Grizzly decision detailed
by Cat Urbigkit, Pinedale Online!
September 30, 2009
Federal Judge Donald Malloy’s recent decision overturning the U.S. Fish and Wildlife Service decision to remove grizzly bears from threatened status under the Endangered Species Act was 46 pages long and has important legal implications for future ESA decisions, if left unchallenged.
Malloy, a federal court judge in Montana, made the decision in favor of the Greater Yellowstone Coalition, and against the federal government, the states of Wyoming and Montana, and various chapters of the wildlife federation and Safari Club International.
GYC won the lawsuit based on two major factors:
• there are inadequate regulatory mechanisms to protect the grizzly bear once it is delisted; and
• FWS did not adequately consider the impacts of global warming and other factors on whitebark pine nuts, a grizzly food source. FWS delisted grizzly bears in the Yellowstone region in March 2007. Molloy’s decision vacates the delisting rule.
First, Molloy ruled that the Conservation Strategy, which is central to FWS’s analysis of regulatory mechanisms, is unenforceable and non-binding on state and federal agencies.
The court noted "the question is whether the existing regulatory mechanisms, without the protections of the ESA, are adequate to maintain a population at a recovered level sufficient to prevent the need for future relisting."
The FWS, and all its agency cooperators, worked intensively to develop the grizzly bear Conservation Strategy, which is an agreement that defines management of the grizzly bear within the Primary Conservation Area and sets forth standards for monitoring the bear population. All of the parties to the Conservation Strategy also signed a Memorandum of Understanding indicating that they are committed to maintaining and enhancing the delisted grizzly bear population, and each of the three states involved developed management plans to guide management outside the Primary Conservation Area.
Molloy noted his review of the Conservation Strategy did not find enforceable standards. He noted: "Without tangible requirements specifying how the population will be maintained at 500 bears and how the mortality limits will be enforced, there is nothing in this portion of the Conservation Strategy that actually serves as a regulatory mechanism to maintain the grizzly bear population."
Molloy continued: "The second purported key of the Conservation Strategy, habitat standards and monitoring, likewise fails to set forth adequate enforceable criteria. The Conservation Strategy establishes habitat standards inside the Primary Conservation Area for permissible changes to secure habitat, the number and capacity of developed sites, and livestock allotments. However, it does not contain analogous standards for lands outside the Primary Conservation Area; instead, it states that "agencies will cooperate with the appropriate state wildlife agency in development of additional future, area-specific grizzly bear management goals. Like the population monitoring protocols, the Conservation Strategy also lays out monitoring protocols for habitat both inside and outside the Primary Conservation Area. These monitoring requirements are unenforceable and do not protect the grizzly bear population. Outside the Primary Conservation Area, there are no standards to serve as regulatory mechanisms for the protection of the recovered grizzly bear population; instead, there is only a promise of future, unenforceable actions. Promises of future, speculative action are not existing regulatory mechanisms."
Molloy wrote that the Conservation Strategy does not require the FWS or other agencies to take any concrete response to protect grizzlies if monitoring shows population or habitat declines, but only to identify the problems and make recommendations for changes.
While the Conservation Strategy states that the various agencies are ‘committed to’ the Conservation Strategy, Molloy noted that FWS "cannot compel any of the agencies to live up to their commitments."
Molloy concluded: "Thus, the Service admits that the Conservation Strategy, the centerpiece of the regulatory mechanisms relied on by the Service, cannot actually regulate anything. An ‘intention" or "commitment’ to manage grizzly bears a certain way is not a regulatory mechanism."
And although the various national forests in the region adopted Forest Plan Amendments to incorporate the habitat standards from the Conservation Strategy, that’s not good enough either, according to the decision.
"Because the Forest Plan amendments contain no enforceable standards outside the Primary Conservation Area, they do not serve as an adequate mechanism for grizzly bear management," Molloy wrote.
Ditto for the state plans as well, according to Molloy: "The state plans suffer from the same flaws as the Conservation Strategy: they are premised on
monitoring and future actions, and they contain few, if any, enforceable standards. For example, the Wyoming plan contains only ‘general management guidelines’ for habitat and managing nuisance bears, which cannot legally be enforced because guidelines are discretionary."
