The opinion of the court was delivered by: FRIEDMAN
Since the arrival of Europeans in North America, the grizzly bear has been eliminated from all but approximately two percent of its original range in the lower 48 states. Indeed, the bear's historic range, which once included most of the western half of the United States, has receded to small portions of Washington, Idaho, Montana and Wyoming. Grizzly Bear Recovery Plan ("Plan") at ix, 9-10, Administrative Record ("A.R.") Volume 7. Between 1800 and 1975, the grizzly bear population shrank from an estimated 50,000 bears to fewer than 1000. Id. at 9. It is estimated that today there are fewer than 1000 grizzlies in the lower 48 states. Id. at 10-11. In July of 1975, the Secretary of the Interior found that the grizzly bear is likely to become in danger of extinction within the foreseeable future. Under the authority of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, he therefore listed the grizzly bear in the lower 48 states as "threatened" with extinction. 40 Fed. Reg. 31,734 (1975).
In these companion cases, numerous environmental and conservation organizations and several interested individuals challenge alleged deficiencies in the Secretary's efforts to fulfill his obligation under the Act to protect the grizzly bear's survival.
Plaintiffs, Fund For Animals ("FFA"), National Audubon Society ("NAS") and others dispute the adequacy of the recovery plan developed by the Fish and Wildlife Service ("FWS"), to whom the Secretary has delegated his day-to-day responsibilities under the ESA. 50 C.F.R. § 402.01(b). FFA and others also dispute the legality of defendants' denial of a petition requesting that defendants designate "critical habitat" for the grizzly bear.
The ESA requires that the FWS develop and implement a recovery plan "for the conservation and survival of" any threatened or endangered species. 16 U.S.C. § 1533(f)(1). Any such plan is supposed to be a basic road map to recovery, i.e., the process that stops or reverses the decline of a species and neutralizes threats to its existence. Policy and Guidelines for Planning and Coordinating Recovery of Endangered and Threatened Species (May 1990) ("FWS Recovery Guidelines"), A.R. Tab 78 at 1; 50 C.F.R. § 402.02. It is supposed to provide a means for achieving the species' long-term survival in nature. FWS Recovery Guidelines, A.R. Tab 78. The Act requires that the recovery plan shall, "to the maximum extent practicable," incorporate (1) site-specific management actions necessary for the conservation and survival of the species, and (2) objective, measurable criteria by which to monitor the species' recovery. 16 U.S.C. § 1533(f)(1)(B). Plaintiffs charge that the final Grizzly Bear Recovery Plan ("GBRP"), issued in September 1993, fails adequately to set forth "site-specific management actions" or "objective, measurable criteria." They insist that the Plan will not stem or abate threats to grizzly bear survival and predict that, contrary to the intent of Congress, the GBRP will provide the "road map for the bears' forced march to extinction." NAS Mem. in Support of Summ. J. at 3. By contrast, defendants contend that the GBRP fully complies with the ESA.
In 1976, the FWS had proposed to designate "critical habitat" for the grizzlies. Proposed Determination of Critical Habitat, 41 Fed. Reg. 48,758 (1976), A.R. Tab 17. A "critical habitat" designation protects specific areas inside and outside the geographical region occupied by the threatened species if it is necessary for the conservation of the species. 16 U.S.C. § 1532(5). In 1979 the FWS withdrew its proposal because the 1978 amendments to the ESA had imposed additional obligations on the FWS before it designated critical habitat. Withdrawal of Proposals, 44 Fed. Reg. 12,382 (1979), A.R. Tab 23. In 1991 plaintiff Jasper Carlton, the director of the Biodiversity Legal Foundation, filed a petition requesting that defendants designate "critical habitat" for the grizzly bear. Letter from Carlton to Servheen of January 16, 1991, attachment at 33 ("Petition to Designate Critical Habitat"), Habitat Record ("H.R.") Tab 4. That petition was denied without the opportunity for public comment. Plaintiffs contend that the denial of Mr. Carlton's petition to designate critical habitat for the grizzly bear was not in accordance with the ESA and the Administrative Procedures Act ("APA"), 5 U.S.C. § 551 et seq.
Both plaintiffs and defendants have moved for summary judgment. For the reasons stated in this Opinion, the Court concludes that defendants have met their burden with respect to incorporating site-specific management actions into the 1993 GBRP, but not with respect to incorporating objective, measurable recovery criteria. The Court also concludes that defendants acted in accordance with the APA in denying Mr. Carlton's petition for the designation of critical habitat for the grizzly bear.
The Supreme Court has described the Endangered Species Act as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978). The Act was designed to "save from extinction species that the Secretary of the Interior designates as endangered or threatened." Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 132 L. Ed. 2d 597, 115 S. Ct. 2407, 2409 (1995). An "endangered" species is "any species which is in danger of extinction throughout all or a significant portion of its range . . . ." 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 considering whether to list a species as "threatened" or "endangered", the FWS conducts a formal review in which it must consider the species' status according to five statutory factors. Those factors are:
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.
