Grizzly bear blues: a case study of the Endangered Species Act's delisting process and recovery plan requirements.The fundamental purpose of the Endangered Species Act (ESA) is to prevent species from becoming extinct. Once this goal is achieved, section 4 of the Act provides a framework for recovering a listed species to the point where it no longer needs the ESA's protection and can be delisted. This Comment analyzes this recovery framework, the delisting process, and legal protections that remain after delisting. The author uses the management of the grizzly bear as a case study to highlight the practical problems and issues surrounding species recovery and delisting. The United States Fish and Wildlife Service's (FWS) management of the recovery of the Yellowstone population of the gdizzly bear provides fertile ground For analyzing the practical workings of recovery planning under the ESA. This case study highlights the difficulties inherent in managing endangered and threatened species towards recovery, particularly the problems associated with securing sufficient habitat, the difficulties in straining political and economic influences from all section 4 decisions, and the continuation of recovery beyond delisting. This Comment concludes that FWS's management of listed species has improved steadily since enactment of the ESA, but is lacking in some areas--notably meager enforcement of recovery plan directives and a misguided new policy of delisting questionably recovered charismatic species. Amending the ESA through reauthorizatton may remedy these shortcomings, but enforcing every provision already contained in the Act could also enable FWS to successfully manage species toward stability, and ultimately recovery.
The government trapper who took the Grizzly knew he had made Escudilla safe for cows. He did not know he had toppled the spire off an edifice a-building since the morning stars sang together. The bureau chief who sent the trapper was a biologist versed in the architecture of evolution, but he did not know that spires might be as important as cows. He did not foresee that within two decades the cow country would become tourist country, and as such have greater need of bears than of beefsteaks.(1)
Fifty years have passed since Aldo Leopold first wrote these words describing the death of the last grizzly bear (Ursus arctos horribills) to roam eastern Arizona's Blue Mountains. By the early 1970s, fewer than one thousand individual grizzlies survived in fragmented, isolated wilderness refuges comprising less than two percent of the bear's former range in the coterminous United States.(2) Respite eventually came in 1975 when the United States Fish and Wildlife Service (FWS) listed six separate populations of the grizzly as threatened(3) under the Endangered Species Act of 1973 (ESA).(4) Twenty-five years later, the grizzly's population has not significantly increased, and the amount of suitable habitat has actually decreased,(5) yet FWS is planning to delist one of the protected populations,(6) thereby removing all ESA safeguards.
Congress enacted the ESA in 1973 to conserve "ecosystems upon which endangered species and threatened species depend [and] to provide a program for the conservation of [these] species."(7) The ESA authorizes the Secretary of the Interior (Secretary) to determine which species to protect by conducting a five-factor analysis.(8) The Act requires the Secretary to make this determination based "solely on ... the best scientific and commercial data available."(9) This mandate applies equally to the delisting process, which uses the same criteria and procedures as the listing process.(10) The Secretary's regulations specifically exclude any "reference to possible economic or other impacts."(11) Further, the Secretary may only delist a species for one of three reasons.(12) This Comment focuses on the second reason, recovery.
FWS regards recovery as the principal goal of endangered species protection, which requires the Secretary to consider the five listing factors in formulating recovery plans to determine when delisting is appropriate.(13) Therefore, FWS may only delist a species if the agency has formulated a recovery plan that addresses the factors that led to the species's initial listing and if the species has recovered sufficiently to make ESA protection unnecessary. FWS recently delisted one species,(14) and the Secretary announced that FWS will examine many more species to determine if delisting is appropriate.(15)
Among the species proposed for delisting is the Yellowstone population of the grizzly bear.(16) This Comment analyzes the recovery and delisting requirements of the ESA by using FWS's management of the grizzly bear as a case study. This approach demonstrates the different aspects of a recovery plan in action, the procedures involved for delisting a recovered population, and the post-delisting protections that remain to ensure continued recovery outside the umbrella of ESA protection. This analysis casts doubt on the wisdom of the Secretary's current policy, which seeks to increase delistings to demonstrate the effectiveness of a beleaguered ESA.(17) Such a policy may engender more harm than good because prematurely delisting species, such as the grizzly, could have the side effect of causing a reduction in species populations, which may in turn require emergency relisting decisions.(18) Repetition of this scenario in other species will reinforce the criticisms of the ESA and may endanger the Act itself.
The first section of this Comment analyzes the ESA's requirements for delisting and recovery. Part II provides a brief overview of the ESA's history and prime directives. Part III analyzes the delisting process itself and examines previous delisting decisions and current delisting proposals. The second section of Part III discusses protection and recovery of the grizzly bear under the ESA and examines the bear's post-delisting future. Part IV analyzes the history of the grizzly bear's protection under the ESA and examines the wisdom and legality of current proposals to delist the Yellowstone grizzly population. Part V analyzes the adequacy of protections that are in place should the grizzly bear be delisted. Part VI utilizes the grizzly bear scenario to contemplate the far-reaching implications in the recovery and delisting of endangered and threatened species and examines the future of the ESA itself.
II. THE ENDANGERED SPECIES ACT: A BRIEF HISTORY AND OVERVIEW
The value of preserving native species in the United States is only a recent enlightenment in what has often been a sad history of excess and greed in exploiting this country's wildlife resources.(19) The realization that individual species should be valued in their own right, separate from commercial or recreational uses, dawned relatively recently with the rise of the modern environmental movement in the 1960s.(20)
After initial, largely ineffective attempts to protect wildlife,(21) mounting public pressure to strengthen wildlife protection and to expand it to all endangered species led to the authorization of the Marine Mammal Protection Act of 1972 (MMPA)(22) and culminated in the authorization of the Endangered Species Act of 1973.(23) The ESA's authorization represented a huge step for Congress and a giant leap for wildlife protection. Congress declared "fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people"(24) and pledged to conserve species facing extinction.(25)
The ESA is an astounding piece of legislation in its power and efficacy. For example, the ESA is unique among federal statutes in its ability to effectively control the actions of both state and private landowners.(26) However, the stretching of federalism to its limits is not only a source of strength but also a rallying point for the ESA's detractors who condemn such infringements on hunting and private property rights.(27)
The defining mandate of the ESA describes the method the Secretary(28) must use in formulating any action, including determining whether a species should be listed under section 4.(29) The Act requires the Secretary to make determinations "solely on the basis of the best scientific and commercial data available."(30) The repercussions of this mandate are powerful. In stating this requirement, the ESA does not allow political, economic, or social factors to influence listing decisions.(31) Therefore, the Secretary may not legally use data and evidence for listing or not listing a species as endangered or threatened that is not grounded in the best current scientific and commercial data available.(32) This was, and still is, a revolutionary concept in environmental protection because it theoretically eliminates all economic and political influences from section 4 determinations.
Shortly after Congress authorized the ESA, the Supreme Court upheld the validity of the ESA's mandate by enjoining the construction of the federally funded Tellico Dam that threatened to inundate and destroy the last remaining habitat of a small, endangered fish species.(33) The Court expressed that "Congress has spoken in the plainest words, making it clear that endangered species are to be accorded the highest priorities,"(34) and "Congress intended to halt and reverse the trend toward species extinction--whatever the cost."(35) The power of the new Act was thus immediately recognized.
III. THE PROCESS AND REQUIREMENTS OF DELISTING UNDER THE ESA
The ESA contains four main sections: section 4 outlines procedures and criteria for listing species and designating critical habitat;(36) section 7 prevents any federal actions from either jeopardizing the continued existence of any listed species or adversely affecting any listed species's critical habitat.(37) section 9 bans the taking, import, and export of any endangered species.(38) and section 10 controls state and private landowner's actions that may result in a take of a listed species under section 9.(39) This Comment concentrates on an analysis of the ESA's delisting process pursuant to section 4, and FWS's interpretation and application of this process.
A. The Listing Process and the ESA's Definition of an Endangered Species
The section 4 listing process sets forth instructions the Secretary must follow to list a species.(40) The process to delist an endangered or threatened species is merely the reverse of the listing process.(41) Section 4 begins by requiring the Secretary to determine whether a particular species is endangered or threatened based on a five-factor analysis of the conditions that contributed to the species's present status.(42) Section 4 also explicitly requires the Secretary to base any section 4 determination "solely on the ... best scientific and commercial data available to him...."(43) Federal courts have reinforced this mandate several times.(44)
To fully understand the listing process and its factors, an explanation of how the ESA defines a species is necessary.(45) The ESA defines "species" as "includ[ing] any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature."(46) This is somewhat different from a general definition of the term "species."(47) As a result, a few endangered species with distinct population segments, including the grizzly bear, have several population segments listed as separate species.(48) Consequently, the Secretary must make listing and delisting determinations separately for each population segment of such species. It follows that each individual population of a species listed in this fashion shall receive the same protection as a species listed as endangered for its entire population. This is a double-edged sword. On the one hand, this means that the Secretary may list a distinct population segment of a species as endangered even if the species is abundant tn the rest of its geographical range.(49) On the other hand, it also allows the Secretary to propose delisting distinct population segments of a species no longer in jeopardy even if the species is still endangered throughout the rest of its range.(50) However, delisting cannot legally occur without addressing the reasons for the species's original listing using the ESA's five-factor analysis.(51)
B. The Listing Process's Five Factor Analysis
The Secretary must evaluate, using the best scientific or commercial data available, whether to list a species, or distinct population of a species, according to a five-factor analysis of the species's current situation.(52) According to section 4, one or more of the following five factors must form the basis of the Secretary's decision to list or not to list a species as endangered or threatened: "(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 effecting its continued existence."(53) After determining whether a species is endangered or threatened according to any of the factors, the ESA requires the Secretary to concurrently designate critical habitat for that species to the "maximum extent prudent and determinable."(54)
The listing process itself is quite complicated. Initially, a species is considered for listing either through a petition by an interested person(55) or at the Secretary's own initiative.(56) When analyzing petitions from interested persons, FWS assesses all accumulated data, proposes listing or not listing after reviewing all the accumulated evidence, and makes a final determination after an opportunity for public comment. Even if a final determination indicates that a species deserves listing as endangered or threatened, the Secretary may issue a "warranted but precluded" finding,(57) because the Secretary has accorded higher priority to more at-risk candidates or proposed species.(58) The ESA requires the same process for delisting a species and contains additional requirements to ensure continuing progress in species recovery.(59)
C. Reasons for Delisting Species and Removing Protection
The ESA attempts to protect and recover listed species by requiring the Secretary to "develop and implement [recovery] plans ... for the conservation and survival [of all listed species]" unless such a plan would not promote a species's conservation.(60) The ESA leaves the tasks of defining "recovery" and determining procedural guidelines for formulating recovery plans to the Secretary. Recovery plans address the ultimate purpose of the ESA: to restore endangered species to a level at which they no longer require the Act's protection.(61) Recovery is one of three reasons for which a species may be removed from the list of endangered and threatened species according to FWS regulations.(62) Therefore, recovery plans must contain criteria that, when achieved, will result in delisting by accounting for all the threats that caused a species to initially decline and require listing in the first place.
The regulations state that the same factors considered in listing a species must be considered for delisting.(63) This means that FWS may only delist a species if the factors responsible for its original listing as an endangered or threatened species have been addressed or no longer occur. Additionally, section 4's mandate to use the "best scientific and commercial data available"(64) applies to all delisting decisions. To stress this point, FWS regulations emphasize that no "possible economic or other aspects" may apply to delisting decisions.(65) Finally, the regulations describe the three possible reasons for delisting a species if substantiated by adequate data: extinction,(66) erroneous original data classification,(67) or recovery.(68) This Comment focuses on FWS's "principal goal" of delisting species due to recovery.(69)
D. Delisting Recovered Species: The Law of Species Recovery
The legal process of delisting a species due to recovery appears fairly simple. The ESA itself does not define the term "recovery," leaving the task to the involved agencies. Section 7 regulations merely define recovery as "improvement in the status of a listed species to the point at which listing is no longer appropriate under the criteria set out in section 4(a)(1) of the Act."(70) If a species meets the criteria according to data obtained using the best available scientific evidence, FWS may delist that species. However, this apparent simplicity is belied by the complex task of determining the best science to use in this process.(71) Also muddying the waters is the reality that FWS's limited funding and a 1995-1996 listing moratorium(72) have led to a tremendous backlog in listing species,(73) the resolution of which, until recently, had swallowed up much of FWS's time and resources, leaving many species with inadequate or no recovery plans.(74)
FWS has compiled a checkered record in applying the ESA's recovery requirements. The original ESA contained no recovery plan requirements at all.(75) The 1978 amendments(76) required the Secretary to develop and implement recovery plans for all listed species, but provided little further guidance beyond these nebulous mandates.(77) This lack of specificity led to recovery plans that contained few explicit requirements and only vague goals and directives that were difficult or impossible to enforce.(78) To counter this problem, Congress added several recovery plan requirements to the ESA in the 1982(79) and 1988 amendments.(80) Currently, each plan must contain "site-specific management actions" necessary to achieve recovery, "objective measurable criteria" that result in a delisting determination when met, and estimates of the cost and time required to achieve the plan's intermediate steps and final goal.(81) Federal courts have since interpreted these recovery plan requirements.(82)
The D.C. federal district court construed these duties in Fund for Animals v. Babbitt(83); a case challenging the validity of the Grizzly Bear Recovery Plan (GBRP).(84) The court concluded that the ESA gives FWS the flexibility "to recommend a wide range of management actions on a site-specific basis."(85) The ESA requires FWS to consider the distinct needs of separate ecosystems or populations in designating management actions, but the court found that the ESA does not require separate management actions for each ecosystem or population if FWS considers such actions unnecessary.(86) The court then interpreted the objective, measurable criteria requirement to mandate that FWS tailor any recovery plan to achieving removal of the endangered or threatened species from the list by addressing the reasons for the species's original listing according to the five listing factors.(87) In summary, FWS must formulate a recovery plan to address all the reasons for a species's original listing, but a court is likely to defer to FWS's choice of management actions to achieve this goal.
The 1988 amendments added several beneficial recovery plan requirements, but the inclusion of a priority scheme, which favors formulating recovery plans for species "most likely to benefit from such plans," particularly those that are susceptible to the effects of impending construction or development projects or other forms of economic activity, has generated some controversy.(88) Congress maintained that limited funding mandated this new priority guidance,(89) and it did not intend to change substantive recovery requirements.(90) However, some commentators have suggested that, in practice, FWS has used this priority guidance to focus an inordinate part of its recovery plan budget on charismatic, megafaunal species, often ignoring invertebrates and less publicly spotlighted species that may be in greater need of a recovery plan to stave off extinction.(91) Unfortunately, it seems that Congress has only partially realized its intent to improve and expedite the recovery of listed species through requiring more detailed and extensive recovery plans. The current requirements for developing recovery plans for listed species are detailed and specific, but implementation of recovery plans remains unmandated and uncertain.(92)
The ESA only requires the Secretaries of Interior and Commerce to develop and implement recovery plans, applying no similar obligation to the Secretaries of other departments.(93) The Secretaries have delegated this duty to FWS and NMFS, leaving a question as to whether other Interior or Commerce agencies also have a duty to implement. Further, implementation of recovery plans for agencies other than those administered by the two Secretaries, such as the United States Forest Service (USFS) under the direction of the Secretary of Agriculture, is apparently purely discretionary. FWS, in practice, actually relies on other sections of the ESA, specifically sections 7 and 9, to implement recovery plan management recommendations.(94) The reliance on section 7 consultation may require other agencies, such as the USFS, to implement recovery plan recommendations in order to comply with section 7 and prevent jeopardy to a species's future recovery. Further, section 7(a)(1) may require other agencies to actually formulate and implement their own recovery requirements.(95) Unfortunately, thus far, other agencies have failed to implement the section 7(a)(1) duty to conserve, and FWS consistently has failed to require them to comply with recovery plan requirements when engaged in consultation, resulting in unimplemented, toothless recovery plans for many listed species.(96)
In addition to requiring the implementation of recovery plans when practicable, the ESA contains requirements directing FWS to continue monitoring a species's status after listing.(97) The ESA requires the Secretary to review all listed species at least once every five years to determine whether to remove or change the status of any species.(98) The 1982 ESA amendments(99) require the publication of agency guidelines that provide a ranking system to prioritize all listing decisions and recovery plan implementations.(100) This ranking system appeared in several incarnations as agency priority guidelines and garnered much controversy.(101) This friction has only recently spread to the delisting process.
Budget limitations restricted delisting determinations prior to 1999 because FWS placed delisting in the bottom tier of the four tier listing priority ranking system.(102) However, the latest set of guidelines state that "delisting activities are no longer part of the listing program and will be undertaken by the recovery program in fiscal year 1999 and beyond."(103) Consequently, the delisting program is now funded through the recovery program and is allocated a specific amount of funding each year.(104) This reflects a new trend in the priority of delisting within the ESA's protective framework, possibly allowing greater emphasis on a delisting program with funding no longer subordinated to the backlogged listing program.
E. A New Emphasis on Delisting Charismatic Species
FWS's recent policies regarding delisting and implementing recovery plans are questionable in light of the ESA's mandate to use only the best available scientific and commercial data.(105) Property rights advocates, who wield a strong influence in Congress, have criticized the ESA and demanded proof that the Act actually works--that protected species benefit and recover under the Act's protection to the point where listing is no longer required.(106)
This pressure manifested itself in a new policy aimed at increasing delistings(107) and resulted in proposals to delist many big name species such as the bald eagle,(108) gray wolf (Cants lupus)(109) and grizzly bear.(110) This policy appears to be an attempt to decrease political criticism of the Act by showing that species do eventually recover under the Act's protection. The goal of providing a positive vision for the future is laudable. However, the realities of increased delistings may actually cloud that future even more. Whereas FWS delisted several species due to recovery with little controversy since Congress enacted the ESA,(111) some of the recent delisting proposals and final determinations may not be grounded solely in the best scientific evidence available.(112) For example, FWS proposed to delist the bald eagle throughout its entire range despite doubts that eagle populations have recovered in the southwestern United States.(113) Critics also cite encroaching development on eagle habitat and threats of lead and mercury in the environment as reasons to postpone delisting, particularly the southwestern eagle population.(114) Grave doubts also surround plans to delist the gray wolf in Minnesota, California, and Nevada, as no wolves are present in California and Nevada, and no suitable habitat exists for future expansion of current populations,(115) Controversies also surround delisting determinations and proposals for other species,(116) but perhaps the most contentious proposal is the relatively recent shift by FWS towards delisting the Yellowstone grizzly bear population.(117) The political cost of erroneously delisting species may manifest an even greater criticism of the ESA than that which the current policy is designed to address.
Recent emphasis on delisting to bolster the ESA is a dangerous policy approach because premature delisting of species could easily backfire if subsequent population declines--due to the lack of protection--force emergency relisting decisions.(118) This result would only weaken the credibility of the ESA in the eyes of its critics while circumventing the ESA's prime mandate of making decisions based purely on scientific evidence. Moreover, this policy is a misguided attempt to appease the ESA's staunchest critics when other alternatives could be more effective.(119)
To assess this new delisting policy, Part IV scrutinizes the many problems surrounding FWS's proposal to delist the Yellowstone population segment of the grizzly bear and discusses the wisdom and the supporting scientific evidence behind this proposal.
IV. THE GRIZZLY BEAR SCENARIO: AN ESA RECOVERY PLAN IN ACTION
The grizzly bear is a magnificent creature. It occupies an ecological niche as the primary predator in North America's coniferous forests(120) and thus instills fear in all living things it encounters, including humans.(121) This fear resulted in the grizzly's persecution for many years before protection came at last in the form of an ESA listing as a threatened species.(122) Now, after twenty-five years of protection, plans to delist the grizzly are inexorably progressing after the Interagency Grizzly Bear Committee first proposed delisting the Yellowstone population of the protected grizzly because of impending recovery in 1993.(123)
This Part analyzes a recovery plan in action, assessing FWS's management of the individually listed Yellowstone population of the grizzly bear from listing in 1975 through the current management actions under the latest Grizzly Bear Recovery Plan. This analysis examines three different aspects of recovery planning. First, it investigates FWS's early, limited protective recommendations with little emphasis on recovery under the ESA. Second, this Part scrutinizes the progression and improved management of the grizzly through ESA reauthorizations, lawsuits, and improved management following a premature delisting proposal. Third, it evaluates the current status of the grizzly, FWS's current position on delisting, and its future policies. Finally, this Part concludes with suggestions for improving grizzly management in the future and assesses problems outside of the ESA's recovery plan requirements that may detrimentally affect continued recovery.
Part V examines the regulations and safeguards that provide continued protection to a species after delisting and analyzes the Grizzly Bear Committee's Conservation Strategy,(124) which is designed to provide the grizzly with continued protection after removal of ESA safeguards through a delisting determination.
A. Grizzly Bear Biology and Natural History
Brown bears first entered North America about 50,000 years ago across the Bering land bridge from Asia.(125) Bear specialist, Stephen Herrero, hypothesized that the grizzly acquired its reputation for aggressiveness during its early forays into what are now Alaska and northwestern Canada.(126) The brown bears subsequently evolved into two distinct subspecies as they spread throughout North America: the Kodiak bear (Ursus arctos middendorfii) and the grizzly bear.(127)
Despite their innate aggressiveness, grizzlies in their natural environment rarely attack humans.(128) Socially, adult bears tend to be solitary wanderers and are not territorial.(129) However, individual bears do threaten or attack any bear or person that comes too close,(130) and mothers with cubs are the most likely to attack.(131) Bears will also attack if defending a kill or carrion, creating problems with garbage and improperly stored food at campsites.(132)
The home range of the grizzly is vitally important in managing and conserving the species, as it must contain all the bear's food, cover, and water requirements at all times.(133) The home ranges of individual bears usually overlap and may have a radius of many miles for a female with cubs.(134) Grizzlies have a relatively limited reproductive capacity, which contributes to its rapid decline and hinders current recovery efforts.(135) Habitat loss further exacerbates this low reproductive expectancy by increasing stress from human encroachment.(136)
Bears can be predominantly carnivores but are successful omnivores and are almost entirely herbivores in some areas.(137) Biologists have identified four main food items in the Yellowstone grizzly bear population's diet that represent the highest concentrated sources of energy available.(138) These food items include whitebark pine (Pinus albicaulis) seeds, army cutworm moths (Euxoa auxiliaries), large ungulates, and spawning cutthroat trout (Oncorhynchus clarkii).(139) As opportunists, bears will travel wherever necessary to find food, increasing the chances of human-bear interaction if food shortages in their home ranges force them to move elsewhere.(140) This is particularly true for bear populations relying on declining species such as cutthroat trout,(141) or whitebark pine, which currently suffers from global climate change and a disease epidemic.(142)
This description of the bear's biology and natural history provides a background to assess FWS's reasoning behind actions taken to ensure the grizzly bear's recovery. Furthermore, this information is necessary in order to question whether delisting is indeed a wise course at this time.
