1 Greater Yellowstone Coalition, Inc. v. Servheen, 665 F.3d 1015 (9th Cir. 2011). Heather Baltes I. INTRODUCTION

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1 Greater Yellowstone Coalition, Inc. v. Servheen, 665 F.3d 1015 (9th Cir. 2011). Heather Baltes I. INTRODUCTION In Greater Yellowstone Coalition, Inc. v. Servheen, 1 the Ninth Circuit Court of Appeals affirmed in part and reversed in part the judgment from the U.S. District Court for the District of Montana in favor of the Greater Yellowstone Coalition (GYC). 2 The court held: (1) the U.S. Fish and Wildlife Service s (Service) final rule delisting the Yellowstone grizzly bear population from Endangered Species Act (ESA) protection did not articulate a rational connection between the scientific information presented and its determination that whitebark pine declines would not threaten the Yellowstone grizzly population; 3 and (2) the district court erred when it concluded the Service irrationally concluded there were adequate regulatory mechanisms to protect the Yellowstone grizzly population upon delisting. 4 II. FACTUAL AND PROCEDURAL BACKGROUND In 1975, the declining population of grizzly bears across the lower 48 states prompted the Service to list the species as threatened under the ESA. 5 The Service developed and issued a Grizzly Bear Recovery Plan (Recovery Plan) in The purpose of the Recovery Plan was to restore viable, self-sustaining populations of grizzly bears to previously occupied areas, such as the Greater Yellowstone Area (GYA). 7 The Service revised the Recovery Plan by delineating demographic-based and habitat-based recovery criteria in 1993, and continued to update these 1 Greater Yellowstone Coalition, Inc. v. Servheen, 665 F.3d 1015 (9th Cir. 2011). 2 Id. at Id. at Id. at Id. at Id. at Greater Yellowstone Coalition, 665 F.3d at 1019.

2 criteria throughout the 1990s and 2000s. 8 In 2006, the Service determined the Recovery Plan s demographic-based and habitat-based recovery criteria were met. 9 In 2007, the Service finalized an inter-agency, multi-state cooperative strategy known as the Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (Strategy). 10 Pursuant to the Recovery Plan, the Strategy was developed to guide management of the GYA grizzly population and its habitat upon delisting. 11 The Service proposed removal of the Yellowstone distinct population segment from the list of threatened wildlife based on meeting the Recovery Plan s demographic-based and habitat-based recovery criteria and finalizing the Strategy as a long-term conservation plan. 12 Following public notice and comment, the Service published a final rule (Rule) removing the Yellowstone grizzly distinct population segment from the list of threatened wildlife on March 29, Shortly after delisting, plaintiff Greater Yellowstone Coalition (GYC) challenged the Service s Rule, alleging: (1) inadequate regulatory mechanisms to protect the Yellowstone grizzly population; (2) failing to consider the grizzly population s historic range instead of its current range; (3) failing to adequately consider the effects of climate change and the mountain pine beetle on whitebark pine trees; and (4) the Yellowstone grizzly population lacked sufficient genetic diversity. 14 The district court granted summary judgment in part for the GYC on September 21, The district court found that the Service failed to rationally support its findings that declines in whitebark pine did not threaten the Yellowstone grizzly population, and 8 Id. 9 Id. 10 Id. at 1019, Id. at Id. at Greater Yellowstone Coalition, 665 F.3d at (citing 72 Fed. Reg (Mar. 29, 2007)). 14 Id. at Id.

3 that adequate regulatory mechanisms existed to protect the grizzly bear upon removal from the list. 16 III. ANALYSIS The Ninth Circuit reviewed the district court s grant of summary judgment de novo and the Service s compliance with the ESA as a final agency action subject to the arbitrary and capricious standard of the Administrative Procedure Act (APA). 17 The court explained the decision to delist the GYA grizzly population would be found arbitrary and capricious if the Service failed to articulate a rational connection between the facts found and the choices made. 18 A. The Service failed to articulate a rational connection between the science presented and its conclusion that whitebark pine declines would not threaten the GYA grizzly population. The GYC contended the Service failed to articulate a rational connection between the science it relied on and its determination that the GYA population would not be threatened by whitebark pine declines. 19 The court noted that a wildlife species must be listed as either endangered or threatened if other natural or manmade factors affect its continued existence. 20 In the Rule, the Service determined that changes in whitebark pine production were not likely to impact the viability of the GYA grizzly population within the foreseeable future. 21 The court articulated several inconsistencies between the information presented in the Service s Rule and its final decision, including that climate change impacted the distribution of whitebark pine seeds and that the GYA grizzly bears rely heavily on eating these seeds prior to 16 Id. 17 Id. 18 Id. 19 Greater Yellowstone Coalition, 665 F.3d at Id. 21 Id. (citing 72 Fed. Reg. at 14,929).

