Keeping the door open: protecting biological corridors with existing federal statutes.

I. INTRODUCTION
   A. Fragmentation and Extinction
      1. Stochastic Threats
      2. Inbreeding Depression
      3. Disruption of Population Dynamics
   B. Hopes for a Remedy
      1. Biological Corridors
      2. Challenges on the Ground
      3. The Need for Speed
II. EXISTING FEDERAL LAW AS A TOOL FOR PROTECTING CORRIDORS
    A. Plan-Oriented Statutes
       1. National Forest Management Act (NFMA)
          a. Viability
          b. Viability on a Forest-Wide Scale
          c. Viability on a Range-Wide Scale
          d. New Regulations
       2. Federal Land Policy and Management Art (FLPMA)
          a. Interdisciplinary Approach
          b. Areas of Critical Environmental Concern
          c. FLPMA's Utility
       3. Sharpening the Tool of Plan-Oriented Statutes
    B. National Environmental Policy Act (NEPA)
       1. NEPA's Framework
       2. NEPA's Usefulness
          a. Arguing the Action "Significantly Affects" the Environment
          b. Arguing an EIS Is Inadequate
    C. Endangered Species Act (ESA)
       1. Jeopardy Clause
          a. White Pine Project
          b. Action Area
       2. The Take Prohibition
       3. Habitat Protection Provisions of the ESA
          a. Critical Habitat Designation
          b. Recovery Plans
III. KEEPING THE DOOR OPEN

I. INTRODUCTION

A Canada lynx (Lynx canadensis) may travel hundreds of miles before funding a mate. (1) Black bears (Ursus americanus), having learned of a source of food over fifty miles away, may return to it year after year. (2) A young timber wolf (Canis lupus) may even move more than five hundred miles from its birthplace during its life. (3) Consider for a moment the challenges such animals might face. A few are obvious--highways, subdivisions, increasingly diminished forests, run-ins with humans, and the effects of development in general. Such encounters present more than a mere inconvenience, however. For many species, they signal a spiral toward extinction.

A. Fragmentation and Extinction

As the human population grows, extracts resources, and develops the landscape, it cuts vital wildlife habitat to pieces. Once contiguous habitats become isolated "islands," (4) effectively trapping wildlife within shrinking confines. Conservation biologists point to this process, habitat fragmentation, as one of the leading causes of extinction. (5) Habitat fragmentation afflicts not only wide-ranging animals, but virtually all species, down to the endangered Preble's meadow jumping mouse (Zapus hudsonius preblei). (6) Additionally, its effects are becoming apparent even in out largest wildlife reserves. (7)

Three occurrences characterize habitat fragmentation: a loss of overall habitat in an area, a reduction in the size of remaining blocks of habitat, and increased isolation of those blocks. (8) As these characteristics increase in habitat patches, wildlife populations face an increased likelihood of extinction for several reasons besides simple prevention of migration or lack of access to food sources. (9)

1. Stochastic Threats

First, isolated populations are more likely to go extinct due to stochastic threats, (10) or in other words, chance. (11) Species are always subject to disturbances, such as predation, random variation in birth rates, changes in amounts of food supply, natural catastrophes, and disease. (12) If a population is large, it is likely that at least some of its members will survive such disturbances and allow the community to persist. (13) Conversely, if a population is small, there is an increased likelihood that a disturbance will exterminate the entire population. In other words, when a large interconnected population is divided into smaller isolated groups, it becomes increasingly likely that the entire population will eventually die out due to disturbances within each isolated group. (14)

2. Inbreeding Depression 

Second, as wildlife populations become increasingly isolated through fragmentation, the number of potential mates decreases for every individual, which can result in higher rates of inbreeding. Where inbreeding occurs, the genetic makeup of each member of a breeding pair is more similar than it would be if individuals were matched at random. (15) This leads to increased homozygosity, where offspring have a higher chance of exhibiting detrimental genes that may have been unexpressed in either parent. (16) In general, inbreeding and the resultant loss of genetic variation have "harmful effects on development, survival, and growth rate" for species. (17) This effect, inbreeding depression, increases the chances of extinction in a population. (18)

3. Disruption of Population Dynamics 

Finally, isolation generally disrupts natural population dynamics. Many populations of species naturally exist in dispersed, yet connected subpopulations. (19) Among these subpopulations, some act as "sinks," meaning that they tend to rely on the introduction of new individuals for continued survival. (20) Conversely, some subpopulations act as sources, producing a surplus of individuals. Source subpopulations may maintain a species' existence by "sending out a stream of emigrants" that may supplement a sink population, enter other existing populations, or found new subpopulations. (21) When habitat fragmentation isolates populations from one another, these dynamics are disrupted, and populations become less stable.

B. Hopes for a Remedy

1. Biological Corridors

Common sense may suggest that if fragmentation is a major cause of extinction, simply ensuring that habitats remain connected may save species. With that hypothesis, conservation biologists have focused a great deal of study on biological corridors. (22)

A biological or wildlife corridor is a strip of habitat that is suitable for wildlife passage and generally connects two or more larger habitats. (23) Corridors may have a variety of origins. For example, streams and rivers, with their attendant riparian vegetation, may serve as corridors. (24) Habitat remnants within otherwise disturbed areas, such as stands of timber that remain within a logging zone, may serve a corridor function. (25) Human activities, such as the creation of a greenbelt, may form a corridor. Corridors may even develop from something as simple as a fencerow that harbors weeds within a bare field. (26)

Experimentation shows that at least to some extent, corridors allow certain populations of species to persist when those populations might otherwise face extinction due to fragmentation. (27) The theory is that corridors reduce extinction rates through several methods: They allow for genetic exchange among adjoining populations, thus avoiding or decreasing inbreeding depression; (28) they provide a mechanism through which a species can colonize new habitat or recolonize habitats in which a population extinction event occurred; (29) and they provide an avenue for emigrating and commingling, decreasing the occurrences of extinction by stochastic threats. (30)

2. Challenges on the Ground

Not surprisingly, many important biological corridors exist on federal lands such as national forests, state parks, and general public lands. While this fact may generate hope that these corridors can be protected through careful planning and government protections, this is not always the result. Agency actions, such as resource extraction, road building, and management practices often threaten these corridors with destruction. (31) Thus, although biological corridors represent a pragmatic, logical, and real defense against extinction, ensuring their protection requires an active effort, often fraught with conflict and complications. Those seeking to preserve corridors against detrimental agency action quickly recognize a scarcity of laws well-tailored to corridor protection. Potential plaintiffs and activists thus lack a solid legal platform from which to mount arguments for corridor protection, and although habitat connectivity is often a motivating concern behind litigation, the issue of corridor protection is rarely front and center. (32) Certainly, to some extent this lack of focused law has enabled agencies to bypass consideration of corridor issues when making management decisions.

Motivated partially by this lack of tailored legal protections for corridors, several groups have launched campaigns for ecosystem-level protection plans in North America. (33) These groups seek to implement protections for important corridors through various means, including landmark legislative proposals. (34) However, actual implementation of any of the plans is far from certain, (35) and unless and until these groups succeed (36) most biological corridors remain vulnerable to destruction.

3. The Need for Speed

As time passes, fragmentation continues and the urgency of protecting corridors only increases. (37) Wildlife managers estimate, for example, that without active protection development and resource extraction will destroy critical grizzly bear (Ursus arctos horribilis) corridors in the Northern Rockies within the next ten to fifteen years. (38) Because no comprehensive legislative-type protections for corridors appear imminent, it is extremely important to consider what tools are available now for addressing the problem of corridor destruction.

This Comment evaluates four major federal environmental statutes to determine how they can operate as tools to protect corridors on federal lands. (39) First, the Comment analyzes two planning-oriented environmental statutes: the National Forest Management Act (40) and the Federal Land Policy and Management Act. (41) Next, the Comment analyzes the National Environmental Policy Act, (42) and finally, the Endangered Species Act. (43) The Comment concludes that although each of these statutes contains significant weaknesses, the statutes represent valuable tools that parties can employ in order to keep the door to survival open for species through protecting corridors.

II. EXISTING FEDERAL LAW AS A TOOL FOR PROTECTING CORRIDORS

A. Plan-Oriented Statutes

1. National Forest Management Act (NFMA)

The National Forest Management Act (NFMA) imposes substantive controls on land management within the National Forest System. It requires the Secretary of Agriculture to develop plans for all units of the National Forest System. (44) NFMA then mandates that these plans--Land and Resource Management Plans (45) (LRMPs) or Forest Plans--"provide for diversity of animal and plant communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives." (46) Any agency actions within the National Forest system must comply with the applicable LRMP. (47) Thus, NFMA provides a means for parties to challenge an agency action adverse to a biological corridor on the basis that the agency is falling to provide for diversity of animal and plant communities. (48)

a. Viability

In 1982, pursuant to NFMA's charge to provide for animal and plant diversity, the Secretary of Agriculture promulgated rules calling for fish and wildlife habitat to be managed "to maintain viable populations of existing native and desired non-native vertebrate species." (49) Although the regulation is currently undergoing revision by the Bush Administration, (50) this rule requiring viability of species still applies in most instances, and has to date been the principal determiner of NFMA's ability to protect wildlife. For these reasons, this Comment first considers NFMA's utility in protecting corridors under the 1982 regulations.

The 1982 regulation defined a viable population as "one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area." (51) The regulation further provided, "In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area." (52)

In many instances, biological corridors are necessary to provide habitats that are distributed in such a way that individuals of a species can interact with others. This requirement, therefore, offers a basis for arguing that LRMPs must provide for corridor protection where they exist and function within a national forest.

b. Viability on a Forest-Wide Scale

NFMA case law, while by and large not dealing specifically with wildlife corridors, demonstrates the potential for using the viability mandate to compel the Forest Service to provide for corridor protection in LRMPs where corridors exist. In Idaho Sporting Congress, Inc. v. Rittenhouse (ISC), (53) a recent case from the Ninth Circuit, plaintiffs challenged two timber sales in the Boise National Forest (54) on the grounds that the Forest Service's LRMP was not in accordance with NFMA standards and that the timber sales did not comply with the LRMP. (55)

There, the Forest Service attempted to use a "proxy-on-proxy" approach to conservation in its forest plan in order to meet its viability insurance mandate. (56) Under this approach, the Forest Service reasoned that by protecting pileated woodpecker (Dryocopus pileatus) populations, they would also be ensuring viable populations of other species with comparable needs. (57) Then, rather than monitoring actual pileated woodpecker populations, the Forest Service divided the forest into 59 management areas, (58) and monitored old growth quantities within those areas to ensure that the quantities it deemed necessary to sustain pileated woodpecker populations remained. (59)

Although the Forest Service in ISC did ensure that sufficient stands of old growth remained in areas affected by the timber sales, the court enjoined the sales because the Service was looking at "small isolated areas, without any knowledge of the geographic or ecological relationship" between them or between other such areas. (60) Reaffirming the Forest Service's obligation to ensure viable populations and to ensure that habitat is "well distributed throughout the Forest so that [reproductive] 'individuals ... can interact with others in the planning area,'" (61) the court found that the Forest Service violated NFMA by narrowly focusing only on the viability of species within management areas. (62)

This court's reasoning infuses NFMA with the power to protect biological corridors because it establishes that the Forest Service has an obligation to ensure viability by looking beyond management area lines and focusing on actual spatial and ecological relationships of populations. Because corridors are the very linkages between members of wildlife populations, ISC suggests that NFMA mandates their consideration when the Forest Service plans for viability. In other words, the Service may not ignore the spatial and functional relationships of populations where those populations depend on a corridor for interaction. (63) After ISC, if the Forest Service manages wildlife populations within artificial confines, ignoring provisions for population linkage, courts tracking ISC's holding must find that this planning is not good enough to fulfill NFMA's viability insurance mandate.

c. Viability on a Range-Wide Scale

ISC, as well as other case law, interprets NFMA to require actual viability on at least a "forest wide" scale. (64) An argument that NFMA requires the Forest Service to provide for interforest or range-scale viability analysis remains untested, but environmental advocates increasingly contemplate the success the argument may find. (65) Such an argument finds support not only from case law, (66) but from the plain language of NFMA, which requires diversity of plant and animal life. The agency would likely argue that NFMA regulations require only diversity within the planning area, and therefore that it may limit planning considerations to a single forest. However, courts appear unwilling to accept the proposition that NFMA allows management fines to trump consideration of actual species interactions and viability. A suit to protect a wildlife corridor that spans forest boundaries would provide an excellent context for advocating this argument--one where a court would likely recognize the irrationality of the agency's argument.

d. New Regulations

As mentioned above, the 1982 regulations have been, and continue to be, subject to a series of various changes. In 2000, the Clinton Administration changed the regulations, (67) but the changed regulations (hereinafter, the 2000 regulations) were not fully instituted (68) before the Bush Administration proposed new changes. (69) The 2000 regulations never became mandatory; rather, responsible officials in the Forest Service were given the choice between following either the 1982 regulations or the 2000 regulations until the Bush Administration's proposed rules are revised and completed. (70) Therefore, forest managers currently have the choice to revise and amend forest plans under the 2000 regulations or under the 1982 regulations. Until such revisions occur, however, forest plans are still subject to the regulations that were in effect at the time of the forest plan's creation or last amendment, (71) and many are thus still subject to the 1982 regulations.

Even under the 2000 regulations, NFMA remains an important tool. The 2000 regulations changed the "viability insurance" language, established "sustainability" as the overall goal of the national forests, (72) and focus on "ecological sustainability." (73) The new rules still address "species viability," declaring it to be a component of ecological sustainability. (74) The regulations define "species viability" as

   species consisting of self-sustaining and interacting populations
   that are well distributed through the species' range.
   Self-sustaining populations are those that are sufficiently
   abundant and have sufficient diversity to display the array of
   life history strategies and forms to provide for their long-term
   persistence and adaptability over time. (75)

Thus, the requirements for species interaction and population distribution survived the modification, and simply became a part of the "sustainability" required by NFMA. (76)

Also, the 2000 regulations require a monitoring strategy to evaluate the "status and trends of ecological conditions known or suspected to support focal species (77) and selected species-at-risk." (78) Where corridors exist, it is arguable that they constitute such an ecological condition and that the Forest Service must monitor them. The monitoring strategy must document the reasons the Forest Service chose particular species as focal species or species-at-risk and "the factors that put the species at risk." (79) Presumably, one of those factors will almost always be habitat fragmentation. It is thus arguable that the 2000 regulations even strengthen the requirement that the Service consider and protect corridors in their planning.

Additionally, the 2000 regulations state that forest planning is to be "based on the temporal and spatial scales necessary for sustainability." (80) This appears to be the codification of the Ninth Circuit's holding in ISC, where the court stated that the Forest Service could not meet the viability requirement by looking only at small, artificially segmented populations, (81) and strengthens the position that NFMA requires corridor protection even where a corridor may span national forest boundaries.

The Bush Administration's unfinalized regulations are intended to further streamline the planning requirements of the 2000 regulations. (82) These newest proposed rules address the requirements of the 2000 regulations to ensure ecological sustainability by providing in part, "The ecological component of sustainability includes, but is not limited to ... [t]he productivity, health, and function of ecosystems; the diversity of plant and animal communities and tree species; and the quality of soil, water, and air resources." (83)

Although the efficacy of NFMA in protecting corridors in the future is not completely clear until the Forest Service finalizes the newest proposed rules, the proposed rules seemingly continue to afford protections based on the arguments made in this Comment. The proposed rules set out two options for meeting NFMA's "diversity" mandate. (84) One option makes "viability of vertebrates and vascular plants well distributed within their ranges in the plan area" the basis for judging the accomplishment of diversity. (85) The second option is to judge the achievement of diversity by ensuring "that plan decisions foster the maintenance and restoration of biological diversity in the plan area, at ecosystem and species levels, within the range of diversity characteristic of native ecosystems in the larger landscape within which the plan area is embedded." (86) Under either of these options, the argument that corridors are required to meet NFMA's mandates still stands. Option one, by perpetuating the viability mandate, would presumably allow for the argumentation available under the 1982 regulations, and option two requires consideration of biological diversity at ecosystem and species levels, which ostensibly requires functional corridors. (87) Thus, whatever the final regulations under the Bush Administration have to say concerning species viability, it is difficult to believe that NFMA will cease to offer a valid methodology to protect corridors.

2. Federal Land Policy and Management Act (FLPMA)

General public lands under the jurisdiction of the Bureau of Land Management (BLM) (88) may serve as biological corridors. (89) The Federal Land Policy and Management Act (FLPMA) controls BLM's management practices on these lands. Analogously to NFMA's mandate to the Forest Service, FLPMA requires BLM to create plans for the lands it manages, (90) and then to comply with those plans when taking actions. (91) FLPMA terms these plans land-use plans (LUPs). (92)

Once BLM creates an LUP, courts are strict in requiring BLM to adhere to plans and promises made in them. (93) Thus, if an LUP does incorporate protections for land as a corridor, those protections are enforceable against an agency seeking to depart from that plan. Promisingly, BLM does recognize the importance of biological corridors, and has taken some measures to protect them. (94) Where BLM chooses to do so, FLPMA affords an opportunity for meaningful protection of corridors through the implementation of plans to conserve them. (95)

However, if BLM chooses to exclude protections for a corridor within an LUP, FLPMA has low potential for operating as a tool to compel the agency to take any protective actions. Although FLPMA operates much like NFMA, unlike NFMA's focus on providing for a diversity of species, FLPMA does not contain any significant mandate relating to wildlife management. (96)

Only two of the substantive requirements for LUPs provide any kind of a basis for arguing that FLPMA mandates protection of corridors: 1) the requirement that the Secretary "use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences," (97) and 2) the requirement to "give priority to the designation and protection of areas of critical environmental concern." (98)

a. Interdisciplinary Approach

Under FLPMA's mandate to use an interdisciplinary approach, a plaintiff could argue that FLPMA requires BLM to consider conservation biology principles in its planning and accordingly provide for habitat connectivity and protections for corridors in LUPs. Under FLPMA's statutory scheme, however, it is evident that this provision is couched in the context of an emphasis on multiple-use, rather than species conservation, and falls far short of forcing BLM to specifically protect a corridor.

FLPMA requires the Secretary of Interior to ensure that the several million acres of land under BLM's control are managed under multiple-use principles. (99) The Secretary enjoys nearly unfettered discretion in determining how to fulfill this directive. (100) This focus on multiple-use, and FLPMA's at best hazy requirement that the Secretary consider the environment in LUPs, render the stature of little substantive value as far as requiring corridor protection, (101) leading one commentator to conclude that "FLPMA articulates the mutually exclusive goals of environmental protection on the one hand, and enhancement of production on the other." (102) More importantly, what balance does exist between these two goals often tilts heavily toward production because FLPMA's emphasis on multiple-use makes management decisions of BLM susceptible to local pressures from those interested in grazing, logging, and mining. (103)

Headwaters, Inc. v. Bureau of Land Management, (104) a case from the Ninth Circuit, demonstrates the general ineffectiveness of arguments that FLPMA requires any specific protections for wildlife. In Headwaters, an environmental group challenged a BLM timber sale in an area that arguably served as northern spotted owl (Strix occidentalis caurina) habitat. (105) BLM decided to emphasize timber production rather than conservation on nearly half of the land within the management unit. (106) Plaintiffs challenged BLM's management decision as an unlawful elevation of timber production over wildlife conservation in the area. (107) The court held that the BLM action was permissible. (108) In denying the plaintiff's claims, the court found that BLM met FLPMA's requirements for multiple-use by doing the following: discussing multiple-use in the LUP, studying various resources other than timber, producing a rational management plan with reasons for the chosen methods, and including in its analysis factors of ecology, existing uses, and the values of the existing resources. (109)

In essence, a claim that BLM failed to fulfill its duty to consider connectivity in a LUP is not likely to succeed because FLPMA includes strong multiple-use mandates and the Secretary has been afforded a high degree of discretion in the management of general public lands. Courts review BLM's planning requirements like they review procedures--requiring BLM to explain why what it did was rational rather than show that what it did accomplished any particular result. (110)

b. Areas of Critical Environmental Concern

One could argue that because corridors are important environmental features, FLPMA requires BLM to protect them as "Areas of Critical Environmental Concern" (ACECs). ACECs are areas where special management attention is required for a variety of reasons, only one of which relates to biological function. (111)

Although the term sounds promising, courts are generally unwilling to use FLPMA's required LUP considerations, including giving priority to the designation of ACECs, as a standard for judicial review of final LUPs. (112) Courts have yet to determine whether the Secretary can be compelled to designate a specific area as an ACEC. (113) More importantly, even if such an action resulted in the designation for a biological corridor, the designation alone does not change management standards for that area. (114) Thus, not only is it questionable whether a suit to compel designation of a corridor as an ACEC could succeed, but such a designation might not be worth the effort in any event.

c. FLPMA's Utility

When BLM chooses to protect a corridor, FLPMA does offer a functional system for implementing safeguards. However, FLPMA does not operate as an effective tool for compelling BLM to protect corridors when it opts not to do so. Courts basically have left BLM "free to choose its own schedules, its own priorities, its own methods, and its own topics" when managing the lands under its jurisdiction. (115)

3. Sharpening the Tool of Plan-Oriented Statutes

The above analysis of the plan-oriented statutes demonstrates that when it comes to protecting biological corridors, NFMA operates as a significantly useful tool, FLPMA operates as a rather clumsy tool, and neither provides a surefire way to accomplish the task. However, a look at the whole statutory scheme indicates there is still potential for using these federal land-use planning systems to protect biological corridors.

Both NFMA and FLPMA operate under individualized ad hoc approaches in achieving their goals. Although agency officials in all planning units are asked to reach the same goal ("diversity of animal and plant communities" in the case of NFMA, (116) and multiple-use and protection of the environment in the case of FLPMA (117)), each unit may use its own discretion in deciding how to meet that goal. Thus, where a functional connective corridor exists within a planning unit, some agency planning groups provide protections for it, and some do not, reasoning that they have another approach they believe will work.

Congress clearly intends for agencies to exercise their expertise in carrying out statutory mandates. However, bearing in mind that habitat fragmentation is one of the chief causes of extinctions, it is appropriate in the context of administering statutes aimed at protecting the environment to limit agency discretion to prevent them from exacerbating that problem. In other words, where a statute is intended to eliminate a certain harm (e.g., loss of diversity and environmental degradation), and there is an obvious cause of that harm (habitat fragmentation), limiting agencies' discretion to choose a methodology that adds to or fails to remedy the harm is completely appropriate.

Limitation of the agencies' discretion to fragment wildlife habitat could come in a variety of forms. Groups advocating large-scale legislative protections for corridors hope to accomplish it through congressional intervention. (118) However, a recent trend in Forest Service and BLM management demonstrates another possibility--a decision arising from within the agencies themselves.

In July 1993, the Forest Service and BLM responded to a directive from President Clinton to "develop a scientifically sound and ecosystem-based strategy" for the management of forests in the Columbia River Basin (119) by initiating the Interior Columbia Basin Ecosystem Management Project (ICBEMP). (120) To implement that project, the United States Forest Service, BLM, the United States Fish and Wildlife Service (FWS), the National Marine Fisheries Service, and the Environmental Protection Agency entered into a Memorandum of Understanding, in which the agencies agreed to implement cooperatively the "Interior Columbia Basin Strategy" (Strategy). (121) One purpose of the Strategy is to guide the amendment of forest plans and LUPs on lands throughout the Columbia River Basin. (122) Thus, this project coordinates and focuses LUPs and forest plans on ecosystem preservation strategies, thereby creating an enforceable and effective application of the potential of NFMA and FLPMA, and in effect limits individual planning units' discretion to make decisions that are adverse to the vision for the entire Basin.

The Strategy (123) even contains some language applicable to large-scale corridor protections. For example, noting that many "source" (124) habitats for wildlife have substantially declined in geographic extent, the Strategy requires management plans to address ways to maintain and secure habitats comparable to source habitats that have diminished. Further, the Strategy specifically states, "Direction should address opportunities to re-pattern these habitats when and where necessary, maintain and guide expansion of the geographic extent and connectivity of source habitats that have declined." (125) Under the Strategy, BLM and the Forest Service have agreed to ensure that plans under FLPMA and NFMA will address opportunities to maintain connectivity of important habitats.

Another model of agency cooperation is the adoption by BLM and the Forest Service of the Northwest Forest Plan (NFP) in 1994, aimed at addressing concerns over the management of the northern spotted owl. (126) Under the NFP, these agencies created a unified management strategy for the lands that they administer throughout an entire ecological region. (127) As is the case under ICBEMP, NFP guidelines are grafted into applicable forest plans and LUPs, (128) thus binding the agencies. Again, throughout NFP guidelines, numerous references to corridor protection and insurance of connectivity appear. (129)

Certainly, to the agencies' credit, this type of cooperation represents a forward-looking and biologically sophisticated approach to implementing NFMA and FLPMA. Where the agencies themselves recognize the need for connectivity of habitats, they have the power under these plan-oriented statutes to create meaningful protections. These agencies could cooperate specifically to protect corridors within lands tender their jurisdiction or even focus on connectivity of habitat for a given species. (130)

B. National Environmental Policy Act (NEPA)

1. NEPA's Framework

The National Environmental Policy Act (NEPA) establishes the protection of the human environment through "all practicable means" as the policy of the federal government. (131) Specifically, NEPA requires that before a federal agency can take any action "significantly affecting the quality of the human environment" it must prepare an Environmental Impact Statement (EIS). (132) Within the EIS, agencies must publicly consider "the environmental impact of the proposed action," "any adverse environmental effects," and "alternatives to the proposed action." (133)

2. NEPA's Usefulness

Because NEPA demands that agencies take a "hard look" (134) at the environmental consequences of their actions, it increases the chances that an agency will at least consider the impacts that damaging a biological corridor will have on the environment. In fact, agencies often do recognize that biological corridors, and connectivity in general, are significant components of a healthy environment, and they have used EISs to inquire into the results that would flow from actions that impact them. (135)

