PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FOREST GUARDIANS, a non-profit

New Mexico corporation, and

DEFENDERS 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 consideration 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, 1998, as follows:

The first sentence of the first full paragraph in column two at 164

F.3d 1269 of the West’s Federal Reporter advance sheets (first

sentence of first full paragraph on page 20 of our slip opinion) is

amended to read: Even in mandamus cases, which inherently involve
- 2 -

court discretion, we have often spoken in strong, and 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 column 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 final regulation

regarding designation of the critical habitat for the silvery minnow

without regard to his preferred priorities, any order now to impose a

new deadline for compliance must consider what work is necessary to

publish the final rule and how quickly that can be accomplished.

The last paragraph of the opinion, at 164 F.3d at 1274 of the West’s

Federal Reporter advance sheets (page 35 of the slip opinion) is

amended to read: We REVERSE the district court’s denial of

plaintiffs’ motion to review agency action, VACATE the stay order,

and REMAND to the district court to 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 silvery minnow, 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, and

DEFENDERS 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, for Plaintiffs-Appellants.

James C. Kilbourne, Attorney, Department of Justice (Lois J. Schiffer, Assistant

Attorney General; John J. Kelly, United States Attorney; John W. Zavitz,

Assistant United States Attorney; Ellen J. Durkee, Attorney, Department of

Justice; and Warigia Bowman, Attorney, Department of 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 motion 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 subsequent amendments (“ESA” or

“Act”). In July 1994, the Secretary of the Interior (“Secretary”) listed the fish as

an endangered species, but failed to issue a rule regarding its critical habitat. By

statute, a final rule designating the silvery minnow’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 brought an action in federal

district court to compel the Secretary to designate the critical habitat for the

silvery minnow within 30 days. The Secretary, while 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 backlog created by a 13-month

spending moratorium imposed by Congress which lasted 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 since the moratorium expired, the

district court credited the Secretary’s impossibility argument, denied the

plaintiffs’ motion to review agency action, and granted the Secretary’s motion to
- 3 -

stay the case until October 1999. Because the Secretary failed to comply with a

mandatory, non-discretionary duty unambiguously imposed by the ESA, and

because the Administrative Procedure Act requires courts 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 “Final Rule”]. Over the past 30

years, however, due in large part to dam construction and dewatering of a large

percentage of its habitat, the silvery minnow’s presence 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 the Cochiti Dam, in Sandoval

County, New Mexico to the headwaters of the Elephant Butte Reservoir, in

Socorro County, New Mexico. See id. 
1The Fish and Wildlife Service is located in the Department 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 area occupied by

the species, at the time it is listed in accordance with the provisions

of section 1533 of this title, on which are found those physical or

biological features (I) essential to the conservation of the species and

(II) which may require special management considerations or

protection; and

(ii) specific areas outside the geographical area occupied 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 Service1

 (“FSW” or “Service”)

published a proposed rule to list the Rio Grande silvery 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 deadline. Over four months

later, on July 20, 1994, the Service published a final rule listing the Rio Grande
3Section 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 concurrently 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 determinable, in which

case the Secretary, with respect to the proposed regulation to

designate such habitat, may extend the one-year period specified in

subparagraph (A) by not more than one additional year, but not later

than the close of such additional year the Secretary must publish a

final regulation, based on such data as may be available at that time,

designating, to the maximum extent prudent, such habitat.

(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 that 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 minnow’s critical habitat was “not

then determinable,” and thereby extended its deadline 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 final decision on
3

(...continued)

ESA, 16 U.S.C. § 1533(b)(6)(C).

4

In this litigation, the district court found, and the 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) of 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 not made 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, alleging 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 designation of critical habitat for

the silvery minnow within 30 days of the court’s order. In his answer, the

Secretary admitted his failure to comply with his statutory duty to designate

critical habitat for the silvery minnow, but defended his inaction on the ground

that “no resources are available at this time to complete a critical habitat

determination for the silvery minnow.”
5Listing duties and critical habitat designations are sometimes referred to

collectively as Section 4 duties, because they emanate 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. 1411, 1411-13 (1982).

6On April 10, 1995, Congress passed the first such moratorium, Emergency

Supplemental Appropriations and Rescissions for the Department of Defense to

(continued...)

- 7 -

On July 14, 1997, plaintiffs filed a motion captioned 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 of his non-discretionary ESA

duties and order him to carry out his duties within 30 days. That same day, the

Secretary filed his opposition to the plaintiffs’ motion 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 Congress 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 endangered or threatened and

prohibiting the designation of critical habitats for species already listed.6 This
6

(...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 Public Law 103-322 — 

(1) $1,500,000 are rescinded from the amounts available for making

determinations whether a species is a threatened or endangered 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 constitutes critical habitat (except

a final determination that a species previously determined to be endangered

is no longer endangered but continues to be threatened).

- 8 -

moratorium on expenditures for critical habitat determinations 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 moratoria imposed by Congress and

Service response). Because of the moratoria, between October 1995 and April

1996, the Service expended only $233,000 on the entire nationwide listing

program — a modest sum compared to the nearly $4 million it received for the

first six months of FY 1995.

On April 26, 1996, Congress passed an appropriations bill for the

Department of the Interior for FY 1996. See Omnibus Consolidated Rescissions
7

In addition, the Service had outstanding 182 candidate species whose

conservation status needed determination, numerous court orders to take various

actions under Section 4 of the ESA, and 57 petitions 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 contained a provision permitting the

President to waive the moratorium. President Clinton 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 and critical habitat designations

for the balance of FY 1996.

Due to these budgetary restrictions, when the Service received its funding

in April 1996, it was faced with a backlog of 243 proposed species listings on

which it was required to make a final determination.

7

 See 61 Fed. Reg. 24,722,

24,724 (1996). Concluding that it could not feasibly complete all of its Section 4

duties in a timely manner, the Service, after notice 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 designation provided only a limited
8The 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 were 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, again 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 — Congress had not

appropriated funds for the Service’s listing program; thus, the program proceeded

under a continuing resolution at FY 1997 listing levels. In response to what it

perceived to be continued inadequate funding, the Service extended the FY 1997

LPG into FY 1998. See 62 Fed. Reg. 55,268, 55,269 (1997). On November 14,

1997, Congress enacted the Department of the Interior’s FY 1998 Appropriations

Act. See Department of the Interior and Related Agencies Appropriations Act,

1998, Pub. L. No. 105-83, 111 Stat. 1543 (1997). Therein, Congress expressly

limited spending on listings and critical habitat determinations to $5.19 million. 

See id. at 1547. Again concluding that Congress’ allocation 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, 25,509
9This 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.

10While in Biodiversity Legal Foundation v. Babbitt, 146 F.3d 1249 (10th

Cir. 1998), this court recognized the LPG as a valid 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 which to 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 Secretary’s LPG, persuaded by the

Secretary’s claim of fiscal impossibility and the Service’s argument that the LPG

served the ESA’s “overarching purposes” — “maximizing species protection and

reversing the trends of extinction.” Id. at 5. Thus, though the court

“admonishe[d]” the Secretary to ensure that the silvery minnow’s critical habitat

was designated “as soon as fiscally possible,” the district court denied plaintiffs’

motion for review of agency decision and granted defendant’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 limitations can justify the

Secretary’s failure to comply with mandatory, non-discretionary duties imposed

by the ESA.10 We hold that they cannot, and accordingly we reverse. 
10(...continued)

congressionally-imposed mandatory duties. See id. at 1256 (“We note that the

question of the 1997 LPG's validity where a violation 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 this 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 the United States . . . or of the

judges thereof, granting, continuing, modifying, refusing or dissolving injunctions

. . . .” 28 U.S.C. § 1292(a) (emphasis added). The 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 applies to orders with the “practical

effect” of disposing of a request for injunctive relief. See id. We believe the

district court order is appealable under either analysis.

When plaintiffs' motion is read in conjunction with their complaint, it is

clear that plaintiffs were seeking injunctive relief. First, in their complaint,

plaintiffs expressly requested an “injunction” ordering the Secretary to “issue a
11The 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 injunctive relief.”).

- 13 -

final rule on designation of critical habitat for the minnow within 30 days of this

Court’s order.” Likewise, although plaintiffs’ motion before the district court

was captioned “Motion for Review of Agency Decision,” it too sought injunctive

relief. The plaintiffs expressly requested that the 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 district court’s order had the

“practical effect” of refusing plaintiffs’ injunction. In order to have appellate

jurisdiction under this second strand of analysis, the challenged order must: (1)

have “the practical effect of refusing an injunction,” (2) threaten a “‘serious,
- 14 -

perhaps irreparable, consequence,’” and (3) be “‘effectually 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 plaintiffs’ 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 denial of motion for

summary judgment was sufficient to establish first prong of Carson where it

effectively denies or obviates the need for injunctive 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 the Secretary’s motion to stay

proceedings until October 30, 1999 had the effect of denying plaintiffs’ request for

an order enjoining the Secretary to comply presently.

In addition, the consequences of denying plaintiffs’ motion and staying

proceedings for over 14 months threatens serious, perhaps irreparable,

consequences regarding the continued vitality of the silvery minnow. Despite the

Secretary’s argument to the contrary, critical habitat designations serve to protect

species vulnerable to extinction. Without a designated critical habitat, the ESA's

requirement that “[e]ach Federal agency shall . . . insure that any [of its actions] is
12The Secretary argues that even if we view the district 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 adverse modification of [critical]

habitat,” 16 U.S.C. § 1536(a)(2), becomes unenforceable. 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 threatened. See 16 U.S.C. §

1533(b)(6)(C). Delaying a decision on the Secretary’s duties regarding

designation of critical habitat — a designation already 3 1⁄2 years overdue — for

over a year more could result in continued and potentially irreparable loss of the

silvery minnow.

Finally, immediate review in this court is necessary to challenge effectually

the Secretary’s inaction. Plaintiffs have no other recourse. Without review in this

court, the action will be stayed until October 30, 1999.

Accordingly, we have jurisdiction to reach the merits 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). “We
12(...continued)

our review should be abuse of discretion. The Secretary takes this standard from

Ute Indian Tribe of Unitah & Ouray Reservation v. Utah, 114 F.3d 1513, 1520

(10th Cir. 1997), cert. denied, 118 S. Ct. 1034 (1998). However, Ute Indian Tribe

did not involve a request for an injunction against an agency coming under the

Administrative Procedure Act. The cases cited herein demonstrate that the

Secretary misapprehends our review standard.

- 16 -

give no deference . . . to the legal or factual decisions of the district court.” 

Nazaraghaie v. INS, 102 F.3d 460, 463 (10th Cir. 1996). In determining the

proper remedy for the Secretary’s failure to comply with 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 requires 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 critical 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 minnow as endangered and to

designate its critical habitat on March 1, 1993. See Proposed Rule to List the Rio
13If the Secretary deems that a critical habitat is not 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 such additional year the Secretary

must publish a final regulation, based on such data as may be available at that

time, designating, to the maximum extent prudent, such 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-year extension 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 the 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 the district court, the

plaintiffs, and the Secretary himself, that the Secretary 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 non-discretionary duty to

issue a critical habitat designation for the Rio Grande silvery minnow, we now

look to the APA to determine the proper remedy to be prescribed upon judicial

review. The APA provides that “the reviewing court shall decide all relevant
- 18 -

questions of law, interpret constitutional and statutory provisions, and determine

the meaning or applicability of the terms of an agency action. The reviewing court

shall . . . compel agency action unlawfully withheld or unreasonably delayed.” 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,” Congress 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 forfeiture statute, “Congress could not

have chosen stronger words to express its intent that forfeiture be mandatory in

cases where the statute applied”); Pierce v. Underwood, 487 U.S. 552, 569-70

(1988) (Congress' use of “shall” in a housing subsidy statute constitutes

“mandatory language”); Barrentine v. Arkansas-Best Freight Sys., Inc. 450 U.S.

