343 F.Supp.3d 999
D. Mont.2018Background
- The U.S. Fish and Wildlife Service (Service) issued a Final Rule on June 30, 2017, designating the Greater Yellowstone Ecosystem (GYE) grizzly as a distinct population segment (DPS) and simultaneously delisting that DPS from the ESA.
- Plaintiffs (Crow Tribe and others, consolidated) challenged the delisting under the ESA and APA, arguing the Service (1) failed to analyze effects of delisting on other lower-48 grizzly populations and (2) applied the ESA's five-factor threats analysis arbitrarily and capriciously.
- Key scientific and management issues: genetic isolation/effective population size, connectivity/translocation, and the population estimation method (Chao2) and the Service's decision not to require a recalibration commitment if states adopt a different estimator.
- The Service had previously delisted the GYE DPS in 2007; that rule was vacated. The Service relied on two genetic studies (Miller & Waits; Kamath et al.) and negotiated a multi-jurisdictional Conservation Strategy with the States, removing a prior recalibration commitment during negotiations.
- The Court stayed other claims, heard cross-motions for summary judgment, issued TROs blocking planned hunts, and ultimately reviewed the delisting under the APA's arbitrary-and-capricious standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Service lawfully delisted GYE DPS without analyzing effects on other lower-48 grizzlies | Delisting a DPS carved from an existing listing requires analysis of impacts on the remnant listed populations; Service "balkanized" the listing in violation of ESA/APA | Service: lower-48 listing remains intact outside GYE; no need to analyze other populations; Regulatory Review addressed Humane Society | Court: Vacated Final Rule — Service acted arbitrarily and capriciously by failing to analyze effects on other listed grizzlies (Humane Society principles apply) |
| Whether Service adequately applied five-factor threats analysis re: regulatory mechanisms (Conservation Strategy) | Removal of recalibration commitment and reliance on state promises undermined the "best available science" and renders regulatory mechanisms inadequate | Service: relies on states' management commitments and agreed continued use of Chao2 for foreseeable future; estimator changes will follow best science and Interagency agreement | Court: Vacated Final Rule — failure to require recalibration was arbitrary and capricious; Service negotiated away scientific obligation for a political compromise |
| Whether Service reasonably assessed genetic risks (connectivity/translocation) | Studies show long-term genetic viability depends on new gene flow; Service misread/over-merged studies to conclude translocation not needed preemptively | Service: effective population estimates are sufficiently large; current genetics not declining; translocation may be a last resort | Court: Vacated Final Rule — Service's genetic conclusion was illogical and inconsistent with cautious ESA approach; omission of proactive connectivity/translocation plan arbitrary |
| Jurisdiction/mootness re: Humane Society reliance | Plaintiffs rely on Humane Society to show need to consider remnant populations; claims are live | Service: Regulatory Review moots/answers Humane Society concerns | Court: Plaintiffs' claims are justiciable; Regulatory Review did not moot the challenge and cannot cure Final Rule's deficiencies |
Key Cases Cited
- Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. 29 (1983) (arbitrary-and-capricious standard: agency must consider important aspects of problem)
- Humane Society v. Zinke, 865 F.3d 585 (D.C. Cir. 2017) (agency may not delist an already-protected species by "balkanization" without considering remnant's status)
- Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) (ESA reflects Congress's strong intent to halt species extinction; institutionalized caution)
- Greater Yellowstone Coalition v. Servheen, 665 F.3d 1015 (9th Cir. 2011) (prior vacatur of 2007 delisting; importance of considering whitebark pine and regulatory mechanisms)
- Coos County Board of County Commissioners v. Kempthorne, 531 F.3d 792 (9th Cir. 2008) (interpretation of §4(c) and relationship to §4(a)/(b) deadlines in ESA)
- San Luis & Delta-Mendota Water Authority v. Locke, 776 F.3d 971 (9th Cir. 2014) (best available science requirement and comprehensive threat review under ESA)