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CARLTON v. BABBITT

September 29, 1995

D.C. "JASPER" CARLTON, et al., Plaintiffs,
v.
BRUCE BABBITT, et al., Defendants. BIODIVERSITY LEGAL FOUNDATION, et al., Plaintiffs, v. BRUCE BABBITT, et al., Defendants.



The opinion of the court was delivered by: FRIEDMAN

 A number of environmental organizations and interested individuals bring these companion suits against the Secretary of the Interior, the United States Fish and Wildlife Service ("FWS") and other defendants. Plaintiffs allege that the decision of the FWS not to reclassify the grizzly bear population of the Selkirk ecosystem from "threatened" to "endangered," and its decision that reclassification of the grizzly bear population of the Cabinet-Yaak ecosystem was warranted but precluded, under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., were arbitrary and capricious, contrary to law or not adequately justified. These consolidated cases are before the Court on cross-motions for summary judgment.

 I. BACKGROUND

 In 1975, the Fish and Wildlife Service listed the grizzly bear in the lower 48 states as a "threatened" species. The FWS recognized five distinct populations of grizzly bears in the lower 48 states, including the Selkirk ecosystem and the Cabinet-Yaak ecosystem. In January and February 1991, plaintiffs, by two separate petitions, requested that the FWS reclassify the grizzly bear populations in the Cabinet-Yaak ecosystem and the Selkirk ecosystem from threatened to endangered. Petitions To Change Status of Grizzly Bear Population In Selkirk Ecosystem of Idaho and Washington, 57 Fed. Reg. 14,372 (1991), Administrative Record ("A.R.") Tab 15.

 Section 4 of the ESA, 16 U.S.C. § 1533(a), requires the Secretary of the Interior, through the Fish and Wildlife Service, to determine whether a species is "threatened" or "endangered." A "species" includes a subspecies or any "distinct population segment . . . which interbreeds when mature." 16 U.S.C. § 1532(16). A "threatened" species is one that "is likely to become an endangered species within the foreseeable future." 16 U.S.C. § 1532(20). An "endangered" species is one that "is in danger of extinction." 16 U.S.C. § 1532(6). An endangered species receives greater protection than those species listed as threatened.

 Any "interested person" may petition the FWS to list, delist or reclassify the status of a species. 16 U.S.C. § 1533(b)(3)(A). Within 90 days after receiving a petition, the FWS must "to the maximum extent practicable" determine whether the petition presents "substantial scientific or commercial information" indicating that the petition action is warranted. 16 U.S.C. § 1553(b)(3)(A). Upon a positive finding in this preliminary review, the FWS conducts a formal review in which it must determine whether the species is endangered or threatened due to habitat destruction, overutilization, disease or predation, inadequate regulatory protections, or other natural or manmade factors. 16 U.S.C. § 1533(a)(1); 50 C.F.R. § 424.11(c) (1993). The FWS must appraise these statutory factors based "solely on the basis of the best of the scientific and commercial data available," 16 U.S.C. § 1533(b)(1)(A), and must determine whether the petitioned action is warranted, not warranted or is warranted but precluded due to work on other pending listing proposals. 16 U.S.C. § 1533(b)(3)(B).

 In April 1992, the FWS determined that plaintiffs' petitions presented substantial information to warrant reclassification of the grizzly bear populations in the Selkirk and Cabinet-Yaak ecosystems because the populations "are small and . . . increasing human demands exist in the areas, including logging, recreation, and livestock grazing." 57 Fed. Reg. at 14,374 (1992), A.R. Tab 15. In a subsequent formal status review of the populations, however, the FWS determined that reclassification in the Selkirk ecosystem was not warranted and that reclassification in the Cabinet-Yaak ecosystem was warranted but precluded by work on other species having a higher priority for listing. 16 U.S.C. § 1533(b)(3)(B)(iii). The reasoning behind the decision of the FWS is set out in a December 10, 1992, memorandum. The 12-Month Administrative Finding on the Pending Petitions to Reclassify the Cabinet-Yaak and Selkirk Mountains Grizzly Bear Populations ("12-Month Administrative Finding"), A.R. Tab 23. The FWS published notice of its Finding in the Federal Register. Endangered and Threatened Wildlife and Plants; Finding on Petitions to Change the Status of Grizzly Bear Populations in the Cabinet-Yaak Area of Montana and the Selkirk Mountains of Idaho and Washington from Threatened to Endangered, 58 Fed. Reg. 8250 (1993), A.R. Supp. Tab 16.

