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Greater Yellowstone Coalition, Inc v. Christopher Servheen

November 22, 2011

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, AND STATE 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, NATIONAL WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; DEFENDANTS,
MONTANA WILDLIFE FEDERATION; WYOMING WILDLIFE FEDERATION; STATE OF MONTANA; MONTANA DEPARTMENT OF FISH, WILDLIFE AND PARKS; STATE OF WYOMING, DEFENDANT-INTERVENORS, AND SAFARI 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,
AND 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; 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, AND STATE 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, AND NATIONAL WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; MONTANA WILDLIFE FEDERATION; WYOMING WILDLIFE FEDERATION, DEFENDANT-INTERVENORS-APPELLANTS.



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

The opinion of the court was delivered by: Tallman, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted March 7, 2011-Portland, Oregon

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

OPINION

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 indus- tries 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 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.

As required by the ESA, a Grizzly Bear Recovery Plan was developed by the Service and issued in 1982. The Recovery Plan aimed to foster viable, self-sustaining grizzly populations in areas known to have been occupied by grizzlies within the preceding ten years, including the Greater Yellowstone Area (GYA) as well as the Northern Continental Divide Ecosystem area of northern Montana, the North Cascades area of northern Washington, and the Selkirk and Cabinet-Yaak areas of northern Idaho, northwestern Montana, and northeastern Washington. Because the Plan's ultimate goal was the delisting of the grizzly, demographic recovery criteria were established in each identified area.

When the Service revised the Recovery Plan in 1993, it delineated a "Recovery Zone" for each region, defined as "an area large enough and of sufficient habitat quality to support a recovered bear population within which habitat and population would be monitored." The revised Plan also included updated demographic recovery criteria and mandated the development of a "conservation strategy" for each grizzly population to guide long-term management after delisting. Habitat-based recovery criteria were appended to the Plan following a successful legal challenge to its adequacy under the ESA. See Fund for Animals v. Babbitt, 903 F. Supp. 96 (D.D.C. 1995). The Plan's demographic- and habitat-based recovery criteria continued to be refined during the 1990s and 2000s.

The Plan has been widely regarded as a success and a model for grizzly recovery plans elsewhere. Scientists estimate that the GYA's grizzly population increased at an average rate of 4.2% to 7.6% per year between 1983 and 2002 and expanded its range by 48% between the 1970s and 2000. By 2006, the Service had determined that the Plan's demographic- and habitat-based recovery criteria were being met. Total grizzly population in the GYA was estimated at more than 500 bears, and scientists concluded that grizzlies were approaching Yellowstone National Park's carrying capacity.

Pursuant to the Recovery Plan, the Strategy was developed in order to "guid[e] management and monitoring of the Yellowstone grizzly bear population and its habitat upon recovery and delisting." Its stated purpose was to: describe and summarize the coordinated efforts to manage the grizzly bear population and its habitat to ensure continued conservation in the GYA[;] . . . specify the population, habitat, and nuisance bear standards to maintain a recovered grizzly bear population for the foreseeable future; document the regulatory mechanisms and legal authorities, policies, management, and monitoring programs that exist to maintain the recovered grizzly bear population; and document the commitment of the participating agencies.

After undergoing notice and comment, as well as scientific peer review, the Strategy was finalized in March 2007. Eight federal and state entities signed a Memorandum of Understanding agreeing to implement it: the Service; the U.S. Forest Service (the "Forest Service"); the National Park Service (the "Park Service"); the U.S. Geological Survey (USGS); the Bureau of Land Management; the Montana Department of Fish, Wildlife, and Parks; the Wyoming Game and Fish Department; and the Idaho Department of Fish and Game. In addition, the Strategy formally incorporated as appendices the grizzly bear management plans of Montana, Wyoming, and Idaho, each of which was developed in conjunction with the Strategy.

The Strategy redesignated the Yellowstone Recovery Zone as the "Primary Conservation Area" (PCA). The PCA is a 9,210-square-mile area within the GYA, divided into 18 "Bear Management Units," encompassing Yellowstone National Park and surrounding public and some private land. The PCA, which is 98% managed by the Park Service and the Forest Service, includes approximately 51% of all suitable habitat for the grizzly population in the entire GYA and an estimated 84% to 90% of the GYA's population of female grizzlies with cubs. According to the Strategy, "[t]he PCA will be a secure area for grizzly bears, with population and habitat conditions that have allowed the grizzly bear population to achieve recovery and expand outside the PCA." Outside the PCA, the bears "will be allowed to expand into biologically suitable and socially acceptable areas." These are areas "that are not managed solely for bears but in which their needs are considered along with other uses." According to the Service, the suitable grizzly habitat outside the PCA is roughly 84% federally owned, 6% tribally owned, 1.6% state owned, and 9.5% privately owned.

