Introduction

Since the inception of the Endangered Species Act (ESA) in 1973, roughly 2,300 plant and animal species have been listed as threatened or endangered,[1]but only fifty-three have been officially delisted due to recovery.[2]  That trend is beginning to shift dramatically, however, as many species are now beginning to show signs of recovery after enjoying decades of protection.  Of the fifty-three species delisted since 1973, over half (thirty-six) were delisted in the last ten years alone.[3]  But this wave of recovery has not come without administrative headaches for the U.S. Fish and Wildlife Service (FWS).  While the agency has successfully delisted a record number of species recently, it has also faced a record number of delisting failures.  Since 2008, federal courts have vacated twelve attempts by the FWS to delist various animal species.[4]  In other terms, roughly 25% of the FWS’s attempts to delist a threatened or endangered species in the last ten years have resulted in significant time and resources being diverted from conservation efforts to sunk legal costs.

A majority of these delisting failures, in one way or another, has wrestled with a vexing nuance of the ESA’s statutory language: “distinct population segment” (DPS), a jargonized sub-term lumped into the ESA’s definition of what constitutes a “species.”[1]  Essentially, this term allows population segments that are sufficiently discrete and significant to be considered their own “species” within the context of the ESA, despite belonging to a larger taxonomical species.[2]  But the process of delisting a DPS has been the source of ongoing confusion and litigation,[3]the most recent example being the FWS’s failed attempt to delist the Greater Yellowstone Ecosystem (GYE) grizzly bear population, which was vacated in 2018 by the United States District Court for the District of Montana in the case of Crow Indian Tribe v. United States.[4]

As more and more DPS-classified species will undoubtedly be ripe for delisting in the coming years, this paper attempts to clarify what federal courts have made murky on the topic of DPS policy.  Using grizzly bears and the Crow Indian Tribe case as a lens, this paper is organized around the process of declaring a population segment as a DPS, then subsequently delisting that DPS.  Part I outlines the grizzly bear’s legal status under the ESA, leading up to the Crow Indian Tribe law suit. Part II analyzes the process of declaring a population segment as a DPS.  And Part III details how a valid DPS ought to be delisted. In each part, this paper corrects where the court went wrong in Crow Indian Tribein an effort to provide greater clarity on the subject for both federal courts and the FWS moving forward.

 

As a final introductory note, I wish to make clear what this paper is not set out to accomplish.  Grizzly bears are charismatic creatures who invoke passionate arguments from many competing perspectives, from ranchers to animal welfare activists.  This is especially true today in the wake of an extremely violent year of human-bear conflict. Grizzly bears killed a record number of humans,[5]and human-related causes killed a record number of grizzly bears in 2018.[6]  But this paper is not about conservation strategies.  It is not about the ethics of hunting, the risks of habitat loss, or even whether it is a good or bad idea to delist the grizzly bear.  This paper has a narrow, sober interest in providing greater clarity to the issue of delisting a DPS, of which the GYE grizzly bear population is a prime example.  The ultimate conclusion of this paper—that the GYE grizzly bear population is a valid DPS deserving its own independent status review for removal from the list of threatened species—is a conclusion based not in policy, but in law.

Part I: The Legal Status of Grizzly Bears in the United States

1. A Brief History of Grizzly Bears

The story of grizzly bears in colonized America starts with Lewis and Clark.  As the crew trail blazed through modern-day Montana on their way to the Pacific coast, just beyond the Yellowstone River’s departure with the Missouri, they encountered a bear unlike anything they had seen before.  At nearly twice the size of the black bears common to the Eastern United States, and far more aggressive, “it was a most tremendious looking anamal,” recorded Lewis, “and extreemly hard to kill.”[7]  Indeed, they confronted a grizzly bear, or ursus arctos horribilis—literally horrible bear.  At the time, grizzly bears roamed throughout much of North America.[8]  From Mexico to Alaska, their versatile diet and adaptability to climate allowed them to thrive in diverse ecosystems ranging from deserts to high alpine mountain tops to mid-western planes.[9]  Undeniably, the grizzly bears’ sheer existence presented a significant barrier to westward expansion.[10]

 

But as pioneers incessantly move west, government-funded bounty programs and unprecedented colonization quickly devastated the grizzly bear population.[11]  Trails turned into highways and camps grew into cities, carving out only the most remote lands for grizzly bears to inhabit.  In the lower-48 states alone, a contiguous population of roughly 50,000 grizzly bears was reduced to only a few hundred, scattered across several isolated population segments.[12]  By the 1920s, the California grizzly bear—an enduring symbol for the state—was extinct.[13]  By the 1930s, grizzly bears only inhabited less than two percent of their historical range in the lower-48 states.[14] Today, McCone County, Montana, where Lewis and Clark killed their first grizzly bear, is bear-less.[15]

1. The ESA’s Protection of Grizzly Bears

The impending extinction of many iconic species, like the grizzly bear, inspired the adoption of the ESA in 1973.[16] The law created two categories, or lists, of species deserving of federal protection: “endangered” species, which are “in danger of extinction throughout all or a significant portion of its range;” [17]and “threatened” species, which are “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”[18]

 

The FWS is one of a few agencies charged with determining when a plant or animal species is endangered or threatened.[19]  To do so, the FWS may consider five factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence.[20]

If a species is determined to be either threatened or endangered, given the above criteria, the species is listed in the Federal Register[21]and receives wide-spread protection against possessing, killing, selling, importing, or exporting of its members.[22]

 

The ESA also requires the FWS to review the list of endangered and threatened species every five years to determine whether any species should “(i) be removed from such list; (ii) be changed in status from an endangered species to a threatened species; or (iii) be changed in status from a threatened species to an endangered species.”[23]  To make these determinations, the FWS is to rely on the same five factors considered to list a species. For both enlisting and delisting analysis, the FWS is required to rely on “the best scientific and commercial data available[.]”[24]

 

The term “species” takes on a unique definition within the ESA of especial importance to this paper and the discussion of grizzly bears.  “Species” includes “any subspecies of fish or wildlife or plants, and … any distinct population segmentof any species of vertebrate fish or wildlife which interbreeds when mature.”[25]  The ESA does not define “distinct population segment” (DPS), but the FWS has issued guidance on the term.[26]  In sum, a population segment’s DPS status is determined by the discreetnessand significanceof the population segment compared with the species as a whole.[27]  To be considered discreet, the population segment in question must be “markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors[.]”[28]  To be considered significant, four factors are generally considered:

 

1. Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon,
2. Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon,
3. Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or
4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.[29]

 

Thus, when a “species” is listed as endangered or threatened, it’s not necessary for the entire taxonomical species to be listed—a portion that is a qualifying DPS may be listed while the rest of the taxon remains unprotected or under a different protection status.

The grizzly bear was listed as a threatened species in 1975, two years after Congress enacted the ESA.[30]  But the FWS did not enlist the grizzly bear writ large—it listed “the Grizzly Bear of the 48 Coterminous States.”[31]  This specification carries two significant implications.  First, it excludes any grizzly bears found in the state of Alaska, even though they are of the same taxonomical species; second, this specification lumped together several grizzly bear population segments in the lower-48 states as one “species,” despite their isolation from one another.  In doing so, the FWS did not go so far as to declare the population segments as official DPSs but recognized that each population would require individualized attention.[32]

 

Since 1982, the FWS has focused on six recovery ecosystems for grizzly bears in the lower-48 states, each with its own recovery plan and goals: (1) the Greater Yellowstone Ecosystem (GYE), covering the converging area of Montana, Wyoming, and Idaho; (2) the Northern Continental Divide Ecosystem (NCDE) of northern Montana, reaching up to the Canadian border; (3) the Cabinet-Yaak area (CYE), stretching from northwest Montana into Idaho; (4) the Selkirk Mountains (SE) of northern Idaho and northeast Washington; (5) the North Cascades area (NCE) in north-central Washington; (6) the Bitterroot Mountains (BE) straddling the Idaho-Montana border.[33]

 

By the 2000s, grizzly bears were widely seen as a conservation success story and evidence of the ESA’s efficacy.[34]  With only a few hundred bears left in 1975, after decades of protection there are now nearly 2,000 grizzly bears in the lower-48 states.[35]  However, recovery has not been equal throughout the six recovery zones.  While the GYE population more than tripling its population and range, and the NDCE population grew to over 900 bears, the other recovery zones have remained relatively stagnant.[36] The SE still only hosts an estimated 90 bears, and the CYE about 50.[37]  The NCE has fewer than 20 bears, if any at all (the last confirmed sighting of a bear was in 1996), and the BE is not known to have any grizzly bears.[38]

 

In 2007, after extensive research in the years prior, the FWS determined that the GYE grizzly bear population was a valid DPS and that as a DPS had fully recovered.[39]  Accordingly, the FWS removed the GYE grizzly bear from the threatened species list.[40]  But in 2009 the U.S. District Court for the District of Montana vacated the FWS’s delisting because the FWS had not adequately analyzed the potential effects of whitebark pine decline on the GYE grizzly bear population.[41]

 

After conducting more thorough research on the effects of whitebark pine on the GYE grizzly bears, the FWS ultimately determined that “the best scientific and commercial data available regarding grizzly bear responses to food losses suggest [that the potential loss of whitebark pine] is not a threat to the GYE grizzly bear population and is not an impediment to long-term population persistence.”[42]  Having satisfied the demands of the federal court, the FWS again declared the GYE grizzly bear population a DPS and subsequently removed the DPS from the threatened species list in June 2017.[43]

1. Crow Indian Tribe v. United States

Upon the FWS’s delisting of the GYE grizzly bear population in 2017, the Crow Indian Tribe and several animal welfare groups challenged the effort in the U.S. District Court for the District of Montana.  The plaintiffs’ primary argument was that the FWS erred in delisting the GYE grizzly bear population because it “failed to consider how reduced protections in the Greater Yellowstone Ecosystem would impact the other grizzly populations.”[44]  In other words, grizzly bears in the GYE are significantly important to the continued recovery of the other grizzly bear populations in the continental United States; thus, they should not be removed from the list of threatened species until the entire species has made a recovery in the other recovery zones.  The court sided with the plaintiffs, vacating the delisting of the GYE grizzly bear population and reinstating their status as a threatened species.[45]

