9th Circuit Affirms Protections For Grizzly Bears Under Endangered Species Act

On July 8, a panel of Ninth Circuit Judges upheld a decision from the District of Montana that ruled in favor of tribal nations and conservation groups that were fighting for grizzly bears to remain protected under the Endangered Species Act (ESA).  The Appeals Court affirmed the district court’s orders remanding to the U.S. Fish & Wildlife Services (FWS) for further consideration of several issues concerning its 2017 ruling removing grizzly bears from the endangered species list.

Appellees, Crow Indian Tribe, Creek Sioux Tribe, Northern Cheyenne Tribe, along with other tribal nations and conservation groups such as the Sierra Club, originally sued the Department of Interior (DOI) and the FWS for their delisting of grizzly bears that took away key protections under the ESA.  After that 2017 ruling, Montana and Wyoming were going to allow a certain number of grizzly bears to be legally hunted outside national parks, which triggered many of the suits that were eventually consolidated. The Appellants, DOI and FWS appealed the district court’s decision remanding its 2017 ruling.

The opinion, by Circuit Judge Mary M. Schroeder, began with a quote from the University of Montana Fight Song: “And the squeal of the pig will float through the air; From the tummy of the grizzly bear.”  She then noted how one of the original goals of the ESA was to protect grizzly bears, “an iconic symbol of the Rocky Mountain west.”

In its argument to support its 2017 ruling, the FWS concluded that genetic diversity concerns “do not pose a threat” to the Yellowstone grizzly population.  However, from its 2007 ruling on grizzly bears, it found “based on the best available science” that Yellowstone grizzly’s long-term genetic diversity would be threatened if bears from other ecosystems did not migrate into the Greater Yellowstone Ecosystem.  Additionally, the FWS Conservation Strategy included a recommendation that bears outside the ecosystem be relocated if no natural connectivity between grizzly bear ecosystems occurred.  The district court held the FWS acted contrary to the best available science and provided little reasoning from its departure from its earlier findings.  On appeal, the FWS argued the studies in the record supported there is no threat to the grizzly’s genetic diversity and no need for relocating bears, but the panel said those studies only supported the short-term, not the long-term.

Furthermore, the panel noted that the 2017 ruling acknowledged that long-term genetic diversity requires regulatory measures.  For example, the ruling stated “that the long-term viability of the [Yellowstone grizzly] will benefit from occasional gene flow from nearby grizzly bear populations.”  In conclusion, the panel said “there are no concrete, enforceable mechanisms in place to ensure long-term genetic health of the Yellowstone grizzly, the district court correctly concluded that the 2017 Rule is arbitrary and capricious in that regard.”

Lastly, the panel affirmed the district court ordering the FWS to include a commitment to the recalibration of estimating the Yellowstone grizzly bear population.  The panel agreed the FWS dropping its commitment to recalibrate violated the ESA, because it was not made “solely on the basis of the best scientific and commercial data,” but rather “was the result of political pressure by the states.” 

The panel did remand for the district court to order further examination of the delisting’s effect on the remnant grizzly population of the lower 48 states. 

Earthjustice represented several of the conservation groups in the original case and appeal.