2018 CPANP Letterhead Logo

January 4, 2018

Public Comments Processing
ATTN: FWS-R6-ES-2017-0089
U.S. Fish and Wildlife Service, MS: BPHC
5275 Leesburg Pike
Falls Church, Virginia 22041-3803

Subject: Possible Effects of Court Decision on Grizzly Bear Recovery in Conterminous United States

Dear U.S. Fish and Wildlife Service:

I am writing to you on behalf of over 1,400 members of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization composed entirely of retired, former, or current employees of the National Park Service. The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. As a group, we collectively represent more than 35,000 years of experience managing and protecting America’s most precious and important natural and historic places.

In light of the recent D.C. Circuit Court of Appeals ruling, Humane Society of the United States, et al. v. Zinke et al., 865 F.3d 585 (D.C. Cir. 2017) , we are writing to express our serious concerns about the U.S. Fish and Wildlife Service’s (Service) final rule issued on June 30 2017 (82 FR 30502, June 30, 2017; RIN 1018-BA41) delisting the Greater Yellowstone Ecosystem (GYE) grizzly bear Distinct Population Segment (DPS). Clearly, the Service failed to consider or adequately analyze the potential impacts of delisting GYE grizzly bears on other populations of grizzly bears that retain threatened status in the lower 48 states.


In 1975, the Service listed the grizzly bear (Ursus arctos horribilis) under the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.) as threatened in the lower 48 United States (40 FR 31734, July 28, 1975). On June 30, 2017, the Service published a final rule (82 FR 30502, June 30, 2017; RIN 1018-BA41) designating the GYE population of grizzly bears as a DPS, finding that the DPS was recovered, and removing that DPS from the Federal List of Endangered and Threatened Wildlife. The final rule became effective on July 31, 2017, and remains in effect. Grizzly bears in the remaining area of the lower 48 States remain listed as threatened under the Endangered Species Act (ESA) as amended. The status of any grizzly bear population may be changed only through formal rulemaking.

On August 1, 2017, the Court of Appeals for the District of Columbia Circuit issued a ruling, Humane Society of the United States, et al. v. Zinke et al., 865 F.3d 585 (D.C. Cir. 2017), that affirmed the prior judgment of the district court vacating the 2011 delisting rule for wolves in the Western Great Lakes (WGL) (76 FR 81666, December 28, 2011). The 2011 rule designated the gray wolf population in Minnesota, Wisconsin, and Michigan, as well as portions of six surrounding States, as the WGL DPS, determined that the WGL DPS was recovered, and delisted the WGL as a DPS. The Service states that this court opinion may impact the GYE final rule, which also designated a portion of an already-listed entity as a DPS and then revised the listed entity by removing the DPS due to recovery.

General Comments

In order to delist the GYE portion of grizzly bear populations in the lower 48, the Service carved out a portion of the broader grizzly bear distribution and called it a distinct population segment (DPS). In the recent court decision, the D.C. Circuit held that, while the Service has authority under the ESA to identify and assign a different conservation status to a DPS carved out of an already-listed species, it may not do so without considering the status of that listed species and “without determining whether the remnant itself remains a species so that its own status under the Act will continue as needed.”

In other words, the recent decision upheld that if the Service is going to identify and delist a smaller portion of a larger listed population, it must evaluate how the action could impact the health and ESA status of the larger population. The Service failed to meet this requirement before making the decision to delist the GYE grizzly bears.

When grizzly bears were originally listed, the entire lower 48 grizzly bear population was included. By carving out and delisting the GYE DPS, the Service violated the ESA by failing to consider the impact of this decision on the previously listed grizzly bear entity – the lower 48 grizzly bear population. This includes failing to evaluate whether the remnant of that entity left behind by the GYE delisting is still protectable under the ESA. In the delisting process and the Final Rule, the Service repeatedly asserted that consideration and analysis of grizzly bear populations elsewhere in the lower 48 is “outside the scope” of the Final Rule. This admission clearly establishes the inadequacy of the Service’s analysis and actions based upon it.

