## Facts

- The U.S. Fish and Wildlife Service (FWS) listed the grizzly bear in the lower 48 states as threatened under the Endangered Species Act (ESA) in 1975 and later adopted recovery plans identifying demographic and habitat criteria for recovery in the Greater Yellowstone Area (GYA).
- By the mid-2000s, the GYA grizzly population exceeded 500 bears, and FWS concluded the recovery criteria were met and adopted a post-delisting Conservation Strategy.
- FWS issued a final rule designating the Yellowstone grizzly as a distinct population segment and delisting it.
- The delisting rule emphasized the bears’ dependence on whitebark pine seeds as an important food source, while acknowledging threats to whitebark pine from climate change, beetles, and disease.
- FWS concluded whitebark pine decline would not threaten the population, relying on (i) anticipated dietary flexibility and (ii) an example of another grizzly population increasing despite pine loss, and it stressed monitoring and possible relisting if conditions worsened.
- A conservation organization challenged the delisting rule under the APA and ESA, contending FWS minimized the risk from whitebark pine decline and improperly relied on post-delisting measures that were not legally enforceable.
- The district court granted summary judgment for the challenger, concluding the rule violated the ESA and APA; FWS and intervenors appealed.

## Issues

1. Whether FWS rationally concluded, using the ESA’s “best scientific and commercial data available,” that anticipated whitebark pine declines would not threaten the Yellowstone grizzly.
2. Whether FWS unlawfully relied on nonbinding elements of the Conservation Strategy and related commitments as “existing regulatory mechanisms” adequate to protect the species upon delisting.

## Decision

- The Ninth Circuit affirmed in part and reversed in part.
- The court affirmed the district court as to whitebark pine, holding FWS failed to provide a reasoned, evidence-based explanation for concluding that foreseeable whitebark pine decline posed no threat to the population.
- The court reversed the district court as to regulatory mechanisms, holding the ESA does not categorically bar consideration of nonbinding management commitments when assessing the overall protective regime, so long as the assessment is reasonable and supported by the record.
- The delisting rule was vacated and remanded because the inadequate whitebark pine analysis rendered the rule arbitrary and capricious.

## Legal Principles

- Under APA arbitrary-and-capricious review, an agency must articulate a rational connection between the record and its decision and may not ignore or discount relevant biological information without a reasoned explanation.
- The ESA requires listing and delisting decisions to be based on the “best scientific and commercial data available”; scientific uncertainty does not permit an agency to assume away a recognized threat without support in the record.
- Adaptive management and future monitoring may inform management, but they cannot substitute for a present, evidence-based evaluation of foreseeable risks at the delisting stage.
- In evaluating “existing regulatory mechanisms” under ESA § 4, FWS may consider the combined effect of laws, policies, and management commitments; the inquiry is whether the overall protections are reasonably assessed as adequate, not whether each measure is independently enforceable as a regulation.

## Conclusion

The Ninth Circuit set aside the Yellowstone grizzly delisting rule because FWS did not rationally explain, using the best available science, why anticipated whitebark pine decline would not threaten the population, while also holding that the ESA does not automatically preclude reliance on a broader set of management commitments when assessing regulatory protections after delisting.


Greater Yellowstone Coal. v. Servheen, 665 F.3d 1015 (9th Cir. 2011)