1 of 15 documents united states code service

1. Generally

16 USCS § 1533(d), when read in conjunction with definition of "conservation" in § 1532, limits discretion of Secretary to allow public sport hunting of threatened species. Sierra Club v Clark (1985, CA8 Minn) 755 F2d 608, 15 ELR 20391 (criticized in Humane Soc'y of the United States v Kempthorne (2006, DC Dist Col) 481 F Supp 2d 53).

Endangered Species Act (ESA) mandates Secretary to issue such regulations as deemed necessary and advisable to provide for conservation of threatened species, and conservation, under ESA (16 USCS § 1532(3)), is defined as all methods and procedures which are necessary to bring endangered species or threatened species to point at which measures provided pursuant to this chapter are no longer necessary; furthermore, under 16 USCS § 1533(d), ESA provides Secretary with discretionary authority to prohibit by regulation taking of "any" threatened species of fish and wildlife, and this regulatory authority supplements statutory prohibition against taking of endangered species, enforcement of which is not conditioned upon any showing that prohibition will itself operate to restore species to level considered unendangered; accordingly, regulations aimed at preventing taking of protected species cannot be invalid on ground that record fails to demonstrate that regulatory effort will enhance species' chance of survival, and record need only show that such regulations do in fact prevent prohibited takings of protected species, which burden has been satisfied in case at hand. Louisiana ex rel. Guste v Verity (1988, CA5 La) 853 F2d 322, 18 ELR 21351.

Endangered Species Act does not proscribe listing species as endangered once statutory 12- or 18-month time limits have passed; legislative history indicates that Congress established time limits to speed up listing process so more species could be listed, and limits are therefore designed as impetus to act rather than as bar on subsequent action. Idaho Farm Bureau Fed'n v Babbitt (1995, CA9 Idaho) 58 F3d 1392, 95 CDOS 5038, 95 Daily Journal DAR 8746, 41 Envt Rep Cas 1207, 32 FR Serv 3d 774, 25 ELR 21265.

Given Congress's substantial deference to Fish and Wildlife Service's prioritization of initial listing actions based on relative degree of threat facing species for which listing process has already been invoked, and wisdom of allocating resources to these priorities, listing priority guidance providing guidelines to prioritize use of remaining funds is eminently reasonable. Biodiversity Legal Found. v Babbitt (1998, CA10 Colo) 146 F3d 1249, 46 Envt Rep Cas 2108, 1998 Colo J C A R 3606, 28 ELR 21354.

Failure of Secretary of Interior to perform nondiscretionary duty to designate critical habitat for threatened species under 16 USCS § 1533(b), part of Endangered Species Act, 16 USCS §§ 1531 et seq., is not continuing violation that permits plaintiff to file suit more than six years after deadline to perform that duty has passed. Ctr. for Biological Diversity v Hamilton (2006, CA11 Ga) 453 F3d 1331, 62 Envt Rep Cas 1641, 19 FLW Fed C 701 (criticized in Inst. for Wildlife Prot. v United States Fish & Wildlife Serv. (2007, DC Or) 66 Envt Rep Cas 1620) and (criticized in Sierra Club v Johnson (2009, ND Cal) 69 Envt Rep Cas 1919, 39 ELR 20051).

"In accordance with" clause of 16 USCS § 1533(c)(2) does not incorporate deadlines (and corresponding duties) associated with petition process under 16 USCS § 1533(b)(3). Coos County Bd. of County Comm'rs v Kempthorne (2008, CA9 Or) 531 F3d 792, 66 Envt Rep Cas 1929, 38 ELR 20153.

Most of provisions of 16 USCS § 1533(a) and (b) govern decisionmaking process in general, not petition process in particular; 16 USCS § 1533(c)(2) is naturally read as mandating that each five-year review determination shall be made in accordance with those generally applicable provisions such as 16 USCS § 1533(a)(1) and (b)(1)(A). Coos County Bd. of County Comm'rs v Kempthorne (2008, CA9 Or) 531 F3d 792, 66 Envt Rep Cas 1929, 38 ELR 20153.

Deadlines which 16 USCS § 1533(b)(3) applies to petition process are not incorporated, sub silentio, into five-year review provision under 16 USCS § 1533(c)(2); therefore, there can therefore be no violation of 16 USCS § 1533(b)(3)(B)(ii)'s "promptly publish" requirement based upon determination made in five-year review. Coos County Bd. of County Comm'rs v Kempthorne (2008, CA9 Or) 531 F3d 792, 66 Envt Rep Cas 1929, 38 ELR 20153.

