Alliance for the Wild Rockies v. Zinke, CV 16–21–M–DLC

• Decision Date: 22 August 2017
• Docket Number: CV 16–21–M–DLC
• Citation: 265 F.Supp.3d 1161
• Court: U.S. District Court — District of Montana
• Parties: ALLIANCE FOR THE WILD ROCKIES, Plaintiff, v. Ryan ZINKE, in his official capacity as Secretary of the Department of Interior; Daniel Ashe, in his official capacity as Director of the U.S. Fish & Wildlife Service, Defendants. and Bonner County, Idaho ; Boundary County, Idaho; and Lincoln County, Montana, Defendant–Intervenors.

265 F.Supp.3d 1161

ALLIANCE FOR THE WILD ROCKIES, Plaintiff,

v. Ryan ZINKE, in his official capacity as Secretary of the Department of Interior; Daniel Ashe, in his official capacity as Director of the U.S. Fish & Wildlife Service, Defendants.andBonner County, Idaho ; Boundary County, Idaho; and Lincoln County, Montana, Defendant–Intervenors.

CV 16–21–M–DLC

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

Signed August 22, 2017

Rebecca Kay Smith, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, for Plaintiff.

Rickey Doyle Turner, Jr., U.S. Department of Justice, Denver, CO, for Defendants.

John G. Connors, R. Allan Payne, Doney Crowley P.C., Helena, MT, for Defendant–Intervenors.

ORDER

Dana L. Christensen, Chief Judge

Plaintiff Alliance for the Wild Rockies ("Alliance") moves for summary judgment arguing that Defendants Secretary Ryan Zinke and Director Daniel Ashe (collectively "Defendants")¹ violated the Endangered Species Act ("ESA") when the U.S. Fish and Wildlife Service ("FWS") determined that the Cabinet–Yaak grizzly bear was not warranted for listing as an endangered species. Defendants, as well Defendant–Intervenors Bonner County, Idaho, Boundary County, Idaho, and Lincoln County, Montana, oppose Alliance's motion and have filed cross-motions for summary judgment. As discussed below, the Court will grant Alliance's motion and deny the cross-motions for summary judgment of Defendants and Defendant–Intervenors.

BACKGROUND²

In 1975, the grizzly bear (Ursus arctos horribilis ) was listed as a "threatened" species in the lower 48 states. This designation was implemented after the dire decline of the species over the course of the last century where total grizzly bear numbers dropped from 50,000 in 1880 to fewer than 1,000 in the mid–1970s. The great bear's historic range had also shrunk from populations in the Midwest and California and into Mexico, to just four states today.³ The bear's drastic decline was caused by habitant destruction, habitat modification, range curtailment, and human-caused mortality. Based upon these numbers, the FWS approved a Grizzly Bear Recovery Plan which was subsequently revised in 1993 identifying six grizzly recovery zones with parameters for recovery. These zones are: the Cabinet–Yaak Ecosystem (the "Cabinet–Yaak"); the Selkirk Ecosystem, the Yellowstone Ecosystem, the Northern Continental Divide Ecosystem, the Bitterroot Ecosystem, and the North Cascades Ecosystem. The Cabinet–Yaak population is the subject of this litigation.

A. The Cabinet–Yaak

The Cabinet–Yaak recovery zone is located on the border between Montana and Idaho, with 90% of the zone on three national forests: the Kootenai National Forest, the Idaho Panhandle National Forest, and the Lolo National Forest. Estimates of the total number of grizzlies in the Cabinet–Yaak vary, but it is undisputed that less than 50 individual bears can be found in the recovery zone. The population of bears in the Cabinet–Yaak can be geographically divided into two areas: a population in the south of the zone in the Cabinet Mountains ("Cabinet population"), and a population in the north located near the Yaak River ("Yaak population").

The population trends for the bears in these two areas is disputed by the parties. Nevertheless, in 1988, the Cabinet population was estimated to be 15 bears or fewer. The Yaak population at the time was unknown. As of 2014, the total population for Cabinet–Yaak was estimated to be between 42 and 49 individual bears in the recovery zone. These numbers are roughly equally divided between the Cabinet population and the Yaak population. Though these figures represent a pattern of modest improvement for the total number of bears, the parties agree that the Cabinet–Yaak grizzly's recovery is not complete.

The parties dispute whether the Cabinet–Yaak grizzly is currently experiencing improving population trends. Nevertheless, it is undisputed that as of 2013, the total grizzly bear population in the Cabinet–Yaak was not stable. Indeed, at a minimum, 100 bears are necessary for the recovery of the Cabinet–Yaak grizzly and the current number of bears is less than half that number. However, though the total number of bears is less than ideal, the FWS contends that current figures show an improving trend since 2006 and a stable trend since 2013. As a result, the FWS asserts that the Cabinet–Yaak is no longer warranted for listing as an endangered species. Specifically, the FWS has found that the Cabinet–Yaak population is "no longer on the brink of extinction." 79 Fed. Reg. 72450, 72488 (December 5, 2014).