728, 739 n.15 (1981) (same under Fair Labor Standards Act); United States v.

Myers, 106 F.3d 936, 941 (10th Cir.) (“It is a basic canon 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 Dictionary 1233 (5th ed.

1979) (“As used in statutes . . . [shall] is generally 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 non-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-Barcelo, 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, the Court has likewise made clear

Congress' power to curb the courts' discretion by clear expression. See

Weinberger, 456 U.S. at 313 (“Of course, Congress may intervene and guide or

control the exercise of the courts' discretion, but we do not lightly assume that

Congress has intended to depart from established principles.”). 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 court discretion, we have

often spoken in strong, and occasionally even absolute, language with regard to the

court’s duty to enforce agency action mandated by Congress. “If, after studying

the statute and its legislative history, the court determines that the defendant

official has failed to discharge a duty which Congress intended him to perform, the

court should compel 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 relief is an appropriate remedy to compel an administrative agency to

act where it has failed to perform a nondiscretionary, ministerial duty. 

Administrative agencies do not possess the discretion to avoid discharging the

duties that Congress intended them to perform.” (citations omitted)); Health Sys.

Agency of 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 been 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 petition to list the California redlegged frog as an endangered species, which the Secretary admitted he had failed

to do by the statutory deadline. While the court stopped short of compelling

immediate action, we believe the following passage indicates that it would have

done so, but for the then-existing congressional spending moratorium on listing

activities:

On May 1, 1995, EDC filed the instant suit to compel the

Secretary to make and publish a final determination. EDC would

prevail except for the fact that between the time the Secretary failed

to meet the deadline and the time EDC filed suit, Congress 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 that the Secretary had

violated his non-discretionary duty to take final action on the California redlegged frog by February 2, 1995. See id. at 872. However, the court recognized

that the appropriations rider prevented the Secretary 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 Secretary argues that

Environmental Defense Center v. Babbitt supports 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 modify
14We 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 and 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 the 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 comply with its mandatory,

non-discretionary duties should consider available resources when deciding

whether to enjoin the agency, we disagree. Of course, 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 resources must be reserved as a

defense against contempt if an injunction issues. See infra Section 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 complying with the [ESA],” id.

at 872, that the Ninth Circuit recognized the inadequate 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 had 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 remand. After a remand hearing

held only 10 days after the congressional spending moratorium was lifted, the

district court ordered the Secretary to “complete the 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 unlawfully withheld agency action or

unreasonably delayed it at a time when the moratorium was not in effect, we must

compel the Secretary to perform the mandatory duties 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 within the statutory time frame

constitutes agency action unlawfully withheld or unreasonably 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 drafting of APA. However, that

distinction is important in this case because the discretion Congress took away

from courts by using “shall” in the first portion of § 706(1) arguably could come

back to the courts through Congress' use of the modifier “unreasonably” as applied

to actions “delayed” (as opposed to actions “withheld”) 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 ambiguity of § 706 is the source of our
15Nor can we find any guidance regarding a distinction in the rest of the

United States Code. The terms “unlawfully withheld” and “unreasonably

delayed” appear in only two sections of the Code besides the APA. These

sections explicitly or in legislative history reference 5 U.S.C. §706 and provided

no further clarification. In 1996, Congress amended 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 Title 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 amendment added “or unreasonably

delayed” to the end of the existing law to bring it into 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, neither the APA's other

substantive provisions nor its structure cast light on the meaning of § 706.15

Further, notwithstanding the debate concerning the propriety of finding

statutory meaning by reference to legislative history, the floor debates and

committee reports attendant to the APA provide little guidance regarding any

possible distinction between “unlawfully withheld” and “unreasonably delayed.” 

The Senate Report accompanying the original APA explained only that the judicial

review provisions “expressly recognize[] the right of properly interested parties to
16The judicial review provision of the APA which became 5 U.S.C. §

706(1) originally appeared as § 10(e)(A) of the APA in 1946.

- 25 -

compel agencies to act where they improvidently refuse to act.”16 S. Rep. No. 79-

752 (1945), reprinted in Administrative Procedure Act Legislative History, at 214

(1946). Even the document which has been called the “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. Hosp., 488 U.S. 204, 218

(1988) (Scalia, J., concurring), fails to illuminate 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 practice under section

262 of the Judicial Code (28 U.S.C. 377). . . . Orders 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 officer to perform a

ministerial or non-discretionary act. Clause (A) of section 10(e) was

apparently intended to codify these judicial functions.

Obviously, the clause does not purport to empower a court 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 directing how it shall

act.

Attorney General's Manual on the Administrative Procedure Act, at 108 (1947).
17The Safeway Stores case cited in the AG's Manual concluded that if the

Administrator should unreasonably delay final action, 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,” perhaps because the statute it

was interpreting had both an absolute time period within which the Price

Administrator must act and an additional requirement that the Administrator act

“within a reasonable time” within the absolute maximum time fixed for action. 

See Safeway Stores, 138 F.2d at 278-80.

- 26 -

Thus, while the AG's Manual places the APA's judicial 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 “unlawfully withheld” and

“unreasonably delayed.”17

In the absence of any clear statutory guidance we will 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 which it must act, and instead is

governed only by general timing provisions — such as 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 action that is delayed

unreasonably. Conversely, when an entity governed by the APA fails to comply

with a statutorily imposed absolute deadline, it has unlawfully withheld agency

action and courts, upon proper application, must compel the agency to act.

