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Alliance for Wild Rockies v. Zinke

United States District Court, D. Montana, Missoula Division

August 22, 2017

ALLIANCE FOR THE WILD ROCKIES, Plaintiff,
v.
RYAN ZINKE, in his official capacity as Secretary of the Department of Interior; DANIEL ASHE, in his official capacity as Director of the U.S. Fish & Wildlife Service, Defendants. And BONNER COUNTY, IDAHO; BOUNDARY COUNTY, IDAHO; and LINCOLN COUNTY, MONTANA, Defendant-Intervenors.

          ORDER

          Dana L. Christensen, Chief Judge.

         Plaintiff Alliance for the Wild Rockies ("Alliance") moves for summary judgment arguing that Defendants Secretary Ryan Zinke and Director Daniel Ashe (collectively "Defendants")[1] violated the Endangered Species Act ("ESA") when the U.S. Fish and Wildlife Service ("FWS") determined that the Cabinet-Yaak grizzly bear was not warranted for listing as an endangered species. Defendants, as well Defendant-Intervenors Bonner County, Idaho, Boundary County, Idaho, and Lincoln County, Montana, oppose Alliance's motion and have filed cross-motions for summary judgment. As discussed below, the Court will grant Alliance's motion and deny the cross-motions for summary judgment of Defendants and Defendant-Intervenors.

         BACKGROUND[2]

         In 1975, the grizzly bear (Ursus arctos horribilis) was listed as a "threatened" species in the lower 48 states. This designation was implemented after the dire decline of the species over the course of the last century where total grizzly bear numbers dropped from 50, 000 in 1880 to fewer than 1, 000 in the mid-1970s. The great bear's historic range had also shrunk from populations in the Midwest and California and into Mexico, to just four states today.[3] The bear's drastic decline was caused by habitant destruction, habitat modification, range curtailment, and human-caused mortality. Based upon these numbers, the FWS approved a Grizzly Bear Recovery Plan which was subsequently revised in 1993 identifying six grizzly recovery zones with parameters for recovery. These zones are: the Cabinet-Yaak Ecosystem (the "Cabinet-Yaak"); the Selkirk Ecosystem, the Yellowstone Ecosystem, the Northern Continental Divide Ecosystem, the Bitterroot Ecosystem, and the North Cascades Ecosystem. The Cabinet-Yaak population is the subject of this litigation.

         A. The Cabinet-Yaak

         The Cabinet-Yaak recovery zone is located on the border between Montana and Idaho, with 90% of the zone on three national forests: the Kootenai National Forest, the Idaho Panhandle National Forest, and the Lolo National Forest. Estimates of the total number of grizzlies in the Cabinet-Yaak vary, but it is undisputed that less than 50 individual bears can be found in the recovery zone. The population of bears in the Cabinet-Yaak can be geographically divided into two areas: a population in the south of the zone in the Cabinet Mountains ("Cabinet population"), and a population in the north located near the Yaak River ("Yaak population").

         The population trends for the bears in these two areas is disputed by the parties. Nevertheless, in 1988, the Cabinet population was estimated to be 15 bears or fewer. The Yaak population at the time was unknown. As of 2014, the total population for Cabinet-Yaak was estimated to be between 42 and 49 individual bears in the recovery zone. These numbers are roughly equally divided between the Cabinet population and the Yaak population. Though these figures represent a pattern of modest improvement for the total number of bears, the parties agree that the Cabinet-Yaak grizzly's recovery is not complete.

         The parties dispute whether the Cabinet-Yaak grizzly is currently experiencing improving population trends. Nevertheless, it is undisputed that as of 2013, the total grizzly bear population in the Cabinet-Yaak was not stable. Indeed, at a minimum, 100 bears are necessary for the recovery of the Cabinet-Yaak grizzly and the current number of bears is less than half that number. However, though the total number of bears is less than ideal, the FWS contends that current figures show an improving trend since 2006 and a stable trend since 2013. As a result, the FWS asserts that the Cabinet-Yaak is no longer warranted for listing as an endangered species. Specifically, the FWS has found that the Cabinet-Yaak population is "no longer on the brink of extinction." 79 Fed. Reg. 72450, 72488 (December 5, 2014).

