Apr 022015
 

A Montana man will be sentenced May 12, approximately a year after he shot and killed three three grizzly bears. A magistrate judge found Dan Calvert Wallen guilty on three counts of taking a federally threatened species (U.S. v. Wallen, MJ-14-45-M-JCL, D. Mont.).

Court documents: Information and Findings of Fact and Conclusions of Law

Feb 272015
 

Video of oral argument | Audio (2/5/15)

The Ninth Circuit affirmed a lower court's dissolution of an injunction in a challenge to the Grizzly Project on the Kootenai National Forest (Alliance for the Wild Rockies (AWR) v. Bradford, 13-35768).

In an unpublished decision, the court found that U.S. District Judge Donald W. Molloy was justified in dissolving the injunction he had issued June 29, 2010. The order being appealed was issued April 3, 2012.

The circuit judges on the panel were Raymond C. Fisher, Mary H. Murguia and Carlos T. Bea. Bea issued a separate concurring opinion to say he did not believe AWR should have been allowed to appeal the ESA portion of the ruling. Molloy had granted the plaintiffs' motion for summary judgment on its National Forest Management Act and National Environmental Policy Act claims. He ruled for the Forest Service on one of the ESA claims, but then the Forest Service voluntarily dismissed its appeal, and the plaintiffs dropped their cross-appeal.

Said Bea:

"I see no reason to deviate from the usual rule that a party gets one opportunity—and only one opportunity—to seek appellate review of an adverse judgment on a claim. Because Alliance had that opportunity in 2010 and rejected
it by dismissing its cross-appeal, I would not revisit the merits of the ESA claim."

Jan 142015
 

Two conservation groups have signaled their intention to sue the Fish and Wildlife Service, National Park Service and Forest Service over approved "take" of 15 grizzly bears in two Biological Opinions.

In a news release issued today, Earthjustice, the law firm representing Western Watersheds Project and Sierra Club, said:

In decisions issued over the past 15 months under the Endangered Species Act, FWS reasoned that approved grizzly killing would remain within sustainable levels. However, FWS, the Park Service and the Forest Service all neglected to consider  the fact that the killing of these 15 grizzlies, when added to the amount of other grizzly “taking” anticipated by FWS around the Yellowstone region, could exceed sustainable levels for females by more than three times, pushing the population into decline.

The notices of intent to sue are available here (for the "no jeopardy" conclusion in the Sept. 13, 2013, addendum to the Biological Opinion on the 2007 Bison and Elk Management Plan for the Jackson Hole National Elk Refuge and Grand Teton National Park) and here (for the "no jeopardy" conclusion in the Biological Opinion for the 2014 Supplement to the 2013 Supplement and 2010 Amendment to the 1999 Biological Assessment for Livestock Grazing on the Northern Portions of the Pinedale Ranger District, 06E13000-2014-F-0040, Sept. 3, 2014).

Full text of press release follows

Federally Approved “Take” of Grizzly Bears Threatens Recovery

Conservationists demand agency consideration of escalating mortality
January 14, 2015
Bozeman, Mont. —Recent federal approvals for the lethal “taking” of 15 grizzly bears in Grand Teton National Park and the Upper Green River area of northwest Wyoming threaten to push grizzly mortalities beyond sustainable levels in the Yellowstone region, according to conservation groups. Today, those groups gave notice of their intent to file suit to protect the grizzlies.Today’s Notice of Intent to Sue by the Sierra Club and Western Watersheds Project, represented by the public-interest environmental law firm Earthjustice, challenges the U.S. Fish and Wildlife Service (“FWS”), National Park Service and U.S. Forest Service over their recent decisions allowing the lethal “take” of 15 grizzly bears.

In decisions issued over the past 15 months under the Endangered Species Act, FWS reasoned that approved grizzly killing would remain within sustainable levels. However, FWS, the Park Service and the Forest Service all neglected to consider  the fact that the killing of these 15 grizzlies, when added to the amount of other grizzly “taking” anticipated by FWS around the Yellowstone region, could exceed sustainable levels for females by more than three times, pushing the population into decline.