Thus, the distinction between agency action “unlawfully 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 distinction between an agency’s

refusal to comply with an absolute time requirement for 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 the APA — within an expeditious,

prompt, or reasonable time, § 706 leaves in the courts the discretion to decide

whether agency delay is unreasonable. However, when 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 deadline. If it withholds such timely

action, a reviewing court must compel the action unlawfully withheld. To hold

otherwise would be an affront to our tradition of legislative supremacy and

constitutionally separated powers.

In support of the contrary position, the Secretary argues that we should

exercise our discretion and consider the context surrounding his legislative duty,

as the District of Columbia Circuit did under similar 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 generic 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. 
18The 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 be governed by a

“rule of reason”; (2) where Congress has provided a timetable or

other indication of the speed with which it expects the agency to

proceed in the enabling statute, that statutory scheme may supply

content for this rule of reason; (3) delays that might be reasonable in

the sphere of economic regulation are less tolerable when human

health and welfare are at stake; (4) the court should consider the

effect of expediting delayed action on agency activities of a higher or

competing priority; (5) the court should also take into account the

nature and extent of the interests prejudiced by delay; and (6) the

court need not “find any impropriety lurking behind agency lassitude

in order to hold that agency action is ‘unreasonably 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 determine when mandamus is an

appropriate remedy for agency delay . . . .” Id.18 Dismissing the import of

Congress' deadline, the court concluded that “a finding that delay is unreasonable

does not, alone, justify judicial intervention.” Id. at 75.

In light of the clear command of § 706, we cannot agree. Section 706

requires that a reviewing court “shall compel agency action . . . unreasonably

delayed,” and despite the In re Barr court's contrary conclusion, we believe that

once a court deems agency delay unreasonable, it must compel agency action. 
19The FCC delay at issue in TRAC was not governed by any mandatory

deadline. Instead, the only timing requirement Congress imposed on the FCC was

the general APA mandate that agencies decide matters 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 requirement that agency

“proceed to conclude a matter presented to it within 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 Research Group v. Auchter, 702

F.2d 1150, 1158 (D.C. Cir. 1983) (ordering agency action after a finding that

rulemaking was “unreasonably delayed” based in part on APA's requirement that

agency act “within a reasonable time”); MCI Telecomms. 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 schedule, we

decline to apply it to the Secretary's failure to designate the critical habitat for the

silvery minnow where Congress has established a specific, non-discretionary time

within which the agency must act. When an agency fails to meet a concrete

statutory deadline, it has unlawfully withheld agency 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 and insufficient monetary

allocations since its expiration.

We are not unsympathetic to the Secretary's practical predicament. 

Moreover, we respect the Secretary's goal, reflected in the LPG, of prioritizing

duties in order to achieve the greatest conservation 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 the difficult position in

which Congress has placed him, we believe his impossibility argument is

premature. The Secretary's impossibility defense (based on a generalized claim of

inadequate resources) hypothetically could arise at three distinct junctures in the

litigation. First, the inadequate resource argument could arise at the duty stage;

essentially the claim would be that Congress’ inadequate 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 legislation by implication are

disfavored, especially “when the claimed repeal rests solely on an Appropriations
20We distinguish the present circumstances from those in effect during the

moratorium. While the express congressional moratorium was in effect, that

congressional enactment constituted an express suspension of the Secretary's

listing responsibilities under the ESA. However, once the moratorium expired,

the Secretary can no longer point to any extant legislation 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 repeals by implication are not

favored.” (internal quotation omitted)). Wisely, the Secretary does not press the

argument that inadequate congressional appropriations relieved him of his ESA

duties. We could not accept that argument if it had been raised, especially in light

of the fact that the specific statutory date by which the Secretary was required to

designate the critical habitat for the silvery minnow 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 arise at the remedy stage;

the claim would be that notwithstanding the Secretary’s failure to perform a

mandatory duty, lack of resources should cause this court to disregard the

mandated statutory remedy. The Secretary does advance this argument, but in

light of the lengthy discussion above, we cannot accept it. In sum, we hold that
- 32 -

Congress, through 5 U.S.C. § 706, has explicitly removed from the courts the

traditional equity balancing that ordinarily attends decisions whether to issue

injunctions. In the face of Congress' clear command, the Secretary's inadequate

resource argument must fail with respect to the appropriate remedy. Section 706

requires us to compel the unlawfully withheld agency action.

Third, the inadequate resources defense could arise at the contempt stage, as

a traditional impossibility defense at any subsequent contempt proceeding that may

occur if the Secretary fails to comply with an order 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 defendant 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 defendant could avoid a contempt

adjudication by showing through clear and convincing 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 Administrator of EPA claiming

inadequate resources to comply with statutory duty, that “[t]he sound discretion of

an equity court does not embrace enforcement through contempt of a party’s duty

to comply with an order that calls him to do an impossibility”(quotation omitted)). 

While the Secretary's historic practice and oral assurance during argument

convince us that the Secretary will comply with court orders, we note that in a
- 33 -

contempt proceeding, if one should occur, the Secretary will have the opportunity

of proving impossibility. See Donovan, 759 F.2d at 1486.

V. CONCLUSION

We hold that the Secretary violated his non-discretionary duty by failing to

designate the critical habitat for the Rio Grande silvery minnow by the statutory

deadline. After all the permissible delays and extensions, the ESA required the

Secretary to publish a final critical habitat designation by March 1, 1995. This

preceded any appropriations cutback or moratorium on spending. Moreover, the

moratorium on funding activities essential for making critical habitat designations

ended well over two years ago. In sum, the Secretary 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. Concerned 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 remedy, plaintiffs cite nine

district court orders requiring the Secretary to comply with statutory obligations,

within between 5 and 120 days. The plaintiffs, however, 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 regarding designation of the critical

habitat for the silvery minnow without regard to his preferred priorities, any order

now to impose a new deadline for compliance must consider what work is

necessary to publish the final rule and how quickly that can be accomplished. 

Accordingly, we remand the case to the district court 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 proceedings in Environmental

Defense Center v. Babbitt, 73 F.3d 867 (9th Cir. 1995). There, in a case decided

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 lifted, 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 plaintiffs’ 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 silvery 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, and

DEFENDERS 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, for Plaintiffs-Appellants.

James C. Kilbourne, Attorney, Department of Justice (Lois J. Schiffer, Assistant

Attorney General; John J. Kelly, United States Attorney; John W. Zavitz,

Assistant United States Attorney; Ellen J. Durkee, Attorney, Department of

Justice; and Warigia Bowman, Attorney, Department of 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 motion 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 subsequent amendments (“ESA” or

“Act”). In July 1994, the Secretary of the Interior (“Secretary”) listed the fish as

an endangered species, but failed to issue a rule regarding its critical habitat. By

statute, a final rule designating the silvery minnow’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 brought an action in federal

district court to compel the Secretary to designate the critical habitat for the

silvery minnow within 30 days. The Secretary, while 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 backlog created by a 13-month

spending moratorium imposed by Congress which lasted 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 since the moratorium expired, the

district court credited the Secretary’s impossibility argument, denied the

plaintiffs’ motion to review agency action, and granted the Secretary’s motion to
- 3 -

stay the case until October 1999. Because the Secretary failed to comply with a

mandatory, non-discretionary duty unambiguously imposed by the ESA, and

because the Administrative Procedure Act requires courts 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 “Final Rule”]. Over the past 30

years, however, due in large part to dam construction and dewatering of a large

percentage of its habitat, the silvery minnow’s presence 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 the Cochiti Dam, in Sandoval

County, New Mexico to the headwaters of the Elephant Butte Reservoir, in

Socorro County, New Mexico. See id. 
1The Fish and Wildlife Service is located in the Department 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 area occupied by

the species, at the time it is listed in accordance with the provisions

of section 1533 of this title, on which are found those physical or

biological features (I) essential to the conservation of the species and

(II) which may require special management considerations or

protection; and

(ii) specific areas outside the geographical area occupied 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 Service1

 (“FSW” or “Service”)

published a proposed rule to list the Rio Grande silvery 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 deadline. Over four months

later, on July 20, 1994, the Service published a final rule listing the Rio Grande
3Section 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 concurrently 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 determinable, in which

case the Secretary, with respect to the proposed regulation to

designate such habitat, may extend the one-year period specified in

subparagraph (A) by not more than one additional year, but not later

than the close of such additional year the Secretary must publish a

final regulation, based on such data as may be available at that time,

designating, to the maximum extent prudent, such habitat.

(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 that 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 minnow’s critical habitat was “not

then determinable,” and thereby extended its deadline 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 final decision on
3

(...continued)

ESA, 16 U.S.C. § 1533(b)(6)(C).

4

In this litigation, the district court found, and the 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) of 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 not made 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, alleging 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 designation of critical habitat for

the silvery minnow within 30 days of the court’s order. In his answer, the

Secretary admitted his failure to comply with his statutory duty to designate

critical habitat for the silvery minnow, but defended his inaction on the ground

that “no resources are available at this time to complete a critical habitat

determination for the silvery minnow.”
5Listing duties and critical habitat designations are sometimes referred to

collectively as Section 4 duties, because they emanate 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. 1411, 1411-13 (1982).

6On April 10, 1995, Congress passed the first such moratorium, Emergency

Supplemental Appropriations and Rescissions for the Department of Defense to

(continued...)

- 7 -

On July 14, 1997, plaintiffs filed a motion captioned 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 of his non-discretionary ESA

duties and order him to carry out his duties within 30 days. That same day, the

Secretary filed his opposition to the plaintiffs’ motion 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 Congress 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 endangered or threatened and

prohibiting the designation of critical habitats for species already listed.6 This
6

(...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 Public Law 103-322 — 

(1) $1,500,000 are rescinded from the amounts available for making

determinations whether a species is a threatened or endangered 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 constitutes critical habitat (except

a final determination that a species previously determined to be endangered

is no longer endangered but continues to be threatened).

- 8 -

moratorium on expenditures for critical habitat determinations 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 moratoria imposed by Congress and

Service response). Because of the moratoria, between October 1995 and April

1996, the Service expended only $233,000 on the entire nationwide listing

program — a modest sum compared to the nearly $4 million it received for the

first six months of FY 1995.

On April 26, 1996, Congress passed an appropriations bill for the

Department of the Interior for FY 1996. See Omnibus Consolidated Rescissions
7

In addition, the Service had outstanding 182 candidate species whose

conservation status needed determination, numerous court orders to take various

actions under Section 4 of the ESA, and 57 petitions 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 contained a provision permitting the

President to waive the moratorium. President Clinton 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 and critical habitat designations

for the balance of FY 1996.

Due to these budgetary restrictions, when the Service received its funding

in April 1996, it was faced with a backlog of 243 proposed species listings on

which it was required to make a final determination.

7

 See 61 Fed. Reg. 24,722,

24,724 (1996). Concluding that it could not feasibly complete all of its Section 4

duties in a timely manner, the Service, after notice 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 designation provided only a limited
8The 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 were 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, again 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 — Congress had not

appropriated funds for the Service’s listing program; thus, the program proceeded

under a continuing resolution at FY 1997 listing levels. In response to what it

perceived to be continued inadequate funding, the Service extended the FY 1997

LPG into FY 1998. See 62 Fed. Reg. 55,268, 55,269 (1997). On November 14,

1997, Congress enacted the Department of the Interior’s FY 1998 Appropriations

Act. See Department of the Interior and Related Agencies Appropriations Act,

1998, Pub. L. No. 105-83, 111 Stat. 1543 (1997). Therein, Congress expressly

limited spending on listings and critical habitat determinations to $5.19 million. 

