Environment & Energy Report

Yellowstone Grizzly Delisting Needs More Study, Court Says (2)

July 8, 2020, 4:04 PM; Updated: July 8, 2020, 8:31 PM

Federal judges on Wednesday largely upheld a lower court order that required the Trump administration to do further analysis before scrapping protections for grizzly bears around Yellowstone National Park.

The U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s requirement that the U.S. Fish and Wildlife Service take a closer look, but tossed the district judge’s order that the agency conduct a new comprehensive review.

“We affirm the district court in all respects, with the exception of the order requiring the FWS to conduct a ‘comprehensive review’ of the remnant grizzly population,” the Ninth Circuit said. “As to that order, we remand for the district court to order further examination of the delisting’s effect on the remnant grizzly population consistent with this opinion.”

The decision is a win for wildlife advocates, who are expected to use it to challenge other delisting decisions under the Endangered Species Act.

Arguments Rejected

The appeals court largely rejected arguments from federal government officials, Wyoming, and sportsmen groups against the 2018 court decision that struck down the U.S. Fish and Wildlife Service’s decision to delist the bears and ordered a broad new analysis.

The ruling is significant because the court said the federal government can’t delist an endangered population under the Endangered Species Act without looking at how that would affect all the populations of the species, said Sarah McMillan, conservation director for the environmental group WildEarth Guardians.

The Fish and Wildlife Service said it was working on a response to the ruling early this afternoon.

Election Impact

The court’s ruling was narrow, and its ultimate impact may hinge on the outcome of the presidential election in November, said Sam Kalen, a natural resources law professor at the University of Wyoming.

The federal government isn’t likely to see it as a huge loss, partly because the administration, if Trump is re-elected, will have time to study delisting impacts on other grizzly populations to justify the Fish and Wildlife Service’s delisting decision, Kalen said.

The ruling suggested that the government’s failure to study delisting impacts on other remnant grizzly populations was arbitrary and capricious, he said. The government can correct that by doing its homework, he said.

But if the administration thinks there’s a chance it could lose the 2020 election, it can’t rush to finish the research by Inauguration Day in 2021 and expect another delisting decision to withstand another court challenge, he said.

“For them to be able to go through and fix their rule on the grizzly, you’re talking a least a few months. I don’t know they could get it done between now and Jan. 20,” Kalen said.

A rush to complete the study “might not reflect a deliberative judgment,” he said.

Vulnerable Group

Yellowstone grizzlies are a distinct group of the threatened species in and around the national park in Montana, Wyoming, and Idaho.

McMillan said the bear is vulnerable to trophy hunting and other human conflicts outside of the park’s boundaries, and Wednesday’s decision will help protect them.

The court’s decision ensures that the grizzly is protected outside of Yellowstone National Park so that there’s genetic exchange with other clusters of the bears outside the region, she said.

The Trump administration rolled back federal protections for them after concluding they had adequately recovered from fewer than 200 bears in 1975 to around 700 now.

The Northern Cheyenne, Crow, and other American Indian tribes and environmentalists sued, and a district court in Montana concluded the administration made several mistakes in its decision-making process, including failing to grapple with how reduced protections for the Yellowstone group would affect the broader grizzly species.

The case is Crow Indian Tribe v. USA, 9th Cir., No. 18-36030, 7/8/20.

(Adds comments from Sam Kalen beginning in eighth paragraph. )

To contact the reporters on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com; Bobby Magill in Washington at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com

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