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Carlton v. Babbitt

ELR Citation: 26 ELR 20396
Nos. Nos. 93-1174, -1788, 900 F. Supp. 526/42 ERC 1083/(D.D.C., 09/29/1995)

The court holds arbitrary and capricious the U.S. Fish and Wildlife Service's (FWS') decisions that reclassifying the grizzly bear population of the Selkirk ecosystem from threatened to endangered was not warranted and that reclassifying the grizzly bear population of the Cabinet/Yaak ecosystem was warranted but precluded. The court first addresses whether the FWS adequately considered each of the five statutory factors enumerated in §4(a)(1) of the Endangered Species Act (ESA) when it decided that reclassifying the Selkirk grizzly was not warranted. The court holds that it may consider an extra-record, post-decision letter from the FWS about the decision, but only to the extent that the letter merely explicates the FWS' findings, explains how the findings address each listing factor, and does not make new arguments or present new evidence. The court next holds that the FWS sufficiently addressed the first of the §4(a)(1) factors: the present or threatened destruction, modification, or curtailment of the Selkirk grizzly's habitat or range. Plaintiffs failed to point to any evidence in the record or to offer any support that shows that the FWS' conclusion that this factor has not elevated the level of threat to the grizzly population is unreasonable. The court next holds that the FWS has not sufficiently addressed the second factor: whether there is overutilization of the Selkirk grizzly population for commercial, recreational, scientific, or educational purposes. The FWS also has not sufficiently addressed the third factor: disease and predation. The court finds that the record does not support the FWS' conclusion that human-caused mortality—which the FWS claims is the only factor limiting population growth—is decreasing. The court holds that the FWS must reconsider its findings and the available evidence on this issue. Regarding the fourth factor—the inadequacy of existing regulatory mechanisms—the court holds that to the extent that the FWS determined that the regulatory mechanisms are adequate because they have held human-caused mortalities in check or have led to their decrease, this finding is unsupported because the FWS' conclusions regarding human-caused mortalities are unsupported. If the FWS determines that human-caused mortality has not been addressed by the current regulatory mechanisms, it must offer a more adequate explanation to support its finding that the regulatory mechanisms are adequate. Regarding the fifth factor, the court holds that the FWS has sufficiently addressed some, but not all, of the "other natural or manmade factors" affecting the Selkirk grizzly's continued existence. The most significant of these threats is the population's small size, however, the FWS did not calculate the size of the population, but relied on various indicia of population stability and size, some of which are not adequately explained in the record. Moreover, the FWS could not properly support its finding that reproductive and survivorship rates are adequate without a better determination of the level or trend of human-caused mortality. The court holds that the decision regarding the grizzly bear population of the Selkirk ecosystem must be remanded to the agency for further consideration.

The court next turns to the FWS' decision that reclassifying the Cabinet/Yaak grizzly is warranted but precluded. The court holds that the FWS did not abuse its discretion by basing its decision that work on higher priority species precluded reclassification on its 1983 priority guidelines and 1992 interim guidelines. The FWS adequately explained the manner in which it exercised its discretion in following the guidelines and provided adequate support for its application of the guidelines to rank the Cabinet/Yaak grizzly. The FWS failed, however, to meet §4(b)(3)(B)(iii)'s requirements for invoking the "warranted but precluded" finding. The FWS failed to demonstrate that it is actively working on other pending proposals to list, reclassify, or delist other species; that it is making expeditious progress on such other proposals; or that it has published its findings in this regard. Because the FWS last published its annual description of progress on listing actions over a year before it issued its 12-month administrative finding, it has failed to support its statement that it is making expeditious progress. The court next holds that §4(b)(3)(B)(iii) does not require the FWS to show that it is financially precluded from taking an action on a petition to reclassify a species. Thus, the FWS did not abuse its discretion by declining to consider reallocating its funds from other grizzly-related expenditures. The court remands the Cabinet/Yaak grizzly decision to the FWS for further consideration.

Counsel for Plaintiffs
Howard I. Fox
Sierra Club Legal Defense Fund
1531 P St. NW, Ste. 200, Washington DC 20005
(202) 667-4500

Counsel for Defendants
Joseph R. Perella
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000