other species having a higher priority for listing. 16 U.S.C. § 1533(b)(3)(B)(iii).
If the FWS concurs with a petition for listing or reclassifying a species, it may delay action if it finds that "implementing the petitioned action is precluded by pending proposals to determine whether any species is an endangered species or a threatened species" and that "expeditious progress is being made" on other listing decisions. 16 U.S.C. § 1533(b)(3)(B)(iii). This provision gives the agency discretion to direct its energy and resources to those species most in need of listing, reclassification or delisting. In the Conference Report accompanying the 1982 amendments that added this provision, Congress stated that the FWS has the flexibility to delay commencing a warranted action if "the existence of pending or imminent proposals to list species subject to a greater degree of threat would make allocation of resources to such a petition unwise." H.R. Conf. Rep. No. 97-835, 97th Cong., 2d Sess. 2 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2862. Congress added that "the listing agencies should utilize a scientifically based priority system to list and delist species, subspecies and populations based on the degree of threat, and proceed in an efficient manner." Id.
In 1983, the FWS issued Priority Guidelines setting forth a scientifically based priority system for listing, reclassifying and delisting species. 48 Fed. Reg. 43,098 (1983). Through the Guidelines the FWS seeks to make the most appropriate use of the limited resources available to implement the Act. Id. Priorities are assigned according to the magnitude and immediacy of the threat the species faces, the FWS' need for further information, the species' recovery potentials, and whether the species belongs to a highly distinctive or isolated gene pool. The Priority Guidelines are meant to inform the listing, reclassification and delisting process rather than to dictate the outcomes of petitioned actions. "Inasmuch as such assessments are subjective to some degree, and individual species may not be comparable in terms of all considerations, the priority systems presented must be viewed as guides and should not be looked upon as inflexible frameworks for determining resource allocations." Id. at 43,098.
The Priority Guidelines establish 12 priority categories. 48 Fed. Reg. at 43,102-03. To decide in which category an organism should be placed, the FWS first determines whether the magnitude of the threat to the organism is high, moderate or low. Next, the FWS evaluates whether the immediacy of the threat is imminent or non-imminent. Finally, the FWS decides whether the organism under consideration is either a member of a monotypic genus, a species or a subspecies, with a subspecies receiving a lower priority ranking than a species. Id.
In February 1992, the FWS issued Interim Guidelines to clarify the 1983 Priority Guidelines and to "ensure consistent Servicewide application of the listing priority system." Interim Guidelines on the Endangered Species Listing Priority System (Feb. 11, 1992), A.R. Supplement of Feb. 18, 1994. The Interim Guidelines mandate that only species with a ranking of one or two may be listed except under certain enumerated conditions not applicable here. The FWS placed the Cabinet-Yaak Grizzly, a subspecies, in Category Six. 12-Month Administrative Finding, A.R. Tab 23 at 6. Accordingly, the FWS determined that the Cabinet/Yaak grizzly ranking precluded reclassifying the species from threatened to endangered.
Plaintiffs argue that the FWS abused its discretion in applying the 1983 Priority Guidelines and the 1992 Interim Guidelines. They maintain that the FWS improperly acted as if it had no discretion under the Guidelines, asserting that the FWS had discretion to disregard the priority system established by the Guidelines and the Interim Guidelines because they are interpretive guidelines rather than legally binding regulations. Because the FWS did not exercise any discretion and blindly followed the Guidelines, plaintiffs maintain that the FWS failed to provide any support for its decision and therefore abused its discretion. The Court disagrees.
In the 12-Month Administrative Finding, the FWS explained that it was applying its previously announced policies of listing the highest priority species (those in Category One and Two of the Priority Guidelines) and that the Cabinet-Yaak grizzly bear population, a subspecies, was placed in a priority Category Six. In a September 2, 1992, memorandum, the Grizzly Bear Recovery Coordinator explained why the threat to the grizzly, although high, is non-imminent because of protective measures that have been or are being implemented. Memorandum From Grizzly Bear Recovery Coordinator (Sept. 2, 1992) (exhibit B to Defendants' Memorandum in Support of Summary Judgment).
In addition, the FWS had stated in an earlier memorandum that the highest listing priority a particular grizzly population can receive is a three because various grizzly populations, including the Cabinet/Yaak grizzly bears, are listed as subspecies. Memorandum to Grizzly Bear Recovery Coordinator from Assistant Regional Director, Fish and Wildlife Enhancement, Region 6 (May 26, 1992), A.R. at Tab 18; see also 12-Month Administrative Finding, 12-Month Administrative Finding, A.R. Tab 23 at 6; 48 Fed. Reg. at 43,103. The Court concludes that the defendants adequately explained the manner in which they exercised their discretion in following the 1983 Policy Guidelines and provided adequate support for their application of the Guidelines to rank the Cabinet/Yaak grizzly.
In addition to examining the agency's setting of priorities for listing or reclassifying species, the Court's role in a challenge to a warranted but precluded finding includes determining whether the FWS has shown that it is working on other pending proposals and that it is making expeditious progress. As Congress provided, "in cases challenging the Secretary's claim of inability to propose an otherwise warranted petitioned action, the court will, in essence, be called on to separate justifications grounded in the purposes of the Act from the foot-dragging efforts of a delinquent agency." H.R. Conf. Rep. No. 97-835, 97th Cong., 2d Sess. 2 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2863.