See id. at 1547. Again concluding that Congress’ allocation 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, 25,509
9This 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.

10While in Biodiversity Legal Foundation v. Babbitt, 146 F.3d 1249 (10th

Cir. 1998), this court recognized the LPG as a valid 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 which to 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 Secretary’s LPG, persuaded by the

Secretary’s claim of fiscal impossibility and the Service’s argument that the LPG

served the ESA’s “overarching purposes” — “maximizing species protection and

reversing the trends of extinction.” Id. at 5. Thus, though the court

“admonishe[d]” the Secretary to ensure that the silvery minnow’s critical habitat

was designated “as soon as fiscally possible,” the district court denied plaintiffs’

motion for review of agency decision and granted defendant’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 limitations can justify the

Secretary’s failure to comply with mandatory, non-discretionary duties imposed

by the ESA.10 We hold that they cannot, and accordingly we reverse. 
10(...continued)

congressionally-imposed mandatory duties. See id. at 1256 (“We note that the

question of the 1997 LPG's validity where a violation 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 this 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 the United States . . . or of the

judges thereof, granting, continuing, modifying, refusing or dissolving injunctions

. . . .” 28 U.S.C. § 1292(a) (emphasis added). The 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 applies to orders with the “practical

effect” of disposing of a request for injunctive relief. See id. We believe the

district court order is appealable under either analysis.

When plaintiffs' motion is read in conjunction with their complaint, it is

clear that plaintiffs were seeking injunctive relief. First, in their complaint,

plaintiffs expressly requested an “injunction” ordering the Secretary to “issue a
11The 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 injunctive relief.”).

- 13 -

final rule on designation of critical habitat for the minnow within 30 days of this

Court’s order.” Likewise, although plaintiffs’ motion before the district court

was captioned “Motion for Review of Agency Decision,” it too sought injunctive

relief. The plaintiffs expressly requested that the 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 district court’s order had the

“practical effect” of refusing plaintiffs’ injunction. In order to have appellate

jurisdiction under this second strand of analysis, the challenged order must: (1)

have “the practical effect of refusing an injunction,” (2) threaten a “‘serious,
- 14 -

perhaps irreparable, consequence,’” and (3) be “‘effectually 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 plaintiffs’ 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 denial of motion for

summary judgment was sufficient to establish first prong of Carson where it

effectively denies or obviates the need for injunctive 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 the Secretary’s motion to stay

proceedings until October 30, 1999 had the effect of denying plaintiffs’ request for

an order enjoining the Secretary to comply presently.

In addition, the consequences of denying plaintiffs’ motion and staying

proceedings for over 14 months threatens serious, perhaps irreparable,

consequences regarding the continued vitality of the silvery minnow. Despite the

Secretary’s argument to the contrary, critical habitat designations serve to protect

species vulnerable to extinction. Without a designated critical habitat, the ESA's

requirement that “[e]ach Federal agency shall . . . insure that any [of its actions] is
12The Secretary argues that even if we view the district 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 adverse modification of [critical]

habitat,” 16 U.S.C. § 1536(a)(2), becomes unenforceable. 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 threatened. See 16 U.S.C. §

1533(b)(6)(C). Delaying a decision on the Secretary’s duties regarding

designation of critical habitat — a designation already 3 1⁄2 years overdue — for

over a year more could result in continued and potentially irreparable loss of the

silvery minnow.

Finally, immediate review in this court is necessary to challenge effectually

the Secretary’s inaction. Plaintiffs have no other recourse. Without review in this

court, the action will be stayed until October 30, 1999.

Accordingly, we have jurisdiction to reach the merits 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). “We
12(...continued)

our review should be abuse of discretion. The Secretary takes this standard from

Ute Indian Tribe of Unitah & Ouray Reservation v. Utah, 114 F.3d 1513, 1520

(10th Cir. 1997), cert. denied, 118 S. Ct. 1034 (1998). However, Ute Indian Tribe

did not involve a request for an injunction against an agency coming under the

Administrative Procedure Act. The cases cited herein demonstrate that the

Secretary misapprehends our review standard.

- 16 -

give no deference . . . to the legal or factual decisions of the district court.” 

Nazaraghaie v. INS, 102 F.3d 460, 463 (10th Cir. 1996). In determining the

proper remedy for the Secretary’s failure to comply with 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 requires 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 critical 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 minnow as endangered and to

designate its critical habitat on March 1, 1993. See Proposed Rule to List the Rio
13If the Secretary deems that a critical habitat is not 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 such additional year the Secretary

must publish a final regulation, based on such data as may be available at that

time, designating, to the maximum extent prudent, such 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-year extension 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 the 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 the district court, the

plaintiffs, and the Secretary himself, that the Secretary 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 non-discretionary duty to

issue a critical habitat designation for the Rio Grande silvery minnow, we now

look to the APA to determine the proper remedy to be prescribed upon judicial

review. The APA provides that “the reviewing court shall decide all relevant
- 18 -

questions of law, interpret constitutional and statutory provisions, and determine

the meaning or applicability of the terms of an agency action. The reviewing court

shall . . . compel agency action unlawfully withheld or unreasonably delayed.” 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,” Congress 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 forfeiture statute, “Congress could not

have chosen stronger words to express its intent that forfeiture be mandatory in

cases where the statute applied”); Pierce v. Underwood, 487 U.S. 552, 569-70

(1988) (Congress' use of “shall” in a housing subsidy statute constitutes

“mandatory language”); Barrentine v. Arkansas-Best Freight Sys., Inc. 450 U.S.

