All. for Wild Rockies v. Cooley

661 F.Supp.3d 1025

ALLIANCE FOR the WILD ROCKIES and Native Ecosystems Council, Plaintiffs, v. Hilary COOLEY, in her official capacity as U.S. Fishand Wildlife Service Grizzly Bear Recovery Coordinator, et al., Defendants,andState of Idaho, Defendant-Intervenor.

CV 21-136-M-DWM

United States District Court, D. Montana, Missoula Division

March 14, 2023

Attorneys for Plaintiffs: Rebecca Kay Smith, PUBLIC INTEREST DEFENSE CENTER, Timothy M. Bechtold, BECHTOLD LAW FIRM, Missoula, MT.

Attorneys for Defendants: Davis Aaron Backer, U.S. Department of Justice, Washington, DC, Frances Bishop Morris, LeeAnn Kim, DOJ-Enrd, Washington, DC.

Attorney for Defendant-Intervenor: Owen H. Moroney, Idaho Office of the Attorney General, Boise, ID.

OPINION and ORDER

Donald W. Molloy, United States District Judge

This case arises out of a dispute over the United States Fish and Wildlife Service's (the "Service") management of grizzly bear (ursus arctos horribilis) recovery in the Bitterroot Ecosystem of Montana and Idaho. Nearly forty years ago the Fish and Wildlife Service and interested members of the public began scientific inquiry concerning the dearth of grizzly bears in what is now designated as the Bitterroot Ecosystem. Based on the best available science and after considerable study as well as public input from citizens in Montana and Idaho, an investigation spanning nearly fifteen years, a record of decision and rule elected to establish a nonessential experimental grizzly population through introduction of twenty-five grizzly bears into the area. Introduction of the experimental population would happen if funds were available to locate, move, and introduce the bears. Additionally, the record of decision incorporated other mandatory requirements as part of the reintroduction of the experimental grizzly. Now, almost forty years have passed, and nothing has been done: no bears, no community advisory committee, no community or other educational instruction in towns or schools for bear safety, safe practices in garbage storage techniques, and other ways to reduce attracting bears.

Plaintiffs are environmental organizations that claim the Service violated the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act ("APA") by choosing not to implement its grizzly bear recovery plans that had been adopted and by failing to finalize a proposed rule change regarding bear management. Plaintiffs further allege that the Service must prepare a supplemental environmental impact statement ("EIS") to consider the changed circumstances regarding grizzly bears in the area. Cross-motions for summary judgment are pending regarding the merits of Plaintiffs' claims. Federal Defendants and Defendant-Intervenor Idaho (collectively "Defendants") also challenge Plaintiffs' standing. Because the Service has unreasonably delayed in implementing its 2000 Record of Decision and Final Rule regarding grizzly bears and failed to conduct a supplemental EIS based on the changed circumstances, Plaintiffs succeed on two of their claims. Plaintiffs' claim regarding finalization of a 2001 proposed rule fails because Plaintiffs lack standing to pursue that claim.

BACKGROUND¹

A. Grizzly Bears and the Bitterroot Ecosystem

Prior to European settlement, the American West was home to an estimated 50,000 grizzly bears but, by 2000, the grizzly bear population dwindled to roughly 1000 in the coterminous United States.² FWS 889. European settlers killed grizzly bears for fur, sport, and to eliminate possible threats to humans and livestock. FWS 890. This human activity caused a precipitous drop in grizzly bear populations, leading to the species being listed as threatened in the lower-48 States under the Endangered Species Act ("ESA") in 1975. FWS 890. The species remains listed as threatened to this day. See FWS 10602.³ By November 2000, the remaining grizzly bears in the lower-48 States were in six Ecosystems in Montana (Northern Continental Divide, Yellowstone, Cabinet-Yaak), Idaho (Yellowstone, Cabinet-Yaak, and Selkirk), Wyoming (Yellowstone), and Washington (Selkirk and North Cascades), FWS 869, occupying merely 2 percent of their historic range, FWS 890.

The Bitterroot Ecosystem includes much of east-central Idaho and a small part of western Montana. FWS 890, 10600. It is one of the largest contiguous blocks of Federal land in the lower-48 States and contains two wilderness areas which themselves make up "the largest block of wilderness habitat in the Rocky Mountains south of Canada." FWS 869. The area was home to widespread grizzly bear populations until the middle of the 20th century when evidence of the bear's last sign was found. FWS 890. By November 2000, the best available science indicated that there were no grizzly bears within the Bitterroot Ecosystem. FWS 879. Even so, as recently as October 2022, grizzly bears have been seen in the Bitterroot Ecosystem. (See Doc. 39-1.) The bears were captured and moved to the Sapphire Mountains. (Id.)

