary's objective and t he difficult position in which Congress has placed him, we believe his impos sibility argument is premature. The Secretary's impossibility defense ( based on a generalized claim of inadequate resources) hypothetically could arise atthree distinct junctures in the litigation. First, the inadequate resource argumen t could arise at the duty stage; essentially the claim would be that Congress’ inade quate appropriations relieve the Secretary of his non-discretionary duties under the ESA. This is essentially a “repeal by implication” argument, or more precisely , a “suspension by implication” argument. However, repeals (or suspension) of legi slation by implication are disfavored, especially “when the claimed repeal res ts solely on an Appropriations20 We distinguish the present circumstances from those in effect during the

moratorium. While the express congressional morato rium was in effect, that congressional enactment constituted an express susp ension of the Secretary's listing responsibilities under the ESA. However, o nce the moratorium expired, the Secretary can no longer point to any extant leg islation expressly modifying his duties under the ESA. - 31 - Act.” 20 Tennessee Valley Authority v. Hill , 437 U.S. 153, 190 (1978); cf. United States v. United Continental Tuna Corp. , 425 U.S. 164, 168 (1976) (It is “a cardinal principle of statutory construction that r epeals by implication are not favored.” (internal quotation omitted)). Wisely, t he Secretary does not press the argument that inadequate congressional appropriatio ns relieved him of his ESA duties. We could not accept that argument if it ha d been raised, especially in light of the fact that the specific statutory date by whi ch the Secretary was required to designate the critical habitat for the silvery minn ow had already passed one month before the moratorium was enacted, and the Secretary has continued to ignore that clear statutory deadline for more than two-and-one- half years since the moratorium has been lifted. Second, the inadequate resources defense could aris e at the remedy stage; the claim would be that notwithstanding the Secreta ry’s failure to perform a mandatory duty, lack of resources should cause this court to disregard the mandated statutory remedy. The Secretary does adva nce this argument, but in light of the lengthy discussion above, we cannot ac cept it. In sum, we hold that- 32 -

Congress, through 5 U.S.C. § 706, has explicitly re moved from the courts the traditional equity balancing that ordinarily attend s decisions whether to issue injunctions. In the face of Congress' clear comman d, the Secretary's inadequate resource argument must fail with respect to the app ropriate remedy. Section 706 requires us to compel the unlawfully withheld agenc y action. Third, the inadequate resources defense could arise at the contempt stage, as a traditional impossibility defense at any subseque nt contempt proceeding that may occur if the Secretary fails to comply with an orde r enjoining him to designate the critical habitat by a time certain. See United States v. Rylander , 460 U.S. 752, 757 (1983) (“In a civil contempt proceeding . . . a def endant may assert a present inability to comply with the order in question.”); Donovan v. Burgett Greenhouses,
Inc. , 759 F.2d 1483, 1486 (10th Cir. 1985) (“the defend ant could avoid a contempt adjudication by showing through clear and convincin g evidence that he was unable to meet the requirements of the injunction”); NRDC v. Train , 510 F.2d 692, 713 (D.C. Cir. 1975) (noting, with respect to the Admin istrator of EPA claiming inadequate resources to comply with statutory duty, that “[t]he sound discretion of an equity court does not embrace enforcement throug h contempt of a party’s duty to comply with an order that calls him to do an imp ossibility”(quotation omitted)). While the Secretary's historic practice and oral as surance during argument convince us that the Secretary will comply with cou rt orders, we note that in a- 33 -

contempt proceeding, if one should occur, the Secre tary will have the opportunity of proving impossibility. See Donovan , 759 F.2d at 1486.

V. CONCLUSION We hold that the Secretary violated his non-discret ionary duty by failing to designate the critical habitat for the Rio Grande s ilvery minnow by the statutory deadline. After all the permissible delays and ext ensions, the ESA required the Secretary to publish a final critical habitat desig nation by March 1, 1995. This preceded any appropriations cutback or moratorium o n spending. Moreover, the moratorium on funding activities essential for maki ng critical habitat designations ended well over two years ago. In sum, the Secreta ry unlawfully withheld agency action here, and we are required by § 706 to compel the Secretary to act. That said, we are left to work out the details. Co ncerned by the Secretary's delay and the prospect of more delay if the case is remanded to the district court, plaintiffs ask this court to order the Secretary to complete the critical habitat determination within 30 days. In support of this r emedy, plaintiffs cite nine district court orders requiring the Secretary to co mply with statutory obligations, within between 5 and 120 days. The plaintiffs, how ever, cite no case in which a circuit court has set the deadline for compliance.- 34 -

While we hold that the Secretary must be ordered to comply with his statutory duty to designate the critical habitat fo r the silvery minnow without regard to his preferred priorities, any order now t o impose a new deadline for compliance must consider what work is necessary to complete the designation and how quickly that can be accomplished. Accordingly, we remand the case to the district court with instructions to order the Secre tary to issue a final critical habitat designation for the silvery minnow as soon as possi ble, without regard to the Secretary’s other priorities under the ESA. For guidance, we refer the district court to the pr oceedings in Environmental Defense Center v. Babbitt , 73 F.3d 867 (9th Cir. 1995). There, in a case de cided during the moratorium, the Ninth Circuit held that the Secretary violated his nondiscretionary duties to take final action on the California red-legged frog, but remanded to the district court to specify the time for compliance with the ESA after appropriated funds became available. See id. at 872. At a hearing which took place only 10 days after the moratorium was li fted, the district court ordered the Secretary to list the red-legged frog within 14 days. See Environmental Defense Center v. Babbitt , CV-95-2867-R, (D. C. Cal. May 6, 1996), Appellant ’s Appendix, at 145. We REVERSE the district court’s denial of plaintiff s’ motion to review agency action, VACATE the stay order, and REMAND to the district court to- 35 -

order the Secretary to publish a final critical hab itat designation for the Rio Grande silvery minnow as soon as possible

.