Policy on Consideration of Hatchery-Origin Fish, 70 Fed. Reg. 37,204 (June 28, 2005) (Hatchery Listing Policy) is consistent with both plain language of Endangered Species Act (ESA), 16 USCS §§ 1531 et seq., and with statutory goal of preserving natural populations; ESA requires National Marine Fisheries Service to determine whether any species is endangered species or threatened species under 16 USCS § 1533(a)(1), and species, in turn, includes any subspecies of fish or wildlife or plants, and any distinct population segment under 16 USCS § 1532(16); consistent with plain language of ESA, Hatchery Listing Policy conducts status review of entire "species"--no more, and no less. Trout Unlimited v Lohn (2009, CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904, 39 ELR 20061.

To be protected under 15 USCS § 1536(a)(2), species must be listed under § 1533. Wilson v Block (1983, App DC) 228 US App DC 166, 708 F2d 735, 19 Envt Rep Cas 1201, 13 ELR 20861, cert den (1983) 464 US 956, 78 L Ed 2d 330, 104 S Ct 371 and cert den (1984) 464 US 1056, 79 L Ed 2d 197, 104 S Ct 739.

For emergency listings, 16 USCS § 1533 merely prohibits Secretary from disregarding available scientific evidence that is in some way better than evidence he ultimately relies upon; thus, if after publishing emergency regulation on basis of best data then available, Secretary then finds that substantial evidence does not exist to warrant such regulation, he must withdraw it. Las Vegas v Lujan (1989, App DC) 282 US App DC 57, 891 F2d 927, 20 ELR 20313.

16 USCS §§ 1533(d) and 1536 require Secretary of Interior to act to ensure conservation of protected species. Defenders of Wildlife v Andrus (1977, DC Dist Col) 428 F Supp 167, 9 Envt Rep Cas 1889, 7 ELR 20269.

Endangered Species Act, 16 USCS §§ 1531 et seq., requires Secretary of Department of Interior under 16 USCS § 1533(f) to develop and implement recovery plans for conservation and survival of listed species unless Secretary finds that such plan will not promote conservation of species. Defenders of Wildlife v Tuggle (2009, DC Ariz) 607 F Supp 2d 1095.

2. Constitutionality

Secretary of Interior violated his non-discretionary duty by failing to designate critical habitat for endangered minnow by statutory deadline where failure preceded any appropriations cutback or moratorium spending and where moratorium ended well over 2 years prior to suit by environmental organization for injunctive relief. Forest Guardians v Babbitt (1999, CA10) 174 F3d 1178, 1999 Colo J C A R 2166 (criticized in Ctr. for Biological Diversity v Pirie (2002, DC Dist Col) 201 F Supp 2d 113, 54 Envt Rep Cas 2082).

16 USCS § 1533 does not unconstitutionally delegate to Secretary of Interior power to declare legislative policy, as to what are endangered and threatened species, that affects fundamental constitutional rights, where defendant was charged with, inter alia, violations concerning endangered species, but Secretary's discretion is guided and limited by statutory standards as well as by procedural requirements ensuring public input and public scrutiny, and delegation transcends intelligible principle test, even assuming heightened scrutiny. United States v Hill (1995, DC Colo) 896 F Supp 1057.

3. Prerequisites to determination

16 USCS § 1533(b) and rule-making provisions of Administrative Procedure Act (5 USCS § 553) collectively define procedures which Secretary of Interior must follow in maintaining lists of threatened and endangered species. Hill v Tennessee Valley Authority (1977, CA6 Tenn) 549 F2d 1064, 9 Envt Rep Cas 1737, 7 ELR 20172, affd (1978) 437 US 153, 98 S Ct 2279, 57 L Ed 2d 117, 11 Envt Rep Cas 1705, 8 ELR 20513 (superseded by statute on other grounds as stated in Board of Governors of Federal Reserve System v Dimension Financial Corp. (1986) 474 US 361, 106 S Ct 681, 88 L Ed 2d 691, CCH Fed Secur L Rep P 92437) and (superseded by statute on other grounds as stated in Pyramid Lake Paiute Tribe of Indians v United States Dep't of Navy (1990, CA9 Nev) 898 F2d 1410, 20 ELR 20572) and (superseded by statute on other grounds as stated in Pacific Rivers Council v Thomas (1994, CA9 Or) 30 F3d 1050, 94 CDOS 5250, 94 Daily Journal DAR 9626, 39 Envt Rep Cas 1078, 24 ELR 21367) and (superseded by statute on other grounds as stated in Rio Grande Silvery Minnow v Keys (2002, DC NM) 356 F Supp 2d 1222) and (superseded by statute on other grounds as stated in Sierra Club v Strock (2007, SD Fla) 495 F Supp 2d 1188, 65 Envt Rep Cas 2082, 37 ELR 20188, 20 FLW Fed D 995) and (superseded by statute on other grounds as stated in Hoosier Envtl. Council v United States DOT (2007, SD Ind) 2007 US Dist LEXIS 90840) and (superseded by statute on other grounds as stated in Grand Canyon Trust v United States Bureau of Reclamation (2008, DC Ariz) 2008 US Dist LEXIS 83853).

