Federal Appeals Court Rejects Effort to Compel Amended Grizzly Bear Recovery Plan

A federal appeals court turned away Jan. 19 a case that sought to force the U.S. Fish and Wildlife Service to update its recovery plan for the grizzly bear. The decision cast recovery plans as being outside the scope of a federal statute’s provision allowing for petitions to amend agency rules.

The Center for Biological Diversity filed a lawsuit seeking to compel amendment of USFWS’ framework for managing Ursus arctos horribilis after the agency rejected its 2014 petition. The Center asked USFWS to expand the grizzly bear recovery area to Arizona, California, New Mexico, and Utah.

The agency denied the environmental advocacy organization’s request on grounds that an Endangered Species Act recovery plan is not a “rule” under the Administrative Procedure Act. USFWS also said that it had focused recovery efforts only on regions of the country where the animal was present in 1975, the year grizzlies were added to the list of threatened and endangered species.

A federal court in Montana upheld the agency’s decision, holding that recovery plans are not APA rules. U.S. District Judge Dana Christensen’s Dec. 2020 decision said that ESA recovery plans do not implement law or policy.

“[T]he Center’s argument—in sum, that a recovery plan is a rule because it implements the statutory requirements for a recovery plan—is circular and therefore unpersuasive,” the court declared. “A recovery plan does not implement conservation policy because it does not, in and of itself, create change; it doesn’t put itself into effect.”

The net result of the analysis, Christensen argued, is that “the Center’s so-called ‘petition’ is simply a solicitation letter for which the Service had no legal obligation to respond (and correspondingly, its denial letter creates no rights or obligations and there is no final agency action).” As a result, the court lacked jurisdiction to order USFWS to respond to the petition.

Two judges on a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed Christensen’s ruling.

“The caselaw makes plain that adoption of a recovery plan is not agency action by which rights or obligations have been determined, or from which legal consequences will flow,” wrote senior U.S. circuit judge Andrew D. Hurwitz. “The Endangered Species Act does not mandate compliance with recovery plans for endangered species.”

Hurwitz’ opinion was joined by Judge Danny J. Boggs of the U.S. Court of Appeals for the 6th Circuit.

Judge Jennifer Sung, who joined the court last year, dissented.

USFWS first issued a recovery plan for U. arctos horribilis in 1982. The agency updated it in 1993, but not since.

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