B. The History of Protection Since 1975 and the Formulation of an Adequate Recovery Plan
Steering the grizzly towards recovery is an exceedingly difficult and complicated process. As we learn more about the biosphere we live in, the number of variables and the science involved in conserving single species, let alone whole ecosystems, seem to increase exponentially. Biological science has barely scratched the surface of a vast universe of knowledge involving chaos theory, linkage zones, deep ecology, biodiversity, ecosystem management, and other emerging theories. In the realm of endangered species protection and recovery in the United States, FWS has the unenviable task of disseminating this wealth of scientific knowledge and applying the most contemporary scientific principles, data collection methods, and monitoring techniques. The potential for mistake and criticism is infinite, but the ESA and its accompanying regulations contain simple guidelines that FWS must follow in instituting recovery plans and delisting species such as the grizzly bear.(143)
The grizzly has suffered a long decline in the coterminous United States. The population of the species has decreased from around 50,000 in 1800 to less than 1,000 in 1975.(144) This continuing regression, the negative impacts of the controversial garbage dump closures in Yellowstone National Park from 1969-1971, and the enactment of the Endangered Species Act in 1973 finally led to protection in 1975.(145) Most of Yellowstone's dwindling grizzly population had become reliant on open-pit garbage dumps because of their stability as a food source and in response to the general compromise of natural habitat by increased human use.(146) The National Park Service (NPS), in an apparent attempt to reaccustom grizzlies to their natural food sources, chose a management strategy to rapidly phase out the dumps.(147) The strategy backfired as bears instead visited campgrounds and other developed areas, greatly increasing bear-human conflicts that lead to an accelerated mortality rate.(148) Despite this dire situation, NPS assured the general public that a healthy backcountry population of grizzlies roamed the Park, but some of the research community became very concerned about the bear's true status.(149) These concerns and the knowledge that listing the bear under the ESA would transfer most of the bear's management from NPS to FWS, catalyzed the move to list the grizzly.(150)
The Fund for Animals (Fund) petitioned the Department of the Interior (DOI) to list the grizzly on February 14, 1974.(151) After examining data accompanying the Fund's petition and collecting its own data over the next year, DOI listed the bear as a threatened species throughout the coterminous United States on July 28, 1975.(152) DOI found that four of the five ESA listing factors(153) provided reasons for listing the bear, focusing on the continuing destruction of vital habitat and the high mortality from state-regulated hunting.(154)
Under the first factor, assessing threats to habitat and range,(155) DOI cited the bear's currently confined range and timber and trail construction practices in the bear's remaining habitat as reasons for protection.(156) The second factor examines whether commercial, sporting, scientific, or educational purposes are overuttlizing a species.(157) DOI found common perceptions that grizzlies are dangerous which vermin contributed to indiscriminate illegal killing and control operations designed to protect human and livestock safety.(158) DOI decided that the third factor,(159) relating to disease or predation, was not applicable,(160) The fourth factor assesses the adequacy of existing regulatory mechanisms.(161) DOI concluded that the lack of scientific data on habitat condition, total numbers, reproduction, mortality, and population trends a hindrance to then present management programs.(162) The fifth criterion concerns other natural and manmade factors affecting survival.(163) DOI cited isolation of current populations, increasing human use of Yellowstone and Glacier National Parks, and livestock in surrounding national forests as additional factors that reduce the chances of continued survival.(164)
Any recovery plan must address all the above listing criteria findings,(165) Moreover, any delisting determination must show that the bear has recovered in sufficient numbers and that none of the reasons given above for the bear's initial listing remain.(166)
1. Formation of Management and Monitoring Techniques and Early Problems
Before assessing agency actions relating to grizzly bear management and recovery, it is important to set the scene in which these developments take place. The remaining grizzly populations and suitable unoccupied habitat occur in the northwestern United States. Historically, residents in this area regarded economical use of the land, particularly timber cutting and livestock grazing, as paramount.(167) The human population saw grizzly bears as dangerous vermin that ate livestock and threatened people. The current political climate in this area reflects these values.(168) Politicians pressure forest managers to continue cutting trees because the jobs created bring votes for reelection,(169) livestock producers lobby their congressional representatives to defend their right to graze on public land even if that land is prime grizzly habitat,(170) proposed gold mines promise economic salvation for small communities) but threaten grizzly habitat,(171) and private development continues to make inroads further into wilderness areas,m It is within this scenario of competing land use interests and political influences that FWS must make its decisions concerning the grizzly bear. These factors should be eliminated from FWS's findings and determinations under the ESA, but this does not occur in many situations.
Federal grizzly bear monitoring and research began in 1973 under the Interagency Grizzly Bear Study Team (IGBST) administered by NPS, a role that has been largely supplanted by FWS.(173) The original ESA specified management oversight by FWS for all listed species,(174) a role that the 1979 amendments increased by requiring FWS to formulate recovery plans for all listed species.(175) Neither FWS nor the steering committee modified existing bear management practices beyond attempting to reduce artificial food sources at campsites, small businesses, and hotels.(176) Unsurprisingly, the increasing rate of habitat loss resulting from deforestation practices and NPS's elimination of many problem bears led to a continuing decrease in grizzly populations despite the formulation of an initial recovery plan by FWS in 1982.(177) The IGBST and its steering committee finally recognized the growing crisis after two years of high mortality in 1981 and 1982 and recommended a new approach.(178)
2. Formulation of a Recovery Plan
In 1983, the need for more effective management resulted in the formation of the Interagency Grizzly Bear Committee (IGBC),(179) which implemented guidelines in 1985--the Interagency Grizzly Bear Guidelines (Guidelines)--advocating more restrictive management. The Guidelines are designed to minimize grizzly-human conflict and balance competition between grizzly bear habitat and other land use values.(180) It provides a useful framework for managing grizzly bears by outlining different management situations depending on the level of grizzly bear presence,m but the more specific monitoring and recovery goals are set forth in the Grizzly Bear Recovery Plan (GBRP).(182)
The latest version of the GBRP, improving upon the original 1982 Plan, incorporates management criteria from the Guidelines and includes several goals designed to more effectively measure current populations and establish recovered populations in suitable habitat.(183)
The GBRP designated six recovery areas: Yellowstone; Northern Continental Divide; Cabinet-Yaak; Selkirks; Northern Cascades; and the soon to be populated Selway-Bitteroot ecosystems.(184) The GBRP discusses road management in grizzly habitat,(185) examines the importance of linkage corridors between isolated populations,(186) includes revised population recovery criteria that determine when a population has recovered,(187) and most importantly, requires the completion of a conservation strategy for each population segment prior to delisting.(188)
a. Road Management in Grizzly Habitat
Securing adequate, effective habitat is the most crucial element in grizzly recovery.(189) Forest management practices, specifically new logging roads encroaching into roadless wilderness, are not conducive to recovery because increases in road densities combined with the grizzly's high sensitivity to habitat fragmentation lead directly to an increase in human-caused grizzly mortality.(190) The GBRP states "the management of roads is the most powerful tool available to balance the needs of bears ... with the activities of humans"(191) and strongly recommends making road management the highest priority.(192) Yet the GBRP establishes no recovery criteria based on habitat and only meaningfully discusses road management in an appendix.(193) The GBRP relies on the Guidelines' Management Situation I(194) for its road management policy in essential grizzly recovery forests, but does not incorporate this policy into formulating recovery criteria. This creates a major flaw in the GBRP because FWS may not legally delist the grizzly without showing that every reason for listing the bear in 1975 no longer exists.(194) The 1975 listing determination specifically defined destructive forest and trail practices in remaining grizzly habitat as a listing factor.(196)
The GBRP's shortcomings in acknowledging the importance of reducing road densities and the failure to Incorporate recovery criteria that require reduction of road densities are emblematic of FWS's difficulties in accounting for the vital importance to grizzly recovery of preserving and improving natural habitat.(197) FWS's complex attempts to preserve habitat have been largely ineffective despite its continued acknowledgement that road building and deforestation are prime factors in the grizzly's decline.(198) Many of FWS's difficulties stem from the lack of cooperation from USFS and FWS's unwillingness to force the issue.(199) Without specific recovery criteria based on road building and timber harvest limitations, no reason emerges to predict a change in this approach.
b. The Need for Linkage Corridors Between Grizzly Population Segments
Another contentious assessment in the GBRP is FWS's dismissal of the need for linkage corridors between disjunct grizzly populations such as the Yellowstone population, which lies 240 miles from the nearest adjacent population.(200) Many scientists believe that linkage zones between disjunct populations are necessary for the long term viability of a species.(201) However, the application of this principle to grizzly bear populations is far from certain.(202)
DOI listed isolation of current populations as one of the original listing factors. To address this problem, FWS has initiated a five-year study to assess the linkage potential between the various ecosystems containing existing or potential grizzly populations.(203) Establishing linkage zones between the Yellowstone ecosystem and other grizzly populations is a difficult task because of the large distances involved and its isolation from other populations. The GBRP notes that linkage zones are not essential for delisting at this time,(204) yet FWS has not completed the scientific research designed to discover the importance and to determine future management activities regarding linkage zones--a seemingly arbitrary finding.
The GBRP's conclusions regarding linkage zones have led to a situation in which suitable habitat in linkage corridors may disappear before FWS can assess whether linkage corridors are in fact necessary for grizzly bear recovery.(205) FWS should at least wait to assess the findings of the scientific research on linkage zones before concluding that linkage zones are not essential. Restricting habitat destruction in linkage corridors while assessing their importance is far more sensible than the contrary approach taken by FWS, which may lead to a finding that linkage zones are important to recovery after habitat destruction has destroyed their viability. At the very least, the ESA mandates that FWS complete its findings before making a delisting determination.(206)
c. Population Recovery Criteria
FWS ran into trouble when it designated questionable recovery and monitoring criteria in the GBRP,(206) especially when plans to delist the Yellowstone population segment became known to the general public.(208) Environmental groups and some bear biologists criticized the recovery plan because of its lack of site-specific management actions and objective, measurable monitoring criteria, which are both required in recovery plans under the ESA.(209) Specifically, these groups argued that the recovery criteria did not address habitat protection, which they argued was the main cause of the bear's decline and the most critical factor in assuring the bear's future survival.(210)
The ESA provides direction for recovery plan ingredients, but does not provide normative criteria for determining when a species has recovered. One commentator suggests that the ESA gives FWS too much discretion in formulating criteria that define a recovered population.(211) FWS can temper this broad discretion and improve the efficacy of recovery planning for all species by including specific, normative recovery criteria that are amenable to accurate monitoring techniques and are consistent with current scientific knowledge regarding minimum viable population sizes. Adherence to the ESA's mandate to use only the best scientific evidence when formulating concrete recovery criteria should prevent the filtration of scientific research through economic and political values.(212) When the adherence of FWS's management actions to the requirements of the ESA becomes questionable, the judicial system fulfills the responsibility of ensuring that FWS gets back on track.
C. The 1993 Recovery Plan Goes to Court: Fund for Animals v. Babbitt(213)
In 1995, criticism of the current GBRP culminated in a lawsuit brought in the Federal District Court for the District of Columbia by the Fund for Animals, the National Audubon Society, and other environmental groups.(214) The court's decision in Fund for Animals v. Babbitt held that the GBRP contained the required site-specific management actions but sharply criticized the Plan's recovery criteria. The court essentially sent the Service back to the drawing board to come up with recovery criteria that address every factor discussed in the grizzly's original listing.
The court first upheld the validity of the GBRP's site-specific management actions. The ESA requires FWS to incorporate into a recovery plan "to the maximum extent practicable, a description of site-specific management actions ... necessary to achieve the plan's goal for the conservation and survival of the species."(215) The court interpreted the "site-specific" provision to require the action agency to consider separately the needs of each distinct recovery zone or ecosystem occupied by a listed species.(216) Thus, FWS need not draft a completely separate set of management actions for each recovery zone. FWS may instead draft boilerplate management actions for all recovery zones if, after FWS considers the needs of each zone separately, it determines that each zone requires the same management.(217)
The court then analyzed the GBRP and found that recommended management actions were largely the same for each recovery zone because FWS based most of the actions on common biological principles that apply to grizzly bear management.(218) The court noted that the GBRP does recommend different actions where the ecosystems actually differ.(219)
The plaintiffs further argued that FWS had not identified in enough detail the described management actions necessary for the conservation and survival of the species as required by the ESA.(220) The court agreed that the statute's wording requiring identification of actions "to the maximum extent practicable" imposes on FWS a clear duty to implement its recommended actions, but noted that FWS could not possibly address each and every factor that may potentially affect grizzlies.(221) Furthermore, the court found that a recovery plan need not be an "exhaustively detailed document" because other ESA provisions, such as section 7 restrictions on agency actions and section 9's ban on takings, limit activities that may adversely affect grizzlies or at least empower FWS to restrict threatening activities.(222)
The problem with this argument is that recovery and delisting of species is usually contingent upon the effectiveness of the recovery plan. If FWS needs to rely on other ESA provisions to successfully manage a species through recovery, then the recovery plan requirement becomes meaningless or at least ineffective.(223) Moreover, agencies have interpreted section 7 regulations in a manner that often incrementally moves a species towards jeopardy and away from recovery.(224) Consequently, section 7 decisions can actually end up harming species recovery and therefore cannot act as a substitute for recovery plan provisions as the court suggests.(225)
Section 9 provisions do prevent taking an endangered species on private or state land,(226) but section 10 allows private property owners with listed species or critical habitat on their property to have habitat conservation plans (HCPs) that allow incidental takings of those listed species.(227) This process also often incrementally pushes listed species away from recovery and towards jeopardy.(228) Therefore, the court misplaces its reliance on section 9 and section 7 to replace mandatory implementation of recovery plan recommendations.
The court then addressed the GBRP's recommendations for management of road building in bear habitat and protection of linkage zones.(229) The plaintiffs claimed that FWS already had access to sufficient data to designate maximum road densities in recovery zones and that the ESA requires current site-specific management actions before allowing delisting.(230) However, the court found that the GBRP's recommended interim standards were enough to satisfy ESA requirements.(231) Whereas interim standards may be sufficient to satisfy ESA recovery plan requirements, a delisting determination would probably require concrete, scientifically based standards.
The court held that FWS's assessment that linkage zones are not essential to delisting was not arbitrary, concentrating on both the GBRP's findings that no radio-collared grizzlies had attempted to move between recovery zones and the disagreement between scientists on the importance of linkage zones as evidence.(232) This reasoning fails to address that FWS decided linkage zones were not important to recovery before it conducted scientific research to assess the importance of linkage zones. Moreover, recent sightings of bears in areas where they have not been seen in decades calls into question the evidence that bears do not move through linkage zones.(233)
The court ultimately rejected FWS's recovery criteria because the ESA requires inclusion of objective, measurable criteria that will result in delisting according to section 4's provisions.(234) The court first noted FWS relied on statutory listing factors, with the exception of disease and predation, when listing the grizzly as threatened.(235) The court then noted that FWS may only remove a species from the list if the species no longer needs ESA protections.(236) Additionally, in assessing a delisting proposal, FWS must assess all technical and scientific data as related to the five listing factors in making a final determination.(237) It follows that if the ultimate goal of the ESA is to manage recovery of a species to the point where it no longer needs the ESA's protection, then any species recovery plan must address all the factors included in that species's original listing determination.(238) For this reason, the court found fault with the recovery plan.
The recovery criteria listed in the GBRP do not address all the reasons listed in the five-factor analysis conducted in the bear's original listing process.(239) The GBRP, at the time, described three recovery criteria based on observed females with cubs and human-bear incidents.(240) FWS disputed whether it had to design criteria that specifically addressed the five statutory listing factors. However, the court noted that Congress had explicitly indicated its intent: "The ESA states that the FWS `shall, to the maximum extent practicable,' Incorporate into the recovery plan `objective, measurable criteria which, when met, would result in a determination ... that the species be removed from the list.'"(241) Thus, the court concluded in no uncertain terms that FWS must address each statutory listing factor in designing objective, measurable criteria to monitor recovery and measure amelioration of threats to the bear.(242) To underscore this determination, the court even found that the recovery criterion addressing the threat of disease required consideration even though the threat of disease was not a factor in the bear's original listing.(243)
The court found that the existing recovery criteria, in addition to the threat of disease, did not address the following statutory listing factors: habitat management because the females with cubs criteria failed to measure present danger or destruction to grizzly bear habitat in areas beyond the borders of the recovery ecosystems, and the criteria could not assess the threat of habitat destruction or the habitat of a larger, recovered bear population; over-utilization of the species because the human-caused mortality criterion did not adequately address the threat caused by grizzly predation of livestock; the inadequacy of existing regulatory mechanisms because FWS relied on a promise that the as yet undeveloped Conservation Strategy would address this factor; and the other natural or artificial threats because the recovery criteria did not adequately address the isolation of grizzly subpopulations.(244) The court's opinion essentially sent FWS back to the drawing board to come up with an adequate recovery plan addressing all the court's concerns, particularly the five statutory listing factors.
D. FWS's Response to the Federal Court's Remand to Reformulate the Grizzly Bear Recovery Plan
After four years of subsequent inaction by FWS, the Earthjustice Legal Defense Fund on February 5, 1999 announced plans to sue FWS on behalf of nineteen other environmental organizations.(245) The groups complained FWS had not addressed deficiencies in the GBRP and argued the agency must find a more effective way to count grizzly populations.(246) FWS then responded to the federal court's remand and attempted to establish new management criteria for the GBRP.
1. FWS's Findings on Issues Remanded by the Federal Court in Fund for Animals v. Babbitt
FWS released a memorandum on May 20, 1999 detailing its findings on the issues remanded by the federal court in Fund for Animals v. Babbitt.(247) Additionally, following a settlement agreement between the involved parties,(248) FWS agreed to hold a workshop to allow non-agency scientists to present their views on grizzly bear habitat, to consider comments received at the workshop, and to establish habitat-based recovery criteria for a particular ecosystem before proposing delisting the grizzly in that ecosystem.(249)
The three main issues remanded by the federal court that affect the Yellowstone grizzly population were the lack of objective, measurable criteria that assess threats to bear habitat; the reasonableness of FWS's population monitoring criteria; and the failure to include measurable criteria addressing genetic isolation.(250) FWS addressed the preparation and inclusion of habitat-based criteria in a separate document discussed below.(251)
First, after notice and comment, FWS outlined its findings on the adequacy of the recovery plan's current population-based recovery criteria. Despite the federal court's finding that the three recovery criteria were inadequate to address the five statutory listing factors,(252) FWS decided to continue use of the three population monitoring systems because the criteria provide valuable and useful information.(253) FWS explained that the treatment and gathering of the population data, not the methods themselves, were defective.(254) FWS admitted that the criteria were insufficient to monitor habitat availability, but declined to change the population recovery criteria.(255) The sufficiency of these criteria remains to be seen and cannot be effectively judged until the proposed habitat-based criteria are incorporated into the recovery plan.
FWS also addressed the lack of objective measurable criteria assessing genetic isolation in the recovery plan. The federal court, after noting that the original listing determination cited biological isolation of bear subpopulations as a listing factor, found that the GBRP recovery criteria did not consider genetic isolation as required.(256) In its findings, FWS noted the existence of new scientific methods to monitor genetic diversity changes and pledged to apply these new methods to the recovery plan.(257)
However, it is important to note that FWS may not propose delisting until it establishes criteria for assessing genetic isolation and includes them in the recovery plan, together with means to preserve habitat in linkage zones if necessary. In Fund for Animals v. Babbitt, the court noted that the promise of future inclusion of recovery plan criteria is not good enough.(258) FWS's findings left incorporation of habitat-based recovery criteria to a later date.(259)
2. FWS's Proposed Habitat-Based Recovery Criteria
After holding a workshop to gain input from non-agency scientists on formulating habitat-based criteria, FWS published its findings for review and comment on November 15, 1999.(260) The notice document lists five specific habitat-based criteria: "manage motorized access; maintain or increase secure habitat; limit further site development; maintain or improve existing levels of Habitat Effectiveness in secure habitat; [and] limit further livestock grazing."(261) The document also lists four general habitat-based parameters: "the four most important grizzly bear foods; habitat effectiveness monitored within the CEM [Cumulative Effects Model] in each subunit and BMU [Bear Management Unit]; nuisance bear control actions, bear-human conflicts, bear-hunter conflicts, and bear livestock conflicts: [and] development on private lands."(262) These habitat-based criteria appear to address all five original listing factors, and, if included after further notice and comment, they could finally lead to the creation of a satisfactory recovery plan under the ESA.
E. Is the Current Delisting Proposal Legal or Even Advisable According to ESA Requirements?
This Comment concludes that FWS, through improved management and decision making under the direction of the federal judiciary, is close to formulating an adequate recovery plan that complies with the ESA. The current GBRP does not comply with the ESA because it does not address the five criteria listed in the bear's original listing determination, particularly conservation of remaining habitat. However, inclusion of proposed habitat-based criteria and of criteria to monitor genetic isolation effects may bring the plan into ESA compliance.(263) Unfortunately, full recovery of a listed species may require more than just an ESA compliant recovery plan. Even if a recovery plan complies with the ESA, it is unclear whether implementation of the plan will actually return a species to a level where delisting would be advisable. The problem is twofold. First, agencies such as USFS are not, or at least have not been, required to implement recovery plan recommendations outside of the section 7 duty to consult,(264) and second, even agencies that are required to implement recovery plans are under no mandate to enforce specific recovery plan recommendations.(265)
Section 4(f) by itself apparently does not obligate agencies other than those within the Departments of Interior and Commerce to implement specific directives contained in recovery plans.(266) One commentator has concluded that implementation of recovery plans is apparently only required of FWS and NMFS, because those agencies are responsible for preparing and approving recovery plans.(267) However, the responsibility for implementing recovery plan recommendations includes all agencies under the command of the two Secretaries.(268) While this includes most of the agencies responsible for managing the public lands, it leaves out one very important agency--the Forest Service.
Additionally, the contents of the recovery plan, beyond the requirement that the plan must address all five listing factors, are for the most part discretionary.(269) FWS must currently rely on section 7 to regulate federal actions, such as timber cuts on National Forest land and section 10 limits on private taking of endangered species, to indirectly enforce recovery plan management guidelines.(270) However, FWS's sparse track record of issuing section 7 jeopardy opinions when reviewing timber sales is a concern.(271) Another possibility, beyond including recovery plan requirements in section 7 consultation opinions through enforcing section 7(a)(1), is inclusion of recovery plan management guidelines in federal land management plans such as USFS Land Resource Management Plans (LRMPs) required by the National Forest Management Act of 1976 (NFMA).(272)
If FWS continues to ignore the section 7(a)(1) duty to conserve when consulting with USFS, the current GBRP is limited to federal land managed by the Bureau of Land Management (BLM), FWS, and NPS. As the grizzly bear, like any endangered species, does not recognize such political boundaries, even a fully compliant recovery plan may ultimately be inadequate.
Further, it is very important to note that the GBRP represents a highly detailed and intensively researched recovery plan. Most species do not enjoy the spotlight that a charismatic megafaunal creature such as the grizzly enjoys. Many of these species have simple, narrative plans with few or no detailed management recommendations, and some species have no recovery plan at all.(273) Hence, the problems FWS has encountered in drawing up a recovery plan for the grizzly bear are likely magnified for these less captivating species.
V. WHAT PROTECTIONS WOULD REMAIN TO ENSURE CONTINUED RECOVERY IF FWS MAKES A FINAL DETERMINATION TO DELIST THE GRIZZLY BEAR?
The ESA lists several requirements for continued monitoring and protection should the Secretary make a final determination to delist a species and remove ESA protections.(274) In practice, FWS formulates a conservation strategy that includes the new post-delisting requirements for a recovered or soon to be recovered species. In its drive to delist the Yellowstone grizzly bear population, FWS recently released a draft conservation strategy outlining management procedures designed to ensure continued recovery after delisting.(275) This Part analyzes the ESA's post-delisting requirements and assesses the real life application of these requirements in the draft conservation strategy for the Yellowstone grizzly bear.
