source: Caselaw Access Project

author: THOMAS, Chief Judge:

license: Public Domain

text:
    State of WASHINGTON and State of Minnesota, Plaintiffs-Appellees, v. Donald J. TRUMP, President of the United States; et al., Defendants-Appellants.
    No. 17-35105
    United States Court of Appeals, Ninth Circuit.
    Filed February 16, 2017
   ORDER

THOMAS, Chief Judge:

The United States has represented to the Court that the President intends to issue a new Executive Order and has urged the Court to “hold its consideration of the case until the President issues the new Order.” The United States has further represented that it will inform the Court of any new developments.

En banc proceedings before this Court are stayed pending further Order of this Court.


text:
    Enrique Anthony GODOY, Petitioner-Appellant, v. Marion SPEARMAN, Respondent-Appellee.
    No. 13-56024
    United States Court of Appeals, Ninth Circuit.
    Filed March 2, 2017
   ORDER

THOMAS, Chief Judge:

Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel disposition in this case shall not be cited as precedent by or to any court of the Ninth Circuit.

Judge Graber did not participate in the deliberations or vote in this case.


author: BERZON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, John C. Prather, Applicant-in-Intervention-Appellant, v. SPRINT COMMUNICATIONS, INC., FKA Sprint Nextel Corporation; Sprint PCS, Defendants-Appellees.
    No. 14-17434
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted September 14, 2016 San Francisco, California
    Filed April 28, 2017

      John G. Balestriere (argued) and Jillian L. McNeil, Belstriere Fariello, New York, New York, for Applicant-in-Intervention-Appellant.
    Kimberly Friday (argued) and Steven J. Saltiel, Assistant United States Attorneys; Alex G. Tse, Chief, Civil Division; United States Attorney’s Office, San Francisco, California, for Plaintiff-Appellee.
    Edward C. Barnidge (argued) and Benjamin M. Stoll, Williams & Connolly LLP, Washington, D.C.; David F. Taylor, Perkins Coie LLP, Seattle, Washington; for Defendants-Appellees.
    Before: RONALD M. GOULD and MARSHA S. BERZON, Circuit Judges, and WILLIAM K. SESSIONS III, District Judge.

       The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation.

   OPINION

BERZON, Circuit Judge:

John C. Prather sought to intervene as of right in a False Claims Act (“FCA”) suit brought by the United States (“Government”) against Sprint Communications, 'Inc. (“Sprint”). Whether Prather had the significantly protectable interest required to support his motion to intervene depends on whether he would have been entitled to any recovery if the Government had intervened in his 2009 qui tarn FCA action. See Fed. R. Civ. P. 24(a)(2); Prather v. AT&T, 847 F.3d 1097 (9th Cir. 2017) (“Prather I”). We conclude that Government intervention in Prather’s qui tam action could not have secured him any right to a share of the proceeds from that action and therefore affirm the district court’s order.

BACKGROUND

In 2009, Prather filed a qui tam FCA action against Sprint and four other telecommunications companies, alleging that the companies were defrauding federal and state governments by overcharging them for electronic surveillance services. The Government elected not to intervene in Prather’s qui tam action. In November 2013, the district court concluded that Prather could not show he was an “original source” of publicly disclosed information regarding the telecommunications companies’ allegedly fraudulent activities and dismissed Prather’s qui tam suit for lack of jurisdiction. We recently affirmed the district court’s dismissal of Prather’s qui tam action. Prather I, 847 F.3d at 1108.

While Prather’s appeal of Prather I was pending, the Government filed its own FCA suit against Sprint. That action was transferred to the same district judge who had dismissed Prather’s case. Prather moved to intervene in the Government’s FCA action, maintaining that (1) the Government was pursuing an “alternate remedy” to Prather’s qui tam action by filing its own FCA action instead of intervening in his earlier FCA suit; (2) under the FCA, he had the “same rights” in the Government’s “alternate remedy” proceeding as he would have had in his qui tam action; and (3) he therefore had a right to a share of the proceeds from any award or settlement in this litigation. See 31 U.S.C. § 3730(c)(5) (2006).

The district court denied Prather’s motion to intervene on the basis of its dismissal of Prather’s qui tam action. Because Prather could not bring a successful qui tam action on related claims, the district court concluded, he had no standing to intervene in the Government’s action. Prather timely appealed the district court’s order.

DISCUSSION

Under the FCA, private individuals with information about fraud against the Government may bring qui tam actions on behalf of the United States. The Government may elect to (1) intervene in such an action and take over its prosecution, 31 U.S.C. § 3730(b)(2); (2) “pursue its claim through any alternate remedy available to the Government,” instead, id. § 3730(c)(5); or (3) decide not to take any action, allowing the private individual, known as the “relator,” to pursue the claim to completion, id. § 3730(c)(3). In any of those scenarios, the relator who brought the qui tam action generally has a right to a share of any proceeds from the action. Id. § 3730(d). If the Government pursues an alternate remedy, the relator “shall have the same rights in such proceeding as [he] would have had if’ the Government had intervened in the qui tam action. Id. § 3730(c)(5).

Prather asserts that the Government’s own action against Sprint is an “alternate remedy” pursued in lieu of intervention in his earlier qui tam action. He maintains that he is therefore entitled to the same share of the Government’s proceeds resulting from this action against Sprint as he would have obtained if his qui tam action had gone forward. See id. On that basis, he contends, he was entitled to intervene as of right. See Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001) (“Southwest Center”) (setting out the four-prong test for Federal Rule of Civil Procedure Rule 24(a) intervention as of right).

After the district court’s denial of Prather’s motion to intervene, the Government and Sprint reached a settlement, and the district court accordingly dismissed the case. Before turning to the merits of Prather’s appeal, we consider whether this appeal is now moot.

I

The parties have not raised the mootness issue. Nonetheless we address the issue sua sponte, because, if “events change such that the appellate court can no longer grant ‘any effectual relief whatever to the prevailing party,’ any resulting opinion would be merely advisory,” and the court would lack subject matter jurisdiction. Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623, 628 (9th Cir. 2016) (quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)). Here, we consider the effect of the settlement and voluntary dismissal of the case in which Prather sought to intervene.

In some situations, the entry of final judgment in a case moots a putative-inter-venor’s appeal from the denial of his motion to intervene. West Coast Seafood Processors Ass’n v. NRDC, 643 F.3d 701 (9th Cir. 2011), for example, held that this court could not grant the appellant “any ‘effective relief by allowing it to intervene” “in a case that the district court ha[d] since decided, through [an] Order on Remedy and the subsequent final judgment, from which neither party ha[d] appealed.” Id. at 704. In other circumstances, however, an intervention controversy can remain live even after final judgment is entered in the underlying case. DBSI/TRI TV Ltd. Partnership v. United States, 465 F.3d 1031 (9th Cir. 2006), for instance, concluded that the appeal in that case was not moot, “because, if it were concluded on appeal that the district court had erred in denying the intervention motion, and that the applicant was indeed entitled to intervene in the litigation, then the applicant would have standing to appeal the district court’s judgment.” Id. at 1037 (quoting Canatella v. California, 404 F.3d 1106, 1109 n.1 (9th Cir. 2005)).

Outside of the special putative class action context, we have not specifically addressed whether the original parties’ settlement after the denial of an intervention motion invariably moots the appeal of that denial. Cf. Alaska v. Suburban Propane Gas Corp., 123 F.3d 1317, 1320 (9th Cir. 1997) (discussing the special intervention standard for motions to intervene to appeal denial of class certification). But at least three other circuits have considered the question, and all have held that the dismissal of an underlying case following settlement does not necessarily render moot a putative-intervenor’s appeal. See CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 475-76 (4th Cir. 2015) (settlement in civil RICO action); Purcell v. BankAtl. Fin. Corp., 85 F.3d 1508, 1511 n.3 (11th Cir. 1996) (class action settlement); FDIC v. Jennings, 816 F.2d 1488, 1491 (10th Cir. 1987) (settlement between agency and private persons). Most recently, after considering DBSI and West Coast Seafood along with' more directly relevant cases from several other circuits, the Fourth Circuit concluded:

We find more persuasive the reasoning of those courts holding that dismissal of the underlying action does not automatically moot a preexisting appeal of the denial of a motion to intervene. This is so because in many cases, the resolution of an action between the original parties is not determinative of the defendant’s liability with respect to other potential plaintiffs. In these circumstances, when the motion to intervene is made while the controversy is live and the subsequent disposition of the case does not provide the relief sought by the would-be intervenors (for example, money damages, as Appellants seek here), we can provide an effective remedy on appeal and therefore have jurisdiction.

