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Crow Indian Tribe v. United States

United States District Court, D. Montana, Missoula Division

September 24, 2018

CROW INDIAN TRIBE; et al., Plaintiffs,
v.
UNITED STATES OF AMERICA; et al., Federal Defendants. And STATE OF WYOMING; et al., Defendant-Intervenors.

          ORDER

          Dana L. Christensen, Chief District Judge

         In this Order, the Court vacates the June 30, 2017 Final Rule of the United States Fish and Wildlife Service delisting the Greater Yellowstone Ecosystem population of grizzly bears, and restores Endangered Species Act status to the Greater Yellowstone grizzly.

         The Court is aware of the high level of public interest in this case, as well as the strong feelings the grizzly bear evokes in individuals, from ranchers and big-game hunters to conservationists and animal rights activists. The policy implications of the Greater Yellowstone grizzly delisting are significant, but they cannot affect the Court's disposition. Although this Order may have impacts throughout grizzly country and beyond, this case is not about the ethics of hunting, and it is not about solving human- or livestock-grizzly conflicts as a practical or philosophical matter. These issues are not before the Court. This Court's review, constrained by the Constitution and the laws enacted by Congress, is limited to answering a yes-or-no question: Did the United States Fish and Wildlife Service (hereinafter "Service") exceed its legal authority when it delisted the Greater Yellowstone grizzly bear?

         Fully briefed and at issue here, [1] the Plaintiffs challenge the delisting decision under the Endangered Species Act ("ESA") and Administrative Procedure Act ("APA") on two primary grounds[2]: (1) the Service erred in delisting the Greater Yellowstone Ecosystem grizzly bear without further consideration of the impact on other members of the lower-48 grizzly designation; and (2) the Service acted arbitrarily and capriciously in its application of the five-factor threats analysis demanded by the ESA.

         The Court finds for the Plaintiffs on both grounds. By delisting the Greater Yellowstone grizzly without analyzing how delisting would affect the remaining members of the lower-48 grizzly designation, the Service failed to consider how reduced protections in the Greater Yellowstone Ecosystem would impact the other grizzly populations. Thus, the Service "entirely failed to consider an important aspect of the problem." Motor Vehicle Mfrs. Ass 'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

         Further, the Service's application of the ESA threats analysis is arbitrary and capricious for at least two reasons. First, by dropping a key commitment-the commitment to ensure that any population estimator adopted in the future is calibrated to the estimator used to justify delisting-the Service illegally negotiated away its obligation to apply the best available science in order to reach an accommodation with the states of Wyoming, Idaho, and Montana. Second, the Service relied on two studies to support its determination that the Greater Yellowstone grizzly can remain independent and genetically self-sufficient. However, the Service's reliance is illogical, as both studies conclude that the long-term health of the Greater Yellowstone grizzly depends on the introduction of new genetic material.

         Background

         I. The Listing of the Lower-48 Grizzly Bear

         Prior to European settlement, grizzly bears, Ursus arctos horribilis, ranged throughout western North America, from central Mexico to Alaska. Final Rule: Endangered and Threatened Wildlife & Plants; Removing the Greater Yellowstone Ecosystem Population of Grizzly Bears from the Federal List of Endangered & Threatened Wildlife, 82 Fed Reg. 30, 502, 30, 508 (June 30, 2017) [hereinafter Final Rule]. In the lower 48 states alone, an estimated 50, 000 grizzlies roamed, occupying terrain far from the mountain climates with which they are currently associated. Id. Grizzly bears are the ultimate opportunists, with diets varying significantly between individual bears, seasons, years, and location. Id. at 30, 505. "The ability to use whatever food resources are available is one reason grizzly bears are the most widely distributed bear species in the world, occupying habitats from deserts to alpine mountains and everything in between." Id.

         The fate of the grizzly bear changed dramatically around the turn of the 19th Century, as European settlers moved west. The government implemented "bounty programs aimed at eradication, [and] grizzly bears were shot, poisoned, and trapped wherever they were found." Id. at 30, 508. By the 1930s-just 125 years after European settlers moved into grizzly country-grizzly bears were found in only two percent of their former range. Id. Nor did this mark the low point for the grizzly. While 37 separate grizzly populations were identified in the contiguous United States in 1922, only six populations remained in 1975. The Greater Yellowstone Ecosystem, covering portions of Wyoming, Montana, and Idaho, was home to one of the largest of those populations. In 1975, the total number of bears in the Greater Yellowstone Ecosystem was estimated at 136 to 312 individuals. Id.

