Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 1 of 31
`
`Rebecca K. Smith
`Public Interest Defense Center, P.C.
`P.O. Box 7584
`Missoula, MT 59807
`(406) 531-8133
`publicdefense@gmail.com
`
`Timothy M. Bechtold
`Bechtold Law Firm, PLLC
`P.O. Box 7051
`Missoula, MT 59807
`(406) 721-1435
`tim@bechtoldlaw.net
`
`Attorneys for Plaintiffs
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`MISSOULA DIVISION
`
`CV-
`
`COMPLAINT FOR INJUNCTIVE
`AND DECLARATORY RELIEF
`
`ALLIANCE FOR THE WILD
`ROCKIES, NATIVE ECOSYSTEMS
`COUNCIL,
`
`Plaintiffs,
`
`vs.
`
`HILARY COOLEY, U.S. Fish &
`Wildlife Service Grizzly Bear
`Recovery Coordinator; MARTHA
`WILLIAMS, Director, U.S. Fish &
`Wildlife Service; DEB HAALAND,
`Secretary, Department of Interior,
`
`Defendants.
`
`
`
`Rebecca K. Smith
`Public Interest Defense Center, P.C.
`P.O. Box 7584
`Missoula, MT 59807
`(406) 531-8133
`publicdefense@gmail.com
`
`Timothy M. Bechtold
`Bechtold Law Firm, PLLC
`P.O. Box 7051
`Missoula, MT 59807
`(406) 721-1435
`tim@bechtoldlaw.net
`
`Attorneys for Plaintiffs
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`MISSOULA DIVISION
`
`CV-
`
`COMPLAINT FOR INJUNCTIVE
`AND DECLARATORY RELIEF
`
`ALLIANCE FOR THE WILD
`ROCKIES, NATIVE ECOSYSTEMS
`COUNCIL,
`
`Plaintiffs,
`
`vs.
`
`HILARY COOLEY, U.S. Fish &
`Wildlife Service Grizzly Bear
`Recovery Coordinator; MARTHA
`WILLIAMS, Director, U.S. Fish &
`Wildlife Service; DEB HAALAND,
`Secretary, Department of Interior,
`
`Defendants.
`
`
`
`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 2 of 31
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`I. INTRODUCTION
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`1.
`
`This is a civil action for judicial review under the Administrative Procedure
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`Act (APA) of the U.S. Fish and Wildlife Service’s (USFWS) failure to act
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`and unreasonable delay regarding its Final Rule and Regulation, Record of
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`Decision, and Final Environmental Impact Statement (Final EIS) on
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`Bitterroot grizzly bear recovery and establishment of a nonessential
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`experimental population in the Bitterroot area of Montana and Idaho, and its
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`Proposed Rule to revoke the same and implement the “no action” alternative
`
`from the Final EIS.
`
`2.
`
`Plaintiffs Alliance for the Wild Rockies and Native Ecosystems Council
`
`attest that Defendants’ conduct and/or failure to act constitutes unlawful
`
`unreasonable delay and/or is arbitrary and capricious, an abuse of
`
`discretion, and/or otherwise not in accordance with law.
`
`3.
`
`Defendants’ failure to issue a new final rule following the publication of
`
`their Proposed Rule, and/or Defendants’ failure to comply with the existing
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`Final Rule and Regulation, violates the APA. Additionally, Defendants’
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`failure to prepare a supplemental EIS in light of significant changes violates
`
`the APA and National Environmental Policy Act (NEPA), 42 U.S.C.
`
`§§4331 et seq.
`
`4.
`
`Plaintiffs seek a declaratory judgment, injunctive relief, the award of costs,
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`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 3 of 31
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`and expenses of suit, including attorney and expert witness fees pursuant to
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`the Equal Access to Justice Act, 28 U.S.C. §2412, and/or such other relief as
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`this Court deems just and proper.
`
`II. JURISDICTION
`
`5.
`
`This action arises under the laws of the United States and involves the
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`United States as a Defendant. Therefore, this Court has subject matter
`
`jurisdiction over the claims specified in this Complaint pursuant to 28
`
`U.S.C. §§ 1331, 1346.
`
`6.