4 hibernation. 22 The court rejected the Service s first rationale that grizzly bears, as notoriously resourceful omnivores, will make behavioral adaptations to whitebark pine declines by pointing out that the concern was not with starving grizzly bears but the threat of increased proximity to humans because of adapting grizzly bears. 23 The court then rejected the Service s suggestion that whitebark pine decline would result in individual grizzly bear mortality, not population mortality, by pointing out that the grizzly bear population trend data relied on by the Service was collected before the major outbreak of mountain pine beetles began to kill the trees. 24 The court also rejected the Service s comparison to the Northern Continental Divide Ecosystem grizzly population s ability to survive a decline in whitebark pine as irrational because part of the Service s reasoning for designating the GYA grizzly population as a distinct population segment was its unique dependence on whitebark pine. 25 Finally, the court rejected the Service s reliance on adaptive management to justify delisting despite scientific uncertainty, saying the future possibility of relisting species cannot operate as a reasonable justification for delisting, and that adaptive management, without more specific management responses tied to specific triggering criteria, was an inadequate justification. 26 B. The Service rationally concluded that adequate regulatory mechanisms existed to protect the GYA grizzly population upon delisting. The court reversed the district court s finding that there was inadequate support for the Service s conclusion that adequate regulatory mechanisms existed for delisted GYA grizzly bears. 27 The ESA s delisting framework required the Service to determine whether inadequate 22 Id. at Id. 24 Id. at Greater Yellowstone Coalition, 665 F.3dat Id. at Id. at 1030.

5 regulatory mechanisms would threaten a species upon delisting. 28 The court relied on the incorporation of the Strategy s standards into the National Park Compendia (Compendia) and National Forest Plan (Forest Plan) in finding that adequate regulatory mechanisms existed. 29 The court explained the incorporation of the Strategy s standards into the Compendia and Forest Plan instilled federal regulatory force. 30 The court did not address whether the Strategy itself constituted an adequate regulatory mechanism. 31 Finally, the court explained that regulatory mechanisms protecting a species after delisting do not need to be as strict as those protecting ESA-listed species. 32 IV. DISSENTING OPINION The dissenting opinion agreed with the majority on the first issue but disagreed with the majority s finding that adequate regulatory mechanisms existed to protect the GYA grizzly population upon delisting. 33 The dissent suggested voluntary mechanisms were inadequate and that the majority failed to adequately explain how existing mechanisms prevented grizzly mortality. 34 Accordingly, the dissent would have found the Service s reliance on voluntary mechanisms a violation of the law, and as such, ordered the Rule vacated for failing to comply with ESA delisting requirements. 35 V. CONCLUSION Greater Yellowstone Coalition, Inc. v. Servheen involved a high-profile, threatened species and illustrated the importance of complying with the ESA delisting framework prior to removing a species from a protected list. Here, the court found the Service failed to assess the 28 Id. (citing 16 U.S.C. 1533(a)(1)(D) (2006)). 29 Id. at Id. 31 Greater Yellowstone Coalition, 665 F.3d at Id. 33 Id. at Id. at Id. at

6 potential threat resulting from the decline in whitebark pine. The grizzly bear relies heavily on the whitebark pine seeds prior to hibernation. A decline in the abundance of the whitebark pine seeds now, and in the future, threatens the continued success of the GYA grizzly population. Finally, the court held the Service rationally concluded that the incorporation of the Strategy s standards into Forest Plans and Compendia constituted adequate regulatory mechanisms to protect the grizzly population upon delisting.