16 U.S.C. § 1533(a)(1). In listing the grizzly bear in the lower 48 states as "threatened" with extinction, the FWS relied on each statutory factor except the "disease or predation" factor. 40 Fed. Reg. 31,734.
Once a species is listed as threatened or endangered, the FWS "must do far more than merely avoid the elimination of [the] protected species. It must bring these species back from the brink so that they may be removed from the protected class . . . ." Defenders of Wildlife v. Andrus, 428 F. Supp. 167, 170 (D.D.C. 1977). The Act contains a number of provisions designed to stem the threat of extinction, promote recovery of those species found to be threatened or endangered, and establish systems to conserve the species even after the threat of extinction has passed.
Concurrent with making a determination to list a species as threatened or endangered, the Secretary is required "to the maximum extent prudent and determinable" to issue regulations "designating any habitat of such species which is then considered to be critical habitat." 16 U.S.C. § 1533(a)(3)(A). The duty to make a critical habitat designation at the same time as the determination is made to list a species was added to the ESA in 1978. Congress excused from this requirement those species that were already listed at the time the Act was amended, specifying that "critical habitat may be established for [species listed prior to the amendment] . . . for which no critical habitat has heretofore been established." 16 U.S.C. § 1532(5)(B). Grizzly bears are a previously listed species.
The Secretary is required in most cases, including the grizzly bear's, to "develop and implement" a "recovery plan" for each threatened or endangered species. 16 U.S.C. § 1533(f). According to the FWS, a recovery plan "delineates, justifies, and schedules the research and management actions necessary to support recovery of a species, including those that, if successfully undertaken, are likely to permit reclassification or delisting of the species." FWS Guidelines, A.R. Tab 78 at 1. The ESA directs that the plan shall, "to the maximum extent practicable," include:
(i) a description of such site-specific management actions as may be necessary to achieve the plan's goal for the conservation and survival of the species;
(ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list . . . .
16 U.S.C. § 1533(f)(1)(B).
These actions are brought under the ESA's citizen suit provision, 16 U.S.C. § 1540(g), and the Administrative Procedure Act, 5 U.S.C. § 706. Actions taken by the FWS pursuant to the ESA are reviewed as agency actions subject to the standards of review under the APA. See Las Vegas v. Lujan, 282 U.S. App. D.C. 57, 891 F.2d 927, 932 (D.C. Cir. 1989). Under the APA, the Court must assess whether the actions of the FWS were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "without observance of procedure required by law." 5 U.S.C. § 706(2)(A), (D).
In reviewing the action of the FWS, the Court must be thorough and probing, but if the Court finds support for the agency action, it must step back and refrain from assessing the wisdom of the decision unless there has been "a clear error of judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989). In thoroughly reviewing the agency's actions, the Court considers whether the agency acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the agency purports to have relied have some basis in the record, and whether the agency considered the relevant factors. Marsh v. Oregon Natural Resources Council, 490 U.S. at 378; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971); Professional Drivers Council v. Bureau of Motor Carrier Safety, 227 U.S. App. D.C. 312, 706 F.2d 1216, 1220 (D.C. Cir. 1983). The Court is expected to recognize the agency's expertise and experience with respect to questions involving scientific or technical matters or policy decisions based on uncertain technical information. Marsh v. Oregon Natural Resources Council, 490 U.S. at 375-78; State of New York v. Reilly, 297 U.S. App. D.C. 147, 969 F.2d 1147, 1150-51 (D.C. Cir. 1992).
Because this case involves a challenge to a final administrative action, the Court's review is limited to the administrative record. Camp v. Pitts, 411 U.S. 138, 142, 36 L. Ed. 2d 106, 93 S. Ct. 1241 (1973).
Summary judgment is an appropriate procedure for resolving a challenge to a federal agency's administrative decision when review is based upon the administrative record, Richards v. I.N.S., 180 U.S. App. D.C. 314, 554 F.2d 1173, 1177 n.228 (D.C. Cir. 1977), even though the Court does not employ the standard of review set forth in Rule 56, Fed. R. Civ. P.
IV. SITE-SPECIFIC MANAGEMENT ACTIONS
A. The Meaning of the Site-Specific Management Action Provision
The ESA provides that "in developing and implementing recovery plans," the Secretary and the FWS shall "to the maximum extent practicable" incorporate into each recovery plan "a description of such site-specific management actions as may be necessary to achieve the plan's goals for the conservation and survival of the species." 16 U.S.C. § 1533(f)(1)(B)(i).
The hyphen in "site-specific" indicates that the word "specific" modifies the word "site," not the term "management actions." The FWS has reasonably interpreted the ESA to require that the agency, in designing management actions, consider the distinct needs of separate ecosystems or recovery zones occupied by a threatened or endangered species. The Court may not reject the FWS' reasonable interpretation of the "site-specific management action" provision of the statute. Chevron, ...