Greater Yellowstone Coal., Inc. v. Servheen

• Decision Date: 22 November 2011
• Docket Number: 10–35052,Nos. 09–36100,10–35054.,10–35053,10–35043,s. 09–36100
• Citation: 665 F.3d 1015,2011 Daily Journal D.A.R. 16876,73 ERC 1706,11 Cal. Daily Op. Serv. 14112
• Parties: GREATER YELLOWSTONE COALITION, INC., Plaintiff–Appellee, v. Christopher SERVHEEN, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Ken Salazar, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants,Safari Club International; Safari Club International Foundation; National Wildlife Federation; Idaho Wildlife Federation; Montana Wildlife Federation; Wyoming Wildlife Federation; State of Montana; Montana Department of Fish, Wildlife and Parks, Defendant–Intervenors,andState of Wyoming, Intervenor–Defendant–Appellant.Greater Yellowstone Coalition, Inc., Plaintiff–Appellee, v. Christopher Servheen, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Ken Salazar, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants,National Wildlife Federation; Idaho Wildlife Federation; Montana Wildlife Federation; Wyoming Wildlife Federation; State of Montana; Montana Department of Fish, Wildlife and Parks; State of Wyoming, Defendant–Intervenors,andSafari Club International; Safari Club International Foundation, Defendant–Intervenors–Appellants.Greater Yellowstone Coalition, Inc., Plaintiff–Appellee, v. Christopher Servheen, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Ken Salazar, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants–Appellants,andSafari Club International; Safari Club International Foundation; National Wildlife Federation; Idaho Wildlife Federation; Montana Wildlife Federation; Wyoming Wildlife Federation; State of Montana; Montana Department of Fish, Wildlife and Parks; State of Wyoming, Defendant–Intervenors.Greater Yellowstone Coalition, Inc., Plaintiff–Appellee, v. Christopher Servheen, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Ken Salazar, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants,Safari Club International; Safari Club International Foundation; National Wildlife Federation; Idaho Wildlife Federation; Montana Wildlife Federation; Wyoming Wildlife Federation; State of Wyoming, Defendant–Intervenors,andState of Montana; Montana Department of Fish, Wildlife and Parks, Defendant–Intervenors–Appellants.Greater Yellowstone Coalition, Inc., Plaintiff–Appellee, v. Christopher Servheen, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Ken Salazar, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants,Safari Club International; Safari Club International Foundation; State of Wyoming; State of Montana; Montana Department of Fish, Wildlife and Parks, Defendant–Intervenors,andNational Wildlife Federation; Idaho Wildlife Federation; Montana Wildlife Federation; Wyoming Wildlife Federation, Defendant–Intervenors–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 14,112
2011 Daily Journal D.A.R. 16,876
665 F.3d 1015
73 ERC 1706

GREATER YELLOWSTONE COALITION, INC., Plaintiff–Appellee,
v.
Christopher SERVHEEN, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Ken Salazar, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants,Safari Club International; Safari Club International Foundation; National Wildlife Federation; Idaho Wildlife Federation; Montana Wildlife Federation; Wyoming Wildlife Federation; State of Montana; Montana Department of Fish, Wildlife and Parks, Defendant–Intervenors,andState of Wyoming, Intervenor–Defendant–Appellant.Greater Yellowstone Coalition, Inc., Plaintiff–Appellee,
v.
Christopher Servheen, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Ken Salazar, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants,National Wildlife Federation; Idaho Wildlife Federation; Montana Wildlife Federation; Wyoming Wildlife Federation; State of Montana; Montana Department of Fish, Wildlife and Parks; State of Wyoming, Defendant–Intervenors,andSafari Club International; Safari Club International Foundation, Defendant–Intervenors–Appellants.Greater Yellowstone Coalition, Inc., Plaintiff–Appellee,
v.
Christopher Servheen, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Ken Salazar, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants–Appellants,andSafari Club International; Safari Club International Foundation; National Wildlife Federation; Idaho Wildlife Federation; Montana Wildlife Federation; Wyoming Wildlife Federation; State of Montana; Montana Department of Fish, Wildlife and Parks; State of Wyoming, Defendant–Intervenors.Greater Yellowstone Coalition, Inc., Plaintiff–Appellee,
v.
Christopher Servheen, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Ken Salazar, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants,Safari Club International; Safari Club International Foundation; National Wildlife Federation; Idaho Wildlife Federation; Montana Wildlife Federation; Wyoming Wildlife Federation; State of Wyoming, Defendant–Intervenors,andState of Montana; Montana Department of Fish, Wildlife and Parks, Defendant–Intervenors–Appellants.Greater Yellowstone Coalition, Inc., Plaintiff–Appellee,
v.
Christopher Servheen, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Ken Salazar, Secretary of the Interior; U.S. Fish and Wildlife Service, Defendants,Safari Club International; Safari Club International Foundation; State of Wyoming; State of Montana; Montana Department of Fish, Wildlife and Parks, Defendant–Intervenors,andNational Wildlife Federation; Idaho Wildlife Federation; Montana Wildlife Federation; Wyoming Wildlife Federation, Defendant–Intervenors–Appellants.

Nos. 09–36100

10–35043

10–35052

10–35053

10–35054.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2011.Filed Nov. 22, 2011.

[665 F.3d 1018]

Allen M. Brabender (argued), Coby Howell, U.S. Department of Justice, Washington, DC, for defendants-appellants U.S. Fish and Wildlife Service, et al.

