Crow Indian Tribe v. United States, No. 18-36030 (9th Cir. 2020)
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In 2007, the FWS first issued a rule declaring the Yellowstone grizzly population a "distinct population segment" within the meaning of the Endangered Species Act (ESA) and removing it from the protections of the ESA. The Ninth Circuit upheld the district court's determination that further agency consideration was required and remanded, which resulted in a second delisting rule, Rule 2017, which the district court again vacated and remanded. In the remand order, the district court found three important deficiencies in the FWS's analysis.
As a preliminary matter, the panel held that a remand of an agency's rulemaking is a final order as to the government and thus appealable. Furthermore, the panel has jurisdiction to consider the intervenors' appeals regarding recalibration. On the merits, the panel affirmed the district court in all respects, with the exception of the order requiring the FWS to conduct a "comprehensive review" of the remnant grizzly population. As to that order, the panel remanded for the district court to order further examination of the delisting's effect on the remnant grizzly population.
Court Description: Endangered Species Act. The panel affirmed the district court’s orders remanding to the U.S. Fish & Wildlife Services (“FWS”) for further consideration of several issues concerning a 2017 Rule governing the Greater Yellowstone grizzly bear population, with the exception of the district court’s order requiring the FWS to conduct a “comprehensive review” of the remnant grizzly population. In 2007, the FWS issued a rule declaring the Yellowstone grizzly population a “distinct population segment” within the meaning of the Endangered Species Act (“ESA”) and 18 CROW INDIAN TRIBE V. STATE OF WYOMING removing it from the protections of the ESA. This court subsequently upheld the district court’s determination that further agency consideration was required. That remand eventually resulted in a second delisting rule – the 2017 Rule – that the district court again vacated and remanded to the agency for further consideration. In its remand order, the district court found three important deficiencies in the FWS’s analysis. First, the district court held that the FWS failed adequately to consider the impact of delisting on the remnant grizzly population. Second, the district court held the FWS acted contrary to the best available science when it determined that the Yellowstone grizzly bear was not threatened by a lack of genetic diversity, and that the translocation and connectivity assurances contained in the 2007 Rule were no longer necessary. Third, the district court faulted the FWS for failing to include a commitment to recalibration in the event a different population estimator were to be adopted. The district vacated the 2017 Rule and remanded for further agency consideration. The FWS and numerous intervenors – comprised of states of the Yellowstone region and private hunting and farming organizations – challenge the district court’s order. Appellees include plaintiff environmental and tribal organizations. The panel first considered appellate jurisdiction, and rejected appellees’ challenges. The panel held that the district court’s remand order was final as to the FWS. The panel also held that FWS did not merely seek an advisory opinion, and FWS had standing because its alleged injury – being required to reevaluate certain aspects of the 2017 Rule that it claimed were legal – was redressable by a favorable CROW INDIAN TRIBE V. STATE OF WYOMING 19 decision. The panel further held that the recalibration order was final with respect to the intervenors, and the intervenors had standing to pursue their appeal regarding a commitment to recalibration. Turning to the merits, the panel first considered the FWS’s appeal of the district court’s order to consider the effect of delisting on the remnant grizzly population. The panel agreed with the FWS that the district court appeared to have required a ESA Section 4(a) analysis of the remnant population. The panel held that such an extensive analysis was not required by the ESA or Humane Society v. Zinke, 865 F.3d 585 (D.C. Cir. 2017), and the district court erred in relying upon the text of Section 4(c). Although a full Section 4(a) analysis of all factors affecting the continued existence of the remnant was not required, the FWS must determine on remand whether there was a sufficiently distinct and protectable remnant population, so that the delisting of the distinct population segment will not further threaten the existence of the remnant. The panel thus vacated that portion of the district court’s order calling for a “comprehensive review” of the remnant grizzly population, and vacated for the district court to order further examination. The panel next considered the district court’s order to ensure the long-term genetic diversity of the Yellowstone grizzly. The panel held that because there were no concrete, enforceable mechanisms in place to ensure long-term genetic health of the Yellowstone grizzly, the district court correctly concluded that the 2017 Rule was arbitrary and capricious in that regard. Remand to the FWS was necessary on this matter. 20 CROW INDIAN TRIBE V. STATE OF WYOMING The district court concluded that the FWS’s decision to drop the commitment to recalibration in the conservation strategy violated the ESA because it was the result of political pressure by the states rather than having been based on the best scientific and commercial data. The panel held that the district court properly ordered the FWS to include a commitment to recalibration. The panel rejected the intervenors’ argument that because the states have committed to using the current population estimator for the foreseeable future, any commitment to recalibration would be unnecessary and speculative.
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