CVLR Performance Horses, 792 F.3d at 475.

We agree with the Fourth Circuit, for the reasons it gave, that the parties’ settlement and dismissal of a case after the denial of a motion to intervene does not as a rule moot a putative-intervenor’s appeal. We note that to hold otherwise “might well provide incentives for settlement that would run contrary to the interests of justice.” Id. at 474-75 (quoting FDIC, 816 F.2d at 1491).

Our question, then, is whether in the particular circumstances here, the settlement and dismissal of the underlying action “make[ ] it impossible for the court to grant ‘any effectual relief whatever’ ” to the putative intervenor even if we were to determine that the district court erred in denying his intervention. Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). Our conclusion is that reversing the district court’s order could afford Prather a possible avenue to some remedy, so the case is not moot.

Although we do not yet consider the merits, the FCA guides our preliminary consideration of whether Prather might have anything left to gain from this court deciding his intervention appeal. Prather moved to intervene in the Government’s action against Sprint so he could be afforded the “same rights” he would have received had the Government instead intervened in his qui tarn FCA action. See 31 U.S.C. § 3730(c)(5). The “same rights” afforded under the statute would include a right to the same share of the proceeds as in the disposition of a qui tarn FCA action. See id. § 3730(d). The settlement agreement between the Government and Sprint did not provide Prather with any such relief. Additionally, the “same rights” afforded in an alternate remedy proceeding would include the relator’s right to object to the Government’s direct settlement of an action with a defendant. See id. § 3730(c)(2)(B). Upon a relator’s objection, the district court would need to determine, “after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances.” Id.

If we were to conclude Prather had a right to intervene in the Government’s FCA action, he might be able to object to the settlement or otherwise seek his share of the proceeds from the Government. As it thus does not appear impossible for Prather to receive “any effectual relief whatever” if we determine that the district court erred in denying his motion to intervene as of right, Church of Scientology of Cal., 506 U.S. at 12, 113 S.Ct. 447, we conclude that the Government’s settlement agreement with Sprint and the dismissal of the underlying action do not moot this appeal. We therefore turn to the merits.

II

A

To intervene as of right under Federal Rule of Civil Procedure 24(a)(2), an applicant must satisfy a four-part test:

(1) the application for intervention must be timely; (2) the applicant must have a ‘significantly protectable’ interest relating to the property or transaction that is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect that interest; and (4) the applicant’s interest must not be adequately represented by the existing parties in the lawsuit.

Southwest Center, 268 F.3d at 817 (quoting Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996)). In denying Prather’s motion to intervene, the district court held that Prather did not “have standing to intervene,” because “he cannot bring a successful qui tam action.” On appeal, the parties contest only whether Prather met the second prong of the intervention standard, an issue we review de novo. See United States ex rel. McGough v. Covington Techs. Co., 967 F.2d 1391, 1393-94 (9th Cir. 1992).

An applicant seeking intervention is held to have “a ‘significant protectable interest’ in an action if (1) [the applicant] asserts an interest that is protected under some law, and (2) there is a ‘relationship’ between [the applicant’s] legally protected interest and the plaintiffs claims.” Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998) (quoting Nw. Forest Res. Council, 82 F.3d at 837). The district court based its denial of Prather’s motion to intervene here on its earlier dismissal of Prather’s qui tam action. As Prather was not able to bring a qui tam action, the district court concluded, he had no rights to protect by intervening here. See Prather v. AT & T, Inc., 996 F.Supp.2d 861, 871 (N.D. Cal. 2013), aff'd, 847 F.3d at 1108.

Prather contends, however, that the district court failed to consider the import of the Government’s decision not to intervene in his qui tam case. According to Prather, he had a significant protectable interest, and his motion to intervene as of right therefore should have been granted, because his interest in this case is (1) the same as his interest would have been if the Government had intervened in his qui tam action; (2) protected under FCA § 3730(c)(5) and 3730(d); and (3) related to the Government’s claims for recovery in this action. We cannot agree.

Section 3730(c)(5) protects Prather’s rights only to the extent his rights would have been protected had the Government intervened in his qui tam action. As it turns out, if the Government had intervened in that action, Prather would not have been entitled to any recovery. He therefore lacks a significantly protectable interest in this case, the Government’s separate action against Sprint.

B

Prather’s contention that he would have been entitled to a relator’s share had the Government intervened in his qui tam action is foreclosed by a key Supreme Court case interpreting the FCA, Rockwell International Corp. v. United States, 549 U.S. 457, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007). Where a qui tam action is brought on the basis of publicly disclosed information, the pre-2010 FCA mandated “a clear and explicit withdrawal of jurisdiction” if the action is not brought by the Government or an “original source.” Id. at 468, 127 S.Ct. 1397 (emphasis omitted). Rockwell held that a non-original-source relator’s jurisdictional defect is not cured by the Government’s intervention. Id. at 476-78, 127 S.Ct. 1397.

In Rockwell, the Government intervened in the relator’s qui tam action; the court entered judgment for the Government and the relator. Id. at 464-66, 127 S.Ct. 1397. The defendant then filed a post-verdict motion to dismiss the relator’s claims on the grounds that (1) the relator was not an original source of the publicly disclosed information on which liability was based, and (2) the court therefore lacked jurisdiction to enter judgment in favor of the relator. Id. at 466, 127 S.Ct. 1397. The relator and the Government maintained that the Government’s intervention provided an independent basis of jurisdiction, and “any inquiry into [the relatoras original-source status ... was unnecessary because the government had intervened, making this an ‘action brought by the Attorney General.’ ” Id. at 477, 127 S.Ct. 1397. The Court squarely rejected the argument, holding that “[a]n action brought by a private person does not become one brought by the Government just because the Government intervenes and elects to ‘proceed with the action.’ ” Id.

Prather’s argument that he is entitled to some FCA recovery (and thus to intervene here) largely repeats the rejected argument in Rockwell. Under Rockwell, had the Government intervened in Prather’s qui tam action, Prather’s case still would have been dismissed under the former public disclosure bar. At that point, “once [Prather] ha[d] been determined to lack the jurisdictional prerequisites for suit,” the FCA action would have “beeome[ ] an action brought by the Attorney General.” See id. at 478, 127 S.Ct. 1397. Prather, that is, could not have continued to pursue his qui tam action against Sprint even if the Government had intervened, although the Government could have gone forward on its own behalf.

But the precise issue here is not whether Prather could have continued as a relator in the suit. Instead, it is whether he would have been entitled to any recovery if the Government had intervened and, after his relator claim was dismissed, continued the suit on its own behalf. As the Third Circuit noted in U.S. ex rel. Merena v. SmithKline Beecham Corp., 205 F.3d 97 (3d Cir. 2000), “[i]t would not necessarily follow that [dismissed] relators could not be awarded a share of the ... proceeds” from a successful Government-prosecuted FCA action, because “Congress may enact a statute providing for the payment of a reward or bounty to a non-party who assists the government’s enforcement efforts,” Id. at 103. Merena is correct, of course, that Congress could have provided for a reward in these circumstances. But it did not, as several considerations confirm.

First, Rockwell's, holding “that the District Court lacked jurisdiction to enter judgment in favor of [the jurisdictionally barred relator],” essentially forecloses Prather’s argument that such a reward or bounty is available to him under the statute. 549 U.S. at 479, 127 S.Ct. 1397. In setting aside entirely the monetary judgment entered in favor of the relator while preserving the Government’s judgment, Rockwell necessarily indicated that a juris-dictionally barred relator is not entitled to any recovery under § 3730. Id. at 478-79, 127 S.Ct. 1397.

Second, review of the language and structure of § 3730 supports this conclusion. A relator is entitled to share in the proceeds from an FCA action only if (1) the Government chooses not to intervene and the relator proceeds as the plaintiff on his own, 31 U.S.C. § 3730(d)(2), or (2) “the Government proceeds with an action brought by a [private] person,” id. § 3730(d)(1) (emphasis added). Just the latter provision is relevant here, as Prather argues it is the Government’s intervention that would have entitled him to a share of the award.