 

While this reasoning might sound persuasive as a matter of conservation policy to some, it maintains a fundamentally flawed interpretation of the law.  The main problem with the court’s analysis in Crow Indian Tribeis that it conflates two processes as if they were one: the process of declaring a DPS, and the process of delisting a species, which, by definition, includes any DPS.  Each action requires independent analysis and neither requires the FWS to evaluate “the impact of delisting [the GYE grizzly bear population] on grizzlies living outside the Greater Yellowstone Ecosystem.”[46]  That demand is simply nowhere to be found in any statutory language, policy guideline, or common law.  In fact, this reasoning is nearly the opposite of what the ESA demands: when a population segment is deemed to be a valid DPS, it is no longer part of the wider taxonomical “species” for purposes of the ESA.[47]  Any DPS is considereda species in and of itself and ought to be givenindependent delisting consideration.[48]  Parts II and III of this paper analyze the processes of DPS evaluation and delisting consideration in turn.

 

Part II: Declaring a Valid DPS

In order to delist a DPS, the FWS must first determine whether a population segment is in fact a valid DPS.  If it is not, then the population segment is still part of the larger taxonomical species and cannot be considered for delisting without analyzing the status of the entire species.

The term “distinct population segment” is not defined in the ESA nor in any other regulation.  The only clear definition of the term is spelled out in a 1996 policy statement issued by FWS, which provides guidelines for declaring a DPS.[49]  To determine if a population segment constitutes a DPS, as mentioned in Part I but more fully articulated here, the FWS examines two factors: “(1) [d]iscreteness of the population segment in relation to the remainder of the taxon to which it belongs; and (2) the significance of the population segment to the taxon to which it belongs.”[50]  Each factor will be analyzed in turn and applied to the GYE grizzly bear population.

1. Discreteness

A population segment is considered “discrete” if it satisfies either of the following conditions:

(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors.  Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.

(2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.[51]

 

For the purposes of grizzly bears in the continental United States, particularly the GYE population, this second factor is irrelevant as the entire population segment is contained within the U.S. boarders.  Thus, the discreteness of the GYE grizzly bear population segment turns on the first condition, whether it is “markedly separated from other populations of the same taxon.”[52]

 

The purpose behind the discreteness standard is to limit DPS status to population segments that can be “adequately defined and described.”[53]  In other words, there must be a clear and obvious natural boundary around the population segment that makes it markedly separate from the other members of its species.  It is not okay to draw arbitrary borders around populations for purposes of declaring a DPS. Without such a standard, conservation strategies will not be effective because they will be directed at “entities believed to be significant but around which boundaries cannot be recognized.”[54]

 

But this standard does not require absolute isolation of a population segment “because this can rarely be demonstrated in nature for any population of organisms.”[55]  The discreteness standard even “allows for some limited interchange among population segments considered to be discrete.”[56]  Concerning the genetic makeup of a valid DPS, the FWS has made it clear that a DPS does not need to be genetically distinct from other members of the taxon:

Restricting [DPS] listings to full taxonomic species would render the Act’s definition of species, which explicitly includes subspecies and DPS’s of vertebrates, superfluous.  Clearly, the Act is intended to authorize listing of some entities that are not accorded the taxonomic rank of species, and the Services are obliged to interpret this authority in a clear and reasonable manner.[57]

 

The GYE grizzly bear population is sufficiently discrete according to these criteria.  Grizzly bears in the GYE have been “physically separated from other areas where grizzly bears occur for at least 100 years.”[58]  What is more, this level of isolation is not likely to change in the near future.  The GYE is the southernmost population of extant grizzly bears, and the closest neighboring population is the NDCE, whose southernmost reach is nearly 100 miles from the GYE.[59]  The grizzly populations in both ecosystems have slowly expanded over the past several decades, but “there is currently no known connectivity between these two grizzly bear populations.”[60]  This is in large part due to the significant man-made barriers that lie between the two populations: grizzly bears would have to navigate their way through the cities of Helena, Butte, and Bozeman, crossing Interstates 90 and 15 along with other major highways to connect with one another.  To date, “grizzly bears from the GYE have not been documented north of Interstate 90.”[61]  If this does not amount to being “markedly separated from other populations of the same taxon,” it is unclear whether any population segment of any species could ever be deemed sufficiently discrete.

1. Significance

If a population segment is determined to be discrete under the criteria above, the next step is to determine whether the discrete population segment is significant to the taxon to which it belongs.  The FWS provides a non-exhaustive list of factors to consider in this analysis:

(1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon.

(2) Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon.

(3) Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range.