         In contrast, Alliance contends that these numbers demonstrate that the Cabinet-Yaak population is warranted for listing because it is currently not viable or close to recovery. Alliance states that various factors are hindering the recovery of this population, including natural and human-caused threats. For example, grizzly bears have a limited reproductive capacity which precludes a rapid increase in population. Due to the relatively late age when grizzles first reproduce, their small litter size, and long intervals between litters, even in optimum conditions a single female grizzly is likely to produce less than four other females in her lifetime. Combined with other factors such as population isolation and displacement from human caused activities, such as mining and logging, Alliance contends that the Cabinet-Yaak grizzly faces a unique set of challenges which warrant their listing. Alliance also argues that the human-caused mortality rate for the Cabinet-Yaak grizzly is significantly contributing to the bear's lack of stability. For example, from 1999 to 2006, 18 bear deaths were known to be directly caused by humans. Further, from 2007 to 2014, at least 17 bears were killed by humans. Alliance contends that this mortality rate, among the other factors mentioned, warrants listing of the Cabinet-Yaak grizzly.

         B. The ESA and the Listing Process

         The ESA requires the Secretary of the Interior to determine, "solely on the basis of the best scientific and commercial data available, " whether any species should be listed as "endangered" or as "threatened." 16 U.S.C. § 1533(a)(1), (b)(1)(A). The ESA defines an "endangered species" as "any species which is in danger of extinction throughout all or a significant portion of its range . . . ." 16 U.S.C. § 1532(6). A "threatened species" is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. at § 1532(20). The Secretary, through the FWS, is statutorily required to consider various factors in its listing decision, including: (1) "the present or threatened destruction, modification, or curtailment of its habitat or range; (2) "overutilization for commercial, recreational, scientific, or educational purposes"; (3) "disease or predation"; (4) "the inadequacy of existing regulatory mechanisms"; or (5) "other natural or manmade factors affecting its continued existence." 16 U.S.C. § l533(a)(1)(A)-(E).

         A species' listing determination is resolved through a petition process. Essentially, any "interested person" may petition to add or remove a species from the endangered species list. 16 U.S.C. § 1533(b)(3)(A). After receiving the petition, if the Secretary concludes that it "presents substantial scientific or commercial information indicating that the petitioned action may be warranted . . . the Secretary shall promptly commence a review of the status of the species concerned." Id. This status review must then be completed in 12 months ("12 Month Review") and the Secretary must issue one of the three findings: (1) the listing of the species is not warranted; (2) the listing is warranted; or (3) the listing is "warranted but precluded."[4] Id. at § l533(b)(3)(B)(i)-(iii).

         A "warranted but precluded" finding recognizes that a species qualifies for protection under the ESA, but whose listing is "precluded by pending proposals and expeditious progress must be being made to list qualified species and delist those for whom ESA's protections are no longer necessary." Wildwest Inst. v. Kurth, 855 F.3d 995, 1005 (9th Cir. 2017) (quoting Ctr. for Biological Diversity v. Kempthorne, 466 F.3d 1098, 1102 (9th Cir. 2006); see also 16 U.S.C. § l533(b)(3)(B)(iii). If, under this third option, the Secretary finds that the listing of the species is precluded, the FWS then treats the petition as one that has been resubmitted through the initial listing process. Id. at § l533(b)(3)(C)(i). The Secretary is then required to implement a system to monitor any species whose listing has been determined to be warranted but precluded. Id. at § l533(b)(3)(C)(iii).

         Implementation of this system requires the FWS to fashion "a ranking system to assist in the identification of species that should receive priority review." 16 U.S.C. § 1533(h)(3). This system assigns a Listing Priority Number "LPN" between 1 (highest priority, i.e., an "emergency") and 12 (lowest priority) based on three criteria: (1) magnitude of threats; (2) immediacy of threats; and (3) taxonomic status. Wildwest Inst., 855 F.3d 995 at 1007. Under the priority ranking system, a species' level is assigned according to its taxonomic status and is assigned under one of three categories: (1) monotypic genus (species that are the sole members of a genus); (2) full species (for genera that have more than one species); and (3) subspecies or distinct population segments of a vertebrate species. As a distinct population segment, the Cabinet-Yaak grizzly may be listed under one of four LPNs: 3, 6, 9, or 12.