B. November 2000 EIS, Record of Decision, and Final Rule

Ever since the Service published the Grizzly Bear Recovery Plan in 1982 it has been planning the recovery of the bears in the Bitterroot Ecosystem. FWS 890. In November 2000, the Service published a Final EIS, FWS 26-793, and Record of Decision ("ROD"), FWS 867-84, delineating "Grizzly Bear Recovery in the Bitterroot Ecosystem." It also promulgated and published a Final Rule on "Establishment of a Nonessential Experimental Population of Grizzly Bears in the Bitterroot Area of Idaho and Montana." FWS 886-932. The EIS analyzed and evaluated six alternatives: (1) restoration of grizzly bears as a nonessential experimental population with citizen management (the "proposed action and preferred alternative"); (2) restoration of grizzly bears as a nonessential experimental population with management by the Service; (3) natural recovery (the "no action" alternative); (4) no grizzly bear alternative (preventing recovery in the Bitterroot Ecosystem); (5) restoration of grizzly bears as a threatened population with full protection of the ESA and habitat restoration; and (6) restoration of grizzly bears as a threatened population with full protection of the ESA and Service management. FWS 40.

Following public comment, including comments by Plaintiff Alliance for the Wild Rockies ("Alliance"), (see Doc. 24-1 at ¶ 4), the Service selected alterative 1, the restoration of grizzly bears as a nonessential experimental population with citizen management, FWS 869. The Service's stated purpose for this selection was threefold: "to reestablish a viable grizzly bear population in the Bitterroot [E]cosystem"; to designate these reestablished bears as a nonessential experimental population; and manage the process according to both § 4 and § 10(j) of the ESA to "address local concerns." FWS 869.

In the 2000 ROD, the Service further explained its selection. It articulated a detailed account of the intent to establish the Bitterroot Grizzly Bear Experimental Population Area ("Experimental Population Area") under § 10(j) of the ESA. The Experimental Population Area includes 25,140 square miles making up "most of central Idaho and part of western Montana." FWS 870. Management of experimental species is not cabined by the requirements of the ESA. Under § 10(j) of the ESA, the Secretary may designate reintroduced populations of a species outside of its current range but within its historical range as "experimental." 16 U.S.C. § 1539(j). An experimental population must be separate geographically from nonexperimental populations of the same species. Id. § 1539(j)(1). Additionally, the Secretary may authorize the release of any population of an endangered species outside of its current range "if the Secretary determines that such release will further the conservation of the species." Id. § 1539(j)(2)(A).

Nonetheless, prior to any such release, the Secretary must determine "whether or not such population is essential to the continued existence of an endangered species or a threatened species." Id. § 1539(j)(2)(B). As noted, regulatory restrictions on nonessential experimental populations are looser than under the standard framework for protection of endangered species under § 7 of the ESA. See FWS 889. In this case, the ROD outlines the Service's plan to use the § 10(j) designation by flexibly reintroducing twenty-five grizzly bears into a region after consulting citizens' comments about the potential impacts of the stricter ESA consultation obligations.

Additionally, the ROD describes the Service's commitment to: (1) establish a Bitterroot Grizzly Recovery Area ("Recovery Area"), a smaller subset of the Experimental Population Area, in the Selway-Bitterroot and Frank Church Wildernesses to act as the grizzly bears' "core habitat for survival, reproduction, and dispersal of the recovering population"; (2) establish a Citizen Management Committee to lead the recovery efforts; (3) implement sanitation and public information campaigns before introducing any bears; and (4) release a minimum of twenty-five grizzly bears into the Recovery Area over a period of five years, "subject to the availability of funding" and "no sooner than 1 year after initiation of formation of the [Citizen Management Committee] and initiation of sanitation and information efforts." FWS 870-73. The experimental reintroduction plan was set to progress in the stages listed above. The Final Rule, published on November 14, 2000 and codified as 50 C.F.R. § 17.84(1), implemented the Service's selected alternative. As discussed below, it is undisputed that other than the designation of the nonessential experimental population, the Service has not implemented the ROD and Final Rule. There has been no action for twenty-two years even considering the changing circumstances.

C. June 2001 Proposed Rule

In June 2001, the Service changed course. It apparently abandoned the preferred alternative in the ROD and proposed...