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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                       United States Court of Appeals
                                                Fifth Circuit

                                                                 FILED
                                                               May 29, 2020
                                 No. 19-50321                 Lyle W. Cayce
                                                                   Clerk

AMERICAN STEWARDS OF LIBERTY; CHARLES SHELL; CHERYL
SHELL; WALTER SIDNEY SHELL MANAGEMENT TRUST; KATHRYN
HEIDEMANN; ROBERT V. HARRISON,

             Plaintiffs

JOHN YEARWOOD; WILLIAMSON COUNTY, TEXAS,

             Intervenor Plaintiffs - Appellants - Cross Appellees

v.

DEPARTMENT OF INTERIOR; UNITED STATES FISH AND WILDLIFE
SERVICE; DAVID BERNHARDT, SECRETARY, U.S. DEPARTMENT OF
THE INTERIOR, in his official capacity; MARGARET E. EVERSON, in her
official capacity as Director of the U.S. Fish and Wildlife Service; AMY
LUEDERS, in her official capacity as the Southwest Regional Director of the
U.S. Fish and Wildlife Service,

             Defendants - Appellees - Cross Appellants

CENTER FOR BIOLOGICAL DIVERSITY; TRAVIS AUDUBON;
DEFENDERS OF WILDLIFE,

              Intervenor Defendants - Appellees



                Appeals from the United States District Court
                      for the Western District of Texas


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
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                                 No. 19-50321
PER CURIAM:
      The Bone Cave harvestman is a small arachnid known to live only in
central Texas that is currently included on the federal endangered species list.
In 2014, a non-profit group and several individuals, including John Yearwood,
filed a petition with the U.S. Fish and Wildlife Service (“FWS”) calling for the
Bone Cave harvestman to be delisted because it does not currently meet the
standards for an endangered species. After reviewing the petition, FWS issued
a negative “90-day finding,” which is a summary denial based on the agency’s
conclusion that the petition did not present sufficient scientific or commercial
evidence indicating that delisting was warranted.
      Some of the petitioners (collectively, “the Original Plaintiffs”)—but not
Yearwood— filed an action in federal district court under the Administrative
Procedures Act (“APA”), challenging FWS’s negative 90-day finding as
arbitrary and capricious.    While the case was pending, the district court
allowed Yearwood and Williamson County (collectively, “the Intervening
Plaintiffs”) to intervene to separately argue that federal regulation of the
purely intrastate species is unconstitutional because it exceeds Congress’s
power under the Commerce and Necessary and Proper Clauses.
      The district court ultimately rejected the Intervening-Plaintiffs’
constitutional arguments but granted summary judgment to the Original
Plaintiffs, concluding that FWS had erred by demanding a higher quantum of
evidence than was statutorily required for a 90-day finding. The court vacated
and remanded FWS’s negative 90-day finding, and FWS has since issued a
positive 90-day finding and begun a more substantial 12-month review to
determine whether the Bone Cave harvestman should be delisted.              The
Intervening Plaintiffs now appeal the denial of their motion for summary
judgment, arguing that this court retains jurisdiction to hear their separate
constitutional arguments for delisting the Bone Cave harvestman. Because we
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find that their appeal is alternatively moot or barred by sovereign immunity,
we dismiss the appeal for lack of jurisdiction.
                                            I.
                                            A.
       Texella reyesi, or the Bone Cave harvestman, is a tiny, pale orange,
eyeless arachnid1 known to live only in caves within a 150-square-mile stretch
of Travis and Williamson Counties in Texas. FWS first added the arachnid to
the endangered species list in 1988 as the Bee Creek Cave harvestman, see 53
Fed. Reg. 36,029 (Sept. 16, 1988), then listed the Bone Cave harvestman
separately in 1993 after further studies revealed that the population was
composed of two distinct species, 58 Fed. Reg. 43,818 (Aug. 18, 1993). The
inclusion of the Bone Cave harvestman on the endangered species list makes
it a federal crime to “take” the species or disturb its habitat. See 16 U.S.C. §
1538(a)(1)(B); 50 C.F.R. § 17.21(c). A “take” is defined as “harassing, harming,
pursuing, hunting, shooting, wounding, killing, trapping, capturing, or
collecting” members of the species “or attempting to engage in any such
conduct.” 16 U.S.C. § 1532(19).
       In June 2014, the non-profit advocacy group American Stewards of
Liberty, Yearwood, and several other individuals that owned land inhabited by
Bone Cave harvestmen collectively filed with FWS a “Petition to delist the
Bone Cave harvestman (Texella reyesi) in accordance with Section 4 of the
Endangered Species Act of 1973.” The petition argued that the Bone Cave
harvestman should no longer be considered endangered because scientists had
discovered 166 new localities containing the species since the time of the
original listing; many of the localities were protected by other federal, state,