However, where an agency fails to fulfill its duty to make the required inquiry into the consequences of an action that would negatively affect a corridor, NEPA offers two main methods for challenging that action. First, where an agency has determined that the action will have no significant effect on the environment, and therefore that an EIS is not required, plaintiffs can argue that the agency's decision was arbitrary and capricious, and therefore unlawful. (136) Second, plaintiffs can make the same argument where an agency has prepared an EIS, but failed to consider fully the environmental impacts to the corridor resulting from the action. (137) In either case, courts will review in order to ensure that the agency has taken the required "hard look" at the environmental consequences of the proposed action. (138) Where a court finds that an agency has failed to meet this requirement, it can set aside the agency's proposed action until the agency complies with NEPA. (139)

Although NEPA only mandates procedure rather than any substantive result, because of the enormous cost and energy associated with preparing an adequate EIS, where a court finds the agency in violation of NEPA, the agency may substantially alter the proposed project or abandon it altogether. (140) Thus, a party proving a violation of NEPA may succeed in offering ultimate protection to that corridor.

a. Arguing the Action "Significantly Affects" the Environment

As described above, NEPA's trigger for demanding an EIS is a finding that an agency action would "significantly affect" the environment. (141) Courts have held that where an agency has found an EIS unnecessary, plaintiffs do not need to show that significant effects will actually occur, rather they only need to raise "substantial questions whether a project may have a significant effect" on the environment. (142)

NEPA regulations set out certain considerations agencies must keep in mind when determining whether an action would significantly affect the environment. (143) Where a proposed agency action, such as a timber sale, is located in or near a biological corridor, several of these factors weigh heavily in favor of a finding that the action would "significantly" affect the environment. These factors include the following: 1) the "[u]nique characteristics" of the area, such as proximity to "ecologically critical areas"; (144) 2) "[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks"; (145) 3) whether the action could result in "individually insignificant but cumulatively significant impacts"; (146) and 4) the extent that the action may affect a species protected under the Endangered Species Act or its critical habitat. (147)

When an agency's action would impact a biological corridor, yet the agency still insists that the action will not "significantly affect" the environment, plaintiffs have a strong argument that the agency is ignoring the above considerations. As lifelines for wildlife in fragmented habitats, corridors certainly represent ecologically critical areas. Impacts to corridors involve highly uncertain or unknown risks, such as genetic isolation and disruption of foraging habits.

Further, impacts to corridors are a prime example of where environmental effects may be "individually insignificant but cumulatively significant." (148) For example, if successive or separate projects damage a corridor incrementally, those projects impact the environment beyond the disturbances that occur on the project site. The projects affect not only the habitat within the corridor, but also affect adjoining habitats and populations once the disturbances tender the corridor nonfunctional for a given species. Finally, if a species listed under the ESA ostensibly uses the corridor, the argument is even stronger that a finding of significance is compulsory.

In presenting such evidence, plaintiffs should ensure that they gather and present evidence unique to the affected corridor. Courts are usually loathe to find that a plaintiff has raised substantial questions about whether an action will significantly affect the environment where the plaintiff simply makes the assertion that a corridor exists nearby. (149) Considering the growing body of scientific literature and discussion about ensuring connectivity, it would not be surprising for a plaintiff to find material directly supporting the functionality of a given corridor or the importance of corridors within a given area. (150)

Although agencies are normally allowed to consider existing adverse environmental effects in an area and then determine whether the proposed action would be insignificant in light of existing problems, they still must consider whether there is a chance that the proposed action could be the "straw that breaks the back of the environmental camel." (151) Because corridors amidst fragmented habitat often represent the breaking point of the "camel's back" (as the last hope for ensuring connectivity), it would often be appropriate to make the argument that harming a corridor would be doing just that. (152) In fact, corridors represent the final option for maintaining habitat connectivity.

Because habitat fragmentation is a main cause of extinction events, when an agency's action will impact a functional corridor courts should especially scrutinize agency determinations that those actions are of "no significance." It seems likely that where a plaintiff could demonstrate a corridor's existence at or near a proposed agency action site, coupled with seine specific information about that corridor, a court could not find an agency's determination to forego an EIS well-reasoned. (153)

b. Arguing an EIS Is Inadequate

When an agency has prepared an EIS, a party can challenge its adequacy in addressing the projected impacts to a biological corridor. In Marble Mountain Audubon Society v. Rice (Marble Mountain), (154) one group successfully challenged the adequacy of an EIS in the only case to date in which a federal court enjoined agency action out of concern for a biological corridor. (155)

In Marble Mountain, plaintiffs opposed a proposed timber sale in an area called Grider Creek, in California's Klamath National Forest. (156) Plaintiffs claimed that the Grider Creek drainage formed an important biological corridor: (157) "the only significant biological corridor between the Marble Mountain and Red Butte wilderness areas." (158) After tire destroyed a significant percentage of the drainage area, the Forest Service sought to implement a timber salvage and recovery plan that would have resulted in clear-cutting and severe alterations to wildlife habitat. (159) Pursuant to NEPA, the Forest Service created a final EIS for the timber sale. (160) Although the Forest Service acknowledged that the drainage served as a corridor, it concluded that "the preservation of a 1/2-mile wide strip bisecting the drainage will be sufficient to maintain the corridor." (161) The district court, finding that the suit was barred by another statute, held in the alternative that the "[EIS] adequately addressed the biological corridor issue." (162)

The Ninth Circuit, however, reached the merits of the claim and set aside the agency's proposed action for failure to comply with NEPA. (163) The court found that the Forest Service had violated its duty to take a "hard look" at the environmental consequences of its proposed action by failing to offer a "significant discussion of the corridor issue." (164) The court emphasized that agencies have a duty to "set forth a reasoned explanation for [their] decision[s] and cannot simply assert that [those decisions] will have an insignificant effect on the environment." (165)

Admittedly, the facts in Marble Mountain were favorable to the plaintiffs. For example, the record showed that the Forest Service's documentation significantly lacked supporting studies, after the EIS itself had identified the corridor issue. (166) Additionally, the EIS referred to forest planning documents for discussion of the corridor issue, although those documents contained no relevant discussion. (167)

Since Marble Mountain, several plaintiffs have attempted to rely on it to support the proposition that NEPA requires federal agencies to give special attention, above and beyond normal NEPA-satisfying considerations, to corridors. (168) Likely because of the egregious facts in Marble Mountain, in each of these cases courts have had little trouble rejecting this proposition and limiting Marble Mountain's significance to a simple reassertion that agencies must take a "hard look" at the environmental consequences of their actions. (169) In other words, these cases underscore NEPA's fundamental weakness in providing protection to corridors--it can only go so far. As the Supreme Court put it, "NEPA merely prohibits uninformed--rather than Unwise--agency action." (170) NEPA clearly mandates procedure, not substantive outcomes. When an agency meets its duty to consider adequately impacts to a biological corridor, NEPA's protections give out. (171)

Still, it is important that some courts have interpreted Marble Mountain as holding that agencies "must take the requisite 'hard look' when biological corridors are present and explain why the impact on such corridors is not significant." (172) This interpretation at least recognizes to some extent that biological corridors, in and of themselves, represent unique environmental features that require full consideration, even if NEPA does not afford them substantive protection.

C. Endangered Species Act (ESA)

One of the stated purposes of the Endangered Species Act is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." (173) In 1978, when it halted construction of a nearly completed $100 million dam in order to protect the obscure snail darter (Percina tanasi), (174) the Supreme Court made it clear that the ESA had the muscle to protect species, "whatever the cost." (175) Thus, there is no doubt that the ESA has the power to defend corridors if it can be shown to apply.

Before the ESA can protect a species, the Secretary (of Interior or Commerce) must list the species as "threatened" (176) or "endangered." (177) The Secretary is to designate a species as threatened or endangered when the species is imperiled due to occurrences such as "destruction, modification, or curtailment of its habitat;" overuse; disease; lack of adequate protection; or "other natural or manmade factors." (178)

Once the Secretary designates a species as threatened or endangered, the ESA requires the Secretary of the Interior to "conserve" the species (179) by using all means necessary to bring the threatened or endangered species to the point that it can exist without the ESA's protections. (180) Several provisions of the ESA further that goal. Of these, the most likely to provide protections to biological corridors are the jeopardy clause, the take prohibition, the designation of critical habitat, and the creation of recovery plans.

1. Jeopardy Clause

Section 7(a) of the ESA prohibits federal agencies from taking actions that "jeopardize the continued existence of any [listed] species." (181) All agencies must determine whether their actions violate this requirement through consultation with the Secretary. (182)

Despite the seemingly plain mandate of the jeopardy clause, its actual application has proven to be less than effective in many instances. (183) In part, this is because the agencies enjoy broad discretion in determining whether an action would jeopardize a species. (184) Although the Act requires the agencies to make the jeopardy determination on the basis of science, (185) neither the statute nor agency regulations contain any biological standards on which to make the determination. (186) This allows the agencies to decide the jeopardy question either way and rest on the argument that they are entitled to rely on their expertise. (187) Additionally, agency regulations interpret the jeopardy standard such that an action does not violate the standard unless the action "appreciably [reduces] the likelihood of both the survival and recovery of a listed species." (188)

However, because biological corridors operate as insurance of minimum-level connectivity, which science has demonstrated is necessary to species' survival, the jeopardy clause is particularly pertinent where agency actions threaten corridors. This is in fact the very substantive purpose of the jeopardy clause--to ensure the protection and survival of listed species. (189) Additionally, agency regulations specifically contemplate a jeopardy finding where a species' distribution is reduced. (190)

Although courts do defer to agencies' scientific findings, they still demand that those findings be based on rational science. (191) Given the growing body of information describing the necessity of habitat connectivity, it is becoming increasingly difficult for an agency to justify an action that would destroy an endangered species' corridor. Additionally, the agencies themselves have made numerous comments acknowledging the importance of corridor protection. For example, officials comprising the Interagency Grizzly Bear Committee (192) have publicly stated, "If we do not maintain the opportunities for linkage of wildlife populations across these areas of human development, we will have difficulty securing the future of wildlife species such as the grizzly." (193) If one of the member agencies did an about-face and found that destroying a grizzly corridor across fragmented habitat did not jeopardize the continued existence of the species, plaintiffs could make a strong argument that the finding was irrational.

a. White Pine Project

Recently, an environmental group advanced precisely the above argument in order to protect a grizzly bear corridor in northeastern Montana. In the Kootenai National Forest, the Forest Service proposed a project involving timber harvest, road construction, and forest thinning in the White Pine Creek drainage area. (194) White Pine Creek functions as a corridor between grizzly bear populations. (195) Nevertheless, the Forest Service proposed tripling road densities in the area to facilitate resource extraction. (196)

The Forest Service determined that the action was "not likely to adversely affect the grizzly bear or its habitat." (197) FWS concurred in the finding, essentially ending the jeopardy inquiry. (198) Plaintiffs filed a complaint against FWS, alleging violations of the ESA for erroneously concurring with the "no jeopardy" finding and for failing to use the best scientific and commercial data available. (199) Plaintiffs supported these claims by pointing to the agency's identification of the area as a linkage zone and the fact that it had "ignored a wealth of documentation demonstrating the importance of linkage zones to grizzly well-being and recovery." (200) After the complaint, FWS withdrew its concurrence with the Forest Service's "no jeopardy" finding and the project was put on hold.

Although no court has ruled on these arguments, they illustrate a methodology for advancing the protection of biological corridors through the ESA. Like the plaintiffs in the White Pine case, parties seeking to use the ESA to effect corridor protections should diligently search for agency language and findings that tend to contradict the proposed disruption to a corridor. Where the agency itself has acknowledged the importance of the corridors at issue, the jeopardy argument will invariably be more effective. (201) As an alternative to, or in addition to, specific agency comments and findings, plaintiffs can rely on the available abundance of studies that emphasize the importance of having corridors in various parts of the country and for a variety of different species. (202)

b. Action Area

Where an agency has determined that an action will not jeopardize a listed species even though the action arguably impacts a corridor, plaintiffs may have another method for challenging that determination aside from arguing that the agency failed to rely on the best available science. To determine whether an action will jeopardize a species, the action agency must conduct a biological assessment (BA). (203) The "action area" chosen by the agency defines the geographical extent of a BA's analysis. Courts will enjoin the proposed action if a party tan demonstrate that the agency's choice of an action area is arbitrary and capricious. (204)

Under ESA regulations, an action area must include "all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action." (205) Indirect effects include "those that are caused by the proposed action and are later in rime, but still are reasonably certain to occur." (206) Thus, where a biological corridor is implicated, the action agency must designate an action area that incorporates all areas affected by the disruption of that corridor, even if those effects will appear later in time.

Although the case did not concern a biological corridor, in Native Ecosystems Council v. Dombeck, (207) the Ninth Circuit enjoined a Forest Service timber sale because of an improper action area (208) under reasoning that would apply well when an action affects a corridor. The timber sale in Native Ecosystems Council was located on the northern boundary of Yellowstone National Park in undisputedly prime grizzly bear habitat, near a sheep grazing allotment. (209) Before conducting a BA, the Forest Service delineated an action area that stopped just short of the grazing allotment. (210) The Service concluded from its study that the timber sale would result in some displacement of grizzlies, (211) but because the analysis area did not include the adjacent grazing allotment, the Service did not address its effect on dispersed grizzlies. (212)

The court pointed to Service findings that most Yellowstone grizzly deaths occur in areas such as sheep grazing allotments due to the potential of grizzlies being killed after conflicts with livestock. (213) Emphasizing the ESA's jeopardy prohibition, the court found that the Service had failed to consider "which areas would actually be affected by the sale (by determining, for instance, where displaced bears might wander)." (214)

Action area regulations and Native Ecosystems Council's holding make plain that agencies may not construct boundaries for purposes of determining jeopardy in a way that masks the true impacts on an affected species. Without this rule, an agency could easily choose an action area that obscures the harm caused to a species where a corridor is affected.