But, as Rockwell made clear, once a relator is determined to lack the jurisdictional prerequisites to bring a qui tam FCA action, the case “becomes an action brought by the Attorney General.” 549 U.S. at 478, 127 S.Ct. 1397 (emphasis added). Rockwell contrasted that transforma-tive effect of the dismissal of a relator’s suit under the public disclosure bar with the statute’s other provisions — citing, in particular, the relator’s award provisions of § 3730(d) — that apply to “actions brought by a relator where the government intervenes but does not oust the relator.” Id. at 477-78, 127 S.Ct. 1397. If the Government takes over a case after a jurisdictionally barred relator is dismissed, the relator cannot collect an award under § 3730(d)(1), because that provision becomes inapplicable. In other words, once the action “brought by a [private] person” under § 3730(b) is dismissed for lack of subject matter jurisdiction, the hook for the relator’s award provision, § 3730(d)(1), no longer exists.

Third, as we explained in United States ex rel. Green v. Northrop Corp., 59 F.3d 953 (9th Cir. 1995), “[t]he right to recovery clearly exists primarily to give relators incentives to bring claims ... [and] the extent of the recovery is tied to the importance of the relator’s participation in the action and the relevance of the information brought forward.” Id. at 963-64 (footnote omitted). For instance, when the Government intervenes in a case, the statute generally mandates that the court award 15 to 25 percent of the proceeds to the relator, “depending upon the extent to which the person substantially contributed to the prosecution of the action.” 31 U.S.C. § 3730(d)(1). The statute prescribes a smaller recovery bracket — zero to ten percent of the proceeds from an action — for relators who bring cases primarily based on information that had already been publicly disclosed by someone other than the relator. Id. § 3730(d)(1). Again, in determining the exact size of an award within that smallest bracket, courts are instructed to “tak[e] into account the significance of the information and the role of the person bringing the action in advancing the case to litigation.” Id.

These prescriptions regarding the size of a relator’s recovery play an important role, alongside the public disclosure bar, in advancing the dual purposes of the 1986 FCA amendments: (1) “to encourage private individuals who are aware of fraud being perpetrated against the Government to bring such information forward,” H.R. Rep. No. 99-660, at 23 (1986); and (2) “to discourage parasitic suits brought by individuals with no information of their own to contribute to the suit,” United States ex rel. Zaretsky v. Johnson Controls, Inc., 457 F.3d 1009, 1017 (9th Cir. 2006) (internal quotation marks and citation omitted), abrogated on other grounds by United States, ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121, 1127-29 (9th Cir. 2015) (en banc). Allowing non-original-sources to recover under § 3730(d)(1) would not encourage actual sources of information about fraud to come forward, but instead encourage “parasitic” suits by “opportunistic plaintiffs who have no significant information to contribute,” apart from information gleaned from others’ public disclosures. See Graham Cty. Soil & Water Conserv. Dist. v. United, States ex rel. Wilson, 559 U.S. 280, 294, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010) (quoting United States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C. Cir. 1994)). Where the purpose of encouraging individuals with knowledge of possible fraud against the federal government is not served, “the relator should not be so rewarded.” United States ex rel. Biddle v. Bd. of Trs. of Leland Stanford, Jr. Univ., 161 F.3d 533, 539 (9th Cir. 1998).

We conclude that the statute’s qui tam recovery provisions in § 3730(d) do not apply to relators jurisdictionally barred under § 3730(e)(4).

C

That the Government has pursued and secured a remedy against Sprint in this separate litigation does not alter our analysis or strengthen Prather’s claim to a monetary award. And that is so, contrary, to Prather’s submission, even if the Government’s remedy was based on the same allegations Prather made in his qui tam suit or arose out of an investigation prompted by Prather’s initial qui tam action.

To recap: The FCA protects rights to relief for both the Government and a proper relator, but the Government is always the real party in interest. See Killingsworth, 25 F.3d at 720. Even if a relator files a qui tam action on behalf of the Government under § 3730(b), “the Government may elect to pursue its claim through any alternate remedy available to the Government, including any administrar-tive proceeding to determine a civil money penalty.” 31 U.S.C. 3730(c)(5). If the Government chooses to pursue a remedy through some other proceeding, the FCA mandates that the relator be afforded “the same rights in such proceeding as [he] would have had if the action had continued under [§ 3730, the FCA’s civil action provisions].” Id.

The alternate remedy provisions have no application here. Prather cannot obtain a monetary award due to the Government’s pursuit of an “alternate remedy” to a proceeding in which he could not possibly have obtained any remedy.

An Eighth Circuit case addressing a similar situation, United States ex rel. Newell v. City of St. Paul, 728 F.3d 791 (8th Cir. 2013), is informative. As in Prather’s qui tam action, the Government declined to intervene in Newell’s FCA action, and the relator’s action was dismissed on the basis of the public disclosure bar. Id. at 795. Newell appealed the district court’s dismissal order, arguing that the Government had used his qui tam action as a bargaining chip in a settlement agreement in an unrelated, non-FCA case. Id. at 798. Newell contended that the Government’s “settlement, unlike a discretionary decision not to intervene in a qui tam action, enabled the government to obtain an ‘alternate remedy’ that entitle[d] him to a share of the settlement proceeds under § 3730(c)(5) of the FCA.” Id. The Eighth Circuit disagreed, ruling that “even if the ... [Government’s settlement was] an ‘alternate remedy,’ Newell would not be entitled to a share of that remedy because his FCA claims were subject to dismissal under the public disclosure bar.” Id. at 799.

As in Newell, the Government’s FCA action and its settlement with Sprint do not alter the district court’s prior determination, which we affirmed, Prather I, 847 F.3d at 1108, that Prather was jurisdiction-ally barred from bringing his 2009 qui tam action. Although the asserted connection between Newell’s qui tam action and the Government’s settlement with the defendant on an unrelated matter was more attenuated than the' asserted connection here, the precise relationship between the Government’s action against Sprint and Prather’s qui tam action is of no moment.

Here is why: Assuming that the Government brought this action against Sprint on the same grounds upon which Prather had brought his qui tam action, as Prather alleges, Prather’s failure to meet the original source requirement is still pre-clusive of any judgment in his favor. Because of that failure, dismissal of Prather’s claim for monetary recovery was mandatory. That is, Prather’s suit could not have continued as a § 3730(b) qui tam action regardless of the Government’s actions in that case or in this litigation. See Rockwell, 549 U.S. at 477, 127 S.Ct. 1397. Rather, like the relator in Rockwell, Prather’s private action would have been dismissed even if the Government had intervened in it, and the case would have continued as a § 3730(a) action—an FCA action “brought by the Attorney General” alone. See id. at 478, 127 S.Ct. 1397. In such a posture, Prather, like Newell, would have had no right to recovery, and so cannot recover here under the “alternate remedy” provision of the statute. The equivalent of no right to recovery (in the original action) is no right to recovery (in this action).

In sum, Prather cannot obtain a monetary bounty under the FCA on his jurisdic-tionally barred claims, whether in the action he brought as a qui tam plaintiff, via the “same rights” provision of § 3730(c)(5), or, as he attempts to do here, by joining a related FCA action brought by the Government after the dismissal of his qui tam action.

CONCLUSION

The appeal of the district court’s denial of Prather’s motion to intervene is not moot. On the merits, however, Prather did not have a significantly protectable interest in the Government’s FCA action against Sprint. His prior filing of a related, but jurisdietionally barred, qui tam action did not entitle him to any award under the FCA. We therefore conclude that Prather was not entitled to intervene as of right in the Government’s FCA action against Sprint.

AFFIRMED.

      . Section 3730(c)(5) provides, in relevant part:
      [T]he Government may elect to pursue its claim through any alternate remedy available to the Government, including any administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the action shall have the same rights in such proceeding as such person would have had if the action had continued under this section.
      31 U.S.C. § 3730(c)(5) (2006). Henceforth all citations to this section of the FCA, 31 U.S.C. § 3730, reference the version in effect prior to the effective date of the 2010 amendments to the statute, which significantly changed the public disclosure and "original source” provisions under which Prather’s 2009 qui tam action was dismissed. In particular, the 2010 amendments eliminated the designation of the public disclosure provision as jurisdictional. Prather I, 847 F.3d at 1102-03.

