Marten Law: Ninth Circuit Finds Fish & Wildlife Failed to Adequately Account for Climate Impacts, and Keeps Yellowstone Grizzlies on ESA List

Jessica Ferrell   By Jessica K. Ferrell, Partner, Marten Law PLLC

"The Ninth Circuit Court of Appeals recently affirmed a Montana district court ruling that blocked the U.S. Fish & Wildlife Service (the "Service") from removing Yellowstone grizzly bears from the Endangered Species Act's (ESA) threatened species list. Greater Yellowstone Coalition, Inc. v. Servheen, 2011 U.S. App. LEXIS 23332 (9th Cir. Nov. 22, 2011)," writes Jessica Ferrell. "The opinion is noteworthy because it is based in large part on climate change impacts, and because the court did not defer to the agency despite considerable scientific uncertainty. The court vacated the Service's rule delisting the grizzly-resulting in the species' continued protection under the ESA-and sent the matter back to the Service for more review."

"The Service listed grizzly bears as threatened in 1975. At that time, approximately 1,000 grizzlies occupied only two percent of their historical range in the lower 48 states, and between 136 and 250 grizzly bears were left in the Greater Yellowstone Area," reports the author in this commentary. "In 1982, the Service completed its first grizzly bear recovery plan. Grizzly mortality began to decline in the Greater Yellowstone Area around 1983, and in 1993, the Service revised the Grizzly Bear Recovery Plan. This revision ultimately led to the creation of a 'Conservation Strategy,' under which a mixture of state and federal agencies were to guide management of the Yellowstone grizzlies. In 2007, federal wildlife officials estimated that over 580 grizzlies lived in the Greater Yellowstone Area alone. The population continued to grow afterwards, but has dropped slightly over the past few years due to high grizzly mortality levels since 2008."

Grizzly Bear in Yellowstone National Park

"In response to population gains during the beginning of the last decade, in November 2005, the Service proposed designating the Yellowstone grizzlies as a Distinct Population Segment (DPS) and removing the DPS from the ESA list of threatened species. The Service issued its Final Rule on March 29, 2007. The Service concluded that the Yellowstone Grizzly DPS warranted DPS status because Yellowstone grizzlies were 'markedly separated' from the other grizzly bear subpopulations," explains Ferrell, a partner at Marten Law. "It also delisted the Yellowstone Grizzly DPS, concluding that, '[b]ased on the best scientific and commercial information available,' the Yellowstone Grizzly DPS 'is recovered and no longer meets the [ESA's] definition of threatened or endangered.' In 2007, an environmental group, the Greater Yellowstone Coalition (GYC), challenged the Service's decision to remove the Grizzly DPS from the ESA list."

Marten Law Group attorney Jessica Ferrell focuses her practice on environmental and natural resource litigation. Jessica represents clients on a broad range of environmental matters in litigation arising under state and federal environmental laws. She has special expertise in endangered species and marine resource issues.

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