215 F.3d 58 (D.C. 2000)
Southwest Center for Biological Diversity, et al.,Appelleesv.Bruce Babbitt and Jamie Rappaport Clark, Director, U.S. Fish and Wildlife Service, Appellants
No. 99-5313
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2000Decided June 16, 2000

Appeal from the United States District Court for the District of Columbia(No. 98cv934)
Andrew C. Mergen, Attorney, United States Department of  Justice, argued the cause for appellants.  With him on the  briefs were Lois J. Schiffer, Assistant Attorney General, and  James C. Kilbourne, Attorney.  Lisa E. Jones and Elizabeth  A. Peterson, Attorneys, entered appearances.
Katherine A. Meyer argued the cause for appellees.  With  her on the brief was Eric R. Glitzenstein.
Before:  Edwards, Chief Judge, Randolph and Rogers,  Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge:


1
The only issue raised on appeal in  this case is whether the Endangered Species Act ("Act")  requires the Fish and Wildlife Service to conduct an on-site  population count of birds when the currently available data  are sparse and calculations of a bird species population must  of necessity be based on estimates.  The Act provides that  the Secretary of the Interior must make decisions whether to  list a species as endangered or threatened "solely on the basis  of the best scientific and commercial data available to  him...."  16 U.S.C.    1533(b)(1)(A) (1994).  Appellees, the  Southwest Center for Biological Diversity, et al., ("Center"),  argued below that the best available evidence demonstrates  that the Fish and Wildlife Service should list the Queen  Charlotte goshawk as a threatened or endangered species  under 16 U.S.C.    1533.  Appellants, Bruce Babbitt, et al.,  ("Government") countered that the data did not compel such  a listing.  The principal dispute between the partiesbefore  the District Court was over what to make of the best available data, not whether such data existed.  The District Court,  however, sidestepped the parties' real dispute and concluded  instead that the best available data simply was not good  enough.


2
Indeed, instead of resolving the parties' dispute on the  basis of the best available data in the record, the District  Court issued an order remanding the case back to the Fish  and Wildlife Service with instructions to count the goshawk  population.  See Southwest Ctr. for Biological Diversity v.  Babbitt, Civ. No. 98-934, Order (D.D.C. July 20, 1999) ("Order"), reprinted in Joint Appendix ("J.A.") 1973.  Appellants  now challenge this order, claiming that the District Court's  decision is completely at odds with the statute.  We agree. The statute provides that the Secretary's decision must be  made "solely on the basis of the best scientific and commercial data available to him."  Therefore, on the record at hand,  the District Court was without authority to order the Secretary to conduct an independent population count of the birds. Accordingly, we reverse the District Court's order, and we  remand the case to the District Court for proper consideration of the parties' positions in light of the Act and an  assessment of the available evidence.

I. FACTS

3
On May 9, 1994, the Southwest Center for Biological Diversity filed a petition requesting that the Queen Charlotte  goshawks, which are a "large, but rarely-seen" subspecies of  hawks, be listed as threatened or endangered under the Act. Southwest Ctr. for Biological Diversity v. Babbitt, 939  F. Supp. 49, 50 (D.D.C. 1996);  see 16 U.S.C.    1533(b)(3)(A)  (1994).  On May 19, 1995, the Fish and Wildlife Service found  that, based on the best available scientific and commercial  evidence, no listing was warranted.  See Babbitt, 939 F. Supp.  at 51.  This initial decision was based on the Fish and  Wildlife Service's conclusion that the Forest Service would  address land management options to ensure goshawk habitat  conservation.  The Center challenged this decision, and, on  September 25, 1996, the District Court granted a summary  judgment in favor of the Center, finding that the Secretary  could not rely on the Forest Service's possible future actions  "as an excuse for not making a determination based on the  existing record."  Id. at 52.


