ELR Citation: ELR 20214
No(s). 07-134 (D. Mont. Sep 21, 2009)

A district court vacated and remanded FWS' final rule designating a distinct population segment (DPS) for the Greater Yellowstone Area grizzly bear population and removing that population from the threatened species list under the ESA. The FWS did not comply with the ESA in its consideration of the adequacy of existing regulatory mechanisms for purposes of delisting. The majority of the regulatory mechanisms relied upon by the FWS—its conservation strategy, forest plan amendments, and state plans—depend on guidelines, monitoring, promises, or good intentions for future action. Such provisions are not adequate regulatory mechanisms when there is no way to enforce them or to ensure that they will occur. Nor did the FWS explain how various other laws and regulations will protect the grizzly bear population. In addition, the FWS failed to adequately consider impacts of global warming and other factors on whitebark pine nuts, a grizzly food source. The agency failed to articulate a rational connection between the best available science and its conclusion that bears will not be affected by declines in whitebark pine because they are omnivorous. Accordingly, because harm to the grizzly bear is likely to occur if the DPS is delisted, the court enjoined the FWS from removing the Yellowstone grizzly bear DPS from the list of threatened species.