Consider, for example, the following simplified corridor model: Two habitats, "A" and "B," are connected only by corridor "C." Habitat A serves generally as a source habitat (producing a surplus of individuals) and habitat B generally operates as a sink (relying on inbound individuals to sustain its population). Now imagine that the agency has proposed an activity, such as a timber sale, within the corridor that will disrupt the movement of the species.

[ILLUSTRATION OMITTED]

Even if it is undisputed that the timber sale will render the immediate site unsuitable for the listed species, and therefore destroy the corridor, whether a biological assessment would demonstrate the harm depends completely on the agency's action area.

In one analysis, the agency may designate a boundary that includes all of the source habitat A, and the part of the corridor C upon which the project is located. (Action Area 1, below). An analysis of the effects on the species within this boundary would show only that the population in Action Area 1 is likely to persist, and in fact should continue to produce a surplus of individuals. Action Area 1 would allow the agency to mask the true impact on the species because it does not take into account the high risk of losing the population in habitat B.

[ILLUSTRATION OMITTED]

Alternatively, the agency may draw up an action area that includes the action site and the sink habitat B (Action Area 2, below). Conducting an accurate analysis within this action area would paint a completely different picture, exposing the project's major impacts to the species within that boundary resulting from its separation from the source.

[ILLUSTRATION OMITTED]

As required under regulations, however, to gain a true understanding of the project's impacts on the species it would be necessary to construct boundaries that take into account all areas the action directly or indirectly impacts. The correct boundary then must encompass both habitats A and B, as well as the corridor. An action area encompassing both habitat sections would reveal not only that the population in habitat B is likely to die out if the project proceeds, but additionally that individuals from the source, habitat A, would have nowhere to go, and would either perish from immediate lack of habitat or simply cause unhealthy population densities in habitat A. In sum, when a corridor is damaged, that damage will have effects beyond the specific location of the agency activity. To use words from the Ninth Circuit's opinion, agencies must consider "where displaced [animals] might wander." (215) Without connectivity of habitat, they will not be able to wander anywhere.

While the above hypothetical rests on a pronounced source and sink population, any of the reasons for which corridors are important demands the same analysis. That is, the effects of disrupting the corridor are similarly harmful to the species as a whole where the corridor serves as an avenue for foraging, (216) a means of genetic exchange, or a migration path. (217)

2. The Take Prohibition

Section 9 of the ESA makes it unlawful for any person to "take" a listed species. (218) Although the archetypical take may involve the direct killing of a listed species, the regulatory framework under this provision clarifies a broader prohibition, and offers a plausible method for protecting corridors.

Various actions can constitute take, including causing "harm." (219) Regulations clarify that harm of a listed species may occur through "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." (220) Under judicial interpretation, a party must demonstrate at least an "imminent threat of future harm" in order to prevail on a claim of take through harm. (221) As this relates to biological corridors, a court will find a take if a party demonstrates that a corridor's destruction will cause an imminent threat of killing or injuring a listed species by impairing its behavioral patterns. (222)

Because courts require a showing that the habitat modification was the proximate cause of the take, (223) the effectiveness of arguing take through corridor destruction necessarily would depend on the specific corridor, and applicable available scientific support or other evidence. For example, where a large habitat with many individuals is isolated, the population could still interbreed and even an effective demonstration of the detrimental effects of inbreeding likely would not satisfy the judicial requirement that the threat of harm be "imminent." Alternatively, if a corridor provides a direct passage to a critical food source or a necessary migration path, the argument may be effective. Even though death may not occur immediately, courts have interpreted the take provision to prohibit actions that could result in injury or death within a reasonably foreseeable time frame. (224)

3. Habitat Protection Provisions of the ESA

Unlike the jeopardy clause and the take prohibition, the ESA also provides a system under which the Secretary is to protect habitat necessary for a listed species' survival and recovery.

a. Critical Habitat Designation

Section 4 of the ESA directs the Secretary to designate "critical habitat" for listed species. (225) This provision is aimed at ensuring protection of the habitat necessary for the recovery and protection of fisted species. (226) The Secretary is to include lands with physical or biological features that are necessary for the conservation of the species, and that "may require special management considerations or protection." (227)

At first blush, it could hardly seem clearer--biological corridors fit precisely the statutory description of "critical habitat" and therefore must receive protection under the ESA. This proposition, however, finds little support in practice. First, critical habitat for most species does not exist. At present, approximately only 25% of listed species enjoy critical habitat protections. (228) The Secretary has significant discretion in determining the boundaries and size of critical habitat, and whether to even designate such habitat at all. (229)

Second, critical habitat regulations allow the designation of only presently occupied habitat, unless it is shown that areas outside the present range are necessary for the conservation of the species. (230) Where only the current range of a species is afforded protection as critical habitat, important connective corridors may be excluded. That is, even though a corridor may be effective in maintaining genetic variation among connected populations by allowing even just a few immigrant individuals per generation, (231) agencies may be unlikely to know that such a corridor is part of a species' current habitat or may even decide that such infrequently used land does not constitute part of a species' "current range."

Lastly, agency regulations have rendered real protections under the critical habitat provision virtually meaningless. The "bite" of the ESA's protections for critical habitat comes from section 7's prohibition on actions that "result in the destruction or adverse modification" of it. (232) However, the agencies have equated this with the jeopardy clause's protections, essentially finding that adverse modifications to critical habitat only occur where an action would jeopardize the species by appreciably reducing the chances for survival and recovery. (233) The United States Fish and Wildlife Service has made it clear that it believes the critical habitat provisions are "redundant" to the jeopardy clause. (234) Under this interpretation of the ESA, rather than finding any additional protections under the critical habitat provisions, a party trying to protect a corridor from an adverse agency action, even where critical habitat covers the corridor, must resort to the jeopardy clause analysis.

Considering the purposes of the ESA and the seemingly perfect application of the critical habitat provisions to biological corridors, this result is disconcerting and legally questionable. Courts have increasingly scrutinized this interpretation, and the Fifth Circuit even held that the regulation is invalid because it sets the bar too high for an agency finding of adverse modification in light of the statute's clear mandate to conserve species. (235) The Fifth Circuit reasoned that conserving a species, which by statutory definition entails recovery, requires more than mere survival. (236) The agencies, even in the face of this ruling, have been reluctant to modify their regulations or to recognize the critical habitat designation as a distinct method for aiding threatened and endangered species. (237)

Ultimately, the value of the critical habitat provision rests in the hands of the agencies. If the agencies were to revamp their approach to critical habitat, revise the regulations, and consider the critical habitat provision an independent requirement aimed at conserving species, they would surely aid corridor protection. The plain language of the statute easily would support a regulation that went even so far as to prohibit any destructive activities on designated habitat. Although the agencies would not go so far, even an interpretation well short of that could bring about meaningful species protections under the ESA. If the agencies did provide some meaning to critical habitat designations, it could have profound consequences on habitat connectivity because, although relatively few critical habitat designations specifically include corridors within critical habitat designations, such designations do exist and may be increasing as agencies acknowledge the importance of corridors. (238)

b. Recovery Plans

Section 4(f) of the ESA requires the Secretary to create recovery plans for listed species. (239) These plans are to incorporate "site-specific management actions" and "objective, measurable criteria" for achieving recovery. (240)

Arguably, providing for the recovery of a listed species may be the "hardest thing the ESA requires," (241) and the difficulty of the task only underscores the need to incorporate appropriate conservation biology principles into recovery plans. In light of the lofty target at which recovery plans are aimed, it is imperative that they address the problems that caused the species to be listed in the first place. (242) Often, the overarching reason for the imperilment of a species will be habitat fragmentation. Corridors play an integral role in the recovery of these species, allowing them to recolonize suitable habitat, maintain genetic variability, and generally develop Sustaining population dynamics. Corridors represent an important threshold beyond which consequences to species become rapidly more severe. Once habitat continuity is broken, depressive inbreeding and disruption of natural population dynamics may inflict permanent damage on the isolated population. For these reasons alone, agencies should develop a near per se policy of including provisions for habitat connectivity insurance in recovery plans.

In fact, some recovery plans do make protection of habitat corridors a priority. (243) A browse through these recovery plans demonstrates that, indeed, agencies are relying heavily on the science of corridors and conservation biology principles in general when determining what a species needs in order to recover.

However, it is a notorious detail of the ESA's scheme that recovery plans lack the force of law. Like the agencies, courts have viewed recovery plans as being guides rather than rules, (244) and have described them as "breath[ing] discretion at every pore." (245) Thus, hopes of enforcing corridor protections on the basis that such details are included in a recovery plan are unsubstantiated.

Nevertheless, for several reasons, recovery plans do play an important role in providing for habitat corridors and species conservation in general. First, they are likely to dictate how federal agencies spend their budgets and administer conservation programs, therefore in large part shaping the actual effects that agencies' efforts have on recovery. (246) For this reason, it is meaningful that recovery plans appear to be increasingly providing for habitat linkages.

Second, while recovery plans may not give plaintiffs an effective method to protect a threatened corridor, the ESA's provision for recovery plans does offer the agencies an important tool to use if they so desire. (247) That is, the recovery plan gives the agencies an opportunity to use their discretion--for good or ill--in a way that undoubtedly has the potential for actual consequences on the ground. Courts have recognized recovery plans as a tool that agencies can use to allocate their resources in the way that the Secretary determines most likely to benefit species. (248)

Third, recovery plans may serve as important evidentiary tools where other violations of the ESA are alleged, if they contain specific findings as to corridor issues. (249) For example, where a take is alleged, data compiled about the species' habitat needs and movement patterns during the recovery planning process may prove influential in court. (250)

Lastly, there are some instances in which a court would find an agency abused its discretion in a recovery plan. For example, where an agency recognizes specific threats, yet fails to address them in the recovery plan, courts have found that such an action would not comply with the ESA. (251) Also, courts will review recovery plans for compliance with section 4(f)'s standards. (252) Thus, where a recovery plan fails to address corridor management after the agency has acknowledged a specific threat due to fragmentation, a court could require the agency either to include such protections or to explain why doing so would not be prudent.

III. KEEPING THE DOOR OPEN

Conservation biology has revealed the devastating effects that the pattern of human development is inflicting on wildlife species. This development divides habitats into small, isolated islands--choking species' gene pools, disrupting population dynamics, and threatening them with extinction. Luckily, in addition to exposing the problem, scientists have also presented a pragmatic and hopeful solution in the form of biological corridors. Where we can preserve biological corridors, we may be able to conserve species that use them.

Agency actions threaten to destroy the many important biological corridors found on federal lands, unless some type of active protection is advanced. Because the destruction of these corridors would irreversibly damage wildlife populations, there is a need for methods to protect them.

Four federal statutes, NFMA, FLPMA, NEPA, and the ESA, impose a variety of duties on federal agencies. While each statute contains weaknesses and limitations, the tools they provide represent an available and plausible system for protecting corridors. In addition to providing plaintiffs the ability to enforce corridor safeguards, each statute represents an avenue by which agencies can--to the extent they choose--further the purposes of these environmental statutes by implementing meaningful ecosystem protections through providing protections for corridors and ensuring connectivity.

(1) Lynn Rogers, Bears and Other Carnivores, in FANTASTIC JOURNEYS: THE MARVELS OF ANIMAL MIGRATION 184, 184 (R. Robin Baker ed., 1991), available at http://www.bearstudy.org /Research/Publications/Bears%20and%20Other%20Carnivores.pdf.

(2) Id.

(3) Id.

(4) See, e.g., Alison G. Power, Arthropod Diversity in Forest Patches and Agroecosystems of Tropical Landscapes, in FOREST PATCHES IN TROPICAL LANDSCAPES 91 (John Schelhas & Russell Greenburg eds., 1996) (referring to the theory of island biogeography and "islands" of isolated habitat).

(5) Daniel K. Rosenberg et al., Biological Corridors: Form, Function, and Efficacy, 47 BIOSCIENCE 677, 677 (1997), available at http://www.fs.fed.us/psw/publications/rosenberg/rosenberg2.PDF. For a scientific discussion of fragmentation effects on extinction of species, see David S. Wilcove et al., Habitat Fragmentation in the Temperate Zone, in CONSERVATION BIOLOGY: THE SCIENCE OF SCARCITY AND DIVERSITY 237 (Michael E. Soule ed., 1986).

(6) See Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Preble's Meadow Jumping Mouse (Zapus hudsonins preblei), 68 Fed. Reg. 37,276, 37,279 (June 23, 2003) (to be codified at 50 C.F.R. pt. 17) (describing the adverse effect habitat fragmentation due to urban development and other land uses has had on species).