A. Protections Remaining After FWS Delists a Species
The original ESA contained no requirements for continued protection of a delisted, recovered species.(276) This seems shortsighted and counterproductive because it is easily foreseeable that sudden removal of all protection will lead to a decline in that species's population to the point where the species may need relisting again. This could result in a potential yo-yo effect of continued delisting and relisting. The 1988 ESA amendments attempted to address this situation.(277)
The amendments added recovered species monitoring requirements to section 4.(278) The new section requires the Secretary to cooperate with affected states in implementing a system to effectively monitor any recovered species for at least five years after its removal from the ESA protected species list.(279) This section also provides for emergency relisting of a species if a "significant risk" to its "well being" develops at any time after delisting.(280)
Whereas the ESA itself does not contain any requirements for the structure of this mandatory monitoring system, Congress envisioned a collaboration between FWS and the states to determine the extent and intensity of monitoring needed for a particular species, perhaps requiring data collection of population trends, other demographic characteristics, and habitat attributes.(281) Congress also recognized the need for communication and coordination with other federal and state agencies, the scientific and academic community, and private conservation organizations.(282)
Additionally, the continued recovery of many species must be assisted by other protections such as the Migratory Bird Treaty Act of 1918,(283) the Bald Eagle Protection Act,(284) the Lacey Act,(285) the National Wildlife Refuge System Administration Act of 1997,(286) the Federal Land Policy and Management Act (FLPMA),(287) NFMA,(288) as well as state and local regulations.(289) Whether these additional protections, plus the section 4 monitoring requirements are enough to allow continued recovery after delisting is difficult to assess because, to this date, so few species have sufficiently recovered to allow delisting.(290) One commentator concluded that regulatory protection of species outside the ESA is currently ineffective because current protections do not adequately address significant threats to habitat degradation and predation by invasive species--the two leading threats to listed species.(291) In the next section, this Comment attempts to analyze some of the regulatory protections outside the ESA by analyzing FWS's recently developed conservation strategy for the Yellowstone population of the grizzly bear in the event FWS delists the bear in the near future.(292)
B. Draft Conservation Strategy for the Yellowstone Population of the Grizzly Bear
The Conservation Strategy (CS) provides management objectives and monitoring requirements to preserve and continue the recovery of the Yellowstone grizzly bear if FWS decides to delist the species.(293) The CS begins by defining a Primary Conservation Area (PCA) of 9,209 square miles(294) containing Yellowstone and Grand Teton National Parks and surrounding areas that harbor suitable habitat.(295) The CS also delineates a ten mile zone around the PCA into which FWS anticipates a recovered population will disperse.(296) Federally managed land accounts for 98.3 percent of the PCA's total area. However, significant portions of the ten mile population expansion zone are privately owned.(297) It should be noted that the Yellowstone grizzly's CS may differ from those of some other nearly recovered species because it has such a high proportion of federally managed land in its PCA.
The CS provides for creation of a Yellowstone Grizzly Management Committee to act as a forum for implementing the CS in the PCA.(298) The CS essentially borrows management situations 1 and 2 from the Interagency Grizzly Bear Guidelines to provide an overall management direction.(299) Within the PCA, the CS emphasizes management activities that maintain habitat, minimize bear-human conflicts, and favor the needs of the grizzly over other land uses.(300) Outside the PCA, on lands containing valuable potential grizzly habitat, the CS prioritizes minimization of human-bear conflicts and provides for accommodation of grizzly bear needs with other land use practices whenever possible.(301) However, state nuisance bear guidelines will manage bears that frequent developments outside the PCA such as campgrounds, homes, and resorts.(302) Unfortunately this may create a situation in which these areas become population sinks for an expanding population.(303) If the CS does nothing to limit development in areas outside the PCA that contain suitable habitat, the potential for the bear's recovery and expansion is significantly reduced.(304)
The CS also contains population and demographic criteria specific to the Yellowstone PCA for monitoring population status. Both criteria are the same as the current recovery criteria and goals in the GBRP(305) with the additional goal of a stable or increasing population.(306) The CS also states that the primary reason for the current recovery of the Yellowstone population is the significant reduction of human-caused mortality.(307) Hence, the CS calls for continued mortality reduction actions within the PCA and implementation of similar actions outside the PCA.(308) However, the success of these management techniques requires the inclusion of habitat-based criteria in the recovery plan.
The agencies involved in grizzly bear recovery agreed whatever habitat-based criteria are eventually included in the GBRP, the same criteria should also be maintained after recovery to assure continued recovered status.(309) Hence, FWS will include in the CS any draft habitat-based criteria approved after review and comment.
Of particular importance to recovery is conservation of the bear's four main food items. Currently, two of these food sources, the whitebark pine and the cutthroat trout, are under threat,(310) and a third, the army cutworm moth, has received little protection thus far.(311) If FWS delists the Yellowstone population in the near future, these food items may or may not exist at a level sufficient to maintain recovery. This problem is exacerbated by the encroachment of private development into the valleys surrounding the Park.(312) If a primary food source fails, grizzlies move down into the valleys and lowlands to find food, leading to increased human-bear conflict at a time when the bears are at their most vulnerable.(313) Consequently, major food shortages could quite easily lead to a reversal in recovery trends. Therefore, inclusion of habitat monitoring parameters at sufficient levels to conserve all four main food items is essential to maintain a viable conservation strategy.
Maintenance of grizzly populations at or above the proposed recovery objectives depends on sufficient monitoring and evaluation, which, in turn, depends on adequate appropriations to the involved agencies to carry out this work.(314) However, the CS only requires monitoring of habitat parameters within the PCA and only encourages monitoring outside the PCA.(315) While monitoring is admittedly appropriations dependent, monitoring of habitat-based criteria outside the PCA is essential to continued recovery because suitable habitat outside the PCA is under constant threat from development and deforestation. Allowing destruction of this habitat due to a lack of monitoring and protection prevents population expansion and continued recovery. The CS also contains provisions for a coordinated information and education campaign(316) and nuisance bear guidelines allowing lethal control only of bears displaying unnatural aggression.(317)
Finally, the CS documents existing authorities relating to grizzly bear protection that would provide enforcement options to apply the CS's management recommendations.(318) For instance, other federal statutes have the potential to help protect the grizzly after delisting.
First, the Lacey Act makes it illegal to import or export illegal bear parts.(319) Poaching is currently a problem even with ESA protection. A lucrative black market exists for grizzly bear gall bladders illegally exported to Asian countries for use in herbal teas and aphrodisiacs.(320) The CS does not address this problem, and therefore, it is unclear whether current anti-poaching patrols will continue after delisting.
Second, NFMA provides that for each National Forest USFS must produce LRMPs that specify guidelines for maintaining diverse plant and animal communities.(321) USFS has interpreted these requirements to require forest management that "maintain[s] viable populations of existing native and desired non-native vertebrate species" by providing sufficient, well distributed habitat necessary to support a minimum number of reproductive individuals.(322)
The CS cites current LRMPS for National Forests containing grizzlies or suitable grizzly habitat.(323) The inconsistency of levels of protection proposed for a delisted grizzly population in each LRMP is a cause for concern. However, the CS notes that USFS will classify the bear as a sensitive species should delisting occur.(324)
A sensitive species listing results in USFS management of the grizzly populations and habitat with special emphasis to ensure continuing viability and to preclude a trend towards endangerment.(325) The Forest Service Manual requires an analysis of any adverse effects on populations or habitat and requires the establishment of population viability objectives for decisions that may significantly reduce a species's population.(326) A USFS listing of grizzly bears as a sensitive species is consistent with continued recovery under the CS. FWS, however, should require consistent implementation of management guidelines and monitoring in each National Forest containing suitable grizzly habitat before approving the CS.
Third, Congress enacted FLPMA(327) in 1976 to guide BLM in managing public lands under its authority. While no areas of the Yellowstone PCA contain BLM lands, other grizzly populations and recovery zones for other listed species may contain a proportion of lands managed by BLM. FLPMA provides for BLM land management in a manner that protects scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values.(328) FLPMA basically requires BLM to treat conservation of resources under its multiple use mandate more seriously than it has in the past, but does not require BLM to give wildlife needs any kind of preference. In essence, FLPMA is an added procedural tool that requires agency stewardship of environmental qualities, including grizzly habitat values listed in the CS, on an equal footing with other more traditional uses on BLM land.
Fourth, NPS must conserve wildlife in the National Parks for the enjoyment of future generations.(329) Whereas this mandate in most cases ensures that NPS follows management recommendations for listed species in recovery plans and conservation strategies, the Service still retains discretion to interpret which conservation measures are necessary to comply with its mandate for individual species.(330) In the case of the Yellowstone grizzly, NPS's management actions are heavily intertwined with the management recommendations created by FWS. However, even here, NPS has, in one case, refused to apply certain recommendations set out in an earlier version of the GBRP regarding closure of campsites in core grizzly habitat.(331)
Various federal protections serve to implement CS management and monitoring guidelines on federal land. Management on state and private lands, however, is left to the whim of state agencies and statutes. Management on state lands is particularly important because it was the lack of habitat protection and lax hunting regulations on state land that forced the last remaining grizzlies into federally owned enclaves such as Yellowstone National Park in the first place.(332) Researchers have repeatedly emphasized comprehensive management of grizzly bears and bear habitat, but delisting would allow different management strategies in different states on non-federal land.(333) Although the Yellowstone PCA contains only small amounts of non-federal land, the population expansion zone and surrounding areas contain much larger proportions of state and private land.(334) Additionally, conservation strategies for other grizzly populations, should they recover, are likely to contain far larger proportions of state and private land.
The CS does, however, commit all federal and state agencies signing it to continued monitoring and evaluation of CS requirements and to securing the necessary funds to implement the CS.(335) Hence, for the most part, the CS relies on each state's commitment to managing grizzly bear recovery on state land. This may not seem wise in light of the political viewpoints of the congressional representatives and the history of maximizing natural resource extraction in the states where the grizzly still roams. The CS does make a delisting decision contingent on Montana changing a state law allowing citizens to kill grizzlies that threaten livestock.(336) However, the CS allows state regulation of hunting while maintaining control over certain aspects such as open seasons and bag limits.(337)
It is difficult to see how the Yellowstone grizzly population can continue to recover and expand without the continued protection of the ESA, especially on state and privately owned lands. FWS has struggled to protect the grizzly under the ESA and has tried and failed in many instances to protect grizzly habitat even on federal land. FWS cannot ensure continued protection and recovery in the event that a population expansion pushes more young grizzlies on to state and private land.(338) Indeed, retired FWS biologist, Dick Knight--responsible for overseeing grizzly protection and recovery for many years--stated that he "can imagine people out there with chain saws and herds of sheep ready to move in when the bear population is delisted."(339) This is not exactly a ringing endorsement for delisting. However, the ESA does provide a safety net by allowing emergency relisting if recovery stutters after delisting.(340)
IGBC Director, Chris Servheen, extols emergency relisting as a hammer over the states to ensure continued recovery through management according to the CS.(341) Unfortunately, the realities of emergency relisting the grizzly bear are far from certain if recovery efforts under the CS go awry. Conservative western politicians aligned under the Wise Use movement, real estate developers, and livestock ranchers, to name a few, would likely ardently oppose any emergency relisting.(342) The vehement political opposition surrounding the recent decision to introduce an experimental population of grizzly bears to the Bitterroot wilderness spanning central Idaho and Western Montana provides a stark example.(343) Admittedly, FWS has been successful so far in pursuing this objective, but Idaho politicians have hired outside counsel to legally fight the reintroduction plans.(344) Emergency relisting of the grizzly after a delisting decision may incur even more political opposition. The resulting scenario of a declining grizzly population with an emergency relisting decision mired in political turmoil is easily foreseeable. Without enforcement authority, the CS could all too easily become a paper tiger touting grizzly recovery measures as cold reality sees the grizzly slipping into oblivion.
C. Nearing the End of the Process: Is Delisting on the Horizon?
Currently, FWS cannot support its plan to delist the Yellowstone population of the grizzly bear with the "best available scientific data." A federal district court has declared FWS's recovery plan inadequate.(345) Therefore, a decision to delist the bear based on the current recovery criteria contained in this plan would be illegal. However, once habitat-based recovery criteria are finalized and included in the GBRP, FWS may have complied with the requests of the court in Fund for Animals v. Babbitt and could be in a position to delist the Yellowstone population of the grizzly bear once recovery criteria are met. However, FWS must also formulate an adequate conservation strategy that would ensure the bear's continued recovery should delisting occur. Issues such as habitat destruction through National Forest Service road building and logging activities, and bear-human interactions are not addressed in the current conservation strategy.(346)
The plight of the grizzly is particularly important because the grizzly acts as an umbrella species for countless other species that rely on similar habitat criteria.(347) The grizzly bear saga is a typical example of the problems FWS faces in managing and recovering listed species. The Clinton Administration's political pressure to delist species appeared fraught with problems because the scientific evidence at that time did not add up to legal delisting determinations for many species. Until this political pressure eases through reauthorization of the ESA or a congressional consensus on the legitimacy of current scientific biological theories and principles, FWS's task will not get easier.(348) However, FWS can work more effectively within the confines of the current ESA to improve recovery plans and ensure that management decisions under section 4 are based on scientific evidence only as the Act requires.
This case study shows that FWS can effectively manage and help recover some listed species under the ESA by learning from past mistakes through adaptive management principles, by basing decisions on accurate and extensive scientific data, and by receiving added direction from the federal judiciary when the agency goes astray. However, it is not clear whether recovery planning is enough to recover populations of all listed species to the point of delisting; it may not even be enough to save some species from extinction.(349)
The current emphasis on delisting assumes that delisting is easy to achieve for many species. This assumption indicates that only a few delistings occurred in the past because of problems with the ESA rather than because of biological reality. This emphasis also assumes delisting will result in fewer limitations on human activities that affect those species, which magnifies the benefits of delisting and thereby creates greater pressure to delist.(350) A more sensible approach is to recognize the ESA is capable of recovering some species, but for certain species that may never reach the point of recovery where delisting is warranted, FWS should acknowledge the role of the ESA is one of continued management and protection.(351)
VI. TO REAUTHORIZE OR NOT TO REAUTHORIZE?
Congress passed the ESA in 1973 in response to a powerful environmental movement induced by newly discovered scientific principles forecasting the planet's doom at present rates of consumption. The mood today is markedly different. FWS under the Clinton Administration has recently engaged in a struggle to make the ESA more palatable to detractors in Congress.(352) One method has been a misguided new policy to increase delisting of conspicuous species. FWS has not based many of the recent delisting proposals, in particular the grizzly bear, on the best available scientific evidence as the ESA requires.(353) Continuation of this policy may further increase opposition to the ESA if FWS delists species before they have fully recovered. Such determinations are not in the spirit of the Act and are likely to lead to subsequent declines in the populations of delisted species with the probable side effect of requiring unpopular emergency relisting decisions. The post-delisting provisions contained in section 4(g) create an effective framework for FWS to ensure continued recovery of a species after delisting but only if FWS's initial determination to delist that species is scientifically informed and legally supportable.
As Congress struggles to reauthorize this powerful safeguard of our most vulnerable wildlife, new scientific insight into the machinations of mother earth calls into question the ESA's basic purpose.(354) The trend emphasizing protection of biodiversity over the protection of individual species is one such insight. The criticism is that the ESA focuses too heavily on individual species and ignores more subtle changes in biodiversity and ecosystem health.(355) However, the goals of protecting biodiversity and individual species can complement one another. Measures to protect individual listed species under the ESA also conserve species with similar habitat requirements that fall under a listed species's umbrella of protection.(356) Legislation to authorize an Ecosystem Protection Act(357) could address concerns that the ESA does not do enough to conserve ecosystems, but, in the meantime, proper agency application of current ESA guidelines with consistent and informed judicial oversight must suffice.
To protect sufficient habitat to enable a listed species such as the grizzly bear to recover, the ESA must require that all agencies implement recovery plan directives. Reliance on section 7 consultations with FWS cannot replace a direct mandate that all agencies shall implement recovery plan directives. Section 7 biological opinions allowing agency actions to go forward with conditions to minimize jeopardy to listed species potentially create a series of incremental steps towards jeopardy and send species on trends away from recovery.(358) Therefore, reliance on section 7 consultation cannot replace direct implementation of recovery plan directives because the two are incongruent.
However, reauthorization is unlikely in the near future and any reauthorization under the current administration and Congress would likely weaken and not strengthen the Act. If FWS requires that other agencies follow its recovery plan and conservation strategy management recommendations when engaged in section 7 consultations, alteration of the Act to enforce these requirements on other agencies is rendered unnecessary. The current ESA actually contains a mechanism that FWS could use to enforce recovery plan requirements on other agencies. This mechanism, found in section 7(a)(1), counters the incremental damage of individual agency actions approved under section 7(a)(2). The section 7(a)(1) mandate requires other agencies, with the assistance of the Secretary during consultation, to implement programs that conserve species.(359) FWS has compiled a lengthy, detailed handbook covering the consultation process required by section 7(a)(2),(360) but has no equivalent or any regulations pertaining to implementing conservation programs required by section 7(a)(1).(361) Enforcement of section 7(a)(1) by FWS requiring other agencies to implement recovery plan directives obviates any need to reauthorize the ESA to require all agencies to implement recovery plan requirements.
Further, the judicial system must provide consistent, informed, and effective review of challenged agency decisions regarding endangered species. Agency interpretation and actions under the current array of environmental statutes require progressively more competent and complicated knowledge of the sciences. The federal judicial system does not currently require its members to have the kind of scientific expertise or background that is often necessary to sift through complicated scientific data in agency decision-making records.(362) One solution could be to assign ESA cases to particular judges having the necessary biological and ecological background and experience. Another possible solution would be to form a specific environmental court similar to those already in place in other countries.(363) Creating a new federal judicial branch would not be unprecedented, as evidenced by the current bankruptcy, tax, and federal claims courts. Judges qualified for an environmental court would have the necessary education and background in the environmental sciences to formulate the consistent, scientifically sound decisions that suits involving endangered species often require. Such a judicial branch or specially appointed ESA judges would create more effective oversight of agency decisions involving species listed under the ESA and also decisions involving a wide array of other environmental statutes.
Satisfactory management of listed species can be achieved under the current version of the Endangered Species Act. The ESA is a powerful and effective piece of legislation and can shape the recovery of many listed species if FWS aggressively and consistently interprets the Act according to the policies that justified its inception(364) and if the judiciary provides consistent and informed oversight when the public challenges FWS's management of listed species.
Managing endangered and threatened species through recovery and delisting, and monitoring and implementing conservation strategies to maintain delisted status, is an extremely complicated and difficult process. The current ESA burdens this process in some aspects, but political and economic influences are the major detrimental effects hindering agency decisions that legally should exclude these influences. The grizzly bear is a perfect example of the complexity inherent in the recovery and delisting process. Effective results require high performance, effective management in the face of various influences and stricter adherence to the requirements of the ESA coupled with more consistent judicial enforcement of these requirements. The future existence of the magnificent grizzly bear, the suite of species intertwined with its life history, and all other species suffering the detrimental effects of an expanding human population depend on it.
A delisted grizzly population may hang on for many decades within the confines of its current range, but only a protected population has an opportunity to expand and recolonize much of its former range. Only then will the spire be returned to Leopold's edifice and a day will dawn when a fish and wildlife service biologist catches sight of the great bear lumbering up the verdant, and once more complete, slopes of Escudilla.
(1) ALDO LEOPOLD, A SAND COUNTY ALMANAC 145-46 (Oxford Univ. Press 1970) (1949).
(2) Louisa Willcox, The Last Grizzlies of the American West: The Long Hard Road to Recovery, ENDANGERED SPECIES UPDATE, Sept.-Oct. 1997, at 11; see also DANIEL J. ROHLF, THE ENDANGERED SPECIES ACT: A GUIDE TO ITS PROTECTIONS AND IMPLEMENTATION 38 (1989).
(3) Amendment Listing the Grizzly Bear of the 48 Coterminous States as a Threatened Species, 40 Fed. Reg. 31,733, 31,734 (July 28, 1975). The Endangered Species Act (ESA) defines each of the six listed grizzly populations as a separate species thus subject to separate management for each population. 16 U.S.C. [sections] 1532(16) (1994) ("The term `species' includes ... any distinct population segment of any species of ... wildlife which interbreeds when mature.").
(4) 16 U.S.C. [subsections] 1531-1544 (1994).
(5) Willcox, supra note 2, at 11.
(6) TODD WILKINSON, A Grizzly Future, in SCIENCE UNDER SIEGE 65, 66 (1998) (describing the proposed announcement made at the Interagency Grizzly Bear Committee annual year-end summit). More recently, FWS has determined that the Yellowstone grizzly population has attained or is very close to attaining set recovery goals paving the way for a delisting proposal. See infra Parts IV & V.
(7) 16 U.S.C. [sections] 1531(b) (1994 & Supp IV 1998).
(8) Id. [sections] 1533(a)(1). The five 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." Id.
(9) Id. [sections] 1533(b)(1)(A) (1994) (emphasis added).
(10) Id. [sections] 1533(b)(3) (1994 & Supp. IV 1998). Congress added this requirement in 1982 in response to concern that the Secretary had improperly listed certain species. Pub. L. No. 97-304 [section] 2(b) (1982). See also H.R. REP. No. 97-567 (1982), reprinted in 1982 U.S.C.C.A.N. 2822.
(11) 50 C.F.R. [sections] 424.11(b) (1999).
(12) Id. [sections] 424.11 (d). The three reasons are: 1) the species is clearly extinct; 2) the species has recovered "to a point at which protection under the Act is no longer required": or 3) the original data used to list the species is in error. Id.
(13) Id. [sections] 424.11(d)(2) (2000).
(14) Endangered and Threatened Wildlife and Plants; Final Rule to Remove the American Peregrine Falcon (Falco peregrinus anatum) from the Federal List of Endangered and Threatened Wildlife and to Remove the Similarity of Appearance Provision for Free Flying Peregrine in the Conterminous United States, 64 Fed. Reg. 46,542 (Aug. 25, 1999) (codified at 50 C.F.R. pt. 17). In addition, the Secretary has proposed delisting the bald eagle (Haliaeetus leucocephalus), Endangered and Threatened Wildlife and Plants; Proposed Rule to Remove the Bald Eagle in the Lower 48 States from List of Endangered and Threatened Wildlife, 64 Fed. Reg. 36,454 (July 6, 1999) (codified at 50 C.F.R. pt. 17), and the Aleutian Canada goose (Branta Canadensis leucopareia), Endangered and Threatened Wildlife and Plants; Proposal to Remove the Aleutian Canada Goose from List of Endangered and Threatened Wildlife, 64 Fed. Reg. 42,058 (Aug. 3, 1999) (codified at 50 C.F.R. pt. 17). Between 1973 and 1978 the Secretary only delisted the four species due to recovery: the brown pelican (Pelcanus occidentalis), American alligator (Alligator mississippiensis), gray whale (Eschrichtius robustus), and Arctic peregrine falcon (Falco peregrinus tundrius). CONGRESSIONAL RESEARCH SERVICE REPORT FOR CONGRESS, 106TH CONG., REPORT ON ENDANGERED SPECIES LIST REVISIONS: A SUMMARY OF DELISTING AND DOWNLISTING 4-8 (1998) [hereinafter CRS REPORT].
(15) Press Release, Department of the Interior, Babbitt Announces New Policy, Plans to Delist Endangered Species, 1 (May 6, 1998), available at 1998 WL 237037 (D.O.I.) [hereinafter Babbitt Announces New Policy] (stating that "the Service will make a priority to delist and downlist more than two dozen birds, mammals, fish, and plants").
(16) FWS announced in December 1993 that it intends to delist the Yellowstone grizzly population despite its previous consistent recommendations against delisting. WILKINSON, supra note 6, at 66. FWS had denied two petitions to delist several populations including the Yellowstone and Northern Continental Divide populations in 1992. Endangered and Threatened Wildlife and Plants; Notice of Finding on a Petition to Change the Status of the Grizzly Bear Populations in Yellowstone Grizzly Bear Ecosystem and Northern Continental Divide from Threatened Recovery, 58 Fed. Reg. 43,857, 43,857-43,901 (Aug. 18, 1993): Endangered and Threatened Wildlife and Plants: Notice of Finding on a Petition to Change the Status of the Grizzly Bear Populations in Yellowstone Grizzly Bear Ecosystem and Northern Continental Divide from Threatened Recovery, 59 Fed. Reg. 46,611 (Sept. 9, 1994). See also Fish and Wildlife Denies Petitions to Delist, Change Status of Grizzly, 1993 Daily Env't News (BNA) 158d8 (Aug. 18, 1993), available at 1993 WL DEN 158d8. FWS then fired its Chief Biologist, David Mattson, after he criticized this mysterious turnaround. Mattson had outlined several scientific reasons proving that the two populations had not sufficiently recovered and had noted that the recovery plan had not addressed all the listing factors, specifically habitat destruction. See WILKINSON, supra note 6, at 68 (noting that the Committee "ignored vital information that Mattson had spent more than ten years publishing in scientific journals").
