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Grizzly Delisting Sent Back

A 3-judge panel of the Ninth Circuit Court of Appeals has upheld a lower court ruling that the grizzly bear population in the Yellowstone region can’t be removed from federal protection under the U.S. Fish & Wildlife Service’s most-recent delisting effort, with Judge Mary M. Schroeder writing the court’s opinion.

The decision notes: “The grizzly’s success has been so marked in the Greater Yellowstone Ecosystem of Idaho, Montana, and Wyoming, that the agency responsible for enforcement of the ESA, the Fish and Wildlife Service (“FWS”), has for almost fifteen years been trying to delist the bears in that area. These efforts have been met with enthusiastic support from hunters and from the states affected, but with fierce opposition from environmental and tribal groups.”
“On the merits, we affirm the district court’s remand order, with a clarification of what we hold to be the relatively narrow scope of the consideration that must be given on remand to the effect of the delisting on the remaining, still listed, grizzly population in the coterminous 48 states.”

The decision remands back to FWS several issues for correction before delisting could proceed.

Issue 1: Effect on other populations

In order to avoid “a de facto delisting” of grizzlies outside the Yellowstone population (which FWS declared to be a “distinct population segment” (DPS), the court ordered FWS to examine the effect of the delisting on the remaining, still listed, grizzly population in the lower 48 states.

FWS “must determine on remand whether there is a sufficiently distinct and protectable remnant population, so that the delisting of the DPS will not further threaten the existence of the remnant.”
“If, after such an inquiry, the FWS determines that delisting the DPS would render the remnant population no longer viable, no partial delisting can take place,” according to the court.

Issue 2: Genetic health

The court said that because a lack of genetic diversity continues to threaten the Yellowstone grizzly, FWS must adopt regulatory mechanisms that ensure long-term genetic health.

The court noted:

“The states have committed to monitor bear movement and set restrictions on hunting, but they have made no commitment to take action if natural connectivity of grizzly bear populations does not occur. The states’ measures, therefore, cannot be said to be “sufficiently certain . . . to alleviate a threat of endangerment.”
“The FWS has committed to possible future action, but that commitment is not adequate. In the event that monitoring demonstrates natural connectivity between distinct grizzly ecosystems is not occurring, or if hunting of the Yellowstone grizzly decreases population size, the FWS commits to initiating ‘a formal status review’ and halting hunting.
“Yet, we have expressly rejected any suggestion that the future possibility of relisting a species can operate as a reasonable justification for delisting.”
“Moreover, although a commitment to halt hunting may serve as a regulatory mechanism to ensure that overhunting does not occur, it does not demonstrate a commitment to increase population size, as the studies the FWS relies upon indicate would be required to ensure long-term viability.
“Accordingly, because there are no concrete, enforceable mechanisms in place to ensure long-term genetic health of the Yellowstone grizzly … remand to the FWS is necessary for the inclusion of adequate measures to ensure long term protection.”

Issue 3: Population Estimate Methods

The court ruled that recalibration is needed in the event the FWS changes its method of estimating the Yellowstone grizzly bear population. Recalibration accounts for methodological changes between population estimators in order to ensure that the FWS is able to accurately estimate the Yellowstone grizzly’s population size.

“The issue is particularly important here, because the current estimator is known to be conservative and a change could result in an illusory increase in population,” the court stated.
“Acknowledging the importance of recalibration, a draft version of the Conservation Strategy included a commitment to recalibration. The Intervenor states that were deeply involved in the adoption of the Conservation Strategy, objected to any recalibration commitment, and, at their insistence, the final Conservation Strategy contained none.”

The appeals panel noted that the lower court had concluded that the FWS’s decision to drop the commitment to recalibration in the Conservation Strategy violated the Endangered Species Act, because it was not made “solely on the basis of the best scientific and commercial data … but instead was the result of political pressure by the states.”

The appellant court noted that this conclusion “was based upon a careful analysis of the record, which contained several email exchanges between FWS employees, including the former Director of the FWS and the former Grizzly Bear Recovery Coordinator, who acknowledged that failing to include a recalibration commitment would be a “show- stopper” and would result in a “biologically and legally indefensible” delisting of the Yellowstone grizzly.”

Read the decision here:

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