Molloy continued: "While the state plans incorporate the mortality limits in the Conservation Strategy, the plans include no enforcement mechanism or standards to ensure that mortality does, in fact, stay below the prescribed levels. Nor are the states required to take any specific management response if mortality exceeds the limits in the Conservation Strategy."
The decision also noted: "The state plans reveal that the states do not have the authority to fulfill their goal of regulating management outside the Primary Conservation Area. As the Service points out, much of the land outside the Primary Conservation Area is federally owned and is not subject to state control. The state plans recognize that the states have limited ability to manage grizzly bears outside the Primary Conservation Area. … Because the state plans are not enforceable in much of the area they are intended to manage, they do not serve as adequate regulatory mechanisms, and the Service erred in relying on them."
Molloy summarized the situation in this way: "The majority of the regulatory mechanisms relied upon by the Service – the Conservation Strategy, Forest Plan amendments, and state plans – depend on guidelines, monitoring, and promises, or good intentions for future action. Such provisions are not adequate regulatory mechanisms when there is no way to enforce them or to ensure that they will occur. Furthermore, the Service does not explain how various other laws and regulations will protect the grizzly bear population. The Service did not comply with the ESA in its consideration of the adequacy of existing regulatory mechanisms for purposes of delisting."
Molloy noted that whitebark pine is an important food source for grizzly bears in the Yellowstone region. He noted: "The identifiable best available science indicates that whitebark pines are expected to decline due to a variety of causes, including climate change, increased forest fires, the mountain pine beetle epidemic, and infection by white pine blister rust. Whitebark pine has already suffered significant declines throughout the Greater Yellowstone Area, with potentially hundreds of thousands of acres affected." While FWS predicts whitebark pine may suffer "local extinction and reduced overall distribution in the [Greater Yellowstone Area," some wilderness areas in the eastern portion of the Yellowstone region are expected to suffer fewer declines.
Molloy wrote: "Nonetheless, the Final Rule goes on to conclude that, even given the relationship between grizzly bear survival and whitebark pine availability, grizzly bears will not be threatened by the loss of whitebark pine. The Service argues the bears will adapt because they are opportunistic omnivores, and because there are already some years when whitebark pine is not widely available and bears must find alternate food sources."
He continued: "While a court must defer to an agency’s interpretation of science when reasonable, there is a disconnect between the studies the agency relies on here and its conclusions. In its briefs to this Court, the Service downplays the relationship between whitebark pine and grizzly bear survival, asserting that the best available science shows there is not as strong a relationship as once thought. However, the studies relied on by the Service belie this claim. These studies still state that there is a connection between whitebark pine and grizzly survival …".
Molloy wrote: "The agency has not articulated a rational connection between the best available science and its conclusion that bears will not be affected by declines in whitebark pine because they are omnivorous. While the Final Rule emphasizes that grizzly bears will be able to adapt to the decline of whitebark pines, the record contains scant evidence for this proposition."
Although GYC raised other issues why grizzly bears in the Yellowstone region shouldn’t be delisted, including concern for genetic diversity and population size, and recovery across the species’ historic range, the court did not side with GYC on these issues.
Injunction against delisting
Molloy’s decision included an injunction against FWS for implementing its delisting rule. He wrote: "The Final Rule in this case does not demonstrate that the Conservation Strategy and states plans are adequate regulatory mechanisms to maintain a recovered grizzly bear population. Without the protections of the ESA, the Yellowstone grizzly bear Distinct Population Segment will be placed in jeopardy. In addition, the record fails to support the Service’s conclusion that whitebark pine declines do not pose a threat to the Yellowstone grizzly bear DPS. The record shows the opposite: that declines could jeopardize grizzly bear survival. Because harm to the grizzly bear is likely to occur if the DPS is delisted, injunctive relief is appropriate."
The ruling ordered: "IT IS FURTHER ORDERED that the U.S. Fish and Wildlife Service is ENJOINED from removing the Yellowstone grizzly bear DPS from the list of threatened species. The Final Rule designating the Yellowstone DPS and removing the Yellowstone grizzly bear DPS from the list of threatened species is VACATED and REMANDED to the Service."
Click on the link below to read the entire order issued by Federal Judge Donald Malloy.
Griz Order - 9/21/09, US District Court, Missoula, Montana (217K PDF, 46 pages)