(4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.[62]

 

Note that this standard embodies two meanings of the word “significant”: (1) that the population segment is significant in a statistical sense, that it is not a trivial or minuscule segment of the taxon; or (2) that the population segment is significant in the sense that it is an important segment of the overall species, that its loss would be of significant consequence to other population segments of the taxon.  Significance in either sense is sufficient. The purpose of this standard is to balance out the requirement that a population segment be discrete, such that “well-defined but insignificant units” are excluded from being deemed a DPS.[63]

 

The GYE grizzly bear population is obviously significant to the taxon to which it belongs—the population constitutes nearly half of all grizzly bears in the lower-48 and its loss would be devastating to the wellbeing of the overall taxon.  And here is where the court’s analysis in Crow Indian Tribeis completely backward.  The court insists that it was arbitrary and capricious to delist the GYE grizzly bear population without considering the impact such delisting would have on the remaining continental grizzly bear populations for purposes of genetics.[64]  In doing so, the court persistently reaffirms the significance of the GYE grizzly population as it relates to the overall taxon.[65]  But rather than seeing that significance as evidence that the GYE population is a qualifying DPS, the court seems to hold that because ofthe GYE population’s significance it cannot be severed from the larger classification of the 48 coterminous states grizzly bear.[66]  This reasoning embodies the exact opposite of the ESA’s DPS policy.  It is a population segment’s significance, coupled with discreteness, that qualifiesit as a DPS; not disqualifiesit.  Nowhere in the DPS guideline is there a requirement that the FWS consider how designating a population segment as a DPS would affect other population segments.  The analysis is to be limited to a determination of discreteness and significance.

 

Part III: Delisting a Valid DPS

Once a population segment has been determined to be a qualifying DPS, that segment is then considered to be a species of its own within the context of the ESA.[67]  Thus, it is deserving of its own independent status review to determine if the DPS is threatened, endangered, or neither.  The sections below outline the legal framework for these considerations and attempt to clarify where the court went wrong in its evaluation of the GYE grizzly bear delisting in Crow Indian Tribe.  This becomes difficult at times because, as previously noted, the court conflated the processes of DPS designation and delisting consideration—rather than review each process separately, the court merely concluded that the FWS acted arbitrarily and capriciously.  Nevertheless, several of the court’s arguments seemed to be aimed directly at the delisting process, and these arguments will be highlighted.

1. Delisting a Valid DPS Under the Framework of the APA

The court in Crow Indian Tribeheld that the FWS’s delisting of the GYE grizzly bear population was a violation of the Administrative Procedure Act (APA).[68]  Because the ESA does not provide a provision for judicial review of an agency action, the APA provides the court with jurisdiction to “hold unlawful and set aside agency action, findings, and conclusions found . . . to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[69]  More specifically, [a]n agency’s decision can be set aside only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, . . . offered an explanation that runs counter to the evidence before the agency[,] or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.[70]

 

This standard is intended to be “narrow” and does not allow the court to substitute its judgement “for that of the agency” whose action is under review.[71]  In Crow Indian Tribe, the court held that “[b]y delisting the Greater Yellowstone grizzly without analyzing how delisting would affect the remaining members of the lower-48 grizzly designation, the [FWS] failed to consider how reduced protections in the Greater Yellowstone Ecosystem would impact the other grizzly populations. Thus, the Service ‘entirely failed to consider an important aspect of the problem.’”[72]

 

The issue with this reasoning is the court’s determination of what “the problem” is, precisely.  The court insists that the problem is the conservation of all grizzly bears in the lower-48, but here again the court is conflating the separate issues of DPS designation and delisting consideration.  Once a population segment is deemed to be a valid DPS, it is considered its own species within the meaning of the ESA and thus has its own problems to be evaluated. These “problems” are the factors enumerated in section 4(a)(1) of the ESA used to determine if a given species is endangered, threatened, or neither:

 

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; and

(E) other natural or manmade factors affecting its continued existence. [73]

 

Note that the only possessive noun in these factors limits the analysis to the specific species or DPS in question: “its habitat,” “its continued existence.”  None of the factors asks the FWS to consider any implications listing or delisting might have on any other species or DPS.  What is more, the list of factors is exhaustive. While the factors for significance in DPS analysis are introduced with the phrase “[t]his consideration may include, but is not limited to, the following,”[74]the phrase introducing the factors considered for listing and delisting is limited to “any of the following factors.”[75]  Just as it would be inappropriate to allow the wellbeing of struggling salmon populations to prevent the delisting of the bald eagle, it is statutorily incorrect to consider the effects of delisting a grizzly bear DPS on other grizzly bear populations.  For the FWS to do so would be to rely “on factors Congress did not intend it to consider”—a genuine violation of the APA.[76]

1. “Policy ofi nstitutionalized caution”

When determining if a population segment is significant, the FWS’s guidelines emphasize the Congressional caution that the FWS use the power to enlist species “sparingly and only when the biological evidence indicates that such action is warranted.”[77]  The court in Crow Indian Tribe strongly reemphasized this point while also stressing the ESA’s “policy of institutionalized caution” to suggest that it was improper to delist the GYE grizzly bear population without considering the effects that would have on the remaining continental grizzly bear populations.[78]

 

There are two problems with the court’s interpretation of these policies. First, the statements are taken out of context.  The court suggests that the “sparingly” language regards the delisting process when it does not. Congress, and the FWS in their subsequent guideline referencing Congress’s advice, was cautioning over the power to enlist species as endangered or threatened.[79]  The full quotation reads: “Nonetheless, the committee is aware of the great potential for abuse of this authority and expects the FWS to use the ability to list populations sparingly and only when the biological evidence indicates that such action is warranted.”[80]  This quotation comes after Congress gives an example of an abuse of the enlisting power where a squirrel is hypothetically listed as an endangered DPS in a city park despite the abundance of squirrels in other nearby parks.[81]  This suggests that the Congressional caution the court emphasizes in Crow Indian Tribe with regard to DPS analysis actually tips in favor of not listing, rather than listing.

