2010-6802. Endangered and Threatened Wildlife and Plants; Reinstatement of Protections for the Grizzly Bear in the Greater Yellowstone Ecosystem in Compliance With Court Order

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service) are issuing this final rule to comply with a court order that has the effect of reinstating the regulatory protections under the Endangered Species Act of 1973 (ESA), as amended, for the grizzly bear (Ursus arctos horribilis) in the Greater Yellowstone Area (GYA) and surrounding area. This rule corrects the grizzly bear listing to reinstate the listing of grizzly bears in the GYA. This final rule also takes administrative action to correct two associated special rules.

DATES:

This action is effective March 26, 2010. However, the court order had legal effect immediately upon being filed on September 21, 2009.

FOR FURTHER INFORMATION CONTACT:

Dr. Christopher Servheen, Grizzly Bear Recovery Coordinator, U.S. Fish and Wildlife Service, at our Missoula office (see ADDRESSES above) or telephone [phone]. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at [phone] for TTY assistance.

SUPPLEMENTARY INFORMATION:

Background

On March 29, 2007, we announced the establishment of a distinct population segment (DPS) of the grizzly bear (Ursus arctos horribilis) for the GYA and surrounding area and removed this DPS from the List of Threatened and Endangered Wildlife (72 FR 14866). In that rule, we determined that the Yellowstone grizzly bear population was no longer an endangered or threatened population pursuant to the ESA (16 U.S.C. 1531 et seq.), based on the best scientific and commercial data available. Robust population growth, coupled with State and Federal cooperation to manage mortality and habitat, widespread public support for grizzly bear recovery, and the development of regulatory mechanisms, brought the Yellowstone grizzly bear population to the point where making a change to its status was appropriate.

Subsequently, three lawsuits challenging our decision were filed in Federal courts in Boise, Idaho, and in Missoula, Montana. Legal briefings in these cases were completed in 2008.

In the Montana case, the plaintiff presented four claims including: (1) The regulatory mechanisms to protect the grizzly once it is delisted are inadequate; (2) the Service did not adequately consider the impacts of global warming and other factors on whitebark pine nuts, a grizzly food source; (3) the population is unacceptably small and dependent on translocation of outside animals for genetic diversity; and (4) the Service did not properly consider whether the grizzlies were recovered across a significant portion of their range.

On September 21, 2009, the Montana District Court issued an order in which plaintiffs prevailed on the first and second counts, while the United States prevailed on the third and fourth counts. The court's order vacated the delisting and remanded it to the Service. Thus, this final rule is required to correct the Yellowstone grizzly bear population's listing status.

The United States is considering whether to appeal this decision. Regardless, this final rule is necessary because this process, should we move forward with an appeal, would likely take several years to complete.

The grizzly bear is a member of the brown bear species (U. arctos) that occurs in North America, Europe, and Asia; the subspecies U. a. horribilis is limited to North America (Rausch 1963, p. 43; Servheen 1999, pp. 50-53). The original 1975 grizzly bear listing (40 FR 31734-31736, July 28, 1975) established the listed entity as U. a. horribilis. However, the entry for grizzly bear in the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) was later modified inadvertently to U. arctos with a historic holarctic range. We corrected the listed entity back to its original form in the March 29, 2007, final rule (72 FR 14866), which again set forth the listed entity as U. arctos horribilis with a historic range of North America. With this final rule, we make this same correction to the special regulations found at 50 CFR 17.40(b) and 17.84(l).

Administrative Procedure

This rulemaking is necessary to comply with the September 21, 2009, court order. Therefore, under these circumstances, the Director has determined, pursuant to 5 U.S.C. 553(b), that prior notice and opportunity for public comment are impractical and unnecessary. The Director has further determined, pursuant to 5 U.S.C. 553(d), that the agency has good cause to make this rule effective upon publication.

Effects of the Rule

As of the filing of the respective court order, any and all grizzly bears in the GYA are listed as a threatened species under the ESA. Because the Court vacated the entire delisting rule and remanded it to the Service, there is no longer a GYA grizzly bear DPS. Thus, all grizzly bears in the lower 48 States are again listed as threatened (50 CFR 17.11(h)). An existing 4(d) rule again applies to this population (50 CFR 17.40(b)).

This rule will not affect the grizzly bear's Appendix II status under the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES).

List of Subjects in 50 CFR Part 17

• Endangered and threatened species
• Exports
• Imports
• Reporting and recordkeeping requirements
• Transportation

Regulation Promulgation

Accordingly, in order to comply with the court orders discussed above, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend § 17.11 by revising the entry in the table at paragraph (h) for “Bear, grizzly” as follows:

§ 17.11

[Amended]

* * * * *

(h) * * *

Species		Historic range	Vertebrate population where endangered or threatened	Status	When listed	Critical habitat	Special rules
Common name	Scientific name
Mammals
*         *         *         *         *         *         *
Bear, grizzly	Ursus arctos horribilis	North America	U.S.A., conterminous (lower 48) States, except where listed as an experimental population	T	1, 2D, 9, 759	NA	17.40(b)
Do	do	do	U.S.A. (portions of ID and MT, see 17.84(l))	XN	706	NA	17.84(l)

* * * * *

§ 17.40

[Amended]

3. Amend § 17.40 by adding the word “horribilis” after the word “arctos” in paragraph (b) heading and in the definition of “Grizzly bear” in paragraph (b)(2).

§ 17.84

[Amended]

4. Amend § 17.84 by adding the word “horribilis” after the word “arctos” in paragraph (l) heading.

Dated: March 9, 2010.

Daniel M. Ashe,

Acting Director, U.S. Fish and Wildlife Service.