Crow Indian Tribe v. United States, 343 F. Supp. 3d 999

Background

The Fish and Wildlife Service (Service) issued a Final Rule (June 30, 2017) designating and simultaneously delisting the Greater Yellowstone Ecosystem (GYE) grizzly bear as a distinct population segment and removing its ESA protections.
The lower-48 grizzly listing (1975) historically covered multiple isolated populations; GYE and Northern Continental Divide are the only large populations; others are very small or extirpated.
Plaintiffs challenged the Final Rule under the ESA and APA, raising (1) failure to analyze how delisting GYE would affect the remaining lower-48 grizzly population and (2) arbitrary and capricious application of the ESA five‑factor threats analysis (including removal of a recalibration commitment and the analysis of genetic isolation/translocation).
The Service did not analyze impacts to other lower‑48 populations, relied on continued listing of the remnant lower‑48 designation, and removed a previously proposed recalibration commitment from the Conservation Strategy as a concession to states.
The Service relied on two genetic studies (Miller & Waits (2003) and Kamath et al. (2015)) to conclude GYE genetic risk was low; the court found the Service misread or relied illogically on those studies, especially given concerns about long‑term isolation and the absence of a translocation/connectedness plan.
The court vacated and remanded the Final Rule, granting plaintiffs' summary judgment and finding the Service acted arbitrarily and capriciously and failed to consider an important aspect of the problem.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Service could delist GYE without analyzing effects on other lower‑48 populations	Service must analyze how carving out and delisting a segment affects the remnant listed entity and potential future connectivity/genetic health	Delisting is permissible because the remainder of the lower‑48 designation stays listed; impact on other populations is outside the rule's scope	Court: Service acted arbitrarily and capriciously by failing to analyze impacts on other lower‑48 grizzlies; vacated rule
Whether dropping a recalibration commitment in the Conservation Strategy was lawful	Plaintiffs: removing recalibration (which would align any new estimator to Chao2 baseline) forfeited the Service’s obligation to follow best available science and risks inflationary estimator changes	Service: Chao2 will remain in foreseeable future; estimator changes require interagency agreement and follow science; such concerns speculative	Court: Service negotiated away recalibration to appease states, failing to rely solely on best available science; arbitrary and capricious
Whether the Service reasonably concluded no proactive connectivity/translocation was required given genetic studies	Plaintiffs: studies actually indicate long‑term genetic risk absent new gene flow and recommend translocation or connectivity measures; Service’s conclusion is illogical	Service: Effective population size estimates show current genetic health adequate; future connectivity or translocation can be a last resort	Court: Service misapplied and selectively relied on studies; conclusion that translocation/connectivity not needed now is illogical and inconsistent with ESA’s cautionary approach

Key Cases Cited

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (agency action arbitrary and capricious standard)
Tennessee Valley Auth. v. Hill, 437 U.S. 153 (Congressial purpose and strict protection under the ESA)
Humane Soc'y v. Zinke, 865 F.3d 585 (D.C. Cir.) (agency must consider effects of segment delisting on the remnant listed entity)
Greater Yellowstone Coal. v. Servheen, 665 F.3d 1015 (9th Cir.) (prior vacatur/review of 2007 delisting; adequacy of regulatory mechanisms)
Coos Cty. Bd. of Cnty. Comm'rs v. Kempthorne, 531 F.3d 792 (9th Cir.) (statutory interpretation of ESA §4 provisions)
Bennett v. Spear, 520 U.S. 154 (agency action standards and ripeness in ESA context)