      . If the relator prosecutes the action alone after the Government decides not to intervene, the statute prescribes a larger relator's share of 25 to 30 percent of the proceeds. Id. § 3730(d)(2). The bulk of the proceeds still goes to the Government, which is the real party in interest in all FCA actions, whether or not it intervenes. U.S. ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715, 720 (9th Cir. 1994).

      . Prather’s argument that the first-to-file rule, 31 U.S.C. § 3730(b)(5), and similar procedural hurdles would sufficiently protect from rampant filing of FCA actions by non-original-sources is meritless. Reasoning that an opposite holding would "permit opportunistic plaintiffs with no inside information to displace actual insiders with knowledge of the fraud," we have held that, “in a public disclosure case, the first-to-file rule of § 3730(b)(5) bars only subsequent complaints filed after a complaint that fulfills the jurisdictional prerequisites of § 3730(e)(4).” United States ex rel. Campbell v. Redding Med. Ctr., 421 F.3d 817, 824-25 (9th Cir. 2005). Our reasoning in Campbell applies here, as well.

      . "Courts are to take all well-pleaded, non-conclusory allegations in the motion to intervene, the proposed complaint or answer in intervention, and declarations supporting the motion as true absent sham, frivolity or other objections." Southwest Center, 268 F.3d at 820.


author: GOULD, Circuit Judge:

text:
    WILDWEST INSTITUTE; Alliance for the Wild Rockies, Plaintiffs-Appellants, v. Jim KURTH, in his official capacity as Acting Director of the U.S. Fish and Wildlife Service, an agency of the U.S. Department of Interior; Ryan Zinke, in his official capacity as Secretary of the Department of Interior, Defendants-Appellees, State of Wyoming, Intervenor-Defendant-Appellee.
    No. 14-35431
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 4, 2016 Seattle, Washington
    Filed April 28, 2017

      Rebecca Kay Smith (argued), Public Interest Defense Center, Missoula, Montana; Timothy M. Bechtold, Bechtold Law Firm, Missoula, Montana; for Plaintiffs-Appellants.
    Robert Parke Stockman (argued), H. Hubert Yang, David C. Shilton, and Andrew C. Mergen, Attorneys; John C. Gra-den, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Kristin Tita, Office of the Solicitor, Rocky Mountain Region, United States Department of the Interi- or, Denver, Colorado; for Defendants-Ap-pellees.
    Michael J. McGrady (argued), Wyoming Office of the Attorney General, Cheyenne, Wyoming, for Intervenor-Defendant-Ap-pellee.
    Before: WILLIAM A. FLETCHER, RONALD M. GOULD, and N. RANDY SMITH, Circuit Judges.
   OPINION

GOULD, Circuit Judge:

Wildwest Institute and the Alliance for the Wild Rockies (collectively, Wildwest) appeal a district court’s summary judgment ruling in favor of the Director of the United States Fish and Wildlife Service and the Secretary of the Department of the Interior (collectively, FWS), and the State of Wyoming, in this suit under the Endangered Species Act (ESA), 16 U.S.C. §§ 1581-1544. Wildwest challenges FWS’s finding that listing the whitebark pine as a threatened or endangered species is “warranted but precluded.” Wildwest asserts that FWS’s decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law because FWS, (1) did not strictly follow its listing priority guidelines, (2) considered factors outside of the guidelines, and (3) found that listing the whitebark pine was precluded by species that did not face a higher degree of threat than the whitebark pine, while it did not give an individualized explanation for each such precluding species. We reject the appeal, concluding that FWS is not bound to list species based solely on the degree of threat they face as demonstrated by the assigned Listing Priority Number (LPN), that instead it could properly consider factors outside of those listed in the guidelines, and further that FWS’s decision contained a sufficient “description and evaluation of the reasons and data on which the finding is based” to satisfy the ESA. 16 U.S.C. § 1533(b)(3)(B)(iii). We affirm.

I

The whitebark pine, Pinus albicaulis, is a slow-growing, long-lived, five-needled conifer species found in western North America. This species grows in poor soils and on steep slopes and windy exposures at the alpine tree line and at subalpine elevations. Although there are scattered occurrences of the whitebark pine in areas of the Great Basin, it typically occurs on windy and cold high-elevation or high-latitude sites in western North America. No other stone pine species is found in North America.

In western North America, the white-bark pine is considered a keystone, or foundation species. This is so because it “increases biodiversity and contributes to critical ecosystem functions.” It acts as an important source of food for several species of birds and mammals, and, as the first conifer that may become established after a disturbance, it stabilizes soils and regulates runoff. At higher elevations, snow drifts around the trees, “thereby increasing soil moisture, modifying soil temperatures, and holding soil moisture later into the season.” The trees also reduce lower elevation spring flooding by-shading and protecting higher elevation snow, thereby slowing the progression of snow melt.

The whitebark pine grows slowly, and the generation time is about 60 years. “[S]eedlings have highly variable survival rates” ranging from 56% survival over the first year, to 25% survival by the fourth year. The whitebark pine is facing “substantial and pervasive decline throughout almost [its] entire range.” It faces threats from white pine blister rust, an exotic disease, and predation from the mountain pine beetle. It has also been negatively impacted by fire suppression efforts, and habitat loss due to climate change, which may also result in additional epidemics of the mountain pine beetle.

In 2008, The Natural Resources Defense Counsel (NRDC) petitioned FWS to list the whitebark pine as an endangered species under the ESA. FWS determined that emergency listing was not warranted. After waiting more than a year, NRDC sent to FWS its required 60-day notice of intent to sue under the ESA for failing to make the required 90-day finding on the 2008 petition. NRDC filed its complaint in February 2010. On July 20, 2010, FWS published its 90-day finding, in which it found that the petition to list the white-bark pine presented substantial scientific or commercial information indicating that listing the whitebark pine may be warranted. See Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List Pinus albicaulis (Whitebark Pine) as Endangered or Threatened with Critical Habitat, 75 Fed. Reg. 42,033 (July 20, 2010).

FWS issued its 12-month finding on July 19, 2011, finding that listing the whitebark pine rangewide as a threatened or endangered species is warranted, but precluded. See Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List Pinus albicaulis as Endangered or Threatened with Critical Habitat, 76 Fed. Reg. 42,631, 42,647 (July-19, 2011) (hereinafter 2011 Finding). FWS concluded that a primary threat facing the whitebark pine is the white pine blister rust, but that it is also significantly threatened by mountain pine beetle predation, habitat loss from fire suppression and climate change, and the exacerbating effects climate change has on the other threats. Id. FWS also found that existing regulations would not adequately protect the species. Id. FWS determined that the white-bark pine “is in danger of extinction, or likely to become so in the foreseeable future, throughout all or a significant portion of its range,” and that listing the white-bark pine as threatened or endangered is warranted. Id. Those findings present a natural prelude to effective protective actions. After all, once a species is extinct and gone, it is gone forever, with resulting loss to biodiversity and the benefits that it gives to mankind. However, FWS concluded that an immediate proposal to list the whitebark pine as threatened or endangered was “precluded by court-ordered and court-approved settlement agreements, and listing actions with absolute statutory deadlines, and work on proposed listing determinations for those candidate species with a higher listing priority.” Id. at 42,649. It also concluded that “progress is being made to add or remove qualified species from the Lists of Endangered and Threatened Wildlife and Plants.” Id. at 42,647. FWS assigned the whitebark pine a LPN of 2 (on a scale from 1 to 12, 1 being the highest priority and 12 being the lowest), finding that it faced high magnitude threats, that the threats are imminent, and that it is a valid taxon at the species level. Id. at 42,648; see also Endangered and Threatened Listing and Recovery Priority Guidelines, 48 Fed. Reg. 43,-098, 43,103 (Sept. 21, 1983) (hereinafter Guidelines). FWS added the whitebark pine to the list of candidate species. 2011 Finding, 76 Fed. Reg. at 42,654. “A candidate species is one for which [FWS has] on file sufficient information on biological vulnerability and threats to support a proposal for listing as endangered or threatened, but for which preparation and publication of a proposal is precluded by higher priority listing actions.” Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions, 80 Fed. Reg. 80,584, 80,584 (Dec. 24, 2015) (hereinafter 2015 CNOR).

On January 15, 2013, Wildwest filed a complaint for injunctive and declaratory relief against FWS, seeking review of the “warranted but precluded” finding. Wild-west, FWS, and Defendant-Intervenor State of Wyoming filed cross-motions for summary judgment. The district court granted FWS’s and Wyoming’s motions for summary judgment, holding that the 2011 Finding gave sufficient detail, and was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Wildwest timely appealed.