4
On remand, the Fish and Wildlife Service once again  declined to list the Queen Charlotte goshawk as a threatened  or endangered species, and the Center once again challenged  the agency's determination.  In a July 9, 1999 hearing before  the District Court, the Government argued that its sole  obligation under the Endangered Species Act is to consider  and act on the best available data, which the Government  claimed it had done.  The District Court persisted, however,  in suggesting that a population count was necessary.  See,  e.g., Trial Tr. at 2-3, reprinted in J.A. 1913-14.  The trial  judge could not be moved from this position, not even by plaintiffs' acknowledgment that the District Court was required to assess the parties' positions in light of the best  available evidence, not a population count.  Following argument by the parties, the District Court issued an opinion on  July 20, 1999, remanding the case to the Fish and Wildlife  Service "for a more reliable determination of the Queen  Charlotte goshawk population...."  Order at 3, reprinted in  J.A. 1975.  This appeal followed.

II. ANALYSIS

5
On the record before us, it is clear that the District Court  exceeded its authority in ordering the Government to conduct  a population count of the goshawk species.  16 U.S.C.     1533(a)(1) instructs the Secretary to


6
determine whether any species is an endangered speciesor a threatened species because of any of the followingfactors:


7
(A) the present or threatened destruction, modifica-tion, or curtailment of its habitat or range;


8
(B) overutilization for commercial, recreational, scien-tific or educational purposes;


9
(C) disease or predation;


10
(D) the inadequacy of existing regulatory mechanisms;or


11
(E) other natural or manmade factors affecting itscontinued existence.


12
16 U.S.C.    1533(a)(1) (1994).  The Secretary is to make such  a determination "solely on the basis of the best scientific and  commercial data available to him...."  16 U.S.C.     1533(b)(1)(A).  Read together, the two statutory provisions  require the Secretary to list a species as endangered or  threatened if, based solely on the best available data, any of     1533(a)(1)'s five factors are sufficiently implicated.  The  "best available data" requirement makes it clear that the  Secretary has no obligation to conduct independent studies.As we noted in City of Las Vegas v. Lujan, 891 F.2d 927, 933  (D.C. Cir. 1989), in the context of emergency listings under 16 U.S.C.    1533(b)(7), 16 U.S.C.    1533(b)(1)(A) "merely prohibits the Secretary from disregarding available scientific  evidence that is in some way better than the evidence he  relies on.  Even if the available scientific and commercial data  were quite inconclusive, he may--indeed must--still rely on it  at that stage."


13
Appellees do not claim--for good reason, we think-that the  statute's reference to "best scientific data available" requires the Secretary to find and consider any information that is  arguably susceptible to discovery.  In other words, appellees  never have contended in this case that the Government is  obliged to conduct an on-site population count of the goshawk.And appellees never have contended that the Secretary acted  on the basis of no data.  Rather, appellees have argued that  the best available scientific data in this record demonstrate  that the goshawk is already on the verge of extinction due to  low population estimates and "some 'natural or manmade  factors affecting its continued existence.' "  Appellees Br. at  20 (quoting 16 U.S.C.    1533(a)(1)(E)).  This is the issue that  properly was before the District Court, and this is the issue  that should have been decided below.


14
The trial judge, however, ignored the statute, disregarded  the parties' arguments, and determined instead that, because  he found the available evidence inconclusive, the Secretary  was obligated to find better data.  The Government forthrightly concedes that "the district court's view has a superficial appeal--certainly the [Fish and Wildlife Service] would  like to know how many [Queen Charlotte] goshawks there  are...."  Reply Br. at 3.  But, as the Government contends  (with no real contest from appellees), this superficial appeal  cannot circumvent the statute's clear wording:  The Secretary  must make his decision as to whether to list a species as  threatened or endangered "solely on the basis of the best  scientific and commercial data available to him...."  16  U.S.C.    1533(b)(1)(A);  Reply Br. at 3 ("[T]he court's view is  at odds with both the practical realities of endangered species  work and the governing legal regime.").  The Secretary  argued below that the best available evidence supports the  Government's decision not to list the goshawk, while the


15
Center argued that the available evidence supports the opposite view.  The District Court's responsibility was to assess  the evidence and resolve the parties' dispute.  The court's  decision to sidestep this responsibility by imposing an obligation upon the Secretary to find better data was error.

III. CONCLUSION

16
For the foregoing reasons, we reverse the District Court's  decision to remand the case to the Fish and Wildlife Service,  and we remand the case to the District Court for consideration of the parties' positions in light of the Endangered  Species Act and an assessment of the available evidence.