(7) See R. EDWARD GRUMBINE, GHOST BEARS: EXPLORING THE BIODIVERSITY CRISIS 75 (1992) ("With the help of the bear, we are coming to realize that the wild habitat we have protected in parks and reserves is not enough to serve the grizzly and many other wide-ranging animals."); see also Robert B. Keiter, Biodiversity Conservation and the Intermixed Ownership Problem: From Nature Reserves to Collaborative Processes 38 IDAHO L. REV. 301, 302 (2002) ("The lands adjoining these reserves are also critical components in any meaningful biodiversity conservation effort."); William D. Newmark, Extinction of Mammal Population in Western North American National Parks, 9 CONSERVATION BIOLOGY 512, 519 (1995) (explaining that isolation in national parks probably decreases survivability of resident populations within parks). These lessons have taught us that biodiversity does not necessarily thrive within rigid, man-made designations.

(8) ANDREW F. BENNETT, LINKAGES IN THE LANDSCAPE: THE ROLE OF CORRIDORS AND CONNECTIVITY IN WILDLIFE CONSERVATION 13 (1999).

(9) See, e.g., id. at 22-25, 41 (describing causes of species loss in highly fragmented habitats).

(10) Id. Bennett divides stochasticity into four categories: demographic stochasticity, genetic stochasticity, environmental stochasticity, and natural catastrophes. Id. at 41. Demographic stochasticity relates to "random variation in population parameters such as birth rate, death rate and sex ratio." Id. Demographic stochasticity may lead to a population's demise if, for example, all reproductive females in a small population of a species happened to have a low birth rate in successive years. Id. Genetic stochasticity relates to the likelihood that within a small population, lethal or reproductively negative alleles may be present randomly, leading to the increase in that allele within the population, resulting in deaths or loss of reproductive capacity. Id. Environmental stochasticity refers to "random variation in environmental processes that can affect a population, such as fluctuations in temperature, rainfall, food resources, and populations of predators and competitors." Id. Natural catastrophes, of course, include things such as drought, storms, earthquakes, fire, or floods. Id.

(11) Id.

(12) Id.

(13) Id.

(14) See Michael E. Gilpin & Michael E. Soule, Minimum Viable Populations: Processes of Species Extinction, in CONSERVATION BIOLOGY: THE SCIENCE OF SCARCITY AND DIVERSITY, supra note 5, at 27 (explaining that small, isolated populations are in "extreme jeopardy" of extinction).

(15) Katherine Ralls et al., Inbreeding in Natural Populations of Birds and Mammals, in CONSERVATION BIOLOGY: THE SCIENCE OF SCARCITY AND DIVERSITY, supra note 5, at 35.

(16) Fred W. Allendorf & Robb F. Leary, Heterozygosity and Fitness in Natural Populations of Animals, in CONSERVATION BIOLOGY: THE SCIENCE OF SCARCITY AND DIVERSITY, supra note 5, at 57.

(17) Id.

(18) Gilpin & Soule, supra note 14, at 31; Ralls et al., supra note 15, at 35.

(19) WILLIAM S. ALVERSON ET AL., WILD FORESTS: CONSERVATION BIOLOGY AND PUBLIC POLICY 79-80 (1994).

(20) Id.

(21) Id at 79.

(22) See Rosenberg et al., supra note 5, at 677 ("Predominant among [conservation] strategies has been the recommendation that corridors be included in conservation plans ... to increase the connectivity of otherwise isolated patches.").

(23) GRUMBINE, supra note 7, at 60.

(24) BENNETT, supra note 8, at 54-55.

(25) Id.

(26) Id.

(27) See, e.g., Press Release, University of Florida, After Massive Experiment, Results Favor Wildlife Corridors (Sept. 16, 2002) (funding that wildlife corridors should increase chances of survival in separated populations), available at http://www.napa.ufl.edu/2002news/corridors.htm; Troy Merrill & David J. Mattson, Approaches to Conservation: Defining Grizzly Bear Habitat in the Yellowstone to Yukon, in A SENSE OF PLACE: ISSUES, ATTITUDES AND RESOURCES IN THE YELLOWSTONE TO YUKON ECOREGION 103 (Ann Harvey ed., 1998) (discussing need for connective habitat in ensuring grizzly bear (Ursus arctos horribilis) persistence), available at http://www.y2y.net/science/conservation/y2yatlas.pdf; DAVID B. LINDENMAYER & JERRY F. FRANKLIN, CONSERVING FOREST BIODIVERSITY 112 (2002) (discussing demonstrated value of corridors). It is well documented that several types of animals rely on habitat linkages in the wild to carry out activities necessary to their survival. See BENNETT, Supra note 8, at 71-74. For example, brown kiwis (Apteryx australis mantelli) use "small forest remnants" as cover to travel. Id. at 71. Blue jays (Cyanocitta cristata) use fencerows for the same purpose. Id. Mule deer (Odocoileus hemionus) have been observed using highway underpasses to cross roads and African elephants (Loxodonta africana) often rely on "broad tract[s] of uncultivated land" for migration. Id. at 72. Within North America, much study has been focused on grizzly bear use of corridors within the Northern Rockies region. See, e.g., AMERICAN WILDLANDS, TOP AGENCY MANAGERS PROMOTE WILDLIFE LINKAGE, at http://www.wildlands.org/corridor/managers.html (last visited Apr. 11, 2004) (describing the role of the Interagency Grizzly Bear Committee and its focus on ensuring connectivity for grizzlies in the Northern Rockies); see also Memorandum from Interagency Grizzly Bear Committee to Whom it May Concern, Re: Support for the Concept of Linkage Zones (n.d.) [hereinafter IGBC Memo], available at http://www.fs.fed.us/r1/wildlife/igbc/Linkage/Support.htm (endorsing the idea that maintenance of corridors for grizzlies in the Northern Rockies is critical to their survival).

(28) Rosenberg et al., supra note 5, at 678. This article further explains that "in a large metapopulation (spatially semi-isolated populations that are linked by dispersal of individuals) the contribution of only a few immigrant individuals to local gene pools per generation is sufficient to minimize deleterious inbreeding effects and to sustain genetic diversity." Id. at 678-79.

(29) Id.

(30) Id.

(31) See, e.g., Letter from Cindy S. Swanson, Appeal Reviewing Officer, Director of Watershed, Wildlife, Fisheries and Rare Plants, to Appeal Deciding Officer (Sept. 13, 2002) [hereinafter White Pine Decision] (Forest Service denying claims by environmental group that Forest Service timber sale will destroy land that operates as corridor for grizzlies, connecting the Bitterroot and Cabinet-Yaak grizzly bear ecosystem recovery areas) (on file with author). A few examples of where plaintiffs have sought to enjoin agency actions in court include Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 529-30 (9th Cir. 1997); American Lands Alliance v. Kenops, No. CIV. 99-80-KI, 1999 WL 672213, at * 7 (D. Or. Aug. 24, 1999); and Foundation for Global Sustainability Inc.'s Forest Protection & Biodiversity Project McConnell, 829 F. Supp. 147, 154 (W.D.N.C. 1993).

(32) Telephone Interview with Thomas Woodbury, Attorney, The Ecology Center, Inc. (Nov. 1, 2002). Thomas Woodbury was counsel for plaintiffs In Idaho Sporting Congress, Inc. Rittenhouse, 305 F.3d 957 (9th Cir. 2002), and Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059 (9th Cir. 2002). A search for cases that deal with "wildlife corridors," "biological corridors," or "movement corridors" reveals that relatively few courts have heard arguments concerning these issues.

(33) Some examples of these efforts include the Sky Islands Wilderness Network (SIWN), Yellowstone to Yukon Initiative (Y2Y), and the Northern Rockies Ecosystem Protection Act of 2001, H.R. 488, 107th Cong. [hereinafter NREPA].

(34) For an example of a legislative proposal seeking corridor protections, see NREPA, supra note 33.

(35) NREPA serves as a good example of efforts to protect wildlife corridors legislatively, and to some extent, the type of corridors it seeks to protect provide a springboard for discussion in this Comment. NREPA was introduced as H.R. 488, 107th Congress, Feb. 6, 2001, and at the close of the 107th Congress, the bill had 153 cosponsors. Library of Congress, Bill Summary & Status for the 107th Congress, H.R. 488, at http://thomas.loc.gov/cgi-bin/bdquery/z?d107:HR00488:@@@P (last visited Apr. 11, 2004). While those promulgating the bill are optimistically awaiting its enactment into law, the bill does face tough opposition. NREPA, as well as most other comprehensive corridor protection plans, focuses mainly on public lands for "core areas" of biological corridors. NREPA [section] 3(a).

(36) These plans, if implemented, would undoubtedly provide the greatest legal protection to corridors. However, legislative efforts may be bogged down even by conflicts that exist among scientists. Because numerous variables determine the effectiveness of a given wildlife corridor, a continuing dialogue and debate surrounds most implementation efforts, making agreement on how best to proceed rare. See, e.g., LINDENMAYER & FRANKLIN, supra note 27, at 112 (discussing some of the debates). Among the usual variables at issue are width, length, topography, and habitat quality. Id. at 113. Additionally, depending on which species is the focus of a corridor, effective corridor characteristics may differ radically. See BENNETT, supra note 8, at 71-74 (listing various habitat types that serve as wildlife linkages for different species). Much of this scientific debate springs from the difficulty in conducting field tests to experiment with corridor effectiveness. LINDENMAYER & FRANKLIN, supra note 27, at 276. Aside from computer modeling and small-scale testing, it is difficult to imagine an ideal methodology for studying the effects of corridors on grizzly populations, for example, because the scientific approach would require a control group, as well as a study group. Experimenting with the mortality of such a species is not appropriate and there would always be a high amount of variation between control habitat and test habitats. See id. at 277 ("Experiments require the control of many potential sources of influence. As a result, findings from some experiments may have limited generality and capacity for extrapolation to other systems or problems at larger scales.").

Nevertheless, despite debates about specific aspects of effective corridors, most biologists agree that they are desirable and important. There is general agreement that effective corridors are those that provide "a continuous, or near continuous, link of suitable habitat through an inhospitable environment," BENNETT, supra note 8, at 54, and efforts to protect such corridors garner broad support. See, e.g., AMERICAN WILDLANDS, supra note 27 (describing agency and scientific support).

(37) For an example of these threats, see White Pine Decision, supra note 31. Here, the Forest Service proposed a timber sale in an area that appears to operate as a grizzly bear corridor between the Bitterroot and Cabinet-Yaak grizzly bear ecosystem recovery areas.

(38) AMERICAN WILDLANDS, supra note 27. This is an estimate by the Interagency Grizzly Bear Committee (IGBC), composed of governmental wildlife managers charged with working to implement the Grizzly Bear Recovery Plan.

(39) The author acknowledges that existing federal law represents only a slice of the possibilities for protecting corridors. Indeed, federal law may have only limited applicability with respect to any specific corridor. This Comment focuses on the provisions of federal laws that present avenues for arguing that federal law requires biological corridor protection. Although this Comment describes scientific considerations relating to biological corridors to some extent, the analysis focuses on possible applications of the provisions of federal legislation to effect corridor protection rather than on the method for formulating arguments that any particular piece of habitat forms a functional corridor.

(40) National Forest Management Act of 1976, 16 U.S.C. [subsection] 472a, 521b, 1600, 1611-1614 (2000) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

(41) Federal Land Policy and Management Act of 1976, 43 U.S.C. [subsection] 1701-1785 (2000).

(42) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-370e (2000).

(43) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000).

(44) 16 U.S.C. [section] 1604(a) (2000).

(45) Id.

(46) Id. [section] 1604(g)(3)(B).

(47) See id. [section] 1604(i) (requiring that activities within a forest comply with the LRMPs); see also Native Ecosystems Council v. Dombeck, 304 F.3d 886, 897-98 (9th Cir. 2002) (explaining the two-step planning process under NFMA).

(48) A party seeking protection of corridors on Forest Service lands under NFMA has a couple of options for challenging detrimental agency action. A party can challenge an LRMP that fails to account for protection of corridors on the basis that the plan is not in accordance with the substantive requirements of NFMA, or it can challenge an action on the basis that the action does not comply with the governing LRMP. Either of these options can be effective in protecting a wildlife corridor.

Courts sometimes find agency actions to be in violation of NFMA substantive obligations even when the specific action is in compliance with the applicable LRMP. See, e.g., Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1069 (9th Cir. 2002) (holding that "the approval of a [timber] sale may conflict with the Forest Service's mandate to insure species viability even though the logging would not violate Forest Plan standards for the areas directly affected by the sale").

It should be noted that the United States Supreme Court has held that challenges to Forest Plans are nonjusticiable in some instances. In Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998), the Court held that an environmental group's challenge to an LRMP on the basis that the plan allowed too much logging and clear-cutting was not yet ripe. Id. at 728. However, many cases have distinguished Ohio Forestry and allowed challenges to LRMPs where the agency decision to take action was final. See, e.g., San Juan Audubon Soc'y v. Veneman, 153 F. Supp. 2d 1, 7 (D.D.C. 2001) (explaining that although Ohio Forestry precludes review of a challenge to an LRMP that the Service has adopted but not implemented, judicial review of an agency's decision is appropriate where the decision "marks the consummation of the [agency's] decisionmaking process and determines the plaintiffs' rights"). Thus, rather than foreclosing any challenges to a Forest Plan, Ohio Forestry simply requires that a challenge of an LRMP on the basis that it violates NFMA's substantive requirements must be brought after final agency action.