         C. Listing of the Cabinet-Yaak Grizzly

         Following the grizzly bear's initial listing as a "threatened species" subsequent to the passage of the ESA, from 1986 to 2007 the FWS received and reviewed 10 petitions requesting a change in the status of the bear. In 1993, the FWS determined that the grizzly population in the Cabinet-Yaak ecosystem warranted listing as an endangered species, and issued a finding that the listing was warranted but precluded by work on other species having a higher priority for listing. This finding was repeatedly reaffirmed by the FWS over the course of the next two decades.

         In 2007, the FWS initiated its "5-year review" to evaluate the status of grizzly bears in the lower 48 States, and in particular, the population in the Cabinet-Yaak ecosystem. This review, published in 2011, concluded that the Cabinet-Yaak population was warranted but precluded for uplisting and assigned the bear a LPN of 3, the highest priority number available for a subspecies or distinct population segment of a species. This number was assigned as a result of the bear's "small population size, isolation, and excessive human-caused mortality." (Doc. 27 at 19.) The report highlighted that, due to the population's small numbers, Cabinet-Yaak bears are particularly "vulnerable to stochastic (i.e., random) events." (Id. at 17.) Specifically, fatalities caused by human hands-2.3 per year between 1999 and 2008-represented a primary threat to the bear's recovery. The 5-year review also highlighted the isolation of the Cabinet-Yaak population, both within the region and within the ecosystem itself. For example, -though bears in the northern Yaak section showed signs of intermingling with grizzly populations in Canada, there was no known movement of bears between the Yaak and Cabinet sections.

         In November of 2013, the FWS again concluded that listing the Cabinet-Yaak grizzly as endangered was warranted but precluded by work on other species. Reiterating the threats made in its 5-year review, the FWS found that the population was still subject to "high magnitude threats that are ongoing, thus imminent." 78 Fed. Reg. 70104, 70151 (November 22, 2013). As a result of these ongoing threats, FWS continued to assign a LPN of 3 to the Cabinet-Yaak population. The FWS would change its assessment of the bear the following year.

         In early 2014, discussions within the FWS indicted that it was considering revising the Cabinet-Yaak population's LPN to a higher number. In an email from January 2014, Chris Servheen, a FWS's Grizzly Bear Recovery Coordinator in Montana, said: "I don't think we are as yet justified in making a statement about the [Cabinet-Yaak] not being warranted for endangered status but we are making progress in that direction." (Doc. 27 at 3<M10.) This assessment was echoed by FWS Biologist Wayne Kasworm in another January 2014 email:

I just ran the trend numbers for 2013 in the [Cabinet-Yaak] and it appears we have climbed out of the hole we were in and reached a stable point estimate of 1.0002 (CI 0.90621.0754). This is good news, but may not rise to the level of declaring victory. We will need to continue . .. reducing unnecessary forms of human caused mortality. If this were the Selkirks I would unequivocally say we do not need to go to endangered status. In the [Cabinet-Yaak] I am not sure the data allows us to make a good argument to support it."

(Id. at 40-41.) Another FWS Biologist, Rebecca Shoemaker, clarified that these improvements should lead to a higher LPN for the population:

After a call w/ Wayne this morning and in light of recent improvements in the imminence of threats, we think the [Cabinet-Yaak ecosystem] would probably not meet the definition of LPN 3 anymore. I've incorporated language from Wayne into the attached draft response letter saying this and we expect to hash this out more formally in the annual [Candidate Notice of Review].