 

Second, while the court doubled down on the “sparingly” and “institutionalized caution” language, it completely ignored the other purpose of the DPS policy: practicality.  As the FWS notes, a DPS classification allows for protection and recovery of declining organisms in a more timely and less costly manner, and on a smaller scale than the more costly and extensive efforts that might be needed to recover an entire species or subspecies.  The [FWS’s] ability to address local issues (without the need to list, recover, and consult rangewide) will result in a more effective program.[82]

 

This level of flexibility will be especially useful for grizzly bear conservation in the lower-48 states.  Consider what could happen if the court’s reasoning was correct in Crow Indian Tribe: the GYE grizzly bear population may very well remain on the threatened species list forever.  As mentioned, grizzly bear recovery has been disparate among the recovery zones.[83]  While the GYE population has achieved the recovery goals set out by the FWS, the Bitterroots remain desolate.  By the court’s logic, the GYE population segment can never be delisted so long as the Bitterroots remain bear-less.  But the Bitterroots could never see grizzly bears again, frankly. And even if they do happen to revitalize, seeded by an experimental transplant of bears, perhaps, full recovery will be decades away.  Meanwhile, the recovered GYE grizzly bear population will remain on the threatened species list.

 

But indefinite federal protection of healthy grizzly bear populations may not always be in the best interest of grizzly bears or humans.  As long as the GYE population remains a threatened species, the ESA requires the federal government to fund ongoing research and maintenance of the population.[84]  Instead of concentrating time and money on the recovery zones needing the most attention, like the Bitterroots, these efforts are diverted to the already healthy and recovered population in the GYE.  Moreover, indefinite federal protection risks increasing human-bear conflict among healthy grizzly bear populations. The GYE and NDCE cannot host an unlimited number of bears, and scientists estimate that each recovery zone is nearing or has reached its carrying capacity for resident grizzlies.[85]  But as the bear continues to receive ESA protection against any taking, and continues to grow in numbers, grizzly bears will be forced to move into areas outside the recovery zone boundaries.  This may seem innocuous, or even positive, but outside the recovery zone boundaries, grizzly bears are more likely to come in conflict with humans, and “[w]hen bears kill people or damage property, bears lose.”[86]  In 2018, for example, a record number of fifty-one grizzly bears were killed in the NDCE (the previous record was 34 deaths in 2011).[87]  Vehicle collisions were the biggest culprit, taking 17 grizzly bears as the population is being pushed beyond the recovery boundaries and across busy roads (this amounts to nearly half of all grizzly deaths by vehicle in the last 13 years, by the way).[88]

 

Allowing a fully recovered qualifying DPS to be delisted, while the remaining populations continue to receive federal protection is exactly what Congress intended when it included the designation of DPS within the scope of the term “species.”  As the FWS has stated, “[i]t may be appropriate to assign different classifications to different DPS’s of the same vertebrate taxon.”[89]  Flexibility will foster recovery; not rigidity.

1. “Balkanization”

Central to the court’s opinion in Crow Indian Tribe was an argument borrowed from the DC Circuit Court in Humane Society of the United States v. Zinke: “[t]he [FWS]’s power is to designate genuinely discrete population segments; it is not to delist an already-protected species by balkanization.”[90]  The court insisted that by cleaving the GYE grizzly bear population from the remaining populations in the lower-48 “the [FWS] is engaged in a process of real-time ‘balkanization.’”[91]  The court based this opinion on the DC Circuit’s analysis that

when a species is already listed, the Service cannot review a single segment with blinders on, ignoring the continuing status of the species’ remnant. The statute requires a comprehensive review of the entire listed species and its continuing status. Having started the process, the Service cannot call it quits upon finding a single distinct population segment.[92]

 

However, the Montana District Court opinion severely wrests the words of the DC Circuit Court.  Humane Society dealt with the FWS’s attempt to declare the Western Great Lakes (WGL) population of gray wolves a DPS and simultaneously delist that DPS, much like the delisting of the GYE grizzly bear.  But the WGL gray wolf delisting had a fatal flaw: “In designating the Western Great Lakes wolves as a distinct population segment, the [FWS] … ignor[ed] the second step of determining whether both the segment and the remainder of the already-listed wolves would have mutually independent statuses as species.”[93]  In other words, [w]hen the [FWS] attempted to carve the Western Great Lakes segment … it left the remnant of that already statutorily-protected group [of gray wolves] in legal limbowithout any determination that the gray wolves in the continental United States outside of the Western Great Lakes segment were themselves a species, subspecies, or segment that could continue to be protected under the Endangered Species Act. … Absent such a determination, the Service has left entirely unexplained how the remaining wolves’ existing endangered status would continue. Nor did the Service make any finding that the remnant was no longer endangered under the statutory listing criteria.[94]

 