`
`An actual controversy exists between Plaintiffs and Defendants. Plaintiffs’
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`members use and enjoy the Bitterroot region for hiking, fishing, hunting,
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`camping, photographing scenery and wildlife, and engaging in other
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`vocational, scientific, spiritual, and recreational activities. Plaintiffs’
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`members intend to continue to use and enjoy the area frequently and on an
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`ongoing basis in the future. Plaintiffs’ members are heavily invested in
`
`grizzly bear recovery in the Bitterroot region and understand that grizzly
`
`recovery in the Bitterroot is necessary for the long-term viability and
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`recovery of grizzly bears throughout the lower 48 states.
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`7.
`
`The aesthetic, recreational, scientific, spiritual, and educational interests of
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`Plaintiffs’ members have been and will be adversely affected and
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`irreparably injured if Defendants continue to unreasonably delay taking
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`final action, and continue to unreasonably delay supplementing the EIS to
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`reflect and address dramatically changed conditions over the past 20 years
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`since the original final EIS was published. These are actual, concrete
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`injuries caused by Defendants’ failure to comply with mandatory duties
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`under the APA and NEPA. The requested relief would redress these injuries
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`and this Court has the authority to grant Plaintiffs’ requested relief under 28
`
`U.S.C. §§ 2201 & 2202, 5 U.S.C. §§ 705 & 706.
`
`III. VENUE
`
`8.
`
`Venue in this case is proper under 28 U.S.C. §1391(e) and Local Rule
`
`3.2(b). Defendant Cooley, and the office of the Grizzly Bear Recovery
`
`Program, are located in Missoula County. Additionally, the Bitterroot
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`region falls in part within Missoula County and Ravalli County. Missoula
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`County and Ravalli County are in the Missoula Division of the United
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`States District Court for the District of Montana.
`
`IV. PARTIES
`
`9.
`
`Plaintiff ALLIANCE FOR THE WILD ROCKIES is a tax-exempt,
`
`non-profit public interest organization dedicated to the protection and
`
`preservation of the native biodiversity of the Northern Rockies Bioregion,
`
`its native plant, fish, and animal life, and its naturally functioning
`
`ecosystems. Its registered office is located in Missoula, Montana. The
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`Alliance has over 2,000 individual members. Members of the Alliance
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`observe, enjoy, study, and appreciate the Bitterroot’s native wildlife,
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`including grizzly bears, as well as water quality and terrestrial habitat
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`quality, and expect to continue to do so in the future. Alliance’s members’
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`professional and recreational activities are directly affected by Defendants’
`
`failure to perform their duties. Alliance for the Wild Rockies brings this
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`action on its own behalf and on behalf of its adversely affected members.
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`10.
`
`Plaintiff NATIVE ECOSYSTEMS COUNCIL is a non-profit Montana
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`corporation with its principal place of business in Three Forks, Montana.
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`Native Ecosystems Council is dedicated to the conservation of wildlife and
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`natural resources on public lands in the Northern Rockies. Its members
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`observe, enjoy, and study grizzly bears throughout the Northern Rockies, and
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`expect to continue to do so in the future. Its members’ professional and
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`recreational activities are directly affected by Defendants’ failure to perform
`
`their duties. Native Ecosystems Council brings this action on its own behalf
`
`and on behalf of its adversely affected members.
`
`11. Defendant HILARY COOLEY is the U.S. Fish & Wildlife Service Grizzly
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`Bear Recovery Coordinator. The Grizzly Bear Recovery Program is the
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`agency program responsible for the Bitterroot grizzly recovery EIS.
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`12. Defendant MARTHA WILLIAMS is the Director of the U.S. Fish &
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`Wildlife Service, and is responsible for lawful management of recovery
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`programs for terrestrial species listed under the Endangered Species Act,
`
`including the grizzly bear.
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`13. Defendant DEB HAALAND is the Secretary of the Department of Interior,
`
`and is responsible for lawful management of recovery programs for
`
`terrestrial species listed under the Endangered Species Act, including the
`
`grizzly bear. Defendant Haaland’s office issued the Final Rule on
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`November 14, 2020.