(17) See Babbitt Announces New Policy, supra note 15, at 1.
(18) 50 C.F.R. [sections] 424.20 (2000) (outlining emergency re-listing procedures).
(19) See THOMAS LUND, AMERICAN WILDLIFE LAW 57-67 (1980) (citing examples of tremendous waste of wildlife resources during the nineteenth century due to a combination of the seemingly boundless excesses of wildlife and the scientific ignorance at that time). Several previously common species including the passenger pigeon, the great auk, and the Florida parakeet were hunted to extinction during this time. Id.
(20) ROHLF, supra note 2, at 20. For a more detailed account of the environmental movement from the 1960s through the 1980s, see VICTOR B. SCHEFFER, THE SHAPING OF ENVIRONMENTALISM IN AMERICA (1991).
(21) The Endangered Species Preservation Act of 1966, Pub. L. No. 89-669, 80 Stat. 926 (1966), and the Endangered Species Conservation Act, Pub. L. No. 91-135, 83 Stat. 275 (1969). For a brief description of each, see ROHLF, supra note 2, at 21.
(22) Pub. L. No. 92-522, 86 Stat. 1027 (1972) (current version codified at 16 U.S.C. [subsections] 1361-1407 (1994 & Supp. IV 1998)).
(23) 16 U.S.C. [subsections] 1531-1544 (1994 & Supp. IV 1998).
(24) Id. [sections] 1531 (a)(3).
(25) Id. [sections] 1531 (a)(4).
(26) Federal courts have interpreted section 9's prohibition on taking endangered or threatened species to include destruction or modification of a listed species's habitat on public or private land. See, e.g., Palila v. Hawaii Dep't of Land & Natural Res., 649 F. Supp. 1070 (D. Haw. 1986), aff'd, 852 F.2d 1106 (9th Cir. 1988). The Secretary of the Interior has also promulgated regulations interpreting the meaning of the word "harm" under the take prohibition to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 50 C.F.R. [sections] 17.3 (2000). The Supreme Court confirmed this interpretation in Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Oregon, 515 U.S. 687 (1995) (upholding the Secretary's regulations as a reasonable interpretation of the word "harm").
(27) "Antipreservationists," particularly developers, lobby Congress and executive offices to protect individual interests when a listed species or critical habitat gets in the way of a personal investment, such as building a subdivision or a golf course. See STEVEN YAFFEE, PROHIBITIVE POLICY: IMPLEMENTING THE FEDERAL ENDANGERED SPECIES ACT 138 (1982). Lawsuits are also a powerful weapon. A trophy hunting interest group threatened to sue FWS when FWS listed several game animals worldwide. Id. Shortly after, FWS reviewed the status of two of these species. Id. One commentary went so far as to analogize the presence of listed species on private property to the colonial requirement to quarter troops on private property during the Revolutionary War, which the Third Amendment subsequently outlawed. Andrew P. Morriss & Richard L. Stroup, Quartering Species: The "Living Constitution," The Third Amendment, and the Endangered Species Act, 30 ENVTL. L. 769 (2000) (although the authors' analogy, to some extent, was admittedly tongue-in-cheek).
(28) The ESA refers to the Secretary of the Interior in its instructions for implementation and enforcement. The Secretary has delegated this responsibility to FWS, and therefore, this Comment uses the terms "Secretary" and "FWS" interchangeably.
(29) 16 U.S.C. [sections] 1533 (1994 & Supp IV 1998).
(30) Id. [sections] 1533(b)(1)(A).
(31) In 1982, Congress became concerned that the 1978 ESA amendments had caused unnecessary delays in listing species by allowing consideration of non-biological factors. Therefore, Congress deliberately reinforced the "based solely on scientific or commercial evidence" mandate by altering section 4 in several instances during the 1982 ESA amendments. H.R. REP. 97-567, at 9 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2819 (stating that "the principal purpose of the amendments to section 4 is to ensure that decisions pertaining to the listing and delisting of species are based solely upon biological criteria and to prevent non-biological considerations from affecting such decisions").
(33) Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978). The Supreme Court, quoting legislative history, specifically mentioned the grizzly bear as an example of a species not yet listed that required the ESA's protection to prevent its extinction in the lower 48 states:
"Another example ... [has] to do with the continental population of grizzly bears which may or may not be endangered, but which is surely threatened.... Once this bill is enacted, the appropriate Secretary ... will have to take action to see that this situation is not permitted to worsen, and that these bears are not driven to extinction. The purposes of the bill include the conservation of the species and of the ecosystems upon which they depend, and every agency of government is committed to see that the purposes are carried out.... [T]he agencies of Government can no longer plead that they can do nothing about it. They can, and they must. The law is clear."
Id. at 183-84 (quoting 119 CONG. REC. 42,913 (1973) (statement of Rep. Dingell (D-Mi.))). The current FWS would do well to heed these words today before removing the bear's current protection under the ESA.
(34) Id. at 155.
(35) Id. at 154.
(36) 16 U.S.C. [sections] 1533 (1994 & Supp IV. 1998).
(37) Id. [sections] 1536(a)(2).
(38) Id. [sections] 1538(a)(1).
(39) Id. [sections] 1539(a). Section 10 achieves this by requiring non-federal landowners to obtain a conditional Incidental Take Permit that allows takes of a listed species if the take is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Id. [sections] 1539(a)(1)(B). One of the conditions is that the landowner must submit a Habitat Conservation Plan (HCP) to FWS that describes the action and how the landowner will take steps to mitigate or avoid any harm to listed species. Id. [sections] 1539(a)(2)(A).
(40) Id. [sections] 1533 (1994 & Supp. IV 1998).
(41) In the legislative history behind the 1978 ESA amendments, Congress indicated its intention that the delisting process should be the same as the listing process. H.R. REP. 95-1625 (1978), reprinted in 1978 U.S.C.C.A.N. 9453, 9457 (stating that "the act also authorizes the Secretary to delist or reclassify species in much the same manner as the initial listing"). Congress explicitly applied section 4's listing procedures to delisting during the 1982 ESA amendments, Pub. L. No. 97-304 (1982), to reflect concerns over improperly listed species, H.R. REP. NO. 97-567, at 22 (1982), reprinted in 1982 U.S.C.C.A.N. 2822.
(42) 16 U.S.C. [sections] 1533(a)(1) (1994 & Supp. IV 1998). See Part III.B. for an analysis of the listing factors.
(43) Id. [sections] 1533(b).
(44) Northern Spotted Owl v. Hodel provides the best example. 716 F. Supp. 479 (W.D. Wash. 1988). Here, a Washington federal district court remanded an FWS determination not to list the northern spotted owl (Strix occidentalis caurina) as endangered or threatened, holding that FWS's failure to list was arbitrary and capricious. FWS had assembled a group of biologists to conduct a review of the spotted owl's current status. The results of the surveys showed that continued old growth harvesting would likely lead to the species extinction. Therefore, the lead biologist, Dr. Mark Shaffer, argued strongly for listing the owl. FWS then initiated a peer review of Dr. Shaffer's work by population viability experts. Every expert agreed with Dr. Shaffer's analysis. Despite this evidence, FWS cited data to support its findings that the owl did not warrant listing at that time. However, FWS provided no analysis of this data and no refutation of Dr. Shaffer's findings. The court found this intolerable in light of the ESA's mandate to use the best available scientific data in all listing decisions. Id. The court found that FWS had not based its determination on an "evaluation of the biological risks faced by the species, to the exclusion of all other factors." Id. at 480 (citing H.R. CONF. REP. NO. 97-835, at 19 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2860). The court remanded the determination to FWS to try again. The available biological evidence left FWS no choice but to list the owl. This case illustrates that FWS cannot sidestep the ESA's mandate to base listing decisions solely on the best scientific and commercial data. See Southwest Ctr. for Biological Diversity v. Babbitt, 939 F. Supp. 49 (D.D.C. 1996) (finding that FWS erred in its determination not to list the Queen Charlotte goshawk (Accipiter gentilis laingi) because it based its decision on future actions proposed by the United States Forest Service (USFS) in order to create sanctuaries for the bird).
Another illustrative case is Biodiversity Legal Found v. Babbitt, 943 F. Supp. 23 (D.D.C. 1996). In this case, the court found that FWS's determination not to list the gray wolf as endangered was not based solely on the best scientific evidence available. As grounds for its determination not to list, FWS actually relied on the possibility that USFS would revise its land and resource management plan to ensure wolf survival. FWS had acknowledged that, without significant changes to the current Land Resources Management Plan (LRMP), the wolfs long-term survival was imperiled. The court found FWS's speculation that USFS may alter its LRMP to better protect the wolf at some undetermined future date was not reliance on the best available scientific evidence. Id. See also Sierra Club v. Babbitt, 948 F. Supp. 56 (E.D. Cal. 1996), appeal dismissed 142 F.3d 445 (9th Cir. 1998) (finding that FWS's prioritization scheme predicating listing determinations on biological need was reasonable in light of budgetary restrictions preventing discharge of all pending species within the current fiscal year); Southwest Ctr. for Biological Diversity v. Babbitt, 926 F. Supp. 920 (D. Ariz. 1996) (finding a violation when FWS ignored current draft policy on meaning of an ESA term and relied on an earlier draft policy constituted a violation of the ESA's statutory provision that all listing determinations shall be based solely on the best available scientific evidence).
(45) The ESA also defines "endangered" and "threatened" species. The ESA defines endangered species as "any species which is in danger of extinction throughout all or a significant portion of its range" and a threatened species as "any species which is likely to become an endangered species within the foreseeable future." 16 U.S.C. [sections] 1532(6), (20) (1994). Both definitions are vague and somewhat circular, indicating Congress's purposeful delegation of authority to FWS through the Secretary to further define the terms. See Chevron v. Natural Res. Defense Council, 467 U.S. 837 (1984) (holding ambiguous statutes must be reasonably interpreted by administrative agencies). The difference between an endangered species and a threatened species has little practical difference in listing decisions. See, e.g., Andrea Easter-Pilcher, Implementing the Endangered Species Act: Assessing the Listing of Species as Endangered or Threatened, 46 BIOSCIENCE 355 (1996) (analyzing listing determinations using scientific data analysis and finding that no biological criteria adequately explained the difference between endangered and threatened determinations in listing decisions); John Charles Kunich, The Fallacy of Deathbed Conservation Under the Endangered Species Act, 24 ENVTL. L. 501, 567 (1994) (stating the ESA has no objective standards for determining "endangered" and "threatened"). However, the difference is significant regarding section 9's ban on the takings of any endangered species but not a threatened species. 16 U.S.C. [sections] 1538(a) (1994). The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, capture, or collect, or to attempt to engage in any such conduct." Id. [sections] 1532(19). Taking a threatened species only violates the act if FWS promulgates regulations under section 4(d) that specify actions that constitute a take of a specific threatened species. Id. [sections] 1533(d). FWS has actually promulgated a blanket 4 (d) regulation stating that the take restrictions on endangered species apply to all threatened species under its jurisdiction. 50 C.F.R. [sections] 17.31(a) (2000). National Marine Fisheries Services (NMFS), on the other hand, still promulgates individual 4(d) rules for threatened species such as marine mammals and anadromous fish under its jurisdiction.
(46) 16 U.S.C. [sections] 1532(16) (1994).
(47) A Webster's dictionary from the same period that Congress passed the ESA describes a species as:
a group of intimately related and physically similar organisms that actually or potentially interbreed and are less commonly capable of fertile interbreeding with members of other groups, that ordinarily comprise differentiated populations limited geographically (as subspecies) or ecologically (as ecotypes) which tend to intergrade at points of contact, and that as a group represent the stage of evolution at which variations become fixed through loss of ability to exchange genes with members of other groups although formerly conceived to be the total progeny of a single distinctive specially created pair.
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2187 (1971). The sheer length and complexity of this definition indicates the difficulty inherent in defining a species.
(48) FWS and NMFS announced a joint policy on distinct population segments in 1996. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722 (Feb. 7, 1996). Under the policy, FWS or NMFS may determine that a population is a distinct population segment (DPS) by considering three elements:
Discreteness of the population segment in relation to the remainder of the species to which it belongs: The significance of the population segment to the species to which it belongs: and The population segment's conservation status in relation to the Act's standards for listing (i.e., is the population segment, when treated as if it were a species, endangered or threatened?).
Id. at 4725. For a federal court's analysis of this policy, see Southwest Center for Biological Diversity v. Babbitt, 980 F. Supp. 1080 (D. Ariz. 1997) (holding that FWS arbitrarily and capriciously rejected the plaintiffs petition to list the western population of the northern goshawk as a DPS and declaring FWS's policy allowing only one subspecies per DPS listing an abuse of discretion).
Examples of species listed according to distinct population segments include the bald eagle (Haliaeetus leucocephalus), 32 Fed. Reg. 4001 (Mar. 11, 1967) (codified at 50 C.F.R. pt. 17), grizzly bear, woodland caribou (Rangifer trandus caribou), Endangered and Threatened Wildlife and Plants; Determination of Endangered Status of Woodland Caribou Found In Washington, Idaho, and Southern British Columbia, 4 Fed. Reg. 7390 (Feb. 29, 1984) (codified at 50 C.F.R. pt. 17), Audubon's crested caracara (Polyborus plancus audubonii), Endangered and Threatened Wildlife and Plants; Threatened Status for the Florida Population of Audubon's Crested Caracara, 52 Fed. Reg. 25,229 (July 6, 1987) (codified at 50 C.F.R. pt. 17) and red-cockaded woodpecker (Dendyocupus borealis), 35 Fed. Reg. 16,047 (1970) (codified at 50 C.F.R. pt. 17).
(49) Indeed, determining that there are many individual populations of a species, each worthy of separate treatment, is more likely to result in a finding that each is endangered, whereas recognizing only two populations of that species, which are worthy of separate treatment, is far less likely to result in a finding that each is endangered. YAFFEE, supra note 27, at 78.
(50) For example, the Secretary may delist the Yellowstone and Continental Divide populations of the grizzly bear even though the bear is highly endangered throughout the rest of its range in the United States.
(51) See 16 U.S.C. [sections] 1533(c)(B) (1994).
(52) Id. [sections] 1533(a)-(b).
(53) Id. [sections] 1533(a)(1).
(54) Id. [sections] 1533(a)(3). The listing of critical habitat has generated a great deal of controversy as to the extent that the ESA requires its designation and the importance of requiring its designation. Compare Jack McDonald, Critical Habitat Designation Under the Endangered Species Act: A Road to Recovery?, 28 ENVTL. L. 671 (1998) (arguing that designation of critical habitat is an essential component of recovery of listed species); with Shawn E. Smith, How "Critical" is a Critical Habitat?: The United States Fish and Wildlife Service's Duty, Under the Endangered Species Act, 8 DICK. J. ENVTL. L. & POL'Y 343 (1999) (arguing that designation of critical habitat under the ESA is redundant).
(55) Id. [sections] 424.14 (regulations outlining the petition process). If an interested person files a petition, the ESA requires that the Secretary make a finding within 90 days, to the maximum extent practicable, as to whether the petition warrants action. 16 U.S.C. [sections] 1533(b)(3)(A) (1994). If the Secretary finds that the petition warrants action, the Secretary must publish this finding in the Federal Register, and then has twelve months from the time the petition was received to decide whether to implement the recommended action. Id. [sections] 1533(b)(3)(B). The Secretary must then publish the final recommendation in the Federal Register. Id. The Secretary must accompany any listing in the Federal Register with a description and evaluation of any data collected and the reasons used to determine the finding. Id. [sections] 1533(b)(3)(B).
(56) 16 U.S.C. [sections] 1533(b)(3)(A) (1994). A species being considered by the Secretary for listing but not yet the subject of a proposed rule is known as a "candidate species." 50 C.F.R. [sections] 424.02(b) (1999). If the Secretary proposes to list a candidate species, the ESA requires the Secretary to publish notice of that determination in the Federal Register at least 90 days before its effective date including the regulation's complete text. 16 U.S.C. [sections] 1533(b)(5)(A) (1994). This notice allows a public comment period to submit data and evidence supporting or contesting the determination. The next step requires the Secretary to publish the final regulation in the Federal Register within one year or withdraw the recommendation with an explanation. Id. [sections] 1533(b)(6)(A), (b)(6)(B)(ii). if substantial disagreement with the Secretary's data exists, then the ESA allows another six months of further data collection before publication of the final rule. Id. [sections] 1533(b)(6)(B)(i).
In the past, petitioner's requests were far more common than the Secretary's initiatives. U.S. GENERAL ACCOUNTING OFFICE, ENDANGERED SPECIES ACT: TYPES AND NUMBER OF IMPLEMENTING ACTIONS 24 (May 8, 1992). However, FWS implemented an increasing number of listing actions as it overcame the effects of the listing moratorium of the mid-1990s. See infra note 73.
(57) The Secretary issued a "warranted but precluded" finding in response to a petition to upgrade the Cabinet-Yaak population of the grizzly bear from threatened to endangered. Endangered and Threatened Wildlife and Plants; Finding on Petition to Change the Status of the Grizzly Bear Population in the Cabinet-Yaak Area of Montana and Selkirk Mountains of Idaho and Washington from Threatened to Endangered, 58 Fed. Reg. 8250 (Feb. 12, 1993) (codified at 50 C.F.R. pt. 17). The petitioners then filed suit challenging this decision. Carlton v. Babbitt, 900 F. Supp. 526 (D.D.C. 1995). The court found that FWS may issue a "warranted but precluded" finding and is not required to show that listing is financially precluded, but only if FWS is making expeditious progress on other, higher priority, listing proposals. Id. at 536. However, the court did find that FWS had not offered sufficient analysis to prove its "warranted but precluded" finding and remanded the decision back to the agency. Id. Later, the court found that FWS's actions on remand were still arbitrary and capricious because FWS drew conclusions unsupported in the record. Carlton v. Babbitt, 26 F. Supp.2d 102, 112 (D.D.C. 1998). The court remanded the issue again and ordered FWS to come up with a decision properly based on the record by January 21, 1999. Id. Finally, in May of that year, FWS issued a third finding of warranted but precluded. Endangered and Threatened Wildlife and Plants; 12-Month Finding on Petitions to Change the Status of Grizzly Bear Population in the Selkirk Area in Idaho and Washington and the Cabinet-Yaak Area of Montana and Idaho from Threatened to Endangered, 64 Fed. Reg. 26,725 (May 17, 1999) (codified at 50 C.F.R. pt. 17). As yet, petitioners have not litigated this third finding.
(58) The Secretary designates a priority number to all candidates for listing that assesses the current threat to a species's continued existence. FWS can only process a certain number of species listings at a time, and therefore, it only processes species with the highest priority numbers. This can create a "black hole" for a species warranting listing but receiving a low priority number. However. if a significant threat to a species occurs, the Secretary may initiate an emergency listing process that proceeds directly to a final listing determination. See Ivan J. Lieben, Comment, Political Influences on USFWS Listing Decisions Under the ESA: Time to Rethink Priorities, 27 ENVTL. L. 1323 (1997) (providing a detailed analysis of the ESA's listing process).
(59) See infra Part III.D (describing these additional requirements).
(60) 16 U.S.C. [sections] 1533(f) (1994).
(61) The theoretical "ultimate goal of the ESA is to make itself obsolete." ROHLF, supra note 2, at 100. Practically, however, this goal is probably not attainable for many species, especially if human activity has left a species with limited habitat.
(62.) Listing Endangered and Threatened Species and Designating Critical Habitat, 50 C.F.R. [sections] 424.11 (1999).
(63) Id. [sections] 424 (1999). The 1982 amendments to the listing provisions were intended to clarify that delisting decisions are to be based on the same criteria and conducted in a procedurally identical manner to listing decisions. H.R. REP. No. 97-567, at 12 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2812.
(64) 16 U.S.C. [sections] 1533 (b)(1)(A) (1994).
(65) 50 C.F.R. [sections] 424.11 (b) (1999). However, Congress, in the context of delisting species due to recovery, noted that "the Secretary [is required to] give priority in the preparation of recovery plans to those species that are, or may be, in conflict with construction or other development projects." H.R. REP. 97-567, at 22 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2822. Congress then added "[t]he committee does not intend that this requirement divert attention from critically endangered species that benefit from recovery plans but are not threatened with conflicts with human activity." Id. But cf. Stuart L. Somach, What Outrages Me about the Endangered Species Act, 24 ENVTL. L. 801 (1994) (arguing for inclusion of an economic impact report for all listing decisions to prevent elimination of legitimate development activities).
(66) At least seven species have been delisted due to extinction as follows: 1) the Tecopa pupfish (Cyprinodon nevadensis), Endangered and Threatened Wildlife and Plants; Deregulation of the Tecopa Pupfish, 47 Fed. Reg. 2317 (Jan. 15, 1982) (codified at 50 C.F.R. pt. 17) (habitat alteration and introduction of exotic species led to its decline and eventual disappearance by 1972); 2) the Longjaw cisco (Coregonus alpenae), Endangered and Threatened Wildlife and Plants; Deregulation of the Longjaw Cisco and Blue Pike, 48 Fed. Reg. 39,941 (Sept. 2, 1983) (codified at 50 C.F.R. pt. 17) (decimated by over-fishing and sea lamprey predation, it was last collected in 1967); 3) the blue pike (Stizostedion vitreum glaucum), Id. (over-fishing and hybridization with walleye pike led to extinction by 1977); 4) the Santa Barbara song sparrow (Malospiza melodia graminea), Endangered and Threatened Wildlife and Plants; Removal of the Santa Barbara Song Sparrow from the List of Endangered Species, 48 Fed. Reg. 46,336 (Oct. 12, 1983) (codified at 50 C.F.R pt. 17) (fire destroyed habitat in 1959 on the only island where it was known to exist); 5) the Sampson's pearly mussel (Epioblasma sampsonii), Endangered and Threatened Wildlife and Plants; Removal of the Epioblasma (Dysnomia) sampsoni, Sampson's Pearly Mussel, from the List of Endangered and Threatened Wildlife, 49 Fed. Reg. 1057 (Jan. 9, 1984) (codified at 50 C.F.R. pt. 17) (habitat destroyed by dam construction); 6) the Amistad gambusia (Gambusia amistadensis), Endangered and Threatened Species; Removal of the Gambusia amistadensis Amistad Gambusia, from the List of Endangered and Threatened Wildlife, 52 Fed. Reg. 46,083 (Dec. 4, 1987) (codified at 50 C.F.R. pt. 17) (reservoir construction in 1968 inundated the only tributary in which it was known to exist and a captive population expired in 1987); and 7) the Dusky seaside sparrow (Ammodramus martimus nigrescens), Endangered and Threatened Wildlife and Plants; Final Rule to Delist the Dusky Seaside Sparrow and Remove its Critical Habitat, 55 Fed. Reg. 51,112 (Dec. 12, 1990) (codified at 50 C.F.R. pt. 17) (habitat destruction and DDT caused decline and eventual extinction when attempts to mate the few surviving males with females of a closely related subspecies failed).