       1 Although harvestmen bear a superficial resemblance to spiders, they are actually a
distinct order of arachnids known as Opiliones.
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                                No. 19-50321
and local regulations; and development and other human activity in the
vicinity of the localities had been shown to be less harmful to Bone Cave
harvestman populations than was previously thought.
      A year later, FWS issued a 90-day finding on the petition, which is a
preliminary ruling required under 16 U.S.C. § 1533(b)(3)(A) regarding whether
further consideration of a petition is warranted. 80 Fed. Reg. 30,990 (June 1,
2015). FWS determined that, although population data on the species was
likely impossible to obtain due to much of the population’s residing in caves
that are inaccessible to humans, the petition was deficient because it did not
include population “trend analysis to indicate that this species can withstand
the threats associated with development or climate change over the long term.”
Id. Accordingly, FWS concluded that no further review was necessary and
denied the petition. Id.
                                     B.
      In December 2015, the Original Plaintiffs filed an action challenging
FWS’s negative 90-day finding in the U.S. District Court for the Western
District of Texas under Section 702 of the APA, 5 U.S.C. § 702. The complaint
argued that FWS had applied an inappropriately heightened standard at the
90-day review stage, demanding more than the regulatorily required “amount
of information that would lead a reasonable person to believe that the measure
proposed in the petition may be warranted.” 50 C.F.R. § 424.14(b)(1). Shortly
thereafter, the Intervening Plaintiffs filed a motion to intervene, seeking a
declaration that federal regulation of the Bone Cave harvestman is
unconstitutional and a permanent injunction preventing FWS from enforcing
the prohibition on Bone Cave harvestman takes in addition to vacatur of the
90-day finding.      The district court granted the Intervening Plaintiffs
permissive intervention     under   FEDERAL RULE OF CIVIL PROCEDURE


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24(b)(1)(B), stating without elaboration that their claims shared common
questions of fact with those of the Original Plaintiffs.
       The parties filed cross motions for summary judgment, and, on March
28, 2019,2 the district court entered an order granting summary judgment to
the Original Plaintiffs and disposing of all parties’ claims. Am. Stewards of
Liberty v. Dep’t of the Interior, 370 F. Supp. 3d 711 (W.D. Tex. 2019). The court
first determined that, by requiring population data that was admittedly
unavailable, FWS had not made its decision based on the best available data
as was statutorily required. Id. at 727-28. The court found that the delisting
petition had presented sufficient data that a reasonable person would conclude
that delisting may be warranted and it thus met the standard for a positive 90-
day finding and a more substantial 12-month review. Id. The district court
therefore vacated FWS’s negative 90-day finding and remanded the case for
further consideration. Id. at 728-29. FWS accepted the remand and has since
issued a positive 90-day finding, see 84 Fed. Reg. 54,542 (Oct. 10, 2019), and
this aspect of the district court’s ruling is not at issue in this appeal.
       Turning to the Intervening Plaintiffs’ motion for summary judgment, the
district court observed that the general six-year statute of limitations for civil
actions against the United States applies to claims brought under the APA.
Am. Stewards of Liberty, 370 F. Supp. 3d at 731 (citing 28 U.S.C. § 2401(a)).
The court reasoned that, under this court’s decision in Dunn-McCampbell
Royalty Interest, Inc. v. National Park Service, 112 F.3d 1283, 1286 (5th Cir.