NFMA itself does not provide for judicial review of decisions of the Forest Service. A cause of action arises under the Administrative Procedure Act, 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000). Section 702 provides, "A person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Id. [section] 702; see also Sierra Club v. Marita, 46 F.3d 606, 610 n.3 (7th Cir. 1995) (noting that the Sierra Club brought an action under section 702 of the Administrative Procedure Act because NFMA does not "explicitly provide for judicial review of Forest Service decisions").

(49) 36 C.F.R. [section] 219.19 (1999).

(50) National Forest System Land and Resource Management Planning, 67 Fed. Reg. 72,770, 72,770 (proposed Dec. 6, 2002) (to be codified at 36 C.F.R. pt. 219).

(51) 36 C.F.R. [section] 219.19 (1999).

(52) Id. (emphasis added).

(53) 305 F.3d 957 (9th Cir. 2002).

(54) This forest was subject to the 1999 regulations. Id. at 961 n.2.

(55) Id. at 966.

(56) Id. at 962.

(57) Id.

(58) Id. at 963.

(59) Id.

(60) Id. at 971.

(61) Id. (quoting 36 C.F.R. [section] 219.19(a) (1999)),

(62) Id.

(63) The type of evidence needed to show that a certain corridor fulfills this function would likely depend on the individual corridor. There is, however, a wealth of scientific data concerning the necessity for interactions between populations to sustain viability. See, e.g., Merrill & Mattson, supra note 27, at 103 (explaining this requirement). In fact, the plain language of NFMA's regulations recognizes and mandates this. 36 C.F.R. [section] 219.19 (2004).

(64) See, e.g., Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1069-70 (9th Cir. 2002) (holding that agency actions must not only ensure viability within forest planning areas, but must ensure viability on at least a forest-wide scale); ISC, 305 F.3d at 971 n.7 ("[The Forest Service] must, however, put in place and observe with respect to each site specific action a valid forest-wide standard for ensuring viable populations of old growth dependent species.").

(65) Thomas Woodbury, counsel for plaintiffs in ISC, stated that he sees litigation going more towards enforcing the viability requirement on a region-wide scale. Because, he believes, ISC indicated that the Forest Service must consider impacts across boundaries, a lawsuit could easily come about that involves more than one forest manager, and claims that neighboring forests have failed to carry out NFMA's mandate to ensure viability of species. Telephone Interview with Thomas Woodbury, supra note 32. Thomas Woodbury was also counsel for plaintiffs in Neighbors of Cuddy Mountain, 303 F.3d 1059 (9th Cir. 2002). See supra notes 48, 64, and infra note 60 for references to that case.

(66) See, e.g., ISC, 305 F.3d at 971 n.7 ("[The Forest Service] must, however, put in place and observe with respect to each site specific action a valid forest-wide standard for ensuring viable populations of old growth dependent species."); Neighbors of Cuddy Mountain, 303 F.3d at 1069-70 (interpreting NFMA to require more than viability within management areas). Although these cases only specifically demand insurance of viability on a forest-wide scale, given the courts' emphasis on actual spatial relationships and species interaction, it seems likely that they would require management for viability even where that necessitated inter-forest coordination.

(67) National Forest System Land and Resource Management Planning, Final Rule, 65 Fed. Reg. 67,514 (Nov. 9, 2000) (to be codified at 36 C.F.R. pts. 217, 219).

(68) In 2000, the regulations were changed to require that all revisions and amendments to LRMPs be in compliance with the new planning rules, unless the changes were initiated prior to November 9, 2000 and a draft environmental impact statement or environmental assessment was published before May 9, 2001. National Forest System Land and Resource Management Planning; Extension of Compliance Deadline, 66 Fed. Reg. 27,552, 27,552 (May 17, 2001) (to be codified at 36 C.F.R. pt. 219). On May 17, 2001, Secretary of Agriculture Ann Veneman announced that the Department of Agriculture was extending the May 9, 2001 specified deadline for completing forest plan revisions without having to make them comply with the new planning rule. Id. This action was deemed necessary to the public interest because the Forest Service was unprepared to implement the rule agency-wide. Id. The Secretary feared that the agency would "experience serious disruption in its planning processes with attendant confusion of employees and the public." Id. The Secretary noted that out of approximately 34 forests that were in the process of revising LRMPs, about 20 of those had completed "extensive public involvement activities," but were not able to complete the other requirements by the May 9, 2001 deadline. Id.

(69) National Forest System Land and Resource Management Planning, Proposed Rule, 67 Fed. Reg. 72,770, 72,770 (proposed Dec. 6, 2002) (to be codified at 36 C.F.R. pt. 219).

(70) 36 C.F.R. [section] 219.35(b) (2004).

(71) Id. [section] 219.35; see also ISC, 305 F.3d at 962 n.2 (noting that the older regulations apply to the question before the court).

(72) 36 C.F.R. [section] 219.19 (2004).

(73) Id. [section] 219.20(a).

(74) Id. [section] 219.20(a)(2)(ii).

(75) Id. [section] 219.36 (emphasis added).

(76) The rules require that each forest plan contain a monitoring strategy to evaluate sustainability. Id. [section] 219.11(a). That monitoring strategy, in turn, requires the monitoring of species diversity. Id. [section] 219.11(a)(1)(ii).

(77) See id. [section] 219.36 ("Focal species are surrogate measures used in the evaluation of ecological sustainability, including species and ecosystem diversity. The key characteristic of a focal species is that its status and trend provide insights to the integrity of the larger ecological system to which it belongs.").

(78) Id. [section] 219.11(a)(1)(ii)(A). Species at risk include "[f]ederally listed endangered, threatened, candidate, and proposed species and other species for which loss of viability, including reduction in distribution or abundance, is a concern within the plan area." Id. [section] 219.36.

(79) Id. [section] 219.11(a)(1)(ii)(A).

(80) Id. [section] 219.2(a)(3).

(81) ISC, 305 F.3d 957, 972-73 (9th Cir. 2002).

(82) National Forest System Land and Resource Management Planning, Proposed Rule, 67 Fed. Reg. 72,770, 72,770 (proposed Dec. 6, 2002) (to be codified at 36 C.F.R. pt. 219). The stated reason for the new rules was to improve upon the 2000 rules by simplifying, clarifying, and "otherwise improv[ing] the planning process ... while retaining the key concepts of the 2000 rule for sustainability, collaboration, monitoring and evaluation, and the use of science." Id. at 72,792.

(83) Id. at 72,800.

(84) Id. at 72,784, 72,800-01.

(85) Id. at 72,784, 72,800.

(86) Id. at 72,784, 72,800-01.

(87) While there remains much concern over the impact of the revision of NFMA regulations, the author merely asserts that for the purposes of biological corridors, the proposed regulations apparently continue to offer a workable methodology for ensuring their protection.

(88) ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE AND POLICY 973 (3d ed. 2000).

(89) See, e.g., Notice of Public Land Closure, Ute Mountain, Taos County, NM, 68 Fed. Reg. 75,625, 75,625-26 (Dec. 31, 2003) (addressing corridor issue on BLM land under its jurisdiction).

(90) 43 U.S.C. [section] 1712(a) (2000).

(91) Id. [section] 1732(a).

(92) Id. [section] 1712(a).

(93) See, e.g., S. Utah Wilderness Alliance v. Norton, 301 F.3d 1217, 1234 (10th Cir. 2002) (holding that BLM has a "mandatory, nondiscretionary duty to carry out the activities described in ... LUPs'), cert. granted, 124 S. Ct. 462 (2003).

(94) See, e.g., Notice of Public Land Closure, Ute Mountain, Taos County, NM, 68 Fed. Reg. at 75,625 (closing recently acquired BLM land until the creation of management plans to address its unique function as a wildlife corridor).

(95) Another way that FLPMA may, although indirectly, offer protection to biological corridors is that it works to further the Wilderness Act, 16 U.S.C. [subsection] 1131-1136 (2000). FLPMA requires the Secretary of Agriculture to review lands under the jurisdiction of BLM to determine lands that meet the requirements of "wilderness" under that Act. 43 U.S.C. [section] 1782(a) (2000). Once such land is designated, it is subject to strict restrictions and is commonly referred to as a wilderness study area (WSA) although the statute does not use the term. See id. [section] 1782(c) (describing procedures for BLM wilderness study). The Secretary must notify the President of his recommendation as to whether a WSA should be officially protected as "wilderness" under the Wilderness Act. Id. [section] 1782(a). The President then notifies Congress, which has the ultimate power to enact the protections of the Wilderness Act. Id. [section] 1782(b); S. Utah Wilderness Alliance, 301 F.3d at 1224-25. Until Congress makes a final determination as to designation or nondesignation, the Secretary is charged under FLPMA to manage potential "wilderness" areas "in a manner so as to not impair the suitability of such areas for preservation as wilderness." 43 U.S.C. [section] 1782(c) (2000).

The protections afforded to land designated as "wilderness" generally promote corridor functionality. For example, a "wilderness" designation protects land from commercial development and vehicle usage, 16 U.S.C. [section] 1133(c) (2000), and results in the land being devoted to conservation uses. Id. [section] 1133(b). FLPMA may thus be able to protect corridors by linking the protections of "wilderness" to lands that qualify under the "Wilderness Act.

As far as "wilderness" designations are concerned, however, FLPMA offers no additional protections beyond its mandate to preserve the potential of the land to be designated as "wilderness." That is, if Congress ultimately decides that a corridor is not to be protected as a "wilderness" area, the protections afforded by FLPMA fall away.

A significant weakness to this strategy for protection is that in order for lands to qualify as "wilderness," they must meet certain criteria. For example, under FLPMA, wilderness areas must consist of at least 5000 acres, 43 U.S.C. [section] 1782(a) (2000), and be "undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation." 16 U.S.C. [section] 1131(c) (2000). The Wilderness Act specifically defines "wilderness" as

   an area where the earth and its community of life are untrammeled
   by man, where man himself is a visitor who does not remain. An area
   of wilderness is further defined to mean in this chapter an area of
   undeveloped Federal land retaining its primeval character and
   influence, without permanent improvements or human habitation,
   which is protected and managed so as to preserve its natural
   conditions and which (1) generally appears to
   have been affected primarily by the forces of nature, with the
   imprint of man's work substantially unnoticeable; (2) has
   outstanding opportunities for solitude or a primitive and
   unconfined type of recreation; (3) has at least five thousand
   acres of land or is of sufficient size as to make practicable its
   preservation and use in an unimpaired condition; and (4) may also
   contain ecological, geological, or other features of scientific,
   educational, scenic, or historical value.

Id. Because protection of corridors usually becomes critical in highly fragmented areas, many threatened corridors are unlikely to qualify as "wilderness" areas.

(96) For a discussion about the inability of FLPMA's planning provisions to protect wildlife, see Kelly Nolen, Residents at Risk: Wildlife and the Bureau of Land Management's Planning Process, 26 ENVTL. L. 771, 795 (1996) (arguing that the FLPMA criteria are "too broad to achieve [the] goal" of "a balanced multiple use sustained yield allocation of resources," which include fish and wildlife).

(97) 43 U.S.C. [section] 1712(c)(2) (2000).

(98) Id. [section] 1712(c)(3).

(99) Id. [section] 1732(a).

(100) See George Cameron Coggins, The Developing Law of Land Use Planning on the Federal Lands, 61 U. COLO. L. REV. 307, 319 (1990) (noting that FLPMA "embodies a general command to plan but is otherwise open-ended").

(101) See PERCIVAL ET AL., supra note 88, at 973-74 (arguing that FLPMA's multiple-use mandate often weakens its ability to protect the environment).

(102) Marla E. Mansfield, On the Cusp of Property Rights: Lessons from Public Land Law, 18 ECOLOGY L.Q. 43, 51 (1991).

(103) Id.; see also Nolen, supra note 96, at 796 ("The broad principles for planning described above still provide BLM with a good deal of discretion when preparing [LUPs], leaving the agency vulnerable to pressure from consumptive users of the public lands who seek decisions which will favor their interests.").

(104) 914 F.2d 1174 (9th Cir. 1990).

(105) Id. at 1174.

(106) Id. at 1183.

(107) Id. at 1182.

(108) Id. at 1183.

(109) Id. at 1182.

(110) See Mansfield, supra note 102, at 51 (identifying FLPMA's mandate to use "a systematic, integrated approach" to consider science as a procedural duty).

(111) The stature defines ACECs as "areas within the public lands where special management attention is required (when such areas are developed or used or where no development is required) to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes, or to protect life and safety from natural hazards." 43 U.S.C. [section] 1702(a) (2000).

(112) See Coggins, supra note 100, at 323 (noting that the few cases discussing BLM's multiple-use mandate indicate courts' unwillingness to use the requirement as a standard of review).

(113) Id. at 322.

(114) 43 U.S.C. [section] 1711(a) (2000); 43 C.F.R. [section] 1601.0-5(a) (2004) ("The identification of a potential ACEC shall not, of itself, change or prevent change of the management or use of public lands.").

(115) Coggins, supra note 100, at 323.

(116) 16 U.S.C. [section] 1604(g)(3)(B) (2000).

(117) 43 U.S.C. [section] 1712(c) (2000).