(67) FWS has delisted eleven species because of erroneous data leading to the original listing decisions as follows: 1) Mexican Duck (Anas diazi), 43 Fed. Reg. 32,258 (July 25, 1978); 2) Pine Barrens treefrog (Hyla andersonii), Endangered and Threatened Wildlife and Plants; Final Rule to Remove the Florida Population of the Pine Barrens Treefrog from List of Endangered and Threatened Wildlife and to Rescind Previously Determined Critical Habitat, 48 Fed. Reg. 52,740 (Nov. 22, 1983) (codified at 50 C.F.R. pt. 17); 3) Indian flap-shelled turtle (Lissemys punctata punctata), Endangered and Threatened Wildlife and Plants: Listing of Two Spanish Reptiles and the Delisting of the Indian Flap-shelled Turtle, 49 Fed. Reg. 7394 (Feb. 29, 1984) (codified at 50 C.F.R. pt. 17); 4) Bahama swallowtail butterfly (Heraclides papilio andraemon bonhotei), Endangered and Threatened Wildlife and Plants; Final Rule to Deregulate the Bahama Swallowtail Butterfly and to Reclassify the Schauss Swallowtail Butterfly from Threatened to Endangered, 49 Fed. Reg. 34,501 (Aug. 31, 1984) (codified at 50 C.F.R. pt. 17); 5) Purple-spined hedgehog cactus (Echinocereus engelmanii var. purpureus), Endangered and Threatened Wildlife and Plants: Delisting of Echinocereus Engelmanii var. Purpureus (Purple-spined Hedgehog Cactus), 54 Fed. Reg. 48,749 (Nov. 27, 1989) (codified at 50 C.F.R. pt. 17); 6) Tumamoc globeberry (Tumamoca macdougalii), Endangered and Threatened Wildlife and Plants: Final Rule to Delist the Plant Tumamoca Macdougalii, 58 Fed. Reg. 33,562 (June 18, 1993) (codified at 50 C.F.R. pt. 17); 7) Spineless hedgehog cactus (Echinocereus triglochidiatus var. inermis), Endangered and Threatened Wildlife and Plants; Removal of the Echinocereus Triglochidiatus var. Inermis (Spineless Hedgehog Cactus) from the List of Endangered and Threatened Plants, 58 Fed. Reg. 49,242 (Sept. 22, 1993) (codified at 50 C.F.R. pt. 17); 8) McKittrick pennyroyal (Hedeoma apiculatum), Endangered and Threatened Wildlife and Plants; Final Rule to Delist the Plant Hedeoma Apiculatume (McKittrick pennyroyal) and Remove Its Critical Habitat Designation, 58 Fed. Reg. 49,245 (Sept. 22, 1993) (codified at 50 C.F.R. pt. 17): 9) Cuneate bidens (Bidens cuneata), Endangered and Threatened Wildlife and Plants; Final Rule to Delist Bidens Cuneata (Cuneate bidens), a Hawaiian Plant, 61 Fed. Reg. 4372 (Feb. 6, 1996) (codified at 50 C.F.R. pt. 17): 10) Lloyd's hedgehog cactus (Echinocereus lloydii), Endangered and Threatened Wildlife and Plants; Final Rule to Remove the Plant Echinocereus lloydii (Lloyd's hedgehof cactus) from Federal List of Endangered and Threatened Plants, 64 Fed. Reg. 33,796 (June 24, 1999) (codified at 50 C.F.R. pt. 17); and 11) Umpqua River trout (Oncorhynchus clarki clarki), Endangered and Threatened Wildlife and Plants; Final Rule to Remove Umpqua River trout from the Federal List of Endangered and Threatened Wildlife, 65 Fed. Reg. 20,915 (Apr. 19, 2000) (to be codified at 50 C.F.R. pts. 224 & 226).
(68) FWS defines each category as follows:
(1) Extinction. Unless all individuals of the listed species had been previously identified and located, and were later found to be extirpated from their previous range, a sufficient period of time must be allowed before delisting to Indicate clearly that the species is extinct.
(2) Recovery. The principal goal of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service Is to return listed species to a point at which protection under the Act is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.
(3) Original data for classification In error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were In error.
50 C.F.R. [sections] 424.11 (d) (2000). Note the emphasis on using the "best scientific and commercial data available" in assessing each possible reason for delisting. A summary of all endangered and threatened species list revisions up to the end of 1997 can be found in CRS REPORT, supra note 14. at 4-6.
(69) 50 C.F.R. [sections] 424.11(d) (2) (2000).
(70) Id. [sections] 402.02 (referring to the ESA's five listing factors as criteria). See also 16 U.S.C. [sections] 1534(a) (1994 & Supp. IV 1998).
(71) See infra Part III.D.2 (discussing FWS's habitat-based recovery criteria).
(72) In an attempt to freeze the process until ESA reauthorization, Congress passed an appropriations bill on April 10, 1995 forbidding the use of any funds in listing decisions. Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Pub. L. No. 104-06, 109 Stat. 73 (1995). President Clinton later waived the moratorium and restored the budget for listing determinations. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996).
(73) The backlog reached a peak of 151 proposed species awaiting a final determination in 1997. Final Listing Priority Guidance for Fiscal Year 1997, 61 Fed. Reg. 64,475, 64,476 (Dec. 5, 1996). The number of species awaiting final determination was down to sixty-six by July 31, 1999. Endangered and Threatened Wildlife and Plants: Final Listing Priority Guidance for Fiscal Year 2000, 64 Fed. Reg. 57,114, 57,116 (Oct. 22, 1999). More recently, FWS announced a new moratorium on listing species for the remaining ten months of the 2001 fiscal year because judicial rulings from cases brought by environmental plaintiffs have forced the agency to devote increasing amounts of time and resources to designating critical habitat for already listed species. Associated Press, Wildlife Service Says Lawsuits Delaying Additions to Endangered List, WASH. POST, Nov. 24, 2000, at A5 (stating that 225 species will have to wait for the next fiscal year before receiving final listing determinations).
(74) FWS recently removed delisting from its listing priority guidance regulations, therefore, delisting is no longer prioritized based upon other listing activities. Endangered and Threatened Wildlife and Plants; Proposed Listing Priority Guidelines for the Fiscal Years 1999 and 2000, 64 Fed. Reg. 27,596 (May 20, 1999).
(75) Endangered Species Act of 1973, Pub. L. No. 93-205, 81 Stat. 884 (1973).
(76) Pub. L. No. 95-632, 92 Stat. 3766 (1978). The amendments added recovery plan requirements that are currently codified at section 4(f)(1), without (1)(A)&(B), and section 4(f) (2). Before the 1978 amendments, FWS had approved plans for a mere eight percent of listed species under its own initiative. As of 1987, agencies had approved recovery plans for fifty-six percent of domestic species. U.S. GENERAL ACCOUNTING OFFICE, ENDANGERED SPECIES: MANAGEMENT IMPROVEMENTS COULD ENHANCE RECOVERY PROGRAM 4 (Dec. 21, 1988) [hereinafter GAO RECOVERY REPORT]. Recent data from 2000 shows that seventy-six percent of listed U.S. plants and seventy-three percent of listed U.S. animal species now have recovery plans. ENDANGERED SPECIES UPDATE, May-June 2000, at 40.
(77) 16 U.S.C. [sections] 1533(f) (1994) (stating the only allowable exception to formulating a recovery plan for each listed species is if a plan "will not promote the conservation of the species").
(78) ROHLF, supra note 2, at 90. The author used the pre-1988 Northern Rocky Mountain Wolf Recovery Plan as an example. The Plan directed federal agencies to "minimize direct, man-caused mortality" achieved by making "provisions for minimizing or resolving conflicts between wolf recovery objectives and man." Id. (quoting U.S. FISH & WILDLIFE SERVICE, NORTHERN ROCKY MOUNTAIN WOLF RECOVERY PLAN (1985)). Thus, the Plan provided merely circular goals and directives begging the question of how to enforce its guidelines.
(79) Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, 96 Stat. 1411 (1982) (incorporating very minor language alterations and section reordering).
(80) Endangered Species Act Amendments of 1988, Pub. L. No. 100-478, 102 Stat. 2306 (1988) (adding recovery plan requirements section 4(f)(1)(A)&(B) and 4(f)(3)-(5)). Congress's overriding intent in amending the ESA's recovery plan requirements was to provide a means to judge progress made towards recovery by "allow[ing] more effective oversight of recovery activities and better assessment of the adequacy of annual budget requests and appropriations for these activities." S. REP. NO. 100-240, at 7 (1988). reprinted in 1988 U.S.C.C.A.N. 2700, 2709.
(81) 16 U.S.C. [sections] 1533(f)(1)(B) (1994).
(82) See, e.g., Strahan v. Linnon, 967 F. Supp. 581 (D. Mass. 1997) (allowing FWS to establish a priority system for recovery plan implementation and holding that the ESA requires no strict schedule for recovery plan revision and that recovery plan contents are discretionary and are for guidance only with no binding legal effect); National Wildlife Fed'n v. Nat'l Park Serv., 669 F. Supp. 384 (D. Wyo. 1987) (holding that the language of section 4(f) does not obligate the Secretary to develop and implement a recovery plan for every species listed under the ESA, and that once the Secretary develops a recovery plan, the ESA does not mandate that he follow its recommendations).
(83) 903 F. Supp. 96 (D.D.C. 1995), amended by 967 F. Supp. 6 (D.D.C. 1997); see also infra Part IV.C.
(84) INTERAGENCY GRIZZLY BEAR COMMITTEE, GRIZZLY BEAR RECOVERY PLAN (1993) [hereinafter 1993 RECOVERY PLAN] (on file with the author or obtainable from the Fish and Wildlife Reference Service, 5430 Grosvenor Lane, Suite 110, Bethesda, MD, 20814, tel. 800-582-3421).
(85) 903 F. Supp. at 106.
(86) Id. The court explained by determining that "the hyphen in `site-specific' indicates that the word `specific' modifies the word `site,' not the term `management actions.'" Id.
(87) Id. at 111.
(88) 16 U.S.C. [sections] 1533(f), (f)(1) (1994).
(89) H.R. REP. No. 97-567, at 22 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2812.
(90) H.R. CONF. REP. NO. 100-928, at 11 (1988), reprinted in 1988 U.S.C.C.A.N. 2738, 2739. See also Jason M. Patlis, Recovery, Conservation, and Survival Under the Endangered Species Act: Recovering Species, Conserving Resources, and Saving the Law, 17 PUB. LAND & RESOURCES L. REV. 55, 56-90 (1996) (discussing the scientific bases and legal framework for recovery and conservation under the ESA).
(91) E.g., John Copeland Nagle, Playing Noah, 82 MINN. L. REV. 1171, 1198 (1998); Andrew Metrick & Martin L. Weitzman, Patterns of Behavior in Endangered Species Preservation, 72 LAND ECON. 1, 14-15 (1996); Jim Ritter, Endangered Species in a Popularity Contest, CHI. SUN TIMES, Feb. 15, 1994, at 3 (reporting the findings of a study by Don Coursey of the University of Chicago that charismatic species received a disproportionate share of funding); Robert J. Barro, Federal Protection--Only Cute Critters Need Apply, WALL ST. J., Aug. 4, 1994, at A12 (citing a recent Harvard University study finding that ten charismatic species account for fifty-four percent of all state and federal money spent on endangered species). A lack of recent articles or evidence of continuing favoritism towards charismatic megafauna indicates that FWS may have responded to this criticism by designating more recovery plans for lesser-known Species. A brief purview of recovery plans formulated in the last five years tends to support this view. Endangered Species Recovery Plan (2000), available at http://endangered.fws.gov/ RECOVERY/RECPLANS/Index.htm.
(92) See, e.g., the 1993 RECOVERY PLAN, supra note 84; infra Part IV.E: Patlis, supra note 90, at 120-24 (discussing the Snake River salmon Recovery Plan).
(93) 16 u.s.c. [sections] 1533(f)(5) (1994).
(94) Id. [sections] 1533.
(95) Section 7(a)(1) requires that "other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered and threatened species listed pursuant to section 1533 of this title." 16 U.S.C. [sections] 1536(a)(1). Id. For an excellent analysis of the interaction between section 4(f) recovery plan requirements and the section 7(a)(1) duty to conserve, see Eric Helmy, Comment, Teeth for a Paper Tiger: Redressing the Deficiencies of the Recovery Provisions of the Endangered Species Act, 30 ENVTL. L. 843, 859-65 (2000).
(96) See discussion infra Part IV.B.3.a. In one case involving the Yellowstone grizzly bear, the National Park Service (NPS) refused to close a campground despite guidelines in the grizzly's recovery plan requiring minimization of bear-human encounters. Nat'l Wildlife Fed. v. Nat'l Park Serv., 669 F. Supp. 384, 387-88 (D. Wyo. 1987). Upon consultation, FWS did not require that NPS follow the recovery plan's management guidelines. Consequently, the court found that NPS had not violated the "duty to conserve" requirement of section 7(a)(1) because the court refused to second guess the Service's discretion to choose among available conservation methods. Id. Therefore, an agency seems to have wide latitude to choose which recovery plan requirements to follow if FWS does not attempt to enforce recovery plan requirements through section 7 consultations. However, in most cases the Secretary is likely to require some degree of coordination between FWS and other Interior agencies regarding recovery plan requirements.
(97) 16 U.S.C. [sections] 1533(f)(3) (1994). The ESA also contains several requirements for continued monitoring and evaluation after delisting. Id. [sections] 1533(g). For detailed information on these post-delisting requirements, see infra Part V.
(98) 16 U.S.C. [sections] 1533(c)(2) (1994).
(99) Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, 96 Stat. 1411 (1982) (codified at 16 U.S.C. [sections] 1533).
(100) Id. [sections] 2(a) (codified at 16 U.S.C. [sections] 1533(b)).
(101) See Lieben, supra note 58, at 1331-41 (describing the FWS 1993 and 1996 priority guidelines). Mr. Lieben's Comment explores the existence of improper influences in FWS's listing decisions such as hiding controversial species in the "warranted but precluded" category and issuing new priority guidelines in 1996 that resulted in a "self-imposed moratorium" on listing many candidate species. Id. at 1327-28. However, the Tenth Circuit confirmed that FWS had the authority to create and enforce the listing priority guidelines. Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249 (10th Cir. 1998).
(102) Endangered and Threatened Wildlife and Plants; Final Listing Priority Guidance for Fiscal Years 1998 and 1999, 63 Fed. Reg. 25,502, 25,503 (May 8, 1998).
(103) Endangered and Threatened Wildlife and Plants; Proposed Listing Priority Guidance for Fiscal Years 1999 and 2000, 64 Fed. Reg. 27,596 (May 20, 1999).
(104) Endangered and Threatened Wildlife and Plants; Final Listing Priority Guidance for Fiscal Year 2000, 64 Fed. Reg. 57,114, 57,116 (Oct. 22, 1999).
(105) 16 U.S.C. [sections] 1533(b)(1) (1994).
(106) Rep. W.J. Tauzin (D-Louisiana) sponsored House Bill 1490 in 1994 as all ESA reauthorization proposal calling for fewer restrictions on property owners' rights, which business and agricultural interests strongly supported. Senate Bill 1180, sponsored by Senators Kempthorne (R-Idaho), Chafee (R-R.I.), Baucus (D-Mont.), and Reid (D-Nev.), is one of two current ESA reauthorization proposals. See Nancy Perry, Results From the First Session of the 105th Congress--1997 Federal Legislative Summary, 4 ANIMAL L. 137, 142 (1998). One commentator regards this bill as an evisceration of the ESA. It includes a socio-economic analysis for all recovery plans, effectively removing the ESA's mandate to base all listing and delisting decisions only on the best scientific and commercial evidence. Id. at 141. Concern about the ESA's efficacy surfaced in a 1988 General Accounting Office (GAO) report. GAO RECOVERY REPORT, supra note 76. The report noted that "[m]easuring the success of the endangered species program against the act's objectives of protecting and recovering species is problematic because few domestic species have officially been declared either extinct or recovered." Id. at 2. The report cited agency inaction in implementing recovery plans for all species and not undertaking required tasks delineated in existing recovery plans as reasons for poor recovery rates, and did not specify shortcomings in the Act itself as possible reasons for the lack of species recovery. Id. at 3.
The National Wilderness Institute released a study criticizing the amount of money spent on the ESA when so few species have recovered to the point of delisting. Endangered Species: U.S. to Spend Billions on ESA, Yet No Species `Delisted,' Group Says, Env't Daily News (BNA) (Mar. 24, 1994), available at 1994 WL DEN 56d4.
Some advocates of endangered species protection also criticize the Act claiming that by the time a species is endangered enough to require listing, it is already too late to save it. E.g:, Kunich, supra note 45, at 551. While this argument is compelling, very few species have actually become extinct after delisting. See supra note 66.
The criticism of the ESA from the standpoint of private developers is somewhat understandable as the Endangered Species Act often polarizes public opinion by continually waving a big `stick' at developers and rarely offering any "carrots." Kunich, supra note 45, at 567. The ESA forced abandonment of major public projects--the Tellico Dam in TVA v. Hill--and restructured large industries--the timber industry in the Pacific Northwest--while providing few, if any, positive incentives to preserve species and their habitats. Id. See also Albert Gidari, The Endangered Species Act: Impact of Section 9 on Private Landowners. 24 ENVTL. L. 420, 498-500 (1994) (arguing that Congress did not intend to pass a law that strikes the balance in favor of listed species over private property rights by protecting biological habitat). However, in recent years, new programs such as Candidate Conservation Agreements with Assurances and flexible, long term HCPs have ameliorated this situation somewhat.
(107) Babbitt Announces New Policy, supra note 15, at 1. Secretary of the Interior, Bruce Babbitt, announced a new policy in 1998 proposing downlisting and delisting about two dozen endangered species described as being healthy and thriving once again. Babbitt did not shy away from announcing the political motives behind the new policy, but he failed to describe how political pressure and policy choices can legally play a part in ESA determinations. In response to constant harping from ESA critics claiming that listed species stay protected under the ESA forever, evidencing that the Act is ineffective, Babbitt claimed "our new policy, to emphasize delisting, could alter the terms of the debate over the future of the landmark 1973 conservation law." Id. The latest agenda from the Secretary indicates this policy and the reasons behind it are currently alive and well and the policy is a priority of the Department by targeting forty species for delisting or downlisting under the subtitle "minimizing regulatory burdens." Unified Agenda, Department of Interior, 65 Fed. Reg. 73,393, 73,394 (Nov. 30, 2000).
One critic of this new policy claims that the Clinton Administration has backed "an accelerated delisting process that is subject to political manipulation." Melanie Bojanowski, Perspectives on the Environment / Sneak Attack on Species Protection / Clinton Policies Weaken Provisions of Vital Legislation, S. F. CHRON., Dec. 3, 1998, at A33.
(108) FWS has proposed delisting the bald eagle and will make its final determination soon. Endangered and Threatened Wildlife and Plants; Proposed Rule to Remove the Bald Eagle in the Lower 48 States from the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 36,454 (Jul. 6, 1999) (codified at 50 C.F.R. pt. 17).
(109) Endangered and Threatened Wildlife and Species; 90-Day Finding for a Petition to Delist Gray Wolves in Minnesota, Wisconsin, and Michigan, 63 Fed. Reg. 55,839 (Oct. 19, 1998) (codified at 50 C.F.R. pt. 17).
(110) See infra Parts IV, V (discussing the Grizzly Bear Recovery Plan and species protection after delisting). The 1988 GAO report on the FWS management of recovery plans criticized this exact mode of thinking. GAO RECOVERY REPORT, supra note 76. The report stated that "[i]nstead of giving priority to the most endangered species and to those actions needed to prevent extinctions in the foreseeable future, as required by its guidelines, FWS instead is concentrating recovery funds on species with high `public appeal' and those approaching recovery." Id. at 3.
(111) Between 1973 and 1997, FWS delisted five U.S. species due to recovery. These species provide excellent examples of ESA success stories:
1) Brown pelican (Pelecanus occidentalis). Organochloride pesticide pollution, especially DDT and endrin, caused drastic population reductions in the 1960s. EPA banned the use of DDT and curtailed the use of endrin in 1973. Atlantic coastal populations have since recovered to the point that current populations actually exceed historic populations in some areas. FWS removed the brown pelican from the endangered species list based on current breeding populations, stable population numbers, and productivity in Alabama, Florida, and all points northward along the Atlantic coast in 1985. However, the pelican remains on the endangered species list throughout the rest of its range including the other Gulf states, California, Mexico, the West Indies, and Central and South America. Endangered and Threatened Wildlife and Plants; Removal of the Brown Pelican in the Southeastern United States from the List of Endangered and Threatened Wildlife, 50 Fed. Reg. 4938 (Feb. 4, 1985) (codified at 50 C.F.R. pt. 17).
2) American alligator (Alligator mississippiensis). One of only two species of the Alligator genus worldwide, the American alligator historically inhabited the southeast Atlantic and Gulf states. FWS originally listed the species in 1967 under the ESA because over-harvesting by commercial enterprises had caused major population declines. ESA protection, combined with further protection from the Lacey Act, ch. 553, 31 Stat. 187 (May 25, 1900) (codified as amended at 16 U.S.C. [sections] 3372 (1994) allowed populations to recover to the point that FWS regarded the species as recovered with stable but distinct populations limited to areas of remaining suitable habitat. However, FWS downlisted the species as threatened instead of delisting because of its similarity to the currently endangered American crocodile (Crocodylus acutus). FWS characterized this classification of "threatened due to similarity of appearance" as reflecting the complete recovery of the alligator, but facilitating continued protection of the American crocodile. Endangered and Threatened Wildlife and Plants; Reclassification of the American Alligator to Threatened Due to Similarity of Appearance Throughout the Remainder of Its Range, 52 Fed. Reg. 21,059 (June 4, 1987) (codified at 50 C.F.R. [sections] 17.42(a)).
3) Rydberg milk-vetch (Astralagus pertanus). FWS listed this small, flowering plant as threatened because its only known occurrence was two locations in Utah. Five years later, USFS surveys discovered thousands of plants at several other locations. FWS delisted the plant in 1989 as recovered based on this survey information. However, it seems that error in the original data could have equally led to the delisting determination. Endangered and Threatened Wildlife and Plant; Delisting of the Astralagus perianus (Rydberg milk-vetch), 54 Fed. Reg. 37,941 (Sept. 14, 1989).
4) Gray whale (Eschrichtius robustus). Commercial whaling in the early 1800s systematically reduced populations of all whale species, with gray whale populations reduced to around four or five thousand by the mid 1800s. In 1947, the International Convention on the Regulation of Whaling banned commercial harvesting of gray whales and other whale species but allowed subsistence harvesting by indigenous groups. NMFS recommended delisting due to recovery the eastern North Pacific gray whale population because the current population had attained estimated historic levels. FWS agreed and delisted the species in 1994 but determined that the eastern North Pacific population was to retain its endangered status. The whale remains under the protection of the Marine Mammal Protection Act (MMPA). Endangered and Threatened Wildlife and Plant; Final Rule to Remove the Eastern North Pacific Population of the Gray Whale from the List of Endangered Wildlife, 59 Fed. Reg. 31,094 (June 16, 1994) (codified at 50 C.F.R. pt. 22).
5) Arctic peregrine falcon (Falco peregrinus tundrius). One of three subspecies of peregrines occurring in North America, arctic peregrines inhabit tundra regions of Alaska, Canada, and Greenland. Peregrines suffered population crashes in the 1950s and 1960s due to the organochloride pesticide, DDT. DDT accumulation in prey items ingested by adult birds leads to thin eggshells that break during brooding. Canada restricted DDT use in 1970, and the United States did so in 1973. Shortly thereafter, populations began to recover, and FWS downlisted the subspecies from endangered to threatened in 1984. Endangered and Threatened Wildlife and Plants; Reclassification of the Attic Peregrine Falcon and Clarification of Its Status in Washington and Elsewhere in the Coterminous United States, 49 Fed. Reg. 10,520 (Mar. 20, 1984) (codified at 50 C.F.R. pt. 17). FWS ultimately considered the Arctic peregrine fully recovered in 1994; however, protection remained due to similarity of appearances with other peregrine subspecies that were still listed at the time. Endangered and Threatened Wildlife; Removal of the Artic Peregrine Falcon from the List of Endangered and Threatened Wildlife, 59 Fed. Reg. 50,796 (Oct. 5, 1994) (codified at 50 C.F.R. pt. 17). See also CRS REPORT, supra note 14, at 4-6. The Migratory Bird Treaty Act (MBTA), 16 U.S.C. [subsections] 703-712 (1994), also provides continued protection after delisting.
(112) FWS has recently delisted the American peregrine falcon (Falco peregrinus anatum). Endangered and Threatened Wildlife and Plants; Final Rule to Remove the American Peregrine Falcon from Federal List of Endangered and Threatened Wildlife, and to Remove the Similarity of Appearance Provision for Free-Flying Peregrines in the Conterminous United States, 64 Fed. Reg. 46,542 (Aug. 25, 1999) (codified at 50 C.F.R. pt. 17). Additionally, FWS is currently reviewing listing proposals to delist 5 more species including the bald eagle, Endangered and Threatened Wildlife and Plants; Proposed Rule to Remove the Bald Eagle in the Lower 48 States from the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 36,454 (July 6, 1999) (codified at 50 C.F.R. pt. 17); Aleutian Canada goose, Endangered and Threatened Wildlife and Plants; Proposal to Remove the Aleutian Canada Goose from the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 42,058 (Aug. 3, 1999) (codified at 50 C.F.R, pt. 17); Tinian monarch butterfly (Monarcha takatsukasae), Endangered and Threatened Wildlife and Plants; Proposed Rule to Remove the Tinian Monarch from the Federal List of Endangered and Threatened Wildlife, 64 Fed. Reg. 8533 (Feb. 22, 1999) (codified at 50 C.F.R. pt. 17); Columbian white-tailed deer (Odocoileus virginianus leucurus) (Douglas County population), Endangered and Threatened Wildlife and Plants; Proposed Rule to Remove the Colombian White-tailed Deer from the Federal List of Endangered and Threatened Wildlife, 64 Fed. Reg. 25,263 (May 11, 1999) (codified at 50 C.F.R. pt. 17); and tidewater goby (Eucyclogobius newberryi) (Northern populations), Endangered and Threatened Wildlife and Plants; Proposed Rule to Remove the Northern Populations of the Tidewater Goby From the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 33,816 (June 24, 1999) (codified at 50 C.F.R. pt. 17).
(113) Only about 40 bald eagle pairs breed in the entire Southwestern United States, and reproductive productivity is actually declining. American Lands, Broken Promises of Recovery: The Clinton Administration's 10-Prong Attack on Endangered Species, available at http://www.defenders.org/esa-9.html (modified Jan. 2000) [hereinafter Broken Promises]. Eagle biologists think that the southwestern eagle population is genetically unique because these eagles are smaller than eagles elsewhere in the United States and rarely interbreed with other eagle populations; therefore, they should receive separate protection as a distinct population. Patrick Graham, Experts Want to Maintain Programs Protecting Eagle, COLUMBIAN (Vancouver, WA), Aug. 8, 1999, at B13. A conservation leader for the Southwest Center for Biological Diversity claims that "[Arizona's eagle] population is around because of human intervention. You remove any enforceable incentive to protect eagles, and they are gone." Id. A state game and fish department biologist also expressed his doubts saying, "we support delisting the bald eagle but feel that management programs are needed to maintain population numbers in Arizona." Id. Concern also remains for northwestern populations despite large population increases in the last twenty years because management problems have increased sharply in the last five years and most problems involve development or other types of habitat degradation in eagle use areas. Eagles' Recovery Shrouded by Worry, DESERET NEWS, July 4, 1999, at B8, available at 1999 WL 21203261.
(114) Natural Resources Eagles: Delisting Move Stirs Concern; How's it Playing?, 7 GREENWIRE No. 9, July 13, 1999, available at 1999 WL APN-GR 14.
(115) Defenders of Wildlife Releases First Comprehensive National Wolf Strategy, U.S. NEWSWIRE, Dec. 17, 1999, available at 1999 WL 22284550 [hereinafter Wolf Strategy]. The Defenders of Wildlife released a comprehensive national wolf recovery strategy in response to press releases by FWS signifying FWS's intent to delist wolf populations in some areas. See Babbitt Announces New Policy, supra note 15. Co-author, Mark Shaffer, noted that delisting the gray wolf in California could preempt reintroduction of the wolf to some of its best historic habitat. Wolf Strategy, at 1. Interestingly, the report calls for economic incentives to encourage restoration of habitat on private land. Id. at 2.
Additionally, the designated experimental reintroduction population in central Idaho effectively withdraws full ESA protections from wolves that naturally migrate into the area. Wyoming Farm Bureau v. Babbitt, 987 F. Supp. 1349, 1375 (D. Wyo. 1997), rev'd, 199 F.3d 1224 (10th Cir. 2000). In this case, the plaintiffs asserted that the experimental population rules acted to delist any naturally occurring wolves in the area. 987 F. Supp. at 1368. The district court struck down FWS's final reintroduction rules and ordered wolves removed, but the Tenth Circuit reversed, holding that FWS's reintroduction rules applying to naturally occurring wolves that migrate into the area was within the agency's discretion under the ESA. 199 F.3d at 1241.
(116) The peregrine falcon seems to be the most clear-cut of the recent delisting determinations or proposals. See 64 Fed. Reg. 46,542 (Aug. 25, 1999). However, even the peregrine's delisting decision has received some criticism. See, e.g., Betsy Z. Russell, Politics Clouds Peregrine's Revival: Plan to Remove Falcon From Endangered List Draws Challenges, SPOKESMAN REV., Aug. 23, 1998, at A1 (discussing scientists' criticisms such as the continuing presence of DDT in the environment and the reliance on the captive breeding program to reach current numbers including the views of one Washington Department of Fish and Wildlife scientist claiming that delisting was premature). Commentators have also criticized proposals to delist several species including:
1) Columbian white-tailed deer. FWS plans to delist one of the deer's two remaining populations relying on the future viability of remaining habitat, which is not protected and is subject to increased logging and development pressures in many areas. Broken Promises, supra note 113, at 26.
2) Umpqua River cutthroat trout. NMFS proposed joining the Umpqua cutthroat trout population with other, distinct unlisted populations, thus removing protection through redefinition rather than delisting. Id. at 28.
3) Southern sea otter (Enhydra lutris nereis). FWS proposed to delist the otter in 1997 despite reliance on questionable population models and evidence that actual population levels were similar to population levels at the time FWS first listed the otter. Id. See also Jamie Rappaport Clark, Overview of the Legislative Mandates and the Agencies Responsible for Implementation of Southern Sea Otter Protection Under the Endangered Species Act, ENDANGERED SPECIES UPDATE, Nov.-Dec. 1996, at 28.
4) Aleutian Canada goose. FWS proposed delisting of the goose based on population gains resulting from the elimination of Arctic foxes (Alopex lagous) from nesting islands--the current population estimate is approximately 32,000 birds. Endangered and Threatened Wildlife and Plants; Proposal to Remove the Aleutian Canada Goose From the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 42,058, 42,060 (Aug. 3, 1999) (codified at 50 C.F.R. pt. 17). However, approximately 800 birds died from an annual avian cholera outbreak in the winter of 1998 and most wintering and migration habitat is confined to small privately owned areas creating conflicts with landowners. Id. at 42,063, 40,065.
(117) See infra Part IV.
(118) To prevent subsequent population declines, the ESA contains provisions to ensure that a species retains a modicum of protection after delisting. See Infra Part V. However, the effectiveness of these requirements is relatively untested and recent delisting proposals have displayed a reliance on vague state and federal regulations, unfounded assertions of adequately protected habitat, and promised future actions by private landowners. See, e.g., Endangered and Threatened Wildlife and Plants; Proposed Rule to Delist the Douglas County Population of Columbian White-Tailed Deer, 64 Fed. Reg. 25,263, 25,264 (May 11, 1999) (codified at 50 C.F.R. pt. 17) (relying on the security of designated habitat under BLM's regulations without specifying what those regulations are and how they would protect the deer's habitat); Bald Eagle Proposed Delisting, supra note 14, at 36,457 (detailing no protections on private land despite asserting the importance of private land to the eagle's continued recovery); Aleutian Canada Goose Proposed Delisting, 64 Fed. Reg. 42,058, 40,062 (Aug. 3, 1999) (codified at 50 C.F.R. pt. 17) (basing delisting on plans to secure additional habitat from private landowners in the future despite asserting the need for a specific, as yet unmet, amount of secure migration and wintering habitat).
(119) One commentator suggests decoupling the recovery and delisting programs because recovery is a purely biological process that manages a species towards a long-term viable population, and delisting is more of a social and regulatory process aimed at ensuring a species is adequately protected to continue recovery after delisting. Holly Doremus, Delisting Endangered Species: An Aspirational Goal, Not a Realistic Expectation, 30 ENVTL. L. REP. 10,434 (2000) (advocating stronger state laws and conservation agreements between landowners, federal and state officials, and the Services in order to achieve realistic delisting decisions that allow continued recovery of species after delisting and reduced impact on private landowners). Other solutions include creation of an incentive program for private property owners to conserve species, or even allowing private ownership of endangered species. These solutions are far more likely to silence critics and encourage reauthorization than a transparent push to delist a few charismatic species. For example, removal of common property ownership may avert a potential tragedy of the commons by providing incentives for new private property owners to preserve species whether the incentive is economic, aesthetic, or even in the form of moral reasons. See Robert J. Smith, Resolving the Tragedy of the Commons by Creating Private Property, Rights in Wildlife, 1 CATO J. 439, 443-56 (1981); Michael Allan Wolf, Environmental Law Slogans for the New Millennium, 30 ENVTL. L. REP. 10,283, 10,283 (2000):
Perhaps we will recognize the futility and illogic of viewing the environment as a contest that pits human beings against nonhuman life. In our efforts to make the ESA and other laws protecting animals and plants less vulnerable to political attacks, we should stress those needs that we have in common--for example, habitat protection, a clean food and water supply, and adequate recreational space.
(120) Stephen Herrero, Man and the Grizzly Bear: Present, Past, but Future?, 20 BIOSCIENCE 1148 (1970).
(121) Id. at 1148 (stating that "entering into grizzly country presents a unique opportunity--to be part of an ecosystem in which man is not necessarily the dominant species").
(122) Endangered and Threatened Wildlife and Plants; Amendment Listing the Grizzly Bear of the 48 Coterminous States as a Threatened Species, 40 Fed. Reg. 31,734 (July 28,1075).
(123) See WILKINSON, supra note 6, at 66; ENDANGERED AND THREATENED SPECIES RECOVERY PROGRAM: REPORT TO CONGRESS, REPORT OF THE DEPARTMENT OF INTERIOR 83 (Dec. 1990).
(124) U.S. FISH AND WILDLIFE SERVICE, DRAFT CONSERVATION STRATEGY FOR THE GRIZZLY BEAR IN THE YELLOWSTONE AREA (2000) [hereinafter CONSERVATION STRATEGY].
(125) 1993 RECOVERY PLAN, supra note 84, at 1.
(126) Id. After crossing the land bridge into a treeless environment, brown bears were confronted with wolves, other bears, and other, now extinct, Pleistocene carnivores. Thus, a mother bear would have needed to utilize sudden aggression or explosive violence to adequately protect her cubs. Id.
(127) Id. at 2; see also R.L. Rausch, Geographic Variation In Size in North American Brown Bears, Ursus Arctus L., as Indicated by Condylobasal Length, 41 CAN. J. ZOOL. 33, 42-43 (1963).
(128) Craighead noted in a comprehensive study that of the "hundreds of encounters that we made with grizzlies [in areas away from human development,] they were alert and wary and would generally flee when they heard us or got a scent." John J. Craighead & Frank C. Craighead, Jr., Grizzly Bear--Man Relationships in Yellowstone National Park, in BEARS--THEIR BIOLOGY AND MANAGEMENT 304, 308 (S. Herrero ed., 1972) [hereinafter BEARS]. The hostile encounters the research team had with grizzlies were almost exclusively with bears accustomed to human handouts. Id. at 311. Such bears developed behavioral patterns that made them extremely dangerous although human attacks by even these grizzlies have still been extremely rare. Id. at 313. The necessity of maintaining grizzlies under natural conditions is highlighted by the statistics on human injuries inflicted by grizzlies between 1930 and 1970. Of the 63 documented injuries caused by bears, 60 were caused by bears attracted to high visitor use areas by food handouts. Glen F, Cole, Preservation and Management of Grizzly Bears in Yellowstone National Park, in BEARS, supra, at 274, 281.
(129) 1993 RECOVERY PLAN, supra note 84, at 2. Exceptions to this asocial habit are the relationships between a mother and her cubs, between siblings recently split off from their mother, and between a male and female in breeding season. Derek Stonorov & Allen W. Stokes, Social Behavior of the Alaska Brown Bear, In BEARS, supra note 128, at 232.
(130) 1993 RECOVERY PLAN, supra note 84, at 2.
(132) Id. A vivid example of the threat human-conditioned animals present is illustrated in the Craighead article. Craighead & Craighead, Jr., supra note 128, at 312. A crew working on blister rust control in a remote area encountered a 3-year-old male grizzly that, initially shy, avoided the men. The crew buried their lunch trash, which the bear excavated, and threw lunch scraps to the bear. Id. After several weeks the bear began to approach the men more boldly making bluffing charges at the men, occasionally treeing workers, and rifling through their packs for food. Id. The bear was captured and relocated but later molested campers in a remote area and was, tragically, shot by park rangers. Id. at 313.
Recreationers in grizzly country can easily avoid confrontations with bears by securing garbage and food items carefully and making noise such as singing or talking while hiking to avoid surprise confrontations. See 1993 RECOVERY PLAN, supra note 84, at 2. However, anyone who has walked through a willow thicket beside a raging stream in Alaska may argue with the efficacy of the above advice.
(133) 1993 RECOVERY PLAN, supra note 84, at 3 (citing R.T. King, The Essentials of Wildlife Range, 36 J. FORESTRY 457, 464 (1938)).
(134) Id. One article found that Yellowstone National Park supported a grizzly population in 1971 that averaged one grizzly for every twenty-nine square miles. Craighead & Craighead, Jr., supra note 128, at 306.
(135) 1993 RECOVERY PLAN, supra note 84, at 4. Female bears do not reproduce for the first time on average until they are 5 years old. Litter size varies from 1 to 4 cubs, and reproductive intervals average 3 years. Id. This results in a very low reproductive rate for a terrestrial mammal. Id. The Craighead article found that the birth rate was slightly higher than the death rate between 1959 and 1966, resulting in an average increase of 6 grizzlies per year. Craighead & Craighead, Jr., supra note 128, at 305.
(136) 1993 RECOVERY PLAN, supra note 84, at 5.
(137) Id. at 7.
(138) CONSERVATION STRATEGY, supra note 124, at 30.
(139) Id. See also D.J. Mattson et al., Food Habits of Yellowstone Grizzly Bears, 1977-1987 69 CAN. J. ZOOL. 1619, 1621-22 (1991).
(140) 1993 RECOVERY PLAN, supra note 84, at 6-7.
(141) Fisheries experts believe that recent illegal introductions of exotic lake trout into Yellowstone Lake could lead to a severe decline in cutthroat trout--the lake trout eat cutthroat trout and outcompete the cutthroat trout for food sources. WILKINSON, supra note 6, at 76. Lake trout are deep-water fish and thus, are not available to grizzlies as a food source.
(142) Jim Robbins, At Yellowstone, an Ecosystem Teetering on a Tree, N.Y. TIMES, Feb. 8, 2000, at F5. The author notes that some experts believe that the source of up to 40 percent of a grizzly's winter fat layer is whitebark pine nuts. Id. The author also warns that long-term climate warming may kill 90 percent or more of the current whitebark pine population. Id. Additionally, pine groves already destroyed by European blister rust may take 500 to 700 years to regenerate. Id. This is rather grim prognosis for one of the bear's main food sources.
(143) 16 U.S.C. [sections] 1533(c), (f) (1994).
(144) Rausch, supra note 127, at 9. The Yellowstone population averaged about 220 in the 1960s, and one scientist believed that this figure may represent the carrying capacity of the park. Cole, supra note 128, at 275. The population in 1994 was estimated to be around 270. WILKINSON, supra note 6, at 74.
(145) 40 Fed. Reg. 31,733, 31,734 (July 28, 1975).
(146) See JOHN J. CRAIGHEAD ET AL., THE GRIZZLY BEARS OF YELLOWSTONE 277 (1995).
(147) Id. at 363. Researchers agreed with NPS's ultimate goal of eliminating the bear's reliance on human food sources, but recommended a 10-year gradual phase out of the dumps accompanied by an intensive monitoring program of 66 marked grizzlies. Id. NPS did not follow this advice and applied no adequate monitoring procedures after the closings and actually killed some marked bears in control measures or captured and removed the identifying tags on the marked bears. Id.
(149) Id. at 366.
(151) FWS published an intent to review this petition a month later. Grizzly Bear: Notice of Review and Status, 39 Fed. Reg. 11,611, 11,611-11,612 (Mar. 29, 1974).
(152) 40 Fed. Reg. 31,733, 31,734.
(153) 16 U.S.C. [sections] 1533(a)(1) (1994).
(154) 40 Fed. Reg. 31,733, 31,734.
(155) 16 U.S.C. [sections] 1533 (a)(1)(A).
(156) 40 Fed. Reg. 31,733, 31,734.
(157) 16 U.S.C. [sections] 1533 (a)(1)(B) (1994).
(158) 40 Fed. Reg. 31,733, 31,734.
(159) 16 U.S.C. [sections] 1533(a)(1)(C) (1994).
(160) 40 Fed. Reg. 31,733, 31,734.
(161) 16 U.S.C. [sections] 1533(a)(1)(D) (1994).
(162) 40 Fed. Reg. 31,733, 31,734.
(163) 16 U.S.C. [sections] 1533 (a)(1)(E) (1994).
(164) 40 Fed. Reg. 31,733, 31,734.
(165) Fund for Animals v. Babbitt, 903 F. Supp. 96, 111 (D.D.C. 1995), amended by 967 F. Supp. 6 (D.D.C. 1997).
(166) 50 C.F.R. [sections] 402.02 (1999).
(167) See Willcox, supra note 2, at 11 (noting that states in this area "are particularly vulnerable to influence and manipulation by extractive industries"). The author goes on to state, "work by state field-level biologists is ignored, if their recommendations counter the wishes of such industries." Id.
(168) Efforts to return grizzlies to the Selway-Bitterroot wilderness and central Idaho angered Republican U.S. senators from Montana, Wyoming, and Idaho who demanded that the Secretary abandon the efforts. Associated Press, Senator's Demand, `No Grizzlies in Selway-Bitterroot' or Central Idaho, Associated Press Newswires, Mar. 4, 1999, available at 1999 WL APWIRES 00:04:00. The senators also petitioned the Secretary to remove the grizzly from the endangered species lists entirely. Id. Idaho congressional representatives made their opinion known regarding reintroduction of the grizzly to the Bitterroot ecosystem. Oversight Hearing on the Reintroduction of the Grizzly Bear in the Public Domain Forests, H. REP. NO. 105-42 (1997). Representative Helen Chenoweth-Hage (R-Idaho) referred to the bear as a "lethal weapon" and voiced concerns over the effect introduction of the grizzly will have on forest lands that become grizzly habitat. Id. at 2-3. Senator Kempthorne (R-Idaho) also expressed concern over grizzly attacks on humans and cited examples of livestock ranch owners struggling economically to live with the bear present and preying on livestock. The Senator also noted that some scientists regard the grizzly as a recovered species in many areas. Id. at 7-8. Loggers and conservation groups met in May 1996 to discuss the reintroduction of grizzly bears. Timothy Egan, Look Who's Hugging Trees Now, N.Y. TIMES, at B28 (July 7, 1996). Suprisingly, both groups expressed interest: in quick and painless reintroduction. Id. Representative Chenowith, who pledged to defeat introduction plans and who stated that grizzlies are "manic-depressive animals' that she does not want to see in Idaho. Id. Senator Craig Thomas (R-Wyo.) blasted FWS for delaying delisting of the grizzly bear after Fish and Wildlife Director Jamie Rappaport-Clark indicated that the delisting process may begin in 1999 and questioned whether FWS would ever delist the bear. Associated Press, Thomas: Four Years too Long for Grizzly Delisting, Associated Press Newswires, Jan. 7, 2000, available at 1999 WL APWIRES 19:32:00.
(169) WILKINSON, supra note 6, at 81.
(170) Former Idaho Senator, Steve Symms (R-Idaho), staunchly defended ranchers' rights to shoot grizzlies that preyed on livestock and believes that grizzlies were exterminated from human populated areas for good reasons. Id. at 104.
(171) See David Mattson, The New World Mine and Grizzly Bears: A Window on Ecosystem Management, 15 J. ENERGY NAT. RESOURCES & ENVTL. L. 267, 286 (1995).
(172) See Associated Press, Sierra Club Says Rapid Growth Top Threat to Grizzly Bear Habitat, Associated Press Newswires, Nov. 22, 1999, available at 1999 WL APWIRES 17:53:00 (commenting on a report recently released by the Sierra Club that highlighted the destructive effect of development encroachments into the remaining grizzly habitat on private and state land); Spotlight on Species: Grizzly Bear (2000), available at http://www.sierraclub.com/ habitat/grizzly.asp.
(173) Committee on the Yellowstone Grizzlies, Report of Committee on the Yellowstone Grizzlies, (National Academy of Sciences, 1974) [hereinafter NAS Report, cited in David J. Mattson at John J. Craighead, The Yellowstone Grizzly Bear Recovery Program, in ENDANGERED SPECIES RECOVERY 101, 104 (Tim W. Clark et al. eds., 1994) [hereinafter ENDANGERED SPECIES RECOVERY]. The Interagency Grizzly Bear Strategy Team (IGBST) consisted of one member each from FWS, NPS, and USFS, along with cooperating state representatives from Montana, Idaho, and Wyoming. Id.
The National Academy of Sciences (NAS) recommended that non-agency scientists should conduct most of the IGBST's research. Id. at 105. However, the IGBST consisted of only two NPS personnel in 1994, a team that did not reflect NAS's recommendation and subjected grizzly bear research to control by a single agency. Id. at 104. After listing in 1975, an Interagency Steering Committee, composed of research administrators and mid-level managers, provided general review and direction for the IGBST. NAS Report, cited in ENDANGERED SPECIES RECOVERY, at 105.
(174) See Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (Dec. 28, 1973).
(175) Endangered Species Amendments of 1978, Pub. L. No. 96-159, 93 Stat. 1225 (1979) (codified at 16 U.S.C, [sections] 1533(f)).
(176) ENDANGERED SPECIES RECOVERY, supra note 173, at 105. Even this was largely a response to the problems caused by the rapid succession of dump closures between 1969 and 1971. Id.
(177) Even after listing, the government continued its traditional method of eliminating most grizzlies that wandered into conflicting situations with humans. WILKINSON, supra note 6, at 77-79.
(178) ENDANGERED SPECIES RECOVERY, supra note 173, at 105. Interestingly, a high ranking FWS biologist, Dick Knight, had recommended a more aggressive management strategy to the IGBST to forestall the rapid population decline. WILKINSON, supra note 6, at 78. Mr. Knight later said the management strategy up to that point was in his words "just like the bear wasn't listed." Id. The Interagency Steering Committee recognized the need for a new organizational management structure to formulate a more effective recovery strategy to save the grizzly from further population reductions. Id.
(179) See INTERAGENCY GRIZZLY BEAR COMMITTEE, INTERAGENCY GRIZZLY BEAR GUIDELINES (1986) [hereinafter GUIDELINES] (full text of the Interagency Grizzly Bear Guidelines on file with author or contact James Overbay, Regional Forester, USDA Forest Service, P.O. Box 7669, Missoula, Montana 59807, tel. 406-329-3316). The Interagency Grizzly Bear Committee (IGBC) is composed of high-level managers from all involved agencies, including the Bureau of Indian Affairs and state representatives from Washington, Idaho, Montana, and Wyoming.
(180) Id. at 3-5. The Guidelines describe five management situations depending on the importance of the area as grizzly habitat. Id. Only the first management situation, designated for important grizzly population centers, favors the bear's needs over competing land use values. Id. at 3. This category also provides that minimization of human-grizzly conflict will receive the highest management priority. Id. The IGBC originally drafted the Guidelines for only the Yellowstone area grizzly population. Interagency Guidelines of Management of Grizzly Bears, 50 Fed. Reg. 21,696, 21,696-21,701 (May 28, 1985). However, after notice and comment on the proposed Guidelines, the IGBC then expanded the Guidelines to all grizzly population segments before releasing the final version, Interagency Grizzly Bear Committee; Interagency Guidelines on Management of Grizzly Bears, 51 Fed. Reg. 42,863, 42,863-42,902 (Nov. 26, 1986).
(182) The Guidelines present five different management situations (MS). GUIDELINES, supra note 179, at 3-5. MS1 covers grizzly population centers along with areas containing vital habitat components needed for survival and recovery. Id. at 3. The Guidelines assign the highest priority management to this situation and call for management decisions that "favor the needs of the grizzly bear when grizzly habitat and other land use values compete." MS2 describes areas where grizzlies are occasionally present and some habitat components exist. Id. at 3-4. Management direction for this situation calls for accommodating demonstrated grizzly populations with other land use activities, although not to the exclusion of other uses. MS3 includes areas close to human development where grizzly presence is possible but infrequent and calls for active discouragement of grizzly bear presence and control of any grizzlies frequenting such areas. Id. at 4. MS4 is assigned to areas where grizzlies do not occur but the habitat is potentially suitable for bear occupancy. Id. at 4-5. This situation requires consideration of grizzly habitat maintenance and improvement in preparation for possible future reestablishment. Finally, MS5 covers unsuitable habitat where grizzlies do not or rarely occur and does not require consideration of grizzly needs in land management decisions. Id. at 5.
(182) 1993 RECOVERY PLAN, supra note 84, at 15-22.
(183) The GBRP's specific goals are to:
(1) Identify grizzly bear population goals that represent species recovery in measurable and quantifiable terms for the six ... ecosystems where the grizzly bear has suitable habitat. (2) Provide a population monitoring approach that will allow determination of recovered levels. (3) Identify population and habitat limiting factors that account for current populations existing at levels requiring threatened status under the Act. (4) Identify management measures needed to remove population and habitat limiting factors so that populations will increase and sustain themselves at levels identified as the recovery goals. (5) Establish recovered populations in each of the ecosystems where habitat is available to sustain a grizzly bear population.
Id at 15.
(184) Id. at 11 fig. 2. FWS recently finalized the plan to reintroduce a nonessential experimental population to the Bitterroot Mountains ecosystem bordering Idaho and Montana. Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Grizzly Bears in the Bitterroot Area of Idaho and Montana, 65 Fed. Reg. 69,624, 69,624-69,701 (Nov. 17, 2000) (to be codified at 50 C.F.R. pt. 17). FWS has completed the required NEPA analysis and intends to begin reintroduction of grizzlies to the area in about a year. Record of Decision Concerning Grizzly Bear Recovery in the Bitterroot Ecosystem, 65 Fed. Reg. 69,644, 69,644-69,701 (Nov. 17, 2000).
(185) 1993 RECOVERY Plan, supra note 84, at 145-47: see also infra Part IV.B.3.a. (discussing road management in grizzly bear habitats).
(186) 1993 RECOVERY PLAN, supra note 84, at 24-26; see also infra Part IV.B.3.b. (discussing criteria considered in determining population recovery).
(187) The recovery criteria are as follows: 1) number of females with cubs; 2) levels of human-caused mortality; and 3) distribution of family groups. 1993 RECOVERY PLAN, supra note 84, at 19. The levels for each criterion vary for each population segment. Id. at 39-122. The current levels for each criterion are very close to achieving the GBRP's recovery goals in the Yellowstone and Northern Continental Divide ecosystems at this point. Some commentators question the goals set by FWS for these populations segments, noting that FWS set the recovery goals very close to currently attained levels that are no higher than the levels that led to the bear's 1975 listing. WILKINSON, supra note 6, at 101.
(188) 1993 RECOVERY PLAN, supra note 84, at 16. The conservation strategy must ensure that "adequate regulatory mechanisms" will continue after delisting. Id. See also infra Part V.
(189) 1993 RECOVERY PLAN, supra note 84, at 21.
(190) Id.; Willcox, supra note 2, at 14. Bears use roads as travel corridors because of the ease of travel along roads as compared to through the forest. 1993 RECOVERY PLAN, supra note 84, at 145. This road use exposes bears to people and increases human-bear conflicts, such as illegal shooting and habituation to illegal feeding. Id. One study found that sixty-three percent of human-caused grizzly mortality occurred within one kilometer of a road. Id. Federal researchers in Yellowstone concluded that bears need contiguous, roadless areas of at least 5,000 acres, which translates to overall maximum road densities of one mile of road per square mile. Willcox, supra note 2, at 11. The author recounts the following sad story to illustrate the death toll that roads have on grizzlies:
On a cold day in November 1984, what may have been the last resident grizzly on the Targhee Forest's Madison Plateau, near Yellowstone Park's western border, was illegally shot. She was a sow ... trailed by two cubs. This sow had grown up roaming the high country on the west side of Yellowstone Park and the Targhee National Forest. Transformed in her lifetime, the forest was now characterized by roads and clearcuts, which etched a sharp ten-mile line defining Yellowstone Park's western border. One of the new roads had allowed the poacher into a small pocket of secure habitat on Black Mountain, where the bears were taking refuge.
Id. at 11. Other scientists are critical of allowing road densities of even one mile per square mile, instead advocating a maximum road density of 0.25 miles per square mile, which is much lower than road density standards being applied in National Forests surrounding Yellowstone. CRAIGHEAD ET AL., supra note 146, at 483.
(191) 1993 RECOVERY PLAN, supra note 84, at 145 (app. B).
(192) Id. at 22. The Ninth Circuit also acknowledged the importance of restricting excessive road densities in grizzly habitat. Swan View Coalition v. Turner, 145 F.3d 1341 (9th Cir. 1998) (unpublished table decision). The plaintiffs accused USFS of illegally taking grizzly bears by allowing excessive road densities in the Flathead National Forest. Id. Before the district court rendered its decision, the Ninth Circuit concluded in another case that USFS had violated section 7 of the ESA by unreasonably concluding that the projected timber sales and road densities in the Flathead Forest Plan would not adversely affect listed species. Id. (citing Resources Ltd. v. Robertson, 35 F.3d 1300 (1994)).
(193) See 1993 RECOVERY PLAN, supra note 84.
(194) This situation requires management decisions that favor grizzly bears' needs when other land use values compete with grizzly habitat. GUIDELINES, supra note 179, at 3. However, Forest Supervisors, Park Superintendents, and BLM managers identify the different management situations for their respective areas with no required scientific research to back up their reasoning for choosing a particular management situation.
(195) However, an argument does exist for treating the listing factors synergistically when assessing whether to delist a species. FWS must consider each listing factor individually, but delisting could occur even if one listing factor had not been fully accounted for in the species's recovery plan. Hence, one factor such as habitat may be in much better condition than at the time of the species's original listing, but another factor such as predation or disease may be essentially the same as at the time of listing. A court could then find that overall the species had recovered to the point where delisting is allowable under the ESA despite one factor responsible for the original listing not being fully accounted for. The court's decision in Fund for Animals v. Babbitt may allow this interpretation so long as FWS uses recovery criteria aimed at addressing each factor and considers each factor fully in formulating a recovery plan. 903 F. Supp. 96, 112 (D.D.C. 1995),
(196) 40 Fed. Reg. 31,733, 31,734 (July 28, 1975).
(197) Reducing road densities is perhaps the most important part of improving and preserving grizzly habitat, but other factors also exist that directly affect habitat. Timber cutting, encroachment of private development, mining, recreation, ranching, and the availability of human-related food sources all contribute to the reduction of prime grizzly habitat in areas surrounding grizzly core recovery zones. 1993 RECOVERY PLAN, supra note 84, at 21-22.
(198) The U.S. Congressional Research Service compiled a report for Congress that included findings stating that "substantial clearings and sustained human traffic ... could permanently eliminate grizzlies from this habitat." Id. Despite this report and supporting research by its own biologists, logging activities, and to a minor extent forest fires, removed seventy percent of the Targhee National Forest bordering Yellowstone National Park--an area partly designated as grizzly core habitat. Additionally, six miles of road per square mile now occur in some areas of the Targhee. Id. The Sierra Club sued USFS for allowing logging practices in the Targhee that harmed grizzly bear recovery. Chuck Lobdell, an FWS enforcement specialist, helped broker a settlement agreement mandating modified timber-cutting practices and road closures, Id. at 83. However, Targhee's forest supervisor refused to close any of the logging roads referred to in the settlement. Id. Lobdell wanted to file a lawsuit to force USFS to comply with the settlement, but FWS would not support him. Id. Lobdell noted that the GBRP does not require USFS to meet environmental performance standards, but he believes it should. Id. This scenario highlights the difficulty in enforcing recovery plans against other agencies. See infra Part V. An alternative to enforcing recovery plans is enforcement of section 7's restrictions on federal actions that may jeopardize an endangered species's continued existence. 16 U.S.C. [sections] 1536 (1994 & Supp. IV 1998). However, USFS has acquired a reputation for personally intimidating any biologist associated with grizzlies when scientific research indicated that timber sales would degrade bear habitat, seemingly violating section 7. WILKINSON, supra note 6, at 93-96.
(199) Instead, federal courts have replaced the role of FWS in requiring implementation of recovery plan requirements during section 7 consultation in two cases. In Resources Limited v. Robertson, the Ninth Circuit ordered the USFS to reconsult with FWS on the effect of the national forest plan for Flathead National Forest on the grizzly. 35 F.3d 1300 (9th Cir. 1994). FWS had earlier issued a no jeopardy biological opinion to USFS under section 7(a)(2) that was contingent on the Forest Service's adoption of specific requirements from the Grizzly Bear Guidelines. The court used the language of the GBRP to establish that FWS had required the guidelines to prevent extinction. Id. at 1304. A federal district court also used the GBRP to issue a preliminary injunction against grizzly bear hunting authorized by FWS regulations. Fund for Animals v. Turner, 1991 WL 206232 (D.D.C. 1991) (mem. op.).
(200) 1993 RECOVERY PLAN, supra note 84, at 23-25.
(201) E.g., Internationally renowned conservation biologist, Mark Shaffer, commented that setting aside habitat corridors between Yellowstone and other ecosystems is vital to ensure the necessary bear migration between populations to maintain a viable grizzly population in the coterminous United States. Id. at 74-75.
(202) Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C. 1995), amended by, 967 F. Supp. 6 (D.D.C. 1997).
(203) 1993 RECOVERY PLAN, supra note 84, at 24. FWS's analysis of habitat-based recovery criteria noted that the final linkage zone report was to appear at the end of 1999; however, the report is yet to surface. See U.S. FISH AND WILDLIFE SERVICE, AVAILABILITY OF DRAFT HABITAT-BASED RECOVERY CRITERIA FOR THE GRIZZLY BEAR (URSUS ARCTOS HORRIBILIS) FOR REVIEW AND COMMENT 9 (1999) [hereinafter RECOVERY CRITERIA].
(204) 1993 RECOVERY PLAN, supra note 84, at 25.
(205) The GBRP relies on current management strategies that limit human-induced mortality to maintain the viability of linkage zones during the five-year evaluation period. Id. at 26. This approach misses the point entirely because habitat destruction is the main threat to these linkage corridors.
(206) See 16 U.S.C. [sections] 1533(f) (1994 & Supp. III 1997). Additionally the court in Fund for Animals v. Babbitt stated that a recovery plan is "simply not good enough" if it relies on "the promise of ... recovery criteria some time in the future." 903 F. Supp. at 112.
(207) 1993 RECOVERY PLAN, supra note 84, at 19. The GBRP designates three recovery criteria: "(1) the number of unduplicated females with cubs seen annually, (2) the distribution of females with young or family groups throughout the ecosystem, [and] (3) the annual number of known human-caused mortalities." Id. The goals for these criteria are set at different levels for each grizzly population. Id. at 33-34.
(208) At the IGBC's annual year-end summit in 1993, Committee members voted unanimously, with no advance warning, to delete the Yellowstone population from the federal threatened species list. WILKINSON, supra note 6, at 66. One newspaper quoted Christopher Servheen (the federal grizzly bear recovery coordinator) as saying "[t]hings are going well now, and we should take advantage of that by removing the grizzly from the threatened list. If all goes well, we'll propose a status change this year." Editorial, Grizzly Bears Not Ready to Lose ESA Protection, IDAHO STATESMAN, Dec. 3, 1998, at B6. The report went on to criticize this statement citing evidence of the bear's current low population and the disappearance of its remaining habitat. Id. Another newspaper commented on the same issue, criticizing the FWS plan to delist the grizzly as driven by politics with little basis in science. Todd Wilkinson, Push to End Grizzlies' Protected Status is Unsupported by Science, DENV. POST, Sept. 13, 1998, at G1. The article cited FWS's treatment of its ex-lead biologist, David Mattson, who had the temerity to voice restraint concerning delisting plans. Id. The article accused FWS of improperly firing Mattson, later raiding his office, and confiscating public data. Id.
(209) 16 U.S.C. [sections] 1533(f)(1)(B) (1994 & Supp. IV 1998).
(210) E.g., CRAIGHEAD ET AL., supra note 146, at 464-67; Fund for Animals v. Babbitt, 903 F. Supp. 96, 101 (D.D.C. 1995) (describing the environmental plaintiffs' assertions in their initial briefs filed with court).
(211) See ENDANGERED SPECIES RECOVERY, supra note 173, at 106-07. Mattson advocates including normative criteria that define recovery including time frames for management and levels of confidence required to implement management techniques, allocating the burden of proof, and setting explicit biological population goals. Id. at 107. Mattson feels that including normative recovery criteria could redress the balance between agency discretion and the requirement to base recovery criteria on biological science only. Id.
(212) See id. at 106-07.
(213) 903 F. Supp. 96 (D.D.C. 1995), amended by. 967 F, Supp. 6 (D.D.C. 1997).
(214) Id. (the suit disputed the adequacy of FWS's recovery plan, alleged deficiencies in efforts the Secretary made to fulfill obligations to protect the grizzly under the ESA, and disputed the Secretary's denial of a petition to designate critical habitat for the bear).
(215) 16 U.S.C. [sections] 153s(f)(1)(B)(i) (1994).
(216) 903 F. Supp. at 106.
(217) See Id. at 107-08.
(218) Id. at 107.
(219) Id. The court pointed to a few differences in management actions between recovery zones, including: the GBRP recommends introduction of one bear into the Yellowstone system every ten years to maintain genetic diversity, and the GBRP promises to develop separate minimum habitat values for each ecosystem. Id. (citing 1993 RECOVERY PLAN, supra note 84, at 55-56, 76, 96, 113).
(220) 903 F. Supp. at 107.
(223) Some may argue that recovery plans actually are meaningless for some species. For example, an argument could be made that the peregrine falcon's recovery was almost entirely due to the ban on DDT and had little if anything
to do with the recovery plan formulated by FWS.
(224) Section 7 requires that "all other federal agencies shall utilize their authorities ... [to carry] out programs for the conservation of [listed] species." 16 U.S.C. [sections] 1536(a)(1) (1994). The ESA defines "conservation" as facilitating recovery. Id. [sections] 1532(3). Section 7 also requires that an action agency in charge of a federal action that may jeopardize a listed species or adversely affect critical habitat must consult with FWS or NMFS to ensure that the federal action will not jeopardize a listed species or adversely affect critical habitat. Id. [sections] 1536(a)(2). FWS customarily produces biological opinions that allow the agency action to go ahead with conditions to limit adverse affects. This creates a situation in which a species is incrementally moved towards jeopardy and away from recovery. Meanwhile, the mandate that federal agencies conserve species is not enforced. Therefore, the balance Congress attempted to achieve in section 7 between allowing federal actions to go ahead while managing a species towards recovery is frustrated. See J.B. Ruhl, Section 7(a) (1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies' Duty to Conserve Species, 25 ENVTL. L. 1107, 1107-63 (1995) (concluding that section 7(a)(1) should require that all federal agencies share the burdens of species recovery).
(225) This is particularly cogent to grizzly bear recovery as demonstrated by the Ninth Circuit's decision in Friends of the Wild Swan v. Babbitt, 168 F.3d 498 (9th Cir. 1999) (unpublished table opinion). In this unpublished disposition, the court refused to find that USFS, action agency for the Swan Valley Grizzly Bear Conservation Agreement, violated the section 7(a)(1) "duty to conserve" mandate when the agency issued an incidental take statement to Plum Creek Timber Company and the State of Montana allowing higher road densities than those applied to the rest of the Flathead National Forest despite the possible adverse effects on grizzly habitat. Id.
(226) It is unlawful for any person to take any species listed pursuant to section 4 of the ESA. 16 U.S.C. [sections] 1538(a) (1994). Section 3 defines take as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. [sections] 1532(19) (1994). The Supreme Court has upheld a regulation that interprets the term "harm" in section 9's prohibition on taking listed species to include destruction or modification of a listed species's habitat on public or private land if it actually kills or injures wildlife. Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Oregon, 515 U.S. 68, 708 (1995); see also Palila v. Hawaii Dep't of Land & Natural Resources, 649 F. Supp. 1070 (D. Haw. 1986), aff'd, 852 F.2d 1106 (9th Cir. 1988). In practice, however, FWS rarely enforces the section 9 take prohibition and whenever possible uses the section 10 Incidental Take Permit process for developments that may take listed species.
(227) 16 U.S.C. [sections] 1593 (a)(2)(A) (1994). See also United States Fish and Wildlife Service and National Marine Fisheries Service, Habitat Conservation Plan Handbook, 1-1 to 17 (1996); Notice of Availability of a Draft Addendum to the Final Handbook for Habitat Conservation Planning and Incidental Take Permitting Process, 64 Fed. Reg. 11,485 (Mar. 9, 1999).
(228) The Clinton administration's emphasis on HCP planning, which allowed incidental take of listed species for private property development, garnered much criticism. See, e.g., LAURA C. HOOD, FRAYED SAFETY NETS: CONSERVATION PLANNING UNDER THE ENDANGERED SPECIES ACT 52-76 (1998). The author criticizes the HCP Handbook because it does not require that HCPs contribute to recovery but only discourages HCPs that are inconsistent with recovery--those that do not result in jeopardy. Id. at 52. The HCP Handbook regulations do not even require the action agency to check whether HCPs are consistent with recovery plans. See id. at 52-53; Graham M. Lyons, Habitat Conservation Plans: Restoring the Promise of Conservation, 23 ENVIRONS ENVTL, L. & POL'Y J. 83 (1999) (concluding that the HCP program has lost sight of Congress's original goal to recover all listed species and has actually allowed unmitigated take of listed species and permanent conversion of their habitat); Jennifer Jester, Habitat Conservation Plans Under Section 10 of the Endangered Species Act: The Alabama Beach Mouse and the Unfulfilled Mandate of Species Recovery, 26 B.C. ENVTL. AFF. L. REV. 131 (1998) (finding that the HCP program effectively sanctions a "survival standard" instead of the "recovery standard" required by the ESA's conservation mandate); Jon P. Tasso, Habitat Conservation Plans as Recovery Vehicles: Jump-Starting the Endangered Species Act, 16 UCLA J. ENVTL. L. & POL'Y 297 (1997-1998) (advocating integration of recovery plans and HCPs to promote long-term recovery of listed species). But cf. J.B. Ruhl, How to Kill Endangered Species, Legally: The Nuts and Bolts of Endangered Species Act "HCP" Permits for Real Estate Development, 5 ENVTL. L. 345 (1999) (concluding that the current HCP program is sufficiently flexible to accommodate development and listed species recovery).
(229) Fund for Animals v. Babbitt, 903 F. Supp. 96, 108 (D.D.C. 1995), amended by, 967 F. Supp. 6 (D.D.C. 1997).
(231) Id. "For the Court to insist that the FWS impose different road density standards would be to interfere with the agency's discretion in designing management actions." Id.
(232) Id. at 110.
(233) WILKINSON, supra note 6, at 72 (noting evidence of grizzly presence in the Gros Ventre, Wind River, and Bighorn Mountains, sightings close to Cody and Jackson Hole, Wyoming, and Bozeman, Montana, and reports of colonization in the Crazy Mountains, the Gravelly Range, the Tobacco Roots, and the Caribou Mountains). See also Todd Wilkinson, Push to End Grizzlies' Protected Status is Unsupported by Science, DENV. POST, Sept. 13, 1998, at G1. While appearances of bears in such areas bolster arguments that the bear is recovering and expanding its range, a reduction in one of the bear's main food sources could also cause expansion into new areas. The GBRP's recovery criteria cannot account for the root cause of such a range expansion, highlighting another inadequacy in the recovery criteria to assess true grizzly recovery.
(234) WILKINSON, supra note 6, at 111.
(235) Id. at 104.
(236) Id. (citing 16 U.S.C. [sections] 1533(c)(2)(B)(i) (1994)).
(237) Id. at 105 (citing Northern Spotted Owl v. Hodel, 716 F. Supp. 479, 480 (W.D. Wash. 1988)). Interestingly, the court found that FWS failed to meet its obligation under the ESA by not considering whether disease is a threat to the bear despite that fact that disease was not mentioned as a listing factor when DOI initially listed the bear. Fund for Animals v. Babbitt, 903 F. Supp. 96, 113 (D.D.C. 1995), as amended 97 F. Supp. 6 (D.D.C. 1997). The court appears to require an analysis of all five listing criteria prior to delisting even if one or more factors were not addressed in the original listing decision. Id.
(238) A recovery plan must include "objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list...." 16 U.S.C. [sections] 1533 (f)(1)(B)(ii) (1994).
(239) 903 F. Supp. at 110.
(240) The actual GBRP recovery criteria are: "(1) the number of females with cubs seen annually over a six-year period; (2) the distribution of females with cubs throughout the ecosystem over a six-year period; and (3) the annual number of human-caused mortalities." Id. at 111 (citing 1993 RECOVERY PLAN, supra note 84, at 19). One scientist described these criteria as arbitrary, meaningless, and politically capricious. WILKINSON, supra note 6, at 74. The recovery plan criteria indicate that the recovery goals are already being met. However, another FWS biologist describes the process of setting and measuring recovery criteria as "doing chin-ups with bear recovery after lowering the bar down to chest level." Id. In response, Chris Servheen, the IGBC coordinator, noted that the Yellowstone grizzly population has risen from 229 in the late 1960s to a 1994 population of 270 that is probably closer to 400. Id. However, conservation biologist and grizzly expert, Mark Shaffer, believes that the government excessively underestimated the grizzly's viable population size. Id. Former FWS biologists also expressed doubt that the criteria could even accurately count the Yellowstone grizzly population due to the likelihood of errors and an inescapable methodological bias in the criteria. See CRAIGHEAD ET AL., supra note 146, at 446-52.
(241) 903 F. Supp. at 111 (citing 16 U.S.C. [sections] 1533(f)(1)(B)(ii) (1994)).
(243) Id. at 113. After the plaintiffs conceded that no current threat of disease to grizzlies existed, the court still specifically found that "[by] wholly failing to consider whether there is a need or an appropriate means of monitoring whether disease is a threat to the grizzly bear, the FWS has failed to meet its obligation under the ESA." Id.
(244) Id. at 112-13.
