(CN) - A population of grizzly bears in the greater Yellowstone region can remain on the Endangered Species List, the 9th Circuit ruled Tuesday, holding plans to delist the species because federal wildlife officials have not studied the potential long-term effects of declining whitebark pine tree.
Whitebark, one of several species of pine imperiled by climate change and deadly bark-beetle infestations across the west, produces seeds whose high fat content make it a prehibernation staple for the region's distinct population of more than 500 grizzlies. Greater Yellowstone includes northwestern Wyoming, southern Montana, and northeastern Idaho. In a 2007 plan to delist grizzlies, which have seen a robust recovery since entering the list as threatened in 1975, the U.S. Fish and Wildlife Service speculated that the bears would adapt and find some other food source to replace the seeds if the tree were to disappear from the region altogether.
The Greater Yellowstone Coalition sued the service in Montana, arguing, among several issues, that the service's plan for protecting the grizzlies after delisting had failed to adequately consider the whitebark pine issue. It also questioned whether there was a sufficient regulatory structure in place to protect the grizzly in the absence of the Endangered Species Act, arguing that many of the protections put forth by the service were voluntary.
U.S. District Judge Donald Molloy agreed, granting summary judgment to the coalition and vacating the service's plan.
The 9th Circuit on Tuesday agreed that the agency had failed to address a potential whitebark pine calamity. Since the federal appeals court found merit with the recovery plan in general, however, it reversed Molloy's decision about the bears' post-list protection.
Admitting uncertainty as to how grizzlies will deal with the decline of the whitebark pine in the greater Yellowstone region does not excuse the agency's failures, the Portland, Ore.-based appellate judges ruled.
"We recognize that scientific uncertainty generally calls for deference to agency expertise," Judge Richard Tallman wrote for the three-judge panel. "But we nonetheless have a responsibility to ensure that an agency's decision is not arbitrary. It is not enough for the service to simply invoke 'scientific uncertainty' to justify its action. The service must rationally explain why the uncertainty regarding the impact of whitebark pine loss on the grizzly counsels in favor of delisting now, rather than, for example, more study. Otherwise, we might as well be deferring to a coin flip."
But a number of legally binding federal regulations will still protect the bears if they lose their spot on the Endangered Species List, according to the court, disagreeing with the coalition and Molloy.
Judge Sidney Thomas argued otherwise in a partially dissenting opinion.
"Good intentions are not rules of law," he wrote. "Unenforceable aspirational goals are not regulatory mechanisms. Promises to monitor, review, and convene committees do not satisfy the statutory requirement."
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