Grizzly bears

A dispute over whether the U.S. Fish and Wildlife Service’s “species recovery plans” can be legally petitioned sprung from a Center for Biological Diversity request that asked the agency to update its plans for Lower 48 grizzly bears. Last week, a U.S. District Court judge ruled in favor of the federal government.

A federal judge has decided environmental advocacy groups don’t have the legal footing to petition the U.S. Fish and Wildlife Service on outdated species recovery plans.

The case at issue sprung from a 2014 petition that asked the service to revise and update its then 21-year-old species recovery plan for federally threatened grizzly bears throughout the Lower 48. Federal wildlife managers declined, and the petitioner, the Center for Biological Diversity, challenged. Then last week a U.S. District Court Judge for Montana, Dana Christensen, sided on behalf of the defendants, ruling that the plans aren’t eligible to be petitioned.

“Notwithstanding the merits of the Center [for Biological Diversity]’s claim that the Service is simply not doing enough to protect the grizzly bear, Congress has authorized only limited avenues for judicial review of administrative action, none of which are available in this case,” Christensen wrote in his ruling.

The federal judge dubbed the conservation group’s argument “circular” and “unpersuasive.”

Although the U.S. Department of Interior and U.S. Fish and Wildlife Service were the primary defendants, the State of Wyoming, State of Idaho, Wyoming Stock Growers Association, Wyoming Farm Bureau Federation and Utah Farm Bureau Federation all joined the litigation as intervenors. The Mountain States Legal Foundation came aboard to represent the Wyoming Stock Growers, and on Tuesday that Denver-based nonprofit law firm sent out a statement trumpeting its victory.

“The stakes in this case were very high,” the foundation’s press release reads. “While this case directly involved the grizzly bear in the Lower 48 states, a loss in this case would have opened the floodgates for new litigation over hundreds of other species as well.”

Center for Biological Diversity senior attorneys Collette Adkins and Andrea Zaccardi argued the case for the plaintiffs.

“Unfortunately, the judge ruled that recovery plans are not a rule under the Administrative Procedure Act, even though the definition of rule is extremely broad,” Zaccardi, a Driggs, Idaho resident, told the New&Guide. “We’re talking internally about whether or not to appeal that ruling.”

A “species recovery plan” is a document that’s generated when a species is classified as “threatened” or “endangered” under the Endangered Species Act. There are hundreds of such plans posted up on the Fish and Wildlife’s website, and they are supposed to guide the comeback for wildlife ranging from the Choctawhatchee beach mouse to the woodland caribou.

Judge Christensen found that recovery plans do not constitute a “rule” that marks a final agency action, and thus can’t be legally petitioned.

“If there is no valid petition,” the judge wrote, “the Center’s so-called ‘petition’ is simply a solicitation letter for which the Service had no legal obligation to respond.”

In its now six-year-old petition, the Center for Biological Diversity sought for the Fish and Wildlife Service to add several new grizzly bear recovery areas where the species was exterminated from in the early 20th Century. Specifically, the petition asked for the agency to consider New Mexico and Arizona’s Gila/Mogollon wilderness complex, the Grand Canyon, California’s Sierra Nevada and the Uinta Mountains and parts of southern Utah as prospective grizzly recovery zones.

Although Fish and Wildlife denied the petition, the agency did subsequently update its recovery plans for grizzlies in the Yellowstone and Northern Continental Divide ecosystems. In 2019, federal grizzly bear biologist Jennifer Fortin-Noreus also examined potential grizzly habitat in Colorado’s San Juan and California’s Sierra Nevada ranges, concluding that reintroduction in those areas was likely to fail because of a lack of secure, core habitat.

In his ruling, Christensen raised the question of whether the complaint was therefore moot, because some of the Center for Biological Diversity’s requests had been granted in the intervening years. The judge, however, didn’t throw out the case on that basis, recognizing that historical grizzly range in Arizona, New Mexico and Utah had not been examined.

A copy of Christensen’s order is attached to the online version of this story at JHNewsAndGuide.com.

Contact Mike Koshmrl at 732-7067 or env@jhnewsandguide.com.

Mike has reported on the Greater Yellowstone Ecosystem's wildlife, wildlands and the agencies that manage them since 2012. A native Minnesotan, he arrived in the West to study environmental journalism at the University of Colorado.

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