(118) A good example is the efforts behind the Northern Rockies Ecosystem Protection Act (NREPA). See supra note 35 (describing NREPA in more detail).

(119) The Interior Columbia River Basin "includes lands in the continental United States tributary to the Columbia River east of the crest of the Cascade Mountain Range." INTERIOR COLUMBIA BASIN ECOSYSTEM MANAGEMENT PROJECT, PROJECT CHARTER (Jan. 21, 1994), available at http://www.icbemp.gov/news/charter.html.

(120) INTERIOR COLUMBIA BASIN ECOSYSTEM MANAGEMENT PROJECT, HOME PAGE, at http://www.icbemp.gov (last visited Apr. 11, 2004).

(121) Id.

(122) U.S. FOREST SERVICE ET AL., INTERAGENCY MEMORANDUM OF UNDERSTANDING, USFS AGREEMENT NO. 03-RMU-11046000-007, at 1 (Nov. 8, 2002), available at http://www.icbemp.gov/html/mou.pdf.

(123) INTERIOR COLUMBIA BASIN MANAGEMENT PROJECT, THE INTERIOR COLUMBIA BASIN STRATEGY, available at http://www.icbemp.gov/html/icbstrat.pdf (last visited Apr. 11, 2004). The Strategy is a remnant of a much more aggressive ecosystem management plan. For a complete history of this Strategy, and its watering down, see Robert B. Keiter, Ecological Restoration and the Public Lands: Toward a More Natural Order, 33 Envtl. L. Rep. (Envtl. L. Inst.) 10,443 (June 2003). Keiter explains how the Strategy became "purposefully more flexible, giving individual national forests and BLM districts greater leeway in how they implement its principles to accommodate local circumstances." Id. at 10,452.

(124) Source habitats are those habitats that generally have characteristics that allow wildlife populations to thrive. For the scientific study about source habitats used in ICBEMP, see MICHAEL J. WISDOM ET AL., SOURCE HABITATS FOR TERRESTRIAL VERTEBRATES OF FOCUS IN THE INTERIOR COLUMBIA BASIN: BROAD-SCALE TRENDS AND MANAGEMENT IMPLICATIONS (2000), available at http://www.fs.fed.us/pnw/pubs/gtr485.

(125) INTERIOR COLUMBIA BASIN MANAGEMENT PROJECT, supra note 123, at 6 (emphasis added).

(126) U.S. FOREST SERVICE, NORTHWEST FOREST PLAN REVIEW, at http://www.fs.fed.us/r5/nwfp (last modified Oct. 22, 2003).

(127) U.S. DEP'T OF THE INTERIOR, RECORD OF DECISION FOR AMENDMENTS TO FOREST SERVICE AND BUREAU OF LAND MANAGEMENT PLANNING DOCUMENTS WITHIN THE RANGE OF THE NORTHERN SPOTTED OWL 1 (1994) [hereinafter RECORD OF DECISION], available at http://www.or.blm.gov/ForestPlan/newroda.pdf.

(128) Id at 7-8; U.S. DEP'T OF THE INTERIOR, STANDARDS AND GUIDELINES FOR MANAGEMENT OF HABITAT FOR LATE-SUCCESSIONAL AND OLD-GROWTH FOREST RELATED SPECIES WITHIN THE RANGE OF THE NORTHERN SPOTTED OWL A-2 (1994) [hereinafter STANDARDS AND GUIDELINES], available at http://www.or.blm.gov/forestplan/newsandga.pdf.

(129) For example, under the NFP's Aquatic Conservation Strategy, riparian reserves are intended to "improve travel and dispersal corridors for many terrestrial animals and plants, and provide for greater connectivity of the watershed." STANDARDS AND GUIDELINES, supra note 128, at B-13. In fact, the Guidelines state that agencies are expected to consider land's functionality as a corridor when determining boundaries of riparian reserves. Id. at B-23. Also, under the Guidelines' Ecological Principles for Management of Late-Successional Forests, agencies are instructed that the forest matrix is an integral management tool, providing for connectivity of habitats, "dispersal of organisms, carryover of some species from one stand to the next, and maintenance of ecologically valuable structural components." Id. at B-1 to B-2. The Record of Decision for the NFP even states in one instance:

   This decision recognizes the special biological qualities of [the
   Soda Mountain area near Medford, Oregon] and directs the BLM to
   evaluate carefully the values of the Soda Mountain area as a
   biological connectivity corridor and propose any additional
   management protection necessary, including a special designation,
   through the BLM resource management plan, to protect those values.

RECORD OF DECISION, supra note 127, at 30.

(130) For an example of this type of cooperation, see U.S. FOREST SERVICE & U.S. FISH AND WILDLIFE SERVICE, CANADA LYNX CONSERVATION AGREEMENT, USFS AGREEMENT #00-MU-11015600-013, at 6 (Feb. 7, 2000) (explaining that agencies agree to identify key linkages for lynx and address them in planning documents and processes), available at http://www.fs.fed.us/rl/planning/lynx/reports/consagreement.pdf.

(131) 43 U.S.C. [section] 4331 (2000).

(132) Id. [section] 4332(C).

(133) Id.

(134) Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) (citing Natural Res. Def. Council v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972)).

(135) See, e.g, Notice of Intent To Prepare an Environmental Impact Statement (EIS) for Update of the Fort Belvoir Real Property Master Plan, 68 Fed. Reg. 60,972, 60,972 (Oct. 24, 2003) (acknowledging EIS must consider environmentally sensitive areas such as wildlife corridors).

(136) Am. Lands Alliance v. Kenops, No. CIV. 99-80-KI, 1999 WL 672213, at *6 (D. Or. Aug. 24, 1999).

(137) See, e.g, Marble Mountain Audubon Soc'y v. Rice, 914 F.2d 179, 182-83 (9th Cir. 1990) (arguing that a timber salvage EIS failed to consider biological corridor adequately).

(138) Am. Lands Alliance, 1999 WL 672213, at *6.

139 Id.; Save the Yaak Comm. v. Block, 840 F.2d 714, 722 (9th Cir. 1988); Joseph v. Adams, 467 F. Supp. 141, 152 (E.D. Mich. 1978).

(140) See Steubing v. Brinegar, 511 F.2d 489, 497 (2d Cir. 1975) (explaining that compliance with NEPA, especially where EIS must be redone, naturally adds considerable costs to any project, but that Congress deemed the protection of the environment worth those costs).

(141) 42 U.S.C. [section] 4332(C) (2000).

(142) Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998) (citing Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir. 1992)).

(143) 40 C.F.R. [section] 1508.27 (2004).

(144) Id. [section] 1508.27(b)(3).

(145) Id. [section] 1508.27(b)(5).

(146) Id. [section] 1508.27(b)(7).

(147) Id. [section] 1508.27(b)(9).

(148) Id. [section] 1508.27(b)(7).

(149) See Found. for Global Sustainability Inc.'s Forest Prot. & Biodiversity Project v. McConnell, 829 F. Supp. 147, 154 (W.D.N.C. 1993) (rejecting plaintiff's claim for precisely this reason).

(150) See infra note 202 for examples of such scientific studies and websites of organizations involved in studying corridors and connectivity in various geographical regions.

(151) Hanly v. Kleindienst, 471 F.2d 823, 831 (2d Cir. 1972).

(152) Some case law demonstrates, however, that even in the case of corridors, courts may be se reluctant to tread on broad agency management discretion that they do not hold agencies to this duty. For example, in American Lands Alliance v. Kenops, No. CIV. 99-80-KI, 1999 WL 672213 (D. Or. Aug. 24, 1999), a district court in Oregon accepted as sufficient the Forest Service's reasoning that the impacts from a timber sale within a wildlife corridor would not be significant "because of the high degree of fragmentation already present." Id. at *7. Because the very worth of a biological corridor is its ability to relieve habitat fragmentation, such reasoning is nonsensical. Reasoning that a corridor is insignificant because it is located in a highly fragmented habitat is analogous to proposing that removing one more stone from an unstable foundation will not significantly affect a building because it is already highly unstable. For an interesting analogy to the biodiversity crisis, see PAUL EHRLICH & ANNE EHRLICH, EXTINCTION: THE CAUSES AND CONSEQUENCES OF THE DISAPPEARANCE OF SPECIES xi-xiv (1981). The Ehrlichs compare the present biodiversity loss to the removal of rivets, one at a time, from the wing of an airplane. Id. They argue that the situation is similar to biodiversity loss in that no one is sure how many rivets, or organisms, can be removed before a catastrophic failure occurs. Id.

(153) The author points out again that this Comment is not intended to prove that agencies willfully ignore the importance of corridors; rather, it is intended to outline obligations to consider them, and methodologies for arguing that federal law requires their protection. In many instances, agencies may voluntarily consider impacts on corridors to be significant.

(154) 914 F.2d 179 (9th Cir. 1990).

(155) Lucy T. Rudbach, A Strategy to Preserve Biological Diversity: Marble Mountain Audubon Society v. Rice, 13 PUB. LAND L. REV. 193, 202 (1992).

(156) Marble Mountain, 914 F.2d at 180.

(157) The Ninth Circuit adopted the following definition of biological corridor: "Biological corridors provide avenues along which wide-ranging animals can travel, plants can propagate, genetic interchange can occur, populations can move in response to environmental changes and natural disasters, and threat[en]ed species can be replenished from other areas." Id. at 180-81 n.2.

(158) Id. at 180-81.

(159) Id. at 180.

(160) Id.

(161) Id. at 182.

(162) Id. at 181.

(163) Id. at 182.

(164) Id.

(165) Id.

(166) Id.

(167) Id.

(168) See, e.g., Or. Natural Res. Council v. Lowe, 109 F.3d 521, 529-30 (9th Cir. 1997) (plaintiffs arguing that the Forest Service failed to comply with NEPA when EIS did not consider connectivity of old growth forests); Am. Lands Alliance v. Kenops, No. CIV. 99-80-KI, 1999 WL 672213, at *7 (D. Or. Aug. 24, 1999) (plaintiffs arguing that Marble Mountain requires a finding of significance when biological corridors are present); Found. for Global Sustainability Inc.'s Forest Prot. & Biodiversity Project v. McConnell, 829 F. Supp. 147, 154 (W.D.N.C. 1993) (plaintiffs arguing that under Marble Mountain, raising the presence of a nearby biological corridor raises a substantial question necessitating discussion in an EIS).

(169) Am. Lands Alliance, 1999 WL 672213, at *7; Or. Natural Res. Council, 109 F.3d at 530; McConnell, 829 F. Supp. at 154.

(170) Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).

(171) For an example of a case where the Forest Service gave seemingly adequate consideration to the corridor issue, see Preston v. Yeutter, No. CV-91-00039-CCL, 1994 WL 447284 (9th Cir. Aug. 19, 1994).

(172) Am. Lands Alliance, 1999 WL 672213, at *7.

(173) 16 U.S.C. [section] 1531(b) (2000).

(174) Tenn. Valley Auth. v. Hill, 437 U.S. 153, 172-73 (1978).

(175) Id. at 184.

(176) "The term 'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. [section] 1532(20) (2000).

(177) An "endangered species" is one "which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection ... would present an overwhelming and overriding risk to man." Id. [section] 1532(6).

(178) Id. [section] 1533(a)(1).

(179) Id. [section] 1536(a)(1).

(180) Id. [section] 1532(3).

(181) Id. [section] 1536(a)(2).

(182) Id.

(183) For an expansive discussion of the evolution and agency interpretation of the jeopardy clause, see Daniel J. Rohlf, Jeopardy Under the Endangered Species Act." Playing a Game Protected Species Can't Win, 41 WASHBURN L.J. 114 (2001).

(184) See, e.g., Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) (explaining that agency's determination may not be overturned unless arbitrary and capricious). Professor Daniel J. Rohlf explains that the agencies' approach to jeopardy determinations seems to be "we know [it] when we see [it]." Rohlf, supra note 183, at 159-60 (commenting on the D.C. Circuit's ruling in Am. Trucking Ass'ns v. Envtl. Prot. Agency, 175 F.3d 1027, 1034 (D.C. Cir. 1999), modified, 195 F.3d 4 (D.C. Cir. 1999), aff'd in part and rev'd in part sub nom. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001)).

(185) 16 U.S.C. [section] 1536(a)(2) (2000).

(186) Rohlf, supra note 183, at 158-63. Professor Rohlf explains, "If FWS or NMFS never establish and disclose a definite standard prior to performing a jeopardy analysis on a proposed project, as is usually the case, the agency is free to make either choice." Id. at 160.

(187) Rohlf, supra note 183, at 160.

(188) 50 C.F.R. [section] 402.02 (2004) (emphasis added); see Rohlf, supra note 183, at 150-55 (providing a comprehensive discussion of this regulation, resultant problems, and suggestions for remedying the issue).

(189) 16 U.S.C. [subsection] 1536(a)(2), 1531(b) (2000).

(190) 50 C.F.R. [section] 402.02 (2004). The full regulatory definition defines what it means to jeopardize the continued existence of a species as "engag[ing] in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." Id.

(191) Sierra Club v. Marita, 46 F.3d 606, 621 (7th Cir. 1995).

(192) This committee includes members from the United States Forest Service, the United States Fish and Wildlife Service, the United States Geological Survey, and various state agencies. IGBC Memo, supra note 27.