(Id. at 41.) Indeed, in an internal assessment dated April 1, 2014, the FWS found that it would change the Cabinet-Yaak's LPN from 3 to 6:

The uplisting of the Cabinet-Yaak grizzly bear population from threatened to endangered now has a listing priority number of 6. This priority number indicates the magnitude of threat is high but those threats are not imminent.... Magnitude: The magnitude of threats is considered high because these populations have not experienced the same increases in numbers and distribution as other, healthier grizzly bear populations in the lower 48 States, even though similar management actions have been implemented.

(Id. at 39.) This determination was again reaffirmed in a June 2014 assessment, which found:

Despite ... improvements, the [Cabinet-Yaak ecosystem] still faces threats that put the population at significant risk. The extremely small population size (< 50 individuals) makes this population very vulnerable to human-caused mortality. While the population trend has changed from declining to stable, it will take several years of a positive trend to provide us with assurance the population is truly recovering. Additionally, until the Record of Decision for motorized access management is more fully implemented, habitat destruction and modification remains a threat.

(Id. at 43.) This June 2014 assessment thus concluded, albeit preliminarily, that the Cabinet-Yaak "population is still warranted for uplisting to endangered status but the LPN shall be reduced from 3 to 6." (Id. at 44.)

         However, in July of 2014, internal documents within the FWS indicate that the agency decided that the Cabinet-Yaak grizzly was no longer warranted for listing. It appears that the agency came to this conclusion after applying the "Polar Bear rule"[5] to the question of whether the species should be listed as a threatened or endangered species. For example, FWS Biologist Wayne Kasworm states that: "After my discussion with [Assistant ESA Chief] Seth [Willey] about the Polar bear Rule I have reconsidered and offer the following draft as a proposal for the Cabinet-Yaak." (Id. at 45.) This proposal stated:

In a December 22, 2010 memorandum, FWS provided supplemental information for the determination of Threatened or Endangered status under the Endangered Species Act (FWS 2010). The document clarifies Service policy in regards to the statutory phrase "in danger of extinction" as used in a listing with Endangered status. This policy recognizes this phrase as meaning "currently on the brink of extinction in the wild". We are now applying this new policy to Endangered listing determinations .... In applying this policy to the best available biological data, we conclude that the Cabinet-Yaak grizzly bear population is not currently on the brink of extinction and is no longer warranted for Endangered status and should continue to be listed as Threatened.

(Id. at 46.)

         This proposal found that the Cabinet-Yaak grizzly is not currently "on the brink of extinction" for several reasons, including (1) an improving population trend between 2006 and 2013; (2) the population had reached a stable trend for the period between 1983 and 2013; (3) human caused mortality of female bears had declined; and (4) a successful bear transplant augmentation plan for the Cabinet population. Under this augmentation plan, 15 bears were introduced into this section between 1990 and 2013. It was also noted that two of these transplant bears had successfully reproduced and yielded offspring which had also successfully procreated.

         In response to this revised proposal, Assistant ESA Chief Seth Willey replied, "I very much appreciate that you gave this is a hard look. The only change I would propose is that we not refer to this as a new policy or new interpretation." (Id. at 47.) As discussed in greater detail, the FWS maintains that application of "on the brink of extinction in the wild" standard, the so-called "new policy" referred to by Mr. Kasworm, is merely the agency's longstanding interpretation of the statutory phrase "in danger of extinction." See 16 U.S.C. § 1532(6).

         On December 5, 2015, the FWS officially[6] reversed its decades long listing trend and published its finding that listing the Cabinet-Yaak population as an endangered species was no longer warranted. The agency found that:

Since 1992, we have received and reviewed six petitions requesting a change in status for the Cabinet-Yaak grizzly bear population .... In response to these petitions, we previously determined that grizzly bears in the Cabinet-Yaak ecosystem warranted a change to endangered status. However, for several years, this population's status has been improving. The population trend has now changed from declining to stable. The U.S. Forest Service has established regulatory mechanisms for motorized access management and attractant storage, and researchers have documented some movement between the Cabinet-Yaak and other populations in Canada. Together, these improvements have reduced the threats to this population. Until the Record of Decision for motorized access management is more fully implemented and we have several more years of a positive population trend, we remain cautious in our interpretation. We conclude that the Cabinet- Yaak ecosystem ...

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