This was found by the DC Circuit Court to be a conniving maneuver by the FWS to effectively delist all gray wolf populations from ESA protection.[95]  By carving out the WGL population as a DPS and refusing to clarify the legal status of the other gray wolf populations, the remnant populations were suddenly undefinable as a species.[96]  “Certainly ‘gray wolves outside the Western Great Lakes segment’ have never been recognized as a taxonomic species.”[97]  The FWS was then poised to “conclude that the current C. lupus [gray wolf] entity is not a valid species under the Act and [proposed] to remove this entity from the List [of endangered species].”[98]  This behavior is what the DC Circuit considered “balkanization.”[99]

Thus, when the District Court of Montana references the DC Court’s language that “[t]he statute requires a comprehensive review of the entire listed species and its continuing status,” that language does not imply that the decision to delist the GYE grizzly bear DPS must consider what impact delisting would have on the entire listed species’ recovery; it only requires the FWS to address the impact that extraction of the DPS would have on the legal status of the remaining grizzly bears in the lower-48.  And the FWS addressed this issue explicitly in its final rule delisting the GYE population: “When this rule becomes effective, all areas in the lower 48 States outside of the GYE DPS boundary will remain protected as threatened under the Act.”[100]  The intention behind delisting the GYE grizzly bear was to delist a genuinely discrete DPS; not delist the entire grizzly bear population by stratagem or balkanization.

 

There is a potential counter argument on this point worth noting.  If the FWS is allowed to successively cleave off DPSs that are considered to be recovered, eventually there will only be very small population segments left, and it might be difficult to justify a population of, say, twenty or fewer grizzly bears as being significant enough to constitute a valid DPS, thus leaving the population in potential legal limbo.[101]  But here is where the duel meaning of “significant” noted in Part II, section B, comes into play.  It is not necessary for a population to only be significant in terms of quantity—a population segment may be considered significant in the sense that it is an important segment of the overall species.  Consider again factor (2) of the significance evaluation: “Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon.”[102]  If, hypothetically, the GYE and NDCE populations of grizzly bears were deemed to be valid DPSs and removed from the threatened species list, the remaining recovery zone populations would still constitute significant population segments because their loss would result in a significant gap in the overall range of the taxon.  The Bitterroot, Cabinet-Yaak, Selkirk, and North Cascades will always represent significant population segments of the grizzly bear population in the lower-48, regardless of the legal status of the GYE and NDCE populations. The FWS simply needs be explicit about their continuing legal status as DPSs are cleaved from the larger taxon.

1. Declaring and Delisting a DPS in One Fell Swoop

As a final note on the delisting process of a DPS, there is a procedural hang-up that deserves clarification.  When the FWS delisted the GYE grizzly bear population it did so by declaring the GYE population to be a valid DPS and delisting that DPS in one fell swoop.  Until recently, it was unclear whether the ESA and the APA allowed such a maneuver, and some federal courts struck down the FWS’s attempt to do so with certain gray wolf populations.[103]  As the argument goes, the authority to designate a DPS is only a “one-way ratchet” allowing the FWS to provide more, but not less, protection to a qualifying population segment.[104]

However, this argument was put to rest in Humane Society.  In that case, the DC Circuit Court admitted that the statutory text is murky on the issue, but ultimately held that “the Endangered Species Act allows the identification of a distinct population segment within an already-listed species, and further allows the assignment of a different conservation status to that segment if the statutory criteria for uplisting, downlisting, or delisting are met.”[105]  Thus, the FWS is fully within its authority to cleave out a qualifying DPS from an already-listed species and conduct independent status review of that DPS without regard to the recovery status of the remaining listed species.

 

Conclusion

The holding of Crow Indian Tribe is wrong.  The GYE grizzly bear population is a valid DPS that deserves its own ESA status review, independent of the recovery status of the remaining continental grizzly bear populations.  The GYE’s long separation from any other members of its taxon, coupled with the undeniable significance of the population, qualify the population segment as a genuinely discrete, valid DPS.  What is more, the ESA considers a DPS to be a “species” in and of itself, and the statutory language is phrased in such a way that each species is to receive its own status review, which analyzes the challenges unique to the species in question.

 

As more and more endangered or threatened species begin to show signs of recovery after receiving decades of protection from the ESA, a correct understanding of DPS policy among the federal courts and the FWS will be vitally important to ongoing conservation efforts.  Immense amounts of time and money have been wasted in litigation in recent years that ought to be spent conserving the most vulnerable species populations. The road to recovery is long and winding, but it is unnecessary for that journey to include so many pit stops at the local federal courthouse.

We posted this article as part of the Environmental Law Review Syndicate, a collaborative effort of the nation’s leading environmental law journals that aims to provide a new outlet for student scholarship and foster dialogue between schools. It originally appeared on the Virginia Environmental Law Journal’s website.To cite this article, use the following format: [Author], [Title], [ORIGINAL JOURNAL NAME] ([Date]), syndicated on ENVTL. L. REV. SYNDICATE, [Original URL].

[1]16 U.S.C.S. § 1532 (16).

[2]Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act., Fed. Reg. 4722 (Feb. 7, 1996) [hereinafter DPS Policy].

[3]See note 4.