Secretary need not file environmental impact statement when listing species as endangered or threatened. Pacific Legal Foundation v Andrus (1981, CA6 Tenn) 657 F2d 829, 16 Envt Rep Cas 1397, 33 FR Serv 2d 73, 11 ELR 20871.

Secretary of Interior must comply with documentation requirements of National Environmental Policy Act when designating critical habitat under Endangered Species Act, and failure to comply constitutes "final agency action" under APA. Catron County Bd. of Comm'rs v United States Fish & Wildlife Serv. (1996, CA10 NM) 75 F3d 1429, 41 Envt Rep Cas 2057 (criticized in Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2003, ED Cal) 268 F Supp 2d 1197).

Notice provided by Fish and Wildlife Service regarding proposed critical habitat for Alameda whipsnake was inadequate under Administrative Procedures Act, 5 USCS §§ 551 et seq., and Endangered Species Act, 16 USCS §§ 1531 et seq., even though Service complied with notice requirements for proposal for critical habitat designation for snake to extent of timing and method of giving notice because notice provided by Service in regard to proposed rule deprived public of meaningful opportunity to comment and to offer informed criticism and comments. Home Builders Ass'n of N. Cal. V United States Fish & Wildlife Serv. (2003, ED Cal) 268 F Supp 2d 1197 (criticized in Home Builders Ass'n v United States Fish & Wildlife Serv. (2006, ED Cal) 64 Envt Rep Cas 1843, 36 ELR 20226) and (criticized in Home Builders Ass'n of N. Cal. v United States Fish & Wildlife Serv. (2010, CA9 Cal) 616 F3d 983, 71 Envt Rep Cas 1464, 40 ELR 20210).

It was not contrary to clear congressional intent for National Marine Fisheries Service and Fish and Wildlife Service (Services) to consider significance of distinct population segment (DPS) when determining whether that population was entitled to Endangered Species Act listing; term "distinct population segment" was ambiguous and, as Services concluded when promulgating DPS policy, DPS must be both discrete and significant because interests of conserving genetic diversity would not be well served by efforts directed at either well-defined but insignificant units or entities believed to be significant but around which boundaries cannot be recognized; therefore, DPS policy was not contrary to congressional intent regarding ESA and it was reasonable interpretation of ambiguous term. Ctr. for Biological Diversity v Lohn (2003, WD Wash) 296 F Supp 2d 1223, 58 Envt Rep Cas 1340, Vacated on other grounds, remanded (2007, CA9 Wash) 483 F3d 984, 64 Envt Rep Cas 1494, 37 ELR 20094, reh gr, op withdrawn on other grounds (2007, CA9 Wash) 511 F3d 960 and substituted op (2007, CA9 Wash) 511 F3d 960, 65 Envt Rep Cas 1676, 38 ELR 20001.

Although plaintiffs argued that forest service violated § 7 of Endangered Species Act (ESA) by failing to properly consult with Fish and Wildlife Service (FWS) to insure that project would not adversely affect Canada lynx (listed species under ESA), that FWS failed to list critical habitat for lynx even though such listing was required concurrently with listing determination, and that action was arbitrary and capricious because administrative record was devoid of specific data on lynx populations within last 24 years, forest service demonstrated that it properly considered lynx habitat and properly consulted with FWS, and that consultation, coupled with previously developed lynx conservation strategies and court's general deference to expertise of agencies, demonstrated that defendants' analysis regarding Canada lynx was not arbitrary and capricious. Sierra Club v Bosworth (2005, DC Minn) 352 F Supp 2d 909, 59 Envt Rep Cas 2004.

