Yesterday the Ninth Circuit Court of Appeals ruled that the US Fish & Wildlife Service (FWS) did not fully address certain concerns raised in the ruling by the District Court of Montana when it removed the Greater Yellowstone Ecosystem grizzly bear population from the list of threatened species under the Endangered Species Act (ESA). Although the Court of Appeals agreed that the District Court went too far in prescribing how much FWS had to reconsider before delisting the bears, the Court of Appeals disagreed with FWS and Safari Club International and the National Rifle Association, who intervened on the behalf of FWS, on other substantive issues.
In 2017, FWS delisted the Greater Yellowstone Ecosystem grizzly bear population, while leaving other grizzly bears in the lower 48 States as a threatened species under the ESA. In 2018, the District Court held that the delisting was erroneous and remanded the rule to FWS for reconsideration. The three main issues that the District Court had remanded to FWS were:
- The concern that FWS had not conducted a full threat analysis of the delisting’s effect on the remnant grizzly bear population found in Montana and the rest of the lower 48;
- Ensuring the long-term genetic diversity of the Greater Yellowstone Ecosystem grizzly population without regular genetic exchange with the grizzly population in the Northern Continental Divide Ecosystem of north-central Montana; and
- Lack of a commitment to recalibration should there be a change in the methods of estimating bear populations.
The Court of Appeals agreed with FWS that the district court erred in directing that FWS perform a full threat analysis on the remnant population using criteria from Section 4(a) of the ESA, which applies only to determining delisting and not to reviewing the status of a species. The Court of Appeals narrowed the scope of how FWS must consider the effect of delisting on the remaining bear populations. However, the Court of Appeals fully upheld the other two decisions of the district court.
The Greater Yellowstone Ecosystem grizzly bear will remain listed under the ESA until FWS incorporates mechanisms to address all of the issues in a new Delisting Rule. It is unknown how long it will take for FWS to compose a new Delisting Rule.
See the next issue of SCI’s Safari Times for a more detailed report on this Appellate Court ruling.