“Killing 15 more bears in the Yellowstone region, including even in one of our nation’s premier national parks, could be the straw that breaks the camel’s—or, in this case, the grizzly’s—back,” said Earthjustice attorney Tim Preso. “The Endangered Species Act requires federal officials to look at that big picture, yet they failed to do so.”

“The Fish and Wildlife Service has repeatedly increased the number of grizzly bears that can be killed, without looking at the broader impact on grizzly recovery in the region. Taken together, the anticipated 'take' would exceed the agency’s own limit for female grizzly bear deaths by more than three times,” said Bonnie Rice with Sierra Club’s Our Wild America campaign. "With a slow reproducing animal like the grizzly bear, those numbers would have significant long-term consequences on grizzly recovery."

“The Fish and Wildlife Service has a responsibility to protect the endangered grizzly bear,” said Travis Bruner, Executive Director of Western Watersheds Project. “The Service continues to allow the killing of more bears without presenting sound scientific reasoning that considers the regional impact on the species. We demand that the government rethink its approach, and base its decisions on science rather than politics and the interests of private livestock owners that graze cattle on our public lands.”

Background:

Yellowstone-area grizzly bears are listed as a threatened species under the Endangered Species Act. Federal biologists acknowledge that the growth of the Yellowstone grizzly bear population level has flattened over the past decade.  At the same time,  the grizzly population has been faced with the loss of two of its most important food sources in the Yellowstone region—whitebark pine seeds and cutthroat trout—due to changing environmental conditions driven in part by a warming climate. In the wake of these changes, scientists have documented the bears’ transition to a more meat-based diet, but that diet leads to a greater potential for conflict with human hunting and livestock grazing activities.

Against this backdrop, FWS in September 2013 authorized the National Park Service to proceed with an elk hunt in Grand Teton National Park that is anticipated to cause the lethal take of four grizzly bears over a nine-year period. Then, in September 2014, FWS authorized the Forest Service to continue livestock grazing operations in the Upper Green River area of the Bridger-Teton National Forest that are anticipated to cause the lethal take of 11 more grizzly bears within any consecutive three-year period through the end of 2019.

In issuing these decisions, FWS reasoned that these impacts to the Yellowstone-area grizzly population would be acceptable because the anticipated bear mortalities would fall within limits established by federal biologists to ensure a sustainable grizzly population that does not slip into decline. However, FWS failed to acknowledge or consider the fact that the Grand Teton and Upper Green “take” determinations, when combined with similar “take” determinations issued by FWS and currently in effect for other actions around the Yellowstone region, anticipate the killing of as many as 65 female grizzly bears in a single year—a level that more than triples FWS’s own established mortality limit.

The conservationists contend that FWS cannot rely on compliance with sustainable grizzly mortality thresholds to justify additional killing of Yellowstone bears unless federal officials consider the impacts of all the grizzly bear mortality they have anticipated across the region.

 

 

Nov 212014
 

A conservation group in Montana will have another chance to challenge helicopter hazing of bison in Yellowstone National Park following a Ninth Circuit Court of Appeals ruling Thursday, but the court may have made its task a little harder (Alliance for the Wild Rockies v. USDA, 13-35253).

That's because the court, while finding that the district court below had wrongly denied standing to Alliance for the Wild Rockies., also concluded that the Montana Department of Livestock's harassment of bison by air did not result in a "take" under the ESA's Section 9. The panel also rejected the plaintiff-appellant's ESA Section 7, National Environmental Policy Act and National Forest Management Act claims.

However, the panel -- Circuit Judges Mary M. Schroeder, Richard A. Paez, and Marsha S. Berzon -- also reversed the district court's ruling that AWR had not complied with the ESA's 60-day notice-of-intent-to-sue provision by filing suit before 60 days had expired.

"Although the federal defendants urge that the legislative purpose of the notice requirement is to afford agencies a complete 'litigation free window' in which to remedy alleged ESA violations, they fail to identify any provision in the statute which suggests that the ESA's notice requirement should be interpreted to preclude filing of a complaint alleging non-ESA claims before the 60-day notice period expires," the court said.

But the court affirmed the dismissal of AWR's ESA claims against the Animal and Plant Health Inspection Service and FWS because they were not included in AWR's 60-day notice.

Here's the unofficial summary provided by the court:

The panel affirmed in part and reversed in part the district court's judgment in favor of federal and Montana state agencies and officials in an action brought by Alliance for the Wild Rockies, challenging the decision to permit recurring, low-altitude helicopter flights to haze bison in the Yellowstone Grizzly Bear Recovery Zone. To minimize disease transfer between wild bison and cattle in the Greater Yellowstone Area, the bison are managed, in part, according to an Interagency Bison Management Plan which includes using hazing operations to move the bison. The Yellowstone grizzly bear also inhabits the same area, and is listed as a threatened species under the Endangered Species Act. Under Section 7 of the ESA, the National Park Service prepared biological evaluations for the management plan which were approved by the United States Fish and Wildlife Service, and concluded that the helicopter hazing operations would not adversely affect the Yellowstone grizzly. Section 9 of the ESA prohibits the "taking" -- which can include harassing -- of an endangered or threatened species.

The panel reversed the district court's holding that Alliance lacked standing to bring its ESA and National Environmental Policy Act claims. The panel also reversed the district court's ruling that Alliance failed to comply with the ESA citizen suit 60-day notice provision. The panel affirmed the dismissal of all of Alliance's ESA claims against the United States Animal and Plant Health Inspection Service and Fish and Wildlife Service because they were not included in  the 60-day notice on which Alliance relied.

The panel held that Alliance's ESA Section 7 claim was moot because the federal defendants had already completed a second biological evaluation consultation addressing the impact of helicopter hazing on the Yellowstone grizzly bears, and affirmed the district court's grant of summary judgment to the federal defendants and grant of dismissal to Montana on the claim. The panel also affirmed the district court's grant of summary judgment to the federal defendants and grant of dismissal to Montana on Alliance's ESA Section 9 claim because no genuine issues of material fact existed in the record concerning whether a take of a Yellowstone grizzly bear had occurred or was likely to occur. Finally,  the panel affirmed the grant of summary judgment to the federal defendants on the NEPA and National Forest Management Act claims.

Coverage in Bozeman Chronicle

Nov 242011
 

For Release on November 23, 2011
Contact: Christopher Servheen, 406-243-4903

Greater Yellowstone Area Population of Grizzly Bears Remains Under Federal Protection
Service to Evaluate New Information Regarding Whitebark Pine as Food Source

The 9th Circuit Court Appeals ruled on November 22, 2011 that the population of grizzly bears in the Greater Yellowstone Area, which includes northwestern Wyoming, southern Montana, and northeastern Idaho, should remain federally protected under the Endangered Species Act (ESA).

While the ruling means that the population will remain listed for the time being, the court also affirmed the U.S. Fish and Wildlife Service’s (Service) determination that the existing regulatory mechanisms are adequate to protect grizzlies in the Yellowstone area. The Service believes the ruling provides a clear path for eventual delisting of grizzly bears in the area once the agency analyzes and clarifies the relationship between declines in whitebark pine and grizzly bear recovery.

“Our next step will be to better explain the relationship between whitebark pine and grizzly bear population recovery and health in the Yellowstone area. We will work with Federal and State agencies and can also call on the Great Northern Landscape Conservation Cooperative and our management partners including the Interagency Grizzly Bear Committee to help provide robust scientific information to support this effort,” said Steve Guertin, the Service’s Director of the Mountain-Prairie Region. “Through this cooperative effort, we will ensure the best available science regarding climate change and other stressors on grizzly bears and other wildlife species in the Northern Rockies is used to support our decision-making.”

This finding for the Service recognizes the excellent work and commitment of federal and state partners to conserve grizzly bears by continuing to implement the conservation strategy developed by federal and state scientists, which incorporates intensive monitoring of the Yellowstone bears, their food sources, and their habitat.