728, 739 n.15 (1981) (same under Fair Labor Standards Act); United States v.

Myers, 106 F.3d 936, 941 (10th Cir.) (“It is a basic canon 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 Dictionary 1233 (5th ed.

1979) (“As used in statutes . . . [shall] is generally 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 non-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-Barcelo, 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, the Court has likewise made clear

Congress' power to curb the courts' discretion by clear expression. See

Weinberger, 456 U.S. at 313 (“Of course, Congress may intervene and guide or

control the exercise of the courts' discretion, but we do not lightly assume that

Congress has intended to depart from established principles.”). 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 established 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 to discharge a duty which

Congress intended him to perform, the court should compel 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 relief is an appropriate

remedy to compel an administrative agency to act where it has failed to perform a

nondiscretionary, ministerial duty. Administrative agencies do not possess the

discretion to avoid discharging the duties that Congress intended them to

perform.” (citations omitted)); Health Sys. Agency of 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 been 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 petition to list the California redlegged frog as an endangered species, which the Secretary admitted he had failed

to do by the statutory deadline. While the court stopped short of compelling

immediate action, we believe the following passage indicates that it would have

done so, but for the then-existing congressional spending moratorium on listing

activities:

On May 1, 1995, EDC filed the instant suit to compel the

Secretary to make and publish a final determination. EDC would

prevail except for the fact that between the time the Secretary failed

to meet the deadline and the time EDC filed suit, Congress 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 that the Secretary had

violated his non-discretionary duty to take final action on the California redlegged frog by February 2, 1995. See id. at 872. However, the court recognized

that the appropriations rider prevented the Secretary 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 Secretary argues that

Environmental Defense Center v. Babbitt supports 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 modify
14We 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 and 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 the 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 comply with its mandatory,

non-discretionary duties should consider available resources when deciding

whether to enjoin the agency, we disagree. Of course, 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 resources must be reserved as a

defense against contempt if an injunction issues. See infra Section 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 complying with the [ESA],” id.

at 872, that the Ninth Circuit recognized the inadequate 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 had 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 remand. After a remand hearing

held only 10 days after the congressional spending moratorium was lifted, the

district court ordered the Secretary to “complete the 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 unlawfully withheld agency action or

unreasonably delayed it at a time when the moratorium was not in effect, we must

compel the Secretary to perform the mandatory duties 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 within the statutory time frame

constitutes agency action unlawfully withheld or unreasonably 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 drafting of APA. However, that

distinction is important in this case because the discretion Congress took away

from courts by using “shall” in the first portion of § 706(1) arguably could come

back to the courts through Congress' use of the modifier “unreasonably” as applied

to actions “delayed” (as opposed to actions “withheld”) 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 ambiguity of § 706 is the source of our
15Nor can we find any guidance regarding a distinction in the rest of the

United States Code. The terms “unlawfully withheld” and “unreasonably

delayed” appear in only two sections of the Code besides the APA. These

sections explicitly or in legislative history reference 5 U.S.C. §706 and provided

no further clarification. In 1996, Congress amended 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 Title 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 amendment added “or unreasonably

delayed” to the end of the existing law to bring it into 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, neither the APA's other

substantive provisions nor its structure cast light on the meaning of § 706.15

Further, notwithstanding the debate concerning the propriety of finding

statutory meaning by reference to legislative history, the floor debates and

committee reports attendant to the APA provide little guidance regarding any

possible distinction between “unlawfully withheld” and “unreasonably delayed.” 

The Senate Report accompanying the original APA explained only that the judicial

review provisions “expressly recognize[] the right of properly interested parties to
16The judicial review provision of the APA which became 5 U.S.C. §

706(1) originally appeared as § 10(e)(A) of the APA in 1946.

- 25 -

compel agencies to act where they improvidently refuse to act.”16 S. Rep. No. 79-

752 (1945), reprinted in Administrative Procedure Act Legislative History, at 214

(1946). Even the document which has been called the “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. Hosp., 488 U.S. 204, 218

(1988) (Scalia, J., concurring), fails to illuminate 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 practice under section

262 of the Judicial Code (28 U.S.C. 377). . . . Orders 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 officer to perform a

ministerial or non-discretionary act. Clause (A) of section 10(e) was

apparently intended to codify these judicial functions.

Obviously, the clause does not purport to empower a court 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 directing how it shall

act.

Attorney General's Manual on the Administrative Procedure Act, at 108 (1947).
17The Safeway Stores case cited in the AG's Manual concluded that if the

Administrator should unreasonably delay final action, 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,” perhaps because the statute it

was interpreting had both an absolute time period within which the Price

Administrator must act and an additional requirement that the Administrator act

“within a reasonable time” within the absolute maximum time fixed for action. 

See Safeway Stores, 138 F.2d at 278-80.

- 26 -

Thus, while the AG's Manual places the APA's judicial 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 “unlawfully withheld” and

“unreasonably delayed.”17

In the absence of any clear statutory guidance we will 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 which it must act, and instead is

governed only by general timing provisions — such as 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 action that is delayed

unreasonably. Conversely, when an entity governed by the APA fails to comply

with a statutorily imposed absolute deadline, it has unlawfully withheld agency

action and courts, upon proper application, must compel the agency to act.

Thus, the distinction between agency action “unlawfully withheld” and

“unreasonably delayed” turns on whether Congress imposed a date-certain deadline
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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 distinction between an agency’s

refusal to comply with an absolute time requirement for 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 the APA — within an expeditious,

prompt, or reasonable time, § 706 leaves in the courts the discretion to decide

whether agency delay is unreasonable. However, when 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 deadline. If it withholds such timely

action, a reviewing court must compel the action unlawfully withheld. To hold

otherwise would be an affront to our tradition of legislative supremacy and

constitutionally separated powers.