(245) Legislative News, ENDANGERED SPECIES UPDATE, Mar.-Apr. 1999, at 41.
(246) The groups insist on an accurate count before FWS considers any delisting determination. Id. (citing GREENLINES, Feb. 10, 1999).
(247) Memorandum from Regional Solicitor, USDI, Denver, Colorado, to Regional Director, Region 6 (May 20, 1999) (on file with author) [hereinafter FWS FINDINGS].
(248) Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C. 1995). The settlement was approved by the federal district court. Fund for Animals v. Babbitt, 967 F. Supp. 6 (D.D.C. 1997).
(249) FWS FINDINGS, supra note 247, at 2. FWS also agreed to address all five listing factors before publishing any rulemaking and promised to assess threats posed by any of these factors before publishing any rulemaking. Id. at 3.
(250) Id. at 1-2. The additional issues remanded by the federal court were consideration of whether disease is a threat to the bear; how the human-caused mortality criteria assess the threat caused by livestock predation: and whether FWS relied on the existence of Canadian bears as a source population in calculating population targets. Id.
(251) RECOVERY CRITERIA, supra note 203.
(252) Fund for Animals v. Babbitt, 903 F. Supp. at 114.
(253) FWS FINDINGS, supra note 247, at 31.
(254) Id. at 29.
(255) Id. at 34.
(256) Fund for Animals v. Babbitt, 903 F. Supp. at 113.
(257) FWS FINDINGS, supra note 247, at 28.
(258) 903 F. Supp. at 112 (referring to FWS's argument that the Plan's requirement of implementation of a conservation strategy before delisting addresses the lack of current inclusion of habitat-based criteria).
(259) The findings did address additional minor issues remanded by the federal court in Fund for Animals v. Babbitt. Id. The memorandum found that FWS has always monitored grizzly bear deaths resulting from interaction with livestock. FWS FINDINGS, supra note 247, at 28. FWS also found that examining dead bears constituted sufficient current disease monitoring. Id. at 27. However, FWS did acknowledge the impact that white pine blister rust may have on grizzly populations and established a protocol to monitor the spread of the disease. Id. Finally, FWS defended its reliance on Canadian bear populations to supplement U.S. populations along the U.S.-Canada border by noting that the Canadian government had implemented a number of management strategies to conserve grizzly populations across the border--although Canada does not have an ESA equivalent. Id. at 27-28.
(260) RECOVERY CRITERIA, supra note 203.
(261) Id. at 12.
(263) See CRAIGHEAD ET AL., supra note 146, at 464. Three grizzly bear biologists created recovery goals based on their research. Their summarized recovery goals are: 1) specific protection of adequate and appropriate habitat; 2) a population sufficiently large to allow persistence for at least 100 years; 3) little or no human-caused mortality; 4) new more precise and less intrusive monitoring techniques; and 5) negotiation of an agreement between the United States and Canada for cooperative protection of grizzly habitat. Id. The authors also discussed how to achieve these goals. Id. at 464-73.
(264) The section 7(a)(1) duty to conserve seems to require implementation of measures that will aid species recovery, but FWS has not enforced this section when consulting with agencies such as USFS under section 7.
(265) See, e.g., Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547 (11th Cir. 1996) (holding that section 4(f) "makes it plain that recovery plans are for guidance purposes only"); Strahan v. Linnon, 967 F. Supp. 581, 597 (D. Mass, 1997) (holding that recovery plans are not documents with the force of law). For a thorough analysis of the implementation and enforcement of recovery plan requirements, see Federico Cheever, The Road to Recovery: A New Way of Thinking About the Endangered Species Act, 23 ECOLOGY L.Q. 1, 59-68 (1996).
(266) 16 U.S.C. [sections] 1533(f)(1) (1994). ("The Secretary [of Commerce or Interior] shall develop and implement [recovery] plans.").
(267) Jason M. Patlis, supra note 90, at 73-74.
(268) ROHLF, supra note 2, at 91 n. 25.
(269) See, e.g., Morrill v. Lujan, 802 F. Supp. 424, 433 (S.D. Ala. 1992) (holding that the contents of recovery plans are discretionary as evidenced by the statutory language "to the maximum extent practicable"); Strahan v. Linnon, 967 F. Supp. at 598 (noting that an agency cannot be forced into including specific measures in a recovery plan). However, the D.C. federal district court did hold that Section 4(f) does not allow an agency "unbridled discretion" and requires an agency to fulfill the requirements to the extent "feasible or possible." Fund for Animals v. Babbitt, 903 F. Supp. 96, 107 (D.D.C. 1995), amended by, 967 F. Supp. 6 (D.D.C. 1997).
(270) See Cheever, supra note 265, at 68-72.
(271) One commenter claims that wildlife biologists allege that USFS and IGBC are playing a shell game. WILKINSON, supra note 6, at 82. The IGBC Director avoids responsibility to protect bear habitat from USFS, which then says that enforcing environmental laws that protect threatened species is FWS's responsibility. Both agencies than refer back to the recovery plan and avoid responsibility for destruction of grizzly habitat. Id. This scenario ultimately led to destruction of bear habitat in seventy percent of the Targhee National Forest bordering the west edge of Yellowstone National Park until the Sierra Club and several other environmental organizations eventually sued and brokered a settlement agreement to close hundreds of miles of logging roads (although USFS then refused to comply with some of the agreed upon road closures). Id.
(272) National Forest Management Act of 1976, 16 U.S.C. [subsections] 1600-1614, 472a, 521b (1994 & Supp. IV 1998) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476 (1974)).
(273) Recovery plans for many species fail to provide adequate management for recovery by setting recovery goals so low that they could not significantly increase the chance of species survival. Timothy H. Tear et al., Status and Prospects for Success of the Endangered Species Act: A Look at Recovery Plans, 262 Sci. 976 (1993).
(274) See infra Part V.A. (discussing ESA protections for delisted species).
(275) See infra Part V.B. (discussing the draft Conservation Strategy for the Yellowstone grizzly bear population).
(276) See Endangered Species Act of 1973, Pub. L. No. 93-205, 81 Stat. 884 (1973).
(277) Endangered Species Act Amendments of 1988, Pub. L. No. 100-478, 102 Stat. 2306 (1988).
(278) 16 U.S.C. [sections] 1533(g) (1994).
(279) Id. [sections] 1533(g)(1). Congress added the new sections in the 1988 amendments to improve progress toward recovery and delisting of protected species. See S. REP. No. 100-240 (1988), reprinted in 1988 U.S.C.C.A.N. 2700.
(280) 16 U.S.C. [sections] 1533(g)(2) (1994).
(281) S. REP. No. 100-240, at 1 (1988), reprinted in 1988 U.S.C.C.A.N. 2700, 2701.
(283) 16 U.S.C. [subsections] 703-712 (1994 & Supp. IV. 1998). The Act makes it illegal to take, kill, or possess any migratory birds listed under the Act. Id. [sections] 703. The Act also provides limited habitat protection for migratory birds. See Scott Finet, Habitat Protection and the Migratory Bird Treaty Act, 10 TUL. ENVTL. L.J. 1, 15 (1996) (describing how the Act may help prevent extinctions by protecting migratory bird habitat).
(284) 16 U.S.C. [sections] 668-668d (1994). If the Secretary makes a final determination to delist the bald eagle, this Act prevents the taking or transport of bald and golden eagles, their nests, or eggs. Id. The definition of take under this Act does include the terms "molest" and "disturb," but it is as yet unclear whether it is possible to interpret these terms to include destruction of habitat. Id. at [sections] 668c. A federal district court did note that the "take" definition under the Act indicates that Congress intended to regulate conduct beyond hunting and poaching, but did not specify habitat destruction as regulated conduct. United States v. Moon Lake Elec. Ass'n, 45 F. Supp. 2d 1070, 1086 (D. Colo. 1999).
(285) 16 U.S.C. [subsections] 701, 1540, 3371-3378; 18 U.S.C. [sections] 42 (1994). Congress passed the Lacey Act in 1900. Ch. 553, 31 Stat. 187 (May 25, 1900) (codified as amended at 16 U.S.C. [sections] 3372 (1994)). This Act authorizes federal enforcement of state and foreign wildlife laws, particularly those pertaining to commerce in, and taking of, wildlife. 16 U.S.C. [sections] 3372 (1994). See also supra note 22.
(286) 16 U.S.C. [sections] 668dd-668ee (Supp. IV 1998). This Act provides probably the strongest protection for individual species on public lands outside of the ESA. The Act provides that the National Wildlife Refuge System is committed to the "conservation, management, and ... restoration of fish, wildlife, and plant resources and their habitats within the United States." Id. [sections] 668dd(a)(4). FWS administers the Refuges and according to the Act, must maintain "the biological integrity, diversity, and environmental health" of the Refuge System. Id. [sections] 668dd(4)(b).
(287) 43 U.S.C. [subsections] 1701-1785 (1994 & Supp. IV 1998). See also supra text accompanying notes 229-39.
(288) 16 U.S.C. [subsections] 472a, 521b, 1600, 1611-1614 (1994 & Supp. IV 1998).
(289) Many of the federal statutes are only enforceable on federal land, therefore, state statutes and regulations are extremely important in managing continued recovery of delisted species on state and private land. Many states have their own endangered species acts, although most only regulate conduct on state land. See also infra text accompanying notes 234-248.
(290) See supra note 115.
(291) Doremus, supra note 119, at 10,449.
(292) CONSERVATION STRATEGY, supra note 124.
(293) See id. The Conservation Strategy (CS) lists its twin purposes as follows:
1) Describe and summarize the coordinated efforts to manage the grizzly bear population and its habitat, and the public education/involvement efforts that will be applied to ensure continued conservation of the grizzly bear in the greater Yellowstone area: and 2) Document the regulatory mechanisms that exist to maintain the Yellowstone population as recovered through the legal authorities, policy, guidelines, management programs, monitoring programs, and the commitment of participating agencies.
Id. at 2.
(294) The Primary Conservation Area (PCA) is identical to the GBRP's Yellowstone recovery zone. Id. at 20. The CS also provides for modification of the size or shape of the PCA if new information or research indicates that a change is necessary. Id. at 18. Of course, the agencies involved could just as easily decrease the area as increase it.
(295) Id. at 20.
(296) Id. at 22-23. The ten mile zone includes a further 5,288 square miles. Id. at 21.
(297) Id. at 20. About 40 percent of the PCA is National Park land and about 59 percent is National Forest land (36 percent in Wilderness Areas). Id.
(298) Id. at 20-21.
(299) See GUIDELINES, supra note 179, at 3-4.
(300) CONSERVATION STRATEGY, supra note 124, at 22.
(302) Id. at 23.
(303) See WILKINSON, supra note 6, at 73. Residential development and livestock ranching dominate the major lowland river valleys on the borders of Yellowstone National Park. Id. An expansion of bear populations inevitably leads to individual bears wandering into these areas from which it is difficult for the bear to escape alive. Id. These areas are known as population sink areas, or more colloquially, black holes. Id. These areas become significantly more important if the grizzly population in the Park reaches carrying capacity and the grizzly is presumably more likely to be delisted. Cole, supra note 128, at 275 (describing the elimination of bears ranging outside the Park's boundaries through hunting and trapping). This scenario highlights the need for the Conservation Strategy to provide adequate protection of habitat in these areas.
(304) Swan Valley in northwestern Montana provides a sobering example. Grizzlies live in mountain ranges on both sides of the valley, but are finding travel across the valley floor increasingly difficult because of rapid development. Kristy J. Pelletier & Christopher Servheen, Grizzlies in Swan Valley, ENDANGERED SPECIES BULL., Sept.-Oct. 1995, at 22. This results in the grizzly population of the Mission Mountains on the west side of the valley becoming isolated from the main population on the east side. Id. Currently, FWS and local landowners are trying to work together to create private land management recommendations in the valley that conserve some valley floor habitat as a linkage zone joining the two populations. Id. at 22-23. Unfortunately, delisting would probably eliminate any incentive for private landowners to continue applying these cooperative ventures.
(305) 1993 RECOVERY PLAN, supra note 84, at 19 & 39-58.
(306) CONSERVATION STRATEGY, supra note 124, at 24. The CS specifies calculation of this goal using survival and reproductive rates. Id.
(307) Id. at 25.
(308) Id. at 26-27. This is especially important in non-PCA areas where a significant portion of suitable grizzly habitat lies on state or private land. The CS acknowledges this importance and actually requires Montana to alter its current law, allowing citizens to kill grizzlies threatening livestock, before the Secretary will propose delisting. Id. at 93-94.
(309) Id. at 27.
(310) The whitebark pine is suffering from a disease epidemic and may disappear entirely from the southern part of its range if global warming continues. Robbins, supra note 142. Cutthroat trout could decline severely over the next few years because of illegal introductions of exotic lake trout to Yellowstone Lake resulting in a lost food source for the grizzly--lake trout are deep-water fish remaining out of reach of hungry grizzlies. WILKINSON, supra note 6, at 76.
(311) USFS approved oil and natural gas leases in the Shoshone National Forest east of Yellowstone despite a biological opinion from an FWS biologist that this action could interfere with the grizzly's use of army cutworm moth hatching sites. Id. at 94.
(313) D.J. Mattson, Grizzly Bear Mortality, Human Habitation, and Whitebark Pine Seed Crops, 56 J. WILDLIFE MGMT. 432-42 (1991).
(314) CONSERVATION STRATEGY, supra note 124. at 33.
(316) Id. at 76-81.
(317) Id. at 82-86. The CS defines an unnaturally aggressive bear as one that displays behavior such as: "active predation on humans, approaching humans or human use areas, such as camps, in an aggressive way, or aggressive behavior when the bear is unprovoked by self-defense, defense of cubs, defense of foods, or in a surprise encounter." Id. at 83.
(318) Id. at 79-101.
(319) ch. 553, 31 Stat. 187 (May 25, 1900) (codified as amended at 16 U.S.C. [sections] 3372 (1994).
(320) WILKINSON, supra note 6, at 103.
(321) National Forest Management Act of 1976, 16 U.S.C. [subsections] 1600-1614, [sections] 1604 (1994 & Supp. IV 1998) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476 (1974)). This section sets out the requirements of formulating a National Forest LRMP and requires an interdisciplinary approach considering physical, biological, economic, and other sciences. Id. [sections] 1604(b).
(322) 36 C.F.R. [sections] 219.19 (2000).
(323) CONSERVATION STRATEGY, supra note 124, at 99-100. These LRMPs contain specific provisions for managing grizzlies, including after delisting. The level of protection guaranteed in each varies considerably. For example, the Beaverhead-Deerlodge National Forest LRMP merely requires implementation of management actions and protective measures regarding grizzlies that are consistent with Management Area goals, whereas the Targhee National Forest LRMP provides a detailed list of management actions and protections--probably resulting from criticism and a settled lawsuit--should FWS delist the grizzly. Id.
(325) U.S. FOREST SERVICE, FOREST SERVICE MANUAL [sections] 2672.1 (1991).
(327) Federal Land Policy and Management Act of 1976, 16 U.S.C. [subsections] 1701-1777 (1994 & Supp. IV 1998).
(328) Id. [sections] 1701 (a)(8).
(329) 16 U.S.C. [sections] 1 (1994).
(330) See Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065, 1074 (9th Cir. 1997) (upholding NPS's decision to permit commercial fishing in non-wilderness areas of Glacier Bay National Park).
(331) National Wildlife Fed'n v. National Park Serv., 669 F. Supp. 384, 387 (D. Wyo. 1987).
(332) Willcox, supra note 2, at 6.
(333) Id. at 15.
(334) CONSERVATION STRATEGY, supra note 124, at 24.
(335) Id. at 18. The CS refers to a strong foundation of state law and policy to bolster this commitment. Id.
(336) Id. at 93.
(337) Id. at 94.
(338) Many of the low-lying valleys that provide expansion routes for a recovering population are covered by cattle ranches that are rapidly undergoing a transformation into subdivisions. WILKINSON, supra note 6, at 109. Holly Doremus has suggested conservation agreements between landowners, federal and state officials, and the Services, setting out the protections required by the species and means of ensuring those protections. Doremus, supra note 119, at 10,453. She suggests that these agreements should include sufficient provisions, enforceable both by FWS and by means of citizen suits, to ensure the long-term safety of the species. Id.
(339) WILKINSON, supra note 6, at 109. Knight further admits "we couldn't protect the Targhee from widespread clearcutting [sic] and roadbuilding [sic] in grizzly habitat, even under the Endangered Species Act. You get an administrator who wants to get around a law, and he'll do it." Id. (internal quotations omitted).
(340) 50 C.F.R. [sections] 424.30 (2000) (outlining emergency relisting procedures).
(341) WILKINSON, supra note 6, at 108-09.
(342) Id. at 109. The Wise Use movement supports the idea that any government action affecting the value of a property right is a partial taking and creates a right to compensation. Ken Burton, Secretary Babbitt Addresses the Impact of Endangered Species Protection on Private Landowners, ENDANGERED SPECIES TECHNICAL BULL., Jan.-Feb. 1994, at 3 (reporting on Secretary Babbitt's view that the Endangered Species Act has not worked widespread hardship on private property owners). For a detailed description of the Wise Use movement in a historical context, see Lincoln L. Davies, Lessons for an Endangered Movement: What a Historical Juxtaposition of the Legal Response to Civil Rights and Environmentalism Has to Teach Environmentalists Today, 31 ENVTL. L. 229, 337-42 (2001).
(343) FWS recently issued a final rule for the introduction of this experimental population. Endangered and Threatened Wildlife and Plants; Establishment of Non-Essential Experimental Population of Grizzly Bears in the Bitterroot Area of Idaho and Montana, 65 Fed. Reg. 69,624 (Nov. 17, 2000) (to be codified at 50 C.F.R. pt. 17). For examples of local political criticism of this decision, see supra note 168. In addition, Idaho Governor Dirk Kempthorne (R), in response to the final reintroduction decision, characterized the grizzly as a "flesh eating, antisocial animal" and labeled the final rule approving reintroduction as "the first federal policy that knowingly can and will lead to the death of citizens." Idaho to Hire Lawyers to Battle Federal Plan to Bring in Grizzlies, IDAHO STATESMAN, Dec. 13, 2000, at A5.
(344) Governor Dirk Kempthorne (R), state attorney general Al Lance (R), House speaker Bruce Newcomb (R), and Senate president pro tern Robert Geddes (R), among others, have hired outside counsel to fight the reintroduction in court touting the action as potentially a "precedent setting case." Id.
(345) Fund for Animals v. Babbitt, 903 F. Supp. 96, 108-115 (D.D.C. 1995), amended by, 967 F. Supp. 6 (D.D.C. 1997).
(346) Mattson, supra note 139.
(347) A bilateral initiative between Canadian and American scientists called Yukon to Yellowstone, which was aimed at protecting available grizzly habitat and linkage zones between disjunct populations, identified the grizzly as an umbrella species, protection of which would provide benefits to species having similar habitat requirements. WILKINSON, supra note 6, at 105-06.
(348) Many FWS biologists admit that political considerations unavoidably play a part in listing determinations. YAFFEE, supra note 27, at 87.
(349) See supra note 61. Despite ESA protection, some species still become extinct. Additionally, some species may have remaining habitats so small that recovery planning will never lead to restoring a viable population that can survive without the aid of the ESA. Id.
(350) Doremus, supra note 119.
(351) The low number of delistings in the twenty-seven year history of the ESA indicates that any conclusion that all species will eventually be recovered and delisted is deeply flawed. Id.
(352) It remains to be seen how the new George W. Bush Administration will approach these problems.
(353) See discussion supra Parts III.E, IV.
(354) See Paul Ehrlich, The Loss of Biodiversity, in BIODIVERSITY (E.O. Wilson ed., 1986). Congress envisioned these interactions when it initially enacted the ESA, noting that the "need to protect endangered species goes beyond the aesthetic ... [because] many of these animals perform vital biological services to maintain a `balance of nature' within their environments ... [highlighting] the need for biological diversity for scientific purposes." S. REP. No. 93-307, at 1 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2990. The prognosis for reauthorization in the near future is not good. A Preview: The 2000 Session of the 106th Congress, JUD. & LEGIS. WATCH REP., Jan. 2000, at 1, 3 ("[W]ith both environmentalists and conservatives opposed to the most recent effort to reauthorize the endangered species program ... [the ESA] seems to be one of the more unlikely areas for successful legislative advance.").
(355) Paul Ehrlich, The Loss of Biodiversity, in BIODIVERSITY (E.O. Wilson ed., 1986).
(356) One commentator advocates an approach that restructures the recovery plan approach to prioritize species that contribute to biodiversity, thus leading to recovery of other species that fall under the umbrella of these indicator species. Daniel J. Rohlf, Six Biological Reasons why the Endangered Species Act Doesn't Work--and What to Do About It, CONSERVATION BIOLOGY, Sept. 1991, at 273, 275. The agencies responsible for implementing the ESA are leaning towards an ecosystem approach to conserving species. See Endangered and Threatened Wildlife and Plants; Notice of Interagency Cooperative Policy for the Ecosystem Approach to the Endangered Species Act, 59 Fed. Reg. 34,274 (July 1, 1994) (codified at 50 C.F.R. pt. 17) (advocating group listings on a geographic, taxonomic, or ecosystem basis where possible and expanding the scope of recovery programs to address ecosystem conservation).
(357) See Kunich, supra note 45, at 572-78 (1994) (advocating a shift from saving endangered species to maintaining biodiversity through protection of ecosystems).
(358) See supra note 224.
(359) See supra p. 388.
(360) U.S. FISH AND WILDLIFE SERV., FINAL ESA CONSULTATION HANDBOOK (1998).
(361) See Ruhl, supra note 228.
(362) See Seth Stern, Science-savvy Judges in Short Supply, CHRISTIAN SCI. MONITOR, Dec. 21, 2000, at 17. For example, Ninth Circuit Judge Pamela Ann Rymer characterized herself as "scientifically illiterate," commenting that she is "therefore typical of members of the judiciary of my age who were a product of a generalist liberal arts education and a generalist legal practice." Id.
(363) See Whitney, The Case for Creating a Special Environmental Court System, 14 WM. & MARY L. REV. 473 (1973); Whitney, The Case for Creating a Special Environmental Court System, A Further Comment, 15 WM. & MARY L. REV. 33 (1973); G.J. Zimmerman, Synergy and the Science Court, 38 U. TORONTO FAC. L. REV. 170 (1980) (discussing the structure, implications, problems, and limits of a proposed Canadian Science Court). Cf. James Oaks, Developments in Environmental Law, 3 ENVTL. L. REP. 50,001, 50,011-50,013 (1973) (advising against a special environmental court). Some state court systems, such as those in Vermont and Massachusetts, already have a separate environmental court.
In addition, many commentators have perceived a growing need for an international environmental court. See, e.g., Amedeo Postiglione, A More Efficient International Law on the Environment and Setting up an International Court for the Environment Within the United Nations. 20 ENVTL. L. 321 (1990) (outlining various reasons for the creation of an International Court for the Environment as part of the United Nations); Robin L. Juni, The United Nations Compensation Commission as a Model for an International Environmental Court, 7 ENVTL. LAW. 53 (2000).
(364) The stated purpose of the ESA is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species...." 16 U.S.C. [sections] 1531 (1994). Additionally, the main policy of the ESA is stated as follows: "[A]ll Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter." Id.
PHILIP KLINE, Student, Northwestern School of Law of Lewis & Clark College, J.D. and Certificate in Environmental and Natural Resources Law expected May 2001; Articles Editor, Environmental Law, 2000-2001; B.S. in Geosciences, 1997, and B.S., Ecology and Evolutionary Biology, 1995, University of Arizona. The author thanks Professor Daniel J. Rohlf for his invaluable guidance and imparted knowledge, Attorney Eric W. Nagle for his placatory insight, and Anne Kunkel for her hard work and skillful editing. The author dedicates this Comment to his late father, Keith G. Kline.