II

We review a district court’s grant of summary judgment de novo. Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 837 (9th Cir. 2001) (hereinafter Gila Chub).

A determination that a petitioned action is “warranted but precluded” under the ESA is subject to judicial review. 16 U.S.C. § 1533(b)(3)(C)(ii). The Administrative Procedure Act (APA) governs our review of agency actions under the ESA. Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1109 (9th Cir. 2012). “[A]n agency action is valid unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. (internal quotation marks omitted). The scope of our review is narrow— we may not “substitute [our] judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)).

III

As a preliminary matter, we must decide whether intervening events have rendered Wildwest’s claims for declaratory and injunctive relief moot. While this appeal was pending, FWS issued its 2015 Candidate Notice of Review (CNOR), and assigned the whitebark pine a new, lower-priority, an LPN of 8. See 2015 CNOR, 80 Fed. Reg. at 80,586. FWS moved to dismiss the appeal as moot, arguing that, “[bjecause Wildwest’s claims are based on a higher-priority LPN that had been assigned to the species in 2011, those claims are now purely academic, and this Court cannot grant relief on them. The new finding and LPN have mooted Wildwest’s challenge to the original 2011 decision.” Wildwest opposed the motion.

A claim of mootness must be met and analyzed at the threshold. “A claim is moot if it has lost its character as a present, live controversy. If an event occurs that prevents the court from granting effective relief, the claim is moot and must be dismissed.” Conservation Cong. v. Finley, 774 F.3d 611, 618 (9th Cir. 2014) (internal quotations and citations omitted). “The party asserting mootness bears a ‘heavy* burden; a case is not moot if any effective relief may be granted.” Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (emphasis in original) (quoting Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006)).

There are exceptions to the mootness doctrine. Relevant here, a case is not moot if it is “capable of repetition, yet evading review.” Id. at 1018. This “exception applies when (1) the duration of the challenged action is too short to allow Ml litigation before it ceases or expires, and (2) there is a reasonable expectation that the plaintiffs will be subjected to the challenged action again.” Id. Because this case meets both of the criteria for this exception, it is not moot.

First, if FWS finds that a petitioned action for a species is “warranted but precluded,” FWS must annually make a new 12-month finding regarding that species’ status. See 16 U.S.C. § 1533(b)(3)(C)(i); 50 C.F.R. § 424.14(h)(3). FWS Mfills this obligation through an annual CNOR. See 2015 CNOR, 80 Fed. Reg. at 80,587. A new CNOR — and potentially a new LPN—is issued every year so long as a .petitioned action is found “warranted but precluded.” Id. To the extent it differs from prior CNORs or 12-month findings, the newest CNOR supersedes all previous findings. See id. at 80,585. Thus, an action based on a “warranted but precluded” 12-month finding lasts only one year. This court has repeatedly held that “actions lasting only one or two years evade review.” Karuk Tribe of Cal., 681 F.3d at 1018.

Second, it is reasonable to expect that Wildwest will be subject to the very same challenged action again. With the exception of the 2015 CNOR, every CNOR conducted since the original finding resulted in a “warranted but precluded” finding, with an LPN of 2. See 77 Fed. Reg. 69,994, 70,044 (Nov. 21, 2012); 78 Fed. Reg. 70,104, 70,148 (Nov. 22, 2013); 79 Fed. Reg. 72,450, 72,485 (Dec. 5, 2014). Those findings lacked an individualized analysis of other species that precluded listing the white-bark pine — one of Wildwest’s major critiques of the 2011 Finding. So long as the whitebark pine is listed as “warranted but precluded,” the issue of whether listing the species as “warranted but precluded,” and the reasons for that listing, will continue to arise each year. See 16 U.S.C. § 1553(b)(3)(C)(i); 50 C.F.R. § 424.14(h)(3). It is reasonable to expect that Wildwest will be subject to addressing the allegedly inadequate determination again. See Greenpeace Action v. Franklin, 14 F.3d 1324, 1329-30 (9th Cir. 1993) (holding the case not moot because it was capable of repetition yet evading review when the regulation was in effect for less than a year and the major issue, whether there was an adequate examination of the effects of fishing on a population of sea lions, was likely to recur). Because this case is “capable of repetition, yet evading review,” it is not moot, and the Federal Defendants’ Motion to Dismiss Because of Mootness is DENIED.

IV

We begin our merits analysis with a brief overview of the ESA. The Supreme Court has described the ESA as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Congress enacted the ESA, to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions” enumerated in another subsection of the ESA. 16 U.S.C. § 1531(b). To achieve these goals, the ESA sets put a robust framework for the protection of threatened and endangered species. See, e.g., 16 U.S.C. §§ 1533(a)(3) (designation of critical habitat), 1533(d) (regulations for the conservation of threatened species), 1538 (prohibited acts), 1540 (penalties and enforcement).

However, before a species is entitled to these protections, the Secretary of the Interior, must determine that a species is endangered or threatened because of: “present or threatened destruction, modification, or curtailment of its habitat or range,” “overutilization for commercial, recreational, scientific, or educational purposes,” “disease or predation,” “the inadequacy of existing regulatory mechanisms,” or “other natural or manmade factors affecting its continued existence.” 16 U.S.C. § 1533(a)(1)(A)—(E). The Secretary may make a determination that a species is threatened or endangered “solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made” by any state, foreign nation, or political subdivision thereof, “to protect such species.” Id. § 1533(b)(1)(A). Once the Secretary determines a species is threatened or endangered, it is included on the list of threatened or endangered species that the Secretary of the Interior publishes in the Federal Register. Id. § 1533(c).

Species may be listed as either threatened or endangered in one of two ways. Either the Secretary may act on his own initiative and identify a species for protection, see id. §§ 1533(a), (b)(1)(A); 50 C.F.R. § 424.11(c), or interested citizens may submit a petition identifying a species, which then compels the Secretary to consider that species for listing, see 16 U.S.C. § 1533(b)(3). See also Gila Chub, 254 F.3d at 834-35. If an interested citizen submits a petition to add or remove a species from either the endangered or threatened lists, the ESA sets a schedule for actions the Secretary must take on that petition. See 16 U.S.C. § 1533(b)(3). “To the maximum extent practicable, within 90 days after receiving” a petition to list or delist a species, “the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” Id. § 1533(b)(3)(A). If the petition presents such information, the Secretary must “promptly commence a review of the status of the species.” Id. “Within 12 months after receiving a petition” that presents substantial scientific or commercial information indicating listing or delisting may be warranted, “the Secretary shall make one of the following findings:”

(i) The petitioned action is not warranted, in which case the Secretary shall promptly publish such finding in the Federal Register.
(ii) The petitioned action is warranted, in which case the Secretary shall promptly publish in the Federal Register a general notice and the complete text of a proposed regulation to implement such action in accordance with paragraph (5).
(iii) The petitioned action is warranted, but that—
(I) the immediate proposal and timely promulgation of a final regulation implementing the petitioned action in accordance with paragraphs (5) and (6) is precluded by pending proposals to determine whether any species is an endangered species or a threatened species, and
(II) expeditious progress is being made to add qualified species to either of the lists published under subsection (c) [of this section] and to remove from such lists species for which the protections of this chapter are no longer necessary,
in which case the Secretary shall promptly publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based.

Id. § 1533(b)(3)(B).

This third finding — “warranted but precluded”—is at issue here. A “warranted but precluded” finding recognizes that a species qualifies for protection under the ESA, see Gila Chub, 254 F.3d at 838, but does not actually give any protection to the species. The Secretary may make a “warranted but precluded” finding only in narrow circumstances. See id. The warranted action “must be precluded by pending proposals and expeditious progress must be being made to list qualified species and delist those for whom ESA’s protections are no longer necessary.” Ctr. for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1102 (9th Cir. 2006) (emphasis in original); see also 16 U.S.C. § 1533(b)(3)(B)(iii).

When we are dealing with the potential life or death of an entire species, the legitimacy and efficacy of this system (where we accept that certain listings are “warranted but precluded”) seems to be questionable policy. It means in substance that a species in peril needs some protective standards, but will get none. Yet, it is the system devised by Congress in its explicit statutory language, and so we must accept that so long as expeditious progress is being made to list/delist species and the action is actually precluded by pending proposals, the Secretary is authorized to make a “warranted but precluded” finding. Allowing the Secretary to do so is the natural consequence of the statutory language and of the fact that the Secretary has limited resources. When pending actions outstrip available resources, the Secretary must make its choices and live with its priorities, even though that means leaving factually (if not listed) threatened or endangered species without the protections of the ESA.

