Feds' appeal says federal judge in Missoula overstepped in grizzly delisting case

Federal attorneys pushed their case that Greater Yellowstone Ecosystem grizzly bears should be removed from Endangered Species Act protection, arguing in an appeal filed late Friday the U.S. Fish and Wildlife Service wasn’t required to do a comprehensive review of all grizzlies in the Lower 48 states. The U.S. Department of Justice’s opening salvo to the U.S. 9th Circuit Court of Appeals also accused the lower court judge in Missoula of improperly substituting his opinion of the scientific evidence of grizzly genetic diversity for that of FWS biologists. However, the government said it would not challenge U.S. District Judge Dana Christensen’s ruling that state wildlife agencies aren’t ready to manage the Greater Yellowstone Ecosystem (GYE) bears and haven’t sufficiently studied how delisting one big grizzly population might affect smaller separate populations. Last September, Christensen rejected the service’s 2017 delisting rule covering about 750 grizzlies in the 9,800-square-mile Greater Yellowstone Ecosystem. Christensen found the plan “arbitrary and capricious” on four points:
 • inadequate explanations of how handing bears over to state management and hunting would ensure the bears’ continued survival,
• how delisting grizzlies in one recovery area might affect five other recovery populations,
• whether the Yellowstone grizzlies were too isolated to provide for genetic diversity,
• and whether the service had done a required comprehensive analysis of its delisting plan on the bears.
That left the federal government with two options. It could appeal Christensen’s ruling to the U.S. 9th Circuit Court of Appeals, or go to work writing a new delisting rule that resolved the judge’s criticisms. Both efforts could take two years to complete. Friday’s government brief states the Fish and Wildlife Service (FWS) has already started work fixing some of the problems, but also argues the delisting rule should be reinstated because the judge went too far in his opinion. “The district court erred, however, in ruling that FWS must conduct a ‘comprehensive review’ of the entire listed species, because the Act imposes no such requirement and because courts may not impose procedures not required by statute,” the brief stated. "The court further erred in substituting its scientific judgment for FWS’s on the matter of the bears’ genetic fitness, in violation of the foundational principles of judicial review of agency decision-making.”

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The appeal is embedded below or you can view it here.