In support of the contrary position, the Secretary argues that we should

exercise our discretion and consider the context surrounding his legislative duty,

as the District of Columbia Circuit did under similar 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 generic 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. 
18The 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 be governed by a

“rule of reason”; (2) where Congress has provided a timetable or

other indication of the speed with which it expects the agency to

proceed in the enabling statute, that statutory scheme may supply

content for this rule of reason; (3) delays that might be reasonable in

the sphere of economic regulation are less tolerable when human

health and welfare are at stake; (4) the court should consider the

effect of expediting delayed action on agency activities of a higher or

competing priority; (5) the court should also take into account the

nature and extent of the interests prejudiced by delay; and (6) the

court need not “find any impropriety lurking behind agency lassitude

in order to hold that agency action is ‘unreasonably delayed.’”

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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 determine when mandamus is an

appropriate remedy for agency delay . . . .” Id.18 Dismissing the import of

Congress' deadline, the court concluded that “a finding that delay is unreasonable

does not, alone, justify judicial intervention.” Id. at 75.

In light of the clear command of § 706, we cannot agree. Section 706

requires that a reviewing court “shall compel agency action . . . unreasonably

delayed,” and despite the In re Barr court's contrary conclusion, we believe that

once a court deems agency delay unreasonable, it must compel agency action. 
19The FCC delay at issue in TRAC was not governed by any mandatory

deadline. Instead, the only timing requirement Congress imposed on the FCC was

the general APA mandate that agencies decide matters 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 requirement that agency

“proceed to conclude a matter presented to it within 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 Research Group v. Auchter, 702

F.2d 1150, 1158 (D.C. Cir. 1983) (ordering agency action after a finding that

rulemaking was “unreasonably delayed” based in part on APA's requirement that

agency act “within a reasonable time”); MCI Telecomms. 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).

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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 schedule, we

decline to apply it to the Secretary's failure to designate the critical habitat for the

silvery minnow where Congress has established a specific, non-discretionary time

within which the agency must act. When an agency fails to meet a concrete

statutory deadline, it has unlawfully withheld agency action.

IV. REMEDY
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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 and insufficient monetary

allocations since its expiration.

We are not unsympathetic to the Secretary's practical predicament. 

Moreover, we respect the Secretary's goal, reflected in the LPG, of prioritizing

duties in order to achieve the greatest conservation 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 the difficult position in

which Congress has placed him, we believe his impossibility argument is

premature. The Secretary's impossibility defense (based on a generalized claim of

inadequate resources) hypothetically could arise at three distinct junctures in the

litigation. First, the inadequate resource argument could arise at the duty stage;

essentially the claim would be that Congress’ inadequate 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 legislation by implication are

disfavored, especially “when the claimed repeal rests solely on an Appropriations
20We distinguish the present circumstances from those in effect during the

moratorium. While the express congressional moratorium was in effect, that

congressional enactment constituted an express suspension of the Secretary's

listing responsibilities under the ESA. However, once the moratorium expired,

the Secretary can no longer point to any extant legislation expressly modifying his

duties under the ESA.

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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 repeals by implication are not

favored.” (internal quotation omitted)). Wisely, the Secretary does not press the

argument that inadequate congressional appropriations relieved him of his ESA

duties. We could not accept that argument if it had been raised, especially in light

of the fact that the specific statutory date by which the Secretary was required to

designate the critical habitat for the silvery minnow 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 arise at the remedy stage;

the claim would be that notwithstanding the Secretary’s failure to perform a

mandatory duty, lack of resources should cause this court to disregard the

mandated statutory remedy. The Secretary does advance this argument, but in

light of the lengthy discussion above, we cannot accept it. In sum, we hold that
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Congress, through 5 U.S.C. § 706, has explicitly removed from the courts the

traditional equity balancing that ordinarily attends decisions whether to issue

injunctions. In the face of Congress' clear command, the Secretary's inadequate

resource argument must fail with respect to the appropriate remedy. Section 706

requires us to compel the unlawfully withheld agency action.

Third, the inadequate resources defense could arise at the contempt stage, as

a traditional impossibility defense at any subsequent contempt proceeding that may

occur if the Secretary fails to comply with an order 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 defendant 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 defendant could avoid a contempt

adjudication by showing through clear and convincing 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 Administrator of EPA claiming

inadequate resources to comply with statutory duty, that “[t]he sound discretion of

an equity court does not embrace enforcement through contempt of a party’s duty

to comply with an order that calls him to do an impossibility”(quotation omitted)). 

While the Secretary's historic practice and oral assurance during argument

convince us that the Secretary will comply with court orders, we note that in a
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contempt proceeding, if one should occur, the Secretary will have the opportunity

of proving impossibility. See Donovan, 759 F.2d at 1486.

V. CONCLUSION

We hold that the Secretary violated his non-discretionary duty by failing to

designate the critical habitat for the Rio Grande silvery minnow by the statutory

deadline. After all the permissible delays and extensions, the ESA required the

Secretary to publish a final critical habitat designation by March 1, 1995. This

preceded any appropriations cutback or moratorium on spending. Moreover, the

moratorium on funding activities essential for making critical habitat designations

ended well over two years ago. In sum, the Secretary 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. Concerned 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 remedy, plaintiffs cite nine

district court orders requiring the Secretary to comply with statutory obligations,

within between 5 and 120 days. The plaintiffs, however, cite no case in which a

circuit court has set the deadline for compliance. 
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While we hold that the Secretary must be ordered to comply with his

statutory duty to designate the critical habitat for the silvery minnow without

regard to his preferred priorities, any order now to 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 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 proceedings in Environmental

Defense Center v. Babbitt, 73 F.3d 867 (9th Cir. 1995). There, in a case decided

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 lifted, 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 plaintiffs’ 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 habitat designation for the Rio

Grande silvery minnow as soon as possible.