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`V. FACTUAL ALLEGATIONS
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`A. November 14, 2000 Final Rule
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`14. On November 14, 2020, Defendants issued the “Record of Decision and
`
`Statement of Findings for the Environmental Impact Statement on Grizzly
`
`Bear Recovery in the Bitterroot Ecosystem AND Final Rule on
`
`Establishment of a Nonessential Experimental Population on Grizzly Bears
`
`15.
`
`16.
`
`17.
`
`18.
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`in the Bitterroot Area of Idaho and Montana” (Final Rule).
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`The Final Rule “is effective December 18, 2000.”
`
`The Final Rule “is a significant regulatory action [].”
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`The Final Rule is codified at 50 C.F.R. §17.84 (l).
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`The Final Rule found: “The reestablishment of a grizzly bear population in
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`the Bitterroot ecosystem will increase the survival probabilities and further
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`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 7 of 31
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`the conservation of the species in the lower 48 States.”
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`19.
`
`The Final Rule states: “We will undertake the grizzly bear recovery project
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`in the Bitterroot ecosystem in cooperation with the U.S. Forest Service,
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`other Federal agencies, the States of Idaho and Montana, the Nez Perce
`
`Tribe, and entities of the Canadian Provincial government. We will also
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`enter into agreements with the appropriate Canadian Provincial government
`
`agencies to obtain grizzly bears.”
`
`20.
`
`The Final Rule states: “Grizzly bears (Ursus arctos) for this reintroduction
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`will be obtained from Canadian and U.S. grizzly populations with
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`permission from the Canadian Provincial governments and concurrence
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`from the appropriate State officials. Grizzly bears can be taken by
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`authorized State, Federal, and tribal authorities for scientific or research
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`purposes under the authorities granted by 50 CFR 17.40.”
`
`21.
`
`The Final Rule states: “The Bitterroot ecosystem recovery program
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`proposes moving a minimum of 25 grizzly bears of both sexes over a 5-year
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`period from areas in Canada (in cooperation with Canadian authorities) and
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`the United States that presently have populations of grizzly bears living in
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`habitats that are similar to those found in the Bitterroot ecosystem.”
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`22.
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`The Final Rule states: “We will reintroduce only bears with no history of
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`conflict with humans or livestock. We will capture and reintroduce bears at
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`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 8 of 31
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`the time of year optimal to their survival. This process will likely occur
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`when grizzly bear food supplies in the Bitterroot ecosystem are optimum.
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`We plan to transport bears to east-central Idaho, provide any necessary
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`veterinary care, and fit them with radio collars in order to monitor them by
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`the use of radiotelemetry.”
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`23.
`
`The Final Rule states: “We will determine the movements of individual
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`grizzly bears and how they use their habitat, and keep the public informed
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`of general bear locations and recovery efforts. We will release bears close
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`enough to each other to create a ‘colony’ or population of bears, providing
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`the basis from which they will successfully reproduce and expand in
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`numbers.”
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`24.
`
`The Record of Decision states: “Subject to availability of funding, grizzly
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`bears will be reintroduced into the Selway-Bitterroot Wilderness portion of
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`the Recovery Area during the second year of implementation. Specific
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`reintroduction sites will be identified by the land and wildlife management
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`agencies and the [Citizen Management Committee]. The Service, in
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`coordination with the Forest Service, States of ldaho and Montana, Nez
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`Perce Tribe, and the [Citizen Management Committee] will release a
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`minimum of 25 grizzly bears into the Recovery Area over a period of 5
`
`years. . . .This release will be no sooner than l year after initiation of
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`formation of the [Citizen Management Committee] and initiation of
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`sanitation and information efforts.”
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`25.
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`The Final Rule mapped the “Bitterroot Grizzly Bear Experimental
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`Population Area” as follows:
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`B.
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`June 22, 2001 Proposed Rule
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`26. After years of planning, meeting, analysis, and formal notice-and-comment
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`rulemaking to promulgate a Final Rule and regulation to recover Bitterroot
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`grizzly bears, on June 22, 2001, USFWS issued a Proposed Rule to scrap
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`the entire plan: “We are now proposing to select the No Action Alternative
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`as our Preferred Alternative (see Notice of Intent elsewhere in this edition
`
`of the Federal Register) and are currently requesting public comments on
`
`this action. After receipt and review of all comments, the Service will make
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`a final decision with regard to this proposal. If we select the No Action
`
`Alternative, we will remove the pertinent regulations.”
`
`27.
`
`The Proposed Rule stated: “we believe that it is neither prudent nor
`
`consistent with our recovery priorities to expend our limited recovery funds
`
`and staff effort on establishment of a nonessential, experimental grizzly bear
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`population in the [Bitterroot Ecosystem] at this time. Moreover, we believe
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`that further consideration of the legitimate safety concerns of the current
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`residents of [Bitterroot Ecosystem] against reintroduction is warranted.”
`
`28. Although the Proposed Rule stated “[a]fter receipt and review of all
`
`comments, the Service will make a final decision with regard to this
`
`proposal,” USFWS never issued a final decision, i.e. a final rule, following
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`publication of this Proposed Rule.
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`29. Although the Proposed Rule stated “[i]f we select the No Action
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`Alternative, we will remove the pertinent regulations,” the regulations are
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`still in effect at 50 C.F.R. §17.84 (l).
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`30. Neither the “Preferred Alternative,” nor the “No Action Alternative” has
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`C.
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`31.
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`ever been implemented.
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`Background – Grizzly Bears in the Bitterroot
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`The Bitterroot Ecosystem is one of the largest contiguous blocks of Federal
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`land remaining in the lower 48 United States.
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`32.
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`The core of the ecosystem contains two wilderness areas that comprise the
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`largest block of wilderness habitat in the Rocky Mountains south of Canada.
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`33. Of all remaining “unoccupied” grizzly bear habitat in the lower 48 States,
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`this area has the best potential for grizzly bear recovery, primarily due to the
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`large wilderness area.
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`34. As such, the Bitterroot Ecosystem offers excellent potential to support a
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`healthy population of grizzly bears and to boost long-term survival and
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`recovery prospects for this species in the contiguous United States.
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`35. Historically, the grizzly bear was a widespread inhabitant of the Bitterroot
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`Mountains in east-central Idaho and western Montana.
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`36.
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`Idaho in particular may have supported a population of around 4,300 grizzly
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`bears.
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`37.
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`The demise of the grizzly from the Bitterroot Ecosystem was due to the
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`actions of humans. Bears were actively killed for their fur, for sport, and to
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`eliminate possible threats to humans and domestic livestock.
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`38.
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`The Grizzly Bear Recovery Plan, finalized in 1982 (U.S. Fish and Wildlife
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`Service 1982), called for the evaluation of the Selway-Bitterroot ecosystem
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`as a potential recovery area.
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`39.
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`Subsequently, an interagency team of grizzly bear scientists concluded the
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`area provided suitable habitat and could support 200 to 400 grizzly bears.
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`40.
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`In 1991, the Interagency Grizzly Bear Committee subsequently endorsed the
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`Bitterroot ecosystem as a grizzly bear recovery area, and requested that
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`USFWS initiate measures to achieve recovery in the area.
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`41. USFWS revised the Grizzly Bear Recovery Plan in 1993 and produced the
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`Bitterroot Ecosystem Recovery Plan Chapter (Bitterroot Supplement) as an
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`appendix in 1996.
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`42.
`
`The Bitterroot Supplement called for the reintroduction of grizzly bears into
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`the Bitterroot ecosystem.
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`43.
`
`The Bitterroot Supplement identified a tentative long-term recovery
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`objective of approximately 280 grizzly bears for the Bitterroot ecosystem.
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`44.
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`In 1993, agencies of the Interagency Grizzly Bear Committee requested that
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`an EIS be prepared for Bitterroot grizzly recovery.
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`45.
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`In 1995, USFWS published a notice of intent to prepare a draft EIS for
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`grizzly bear recovery in the Bitterroot.
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`46.
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`In 1997, the Draft EIS for Bitterroot grizzly bear recovery was released to
`
`the public.
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`47. On March 24, 2000, the Final EIS for Bitterroot grizzly bear recovery was
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`released to the public.
`
`48.
`
`The Final EIS considered six alternatives:
`
`a.