To properly invoke the warranted but precluded finding, the FWS first must show that it is actively working on other pending proposals to determine whether any species is endangered or threatened. Second, it must demonstrate that it is, in fact, making expeditious progress in listing, reclassifying or delisting other species. Third, it must publish its findings regarding whether it is making expeditious progress on other pending proposals. 16 U.S.C. § 1533(b)(3)(B)(iii); H.R. Conf. Rep. No. 97-835, 97th Cong., 2d Sess. 2 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2863. The FWS has failed to demonstrate that it is actively working on other pending proposals to list, reclassify or delist other species and that it is making expeditious progress on such other proposals. Having failed to meet either of these statutorily mandated requirements, there is also no evidence that it has published its findings in this regard.
In the past, the FWS has published an annual "Description of Progress on Listing Actions" on which it could reasonably rely to demonstrate that it was making expeditious progress on pending proposals. 56 Fed. Reg. 58,664 (1991); 55 Fed. Reg. 17,555 (1990). By providing this periodic list, the FWS might avoid the need to provide a list of the pending proposals and a statement of its progress each time it made a warranted but precluded finding. Because the FWS last published this document over a year prior to the 12-Month Administrative Finding and has not published this document since, the Court concludes that the FWS has failed to support its statement that it "is making expeditious progress." 12-Month Administrative Finding, A.R. Tab 23 at 6. The FWS has not shown that its decision was based on consideration of the relevant statutory factors nor has it provided a record upon which the Court could determine whether it has done so. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 416.
Plaintiffs also argue that to have properly exercised its discretion under the ESA, the FWS should have established that it was financially precluded from reclassifying the Cabinet-Yaak grizzlies. Plaintiffs maintain that section 1533(b)(3)(B)(iii) should be strictly construed to give the FWS discretion to deny listing to a species only if the agency is financially precluded from doing so. They note that defendants did not mention the costs of reclassification in making their decision, but did discuss the funds going towards other grizzly bear recovery efforts, including the delisting of other grizzly populations. Plaintiffs argue that the FWS should have reallocated these funds for reclassifying the Cabinet-Yaak population rather than for delisting other grizzly populations, that the FWS is misallocating the funds that it already has designated for grizzly bear recovery efforts and that the reclassification would entail an insignificant cost.
Plaintiffs ask the Court to read requirements into section 1533(b)(3)(B)(iii) that do not appear in the language of the statute or its legislative history. Section 1533(b)(3)(B)(iii) requires the FWS to show only that there are other pending proposals and that it is making expeditious progress on listing, reclassification or delisting proposals. See 16 U.S.C. § 1533(b)(3)(B)(iii). The legislative history indicates that the agency need only consider whether its resources should be used to address proposals involving other species subject to a greater degree of threat and that the agency should use a "scientifically based priority system to list and delist species, subspecies and populations based on the degree of threat." H.R. Conf. Rep. No. 97-835, 97th Cong., 2d Sess. 2 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2862. Congress nowhere required the FWS to determine that it is financially precluded from taking an action on a petition. Accordingly, the Court will not require the FWS to show that reclassifying the Cabinet-Yaak grizzlies is financially precluded. The FWS did not abuse its discretion by declining to consider reallocating its funds from other grizzly related expenditures.
Because the FWS did not offer sufficient analysis for its warranted but precluded decision, the Court remands this dispute to the agency for further consideration consistent with this Opinion. In particular, the FWS must consider and support any finding that is made in accordance with the 1992 Guidelines and, if it maintains its warranted but precluded finding, it must show that it is making expeditious progress on other pending proposals.
For all of these reasons, Plaintiffs' Motion for Summary Judgment is hereby GRANTED in part, and Defendants' Motion for Summary Judgment is DENIED. An Order consistent with this Opinion is entered this same day.
PAUL L. FRIEDMAN
United States District Judge
Upon consideration of plaintiffs' motion for summary judgment, defendants' motion for summary judgment, the responses and replies, the administrative record, and for the reasons stated in the Opinion issued this same day, it is hereby
ORDERED that plaintiffs' motion for summary judgment is GRANTED in part and defendants' motion for summary judgment is DENIED; it is
DECLARED that defendants' decision that the reclassification of the Selkirk grizzly bear population as endangered is not warranted is arbitrary and capricious because defendants failed to sufficiently explain how they exercised their discretion with regard to the statutory listing factors and drew conclusions that cannot be supported by the evidence in the record; it is
DECLARED that defendants' decision that reclassification of the Cabinet/Yaak grizzly bear population as endangered is warranted but precluded is arbitrary and capricious because defendants have failed to supply the requisite reasoned analysis and to comply with 16 U.S.C. § 1533(b)(3)(B)(iii); and it is
FURTHER ORDERED that this matter is remanded to the Fish and Wildlife Service, which has 90 days from the date of this Order to provide a reasoned analysis for its decisions that the reclassification of the Selkirk grizzly bear population as endangered is not warranted and that reclassification of the Cabinet/Yaak grizzly bear population as endangered is warranted but precluded.
PAUL L. FRIEDMAN
United States District Judge