Despite Apparent Recovery, Climate Change Keeps Grizzly Bears on ESA List

For several years, environmental groups have attempted – sometimes successfully – to use wildlife protection laws such as the Endangered Species Act (the “ESA”) to force federal and state wildlife and natural resource agencies to take the impacts of climate change on protected species and habitat into account in their decision-making. These cases, like others brought under NEPA and federal nuisance law, have sought to use existing statutory and common law theories to address climate change in the absence of comprehensive federal legislation.

Recently, that strategy worked again, this time in a decision involving grizzly bears in Yellowstone National Park. In Greater Yellowstone Coalition v. Servheen (“GYC v. Servheen”),[1] a U.S. district court in Montana blocked the U.S. Fish and Wildlife Service (the “Service”) from implementing a final rule that would have removed the Yellowstone population of grizzly bears from the ESA’s threatened species list. The court determined that the Service failed to adequately consider, among other things, the impact of global climate change on one of the grizzly bears’ main food sources – whitebark pine nuts – and enjoined the Service’s delisting decision. The opinion may be the first in which a court has prevented the delisting of a species based on the potential impacts of climate change, despite the species’ apparent recovery.[2]

The potential effects of climate change have been raised in ESA litigation, consultations, and listing decisions. For instance, adverse climate change effects on habitat have been cited as bases for listing the polar bear, elkhorn coral, and staghorn coral.[3] See, e.g., J. Ferrell, Polar Opposites: State of Alaska, Hunting and Environmental Groups Challenge Polar Bear Listing, Marten Law Group Environmental News (June 11, 2008); J. Ferrell, Interior Lists Polar Bear – What Does It Mean?, Marten Law Group Environmental News (May 14, 2008). Climate change impacts have also spurred petitions to list a variety of other species, including, among others, several species of penguin and seal, Kittlitz’s murrelet, yellow-billed loon, Pacific walrus and American pika.[4] ESA listing decisions can have major impacts on a variety of industries and natural resource uses, ranging from reductions in the amount water promised to irrigators and municipalities in drought-prone areas,[5] to curtailing or halting oil and gas activities along the Alaskan coast.[6]

Background to the Decision

Grizzly bears were listed under the ESA as threatened in 1975. At that time, an estimated 1,000 grizzlies occupied only two percent of their historic range in the lower 48 states, and between 136 and 250 grizzly bears were left in the Greater Yellowstone Area.[7]

In 1982, the Service completed its first grizzly bear recovery plan.[8] The plan identified five grizzly bear recovery zones in Wyoming, Washington, Idaho, and Montana, including the grizzly recovery zone located in the Greater Yellowstone Area.[9] Grizzly mortality began to decline in the Greater Yellowstone Area around 1983, and in 1993, the Service revised the Grizzly Bear Recovery Plan.[10] This revision ultimately led to the creation of a “Conservation Strategy,” under which a mixture of state and federal agencies will guide management of the Yellowstone grizzlies.[11] Today, federal wildlife officials estimate that over 580 grizzlies live in the Greater Yellowstone Area alone.[12]

In response to these gains, the Service proposed designating the Yellowstone grizzlies as a Distinct Population Segment (“DPS”) and removing that DPS (the “Yellowstone Grizzly DPS”) from the ESA list of threatened species in November 2005.[13] After considering various comments on the proposed rule, the Service issued its Final Rule on March 29, 2007.[14] In the Final Rule, the Service concluded that the grizzly bears in the Greater Yellowstone Area warranted DPS status because they were “markedly separated” from the other grizzly bear subpopulations.[15] 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.”[16]

In GYC v. Servheen, the GYC challenged the Service’s decision to remove the Yellowstone Grizzly DPS from the ESA’s threatened species list.[17] U.S. District Judge Donald W. Molloy agreed with two of GYC’s claims, concluding that: (1) the Service failed to adequately consider the potential impacts of global warming and other factors on the whitebark pine, whose decline would in turn affect the Yellowstone Grizzly DPS because it is an important source of food for grizzly bears; and (2) the Service failed to show that adequate regulatory mechanisms existed to protect the Yellowstone Grizzly DPS after delisting.[18]

Effects of Whitebark Pine Declines

One factor that led to the court’s decision was the Service’s consideration of the impacts of the potential decline of the whitebark pine on the Yellowstone Grizzly DPS. Under the ESA, the appropriate federal wildlife service (either NOAA Fisheries or the U.S. Fish & Wildlife Service) must consider five factors when making a decision to delist or list a species as endangered or threatened.[19] The fifth of these factors requires that the Service consider “other natural or manmade factors affecting [the species’] continued existence.”[20] In conducting this review, the ESA requires that the Service rely “solely on the basis of the best scientific and commercial data available.”[21]

