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Alliance for Wild Rockies v. Jewell

United States District Court, D. Montana, Missoula Division

May 8, 2015

SALLY JEWELL, in her official capacity as Secretary of the Department of the Interior; and DANIEL ASHE, in his official capacity as Director of the U.S. Fish & Wildlife Service, Defendants.


DONALD W. MOLLOY, District Judge.


Plaintiff Alliance for the Wild Rockies ("Alliance") filed suit on April 22, 2014, seeking review of the United States Fish and Wildlife Service's ("the Service") November 22, 2013 finding that reclassifying the Cabinet-Yaak grizzly bear ("the bear") from "threatened" to "endangered" status under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq., is "warranted but precluded." Alliance claims the preclusion finding is unlawful and that the Service has unreasonably delayed reclassification of the bear for 20 years. The Service insists the case is moot as a result of the Service's most recent December 5, 2014 finding that reclassifying the bear from threatened to endangered is no longer warranted. The parties have filed cross motions for summary judgment. (Docs. 16, 26.) For the reasons stated below, the Service's motion is granted in part on the mootness issue. Plaintiff's motion is denied as moot.


The ESA directs the Service to "determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat range; (B) overutilization for commercial, recreational, scientific, or education purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence." 16 U.S.C. § 1533(a)(1). The Service is required to make such determinations "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A).

Any "interested person" may petition the Service "to add a species to, or to remove a species from" the lists of threatened or endangered species. 16 U.S.C. § 1533(b)(3)(A). Within 90 days of receiving such a petition, the Service must make a "finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted." Id. If the Service answers this question in the affirmative, it must, within 12 months after receiving the petition, issue one of the following findings ("12-month finding"): (i) not warranted; (ii) warranted; or (iii) warranted but precluded. 16 U.S.C. § 1533(b)(3)(B).

If the Service concludes that the listing is not warranted, the Service must publish its finding, and the listing process for that petition ends. 16 U.S.C. § 1533(b)(3)(B)(i). If the Service concludes that the listing is warranted, the Service must "promptly publish in the Federal Register a general notice and the complete text of a proposed regulation to implement" the listing ("proposed rule"). 16 U.S.C. § 1533(b)(3)(B)(ii). To make a warranted but precluded finding, the Service must conclude that although warranted, "the immediate proposal and timely promulgation of a [proposed rule] is precluded by pending proposals to determine whether any species is an endangered species or a threatened species, and... expeditious progress is being made to add qualified species" to the list of protected species and to remove species that no longer qualify. 16 U.S.C. § 1533(b)(3)(B)(iii). The ESA requires the Service to annually reevaluate the status of all species for which it has made a warranted but precluded finding and issue a new 12-month finding. 16 U.S.C. § 1533(b)(3)(C)(i).


The grizzly bear ( Ursus arctos horribilis ) was listed as a threatened species under the ESA in the lower 48 States in 1975. See 40 Fed. Reg. 31, 734 (July 28, 1975). The Service approved a Grizzly Bear Recovery Plan in 1982 and revised the Plan in 1993. AR8995. The 1993 Plan established detailed recovery parameters for four main recovery zones, including the Cabinet-Yaak Ecosystem, AR9000, which is located in northwest Montana and northern Idaho. In 1991, the Service received its first petition to reclassify the Cabinet-Yaak grizzly bear from threatened to endangered. AR9563. The Service published its 12-month finding in 1993 and determined that reclassifying the bear was warranted but precluded. 58 Fed. Reg. 8, 250 (Feb. 12, 1993). Each year since 1993, the Service has reevaluated the bear's status, has published a new 12-month finding on reclassification of the bear in its Candidate Notice of Review in the Federal Register ("the Notice"), and has determined every year that reclassification is warranted but precluded. AR0061.

In its 2013 finding, the Service determined once again that reclassification to endangered status for the bear is warranted but precluded by the Service's other, higher priority listing work identified in the Notice. 78 Fed. Reg. 70, 104, 70, 151 (Nov. 22, 2013). After Alliance filed its Complaint and before it filed its motion for summary judgment, the Service published its most recent 12-month finding. In the 2014 finding, the Service determined that reclassification of the bear to endangered status is no longer warranted and that the bear will retain its threatened status because "[t]he population trend has now changed from declining to stable." 79 Fed. Reg. 72, 487, 72, 488 (Dec. 5, 2014).

Alliance claims the Service's 2013 preclusion determination is unlawful under 5 U.S.C. § 706(2)(A) because the Service failed to list the bear according to the bear's listing priority number and because the Service refused to request from Congress the funds necessary for the listing program. Alliance also claims that the Service's annual warranted but precluded determinations since 1993 constitute unreasonable delay under 5 U.S.C. § 706(1). Alliance asks the Court to compel the Service to "promptly publish a proposed listing rule... to list the bear as endangered and designate critical habitat by a reasonable and court-ordered deadline." (Amended Complaint, Doc. 8 at 29.) According to the Service, however, its 2014 finding renders the case moot.


The Service insists that its 2014 determination that reclassification of the bear from threatened to endangered is not warranted renders the case moot because the Complaint only challenges the 2013 finding. Alliance does not dispute that the case is moot; instead, Alliance claims that the "voluntary cessation" and "wrongs capable of repetition, yet evading review" exceptions to the mootness doctrine apply.

Article III of the United States Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies." The case or controversy requirement continues throughout all stages of litigation, and "[t]here is thus no case or controversy, and a suit becomes moot, when the issues presented are no longer live' or the parties lack a legally cognizable interest in the outcome." Chafin v. Chafin, 133 S.Ct. 1017, 1023 (2013) (internal quotation marks omitted). "[A] case becomes moot only when it is ...

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