       2 Prior to the motions for summary judgment, FWS requested that the matter be
returned to the agency for consideration of additional materials that it had inadvertently
omitted during its initial decision, and the district court granted the motion. Several months
later, FWS issued a new 90-day finding that mirrored the reasoning of the first, again
concluding that the petition had failed to present substantial scientific and commercial data
indicating delisting was warranted. 82 Fed. Reg. 20,861 (May 4, 2017). Subsequently, the
Original Plaintiffs and the Intervening Plaintiffs amended their respective complaints to
instead challenge the new 90-day finding.
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                                 No. 19-50321
1997), the law distinguishes between facial challenges to agency regulations
and challenges to a subsequent agency action applying the regulation for
purposes of determining when an APA claim accrues. Am. Stewards of Liberty,
370 F. Supp. 3d at 731. A naked facial claim alleging that the regulation
exceeds the agency’s statutory or constitutional authority accrues upon the
agency’s publishing the regulation, the court continued, and such a challenge
thus must be brought within six years thereof. Id. By contrast, a challenge to
a specific application of the regulation accrues at the time of the agency action
applying the regulation to the plaintiff, the district court explained, including
an agency’s denial of a plaintiff’s petition to rescind the regulation or its
issuance of an order requiring the plaintiff to comply with the regulation. Id.
      Applying this framework to the Intervening Plaintiffs’ claims, the court
determined that Yearwood’s challenge to FWS’s constitutional authority to
regulate the Bone Cave harvestman was timely because he was a signatory to
the delisting petition and therefore could demonstrate a recent final agency
action applying the regulation to him personally. Id. at 731-32. Williamson
County was not a party to the petition, however, and its claim was therefore
time-barred because it was not brought within six years of the original listing
of the species, the court concluded. Id. at 732.
      As for the merits of Yearwood’s challenge, the court found that the Fifth
Circuit had already specifically determined in GDF Realty Investments, Ltd. v.
Norton, 326 F.3d 622 (5th Cir. 2003), that, because regulation of the Bone Cave
harvestman is an essential part of the economic scheme established by the
Endangered Species Act, it does not exceed Congress’s power under the
Commerce Clause.        Am. Stewards of Liberty, 370 F.Supp. 3d at 732-33.
Accordingly, the court denied the Intervening-Plaintiffs’ motion for summary
judgment. Id. at 735.


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                                  No. 19-50321
      The Intervening Plaintiffs timely appealed.            While the appeal was
pending before this court, the Government filed a motion to dismiss for lack of
jurisdiction. The Government argued, inter alia, that the appeal was moot
because the challenged agency action that formed the basis of the Intervening-
Plaintiffs’ claims had been vacated. A motions panel of this court ordered the
motion carried with the case.
                                        II.
      This Court is “obligated to determine de novo” whether it has jurisdiction
over an appeal. In re Scruggs, 392 F.3d 124, 128 (5th Cir. 2004). Here, the
Intervening   Plaintiffs   ultimately   seek   a    judicial    ruling   as   to   the
constitutionality of FWS’s regulation of activities affecting the Bone Cave
harvestman. However, it is well settled that “[t]he federal courts established
pursuant to Article III of the Constitution do not render advisory opinions”;
“concrete legal issues, presented in actual cases, not abstractions are
requisite.” Golden v. Zwickler, 394 U.S. 103, 108 (1969) (quoting United Public
Workers of American (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947)). Thus, the
Intervening Plaintiffs must allege an actual or imminent injury that is
traceable to a specific action by FWS that is redressable by relief the court is
authorized to grant. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992).
      In cases against the federal government and its instrumentalities, this
inquiry is intertwined with questions of sovereign immunity. “[T]he United
States is immune from suit unless it consents, and the terms of its consent
circumscribe our jurisdiction.”   Dunn-McCampbell Royalty Interest, Inc. v.
National Park Service, 112 F.3d 1283, 1287 (5th Cir. 1997).               Thus, the
Intervening Plaintiffs may only bring suit against FWS and the other federal
defendants if they are able to trace their alleged injury to an action by the
defendants that federal law allows to be challenged, and even then only if the
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                                        No. 19-50321
action is brought within the time period that federal law allows for such a suit.
In other words, a “failure to sue the United States within the limitations
period” for a specific cause of action “is not merely a waivable defense. It
operates to deprive federal courts of jurisdiction.”                   Id. (citing Sisseton–
Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 592 (9th Cir. 1990)).
       By including a mechanism in the APA for a person “adversely affected or
aggrieved by agency action” to obtain judicial review, Congress has waived
sovereign immunity specifically for challenges to final agency decisions. See
id.; 5 U.S.C. § 702. To fall within this waiver, however, a challenge must be
brought within six years of the final agency action allegedly causing a
plaintiff’s injury.3 Dunn-McCampbell, 112 F.3d at 1287. This means that, to
bring a challenge to an original agency action adopting a regulation like FWS’s
listing of the Bone Cave harvestman, plaintiffs must bring their claims within
six years of the publication of the rule—here, FWS’s 1988 decision to add the
harvestman to the endangered species list (or at least the 1993 decision to list
harvestman as a separate species).4 See id.
       This court held in Dunn-McCampbell, however, that a plaintiff who
misses this window may still obtain effective review of the regulation by
instead bringing a challenge within six years of a later final agency action that
applies the regulation to the plaintiff. See id. (“[A]n agency’s application of a
rule to a party creates a new, six-year cause of action to challenge to [sic] the
agency’s constitutional or statutory authority.” (citing Texas v. United States,
749 F.2d 1144, 1146 (5th Cir. 1985); Wind River Mining Corp. v. United States,