V

Wildwest’s primary contention is that FWS’s finding that listing the white-bark pine was precluded by species with the same or higher LPNs was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law because the ESA, congressional intent behind the ESA, and the agency’s own guidelines, all require FWS to strictly follow its LPN rankings, “ranking] and listing] [species] according to priority numbers based on degree of threat they face.” Wildwest asserts that FWS must list species in the order of their LPNs, proceeding on a “worst first” basis, based solely on the degree of threat the species face, so that in its view a species can only be precluded by pending proposals for other, higher priority species. So it contends that there were no “higher-priority” species precluding listing the whitebark pine because there were no LPN Is at the time FWS made its 2011 Finding. Wildwest also argues that the agency’s consideration of factors outside of the criteria outlined in the agency’s listing priority guidelines — including the extinction-risk criteria the agency used to sub-rank LPN 2 species — was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law.

The ESA requires the Secretary to: establish, and publish in the Federal Register, agency guidelines to insure that the purposes of this section are achieved efficiently and effectively. Such guidelines shall include but are not limited to ... a ranking system to assist in the identification of species that should receive priority review under subsection (a)(1) [determination of whether a species is threatened or endangered] of this section.

16 U.S.C. § 1533(h)(3).

To determine the meaning of a statute, we look to its language. See Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006). Nothing in the plain language of the ESA requires FWS to prioritize species based solely on the degree of threat as established by the LPN assigned under the guidelines.

Congress mandated the establishment of the ranking system “to assist in the identification of species that should receive priority review.” 16 U.S.C. § 1533(h)(3) (emphasis added). “Assist” means “to give support or aid.” Webster’s Third New International Dictionary 132 (Philip Bab-cock Gove et al. eds., 1993). The plain language of the statute thus shows that the ranking system is just one tool used to identify priorities for listing. The use of “assist” indicates that Congress did not intend the ranking system to be the only basis for identifying priorities. See Envtl. Def. Ctr. v. Babbitt, 73 F.3d 867, 871 (9th Cir. 1995) (noting the language of the statute is the primary indication of congressional intent). Had Congress intended the degree of threat or the ranking system to be the sole means of determining priority, it would have said so. See Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249, 1252-53 (10th Cir. 1998) (rejecting the argument that § 1533(h) “only allows prioritization of species based on the magnitude and immediacy of the threat to the species” (internal quotations omitted)).

Because the statute is clear on its face, “reference to legislative history is inappropriate.” Halaim v. I.N.S., 358 F.3d 1128, 1134 (9th Cir. 2004). Nor do FWS’s regulations require that species be ranked or listed based solely on the degree of threat. After a notice and comment period, as required by the ESA, see 16 U.S.C. § 1533(h), FWS published its notice of the final priority guidelines for listing and reclassification of species from threatened to endangered in 1983. See Guidelines, 48 Fed. Reg. 43,098. These guidelines apply three criteria — magnitude of threat, immediacy of threat, and taxonomy—to determine a listing priority number ranging from 1 (highest priority) through 12 (lowest priority). Id. at 43,102-03.

Throughout the notice FWS emphasized that the priority system does not create an inflexible framework that dictates results, but instead acts as a flexible guide. See id. at 43,098, 43,101. Although FWS recognized that “[i]nasmuch as listing is an identification process, it appears to be most appropriate to proceed on a “worst-first’ basis and list those species in greatest immediate danger of extinction first,” id. at 43,099, it also clarified that the guidelines would not necessarily preclude listing lower priority species when doing so would be an efficient use of resources, see id. at 43,099-100. In passing the guidelines, FWS did not bind itself to making its listing decisions based solely on the listing priority number assigned based on the guidelines, or based solely on the degree of threat a species faces. Congress and FWS enshrined flexibility into the system so that the responsible agency could make the most efficient and effective use of its resources. Indeed, FWS specifically contemplated using additional information outside the criteria in the guidelines. See, e.g., id. The guidelines do not prohibit FWS from considering information in addition to that considered under the guidelines.

We conclude that nothing in the ESA, its legislative history, or FWS’s own guidelines requires FWS to make its listing decisions based solely on the LPN assigned under the guidelines or on the degree of threat a species faces. FWS’s considerations of factors in addition to a species’ LPN was proper, and its decision to list other species with the same or higher LPNs before the whitebark pine did not render its “warranted but precluded” finding for the whitebark pine arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. See 2011 Finding, 76 Fed. Reg. at 42,649.

VI

Wildwest also asserts that the “warranted but precluded” decision for the whitebark pine was arbitrary and capricious because “the agency’s decision does not clearly itemize which species with pending or imminent listing proposals are allegedly a higher priority than whitebark pine, and explain why those species are a higher priority.” FWS counters that “a reasonable, concise explanation indicating its reasons for prioritizing various actions is sufficient,” and that it need not “prepare a resource-intensive, itemized ranking of all pending species.” FWS asserts that the court should defer to its interpretation that a concise explanation is all that the ESA requires.

There are sound reasons supporting FWS’s position in this respect. Congress demanded reasons and data for a “warranted but precluded” determination, but did not specify a required form. For that reason a concise and reasonable explanation suffices.

If the Secretary determines the petitioned action is “warranted but precluded,” “the Secretary shall promptly publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based.” 16 U.S.C. § 1533(b)(3)(B)(iii). FWS “must show that [it] is ‘actively working on other listings and delistings and must determine and publish a finding that such work has resulted in pending proposals which actually preclude[ ] [FWS] proposing the petitioned action at that time.’ ” Gila Chub, 254 F.3d at 838 (emphasis in original) (quoting H.R. Rep. No. 97-835, at 22 (1982) (Conf. Rep.)); see also Kempthorne, 466 F.3d at 1102. It must “determine and present evidence that [it] is, in fact, making expeditious progress in the process of listing and delisting other species.” Gila Chub, 254 F.3d at 838. (quoting H. Rep. No. 97-835, at 22); see also Kempthorne, 466 F.3d at 1102.

FWS “cannot make a ‘warranted but precluded’ finding without publishing a description and evaluation of its reasons and data together with the finding.” Kempthorne, 466 F.3d at 1102 (emphasis removed). That is, FWS’s determinations that work on other pending actions actually precludes listing the petitioned species and that it is making expeditious progress “must be part of the published findings.” Id. It is not sufficient that FWS’s “path could reasonably be discerned,” as “this option is not available under the ESA, which expressly directs [FWS], when making a “warranted but precluded’ finding, to ‘publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based.’ ” Id. at 1099-1100 (quoting 16 U.S.C. § 1533(b)(3)(B)). It is also “insufficient for requisite determinations to be lurking in the administrative record yet be unidentified in the decision itself. Likewise, they may not be implied from other published findings that are neither referenced in nor published with the decision under review.” Id. at 1104.

The published findings that support a “warranted but precluded” decision are an important aspect of the petition process. “They provide public notice of species that are likely to become the subject of proposed rules” and allow the public to respond appropriately. Gila Chub, 254 F.3d at 839. “They also provide the basis for review of [FWS’s] decision by the court,” id., which is mandated by the ESA, 16 U.S.C. § 1533(b)(3)(C)(ii). Congress explained that, “[i]n cases challenging the Secretary’s claim of inability to propose an otherwise warranted petitioned action, the court will, in essence, be called on to separate justifications grounded in the purposes of the Act from the foot-dragging efforts of a delinquent Agency.” H.R. Rep. 97-835, at 22. Evidence that the agency is making expeditious progress and that listing the petitioned species is actually precluded by work on other pending proposals provides the basis for the court to make this determination. Id.

Wildwest’s challenge focuses solely on FWS’s explanation of why other pending proposals actually preclude action on the whitebark pine; it does not chai-lenge the agency’s assertion of expeditious progress. We have not found, and Wild-west does not cite, any binding precedent that requires FWS to provide a detailed, individualized explanation for each species that has a pending proposal which FWS determines precludes action on the petitioned species. We decline to impose such a burdensome requirement, which would divert scarce agency resources to writing justifications rather than studying the pertinent sciences, species, and ecosystems. On such matters, the necessary degree of explicitness is outlined by the Supreme Court’s State Farm decision, and if the agency has shown a rational connection between its determination and the record, that is all that will be required. 463 U.S. at 43, 103 S.Ct. 2856. We hold that a concise and reasonable explanation of the evaluation of the reasons and data is sufficient.

