Ninth Circuit Affirms Lower Court Decision for Strike Rule Delisting Grizzly Bears

In a decision (pdf) issued on November 22, the United States Court of Appeals for the Ninth Circuit affirmed a lower court decision striking the decision of the Fish and Wildlife Service (Service) to delist a distinct population segment of grizzly bears (ursus arctos horribilis) near Yellowstone National Park and retaining protected status for the species.  The court held that the Service failed to articulate a rational connection between data in the record and the Service's determination that whitebark pine declines were not a threat to the Yellowstone grizzly.  However, the Ninth Circuit reversed the district court's holding that the Service's determination regarding the adequacy of existing regulatory mechanisms was not reasonable. 

The subject of the appeal was the Service's decision to remove the Yellowstone grizzly from the list of threatened and endangered species.  The Service first listed the grizzly as threatened in the lower 48 states in 1975.  At the time of listing, the Yellowstone area grizzly population was estimated to number between 136 and 312 bears.  The Service developed a grizzly bear recovery plan in 1982 and revised the plan in 1993.  By 2006, the Service determined that the recovery plan's demographic and habitat based recovery criteria were being met, and the total grizzly population in the greater Yellowstone area was estimated at more than 500 bears, which scientists concluded was approaching Yellowstone National Park's carrying capacity.  Pursuant to the recovery plan, the Service developed a Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (Strategy), which the Service finalized in March 2007.  The Service published a final rule (pdf) removing Yellowstone grizzly from the threatened species list in March 2007. 

The Greater Yellowstone Coalition challenged the Service's final rule in district court in November 2007.  The district court found that the Service failed to rationally support its conclusions that adequate regulatory mechanisms were in place to protect the grizzly and that declines in whitebark pine did not threaten the grizzly.  The district court vacated and remanded the final rule. 

The Ninth Circuit agreed with the district court and found that the Service failed to articulate a rational connection between the scientific data and its conclusion that changes in whitebark pine production are not likely to impact the Yellowstone grizzly to the point where it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.  The court explained that the data in the final rule actually demonstrated a relationship between whitebark pine seed shortages, increased bear mortality, and decreased female reproductive success.  The increasing shortage of whitebark pine is due to stresses on the trees from mountain pine beetles and white pine blister rust, both of which may be exacerbated by climate change. As we previously reported here, environmental groups sued the Service to act on a petition to list the whitebark pine due to climate change, and the Service subsequently made a warranted but precluded finding for listing the whitebark pine, which we blogged about here

The court rejected the Service's notion that employing adaptive management justified the delisting, explaining that the future possibility of relisting is not a reasonable justification for delisting, and that "for adaptive management of a potential threat to suffice as a basis for a delisting determination, . . . more specific management responses, tied to more specific triggering criteria, are required." 

Finally, the Ninth Circuit agreed with the Service that there are adequate regulatory mechanisms in place to protect a recovered Yellowstone grizzly population.  The court explained that "delisting cannot require the imposition of legal protections commensurate with those provided by the [Endangered Species Act] itself."  Therefore, the court explained, "it is reasonable to conceive of 'adequate' regulatory mechanisms as offering a recovered species something less than the stalwart protections of the ESA, but considerably more than no special protection at all."

The effect of the court's decision is to continue Endangered Species Act protection for the Yellowstone grizzly.

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Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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