(193) IGBC Memo, supra note 27. The memo further explains:

   Habitat fragmentation is one of the issues complicating the
   conservation of grizzly bears and many other species of wildlife.

      ....

      ... [T]he IGBC believes linkage zone identification and the
   maintenance of existing linkage opportunities for wildlife between
   the large blocks of public lands in the range of the grizzly bear
   are fundamental to healthy wildlife. Wildlife habitat conservation
   and the eventual recovery of listed species such as grizzly bears
   will require connections between populations. Maintaining linkage
   opportunities will benefit all wildlife species and will help
   assure healthy populations of the wildlife species we all value.

Id.

(194) U.S. DEP'T OF AGRICULTURE, WHITE PINE CREEK PROJECT FINAL ENVIRONMENTAL IMPACT STATEMENT 4-2 (June 2002) [hereinafter WHITE PINE FEIS].

(195) See id. at 6-7 (describing grizzly use of the White Pine Creek drainage). The EIS states,

   [D]uring 1984 and 1985 there were 14 radio-locations and one
   observation of a grizzly in the area. Since the mid-80's there
   has been one observation of a grizzly in the project area.
   Grizzly use of the area appears to be limited to occasional
   movements of transient bears.

      ... The proposed sale area also contains spring habitat and
   limited denning habitat.

Id.

(196) Complaint for Declaratory Relief at 2, Alliance for the Wild Rockies v. United States Fish and Wildlife Serv., No. 03-CV-20 (D. Mont. Feb. 10, 2003) [hereinafter White Pine Complaint]; U.S. DEP'T OF AGRICULTURE, WHITE PINE CREEK PROJECT RECORD OF DECISION 11-12 (2002) [hereinafter WHITE PINE ROD].

(197) White Pine Decision, supra note 31, at 6 (quoting WHITE PINE FEIS, supra note 194, app. K, at 10).

(198) White Pine Complaint, supra note 196, at 3.

(199) Id. at 15-16.

(200) Id. at 14.

(201) For example, the IGBC Memo, supra note 27, may be a good source when grizzlies are involved.

(202) See AMERICAN WILDLANDS, GROUPS WORKING ON CORRIDOR RESEARCH AND PROTECTION, at http://www.wildlands.org/corridor/who_concern.html (last visited Apr. 11, 2004) (noting that some of the groups working on the study and implementation of corridors include The Wildlands Project, The World Wildlife Fund, The Alliance for the Wild Rockies, and the Craighead Environmental Research Institute); see also Merrill & Mattson, supra note 27, at 114-20 (exploring data from study that supports notion that corridors are necessary for grizzly survival).

(203) 50 C.F.R. [section] 402.12(a), (k)(1) (2004); Native Ecosystems Council v. Dombeck, 304 F.3d 886, 900 (9th Cir. 2002).

(204) See, e.g., Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 254 F. Supp. 2d 1196, 1212, 1216 (D. Or. 2003) (enjoining agency action because of arbitrary and capricious choice of action area).

(205) 50 C.F.R. [section] 402.02 (2004).

(206) Id.

(207) 304 F.3d 886 (9th Cir. 2002).

(208) Id. at 902.

(209) Id. at 890, 901-02.

(210) Id. at 901-02.

(211) Id. at 901.

(212) Id. at 902.

(213) Id.

(214) Id. (emphasis added).

(215) Id.

(216) That is, if the action area only encompassed the habitat that contained the food source and the proposed action site, under the resulting analysis the population would appear to be fine. If an agency examines instead the whole effect of the project, however, it would reveal that the impacts of the proposed action would extend beyond the habitat with the food source, and would extend to neighboring habitat due to the severance of the connection allowing those neighboring populations to forage.

(217) Habitat corridors may be necessary for some individual members of species just by virtue of their need to move to different habitats during different seasons, e.g., red-spotted newts (Notophthalmus viridescens viridescens). Rosenberg et al., supra note 5, at 679.

(218) 16 U.S.C. [section] 1538(a)(1) (2000).

(219) A take includes "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id.

(220) 50 C.F.R. [section] 17.3 (2004) (emphasis added). In Marbled Murrelet v. Babbitt, the Ninth Circuit specifically affirmed that impairment to breeding can constitute harm. 83 F.3d 1060, 1067-68 (9th Cir. 1996).

(221) Marbled Murrelet, 83 F.3d at 1064.

(222) See 50 C.F.R. [section] 17.3 (2004) (defining harm for ESA purposes to include "kill[ing] or injur[ing] wildlife by significantly impairing essential behavioral patterns").

(223) See generally James R. Rasband, Priority, Probability, and Proximate Cause: Lessons from Tort Law About Imposing ESA Responsibility for Wildlife Harm on Water Users and Other Joint Habitat Modifiers, 33 ENVTL. L. 595 (2003) (discussing causation requirement under the take prohibition).

(224) See, e.g., Palila v. Haw. Dep't of Land and Natural Res., 852 F.2d 1106, 1108-09 (9th Cir. 1988) (finding a take where sheep grazing would prevent seedling mamane trees (Sophora chrysophylla) from growing into fun-grown mamane trees, on which the palila (Loxiodes bailleui) relies).

(225) 16 U.S.C. [section] 1533(b)(2) (2000).

(226) Id. [section] 1533(a)(3). As noted in Section III.C.1 of this Comment, the ESA prohibits agencies from taking any action that would result in the "destruction or adverse modification of [critical] habitat." Id. [section] 1536(a)(2).

(227) Id. [section] 1532(5)(A)(i). This designated habitat may include more than the habitat currently occupied by the species--it may extend into areas where a species may expand if the Secretary determines that doing so is necessary for conservation of the species. Rudbach, supra note 155, at 204; 16 U.S.C. [subsection] 1532(5)(A)(ii), 1533(a)(3) (2000).

(228) See Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 68 Fed. Reg. 46,684, 46,684 (Aug. 6, 2003) (to be codified at 50 C.F.R. pt. 17) (noting that only 306 of 1,211 listed species enjoy designated critical habitat).

(229) Until 1982, the Secretary was not even required to designate critical habitat concurrently with listing a species as endangered or threatened. Now the Secretary is required to do so, to the maximum extent "prudent and determinable." 16 U.S.C. [section] 1533(a)(3) (2000). The ESA leaves the determination of whether a designation is prudent or determinable to the Secretary. Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d 434, 438 (5th Cir. 2001). Before relying on science, the Secretary is directed to take into consideration the "economic impact, and any other relevant impact" when designating critical habitat. 16 U.S.C. [section] 1533(b)(2) (2000) However, courts are beginning to look more critically at the agencies' decisions to forego designations of critical habitat. See, e.g., Sierra Club, 245 F.3d at 441-42 (finding FWS's decision to forego critical habitat designation for Gulf sturgeon (Acipenser oxrinchus desotoi) unlawful, and finding that the regulatory definition of "adverse modification" is not consistent with the ESA's mandate).

(230) 50 C.F.R. [section] 424.12(e) (2004).

(231) Rosenberg, et al., supra note 5, at 678-89.

(232) 16 U.S.C. [section] 1536(a)(2) (2000).

(233) Rohlf, supra note 183, at 118-19. Professor Rohlfs article explores this practice at length. See 50 C.F.R. [section] 402.02 (2004) (defining "destruction or adverse modification" as "a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of listed species").

(234) See Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 68 Fed. Reg. 46,684, 46,684 (Aug. 6, 2003) (to be codified at 50 C.F.R. pt. 17) (noting that in most circumstances critical habitat designations are redundant to the section 7 consultation requirements).

(235) Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d 434, 441-43 (5th Cir. 2001).

(236) Id. at 442-44.

(237) See Rohlf, supra note 183, at 119 n.16 (explaining the agencies' response to this ruling).

(238) For examples of when agencies do include biological corridors in critical habitat designations, see Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Coastal California Gnatcatcher (Polioptila californica californica) and Determination of Distinct Vertebrate Population Segment for the California Gnatcatcher (Polioptila californica), 68 Fed. Reg. 20,228, 20,241 (Apr. 24, 2003) (to be codified at 50 C.F.R. pt. 17) (including movement corridors in critical habitat to ensure genetic exchange between populations); Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Klamath River and Columbia River Distinct Population Segments of Bull Trout, 67 Fed. Reg. 71,236, 71,242 (Nov. 29, 2002) (to be codified at 50 C.F.R. pt. 17) (including biological corridors for genetic exchange and repopulation in critical habitat for bull trout (Salvelinus confluentus)); Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for the Sacramento Mountains Checkerspot Butterfly and Proposed Designation of Critical Habitat, 66 Fed. Reg. 46,575, 46,587 (Sept. 6, 2001) (to be codified at 50 C.F.R. pt. 17) (proposing critical habitat that includes areas to operate as dispersal corridors for Sacramento Mountains checkerspot butterfly (Euphydryas anicia cloudcrofti)); Endangered and Threatened Wildlife and Plants; Final Determination of Critical Habitat for the Alameda Whipsnake (Masticophis lateralis euryxanthus), 65 Fed. Reg. 58,933, 58,936 (Oct. 3, 2000) (to be codified at 50 C.F.R. pt. 17) ("Critical Habitat [for the Alameda whipsnake] includes both suitable habitat and areas that link suitable habitat, as these links or corridors facilitate movement of individuals between habitat areas and are important for dispersal and gene flow."). Considering the unique and important role that corridors play in an ecosystem, the author would advocate a near per se rule or policy that functional corridors be included in any critical habitat designations.

(239) 16 U.S.C. [section] 1533(f)(1) (2000).

(240) Id. [section] 1533(f)(1)(B)(i)-(ii).

(241) Federico Cheever, Recovery Planning, the Courts and the Endangered Species Act, 16 NAT. RESOURCES & ENV'T 106, 106 (2001).

(242) Id. at 135.

(243) See, e.g., U.S. FISH & WILDLIFE SERVICE, GRIZZLY BEAR RECOVERY PLAN 12, 23-25 (1993) (addressing the importance of corridors in grizzly bear populations), available at http://ecos.fws.gov/docs/recovery_plans/1993/930910.pdf; Endangered and Threatened Wildlife and Plants; Endangered Status for the Peninsular Ranges Population Segment of the Desert Bighorn Sheep in Southern California, 63 Fed. Reg. 13,134, 13,141 (Mat. 18, 1998) (to be codified at 50 C.F.R. pt. 17) (stating that it will take corridor issues into account in recovery plan when developed); Availability of the Recovery Plan for the Northern Idaho Ground Squirrel (Spermophilus brunneus brunneus), 68 Fed. Reg. 54,242, 54,242 (Sept. 16, 2003) ("Recovery is contingent upon protecting and managing present northern Idaho ground squirrel habitat, modifying adjacent habitats to make them favorable for population increases, and to provide adequate corridors for exchange between populations."). This list is by no means comprehensive of the instances in which recovery plans address connectivity. Indeed, numerous recovery plans discuss the need for habitat linkages and insurance for wildlife movement and dispersal. Links to recovery plans for listed species are available at http://ecos.fws.gov/tess_public/TESSWebpageRecovery?sort=2 (last updated Mar. 8, 2004).

(244) Cheever, supra note 241, at 108-09; see, e.g., Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547 (11th Cir. 1996) (stating that "recovery plans are for guidance purposes only").

(245) Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975).

(246) Cheever, supra note 241, at 106.

(247) See Allyson Barker et al., The Role of Collaborative Groups in Federal Land and Resource Management: A Legal Analysis, 23 J. LAND RESOURCES & ENVTL. L. 67, 100-01 (2003) (describing some of the range of options agencies have in using collaboration when creating recovery plans).

(248) See, e.g., Or. Natural Res. Council v. Turner, 863 F. Supp. 1277, 1283 (D. Or. 1994) ("[Recovery planning] allows the Secretary broad discretion to allocate scarce resources to those species that he or she determines would most likely benefit from development of a recovery plan.").

(249) Cheever, supra note 241, at 110.

(250) See Palila v. Haw. Dep't of Land & Natural Res., 639 F.2d 495, 496, 498 (9th Cir. 1981) (holding that the district court properly used the conclusions of a recovery plan to find implementation of an alternate plan inadequate to halt the taking of the palila); Cheever, supra note 241, at 110-11 (discussing the use of the recovery plan as evidence in Palila).

(251) See Fund for Animals v. Babbitt, 903 F. Supp. 96, 108 (D.D.C. 1995) ("A recovery plan that recognizes specific threats to the conservation and survival of a threatened or endangered species, but fails to recommend corrective action or explain why it is impracticable or unnecessary to recommend such action, would not meet the ESA's standard."), amended by 967 F. Supp. 6 (D.D.C. 1997).

(252) See, e.g., Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 133-35 (D.D.C. 2001) (finding FWS failed to comply with section 4(f) objective, measurable criteria and time estimate requirements).

MARK R. THOMPSON, [c] Mark R. Thompson, 2004. J.D expected 2004, Lewis and Clark Law School; Environmental Law, Member 2002-2003, Symposium Editor 2003-2004; B.S., Brigham Young University, 2001 (Conservation Biology). The author would like to thank the staff of Environmental Law for their comments and diligent editing work, Professor Daniel J. Rohlf for his willingness to review drafts and provide guidance, and Janelle Thompson for her encouragement and patience.