Wildwest places a heavier reliance on Kempthome than it can bear. In that case, we held that FWS must publish a description and evaluation of its reasons and data for finding a listing precluded together with the “warranted but precluded” finding. See Kempthorne, 466 F.3d at 1102. The agency’s generalized statement that listing the Sierra Nevada Mountain Yellow-Legged Frog (hereinafter Frog) was precluded by species subject to court orders, judicially approved settlements, and emergency listings, was not a “description or evaluation of the data or reasons why listing the Frog is actually precluded.” Id.) see also id. at HOO-Ol. Nor could FWS rely on a CNOR published before, and not referenced in, the “warranted but precluded” finding to support its assertion made in the Frog decision that listing was precluded by court orders, settlement agreements, and emergency-listings. Id. at 1102. We declined to consider whether the information provided in the earlier CNOR — which included a description of why listing petitioned candidate species was precluded, explained budgetary constraints, and identified the particular species on which FWS would work— would have met FWS’s burden had it been published with the Frog’s “warranted but precluded” finding. See id. at 1101-02.

Wildwest asserts that Kempthome requires FWS to publish a detailed explanation and the accompanying documentation for each species FWS determines precludes action on the whitebark pine. We do not read Kempthorne so broadly. The facts of that case are distinguishable. The preclusion explanation at issue here is a far cry from the paragraph-long explanation that was the subject of Kempthome. Here, the FWS gave a detailed explanation of its budget, along with a general explanation that listing the whitebark pine was “precluded by court-ordered and court-approved settlement agreements, and listing actions with absolute statutory deadlines, and work on proposed listing determinations for those candidate species with a higher listing priority.” 2011 Finding, 76 Fed. Reg. at 42,649. FWS also described how it sub-ranks species within LPN 2 and 3, listing the extinction-risk criteria and its sources, and the general results of that sub-ranking. Id. Finally, it explained the factors it considers when evaluating efficiency — such as the possibility of preparing multi-species proposals, geographic or threat overlap, and staff resources — which can result in working on species with higher LPNs. See id. at 42,649-50.

These generally-applicable explanations are followed by multiple pages of charts showing completed listing actions (demonstrating expeditious progress, which is not at issue), and actions that were funded in 2010 and 2011 (but are not yet completed), showing both expeditious progress and also which pending proposals actually preclude listing the whitebark pine. See id. at 42,650-54. This later chart lists the species and LPN; states if the species is subject to a court order/settlement agreement, a statutory deadline, or is a high-priority listing (chosen based on the factors discussed earlier in the decision); states the type of action; and, often times, includes information on what fiscal year funds support the action. See id. at 42,652-54.

We conclude that FWS provided an adequate explanation of its reasons and the data relied upon to find that work on pending petitions actually precluded listing the whitebark pine. FWS gave a reasonable explanation of its reasoning. Neither Kempthorne, nor any other case from other circuits, requires FWS to publish an individualized evaluation for each and every precluding species and every datum upon which it relies. The ESA, and our cases, require FWS to publish “a description and evaluation of the reasons and data on which the [‘warranted but precluded’] finding is based.” 16 U.S.C. § 1533(b)(3)(B)(iii) (emphasis added); see Kempthorne, 466 F.3d at 1102; Gila Chub, 254 F.3d at 838-39. This requirement is met when, as here, FWS explains its budget and how it prioritizes actions, the criteria it uses to rank within a given LPN, and a listing of the specific species with pending proposals that actually preclude listing the petitioned species.

It goes without saying that if FWS wants to provide additional details — e.g., separate, individualized descriptions of why each species with the same LPN precludes a listing action—it is free to do so. See, e.g., Endangered and Threatened Wildlife and Plants; 12-Month Finding for a Petition to List the Southern Rocky Mountain Population of the Boreal Toad as Endangered, 60 Fed. Reg. 15,281, 15,283 (Mar. 23, 1995) (providing a sentence-long explanation for each of the three species that precluded listing the Boreal toad, and cited with approval in Gila Chub, 254 F.3d at 838-39, as an example of a “detailed explanation” in a “warranted but precluded” finding). There may be benefit to the public when FWS includes as much detail as is practicable, giving individualized explanations for different species within the same LPN. We conclude, however, that the ESA does not compel such detailed explanations.

Again, the purpose of the published findings is two-fold. They provide the public with notice of what species are likely to become the subject of a proposed rule, and they allow the court to distinguish between an agency that is impermissibly foot-dragging, and one that is diligently pursuing the goals of the ESA but constrained by the practical realities of resource constraints. FWS’s explanation in its 2011 Finding provides a sufficient description and evaluation of its reasons and data upon which it relied to accomplish these goals, and satisfied the ESA.

VII

Finally, Wildwest argues that FWS was impermissibly “foot-dragging” by finding the listing “warranted but precluded.” It contends that FWS cannot rely on self-imposed budget limitations, or court-ordered or statutory deadlines for determinations on other species to delay listing the whitebark pine. Wildwest asserts that relying on these considerations renders the 2011 Finding arbitrary and capricious, an abuse of discretion, and a violation of the ESA.

Although some courts have recognized that FWS’s budgetary constraints may at least in part be the Department of the Interior’s own doing, see W. Watersheds Project v. U.S. Fish & Wildlife Serv., No. 4:10-CV-229-BLW, 2012 WL 369168, at *16 (D. Idaho Feb. 2, 2012), nothing in the ESA requires the Department to make budget requests sufficient to eliminate the need for the “warranted but precluded” “relief valve” that Congress provided in recognition of FWS’s limited resources, In re Endangered Species Act Section j Deadline Litigation-MDL No. 2165, 704 F.3d 972, 978 .(D.C. Cir. 2013) (internal quotation omitted). Nor can we review the agency’s budget requests. See Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 20 (D.C. Cir. 2006). Ultimately, it is Congress that imposes budgetary constraints upon FWS. See U.S. Const. art. I, § 9.

The plain language of the ESA belies Wildwest’s assertion that the statute prohibits consideration of budget, court orders, or statutory deadlines in making “warranted but precluded” determinations. Nothing in the ESA so indicates, as the statute refers only to preclusion by “pending proposals.” 16 U.S.C. § 1533(b)(3)(B)(iii)(I). FWS may properly consider its budget, and court orders or statutory deadlines relating to pending proposals for other species, when concluding that the listing of a given species is “warranted but precluded.”

VIII

Wildwest’s vigorous advocacy for this imperiled species is laudable, and its advocacy plays an important role in protecting our planet’s vulnerable species. We can appreciate Wildwest’s frustration with the slow-moving ESA process. It has been more than five and a half years since FWS found that the whitebark pine faces extinction without the protections of the ESA. See 2011 Finding, 76 Fed. Reg. 42,631. In that time, the whitebark pine has received none of the ESA’s benefits. In many ways, a “warranted but precluded” determination is a “toothless finding. W. Watersheds Project, 2012 WL 369168, at *1.

Perhaps were the world different, the threat of extinction would not loom so large over species and the ESA would be unnecessary. But in reality, many species are subject to threats and dangers as the world changes. The species must live with the threats that are a result of increased human population, loss of habitat, increased air and water pollution, and global warming, or the species must adapt to the changes those threats bring. Yet sometimes change is demanded faster than a species can handle. Despite its best efforts, FWS’s ability to protect species through the ESA is limited by practical realities. Scarce funds and limited staff resources may prevent FWS from taking immediate final action to list or delist a species. The “warranted but precluded” finding allows FWS to work within these realities. In this case, FWS’s finding that listing the whitebark pine was “warranted but precluded” satisfied the ESA. The safety valve applied by the agency was one that Congress itself devised in the statutory language. The decision was not arbitrary, capricious, an abuse of discretion, or otherwise in violation of the law.

AFFIRMED.

      . Our description of the whitebark pine and the risks it faces is based on portions of the warranted but precluded finding that are unchallenged by Wildwest. See Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List Pinus albicaulis as Endangered or Threatened with Critical Habitat, 76 Fed. Reg. 42,631, 42,632-38 (July 19, 2011).