Listing of population segments is proactive measure to prevent need for listing species over larger range--not tactic for subdividing larger population Fish and Wildlife Service (FWS) has already determined warrants listing throughout larger range; FWS does not have to list entire species as endangered when only one of its populations faces extinction. Nat'l Wildlife Fed'n v Norton (2005, DC Vt) 386 F Supp 2d 553, 61 Envt Rep Cas 1822 (criticized in Ctr. for Biological Diversity v Norton (2005, DC NM) 411 F Supp 2d 1271).

4. Particular determinations

Regulations requiring shrimpers operating in offshore waters and in vessels 25 feet or longer to install and use certified "turtle excluder devices" (TED) in each of their trawls, and requiring shorter vessels or those trawling in inshore waters to limit trawling period to 90 minutes or less as alternative to using TED, in order to reduce incidental catch and mortality of sea turtles, which regulations attempted to supplement Endangered species Act (16 USCS §§ 1531 et seq.) prohibition against "taking" of protected species, were not arbitrary or capricious, where relationship of shrimping to sea turtle mortality is strongly demonstrated by data contained in administrative record; furthermore, decision of Commerce department, through its National Marine Fisheries Service, to attack one of major causes of sea turtle mortality through regulation is entirely within its discretion, and fact that regulations do not address other serious causes of such mortality does not undermine validity of restriction, nor make them arbitrary or capricious. Louisiana ex rel. Guste v Verity (1988, CA5 La) 853 F2d 322, 18 ELR 21351.

Forest Service's determination that exchange of land would have no significant impact on endangered and threatened species was not arbitrary and capricious where determination was based on field surveys. Lockhart v Kenops (1991, CA8 SD) 927 F2d 1028, 21 ELR 20994, cert den (1991) 502 US 863, 116 L Ed 2d 148, 112 S Ct 186, reh den (1991) 502 US 1020, 116 L Ed 2d 761, 112 S Ct 670.

Corps of Engineers and Fish and Wildlife Service did not act arbitrarily and capriciously in choosing particular site, alleged to be habitat of endangered species, for construction of landfill, where all 4 sites considered contained wetlands, one contained nesting area of bald eagle, and chosen site provided large natural vegetative buffer around all sides of landfill. Fund for Animals v Rice (1996, CA11 Fla) 85 F3d 535, 42 Envt Rep Cas 1968, 35 FR Serv 3d 547, 26 ELR 21433, 10 FLW Fed C 12 (criticized in Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 457 F Supp 2d 1070) and (criticized in Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 470 F Supp 2d 1118) and (criticized in Ocean Mammal Inst. v Gates (2008, DC Hawaii) 546 F Supp 2d 960, 67 Envt Rep Cas 1258).

Fish and Wildlife Service acted arbitrarily and capriciously in (1) publishing gnatcatcher's final listing as threatened species without designating its critical habitat where Service never weighed benefits of designation against risks of designation and (2) rewriting its own "beneficial to species" test for prudence in designating habitat to "beneficial to most of species." Natural Resources Defense Council v United States DOI (1997, CA9 Cal) 113 F3d 1121, 97 CDOS 3815, 97 Daily Journal DAR 6478, 44 Envt Rep Cas 2107, 27 ELR 20971, stay gr, remanded, motion den (2002, CD Cal) 275 F Supp 2d 1136.

Secretary of Interior has broad discretion to determine what methods to use in species conservation and presence of healthy wolf populations in Canada and Alaska does not make recovery of United States wolf populations any less crucial; thus, court will reject argument that Secretary violated provision of 15 USCS § 1333 requiring Secretary to give priority to species most likely to benefit from recovery plan. United States v McKittrick (1998, CA9 Mont) 142 F3d 1170, 98 CDOS 3148, 98 Daily Journal DAR 4351, 46 Envt Rep Cas 1790, 28 ELR 21197, cert den (1999) 525 US 1072, 142 L Ed 2d 667, 119 S Ct 806 and (criticized in United States v Kapp (2003, ND Ill) 2003 US Dist LEXIS 21169).

District court properly dismissed county's "failure to act" causes of action against U.S. Fish and Wildlife Service (FWS) under 5 USCS § 706(1), and under 16 USCS § 1540(g)(1)(C); 16 USCS § 1533(c)(2) did not incorporate deadlines of petition process under § 1533(b)(3) and, therefore, FWS's determination in five-year review mandated under § 1533(c)(2) that listed marbled murrelets were not distinct population segment did not trigger judicially-enforceable duty to promptly publish proposed rule delisting murrelets. Coos County Bd. of County Comm'rs v Kempthorne (2008, CA9 Or) 531 F3d 792, 66 Envt Rep Cas 1929, 38 ELR 20153.