As a consequence of the D.C. Circuit Court decision we dispute the grizzly bear delisting decision. The Service clearly failed to adhere to an important part of the ESA. Rather than suspend their decision to delist the GYE grizzly bear and taking the time needed to meaningfully evaluate how the delisting of the GYE grizzly bear could impact the health and status of the broader population, it now appears the Service is attempting to patch together information to support a decision they have already made. This is both inappropriate and in violation of applicable requirements of the ESA.

The Service must remedy these major shortcomings before proceeding with any further implementation of the Conservation Strategy for the GYE grizzly bear. This includes putting a stop to respective state (i.e., Idaho, Montana, and Wyoming) plans to allow hunting of grizzly bears in the Greater Yellowstone area until the Service has prepared a complete and proper analysis of the potential impacts of delisting the GYE DPS on the all grizzly bear populations in the lower 48 states.

Relevant Sections of the D.C. Circuit Ruling

The flaws in the Service’s delisting of the GYE DPS of the grizzly bear are strikingly similar to the flaws in the Service’s delisting of the Western Great Lakes distinct population segment (DPS) of the gray wolf, as described in the D.C. Circuit Court ruling. Consequently, many sections of that ruling are particularly relevant to the GYE grizzly bear case. These sections include, but are not limited to, the following:

  • (p. 26) “The fundamental error in the Service’s decision is that, in evaluating whether gray wolves in the Western Great Lakes region are a “distinct” population segment, the Service failed to address the impact that extraction of the segment would have on the legal status of the remaining wolves in the already-listed species. More specifically, the Service cannot find that a population segment is distinct – in the Service’s words, that it is severable because it is “discrete” and “significant” – without determining whether the remnant itself remains a species so that its own status under the Act will continue as needed.”
  • (pp.26-27) “The Endangered Species Act’s text requires the Service, when reviewing and redetermining the status of a species, to look at the whole picture of the listed species, not just a segment of it. Section 1533(c)(2)(A) requires that the review cover the “species included in a list.” 16 U.S.C. § 1533(c)(2)(A); see also id. § 1533(c)(1), (b)(1)(A) (directing the Service, when revising the status of a species, to “make [its] determinations * * * after conducting a review of the status of the species” as listed) (emphasis added); see also id. § 1533(c)(2)(B). As the Service itself argues, that review can reasonably be read to include any and all of the composite segments or subspecies that might be included within a taxonomically listed species. See Solicitor’s Opinion 7–8 & n.10; 2011 Rule, 76 Fed. Reg. at 81,670, 81,683. Thus, when a species is already listed, the Service cannot review a single segment with blinders on, ignoring the continuing status of the species’ remnant. The statute requires a comprehensive review of the entire listed species and its continuing status. Having started the process, the Service cannot call it quits upon finding a single distinct population segment.”
  • (p. 27) The Service’s definition of a “distinct population segment” confirms the point. See Segment Policy, 61 Fed. Reg. at 4,725. The Service’s two critical criteria for such a segment are “discreteness” and “significance.” Id. Both of those factors must be met before a segment can be recognized. To start, the Service looks at the “[d]iscreteness of the population segment in relation to the remainder of the species to which it belongs.” Segment Policy, 61 Fed. Reg. at 4,725. More specifically, to be distinct, a segment must be “markedly separated” out “from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors.” Id. Those two factors clearly envision a comparative analysis of a potential segment to the remnant and consideration of the segment’s independent severability.
  • (p. 28) “Requiring the Service to look at the implications for both the segment and the remnant during the delisting, uplisting, or downlisting process thus flows naturally from the Endangered Species Act’s text and the Service’s own Segment Policy…Even more importantly, omitting analysis of the effect of designation on the already-listed species would divest the extant listing of legal force…Instead, the Service must make it part and parcel of its segment analysis to ensure that the remnant, if still endangered or threatened, remains protectable under the Endangered Species Act.”
  • (p. 29) “In designating the Western Great Lakes wolves as a distinct population segment, the Service looked only at the characteristics of the Western Great Lakes segment in a vacuum, ignoring the second step of determining whether both the segment and the remainder of the already-listed wolves would have mutually independent statuses as species.”
  • (p. 30) “The Service’s power is to designate genuinely discrete population segments; it is not to delist an already-protected species by balkanization. The Service cannot circumvent the Endangered Species Act’s explicit delisting standards by riving an existing listing into a recovered sub-group and a leftover group that becomes an orphan to the law.”
  • (pp. 35-36) “We hold that the Service’s analysis of the status of the Western Great Lakes segment within its current range wrongly omitted all consideration of lost historical range. Just because the Endangered Species Act does not compel the Service to interpret “range” to mean historical range, that does not mean that the Service can brush off a substantial loss of historical range as irrelevant to the species’ endangered or threatened status.”
  • (p. 36) “So says the Service itself: The Service’s Range Policy is explicit that a species may be “endangered or threatened throughout all or a significant portion of its current range because [a] loss of historical range is so substantial that it undermines the viability of the species as it exists today.” Range Policy, 79 Fed. Reg. at 37,584 (emphasis added)…In other words, an adequate evaluation of the threats confronting the survival of a species within its current range requires looking at more than just the current moment in time. The Service, consistent with its own Range Policy, also needs to consider the scope of the species’ historical range, and the impact that material contraction or relocation might indicate for survival within a currently constricted or confined range.”
  • (p. 38) “In sum, because the undisputedly vast loss of historical range is a salient factor in determining the endangered or threatened status of the Western Great Lakes segment and the remnant population within their current ranges, the Service’s wholesale failure to address that factor renders the Service’s decision unreasoned, arbitrary, and capricious.”
  • (pp. 53-54) “In this case, the agency’s analysis (i) wholly failed to address the effect on the remnant population of carving out the Western Great Lakes segment, and in doing so (ii) misapplied the Service’s own discreteness and significance tests, and also (iii) turned its back on the implications of historical range loss. Those are major shortcomings that go to the heart of the Service’s delisting decision. Given the serious and pervading role those deficiencies played in the agency’s decision making, there is substantial “doubt whether the [Service] chose correctly” in promulgating the 2011 Rule, Sugar Cane Growers, 289 F.3d at 98 (citation omitted). That makes vacatur appropriate.”
  • (p. 54) “Because of the “seriousness of the [Rule’s] deficiencies” and the absence of materially “disruptive consequences,” we affirm the judgment of the district court vacating the Service’s 2011 Rule.”

In brief, due to serious shortcomings in the Service’s delisting of the WGL gray wolf, the D.C. Circuit Court vacated the Service’s decision to delist. Due to similar shortcomings in the Service’s delisting of the GYE grizzly bear, it seems probable that the Service’s decision to delist the GYE DPS will not withstand legal challenge. In essence, the Service has delisted GYE grizzly bears based on a flawed and incomplete analysis. Therefore, it is essential that the Service reverse all actions to delist grizzly bears in the GYE population until such decisions can be made fully consistent with existing laws, policies, and pertinent court decisions.

Recommended Remedy

Pending completion of a comprehensive analysis of the impacts of delisting GYE grizzly bears on the remnant population(s) of listed grizzly bears in the lower 48 states, the Service should initiate a formal status review and emergency relisting of the GYE grizzly population as described in the 2016 Conservation Strategy, pp. 102-103, which states in part:

“The Service may initiate a formal status review and may emergency relist the GYE grizzly population under Section 4(b)(7) of the Act until the formal status review is complete under the following conditions: (1) if there are any changes in Federal, State, or Tribal laws, rules, regulations, or management plans that depart significantly from the specifics of population or habitat management detailed in this section and significantly increase the threat to the population;”

The additional analysis should include formal public comment opportunities. In practical terms, “relisting” means that until such time that the Service has properly addressed these shortcomings, the Service should reinstate management of the GYE grizzly bear population as a threatened species managed under the Recovery Plan that was in effect prior to the delisting. This includes putting a halt on the respective state (i.e., Idaho, Montana, and Wyoming) planning processes that would allow grizzly bear hunting in the Great Yellowstone Ecosystem.

In closing, we urge the Service to emergency relist the GYE grizzly bear while the Service conducts a complete and comprehensive analysis, as required under the ESA, to address significant shortcomings in the final rule. The Service should do so voluntarily, without hesitation and without waiting for its previous delisting decision to be overturned by the courts.


Phil Francis Signature




Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks