ELR Citation: 53 ELR 20013
No(s). 21-35121 (9th Cir. Jan 19, 2023)

The Ninth Circuit, 2-1, affirmed summary judgment for FWS in a lawsuit concerning a petition to amend the Service's 1993 recovery plan for the endangered grizzly bear. An environmental group petitioned FWS, proposing additional recovery areas in Arizona, California, New Mexico, and Utah that it argued could support grizzly bear populations. FWS denied the petition on the grounds that neither the ESA nor the APA authorized petitions to create or revise recovery plans. The group filed suit, arguing that FWS failed to develop and implement a recovery plan that provided for the conservation and survival of the grizzly bear, violated its affirmative duty to conserve the species, and unreasonably denied the petition. A district court granted summary judgment to FWS, finding the plan was not a "rule" under the APA and thus not subject to a petition for amendment under 5 U.S.C. §553(e), and that it lacked jurisdiction to review the denial under the ESA's citizen suit provision because the group did not allege the Service failed to perform any non-discretionary duty. The appellate court found that APA review was not available because even if the plan was a rule, denial of the petition was not "final agency action." It affirmed summary judgment for FWS.