Courts challenge a piecemeal approach to species recovery

A recent ruling may cause Fish and Wildlife to reconsider how it protects grizzlies.

 

In 1993, the Greater Yellowstone Ecosystem, nearly 35,000 square miles of wild country in Montana, Wyoming and Idaho, was designated as one of six grizzly bear recovery zones. Yellowstone’s bruins have since gone on to fare significantly better than their counterparts, jumping from some 300 bears at their original listing in 1975 to over 700 today.

But now, the same lines drawn to restore grizzlies are being used to end their federal protection. On June 30, 2017, the U.S. Fish and Wildlife Service legally declared the Greater Yellowstone bears a “distinct population segment” no longer in need of endangered species protection. Rather than endeavouring to restore grizzlies across their former range, as was intended four decades ago when all the bears in the Lower 48 were listed as a single population, the agency is taking a piecemeal approach to recovery.

A jeopardized animal may be listed as either an entire population or as a “distinct population segment” — a geographically defined subgroup. Fish and Wildlife argues that listing subgroups enables it to focus on protecting a critical portion of a population, thereby preventing large-scale species declines. But it’s less clear whether the agency can legally divide a species into subgroups for the sole purpose of delisting them, even though it’s done so multiple times. Instead of working to recover the gray wolf across the country as it was originally listed, for example, the agency broke up the species into smaller groups, like the Northern Rocky Mountains and Western Great Lakes, then removed each population from protection.

A grizzly bear stands on a bison carcass in the middle of the Yellowstone River in Yellowstone National Park.

Conservationists see these actions as part of a broader wave of attempts to weaken endangered species protections across the board, undermining the original reason for creating distinct population segments. “The irony for me is that a tool designed to increase protections for species is now being used to decrease them,” says Vermont Law School professor Pat Parenteau. But a recent court ruling could deter the agency from attempting to remove protections from other subpopulations without regard for the recovery of the entire listed population.

On Aug. 1, D.C. Circuit Judge Patricia Millett upheld a 2014 ruling that the Western Great Lakes subgroup of the gray wolf should not have lost Endangered Species Act protections. In order to remove federal protections from a subgroup initially listed as a larger population, Millett’s decision said, the agency must consider the impacts of that particular delisting on remnant subgroups elsewhere, as well as on the species’ recovery across its historic range.

Now, the precedent set by the gray wolf case has many questioning the legality of breaking up grizzly bears by recovery areas and then removing their protections. “The ruling was significant because it called into question the service’s standard blueprint for dealing with these large-scale listings of species like grizzly bears and wolves that were listed throughout the Lower 48 at one time,” says Tim Preso, managing attorney of the Northern Rockies office at EarthJustice.

Outside Alaska, grizzlies are still struggling, occupying less than 2 percent of their historic range. This fall, though, it became evident that Fish and Wildlife was considering delisting yet another subgroup — the 1,000-some grizzlies in Montana’s Northern Continental Divide Ecosystem recovery area. Continued protection for all Lower 48 grizzlies is essential, say conservationists, to preserve genetic diversity by keeping the populations connected.

The Endangered Species Act provides many protections for listed species, including prohibitions on trading or selling animals, limitations on accidental and deliberate killings, and regulations on essential habitat. Delisting by distinct population segments allows the Fish and Wildlife Service to impose such restrictions only on those segments that are in the worst shape according to agency spokeswoman Christina Meister. “A (segment) designation can limit regulations to the areas that are truly needed for the recovery of the species,” she says.

It also makes it easier for the Fish and Wildlife Service to showcase its successes — and that’s important for garnering public support amid widespread criticism that the Endangered Species Act doesn’t work. Delisting a species draws attention to the agency’s efforts and frees up recovery dollars. “This is a way to show their scorecard is going up, but whether that’s good for the species is a very debatable question,” says Parenteau.

Because the Great Lakes gray wolf case was decided in the D.C. circuit, it won’t be legally binding elsewhere in the country, but Nokes says it’s “definitely persuasive. It’s significant in the sense that it’s clear the service can’t do this, and they’ve just (delisted the Yellowstone grizzly).”

The agency also seems concerned about the ramifications of the case. In December, it reopened public comment until Jan. 8 (submit a comment here) on the delisting of the Yellowstone grizzly distinct population segment, a nod to the gray wolves ruling. “Specifically, the service is interested in public input on whether this court’s opinion (on the gray wolf) affects the (Greater Yellowstone grizzly bear) final rule and what, if any, further evaluation the service should consider regarding the remaining grizzly bear populations in the Lower 48 states and their lost historical range,” the agency stated.

In the history of delisting decisions, seeking additional comment after the fact is exceedingly rare. If the agency, or the pending environmental lawsuits over the Yellowstone grizzly, determine that the wolf case has little bearing on other species, the use of distinct population segments to remove species protections will likely be expanded beyond wolves and grizzlies. Next in line could be the greater sage grouse, says Parenteau, since it’s also a wide-ranging species.  

Ultimately, delisting by population segments gets at the larger issue of what actually constitutes recovery, according to Daniel Rohlf, a professor at Lewis and Clark College who specializes in wildlife law. “From my observations in recent years,” he says, “the service is becoming more and more willing to lower the bar on what what it calls success under the ESA.”

Note: This article has been updated to correct the deadline for public comment; it is Jan. 8, not Jan. 5.

Gloria Dickie is a freelance science and environmental journalist based in Boulder, Colorado.

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