       3 As the district court noted, because the APA does not contain its own statute of
limitations, the general six-year statute of limitations for civil suits against the United States
applies to APA claims. Dunn-McCampbell, 112 F.3d at 1286 (citing 28 U.S.C. § 2401(a)).
       4 This is the only time in which a plaintiff may bring a challenge to a regulation based

on the procedures by which it was adopted. See Pub. Citizen v. Nuclear Regulatory Comm’n,
901 F.2d 147, 152 (D.C. Cir. 1990).
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946 F.2d 710, 715 (9th Cir. 1991); Pub. Citizen v. Nuclear Regulatory Comm’n,
901 F.2d 147, 152 (D.C. Cir. 1990))). An agency applies a regulation to a party
when it, for example, issues an order requiring a plaintiff to comply with the
regulation, imposes a fine or other sanction against the plaintiff for violating
the regulation, or denies a plaintiff’s petition to rescind the regulation. See id.
      In the present case, the Intervening Plaintiffs argue that, by denying the
petition to delist the Bone Cave harvestman, FWS engaged in a new final
agency action that reaffirmed the validity of the listing and restarted the clock
on the six-year statute of limitations to challenge the listing. As an initial
matter, it is not totally clear that the delisting petition at issue in this case was
equivalent to the kind of petition to rescind a regulation contemplated in Dunn-
McCampbell. 16 U.S.C § 1533(a)(1) lays out the five substantive, fact-based
factors that FWS may consider when choosing to list or delist a species. The
petition in this case argued that, under these factors, the Bone Cave
harvestman either never warranted listing in the first place or had recovered
sufficiently enough that listing was no longer warranted. The petition did not
argue that the listing was unconstitutional, and, had the delisting petition
been granted, the effect of delisting the Bone Cave harvestman would likely
not be the same as rescinding the original listing on constitutional grounds.
For example, individuals who violated the prohibition on taking Bone Cave
harvestmen during the time the species was listed would still be prosecutable
if the species were delisted on statutory grounds, but they likely would not be
prosecutable if the original listing were rescinded as unconstitutional. Cf.
United States v. Goodner Bros. Aircraft, 966 F.2d 380, 384-85 (8th Cir. 1992)
(holding that convictions based on violations of invalidated regulation must be
reversed because regulation was “void ab initio”). Thus, it is not totally clear
that the denial of the delisting petition opened the Bone Cave harvestman
listing to attack on constitutional grounds in the first place. See National Ass’n
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                                  No. 19-50321
of Reversionary Property Owners v. STB, 158 F.3d 135, 141-42 (D.C. Cir. 1998)
(discussing limits on when a subsequent agency decision “reopens” a previous
decision to challenge).
      In any event, assuming the Intervening Plaintiffs are correct that the
delisting petition is equivalent to a petition to rescind the Bone Cave
harvestman listing, the district court’s vacatur of FWS’s denial of the petition
nevertheless renders their appeal nonjusticiable for two reasons. First, even
if the Intervening Plaintiffs were correct that the denial of the petition simply
restarts the clock and allows a plaintiff to challenge the original listing of the
species, the petition would no longer be “denied” following the vacatur ordered
by the district court, and the clock would therefore no longer be restarted. See
Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 64 (D.D.C. 2004) (noting that “vacatur
restores the status quo before the invalid [agency action] took effect”).
      On a more basic level, however, the Intervening Plaintiffs misconstrue
the holding of Dunn-McCampbell and the cases that it relied upon. A final
agency action that applies a regulation to a particular plaintiff does not restart
the clock on a challenge to the original enactment of the regulation. Rather,
Dunn-McCampbell “merely stand[s] for the proposition that an agency’s
application of a rule to a party creates a new, six-year cause of action” to
challenge that specific application of the rule. 112 F.3d at 1287. It is incidental
that the new cause of action implicates the same question of law—whether the
regulation is valid—as a challenge to the original listing.        Following the
vacatur, there is no new agency action to challenge, and in the absence of “some
[new] direct, final agency action involving the particular plaintiff,” the
Intervening Plaintiffs may trace their alleged injuries only to FWS’s original




