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October 28, 1998

D.C. "JASPER" CARLTON, et al., Plaintiffs,
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

This case is back before the Court on two related matters: (1) the plaintiffs' motion to supplement the administrative record and (2) the plaintiffs' challenge to the defendants' decision on remand not to reclassify the Selkirk population of grizzly bears from "threatened" to "endangered" under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq.

 In 1995, this Court found that the government's refusal to reclassify the Selkirk population as "endangered" was arbitrary and capricious and not supported by the evidence in the record. Carlton v. Babbitt, 900 F. Supp. 526, 531-34, 537-38 (D.D.C. 1995). It remanded the matter to the United States Fish and Wildlife Service ("FWS") for further analysis. Id. The FWS has made supplemental findings and has once again found that reclassification of the Selkirk population is not warranted. Supplementary Information for the Court Regarding the Not Warranted Petition Finding for the Selkirk Grizzly Bear Population (Mar. 15, 1996) ("Supplementary Information") at 11. Upon review of the administrative record and the Supplementary Information, as well as a number of the documents submitted by plaintiffs, the Court again remands this matter to the FWS because it has not established (1) that the Selkirk population can sustain the current rate of human-caused mortality, (2) that the present regulatory mechanisms are adequate, (3) that the Selkirk population is not endangered simply by virtue of its size, and (4) that Canadian habitat will continue to be available to the Selkirk population.


 Once a dominant predator in the Western United States, the grizzly bear has been all but eliminated from its historic range. Between 1800 and 1975, the grizzly bear population in the lower 48 states shrank from an estimated 50,000 bears to fewer than 1000. U.S. FISH AND WILDLIFE SERVICE, GRIZZLY BEAR RECOVERY PLAN (1997) ("Plan") at 9, Supplemental Administrative Record ("Supp. A.R.") Tab 18. As a result, the Secretary of the Interior found in 1975 that the grizzly bear was likely to become in danger of extinction within the foreseeable future. Under the authority given him by the ESA, he listed the grizzly bear in the lower 48 states as a "threatened" species. 40 Fed. Reg. 31,734 (1975).

 In implementing the ESA, the FWS has the discretion to define distinct, disconnected subpopulations of a protected species that are "endangered" or "threatened" in their own right. 16 U.S.C. § 1532(16); 50 C.F.R. § 424.11(k) (1997). The FWS recognizes five such subpopulations for the grizzly bears of the lower 48 states, including the populations for the Selkirk ecosystem and the Cabinet/Yaak ecosystem. Plan at 11-13. In January and February 1991, plaintiffs requested that the FWS reclassify the Selkirk and Cabinet/Yaak populations from "threatened" to "endangered." 57 Fed. Reg. 14,372 (1991), Administrative Record ("A.R.") Tab 15. A "threatened" species is one that is "likely to become an endangered species within the foreseeable future," while an "endangered" species is one that "is in danger of extinction." 16 U.S.C. § 1532(20); 16 U.S.C. § 1532(6). An "endangered" species receives more protection under the ESA than a "threatened" species.

 In April 1992, the FWS responded to plaintiffs' petitions, finding that there was sufficient information to initiate a formal review of the status of the two populations. 57 Fed. Reg. 14372 (1992). In the subsequent review, however, the FWS chose not to reclassify either population from "threatened" to "endangered." For the Selkirk population, the FWS determined that reclassification was not warranted because "human-caused mortality is decreasing, reproduction and survivorship rates are adequate..., and a proactive management program has been implemented." 58 Fed. Reg. 8250, 8251 (1993) (citations omitted). For the Cabinet/Yaak population, the FWS acknowledged that reclassification was warranted but found that it was precluded "by work on other species having a higher priority for listing." Id.

 After providing the government with the proper notice, plaintiffs filed suit in this Court seeking review of the FWS determination regarding both populations. The Court found that both decisions of the FWS had been arbitrary and capricious and remanded the matter to the FWS, which was directed to provide a reasoned analysis for its decisions. Carlton v. Babbitt, 900 F. Supp. at 537-38.

 In reviewing the Selkirk determination, the Court applied the factors that the FWS was required to review in making listing decisions. Specifically, the 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); 50 C.F.R. § 424.11(c) (1997). The Court found that (1) the FWS conclusion that human-caused mortality is decreasing was not supported by the record, (2) the FWS determination that the regulatory mechanisms were adequate because mortality had decreased was similarly flawed, and (3) the FWS inadequately considered the susceptibility of the Selkirk population to certain threats by virtue of its small size. Carlton v. Babbitt, 900 F. Supp. at 532-34. The Court also requested the FWS to give further consideration to its reliance on the contiguity of Canadian grizzly bear populations to ensure the Selkirk population's survival. Id. at 534.

 For the Cabinet-Yaak population, the Court acknowledged that the FWS had the discretion to make certain listing determinations a priority over others but found that it had not proffered sufficient evidence that it was actively working on other listings. Carlton v. Babbitt, 900 F. Supp. at 536. In reviewing a "warranted but precluded" finding, the Court was required to determine whether the FWS had shown that it was working on other pending proposals and that it was making expeditious progress. Id. Because the FWS had not produced any evidence in this regard, the Court remanded the matter to the FWS to address the insufficiency.

 In its supplemental findings, the FWS has retained its finding that the reclassification of the Selkirk population was unwarranted but has revised its justification for that finding. Instead of maintaining that human-caused mortality was decreasing, the FWS determined that the population was stable and could sustain the current level of human-caused mortality. Supplementary Information at 3-4. In particular, the FWS responded to the Court's concerns by finding that (1) the Selkirk population could sustain the current annual human-caused mortality rate of four percent, (2) the number of regulatory initiatives in the United States and Canada are adequate to forestall the population's decline, (3) the Selkirk population's size at 26 to 36 bears is sustainable, and (4) Canadian policies and cooperation justify reliance by the FWS on the Canadian portion of the Selkirk population in evaluating its health. Id. at 2-11. For the Cabinet-Yaak population, the FWS merely restated its earlier findings.

 Plaintiffs now challenge the supplemental findings made by the FWS with respect to the Selkirk population and request the Court to find that the supplemental findings are arbitrary and capricious and in violation of the ESA. To support their arguments, plaintiffs also have moved to supplement the administrative record with a number of additional documents. Plaintiffs do not pursue the Cabinet-Yaak issue. See Plaintiffs' Response to Defendant's Notice of Filing at 1 n. 1.


 A. Standard of Review

 Agency decisions under the ESA are reviewed under the Administrative Procedure Act. See Las Vegas v. Lujan, 282 U.S. App. D.C. 57, 891 F.2d 927, 932 (D.C. Cir. 1989); Cabinet Mountains Wilderness v. Peterson, 222 U.S. App. D.C. 228, 685 F.2d 678, 685 (D.C. Cir. 1982). The reviewing court may set aside such agency actions, findings or conclusions when they are arbitrary, ...

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