 Pursuant to the citizen suit provision of the ESA, plaintiffs notified the FWS of their intention to initiate a lawsuit and their contention that the reclassification finding for the Selkirk grizzly violated the ESA. 16 U.S.C. § 1540(g)(2). After 60 days had elapsed from the time the plaintiffs gave notice, as required by statute, they filed Civil Action No. 93-1174. 16 U.S.C. § 1540(g)(2). Plaintiffs also gave the required 60-day pre-suit notice before commencing Civil Action No. 93-1788 with respect to the Cabinet-Yaak grizzly reclassification finding. The two actions were consolidated. *fn1"

 II. DISCUSSION

 A. Standard of Review

 Given the expertise of the FWS in the area of wildlife conservation and management and the deferential standard of review, the Court begins with a strong presumption in favor of upholding decisions of the FWS on the reclassification petitions. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375-78, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989). Nevertheless, a reviewing court must undertake a "thorough, probing, in-depth review" of the agency's decision and then decide whether it was "based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). The agency action must be upheld if the agency has "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore Gas & Elec. Co. v. Natural Resources Defense Counsel, 462 U.S. 87, 105, 76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983).

 B. Selkirk Grizzly Bears

 The FWS has determined that the request to reclassify grizzly bears in the Selkirk ecosystem from threatened to endangered is not warranted. 12-Month Administrative Finding, A.R. Tab 23 at 6. In the 12-Month Administrative Finding supporting its decision, the FWS set forth a determination that human-caused mortality of the bears, which it described as decreasing, is the only factor limiting population growth. It also found presently acceptable rates of grizzly bear reproduction and survivorship as well as effective management programs. In addition, it noted the cooperation between the United States and Canada concerning grizzly bear recovery efforts and concluded that the recovery zone for the grizzlies extends into Canada. Id., A.R. Tab 23 at 4-6. Upon consideration of all of these factors, the FWS concluded that the population "appears to be stable" and that the population is not "at the threshold of extirpation." Id., A.R. Tab 23 at 5.

 Plaintiffs argue that the FWS failed to consider the requisite statutory listing factors. To decide whether to reclassify a species, the ESA requires the FWS to assess the technical and scientific data in the administrative record against the relevant listing factors and then exercise its own expert discretion in determining whether the reclassification should occur. See Northern Spotted Owl v. Hodel, 716 F. Supp. 479, 480 (W.D. Wash. 1988). The FWS must examine the following listing factors:

 
(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); 50 C.F.R. § 424.11(c) (1993). The FWS shall list or reclassify a species if it determines that "any one or a combination" of the factors has caused the species to be endangered or threatened. 50 C.F.R. § 424.11(c). Thus, the FWS must consider each of the listing factors singularly and in combination with the other factors.

 Upon an examination of each listing factor, plaintiffs assert that (1) the Selkirk habitat is presently being destroyed and modified by development activities and faces the threat of further destruction and modification; (2) poaching has directly led to overutilization of the grizzly species and that roadbuilding, mining and timbering that has destroyed habitat has led to indirect overutilization of the grizzly for commercial purposes; (3) the Selkirk grizzly bears face a high predation risk from human-caused mortality; (4) existing regulatory mechanisms have failed sufficiently to protect the bear from the threat of extinction because they do not limit human use and development of the Selkirks, which in turn leads to human/bear encounters that often result in the human-caused death of the bear; and (5) the grizzlies' naturally low population and low reproductive rates negatively affect the bears' continued existence. Plaintiffs therefore maintain that the FWS must reclassify the ...


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