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`Restoration of Grizzly Bears as a Nonessential Experimental
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`Population with Citizen Management (Preferred Alternative),
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`b.
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`Restoration of Grizzly Bears as a Nonessential Experimental
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`c.
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`d.
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`e.
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`Population with Service Management,
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`Natural Recovery - The No Action Alternative,
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`No Grizzly Bear Alternative,
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`Restoration of Grizzly Bears as a Threatened Population with Full
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`Protection of the Act and Habitat Restoration, and
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`f.
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`Restoration of Grizzly Bears as a Threatened Population with Full
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`Protection of the Act and Service Management.
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`49. On November 13, 2000, USFWS signed the Record of Decision on the Final
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`EIS, and selected the Preferred Alternative – Restoration of Grizzly Bears as
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`a Nonessential Experimental Population with Citizen Management
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`50.
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`The Decision states: “The purpose of this alternative is to restore grizzly
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`bears to central Idaho, designate this population as “nonessential
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`experimental,” and implement provisions within sections 4 and 10(j) of the
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`Endangered Species Act (ESA) to conduct special management to address
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`local concerns.”
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`51. As noted above, however, on June 22, 2001, USFWS issued a Proposed
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`Rule to select the No Action Alternative.
`
`52.
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`The “No Action Alternative” in the EIS is something of a misnomer because
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`it includes the following required actions:
`
`a.
`
`The USFWS would designate the Bitterroot Grizzly Bear Recovery
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`Zone as delineated in Figure S-4, and consistent with the 5,500 square
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`mile Bitterroot Grizzly Bear Evaluation Area (BEA) as defined in the
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`Bitterroot Ecosystem Recovery Plan Chapter - Supplement to the
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`Grizzly Bear Recovery Plan (USFWS 1993, 1996).
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`b.
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`The USFWS would establish a tentative long-term recovery goal of
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`approximately 280 grizzly bears (bears distributed over 5,500 mi of
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`designated 2 wilderness and adjacent lands) within the recovery zone
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`(USFWS 1996) (Figure S-4).
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`c.
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`Primary grizzly bear management responsibility would reside with the
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`USFWS and include active participation by federal land management
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`agencies, the states of Idaho and Montana, and the Nez Perce Tribe.
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`d.
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`Upon documentation of grizzly bear(s) in the BE, the USFWS would
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`conduct an extensive and objective public education and information
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`program to inform the public about grizzly bears and their
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`management under the ESA.
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`e.
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`The USFWS would continue to evaluate reported sightings of grizzly
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`bears in the BE to determine their presence. The USFWS would also
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`coordinate a monitoring program within the recovery zone to
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`determine the status of recolonization.
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`f.
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`The national forests within the recovery zone would continue to
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`manage habitat to meet or exceed their existing Forest Plan standards
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`for big game habitat management. ESA Section 7(a)(2) would apply
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`upon documentation of grizzly bear presence in the BE, and all
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`federal actions within the recovery zone would be subject to Section 7
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`consultation with the USFWS.
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`g.
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`Upon documentation of grizzly bear(s) in the BE, the USFWS would
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`evaluate the adequacy of land-use restrictions to protect suitable
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`grizzly bear habitat within the Bitterroot recovery zone and within
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`potential linkage zones to other occupied recovery zones. The
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`USFWS would use the existing evaluation of adjacent wilderness
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`areas to consider them as additions to the recovery zone (to include
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`the portion of the Frank Church-River of No Return Wilderness south
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`of the Salmon River).
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`h.
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`The USFWS, in cooperation with IDFG and MDFWP would apply
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`the IGBC nuisance grizzly bear management guidelines to grizzly
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`bears in conflict with humans or domestic animals.
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`i.
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`Land-use restrictions could be implemented when necessary if illegal
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`killing threatens grizzly bear recovery.
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`53.
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`EIS Figure S-4, the Recovery Zone for Alternative 4, is set forth below:
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`54.
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`The No Action Alternative in the EIS further states: “Ongoing land-use
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`activities (including timber harvest, minerals extraction, and public access
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`and recreation) could be altered solely for grizzly bears if grizzly bear
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`presence was documented in the BE, and research indicates that current
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`habitat management is not adequate to maintain suitable grizzly bear
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`habitat, or that linkage zone restrictions are necessary to promote grizzly
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`bear recolonization.”
