The Department of the Interior has filed a motion to dismiss a suit challenging the agency’s decision to terminate the development of a recovery plan for reintroducing grizzlies in the North Cascades ecosystem.
The suit filed in December 2020 by the Center for Biological Diversity (CBD) challenged the Trump administration’s decision, stating it violates the Endangered Species Act (ESA)—which requires the conservation of listed wildlife—and is in violation of the National Environmental Policy Act (NEPA).
Background
The U.S. Fish and Wildlife Service (USFWS) listed grizzly bears as threatened through the ESA in 1975. The agency and the National Park Service (NPS) designated six recovery zones under the Grizzly Bear Recovery Plan, including the North Cascades ecosystem in northwestern and north-central Washington.
The North Cascades ecosystem has a carrying capacity for 280 bears, but the population is currently unknown. Four bears have been spotted in British Columbia in the past 10 years.
In 2015, USFWS and NPS prepared a joint proposal to develop and implement a plan to restore grizzly bears to the North Cascades ecosystem. After receiving public comments, the agencies issued a draft environmental impact statement (DEIS) that proposed three alternatives and a no-action alternative.
The action alternatives had an end goal of restoring a self-sustaining population of at least 200 bears within 60 to 100 years through the capture and release of grizzly bears into the North Cascades recovery zone.
Then-Secretary of the Interior David Bernhardt held a meeting on July 7, 2020, in Washington with ranchers and farmers, telling the crowd the agencies were no longer considering the project, citing local opposition to importing grizzlies to the area.
A few days later, USFWS and NPS issued a Federal Register notice announcing their decision to discontinue the proposal and terminate the DEIS. CBD filed suit, stating, “The termination notice provided no rationale for the agencies’ about-face on the need to augment this grizzly bear population to facilitate recovery.”
CBD contended the agencies violated the ESA by failing to protect listed species and violated NEPA by not issuing a record of decision to explain the agencies’ decision. “Additionally, the agencies are failing to implement the Grizzly Bear Recovery Plan, which calls for carrying out a NEPA process to evaluate alternatives to recover grizzly bears in the North Cascades, as required by ESA Section 4(f),” court documents show.
Section 4(f) requires the secretary of the Interior to develop and implement a recovery plan for species listed under the ESA unless they find a plan will not promote the conservation of the species. The recovery plan is to include any site-specific management actions needed to achieve the species’ conservation and survival.
CBD further asserts the termination of the recovery plan is an agency action requiring consultation under Section 7(a)(2) of the ESA. According to USFWS, Section 7(a)(2) “requires the agencies to ensure their activities are not likely to jeopardize the continued existence of federally listed species or destroy or adversely modify designated critical habitat.”
Motion to dismiss
In the motion to dismiss, attorneys for the agencies state they did not violate the NEPA process because the agencies took no final agency action under the Administrative Procedure Act (APA), nor were they obligated to take such action.
“Rather, FWS and NPS simply provided notice to the public of the agencies’ termination of a proposed action before that action was finalized. Such a notice is not a final agency action under the APA, and thus the court lacks jurisdiction over Plaintiff’s claim,” court documents show.
Further, the attorneys state CBD cannot use NEPA to force the agencies to take final action when none is required. Attorneys also noted CBD offered no case law for examples to support their position that agencies are required to complete the NEPA process and issue a record of decision.
Regarding ESA regulations, the motion states that Section 4(f) requires USFWS to implement recovery plans but does not further define what implementation means and “thus leaves to USFWS’s discretion how best to implement recovery plans in the interest of each species’ conservation.”
The brief points out CBD filed a similar case in the District Court of Montana asserting Section 4(f) and Section 7(a)(2), and the court rejected both arguments.
The brief states USFWS has led a collaborative effort with other federal agencies on the recovery effort of grizzly bears in the Yellowstone area, making it the most studied and most robust recovery program in the U.S. They state Yellowstone grizzlies are thriving and have spread to other sites.
“Plaintiff may be dissatisfied with particular elements of this recovery program relative to the North Cascades Ecosystem, but neither the ESA nor the APA provides for the types of legal challenges brought in this case. For these reasons, the court should dismiss Plaintiff’s complaint in its entirety,” the brief concludes.
CBD attorney Andrea Zaccardi said they were hoping for a policy change last month but want to get on with the lawsuit. CBD has until Sept. 23 to file a response brief to the motion to dismiss. — Charles Wallace, WLJ editor