[4]2018 U.S. Dist. LEXIS 163319, 48 ELR 20168, 2018 WL 4568418 (D. Mont. Sep. 24, 2018).

[5]Valérie Théorêt, Adele Roesholt, Anthony David Montoya, Mark Uptain, Mike Soltis were each killed by grizzly bears in 2018, a record number of fatal bear attacks in one year; see Sidney Sullivan, MAP: Fatal Bear Attacks in North America, KTUU (Jul. 5, 2017, 2:30 PM), https://www.ktuu.com/content/news/MAP-Fatal-Bear-Attacks-in-North-America-432734333.html.

[6]SeeLaura Lundquist, 51 Grizzly Bear Deaths in 2018, a Record for Northern Rockies(Nov. 20, 2018), https://www.missoulacurrent.com/outdoors/2018/11/grizzly-bear-deaths-2/.

[7]Meriwether Lewis, Journals (May 5, 1805).

[8]Removing the Greater Yellowstone Ecosystem Population of Grizzly Bears From the Federal List of Endangered and Threatened Wildlife, 82 Fed. Reg. 30502, 30508 (June 30, 2017) [hereinafter Final Rule].

[9]Id. at 30505-08.

[10]Id. at 30508.

[11]Id.

[12]Id.

[13]SeeBrett Johnson, Grizzly Bear Hunt in Santa Paula Backcountry Reaps State Flag Icon, Tall Tales, Ventura County Star (Aug. 9, 2014), http://archive.vcstar.com/news/special/outdoors/great-grizzly-bear-hunt-in-santa-paula-backcountry-reaps-state-flag-icon-tall-tales-ep-543959500-351277721.html.

[14]Final Rule at 30508.

[15]SeeAppendix 1 (grizzly bear distribution is limited to the areas highlighted).

[16]See, e.g., 16 U.S.C. § 1531(a)(1); Tennessee Valley Auth. v. Hill, 437 U.S. 153, 183-84 (1978) (quoting 119 Cong. Rec. 42,913 (1973)) (“[T]he continental population of grizzly bears . . . may or may not be endangered, but . . . is surely threatened . . . . Once this bill is enacted, . . . [t]he agencies of Government can no longer plead that they can do nothing about it. They can, and they must. The law is clear.”)

[17]16 U.S.C. § 1532(6).

[18]Id. at (20).

[19]50 C.F.R. § 402.01(b) (“The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) share responsibilities for administering the Act”).

[20]16 U.S.C. § 1533(a)(1).

[21]Id. at (c)(1).

[22]16 U.S.C. § 1538(a).

[23]16 U.S.C. § 1533(c)(2).

[24]Id. at (b)(1)(A).

[25]16 U.S.C. §1532(16) (emphasis added).

[26]See generallyDPS Policy.

[27]Id.

[28]Id. at 4,725.

[29]Id.

[30]Amendment Listing the Grizzly Bear of the 48 Coterminous States as a Threatened Species, 40 Fed. Reg. 31,734 (July 28, 1975).

[31]Id.

[32]Final Rule, 82 Fed. Reg. at 30,508-09.

[33]Id.; see Appendix 1.

[34]See, e.g., Nat’l Park Service, Grizzly Bears and the Endangered Species Act (last updated Oct. 5, 2018), https://www.nps.gov/yell/learn/nature/bearesa.htm (“The growth and expansion of the grizzly bear population in the Greater Yellowstone Ecosystem (GYE) is a remarkable conservation success story…. Scientists think the Yellowstone area population is recovered and may have reached its capacity for resident grizzlies in many areas of the ecosystem”).

[35]Id.; see also Final Rule at 30,509.

[36]Final Rule at 30,509.

[37]Id.

[38]Id.

[39]72 Fed. Reg. 14,866 (Mar. 29, 2007).

[40]Id.

[41]Greater Yellowstone Coalition v. Servheen, et al., 672 F.Supp.2d 1105 (D. Mont. 2009).

[42]Final Rule at 30,502.

[43]See generallyFinal Rule.

[44]Crow Indian Tribe v. United States, 2018 U.S. Dist. LEXIS 163319, 48 ELR 20168, 2018 WL 4568418 (D. Mont. Sep. 24, 2018), at *11. The plaintiffs also had a second, equally weighty argument that “the [FWS] acted arbitrarily and capriciously in its application of the five-factor threats analysis demanded by the ESA” (Id. at *10), but because this second argument is fundamentally a question of interpreting scientific data concerning grizzly bear genetics and is unique to the circumstances of the case, the focus of this paper is on the first argument, which carries broad implications for DPSs generally.  The court found for the plaintiffs on both grounds, however.

[45]Id. at *9.

[46]Id. at *40.

[47]DPS Policy at 4722.

[48]Id.

[49]See generally DPS Policy.

[50]Id. at 4725.

[51]Id.

[52]Id.

[53]Id. at 4724.

[54]Id.

[55]DPS Policy at 4724.

[56]Id.

[57]Id. at 4723.

[58]Final Rule at 30,518.

[59]Id.

[60]Id. And even if there was limited interaction between these populations one day, remember that the discreteness standard allows for such limited interaction between a DPS and other members of the taxon.

[61]Id.

[62]DPS Policy at 4725.

