ELR Citation: ELR 20537
No(s). s. 94-1021, -1106 (D.D.C. Sep 29, 1995)

The court holds that the U.S. Fish and Wildlife Service (FWS) violated §4 of the Endangered Species Act (ESA) by failing to incorporate objective, measurable recovery criteria into its recovery plan for the threatened grizzly bear, but that it satisfied §4's requirement that it incorporate site-specific management actions into the plan. The court also holds that FWS did not violate the Administrative Procedure Act (APA) by denying a petition to designate critical habitat for the grizzly bear without providing for public comment. The court first upholds FWS' interpretation of §4(f)(1)(B)(i)'s requirement that recovery plans contain descriptions of "site-specific management actions" as requiring FWS to identify specific sites that grizzly bears inhabit and to describe management actions for each of these sites. Environmental group plaintiffs' interpretation of the provision as requiring a description of "specific" management actions is incorrect. The hyphen in "site-specific" indicates that "specific" modifies "site," not "management actions." The court next holds that the ESA affords FWS the flexibility to recommend a wide range of management actions on a site-specific basis. Congress has delegated to FWS the power to make policy choices that represent a reasonable accommodation of conflicting policies. The court next holds that the recommendations in the management plan satisfy §4(f)(1)(B)(i)'s requirement of site-specificity, even though many of them are the same for different geographic ecosystems. Where the ecosystems differ, the plan recommends different actions. The court holds that FWS considered the specific needs of each grizzly ecosystem. Further, the court holds that the recovery plan's recommendations are sufficiently detailed to satisfy the requirement that FWS identify management actions to the "maximum extent practicable." It is not necessary for a recovery plan to be an exhaustively detailed document; it need only identify management actions necessary to achieve the plan's goals for the conservation and survival of the species. The court next upholds FWS' recommendations for managing the risks posed by hunting, roads, and human activities/resource development. The court will not substitute plaintiffs' or its own view of how to manage these threats best; to do so would interfere with FWS' discretion in designing management actions. Also, disagreement between scientists over the necessity of establishing linkage zones is not sufficient to demonstrate that FWS' recommendations for linkage zones were arbitrary.

The court next analyzes whether the plan violates §4(f)(1)(B)(ii) by not including "objective, measurable criteria" that, when met, would result in a decision to remove the grizzly bear from the list of threatened species. The court holds that in designing objective, measurable criteria, FWS must address each of the five statutory delisting factors (threat to habitat, overutilization, disease or predation, inadequacy of existing regulatory mechanisms, and other factors) and measure whether threats to the grizzly bear have been ameliorated. The court holds that FWS has not developed proper criteria by which to assess present or threatened destruction, modification, or curtailment of the grizzly bear's habitat or range. The "females with cubs" and "occupancy" criteria in the plan do not adequately address threats to habitat. Nor does the plan's requirement that a Conservation Strategy including habitat-based recovery criteria be implemented before delisting the grizzly bear address this deficiency. The court next holds that FWS failed to meet its §4(f)(1)(B)(ii) obligations by wholly failing to consider whether there is a need or an appropriate means of monitoring whether disease is a threat to the grizzly bear. Also, FWS has failed to develop proper criteria for measuring the threats from livestock predation and the inadequacy of existing regulatory mechanisms, because the Conservation Strategy that allegedly meets these requirements has not yet been developed. The court next holds that FWS must reconsider the population methodology that it incorporated into the plan. That the plan acknowledges that the methodology is unreliable undermines FWS' decision to adopt it, thus, FWS has failed to explain the available evidence and offer a rational connection between the facts found and the choice made. The court next holds that disagreement among experts regarding the correct population size necessary for viability does not render FWS' population targets arbitrary and capricious. But FWS must explain whether reliance on the existence of Canadian grizzly bears influenced its choice of population targets and why such reliance is reasonable. The court next holds that FWS did not violate the APA by denying a petition to designate critical habitat for the grizzly bear without soliciting public comment on or scientific review of the petition. The court first notes in a footnote that neither the APA nor the U.S. Department of the Interior regulations require FWS to solicit comments on a decision not to propose a rule to designate critical habitat. The court refuses to impose procedural requirements on FWS that statutes or the agency's rules do not already require. The court holds that FWS adequately explained the facts and policy concerns it relied on and that plaintiffs have not demonstrated that FWS' assertions and opinions are unlawful.

Counsel for Plaintiffs
Eric R. Glitzenstein
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Defendants
Joseph R. Perella
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000