In contrast, Alliance contends that these numbers demonstrate that the Cabinet–Yaak population is warranted for listing because it is currently not viable or close to recovery. Alliance states that various factors are hindering the recovery of this population, including natural and human-caused threats. For example, grizzly bears have a limited reproductive capacity which precludes a rapid increase in population. Due to the relatively late age when grizzles first reproduce, their small litter size, and long intervals between litters, even in optimum conditions a single female grizzly is likely to produce less than four other females in her lifetime. Combined with other factors such as population isolation and displacement from human caused activities, such as mining and logging, Alliance contends that the Cabinet–Yaak grizzly faces a unique set of challenges which warrant their listing. Alliance also argues that the human-caused mortality rate for the Cabinet–Yaak grizzly is significantly contributing to the bear's lack of stability. For example, from 1999 to 2006, 18 bear deaths were known to be directly caused by humans. Further, from 2007 to 2014, at least 17 bears were killed by humans. Alliance contends that this mortality rate, among the other factors mentioned, warrants listing of the Cabinet–Yaak grizzly.

B. The ESA and the Listing Process

The ESA requires the Secretary of the Interior to determine, "solely on the basis of the best scientific and commercial data available," whether any species should be listed as "endangered" or as "threatened." 16 U.S.C. § 1533(a)(1), (b)(1)(A). The ESA defines an "endangered species" as "any species which is in danger of extinction throughout all or a significant portion of its range ...." 16 U.S.C. § 1532(6). A "threatened species" is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. at § 1532(20). The Secretary, through the FWS, is statutorily required to consider various factors in its listing decision, including: (1) "the present or threatened destruction, modification, or curtailment of its habitat or range; (2) "overutilization for commercial, recreational, scientific, or educational purposes"; (3) "disease or predation"; (4) "the inadequacy of existing regulatory mechanisms"; or (5) "other natural or manmade factors affecting its continued existence." 16 U.S.C. § 1533(a)(1)(A)–(E).

A species' listing determination is resolved through a petition process. Essentially, any "interested person" may petition to add or remove a species from the endangered species list.

16 U.S.C. § 1533(b)(3)(A). After receiving the petition, if the Secretary concludes that it "presents substantial scientific or commercial information indicating that the petitioned action may be warranted ... the Secretary shall promptly commence a review of the status of the species concerned." Id. This status review must then be completed in 12 months ("12 Month Review") and the Secretary must issue one of the three findings: (1) the listing of the species is not warranted; (2) the listing is warranted; or (3) the listing is "warranted but precluded."⁴ Id. at § 1533(b)(3)(B)(i)–(iii).

A "warranted but precluded" finding recognizes that a species qualifies for protection under the ESA, but whose listing is "precluded by pending proposals and expeditious progress must be being made to list qualified species and delist those for whom ESA's protections are no longer necessary." Wildwest Inst. v. Kurth , 855 F.3d 995, 1005 (9th Cir. 2017) (quoting Ctr. for Biological Diversity v. Kempthorne , 466 F.3d 1098, 1102 (9th Cir. 2006) ; see also 16 U.S.C. § 1533(b)(3)(B)(iii). If, under this third option, the Secretary finds that the listing of the species is precluded, the FWS then treats the petition as one that has been resubmitted through the initial listing process. Id. at § 1533(b)(3)(C)(i). The Secretary is then required to implement a system to monitor any species whose listing has been determined to be warranted but precluded. Id. at § 1533(b)(3)(C)(iii).

Implementation of this system requires the FWS to fashion "a ranking system to assist in the identification of species that should receive priority review." 16 U.S.C. § 1533(h)(3). This system assigns a Listing Priority Number "LPN" between 1 (highest priority, i.e., an "emergency") and 12 (lowest priority) based on three criteria: (1) magnitude of threats; (2) immediacy of threats; and (3) taxonomic status. Wildwest Inst. , 855 F.3d 995 at 1007. Under the priority ranking system, a species' level is assigned according to its taxonomic status and is assigned under one of three categories: (1) monotypic genus (species that are the sole members of a genus); (2) full species (for genera that have more than one species); and (3) subspecies or distinct population segments of a vertebrate species. As a distinct population segment, the Cabinet–Yaak grizzly may be listed under one of four LPNs: 3, 6, 9, or 12.

C. Listing of the Cabinet–Yaak Grizzly

Following the grizzly bear's initial listing as a "threatened species" subsequent to the passage of the ESA, from 1986 to 2007 the FWS received and reviewed 10 petitions requesting a change in the status of the bear. In 1993, the FWS determined that the grizzly population in the Cabinet–Yaak ecosystem warranted...