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`D.
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`Changed Conditions – Grizzly Bears in the Bitterroot
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`55. When the Final Rule was published in November 2000, “[t]he last verified
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`death of a grizzly bear in the Bitterroot Mountains [had] occurred in 1932,
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`and the last tracks [had been] observed in 1946 [].”
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`56. When the Final Rule was published in November 2000, “no verified tracks
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`or sightings [had] been documented in more than 50 years, and [there was
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`no current] evidence of any grizzly bears in the Bitterroot ecosystem[].”
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`57. When the Final Rule was published in November 2000, USFWS stated that
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`due to the “10j” status of the reintroduced grizzly bears, “[f]ormal section 7
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`consultation will not be required for any proposed U.S. Forest Service
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`activity in the Bitterroot ecosystem as a result of the experimental
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`reintroduction of bears, and the requirements of section 7(a)(2) will not
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`apply . . . . However, because nonessential experimental grizzly bears will
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`be treated as a species proposed for listing, the conferencing requirements
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`under section 7(a)( 4) will apply.”
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`58. When the Final Rule was published in November 2000, USFWS stated:
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`“We do not foresee any likely situation that would require us to change the
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`nonessential experimental status until the grizzly bear is recovered and
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`delisted in the Bitterroot ecosystem according to provisions outlined in the
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`Recovery Plan.”
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`59. Nonetheless, almost 20 years later, on January 21, 2020, USFWS sent a
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`letter to the National Forest Supervisors of the Bitterroot, Nez Perce-
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`Clearwater, Lolo, and Salmon-Challis National Forests in Montana and
`
`Idaho, which states in part (emphasis added):
`
`The [Bitterroot Grizzly Bear Experimental Population Area]
`was designated as a nonessential experimental population by
`50 CFR § 17.84(1), and the rule authorized the release of
`grizzly bears into the BGBEPA, outside its current range, under
`certain conditions. The Service is aware of one collared bear
`within the BGBEPA, and it travelled into the BGBEPA from
`the Cabinet-Yaak recovery zone. This grizzly bear was not
`released or reintroduced into the BGBEPA by the Service, and
`Service has not released or reintroduced any grizzly bears into
`the BGBEPA. Therefore, grizzly bears that are present in the
`BGBEPA are not covered by the 10(j) rule and are considered
`threatened under the ESA. This means that ESA section 7
`consultation obligations apply to proposed federal agency
`actions that may affect grizzly bear in the BGBEPA, as with
`any grizzly bear in the lower 48 States.
`
`We are updating the species occurrence map with locations
`where grizzly bears may be present within and near the
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`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 19 of 31
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`BGBEPA. Upon completion, we will provide that map to you,
`to inform where section 7 consultation is advised.
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`60.
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`The most recent version of USFWS’s “may be present” grizzly bear map
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`(dated January 11, 2021) is set forth below, and includes areas with known
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`populations, as well as watersheds with a verified occurrence, and
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`watersheds directly adjacent to watersheds with a verified occurrence:
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`61. As noted in the map above, USFWS concedes that grizzly bears may be
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`present in a number of locations between the Bitterroot Recovery area and
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`other Recovery Zones, as well as within the Bitterroot Recovery Area itself.
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`62. Over the past five years, grizzly bears have been encountered or confirmed
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`18
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`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 20 of 31
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`in Montana in the town of Lolo, up Bass Creek, in the Rock Creek area, in
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`the Big Hole, in the Sapphires, on the border of the Lee Metcalf Wildlife
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`Refuge on the Bitterroot River (on a small golf course), in the Lolo Hots
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`Springs area, in Missoula’s North Hills, outside of Missoula in the Miller
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`Creek area, in the Eight Mile area northeast of Florence, and near the
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`headwaters of the east fork of the Bitterroot River.
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`63. Over the past five years, grizzly bears have also been encountered or
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`confirmed in Idaho traveling through the St. Joe area into the Selway-
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`Bitterroot Wilderness Area, in the Fish Creek Meadows area south of
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`Grangeville, in the Newsome Creek/Red River area, in the Clear Creek/Big
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`Cedar area, and east of Leadore, Idaho. Idaho Fish and Game also
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`confirmed grizzly DNA in a den on Blackdome Peak in the St. Joe in 2017.