District court properly granted summary judgment in favor of National Marine Fisheries Service (NMFS) on claim by environmental groups that NMFS's denial of their petitions to split natural and hatchery fish into separate evolutionarily significant units (ESU) for purposes of 16 USCS § 1533 was arbitrary and capricious under 5 USCS § 706(2)(A); NMFS properly relied on its own science and gave reasoned explanation for rejecting petitions, and groups' emphasis on threats hatchery fish posed to natural fish collapsed two analytically distinct phases of agency action--initial decision regarding composition of ESU and subsequent decision whether to list ESU. Trout Unlimited v Lohn (2009, CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904, 39 ELR 20061.

District court properly granted summary judgment in favor of National Marine Fisheries Service (NMFS) on claim by trade associations that NMFS's consideration of hatchery and naturally spawned fish separately during listing process under 16 USCS § 1533 violated ESA; ESA only required that status review evaluate entire species, or evolutionary significant unit, including both hatchery and naturally spawned fish. Trout Unlimited v Lohn (2009, CA9 Wash) 559 F3d 946, 68 Envt Rep Cas 1904, 39 ELR 20061.

Secretary of Interior is not obligated to implement portion of grizzly bear--which is endangered species--protection plan that provides for closure of certain campground in national park in bear's habitat under 16 USCS § 1533(f), where Secretary has decided to keep campground open until completion of environmental impact statement that utilizes new methods to study campground's impact on bears, because Secretary could reasonably have concluded that plan be stayed until results of new analysis are available. National Wildlife Federation v National Park Service (1987, DC Wyo) 669 F Supp 384.

Claim of environmental group that recovery plan developed by Fish and Wildlife Service (FWS) for grizzly bear is deficient for failing to incorporate site-specific management actions as required by 16 USCS § 1533(f)(1)(B)(i) is denied summarily, where management actions in plan are same for different geographical ecosystems, but in instances where ecosystems differ, plan recommends different management actions, because site-specificity in plan demonstrates that FWS considered specific needs of each grizzly ecosystem. Fund for Animals v Babbitt (1995, DC Dist Col) 903 F Supp 96, 42 Envt Rep Cas 1068, 26 ELR 20537, amd on other grounds, dismd, in part on other grounds (1997, DC Dist Col) 967 F Supp 6.

As National Marine Fisheries Service (NMFS) ignored its experts' conclusions that global taxon was inaccurate and that best available science demonstrated that resident and transient killer whales did not belong to same taxon, NMFS erred in considering Southern Residents with reference to global species Orcinus orca NMFS and this error likely affected whether significance determination was correct; therefore, "not warranted" finding was set aside and matter was remanded to NMFS for re-determination of whether Southern Residents should have been listed pursuant to Endangered Species Act. Ctr. for Biological Diversity v Lohn (2003, WD Wash) 296 F Supp 2d 1223, 58 Envt Rep Cas 1340, vacated on other grounds, remanded (2007, CA9 Wash) 483 F3d 984, 64 Envt Rep Cas 1494, 37 ELR 20094, reh gr, op withdrawn on other grounds (2007, CA9 Wash) 511 F3d 960 and substituted op (2007, CA9 Wash) 511 F3d 960, 65 Envt Rep Cas 1676, 38 ELR 20001.

With respect to listing particular plant as warranted but precluded under Endangered Species Act, 16 USCS § 1533(b)(3)(B), Fish and Wildlife Service unlawfully used critical habitat determinations for species that had already been listed as justification for why listing of plant was precluded; agency's justification of its preclusion finding by its work on already listed species was not in accordance with law under Administrative Procedure Act, 5 USCS § 706(2)(A). Cal. Native Plant Soc'y v Norton (2005, DC Dist Col) 60 Envt Rep Cas 1119, dismd (2005, App DC) 2005 US App LEXIS 15621.

Compliance with 16 USCS § 1533(b)(3)(B), part of Endangered Species Act, requires Fish and Wildlife Service to justify its preclusion findings, if it can, by reference to pending listing proceedings for unlisted species and to make its demonstration of expeditious progress, if it can, by reference to unlisted species. Cal. Native Plant Soc'y v Norton (2005, DC Dist Col) 60 Envt Rep Cas 1119, dismd (2005, App DC) 2005 US App LEXIS 15621.

