The Importance of an Agency Record - Court Finds that Yellowstone Grizzly Bears Still Need ESA Protection


In 2007, the Greater Yellowstone Coalition (“Coalition”) filed a lawsuit against the U.S. Fish and Wildlife Service (“Service”), Greater Yellowstone Coalition Inc. v. Servheen, challenging the Service’s final rule (“Rule”) to remove the Yellowstone distinct population segment of grizzly bears from the Endangered Species Act’s threatened species list.  The Coalition prevailed on summary judgment, convincing the district court that two key grounds supporting the Rule – 1) adequate regulatory mechanisms were in place to protect the grizzly and 2) declines in whitebark pine did not threaten the grizzly - were not rationally supported by the record.  The Ninth Circuit Court of Appeals affirmed in part and reversed in part, reiterating the importance of a well-documented Agency record.

The court reversed on the first issue and directed the district court to enter summary judgment for the government, finding that ample evidence in the record supported the conclusion that existing regulatory mechanisms set forth in an inter-agency, multi-state cooperative agreement are adequate to protect a recovered Yellowstone grizzly population.  However, the court agreed that the Rule did not articulate a rational connection between the data, which indicated that the Yellowstone grizzly bears are heavily dependent on whitebark pine seeds as one of four primary food sources, and the Service’s conclusion that whitebark pine declines were not likely to threaten the Yellowstone grizzly bear because any such threat could be addressed by “adaptive management.” 

The court found the Service’s reliance on “adaptive management” insufficient because it did not identify specific management responses tied to more specific triggering criteria.  It then affirmed the district court's ruling in favor of the Coalition on this issue.  Since both of these grounds were necessary to uphold the Rule, the court also affirmed the district court's judgment vacating the Rule.

This decision underscores the importance of having a record that supports an agency decision, even if the decision is based on agency expertise or scientific judgment.  While courts normally defer to agency expertise and decisions in the face of scientific uncertainty, the courts will not apply this deference in situations when the record supports a different conclusion and the agency appears to be using “scientific uncertainty” to select a particular outcome.