A late September decision in the U.S. District Court in Montana has landed the grizzly bear back on the list of threatened species under the Endangered Species Act (ESA), reports the Wildlife Management Institute. Judge Donald Molloy ruled in favor of two claims of the Greater Yellowstone Coalition's lawsuit on September 21, citing the U.S. Fish & Wildlife Service's (FWS) failure to consider the impacts of climate change on the bear's food supply and lack of enforcement in the approved conservation strategy. However the judge denied other claims in the suit regarding genetic diversity in the population and whether the grizzly is recovered across significant portions of its range.

The Greater Yellowstone population of grizzlies was designated as a distinct population segment (DPS) and removed from the ESA in 2007, after being listed as a threatened species for more than 30 years. Once numbering less than 200 bears, the population in the Greater Yellowstone ecosystem increased to approximately 600 bears. The FWS estimates that the bears occupy nearly 70 percent of suitable habitat within the area, which includes portions of Idaho, Montana and Wyoming.

As part of the recovery plan, the FWS worked with state fish and wildlife agencies in these states, as well as with other federal agencies and conservation organizations to develop a conservation strategy for grizzly bear management. The groups involved in the conservation strategy signed a Memorandum of Understanding that they are "committed to maintaining and enhancing the delisted grizzly bear DPS." In addition, the three states crafted their own management plan to guide their efforts outside of the primary conservation area, and the U.S. Forest Service made revisions to forest management plans in the area. However, the FWS acknowledged the conservation strategy as "the plan which will guide management and monitoring of the Yellowstone grizzly bear population and its habitat after delisting."

Judge Molloy ruled with the Greater Yellowstone Coalition that the conservation strategy is unenforceable and nonbinding on state and federal agencies. In his decision, Molloy wrote: "Even if the Conservation Strategy contained sufficient standards the Service has not shown that the state and federal agencies which are signatories to the agreement can be compelled to comply with the Conservation Strategy." His opinion stated that the forest plan amendments and state management plans also focused on monitoring and habitat management guidelines and included few, if any, enforceable standards.

"The majority of the regulatory mechanisms relied upon by the [FWS]?the Conservation Strategy, Forest Plan amendments, and state plans?depend on guidelines, monitoring, and promises, or good intentions for future action," Molloy wrote. "Such provisions are not adequate regulatory mechanisms when there is no way to enforce them or to ensure that they will occur. Furthermore, the Service does not explain how various other laws and regulations will protect the grizzly bear population."

The other primary claim made by the Greater Yellowstone Coalition was that the FWS failed to consider the impacts of declining whitebark pine stands on grizzly bears, since whitebark pine nuts are a primary fall food source for grizzly bears. Whitebark pines have faced significant declines in the Greater Yellowstone ecosystem due to increased forest fires, the mountain pine beetle epidemic and white pine blister rust ? problems that some believe are exacerbated by climate change. However the FWS countered saying that grizzlies are opportunistic omnivores and that they will adjust to any declines in whitebark pines.

Judge Molloy agreed with the plaintiff ruling, "The science relied on by the Service does not support its conclusion that declines in the availability of whitebark pine will not negatively affect grizzly bears. In fact, much of the cited science directly contradicts the Service's conclusions. While the agency's discretion is broad in its area of expertise, the discretion is not unlimited. The record supports the Services' own statements that the extent of declines in whitebark pine and the grizzlies' response is ?uncertain.'"

The bears were immediately placed back on the threatened species list after the ruling that concluded grizzlies would be in jeopardy without the protections afforded by the ESA. (jas)