         The lower-48 grizzly bear was listed as threatened in 1975, only two years after Congress passed the ESA. Amendment Listing the Grizzly Bear of the 48 Coterminous States as a Threatened Species, 40 Fed. Reg. 31, 734 (July 28, 1975). Indeed, as the Supreme Court recognized in Tennessee Valley v. Hill, Congress passed the ESA in part because it wanted to force the agencies' hand, particularly in regard to the grizzly bear. 437 U.S. 153, 183-84 (1978) (quoting 119 Cong. Rec. 42, 913 (1973)) ("[T]he continental population of grizzly bears . . . may or may not be endangered, but... is surely threatened .... Once this bill is enacted, . . . [t]he agencies of Government can no longer plead that they can do nothing about it. They can, and they must. The law is clear"). "The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost." Id. at 184.

         II. The Current Status of the Grizzly Bear

         Since 1982, the Service has focused on fostering recovery in six ecosystems within the lower-48 states: (1) the Greater Yellowstone Ecosystem, covering portions of Wyoming, Montana, and Idaho; (2) the Northern Continental Divide Ecosystem of north-central Montana, (3) the Cabinet- Yaak area extending from northwest Montana to northern Idaho; (4) the Selkirk Mountains in northern Idaho, northeast Washington, and southeast British Columbia; (5) north-central Washington's North Cascades area; and (6) the Bitterroot Mountains of western Montana and central Idaho. Final Rule, 82 Fed. Reg. at 30, 508-09. A substantial population of grizzly bears is found in only two of the six ecosystems-the Greater Yellowstone region with an estimated 700-plus bears, and the Northern Continental region with an estimated 900-plus bears. Id. 48 bears are estimated to reside in the Cabinet-Yaak, and there are an estimated 88 bears in the Selkirks. Id. The last documented sighting in the North Cascades was in 1996, and the Service estimates its population at fewer than 20 bears. Id. No bears are known to inhabit the Bitterroots. Id.

         The six ecosystems are geographically isolated from one another, and there is no evidence of interbreeding. The Greater Yellowstone population's closest geographic neighbor is located in the Northern Continental Divide Ecosystem, approximately 70 miles to the north and located on the other side of Interstate 90. Id. at 30, 518. "[T]here is currently no known connectivity between these two grizzly populations." Id. Further, "[n]o grizzly bears originating from the [Greater Yellowstone Ecosystem] have been suspected or confirmed beyond the borders of the [Greater Yellowstone] grizzly bear [distinct population segment] .... Similarly, no grizzly bears originating from other ecosystems have been detected inside the borders of the [Greater Yellowstone] grizzly bear [distinct population segment]." Id. at 30, 517-18.

         The density and growth of the grizzly bear has proven difficult to estimate. Id. at 30, 506. It takes at least six years of monitoring data and as many as 30 females with radio collars to accurately estimate average annual population growth. Id. "Grizzly bears have one of the slowest reproductive rates among terrestrial mammals, resulting primarily from ...: [l]ate age of first reproduction, small average litter size, and the long interval between litters." Proposed Rule: Endangered and Threatened Wildlife & Plants; Removing the Greater Yellowstone Ecosystem Population of Grizzly Bears from the Federal List of Endangered & Threatened Wildlife, 81 Fed. Reg. 13, 174, 13, 177 (March 11, 2016). On average, a female grizzly first reproduces at the age of six and produces a litter every 2.78 years through her mid- to late-2Os. Id. "Given [these] factors, it may take a female grizzly bear 10 or more years to replace herself in a population." Id.

          III. Procedural background

         In 2007, the Service published its first final rule designating the Greater Yellowstone grizzly as a distinct population segment and delisting it. 72 Fed. Reg. 14, 866 (Mar. 29, 2007). Shortly after, a conservation group challenged the rule on several grounds. Greater Yellowstone Coalition, Inc. v. Servheen, 672 F.Supp.2d 1105 (D. Mont. Sept. 21, 2009). This Court vacated the 2007 Final Rule, finding that: (1) inadequate regulatory mechanisms existed to ensure a healthy and adequate grizzly population post-delisting; and (2) the Service failed to consider the threat posed to the Greater Yellowstone grizzly by a decline in whitebark pine seed, a substantial source of food. Id. at 1126. The Ninth Circuit reversed as to the first finding but affirmed as to the second, upholding this Court's vacatur of the final rule. Greater Yellowstone Coalition, Inc. v. Servheen, 665 F.3d 1015 (9th Cir. 2011).