U.S. Fish & Wildlife Service's (FWS's) response to 90-day petition seeking review of whether cutthroat trout, indigenous to Upper Colorado River basin, was threatened or endangered species was flawed because FWS solicited input from selected state and federal agencies, thus violating 16 USCS § 1533(b)(3)(A); as remedy, federal district court equitably ordered FWS to produce full-status review of species within nine months. Colo. River Cutthroat Trout v Kempthorne (2006, DC Dist Col) 448 F Supp 2d 170, 63 Envt Rep Cas 1771.

When defendant Fish & Wildlife Service's 16 USCS § 1533(c)(2)(A) five-year review determined that tri-state population endangered bird listing should not be changed, but imposed no new legal obligations and did not deny plaintiff forest products trade association any rights, it was not final agency action subject to review under 5 USCS § 704; association's 16 USCS § 1540(g)(1)(A) citizen suit challenge was dismissed for failure to state claim. Am. Forest Res. Council v Hall (2008, DC Dist Col) 533 F Supp 2d 84, dismd, as moot (2009, App DC) 2009 US App LEXIS 15421.

In case in which central issue was whether U.S. Fish and Wildlife Service (Service)could use distinct population segment (DPS) tool to simultaneously designate and delist distinct population of animals that was thriving even though broader species of which it was part remained endangered and listed as such elsewhere, and Service promulgated final rule designating western Great Lakes populations of gray wolves as DPS and removing gray wolf from list of endangered and threaten wildlife, Service failed to acknowledge and address crucial ambiguities in Endangered Species Act of 1973, 16 USCS §§ 1531 et seq., in course of promulgating final rule. Humane Soc'y of the United States v Kempthorne (2008, DC Dist Col) 579 F Supp 2d 7, 68 Envt Rep Cas 1779, 38 ELR 20259.

Decision of Secretary of Interior and Director of Fish and Wildlife Service (FWS) not to formulate recovery plan for jaguar was set aside because "foreign species" exemption relied on by FWS, which asserted that no recovery plan was required since jaguar was found primarily in other countries, did not apply since jaguar was not foreign species where jaguar was found in United States and, considering prior practices of FWS, FWS had yet to exempt species from recovery planning due to species' domestic range being limited or largely international, and had extended recovery plan protections to other transnational species with limited domestic ranges. Ctr. for Biological Diversity v Kempthorne (2009, DC Ariz) 607 F Supp 2d 1078, 39 ELR 20073.

Decision of Secretary of Interior and Director of Fish and Wildlife Service (FWS) not to formulate recovery plan for jaguar was set aside because "other circumstances" exemption did not apply since jaguar's situation was not unique or not easily foreseen, due to jaguar's primary presence in other countries, as FWS had anticipated implementing recovery plans when multiple nations were involved. Ctr. for Biological Diversity v Kempthorne (2009, DC Ariz) 607 F Supp 2d 1078, 39 ELR 20073.

U.S. Fish and Wildlife Service's (FWS) decision to designate Distinct Population Segment (DPS) for Greater Yellowstone Area grizzly bear population and remove population from "threatened" species list under 16 USCS §§ 1532(20) and 1533 was arbitrary and capricious under 5 USCS § 706(2)(A); regulatory mechanisms relied upon by FWS were inadequate, and record did not support FWS's conclusion that whitebark pine declines did not pose threat to Yellowstone grizzly bear DPS. Greater Yellowstone Coalition, Inc. v Servheen (2009, DC Mont) 672 F Supp 2d 1105, 39 ELR 20214.

In coalition's action challenging U.S. Fish and Wildlife Service's (FWS) decision to remove Yellowstone grizzly bear distinct population segment from list of threatened species under 16 USCS § 1533, FWS was entitled to summary judgment on claim that delisting decision was based on unacceptably small population size; FWS provided reasonable explanation for its conclusions about genetic diversity and adequate effective population size. Greater Yellowstone Coalition, Inc. v Servheen (2009, DC Mont) 672 F Supp 2d 1105, 39 ELR 20214.

In coalition's action challenging U.S. Fish and Wildlife Service's (FWS) decision to remove Yellowstone grizzly bear distinct population segment from list of threatened species under 16 USCS § 1533, FWS was entitled to summary judgment on claim that FWS failed to properly evaluate whether grizzlies were recovered across "significant portion of their range" for purposes of 16 USCS § 1532(20); FWS offered reasonable interpretation of ambiguous phrase "significant portion of its range." Greater Yellowstone Coalition, Inc. v Servheen (2009, DC Mont) 672 F Supp 2d 1105, 39 ELR 20214.