The Strategy's key mechanisms for maintaining a recovered Yellowstone grizzly population are its population and habitat standards, which are based on the recovery criteria originally set forth in the Recovery Plan. Its population standards are (1) a total population of more than 500 bears; (2) at least 16 of 18 Bear Management Units occupied by at least one female with cubs over a six-year period, with no two adjacent Bear Management Units unoccupied; and (3) annual mortality limits of 9% of adult females (not exceeded in two consecutive years), 15% of adult males (not exceeded in three consecutive years), and 9% of cubs under two years old (not exceeded in three consecutive years). Final Conservation Strategy, supra at 27.

The Strategy's habitat standards apply only inside the PCA. They are designed to maintain habitat conditions as they existed in 1998, because those conditions were found to have adequately supported a growing bear population throughout the 1990s. The percentage of "secure habitat," defined as contiguous area of at least 10 acres that is more than 500 meters from a motorized access route or helicopter flightline, must be maintained at or above 1998 levels. The number and capacity of developed sites (including campgrounds, visitor services facilities, and resource development operations) and grazing allotments must be maintained at or below 1998 levels. The Strategy also requires monitoring of vegetation, food availability, and human activities compared to a 1998 baseline.

As for lands outside the PCA, the Strategy notes that the state bear management plans of Wyoming, Montana, and Idaho "recommend and encourage land management agencies to maintain or improve habitats that are important to grizzly bears and to monitor habitat conditions." It also indicates that on national forest land outside the PCA the Forest Service will assess projects that potentially affect the grizzly against the Strategy's habitat standards.

In addition to population and habitat standards, the Strategy establishes protocols for the management of "bear/human conflicts," defined as "incidents in which bears injure people, damage property, kill or injure livestock, damage beehives, obtain anthropogenic foods, or damage or obtain garden and orchard fruits and vegetables." Such conflicts, which ranged in number from 24 to 165 per year in the GYA between 1992 and 2001, are harmful to bears as well as humans because bears involved in serious or repeated conflicts may be killed, captured, or relocated. In the case of conflicts inside the PCA, the Strategy emphasizes the removal of the human cause of the conflict rather than the removal or relocation of the bear. In general, a bear may be removed from the population only if it is involved in repeated conflicts or displays "unnatural aggression," defined as aggression toward humans that is not provoked or defensive. Outside the PCA, conflicts are to be handled in accordance with state management plans, and "more consideration will be given to existing human uses." All bear removals in the GYA, both inside and outside the PCA, must be consistent with the Strategy's mortality limits. To minimize conflicts, the Strategy calls for a coordinated information and education campaign that "facilitates changing inappropriate human behaviors and helps people learn to coexist with bears."

Implementation of the Strategy is to be overseen by the Yellowstone Grizzly Coordinating Committee (the "Committee"), consisting of representatives from each of the Strategy's signatories. Scientific research and monitoring data collection will be conducted by the Interagency Grizzly Bear Study Team (the "Study Team"), a USGS-led team of scientists that has studied the Yellowstone grizzly since 1973. Based on periodic reports from the Study Team, the Committee will evaluate the status of the grizzly population. Any deviations from the Strategy's standards will trigger a six-month investigation by the Study Team known as a "Biology and Monitoring Review," which may result in recommendations for changes to the Strategy or, in the case of a serious threat to the grizzly population, a petition for relisting under the ESA.

Based on the attainment of the Recovery Plan's demographic- and habitat-based recovery criteria and the finalization of the Strategy as a long-term conservation plan, the Service proposed the removal of the Yellowstone grizzly from the ESA's threatened species list. After notice and comment, the Service published its "Final Rule Removing the Yellowstone Distinct Population Segment of Grizzly Bears From the Federal List of Endangered and Threatened Wild-life" (the "Rule") in March 2007. 72 Fed. Reg. 14,866-01 (Mar. 29, 2007). The delisting determination applied only to the Yellowstone grizzly population, which was designated as a "distinct population segment" of North American grizzly in the same Rule. Id.

On November 13, 2007, the Greater Yellowstone Coalition (GYC), a non-profit conservation organization based in Bozeman, Montana, filed a lawsuit in the United States District Court for the District of Montana challenging the Service's Rule as arbitrary, capricious, and unlawful under the ESA. GYC claimed that (1) there were not adequate regulatory mechanisms in place to protect the grizzly; (2) the Service failed to consider the grizzly's historic range, rather than its current range, when it assessed whether the grizzly was threatened by habitat loss; (3) the Service failed to adequately consider the impacts of global warming and mountain pine beetle infestation on the vitality of the region's whitebark pine trees; and (4) the Yellowstone grizzly population is too small to be delisted because it lacks sufficient genetic diversity to be self-sustaining. The States of Wyoming and Montana intervened as defendants, as did the National Wildlife Federation, a non-profit wildlife conservation organization, and Safari Club International, a non-profit hunters' rights and wildlife conservation organization.

On September 21, 2009, the district court granted summary judgment to GYC on its first and third claims, holding that the Service had failed to rationally support its conclusions that adequate regulatory mechanisms were in place to protect the grizzly and that declines in whitebark pine did not threaten the grizzly.*fn1 Based on ...


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