         Following remand to the agency, the Service determined that decreased availability of whitebark pine seed did not pose a substantial threat to the continued viability of the Greater Yellowstone grizzly population. Final Rule, 82 Fed. Reg. at 30, 536-540. The Service went forward with delisting, publishing its Proposed Rule in 2016 and the Final Rule on June 30, 2017.

         Shortly after the Final Rule was published, the D.C. Circuit decided Humane Society v. Zinke, 865 F.3d 585 (D.C. Cir. 2017).[3] The Service recognized that Humane Society had direct bearing on: (1) its authority to designate and contemporaneously delist a distinct population segment; and (2) the adequacy of its discussion of the grizzly bear's historical range. In response to Humane Society, the Service initiated a regulatory review and called for public comments on "what impact, if any, the ... ruling has on the [Greater Yellowstone] grizzly bear final rule and what further evaluation should be considered regarding the issues raised in Humane Society." Request for Comments: Endangered and Threatened Wildlife & Plants; Removing the Greater Yellowstone Ecosystem Population of Grizzly Bears from the Federal List of Endangered & Threatened Wildlife, 82 Fed. Reg. 57, 698 (Dec. 7, 2017). Following a brief comment period, the Service issued its Regulatory Review, "announc[ing] [its] determination that [the] 2017 final rule ... does not require modification." Regulatory Review: Endangered and Threatened Wildlife & Plants; Removing the Greater Yellowstone Ecosystem Population of Grizzly Bears from the Federal List of Endangered & Threatened Wildlife, 83 Fed. Reg. 18, 737 (April 30, 2018) [hereinafter Regulatory Review].

         Each of the Plaintiffs filed suit within months of the final delisting in June 2017, and the cases were consolidated on December 5, 2017. The parties filed motions and cross-motions for summary judgment, and this Court held a hearing on the motions on August 30, 2018. Shortly after the hearing, the Plaintiffs filed motions for a temporary restraining order and/or preliminary injunction. The Court issued a 14-day temporary restraining order enjoining the scheduled Greater Yellowstone grizzly hunts in Wyoming and Idaho on August 30, 2018. On September 13, 2018, the Court extended the temporary restraining order for another 14 days. Because it now orders that the Final Rule be vacated and the matter remanded to the Service, the Court will deny the motions for a preliminary injunction as moot.

         Summary Judgment Standard

         Summary judgment is appropriate when the moving party demonstrates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The standard is met when the parties produce documentary evidence permitting only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). A factual dispute must be material to defeat summary judgment; a dispute that is irrelevant or unnecessary to the outcome cannot be considered. Id. at 248.

         Standards of Review

         I. Judicial Review under the APA

         Because the ESA does not contain an independent provision governing judicial review of agency action, the Court reviews the delisting determination under the APA. City of Sausalito v. O 'Neill, 386 F.3d 1186, 1205-06 (9th Cir. 2004). Under the APA, the Court must "hold unlawful and set aside agency action, findings, and conclusions found ... to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 7O6(2)(A).

         "Review under the arbitrary and capricious standard is narrow, and [the Court] do[es] not substitute [its] judgment for that of the agency" whose decision is under review. Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012) (citations and internal quotation marks omitted). "An agency's decision can be set aside only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, ... offered an explanation that runs counter to the evidence before the agency [, ] or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. (emphasis removed) (citations and internal quotation marks omitted).

         II. Statutory Requirements under the ESA

         The ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Term. Valley Auth., 437 U.S. at 180. Under the ESA, the Service must "identify and list species that are 'endangered' or 'threatened.'" Center for Biological Diversity v. Zinke, 868 F.3d 1054, 1057 (9th Cir. 2017) (quoting 16 U.S.C. § 1533). A threatened species "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range," 16 U.S.C. § 1532(20), while an endangered species is "in danger of extinction throughout all or a significant portion of its range," id. § 1532(6).

         The Service must make listing and delisting determinations according to a five-factor analysis of potential threats, considering:

(A) the present or threatened destruction, modification, or curtailment of [a species'] habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.

16 U.S.C. § 1533(a)(1). The agency must make any determination "solely on the basis of the best scientific and commercial data available." Id. § 1533(b)(1)(A).

         Discussion

         The Plaintiffs raise two significant challenges to the Final Rule: (1) the Service violated the APA by failing to consider an important factor in delisting the Greater Yellowstone grizzly, which is the impact of delisting on the other remaining populations within the continental United States; and (2) the Service violated the APA by arbitrarily and capriciously applying the five-factor threats analysis demanded by the ESA. The Court considers each in turn.

         I. The Service did not fulfill its duties under the ESA because it failed to analyze the threat posed by the Final Rule ...


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