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Ninth Circuit Affirms Order Vacating the Delisting of the Yellowstone Grizzly Population

Ninth Circuit Affirms Order Vacating the Delisting of the Yellowstone Grizzly Population
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By James Purvis

The U.S. Fish and Wildlife Service (FWS) issued a final rule removing the grizzly bear population in the Greater Yellowstone Ecosystem from the threatened species list under the federal Endangered Species Act (ESA). Following cross-motions, the U.S. District Court granted summary judgment on behalf of plaintiffs, vacating the final rule and remanding to the FWS for further consideration. The FWS and intervenor states appealed, and the Ninth Circuit Court of Appeals affirmed with one exception. [Crow Indian Tribe v. United States, 965 F.3d 662 (9th Cir. 2020).]

Factual and Procedural Background

This case arises from efforts by the FWS to delist the grizzly bear in the Greater Yellowstone Ecosystem of Idaho, Montana, and Wyoming. In 2007, following success brought about by the Grizzly Bear Recovery Plan, the FWS issued a rule declaring the Yellowstone grizzly population a “distinct population segment” under the ESA, declaring it no longer threatened, and removing it from protection. That action resulted in a lawsuit, with the Ninth Circuit ultimately finding that the FWS arbitrarily concluded that declines of whitebark pine (an important food source for grizzlies) were unlikely to threaten the Yellowstone grizzlies and remanding for further consideration.

Five years later, the FWS published a Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Ecosystem, which outlined the manner in which the Yellowstone grizzly would be managed and monitored upon delisting. The FWS then accompanied that Conservation Strategy with a second delisting rule, which found that the decline of the whitebark pine would not pose a substantial threat to the Yellowstone grizzly. This second delisting decision again drew a lawsuit by environmental and tribal groups.

The D.C. Circuit’s Decision in Humane Society

In the midst of this second lawsuit, the D.C. Circuit considered a case in which the FWS similarly had created a distinct population segment and delisted it. That case, Humane Society v. Zinke, 865 F.3d 585 (D.C. Cir. 2017), involved the Western Great Lakes gray wolf. After concluding that the FWS’ position that the ESA allows it to simultaneously create and delist a distinct population segment was reasonable, the D.C. Circuit found that such action required the FWS to look at the effect of partial delisting on the portion of the species that would remain listed (remnant species).

The District Court’s Grant of Summary Judgment

Following cross motions for summary judgment in this case, the District Court granted summary judgment on behalf of plaintiffs, vacated the rule, and remanded to the FWS for further proceedings. The FWS appealed aspects of the remand requiring the study of the effect of the delisting on the remnant grizzly population and further consideration of the threat of delisting to long-term genetic diversity of the Yellowstone grizzly. Three states in the region, as well as a number of private hunting and farming organizations, intervened on the government’s behalf and appealed other aspects of the District Court’s order involving issues pertaining to recalibration.

The Ninth Circuit’s Decision

Appellate Jurisdiction

The Ninth Circuit first addressed appellees’ claim that the court lacked jurisdiction to consider any issue on appeal because the remand order was not appealable. In support of their argument, appellees principally relied on two cases, Natural Resources Defense Council v. Gutierrez, 457 F.3d 904 (9th Cir. 2006), and Alsea Valley Alliance v. Department of Commerce, 358 F.3d 1181 (9th Cir. 2004). The Gutierrez case involved an agency’s attempt to challenge only the reasoning supporting a District Court ruling and not the relief granted. Here, by contrast, the Ninth Circuit found that the FWS did challenge the scope of the remand order and thus did not seek an advisory opinion.

Under Alsea Valley, a District Court’s remand order of an agency’s rulemaking is a final order as to the government and therefore appealable, although it may not be final as to private parties whose positions on the merits would be considered during proceedings on remand. Thus, under Alsea, the District Court’s order was final at least as to the FWS. The Ninth Circuit found, however, that it also had jurisdiction to consider the issues raised by intervenors because, unlike in Alsea, those issues had been resolved by the District Court and could not be taken into account in the proceedings upon remand.

Merits of the Appeals

On the merits, the Ninth Circuit first considered the issue of whether the FWS needed to make a fuller examination of the effect that delisting the Yellowstone grizzlies would have on the remnant grizzly population. While it agreed with the District Court that further examination of the remnant population was necessary to determine whether there was a sufficiently distinct and protectable remnant population such that the delisting of the distinct population segment would not further threaten existence of the remnant, it found that extensive review under § 4(a) of the ESA was not required. It thus vacated the portion of the order calling for a “comprehensive review” of the remnant population and vacated for the District Court to order further examination.

The Ninth Circuit next considered the District Court’s order to ensure the long-term genetic diversity of the Yellowstone grizzly. Finding that there were no concrete, enforceable mechanisms in place to ensure long-term genetic health of the grizzly, the Ninth Circuit concluded that the District Court had correctly concluded that the rule was arbitrary and capricious in that regard. Remand to the FWS therefore was required.

Finally, the Ninth Circuit found that the FWS’ decision to drop a commitment to recalibration in the conservation strategy violated the ESA because it was the result of political pressure by the states rather than having been based on the best scientific and commercial data. On this basis, the District Court properly ordered the FWS to include a commitment to recalibration. The Ninth Circuit also rejected the intervenor’s argument that, because the states had committed to using the current population estimator for the foreseeable future, a commitment to recalibration would be unnecessary and speculative.

Conclusion and Implications

The case is significant because it includes a substantive discussion of relatively novel issues resulting from a decision by the FWS to simultaneously create and delist a distinct population segment under the ESA. The decision is available online at: