Greater Yellowstone Coalition, Inc. v. Servheen, No. CV 07-134-DWM.

• Decision Date: 21 September 2009
• Docket Number: No. CV 07-134-DWM.
• Citation: 672 F.Supp.2d 1105
• Parties: GREATER YELLOWSTONE COALITION, INC., Plaintiff, v. Christopher SERVHEEN, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Dirk Kempthorne, Secretary of the Interior; and United States Fish and Wildlife Service, Defendants. and National Wildlife Federation, Idaho Wildlife Federation, Montana Wildlife Federation, Wyoming Wildlife Federation, State of Wyoming, Safari Club International, and Safari Club International Foundation, State of Montana, Montana Department of Fish, Wildlife, and Parks, Defendant-Intervenors.
• Court: U.S. District Court — District of Montana

Page 1105

672 F.Supp.2d 1105

GREATER YELLOWSTONE COALITION, INC., Plaintiff, v. Christopher SERVHEEN, U.S. Fish and Wildlife Service Grizzly Bear Recovery Coordinator; H. Dale Hall, U.S. Fish and Wildlife Service Director; Dirk Kempthorne, Secretary of the Interior; and United States Fish and Wildlife Service, Defendants. and National Wildlife Federation, Idaho Wildlife Federation, Montana Wildlife Federation, Wyoming Wildlife Federation, State of Wyoming, Safari Club International, and Safari Club International Foundation, State of Montana, Montana Department of Fish, Wildlife, and Parks, Defendant-Intervenors.

No. CV 07-134-DWM.

United States District Court, D. Montana, Missoula Division.

September 21, 2009.

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Douglas L. Honnold, EarthJustice Legal Defense Fund, Bozeman, MT, Jack R. Tuholske, Tuholske Law Office, Missoula, MT, for Plaintiff/Intervenor Defendant.

Thomas M. France, National Wildlife Federation, Missoula, MT, Mike McGrath, Office of the Montana Attorney General, Robert N. Lane, William A. Schenk, Helena, MT, for Intervenor Defendant.

Robert H. Aland, Winnetka, IL, pro se.

Coby Howell, Office of the U.S. Attorney, Portland, OR, Rickey Doyle Turner, Jr., U.S. Department of Justice, Washington, DC, Victoria L. Francis, Office of the U.S. Attorney, Billings, MT, for Defendant.

ORDER

DONALD W. MALLOY, District Judge.

I. Introduction

In this case, Greater Yellowstone Coalition ("GYC") seeks judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706 and the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. The Complaint alleges the Defendants violated the ESA when the United States Fish and Wildlife Service ("Service") designated a Distinct Population Segment ("DPS") for the Greater Yellowstone Area grizzly bear population and removed the population from the threatened species list under the ESA.

Plaintiff claims the delisting decision violates the ESA on four grounds: (1) there are inadequate regulatory mechanisms to protect the grizzly bear once it is delisted; (2) the Service did not adequately consider the impacts of global warming and other factors on whitebark pine nuts, a grizzly food source; (3) the population is unacceptably small and dependent on translocation of outside animals for genetic diversity; and (4) the Service did not properly consider whether the grizzlies are recovered across a significant portion of their range. Before the Court are the parties' cross-motions for summary judgment. For the reasons stated below, I am vacating the delisting of the Yellowstone Grizzly and remanding the matter to the agency for further consideration.

II. Factual Background

A. Characteristics and history of the grizzly bear

The grizzly bear is a member of the brown bear species found across North America, Europe, and Asia. Adult grizzly bears are generally solitary, but maintain home ranges that overlap; overlapping ranges contribute to the genetic diversity of a population. AR 11276.¹ Female grizzly bears begin reproducing between the ages of three and eight years, and litter size ranges from one to four cubs. Cubs remain with their mothers for two to three years before the mother reproduces again. Grizzly bears have "one of the slowest rates among terrestrial mammals, resulting primarily from the late age of first reproduction, small average litter size, and the long interval between litters.... [I]t may take a single female 10 years to replace herself in a population." Id.

Grizzly bears are opportunistic omnivores that consume a variety of foods depending on what is available. Grizzlies in the Greater Yellowstone Area rely primarily on four food sources: ungulate meat, whitebark pine seeds, cutthroat trout, and army cutworm moths. Id. The availability of whitebark pine seeds varies from year to year, and grizzly bears must eat other foods when the seeds are not available. AR 11276-77. Whether grizzly bears in the Yellowstone area have access to whitebark pine seeds has an effect on fecundity and survival rates. AR 11336.

Prior to European settlement, grizzly bears were widely distributed throughout the western part of North America and their population numbered approximately 50,000. AR 11274. After European settlement, grizzly bear numbers declined sharply, caused in part by active government efforts to eradicate the animal. By 1950, grizzlies were extirpated from 98%-99% of their previous range and were confined to a few remnant areas in the Northern Rockies, including Yellowstone National Park. AR 11277. The Yellowstone grizzly population suffered additional mortalities when the Park closed its garbage dumps in the 1970s. Id.