      . There are five stone pine species worldwide. Stone pines get their name from their "stone-like seeds,” and are characterized by "five needles per cluster, indehiscent seed cones (scales remain essentially closed at maturity) that stay on the tree, and wingless seeds that remain fixed to the cone and cannot be dislodged by the wind.”

      . Generation time “is the average interval between the birth of an individual and the birth of its offspring.” 14 Macropasdia The New Encyclopaedia Britannica 1138 (15th ed., 2010). Although whitebark pines are capable of producing seed cones at 20 to 30 years of age, large cone crops are not usually produced until the pine is 60 to 80 years old. Thus, the generation time for the whitebark pine is about 60 years.

      . The ESA's citizen suit provision allows an individual to commence a civil suit "against the Secretary [of the Interior] where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title [determination of threatened and endangered species] which is not discretionary with the Secretary.” 16 U.S.C. § 1540(g)(1)(C). Except in an emergency situation, an individual may not commence such an action until 60 days have passed since the individual provided the Secretary with written notice of the alleged failure to perform a nondiscretionary duty or act. See 16 U.S.C. § 1540(g)(2)(C); Friends of Animals v. Ashe, 808 F.3d 900, 904 (D.C. Cir. 2015).

      . The ESA provides that, “[t]o the maximum extent practicable, within 90 days after receiving the petition of an interested person” to list or delist as species as threatened or endangered, "the Secretary [of the Interior] shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” 16 U.S.C. § 1533(b)(3)(A). This is known as the 90-day finding.

      . The ESA requires that within 12 months after receiving a petition that presents substantial information indicating that listing or delisting a species as threatened or endangered may be warranted, the Secretary of the Interior "shall” make a finding that the petitioned action is not warranted, is warranted, or is warranted but precluded, and “shall promptly publish” that finding in the Federal Register. 16 U.S.C. § 1533(b)(3)(B). This is known as the 12-month finding.

      . FWS determined that emergency listing was not warranted. Id. at 42,647. This determination is not challenged.

      . "[A] taxon is a taxonomic category, such as a genus or species.” Coos Cty. Bd. of Cty. Comm'rs v. Kempthorne, 531 F.3d 792, 798 n.5 (9th Cir. 2008) (citing The Random House Dictionary of the English Language 1947 (2d ed. 1987)). "[A] valid taxon at the species level ... receives a higher priority than a subspecies, but a lower priority than species in a monotypic genus.” 2011 Finding, 76 Fed. Reg. at 42,648.

      .The acronym CNOR stands for "Candidate Notice of Review.”

      . FWS stated that Intervenor-Defendant-Ap-pellee Wyoming does not oppose the motion.

      . This is true for the jurisdictional reason that we have no authority to decide moot cases because they present no true case or controversy. See U.S. Constitution, Article III, Section 2; Chafin v. Chafin, 568 U.S. 165, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013). We are not to give advisory opinions. See, e.g., Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895); Herb v. Pitcairn, 324 U.S. 117, 126, 65 S.Ct. 459, 89 L.Ed. 789 (1945); Local No. 8-6, Oil, Chem. & Atomic Workers Int'l Union, ALF-CIO v. Missouri, 361 U.S. 363, 367-68, 368 n.7, 80 S.Ct. 391, 4 L.Ed.2d 373 (1960) (collecting cases). These conclusions are reinforced by the practical concern that the federal courts' limited resources should not be wasted on issues that do not need decision.

      . Or the Secretary of Commerce, if program responsibilities are vested in him pursuant to the Reorganization Plan Numbered 4 of 1970, or the Secretary of Agriculture, for provisions which pertain to the importation or exportation of terrestrial plants. . See 16 U.S.C. § 1532(15). In this case, the Secretary of the Interior, and through him or her FWS, has program responsibilities.

      . An “endangered species” is "any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man.” 16 U.S.C. § 1532(6).

      . A "threatened species” is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20).

      . In this case NRDC petitioned for the listing of the whitebark pine.

      . Wildwest of course does not dispute FWS's environmentally-friendly finding that listing the whitebark pine is warranted, or that the whitebark pine is facing high magnitude, imminent threats.

      . Even if we were to consider legislative history, that history shows Congress contemplated and rejected the notion that a warranted listing may be precluded only by another species facing a higher degree of threat. Amendments proposed in the Senate would have required the Secretary, within 12 months of receiving a listing petition, to propose a regulation implementing the petitioned action, publish a finding that the action is not warranted, or publish "a finding that the proposal and promulgation of a final regulation implementing the petitioned action is precluded by pending or imminent proposals to add to” the endangered or threatened species list, "species that are subject to a greater degree of threat than the petitioned species." S. 2309, 97th Cong. § 4(b)(3)(C)(iii) (1982) (emphasis added). Congress did not adopt this language. Compare id., with Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, 96 Stat. 1411 (1982). The language Congress adopted omitted all references to "greater degree of threat,” instead referring to "pending proposals to determine whether any species” is endangered or threatened. Endangered Species Act Amendments of 1982, § 2(a)(2), 96 Stat. at 1412 (emphasis added); 16 U.S.C. § 1533(b)(3)(B)(iii)(I). Congress's rejection of language that would have required preclusion decisions to be based solely on the level of threat is compelling. See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 442-43, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) ("Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” (quoting Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 392-93, 100 S.Ct. 1723, 64 L.Ed.2d 354 (1980) (Stewart, J., dissenting))). Although legislative history shows that degree of threat is an important consideration, see H.R. Rep. No. 97-835, at 21, 25 (1982) (Conf. Rep.), it is not the only factor FWS may use.

      . Wildwest states, "It is also unclear whether this additional ranking system [the extinction-risk criteria] was approved and published in the Federal Register as required by the ESA; to the extent it was not published in the Federal Register, the agency is violating the ESA by making decisions using this system.” Wildwest did not present sufficient argument on this issue, and we decline to address it. See Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) ("We review only issues which are argued specifically and distinctly in a party's opening brief. We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim....” (internal citation omitted)).

      . Wildwest also relies on California Native Plant Society v. Norton, Civ.A.03-1540(JR), 2005 WL 768444 (D.D.C. Mar. 24, 2005). That case is not binding, nor does it support Wild-west’s argument that the "warranted but precluded" decision here does not provide enough detail. In that case, the court held "the ESA requires that FWS itemize pending species listings that preclude listing the Spi-neflower and describe the 'reasons’ (whatever they may be) why each of these species listings has a higher priority than the Spineflower and why actions on these species in toto 'preclude' action on the Spineflower. This information need not he detailed (at least not in the CNOR — the Administrative Record if an actual case is brought is another question), but it must be present.” Id. at *8 (second emphasis added) (internal citation omitted). In that case, FWS provided no explanation as to why species that had the same priority level as the Spineflower precluded listing the Spineflower. Id. Here, FWS did explain how it prioritizes species that have the same LPN as the whitebark pine. See 2011 Finding, 76 Fed. Reg. at 42,649.

      . FWS provided the following preclusion explanation:
      While we conclude that listing the [Frog] is warranted, an immediate proposal to list is precluded by other higher priority listing actions. During Fiscal Year 2003 we must spend nearly all of our Listing Program funding to comply with court orders and judicially approved settlement agreements, which are now our highest priority actions. To the extent that we have discretionary funds, we will give priority to using them to address emergency listings and listing actions for other species with a higher priority. Due to litigation pertaining to various listing actions, our planned work with listing funds in Fiscal Year 2003 consists primarily of addressing court-ordered actions, court-approved settlement agreements, and listing actions that are in litigation. (Also, some litigation-related listing actions already are scheduled for Fiscal Year 2004.) We expect that our discretionary listing activity in Fiscal Year 2003 will focus on addressing our highest priority listing actions of finalizing expiring emergency listings.

        Kempthorne, 466 F.3d at 1100-01 (quoting Endangered and Threatened Wildlife and Plants; 12-Month Finding for a Petition to List the Sierra Nevada Distinct Population Segment of the Mountain Yellow-legged Frog (1 Rana muscosa), 68 Fed. Reg. 2283, 2303 (Jan. 16, 2003)).

      . The idea often is attributed to Charles Darwin that it is not the most intelligent or the strongest species that survives, but the one best able to adapt to change in the world. See Robin Kundis Craig & Melinda Harm Benson, Replacing Sustainability, 46 Akron L. Rev. 841, 878 & n.197 (2013).