Robert N. Lane, William A. Schenk, Special Assistants to the Attorney General, Helena, MT, for defendant-intervenor-appellant the State of Montana and Montana Department of Fish, Wildlife, and Parks.

Jay A. Jerde, Deputy Attorney General, Cheyenne, WY, for defendant-intervenor-appellant the State of Wyoming.Thomas France (argued), National Wildlife Federation, Missoula, MT; David K.W. Wilson, Jr., Reynolds, Motl, and Sherwood, Helena, MT, for defendant-intervenor-appellant National Wildlife Federation.Douglas S. Burdin, Anna M. Seidman, Safari Club International, Washington, DC, for defendant-intervenor-appellant Safari Club International.Douglas L. Honnold (argued), Timothy J. Preso, Jenny K. Harbine, Earthjustice, Bozeman, MT; Jack R. Tuholske, Tuholske Law Office PC, Missoula, MT, for plaintiff-appellee Greater Yellowstone Coalition.Andrew E. Wetzler, Natural Resources Defense Council, Chicago, IL, for amicus curiae Natural Resources Defense Council, Inc.Robert H. Aland, Winnetka, IL, pro se amicus curiae.Appeals from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 9:07–cv–00134–DWM.

Before: SIDNEY R. THOMAS, SUSAN P. GRABER, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge TALLMAN; Partial Concurrence and Partial Dissent by Judge THOMAS.

[665 F.3d 1019]

OPINION TALLMAN, Circuit Judge:

This case involves one of the American West's most iconic wild animals in one of its most iconic landscapes. The grizzly bear ( Ursus arctos horribilis )—so named for the gray-tipped hairs that give it a “grizzled” appearance—is both revered and feared as a symbol of wildness, independence, and massive strength. But while grizzlies may inspire some sense of human vulnerability, history has shown that it is the bears who have often been the more vulnerable ones. During the nineteenth and early twentieth centuries, widespread hunting, trapping, poisoning, and habitat destruction associated with American expansion decimated the grizzly population in the West and relegated the bears to increasingly remote and rugged terrain. Since then, their survival has depended both on their own ability to adapt to their surroundings and on human ability to adapt to their presence. These seemingly irreconcilable tensions have come to a head before us in this appeal.

The Yellowstone region of northwestern Wyoming, southern Montana, and northeastern Idaho is home to a grizzly population, two popular national parks—Yellowstone and Grand Teton—and a network of rural communities built on industries such as natural resource extraction, ranching, agriculture, and tourism. As such, it has served as a kind of living laboratory for the coexistence of people and grizzlies in close proximity. For much of the twentieth century, Yellowstone National Park's open-pit garbage dumps provided a reliable food source for the bears as well as a convenient bear-viewing opportunity for tourists. After the dumps were closed in the early 1970s due to concerns about encouraging the bears' attraction to human foods, however, grizzly mortality rates skyrocketed. By 1975 the grizzly population decline at Yellowstone and elsewhere prompted the U.S. Fish and Wildlife Service (the “Service”) to list the grizzly as “threatened” in the lower 48 states under the Endangered Species Act (ESA).

Since then, the Yellowstone grizzly population has rebounded, as scientists, conservationists and land managers have made unprecedented efforts to study the bear and to change those human attitudes and behaviors that unnecessarily threaten it. These efforts, spearheaded by the Service's Grizzly Bear Recovery Coordinator Dr. Christopher Servheen, culminated in the “Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area” (the “Strategy”), an impressive inter-agency, multi-state cooperative blueprint for long-term protection and management of a sustainable grizzly population. Interagency Conservation Strategy Team, Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area (Mar.2007) available at http:// www. fws. gov/ mountain- prairie/ species/ mammals/ grizzly/ Final_ Conservation_ Strategy. pdf. Shortly after the Strategy's finalization, the Service removed the Yellowstone grizzly from the threatened species list.

The Service's delisting decision, the subject of this appeal, raises a host of scientific, political, and philosophical questions regarding the complex relationship between grizzlies and people in the Yellowstone region. We emphasize at the outset that those are not the questions that we grapple with here. We, as judges, do not purport to resolve scientific uncertainties or ascertain policy preferences. We address only those issues we are expressly called upon to decide pertaining to the legality of the Service's delisting decision: first, whether the Service rationally supported its conclusion that a projected decline in whitebark pine, a key food source for the bears, does not threaten the Yellowstone

[665 F.3d 1020]

grizzly population; and second, whether the Service rationally supported its conclusion that adequate regulatory mechanisms are in place to maintain a recovered Yellowstone grizzly population without the ESA's staunch protections.

As to the first issue, we affirm the district court's ruling that the Service failed to articulate a rational connection between the data in the record and its determination that whitebark pine declines were not a threat to the Yellowstone grizzly, given the lack of data indicating grizzly population stability in the face of such declines, and the substantial data indicating a direct correlation between whitebark pine seed availability and grizzly survival and reproduction. As to the second issue, we reverse the district court and hold that the Service's determination regarding the adequacy of existing regulatory mechanisms was reasonable.

I

Grizzly bears once thrived in a variety of habitats across the western coterminous United States, from the West Coast and Southwest to the Great Plains and Texas. By the time of ESA listing in 1975, however, the grizzly population in the lower 48 states was confined to a few fragments amounting to less than 2% of its formerly contiguous historic range, and its numbers had dwindled from about 50,000 in 1800 to less than 1,000 today. The Yellowstone area grizzly population—unique because it is entirely isolated from larger populations in Canada—was estimated to number between 136 and 312 bears at the time of listing.

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