Grizzly Bear Blues: A Case Study of the Endangered Species Act's Delisting Process and Recovery Plan Requirements
Kline, Philip, Environmental Law
The fundamental purpose of the Endangered Species Act (ESA) is to prevent species from becoming extinct. Once this goal is achieved, section 4 of the Act provides a framework for recovering a listed species to the point where it no longer needs the ESA's protection and can be delisted. This Comment analyzes this recovery framework, the delisting process, and legal protections that remain after delisting. The author uses the management of the grizzly bear as a case study to highlight the practical problems and issues surrounding species recovery and delisting. The United States Fish and Wildlife Service's (FWS) management of the recovery of the Yellowstone population of the gdizzly bear provides fertile ground For analyzing the practical workings of recovery planning under the ESA. This case study highlights the difficulties inherent in managing endangered and threatened species towards recovery, particularly the problems associated with securing sufficient habitat, the difficulties in straining political and economic influences from all section 4 decisions, and the continuation of recovery beyond delisting. This Comment concludes that FWS's management of listed species has improved steadily since enactment of the ESA, but is lacking in some areas--notably meager enforcement of recovery plan directives and a misguided new policy of delisting questionably recovered charismatic species. Amending the ESA through reauthorizatton may remedy these shortcomings, but enforcing every provision already contained in the Act could also enable FWS to successfully manage species toward stability, and ultimately recovery.
The government trapper who took the Grizzly knew he had made Escudilla safe for cows. He did not know he had toppled the spire off an edifice a-building since the morning stars sang together. The bureau chief who sent the trapper was a biologist versed in the architecture of evolution, but he did not know that spires might be as important as cows. He did not foresee that within two decades the cow country would become tourist country, and as such have greater need of bears than of beefsteaks.(1)
Fifty years have passed since Aldo Leopold first wrote these words describing the death of the last grizzly bear (Ursus arctos horribills) to roam eastern Arizona's Blue Mountains. By the early 1970s, fewer than one thousand individual grizzlies survived in fragmented, isolated wilderness refuges comprising less than two percent of the bear's former range in the coterminous United States.(2) Respite eventually came in 1975 when the United States Fish and Wildlife Service (FWS) listed six separate populations of the grizzly as threatened(3) under the Endangered Species Act of 1973 (ESA).(4) Twenty-five years later, the grizzly's population has not significantly increased, and the amount of suitable habitat has actually decreased,(5) yet FWS is planning to delist one of the protected populations,(6) thereby removing all ESA safeguards.
Congress enacted the ESA in 1973 to conserve "ecosystems upon which endangered species and threatened species depend [and] to provide a program for the conservation of [these] species."(7) The ESA authorizes the Secretary of the Interior (Secretary) to determine which species to protect by conducting a five-factor analysis.(8) The Act requires the Secretary to make this determination based "solely on ... the best scientific and commercial data available."(9) This mandate applies equally to the delisting process, which uses the same criteria and procedures as the listing process.(10) The Secretary's regulations specifically exclude any "reference to possible economic or other impacts."(11) Further, the Secretary may only delist a species for one of three reasons.(12) This Comment focuses on the second reason, recovery.
FWS regards recovery as the principal goal of endangered species protection, which requires the Secretary to consider the five listing factors in formulating recovery plans to determine when delisting is appropriate. …