The grizzly population in and around Yellowstone Park is isolated from all other populations of grizzly bears and has been isolated for approximately 100 years. AR 11287. The Greater Yellowstone Area grizzly bears are more genetically isolated and homogeneous than any other grizzly bear population, except for grizzlies on Kodiak Island in Alaska. Id. The Service states that there are "substantial" barriers to establishing connectivity with other grizzly bear populations. AR 03007. Over time a genetically isolated population can suffer declines in genetic diversity that can make the population vulnerable. AR 11335.

B. ESA listing and recovery efforts

In 1975, the grizzly bear was designated a threatened species in the lower 48 states under the ESA. 40 Fed.Reg. 31734, 31735 (Jul. 28, 1975), AR 10716. At the time, there were only an estimated 1000 grizzly bears remaining in the lower 48 states, including an estimated 136-312 bears in the Greater Yellowstone Area. AR 11278. The Service concluded that several factors justified listing the grizzly bears as threatened, including the curtailment of their range to a few isolated regions, high mortality due to human-bear conflicts, and genetic isolation of populations from one another. 40 Fed.Reg. at 31734, AR 10715.

In 1982, the Service completed the first Grizzly Bear Recovery Plan. The Recovery Plan identified several Recovery Zones for grizzly bears, including the Yellowstone Grizzly Bear Recovery Zone. AR 11278. In 1993, the Service revised the Recovery Plan. A federal district court found the Recovery Plan did not comply with the ESA. Fund for Animals v. Babbitt, 903 F.Supp. 96 (D.D.C.1995). The parties subsequently reached a settlement that established requirements in the Recovery Plan that the Service needed to meet for the grizzly bear to be removed from the threatened list under the ESA. AR 11278-79.

C. Delisting decision and the Conservation Strategy

The Yellowstone grizzly bear population increased at a rate between 4.2% and 7.6% per year from 1983 until 2002. AR 11280. By 2007, the population in the Greater Yellowstone Area measured approximately 500. AR 11278. Grizzly bears are likely approaching their carrying capacity inside Yellowstone National Park. AR 11280.

In November 2005, the Service proposed designating the Greater Yellowstone Area population of grizzly bears as a Distinct Population Segment (DPS) and removing it from the list of threatened and endangered species. AR 11138. The DPS includes portions of Idaho, Montana and Wyoming, including Yellowstone National Park. AR 11284-85. The Service estimates that grizzly bears currently occupy 68% of the suitable habitat² within the DPS. AR 11283.

Within the DPS, the Service separates the land into two zones. First, the Primary Conservation Area, which corresponds to the Yellowstone Recovery Zone in the 1993 Recovery Plan, is the core area of habitat for the DPS. The Primary Conservation Area includes Yellowstone National Park and adjacent areas, 98% of which is managed by the National Park Service or the United States Forest Service. The Service estimates that the Primary Conservation Area contains 51% of the suitable habitat for grizzly bears within the DPS boundaries and contains 84-90% of the population of female grizzlies with cubs in the DPS boundaries. According to the Service, land within the Primary Conservation Area will be managed primarily to maintain grizzly bear habitat. AR 11283.

The DPS also includes land outside the Primary Conservation Area. This land includes a mixture of federal, state, tribal and private lands, and it is to be managed in accordance with the Conservation Strategy, discussed below. The Service plans for grizzly bears to expand into suitable habitat outside the Primary Conservation Area in accordance with the Conservation Strategy and state management plans. These lands will be managed to maintain existing resource and recreational uses, in addition to allowing grizzly bears to occupy areas of suitable habitat. AR 11283.

As directed in the 1993 Recovery Plan, the Service coordinated with other federal agencies and state agencies in Idaho, Montana, and Wyoming to develop the Conservation Strategy. AR 02982-84. The Conservation Strategy controls management of the grizzly bear within the Primary Conservation Area and sets forth standards for monitoring the DPS population. AR 11332. All of the parties to the Conservation Strategy have signed a Memorandum of Understanding indicating that they are committed to maintaining and enhancing the delisted grizzly bear DPS. AR 02982. As part of the Conservation Strategy, Idaho, Montana and Wyoming have each developed a management plan which will guide management outside the Primary Conservation Area. AR 11333.

In the delisting proposal, the Service noted that the Yellowstone population is still isolated from other grizzly bear populations and at risk over the next several decades of losing additional genetic diversity. To combat this issue, the Service proposed that, if no connectivity with other populations occurs by 2020, one to two effective migrant grizzlies per generation will be transferred into the Yellowstone grizzly population. AR 11335-36.

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