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`64.
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`In USFWS’s Grizzly Bear Recovery Program 2020 Annual Report, the
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`agency states: “grizzly bears have increasingly been confirmed nearby and
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`within the [Bitterroot Ecosystem] . . . .”
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`65.
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`The agency further states that in addition to known, verified grizzly bears,
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`“[i]t is possible that additional undetected individuals are currently in the
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`area.”
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`66.
`
`In the 2020 Annual Report, USFWS states: “In 2000, the Service issued a
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`rule designating the Bitterroot Grizzly Bear Experimental Area as a
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`nonessential experimental (10(j)) population and authorized reintroduction
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`19
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`
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`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 21 of 31
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`of grizzly bears under certain conditions. Reintroduction has not occurred
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`and there are currently no plans to do so.”
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`67.
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`In March 2021, USFWS issued a “5-Year Status Review for Grizzly Bears
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`in the Lower-48 States.”
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`68.
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`The 5-Year Review finds that the grizzly bear population in the lower 48
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`States is likely to become in danger of extinction within the foreseeable
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`future throughout all of its range.
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`69.
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`The 5-Year Review states: “viability for the grizzly bear in the lower-48
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`States as a whole only increases under the two optimistic future scenarios,
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`which rely on increases in conservation efforts such that the [Bitterroot
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`Ecosystem] and North Cascades support resilient populations.”
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`70. More specifically, “Future Scenario 5 is an optimistic scenario under which
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`conservation increases significantly. As a result, resiliency, redundancy, and
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`representation for the grizzly bear improve. . . .The [Bitterroot Ecosystem]
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`and North Cascades shift from functionally extirpated condition with no
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`resiliency, to low resiliency under this scenario, due to human-facilitated
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`restoration of the North Cascades and augmentation of the [Bitterroot
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`Ecosystem].”
`
`71.
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`In other words, one of the best chances for recovery of the lower-48 States
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`grizzly population is augmentation and recovery in the Bitterroot area.
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`72. Notably, USFWS has long participated in an augmentation program for one
`
`20
`
`
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`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 22 of 31
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`other grizzly population in the lower-48 States: the Cabinet Mountains
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`portion of the Cabinet-Yaak grizzly population.
`
`73. As noted in “Density, Distribution, and Genetic Structure of Grizzly Bears
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`in the Cabinet-Yaak Ecosystem,” often referred to as “Kendall et al (2016),”
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`“[c]oncern over persistence of the critically small and isolated Cabinet
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`population prompted the establishment of a population augmentation
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`program.”
`
`74.
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`The Cabinet augmentation program added four female bears from 1990-
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`1994, and seven female bears and three male bears from 2007-2012.
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`75. Kendall et al (2016) finds: “it is clear that the augmentation program likely
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`rescued this population from extirpation.”
`
`76. Kendall et al (2016) finds: “The Cabinet population was essentially rescued
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`from extirpation through the successful augmentation program that began in
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`the early 1990s. Population recovery will require continuation of these
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`programs.”
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`77. A recent report entitled, “The Grizzly Bear Promised Land: Past, Present &
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`Future of Grizzly Bears in the Bitterroot, Clearwater, Salmon & Selway
`
`Country,” by Dr. David Mattson, finds that grizzly recovery in the Bitterroot
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`population is the lynchpin to a long-term, sustainable, viable grizzly
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`population in the lower-48 States.
`
`78.
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`The map below from “Promised Land” shows estimated potential
`
`21
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`
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`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 23 of 31
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`distribution of grizzly bears in the Northern Rockies with full occupancy of
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`potential suitable habitat. Dark green is core distribution; light green is
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`peripheral distribution; red dots are verified grizzly locations; and green
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`arrows are main connectors between ecosystems:
`
`22
`
`
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`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 24 of 31
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`79.
