Switching from “in danger” to “currently on the brink” of extinction was too much of an unannounced policy change for deciding if grizzly bears in the Cabinet-Yaak ecosystem need more Endangered Species Act protection, according to a federal court ruling.
U.S. District Court Judge Dana Christensen ordered the U.S. Fish and Wildlife Service to backtrack on plans to downgrade federal protection status of the small population of grizzlies in northwest Montana after finding the agency acted in an arbitrary and capricious manner with the wording change.
The 42-page decision was released Tuesday. Christensen granted Alliance for the Wild Rockies summary judgment in its challenge to Interior Secretary Ryan Zinke, FWS Director Daniel Ashe and the county commissioners of Montana’s Lincoln County and Idaho’s Bonner and Boundary counties.
The order restores Cabinet-Yaak grizzlies to “warranted but precluded” for endangered species status, which means it probably qualifies for the highest level of federal protection but the agency doesn’t have the resources to scientifically confirm that conclusion. FWS officials in 2014 reclassified the bears as “threatened,” which is a lower class of protection.
The levels matter because animals or plants with endangered status may deserve additional protections on the landscape where they live, known as critical habitat designation. Under the “threatened” status, the Cabinet-Yaak bears’ survival doesn’t require FWS to make such a designation. Critical habitat rules can force any other land managers to consider the bear’s needs before making any changes such as a timber sale, road construction or mine expansion.
Fewer than 50 grizzly bears inhabit the Cabinet-Yaak mountains. It’s one of the smallest of six recovery zones in Montana, Idaho, Wyoming and Washington. The Northern Continental Divide Ecosystem encompassing Glacier National Park and the Bob Marshall Wilderness Complex holds more than 1,000 grizzlies.
In June, Secretary Zinke ruled that the approximately 700 grizzlies in the Greater Yellowstone Ecosystem around Yellowstone National Park no longer needed ESA protection and turned their management over to state wildlife agencies. That decision has been challenged in court as well.
Alliance for the Wild Rockies (AWR) Director Michael Garrity accused the Fish and Wildlife Service of spending 20 years finding ways of avoiding an “endangered” upgrade for the Cabinet-Yaak grizzlies, despite mounting evidence that the bear population there was shrinking.
AWR sued in 2013, but the case was ruled moot when the agency listed the population as “warranted but precluded.” AWR sued again in 2014, relying on agency documents it claimed showed the agency was changing the designation rules without justification.
In 2010, FWS officials imposed “the polar bear rule” that “clarifies Service policy in regards to the statuary phrase ‘in danger of extinction’ … This policy recognizes this phrase as meaning ‘currently on the brink of extinction in the wild.’ ” The wording came from a 2008 endangered species status review of polar bears.
“In applying this policy to the best available biological data, we conclude that the Cabinet-Yaak grizzly bear population is not currently on the brink of extinction and is no longer warranted for Endangered status and should continue to be listed as Threatened,” a draft version of the grizzly status document stated, according to court records. Christensen ruled that was a policy change without proper review.
“There is no evidence … to suggest that the agency found that the change in policy was permissible under the ESA, believed that the new policy was better than the agencies' prior interpretations, or otherwise provided a good reason for the change,” Christensen wrote. “Accordingly, due to the failure of the FWS to provide a reasonable explanation for why it modified its interpretation of ‘in danger of extinction’ to mean ‘on the brink of extinction,’ the court finds that the December 2014 not-warranted determination was an arbitrary and capricious decision in violation of the (Administrative Policy Act).”
Christensen ordered the agency to reinstate the Cabinet grizzlies’ status as “Warranted but precluded” for protection under the Endangered Species Act. He also advised agency officials that if they wanted to change the bears’ status, they had to publicly display awareness they were changing the policy, show the new policy was legal under the ESA, explain why the new one was better, and provide a reasoned explanation of what the new policy means.