965 F.3d 662
9th Cir.2020Background
- The Greater Yellowstone grizzly recovered substantially under the ESA, prompting FWS delisting attempts: a 2007 Rule (vacated/remanded) and a 2017 Rule based on a 2016 Conservation Strategy.
- The 2017 Rule delisted the Yellowstone DPS and relied on state/federal management commitments rather than mandatory translocation or binding genetic safeguards.
- After the D.C. Circuit’s Humane Society decision, FWS conducted a brief Regulatory Review but did not fully analyze the remnant (remaining listed) grizzly population.
- District court vacated the 2017 Rule and remanded, finding three defects: (1) inadequate analysis of delisting’s effect on the remnant population, (2) failure to rely on best available science and to provide enforceable measures to ensure long-term genetic diversity, and (3) removal of a recalibration commitment for population estimators.
- Ninth Circuit: affirmed the remand for genetic and recalibration issues; clarified that a full Section 4(a) five-factor review of the remnant is not required but FWS must determine whether a protectable remnant exists and whether delisting would threaten it; vacated district court’s order for a broad "comprehensive review" and remanded for narrower analysis consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appellate jurisdiction and standing to appeal remand | Remand order not final; appeals improper | Remand is final as to the agency; FWS and intervenors can seek review | Ninth Circuit has jurisdiction: remand final for FWS; intervenors may appeal recalibration order; FWS has standing because relief would change required action on remand |
| Scope of analysis required for remnant population (post-DPS delisting) | District court: FWS must perform a comprehensive Section 4(a)-style review of remnant threats | FWS: Humane Society requires remnant analysis but not a full Section 4(a) re-do | Court: Full Section 4(a) review not required; FWS must determine whether a sufficiently distinct and protectable remnant exists and whether delisting the DPS would further threaten the remnant; vacated the district court’s requirement of a broad "comprehensive review" and remanded for narrower inquiry |
| Genetic diversity and sufficiency of regulatory mechanisms | 2017 Rule ignored best available science and lacked enforceable mechanisms (e.g., translocation) to secure long-term genetic health | FWS: available studies support no immediate genetic threat and state/federal commitments are adequate | Court: 2017 Rule’s conclusion that genetic concerns are not a threat is unsupported by the cited science; state/federal measures and contingency commitments are not sufficiently certain/enforceable; remand required to adopt adequate measures |
| Recalibration of population estimators | Plaintiffs and district court: FWS improperly removed recalibration commitment under political pressure | Intervenors/states: recalibration unnecessary/speculative because states will use current estimator | Court: District court properly ordered a recalibration commitment; FWS accepted this part of remand; intervenors’ appeal allowed but the requirement stands because failure to recalibrate risks biologically and legally indefensible outcomes |
Key Cases Cited
- Humane Soc’y v. Zinke, 865 F.3d 585 (D.C. Cir. 2017) (when creating and delisting a DPS, agency must address effects on the remnant so the remnant is not de facto delisted)
- Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015 (9th Cir. 2011) (vacating earlier Yellowstone delisting for inadequate scientific analysis regarding whitebark pine)
- Alsea Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181 (9th Cir. 2004) (remand orders can be final for agencies though not for private parties whose positions will be considered on remand)
- Natural Res. Def. Council v. Gutierrez, 457 F.3d 904 (9th Cir. 2006) (agency lacks standing to appeal when challenging only the reasoning but not the relief ordered)
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (U.S. 1978) (context on ESA’s purpose and protective scope)
- Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160 (9th Cir. 2010) (agency interpretations of science are arbitrary and capricious when unsupported by substantial evidence)
- Defenders of Wildlife v. Zinke, 849 F.3d 1077 (D.C. Cir. 2017) (post-delisting reliance on state management plans requires measures that are sufficiently certain and effective)