[63]Id. at 4724.

[64]Crow Indian Tribe v. United States, 2018 U.S. Dist. LEXIS 163319, 48 ELR 20168, 2018 WL 4568418 (D. Mont. Sep. 24, 2018), at *59.

[65]See generally id.

[66]See, e.g.,id. at *22 (“the ESA obligates the [FWS] to analyze how the delisting of the Greater Yellowstone grizzly affects other continental grizzly populations, which may depend on the Greater Yellowstone grizzly for continued genetic health).  This also highlights another flaw in the court’s reasoning: the court repeatedly scolded the FWS for failing to consider the significance the GYE population holds in relation to the other grizzly populations while ignoring the fact that the FWS did perform such an evaluation in the DPS analysis.

[67]16 U.S.C. §1532(16).

[68]Id. at *59.

[69]5 U.S.C. § 706(2)(A).

[70]Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012) (citations and internal quotation marks omitted).

[71]Id.

[72]Crow Indian Tribe v. United States, 2018 U.S. Dist. LEXIS 163319, 48 ELR 20168, 2018 WL 4568418 (D. Mont. Sep. 24, 2018), at *10-11 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983)).

[73]16 U.S.C. § 1533(a)(1); see also DPS Policy at 4725 (“[i]f a population segment is discrete and significant (i.e., it is a distinct population segment) its evaluation for endangered or threatened status will be based on the Act’s definitions of those terms and a review of the factors enumerated in section 4(a)”).

[74]DPS Policy at 4725.

[75]16 U.S.C. § 1533(a)(1).

[76]See note 70.

[77]S. Rep. No. 96-151, at 1397 (1979).

[78]Crow Indian Tribe v. United States, 2018 U.S. Dist. LEXIS 163319, 48 ELR 20168, 2018 WL 4568418 (D. Mont. Sep. 24, 2018), at *35 (quoting Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1167 (9th Cir. 2011)).

[79]S. Rep. No. 96-151, at 1397 (1979).

[80]Id. (emphasis added).

[81]Id. at 1396-97.

[82]DPS Policy at 4725.

[83]Seenote 37-39.

[84]See 16 U.S.C. § 1533(c)-(i).

[85]SeeFinal Rule at 30,506-09

[86]National Park Service, Grizzly Bears & the Endangered Species Act (last updated Oct. 5, 2018).

[87]See note 9.

[88]Id.

[89]DPS Policy at 4,725.

[90]Crow Indian Tribe v. United States, 2018 U.S. Dist. LEXIS 163319, 48 ELR 20168, 2018 WL 4568418 (D. Mont. Sep. 24, 2018), at *23 (quoting Humane Soc’y of the United States v. Zinke, 865 F.3d 585, 603 2017 U.S. App. LEXIS 13912, 84 ERC (BNA) 2115, 2017 WL 3254932 (Cir. D.C. Aug. 1, 2017)).

[91]Id.

[92]Humane Soc’y of the United States v. Zinke, 865 F.3d 585, 601 2017 U.S. App. LEXIS 13912, 84 ERC (BNA) 2115, 2017 WL 3254932 (Cir. D.C. Aug. 1, 2017).

[93]Id. at 602.

[94]Id.

[95]Id.

[96]Id.

[97]Humane Soc’y of the United States v. Zinke, 865 F.3d 585, 602 2017 U.S. App. LEXIS 13912, 84 ERC (BNA) 2115, 2017 WL 3254932 (Cir. D.C. Aug. 1, 2017).

[98]Id.

[99]Id. at 603.

[100]Final Rule at 30,623.

[101]Indeed, the court noted this counterargument in Crow Indian Tribe; see 2018 U.S. Dist. LEXIS 163319, 48 ELR 20168, 2018 WL 4568418 (D. Mont. Sep. 24, 2018), at *33-34 (If the Northern Continental Divide and Greater Yellowstone populations are both successfully delisted, the lower-48 grizzly listing will cover only two areas [*34]  with fewer than 100 grizzlies, one area where grizzlies have not been affirmatively located in over twenty years, and a fourth area where grizzlies have not been seen since at least 1975. Final Rule, 82 Fed. Reg. at 30,508-09. As the Service itself admits, ‘it would be difficult to justify a distinct population segment in an area where bears . . . have not been located for generations.’ (Doc. 203 at 35.)”)

[102]DPS Policy at 4725.

[103]SeeHumane Soc’y of the United States v. Jewell, 76 F. Supp. 3d 69 (“The National Fish and Wildlife Service’s (FWS’s) final rule, which ‘delisted’ or removed from the Endangered SpeciesAct’s (ESA’s) list of protected species gray wolves in nine states in the Midwest, violated the spirit and the letter of the ESA because the structure, history, and purpose of the ESA demonstrated that the FWS could not designate a distinct population segment only for the purpose of delisting the covered vertebrate population, particularly when those vertebrates were already protected at a higher taxonomic classification”).

[104]Id.

[105]Humane Soc’y of the United States v. Zinke, 865 F.3d 585, 600 2017 U.S. App. LEXIS 13912, 84 ERC (BNA) 2115, 2017 WL 3254932 (Cir. D.C. Aug. 1, 2017).