In moving forward, the Service will carefully assemble all the biological information on the relationship between whitebark pine cone production and grizzly recovery and develop a detailed analysis of these relationships. This scientific analysis will be the basis for a new proposal to recover and delist this grizzly population.

The Service’s efforts to delist grizzlies in the area dates back to March 2007 when the Service announced that the Greater Yellowstone Area population of grizzly bears was a recovered and should be removed from the list of threatened or endangered species. However, in September 2009, the Federal District Court in Missoula issued an order vacating the delisting of the Greater Yellowstone Area grizzly population. In compliance with this order, the Yellowstone grizzly population was once again protected as a threatened population under the ESA.

The mission of the U.S. Fish and Wildlife Service is working with others to conserve, protect and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people. We are both a leader and trusted partner in fish and wildlife conservation, known for our scientific excellence, stewardship of lands and natural resources, dedicated professionals and commitment to public service. For more information on our work and the people who make it happen, visit: www.fws.gov

Nov 222011
 

The Ninth Circuit has partially affirmed a lower court ruling that found the Fish and Wildlife Service's delisting of Yellowstone grizzly bears was unlawful (Greater Yellowstone Coalition v.  Servheen, 09-36100).

Ursus arctos horribilis (credit: USFWS)

Specifically, FWS did not "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," the court said.

"[O]f critical importance ..., the [service's delisting] rule repeatedly acknowledges a  'well-documented association' between reduced whitebark pine seed abundance and increased grizzly mortality," the court said.

In a news release issued the day after the decision, FWS said it would evaluate the availability of whitebark pine as a food source.

"Based on the evidence of a relationship between reduced whitebark pine seed availability, increased grizzly mortality, and reduced grizzly reproduction, it is logical to conclude that an overall decline in the region’s whitebark pine population would have a negative effect on its grizzly bear population," the court said. "The service advances several rationales in the rule to support its conclusion that food shortages caused by whitebark pine declines are nonetheless 'not a threat' to the Yellowstone grizzly." However, the court found "all of [those rationales] lacking."

Circuit Judge Sidney R. Thomas partially concurred with his fellow judges, but also partially dissented, concluding that FWS relied on voluntary measures that may or may not be implemented. (See below for an excerpt.) The two judges in the majority were Circuit Judges Susan P. Graber and Richard C. Tallman. Tallman wrote the opinion.

Here are a couple of paragraphs from the beginning of the opinion that summarize the issues and the court's conclusion:

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.

In his dissent, Circuit Judge Thomas said he agreed with the majority's conclusion that FWS did not "articulate a rational connection between the record data and its determination that whitebark pine declines were not likely to threaten the Yellowstone grizzly bear." But breaking with the majority, Thomas also said he would have agreed with U.S. District Judge Donald Molloy "that the agency also erred in concluding the Yellowstone grizzly is not threatened by  'the inadequacy of regulatory mechanisms,' " specifically the “Final Conservation Strategy for the Grizzly Bear in the Greater Yellowstone Area.”

The service’s reliance on voluntary action is contrary to law. The phrase  “regulatory mechanism” plainly does not encompass voluntary, unenforceable measures such as the Strategy and many of its components. Or. Natural Res. Council v. Daley, 6 F. Supp. 2d 1139, 1155 (D. Or. 1998) (interpreting 16 U.S.C. § 1533(a)(1)(D) to mean that “the [agency] must base its decision on current, enforceable measures”). The service therefore erred by considering the strategy’s voluntary and unenforceable components in its Factor D determination. Good intentions are not rules of law. Unenforceable aspirational goals are not regulatory mechanisms. Promises to monitor, review, and convene committees do not satisfy the statutory requirement. See Norton v. So. Utah Wilderness Alliance, 542 U.S. 55, 72 (2004) (noting that monitoring is not a legally binding commitment under the APA). Thus, the rule must be vacated for non-compliance with 16 U.S.C. § 1533(a)(1)(D).  See State Farm, 463 U.S. at 43 (“[A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider . . . .”).

Links

Grizzly bear species profile from FWS

FWS FR notice reinstating threatened status for Greater Yellowstone grizzlies (3/26/10)