GYC claimed that the Service failed to adequately consider the impacts of global warming and other factors on whitebark pine. Specifically, GYC argued that since the best available science showed that whitebark pine nuts are an important source of food for the Yellowstone Grizzly DPS, a large decline in whitebark pine would adversely affect the grizzly population.[22]

In the final rule, the Service identified a number of different causes of the potential decline of whitebark pine, including mountain pine beetle infestations, increased forest fires, and white pine blister rust.[23] The Service also acknowledged the threat that climate change poses to the ecology of whitebark pine, including increases in the length of the growing season (which could allow other species to outcompete and replace the whitebark pine), fire frequency and severity (which could result in a loss of mature whitebark pines), and mountain pine beetle and white blister rust outbreaks, as well as spatial shifts in the distribution of suitable growing sites.[24]

The Service concluded, however, that even if whitebark pine continued to decline, the Yellowstone Grizzly DPS would not be adversely affected because the bears would adapt by finding other food sources.[25] In support of this conclusion, the Service pointed to the fact that the availability of whitebark pine nuts varied from season to season due to a variety of factors and, therefore, the bears are already accustomed to finding alternative natural foods in years when whitebark pine nuts are unavailable.[26]

On review, however, the district court rejected the Service’s contentions as not supported by the administrative record. The court found that the “best science indicates that whitebark pines are expected to decline due to a variety of causes[.]”[27] Next, the court noted that, although the Service downplayed the relationship between whitebark pine and grizzly bear survival in the litigation before the court, the science on which it relied in the Final Rule supported an opposite conclusion. The court explained that one such study concluded that the relationship between whitebark cone production and increased grizzly bear mortality had been “well documented.” Another indicated that, when grizzly bears are forced to rely on foods other than whitebark pine nuts, the bears must forage more widely, thereby increasing the risk of human contact and “direct human-caused mortality.” The court also pointed out that the Service’s own scientists recognized that, “while grizzlies’ other primary food sources are not related to grizzly bear survival, there is a connection between the whitebark pine and grizzly survival, although the extent of the relationship is not clear.”

The court concluded that the Service failed to articulate “a rational connection” between the best available science and the Service’s conclusion that grizzly bears would be able to adapt to the decline of whitebark pines.[28] It found that there was “scant evidence” in the administrative record for the proposition, and that much of the science cited in the Final Rule “directly contradict[ed] the [Service’s] conclusions.”[29] Consequently, the court granted the plaintiff’s request for summary judgment on the issue.

Inadequate Regulatory Mechanisms

A second factor that led to the court’s decision was its finding that the Service erred in concluding that adequate regulatory mechanisms exist to protect the Yellowstone Grizzly DPS following delisting.[30]

In the final rule, the Service concluded that the existing regulatory mechanisms were adequate to protect the Yellowstone DPS from again becoming threatened.[31] In reaching this conclusion, the Service relied on the existence of various federal and state statutes and regulations, the Conservation Strategy, Forest Plan amendments incorporating the Conservation Strategy, and state management plans.[32]

The court concluded that the sources upon which the Service relied are not “adequate regulatory mechanisms” under the ESA.[33] The court noted that the regulatory mechanisms the Service cited “depend on guidelines, monitoring, and promises, or good intentions for future action” and that the provisions were not adequate regulatory mechanisms because there was “no way to enforce them or to ensure that they [would] occur.”[34] It also concluded that, although the Service had cited a variety of state and federal laws and regulations in its final rule, it had not explained how the laws and regulations would serve to protect the delisted population.[35] Accordingly, the court concluded that the Service had not complied with the ESA in its consideration of the adequacy of existing regulatory mechanisms for the purposes of delisting, and granted the plaintiff’s request for summary judgment on the issue.[36]

Conclusion

Some groups, including the Service and the National Wildlife Federation, consider the Yellowstone grizzlies an ESA success story.[37] GYC v. Servheen shows, however, that potential adverse effects from future climate disruptions may preclude the federal government from delisting species that it might otherwise determine have recovered. As the impacts of climate change receive further study and become better understood, they will likely take on added significance in listing and delisting decisions. Changes such as increased sea temperatures and fire danger, insect infestations, and shifting rainfall patterns may preclude recovery for many species currently listed under the ESA.[38] Climate disruptions may also lead, for example, to increased parasitic disease in marine species, such as various mammals, corals, turtles, and mollusks, and increased atmospheric carbon dioxide concentrations may create more favorable growing conditions for invasive plant species, thereby leading to a reduction in listed native plant populations.[39] Consequently, the regulatory burdens of the ESA may sometimes remain – despite impressive gains in a species’ population numbers – due to potential effects on species and habitat as a result of climate change.

For more information, contact Russell Prugh, Jessica Ferrell or any other member of Marten Law Group’s Natural Resources practice group.