Grizzly bear recovery, whitebark pine, and adequate regulatory mechanisms under the Endangered Species Act.

Author:Erickson, Andrew B.
 
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  1. INTRODUCTION II. YELLOWSTONE GRIZZLIES AND WHITEBARK PINE A. Grizzly Bear Ecology B. Whitebark Pine and Climate Change III. GRIZZLY BEAR RECOVERY, THE FINAL CONSERVATION STRATEGY, AND DELISTING A. The Grizzly Bear Recovery Plan B. Final Conservation Strategy C. Delisting Grizzlies IV. THE SERVHEEN DECISIONS A. District Court Decision B. Ninth Circuit Decision V. ASSESSING THE NINTH CIRCUIT'S ADEQUATE REGULATORY MECHANISMS ANALYSIS A. Confusing the Meaning of "Existing Regulatory Mechanisms" B. Misunderstanding the Enforceability of Forest Plans and NPS Regulations C. Failing to Emphasize the ESA 's Goal of Ensuring Legal Protection D. Future Factor D Analyses and the Enforceability of State Laws VI. CONCLUSION I. INTRODUCTION

    "May 5, 1805: Cap'. Clark and Drewyer killed the largest brown bear this evening which we have yet seen.... this bear differs from the common black bear in several respects; it's tallons are much longer and more blont, it's tale shorter, it's hair which is of a redish or bey brown, is longer thicker and finer than that of the black bear;, his liver lungs and heart are much larger even in proportion with his size ... his maw was also ten times the size of black bear, and was filled with flesh and fish.... this animal also feeds on roots and almost every species of wild fruit." (1)

    In 1804, Meriwether Lewis and William Clark led one of the first American expeditions across the Great Plains and Rocky Mountains through the heart of what was to become known as Grizzly Country. (2) The explorers encountered grizzly bears (Ursus arctos horribilis) (3) along the Missouri River and its tributaries, throughout present-day Montana, North Dakota, and South Dakota. (4) After the expedition, settlement and population growth in the western United States brought an ever-increasing number of people into contact and conflict with the bears. (5) Settlers hunted, trapped, and poisoned grizzly bears, and the abundant grizzly habitat of open plains and forests became occupied with roads and cities, leading to drastic declines in grizzly populations. (6) By the late twentieth century, the grizzlies' vast historic range, which once extended from Mexico to the Arctic, and from the Great Lakes to the Pacific Ocean, had vanished. (7) What was left of the grizzly bear population in the contiguous United States was confined to the last bastions of wilderness: ecological islands consisting of Yellowstone National Park and the Northern Rockies of Montana. (8)

    Despite the precarious state of the grizzly bear, there is hope for the species' continued recovery. In 1975, the U.S. Fish and Wildlife Service (FWS) listed grizzly bears in the lower forty-eight states as a threatened species under the Endangered Species Act (ESA). (9) Biologists estimated that only a few hundred grizzlies remained from a population that had numbered over 50,000 at the time of the Lewis and Clark expedition. (10) The FWS identified regions of existing grizzly bear habitat, or recovery zones, where remaining groups of grizzlies could be protected and managed, increasing the population to sustainable levels. (11)

    The Greater Yellowstone Ecosystem recovery zone stands out as the most recognized current home of grizzlies in the lower forty-eight states. (12) The ecosystem, totaling (30,000) square miles, includes Yellowstone and Grand Teton National Parks, and the surrounding areas of northwestern Wyoming, southern Montana, and northeastern Idaho. (13) Outside of the national parks, (14) six national forests, (15) a federal wildlife refuge, (16) and a dozen federally designated wilderness areas (17) also provide adjacent grizzly habitat. (18)

    Within this ecosystem, policies for conserving grizzlies have relied on an increasing scientific awareness of the population's ecological needs, including food sources and habitat. (19) The seeds from whitebark pine (Pinus albicaulis)--an alpine tree species that grows throughout the Yellowstone area--provide a crucial food source for grizzlies' winter preparation. (20) Changes to the Yellowstone ecosystem--most notably those due to climate change--have the potential to drastically reduce the availability of whitebark pine, which could lead to increases in grizzly mortality. (21) Yet, it remains uncertain whether this crucial food source will suffer drastic declines in the future, and what effect that may have on the Yellowstone grizzlies. (22)

    Overall, the management strategies and legal protections for grizzly bears in the Greater Yellowstone Ecosystem over the past forty years have largely succeeded in producing a recovered grizzly population. (23) After the ESA listing of grizzly bears and the FWS's implementation of the Grizzly Bear Recovery Plan, the population of grizzlies in the Greater Yellowstone Ecosystem began to rebound. (24) By (2006), more than five-hundred grizzlies inhabited the region, and the population experienced steady growth at four to seven percent per year. (25)