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                                       No. 19-50321
listing of the Bone Cave harvestman, to which challenges are jurisdictionally
time-barred.5 Id.
       The Intervening Plaintiffs argue that vacatur and remand does not moot
an appeal when a plaintiff has requested and been denied additional relief
beyond the vacatur because the plaintiff has received only “half a loaf.”
However, the cases the Intervening Plaintiffs rely on deal exclusively with the
special statutory judicial review provision of the Social Security Act, which
permits a court to “modify[] or revers[e] the decision of the [agency] with or
without remanding the cause for a rehearing.” Forney v. Apfel, 524 U.S. 266,
269 (1998) (quoting 42 U.S.C. § 405(g)); Bordelon v. Barnhart, 161 F. App’x
348, 351 (5th Cir. 2005) (unpublished). No comparable provision exists in the
APA or Endangered Species Act that would have permitted the district court
to modify or outright reverse FWS’s 90-day finding. And, even if the district
court was empowered to reverse FWS’s decision, the result would not be the
delisting of the Bone Cave harvestman, but rather simply a positive 90-day
finding—an outcome that has already come to pass and that does not redress
the Intervening Plaintiffs’ alleged injuries.
       In sum, if the Intervening Plaintiffs’ claim is construed as a challenge to
the denial of the delisting petition, their appeal is moot because the denial has
been vacated and it therefore can no longer be the cause of any of the
Intervening-Plaintiffs’ alleged injuries. If it is instead viewed as a challenge
to FWS’s original listing of the Bone Cave harvestman, the challenge is barred
by sovereign immunity because it was not brought within the six-year statute




       5 Specifically, the Intervening Plaintiffs allege that they are burdened by the
continued listing of the Bone Cave harvestman because they, for example, cannot develop
their property without obtaining take permits and must take costly affirmative steps to
preserve the species. These alleged continuing injuries are a result of FWS’s original listing
of the Bone Cave harvestman, not of FWS’s no-longer-effective denial of the delisting petition.
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of limitations period applicable to claims brought under the APA. We therefore
conclude that we lack jurisdiction to resolve this appeal.6
                                                 ***
       Based on the foregoing, we DISMISS the appeal for lack of jurisdiction.




       6 Because mootness and/or sovereign immunity are independently sufficient to deprive
this court of jurisdiction, we do not reach the Government’s alternative arguments that the
remand was not a final judgment subject to appeal, that the APA does not provide a
jurisdictional basis for the relief the Intervening Plaintiffs seek, that the district court erred
by allowing the Intervening Plaintiffs to intervene, and that the district court’s determination
as to the constitutionality of the Bone Cave harvestman listing was correct on the merits.
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