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.
II. STATUTORY FRAMEWORK
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;