    In (2007), the FWS and eight federal and state agencies signed a Memorandum of Understanding (MOU) implementing a final conservation strategy and leading to the delisting of Greater Yellowstone Ecosystem grizzlies. (26) The strategy set management parameters for maintaining the current population of recovered grizzlies and securing habitat conditions necessary for their continued survival. (27) The strategy also incorporated the management plans of the states of Idaho, Montana, and Wyoming, and emphasized the voluntary cooperation of federal agencies, such as the National Park Service (NPS) and U.S. Forest Service (USFS). (28) Because the 2007 population of grizzlies in the Greater Yellowstone Ecosystem satisfied the FWS's recovery criteria (29) and the FWS determined that the strategy provided an adequate long-term conservation plan, (30) the FWS delisted the distinct population of Yellowstone area grizzlies from threatened status under the ESA. (31)

    But a recent Ninth Circuit decision in Greater Yellowstone Coalition v. Servheen (32) vacated the FWS's removal of grizzly bears from ESA listing. In a challenge brought by the Greater Yellowstone Coalition, (33) the Ninth Circuit affirmed the federal District Court of Montana's determination that the FWS failed to rationally explain why the potential loss of whitebark pine would not adversely affect the grizzly population. (34) The court explained that the FWS provided no scientific evidence that whitebark pine losses would not result in Yellowstone grizzlies reverting to threatened status. (35) The Ninth Circuit therefore vacated and remanded the delisting rule and reinstated ESA protections to the Yellowstone grizzlies. (36)

    A problematic aspect of the Ninth Circuit's decision concerns the court's reversal of the district court's determination that no adequate regulatory mechanisms existed to ensure the continued survival of grizzlies. (37) The Ninth Circuit instead concluded that provisions relating to grizzly habitat conservation in national forest plans, NPS park regulations, and other state and federal laws provided sufficient legal protections for the species. (38) In reaching this determination, the Ninth Circuit missed an opportunity to clarify that non-binding agreements, such as the final conservation strategy for Yellowstone grizzlies, do not qualify as adequate regulatory mechanisms under the ESA. (39) The court also erred in concluding that national forest plans and NPS regulations containing provisions to protect grizzly habitat were enforceable. (40) After the Supreme Court's decision in Norton v. Southern Utah Wilderness Alliance (SUWA), (41) broad policy goals like the habitat protections for grizzlies are not enforceable. (42) Therefore, the Ninth Circuit should have concluded that no adequate regulatory mechanisms for grizzlies existed. (43) The court implicitly contradicted the ESA's long-standing policy of "institutionalized caution" by failing to ensure that legally enforceable limits on grizzly mortality were in place prior to approving FWS's analysis of regulatory mechanisms. (44)

    This Chapter explores the recovery and conservation of the Greater Yellowstone Ecosystem grizzly bears, focusing particular attention on the ESA's requirement that the FWS ensure the existence of adequate regulatory mechanisms before delisting a species. (45) Part II provides a primer on Yellowstone grizzly ecology, particularly the population's dependence on whitebark pine--a food source at risk of decline due to climate change. Part III examines the conservation measures the FWS, state, and other federal agencies implemented to protect the grizzly population. Part IV discusses the Servheen decisions in the district court and Ninth Circuit, and Part V criticizes the Ninth Circuit's analysis of adequate regulatory mechanisms protecting the delisted Yellowstone grizzlies. Part VI concludes by explaining the current status of Yellowstone grizzlies and recommending that future delisting decisions place special emphasis on the adequacy of state regulatory mechanisms for the continued conservation of the population.

    The court's ruling in Servheen reinstating the threatened status of Yellowstone grizzlies will hardly be the last case to consider the future of the species. Despite continually satisfying the recovery criteria, grizzlies will remain on the ESA list of threatened species until the FWS promulgates a new rule explaining the effects of whitebark pine losses on the population. (46) For Yellowstone grizzlies, the hope for continued recovery once again rests in an uncertain balance between ecological forces and the will of the human community to protect the iconic species.

  2. YELLOWSTONE GRIZZLIES AND WHITEBARK PINE

    Grizzly bears in Yellowstone are the ultimate "equal opportunity maulers" (47) and locavores, (48) adapting their diet to the seasons and availability of food in a biologically and geographically diverse ecosystem. (49) Grizzlies use a Variety of...

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