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`“Promised Land” also provides a map of candidate Bear Management Units
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`to allows the agencies to begin to design and implement habitat
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`management standards (road density thresholds and secure habitat blocks)
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`for the Nez-Perce and Clearwater National Forests within in the Bitterroot
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`Recovery Zone:
`
`23
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`
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`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 25 of 31
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`VI. CLAIMS FOR RELIEF
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`FIRST CLAIM FOR RELIEF
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`Defendants’ failure to issue a Final Rule following publication of the June 22,
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`2001 Proposed Rule constitutes unreasonable delay and violates the APA.
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`80. All previous paragraphs are incorporated by reference.
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`81.
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`The APA mandates: “With due regard for the convenience and necessity of
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`the parties or their representatives and within a reasonable time, each
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`agency shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555
`
`(b).
`
`82.
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`The Ninth Circuit holds: “Under the applicable law, [an agency] has to
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`reach some final decision. To ‘conclude [the] matter,’ [an agency] must
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`enter a final decision subject to judicial review, and they must do so ‘within
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`a reasonable time.’ 5 U.S.C. § 555(b)[.]” In re A Cmty. Voice, 878 F.3d
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`779, 784–85 (9th Cir. 2017).
`
`83.
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`“An agency cannot simply refuse to exercise its discretion to conclude a
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`matter. [] Having chosen to [undertake rulemaking], [an agency] came under
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`a duty to conclude a rulemaking proceeding within a reasonable time.” Id.
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`(citation omitted).
`
`84.
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`If an agency does not “conclude a matter” “within a reasonable time,” a
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`reviewing court shall compel the agency action that has been unlawfully
`
`24
`
`
`
`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 26 of 31
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`withheld or unreasonably delayed under 5 U.S.C. §706 (1). In re Int'l
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`Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992); see also Pub.
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`Citizen Health Rsch. Grp. v. Auchter, 702 F.2d 1150, 1157–58 (D.C. Cir.
`
`1983).
`
`85. An agency’s “asserted justifications for the delay become less persuasive
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`the longer the delay continues.” In re Int'l Chem. Workers Union, 958
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`F.2d at 1150.
`
`86. While there is no per se rule regarding how long a delay must be in order to
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`constitute “unreasonable delay,” no court has ever condoned a 20-year delay
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`in issuing a final rule in notice-and-comment rulemaking under the APA
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`once a proposed rule has been issued. See In re Nat. Res. Def. Council,
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`Inc., 956 F.3d 1134, 1139 (9th Cir. 2020) (more than ten-year delay is
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`unreasonable and “nothing short of egregious”); In re A Cmty. Voice, 878
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`F.3d at 787 (eight-year delay unreasonable). In fact, courts have held the
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`“reasonable time for agency action is counted in weeks or months, not
`
`years.” In re Am. Rivers and Idaho Rivers United, 372. F.3d 413, 419 (D.C.
`
`Cir. 2004).
`
`87.
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`In this case, the APA compels Defendants to conclude rule-making by
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`issuing a final rule after it issued the Proposed Rule. Defendants have
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`unreasonably delayed in complying with this mandate because over 20 years
`
`25
`
`
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`Case 9:21-cv-00136-DWM Document 1 Filed 11/05/21 Page 27 of 31
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`have passed since Defendants issued their Proposed Rule to remove 50
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`C.F.R. §17.84 (l) and select the “No Action Alternative” and Defendants
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`have not yet issued a final rule for the Proposed Rule. By refusing to issue a
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`final rule for the Proposed Rule, Defendants have unreasonably delayed in
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`violation of the APA .
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`SECOND CLAIM FOR RELIEF
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`Alternatively, Defendants’ failure to comply with the terms
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`of the November 14, 2000 Final Rule and Regulation constitutes unreasonable
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`delay and violates the APA.
`
`88. All previous paragraphs are incorporated by reference.
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`89.
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`The November 14, 2000 Final Rule and Regulation stated that grizzlies
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`would be relocated from other areas into the Bitterroot area starting in 2002,
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`and that a minimum of 25 grizzly bears of both sexes would be relocated
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`into the Bitterroot area over a 5-year period.
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`90. Defendants concede: “Reintroduction has not occurred and there are
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`currently no plans to do so.”
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`91. Defendants have unreasonably delayed in complying with the terms of the
`
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