[Federal Register Volume 82, Number 234 (Thursday, December 7, 2017)]
[Proposed Rules]
[Pages 57698-57699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25995]



Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2017-0089; FXES11130900000C6-178-FF09E42000]

Endangered and Threatened Wildlife and Plants; Possible Effects 
of Court Decision on Grizzly Bear Recovery in the Conterminous United 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Regulatory review; request for comments.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are seeking 
public comment on a recent D.C. Circuit Court of Appeals ruling, Humane 
Society of the United States, et al. v. Zinke et al., 865 F.3d 585 
(D.C. Cir. 2017), that may impact our June 30, 2017, final rule 
delisting the Greater Yellowstone Ecosystem (GYE) grizzly bear Distinct 
Population Segment (DPS). In Humane Society of the United States, et 
al. v. Zinke et al., the court opined that the Service had not 
evaluated the status of the remainder of the listed entity of wolves in 
light of the Western Great Lakes (WGL) wolf DPS delisting action and 
what the effect of lost historical range may have on the status of the 
WGL wolf DPS. We also describe in this notice our strategy to recover 
grizzly bears (Ursus arctos horribilis) in the lower 48 States of the 
United States and provide a brief recovery update for each ecosystem.

DATES: We will accept comments received or postmarked by the end of the 
day on January 8, 2018.

ADDRESSES: Comment submission: You may submit comments by one of the 
following methods:
     U.S. mail or hand-delivery: Public Comments Processing, 
ATTN: FWS-R6-ES-2017-0089, U.S. Fish and Wildlife Service, MS: BPHC, 
5275 Leesburg Pike, Falls Church, Virginia 22041-3803.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R6-

FOR FURTHER INFORMATION CONTACT: Hilary Cooley, Grizzly Bear Recovery 
Coordinator, U.S. Fish and Wildlife Service, University Hall, Room 309, 
Missoula, MT 59812; by telephone (406) 243-4903. Persons who use a 
telecommunications device for the deaf may call the Federal Relay 
Service at (800) 877-8339.



    In 1975, the Service listed the grizzly bear (Ursus arctos 
horribilis) under the Endangered Species Act (ESA; 16 U.S.C. 1531 et 
seq.) as threatened in the lower 48 United States (40 FR 31734, July 
28, 1975). On June 30, 2017, the Service published a final rule (82 FR 
30502, June 30, 2017; RIN 1018-BA41) designating the GYE population of 
grizzly bears as a DPS, finding that the DPS was recovered, and 
removing that DPS from the Federal List of Endangered and Threatened 
Wildlife. The final rule became effective on July 31, 2017, and remains 
in effect. Grizzly bears in the remaining area of the lower 48 States 
remain listed as threatened under the ESA as amended. The status of any 
grizzly bear population may be changed only through formal rulemaking.
    On August 1, 2017, the Court of Appeals for the District of 
Columbia Circuit issued a ruling, Humane Society of the United States, 
et al. v. Zinke et al., 865 F.3d 585 (D.C. Cir. 2017), that affirmed 
the prior judgement of the district court vacating the 2011 delisting 
rule for wolves in the Western Great Lakes (WGL) (76 FR 81666, December 
28, 2011). The 2011 rule designated the gray wolf population in 
Minnesota, Wisconsin, and Michigan, as well as portions of six 
surrounding States, as the WGL DPS, determined that the WGL DPS was 
recovered, and delisted the WGL as a DPS.
    This court opinion may impact the GYE final rule, which also 
designated a portion of an already-listed entity as a DPS and then 
revised the listed entity by removing the DPS due to recovery. 
Therefore, we are reviewing the potential implications for the GYE 
final rule in light of the Humane Society ruling. We are seeking public 
comment on this subject (see Request for Public Comments). Below we 
summarize our recovery strategy to assist the public in providing 
public comment on the impacts that Humane Society might have on grizzly 

Recovery Strategy

    The grizzly bear was originally distributed in various habitats 
throughout Western North America from Central Mexico to the Arctic 
Ocean. Current distribution in the lower 48 States consists of five 
small populations with an estimated total population of 1,800 bears. 
The 1993 Grizzly Bear Recovery Plan (USFWS 1993, p. 15) identified 
seven grizzly bear ecosystems, including five with either self-
perpetuating or existing populations and two additional areas, the 
Bitterroot Mountains in Idaho and the San Juan Mountains in Colorado, 
where grizzly bears are known to have existed in the recent past. While 
no resident population currently exists in the Bitterroot Ecosystem, 
that ecosystem contains adequate habitat to sustain a population. The 
Recovery Plan suggests that further evaluation is needed on the status 
of the San Juan Mountains, where no grizzly bears exist today (USFWS 
1993, p.16).
    The Service's overarching vision for recovery of grizzly bears in 
the lower 48 States, to recover and delist populations individually in 
each of the ecosystems as recovery is achieved, was outlined in the 
Recovery Plan (USFWS 1993, pp. 16, 33) and further discussed in our 
2011 5-year status review (USFWS 2011, pp. 12-14). The review also 
found that the lower-48-State listing is consistent with our 1996 DPS 
Policy and recommended that the current entity, on the whole, should 
retain its threatened status (USFWS 2011, p. 104). We recognized that 
sufficient evidence exists to support multiple DPSs within the lower-
48-State listing, but indicated that further subdivision of the lower-
48-State listing was unnecessary at the time (USFWS 2011, p. 14). Prior 
to the 5-year status review, the Service had attempted to delist the 
GYE grizzly bear population as a DPS (72 FR 14866, March 29, 2007). 
That determination was subsequently vacated by the Federal District 
Court for the District of Montana (Greater Yellowstone Coalition v. 
Servheen et al., 672 F.Supp. 2d 1105 (D. Mont. 2009), and the vacatur 
was upheld by the Ninth Circuit in Greater

[[Page 57699]]

Yellowstone Coalition v. Servheen, et al., 665 F.3d 1015 (9th Cir. 
    The 2011 5-year status review also committed to an evaluation of 
potential DPSs within the lower-48-State listing to determine whether 
they are near the point where rulemaking is warranted or appropriate 
(e.g., when recovery is achieved and delisting may be warranted; or 
when listing funds become available to address those populations for 
which we determined that reclassifying to endangered status was 
warranted but precluded) (USFWS 2011, p. 14). The GYE was the first 
ecosystem to achieve recovery and was the first population to be 

Recovery Status

    There are approximately 1,800 grizzly bears in the lower 48 States. 
The population and legal status under the ESA of each ecosystem is as 
    (1) The GYE: Had approximately 695 bears in 2016 (Van Manen and 
Harodson 2017, p. 3)--delisted due to recovery July 31, 2017 (82 FR 
30502, June 30, 2017);
    (2) The Northern Continental Divide Ecosystem: Had approximately 
960 bears in 2014 (Costello et al. 2017, p. 2)--still listed as 
threatened (likely biologically recovered, although no decision has 
been made);
    (3) The Selkirk Ecosystem: Had approximately 70-80 bears in 2016 
(Kasworm et al. 2017)--still listed as threatened;
    (4) The Cabinet Yaak Ecosystem: Had approximately 56 bears in 2016 
(Kasworm et al. 2017)--warranted-but-precluded for uplisting to 
endangered (August 22, 2017, court order);
    (5) The North Cascades Ecosystem (NCE): Contains no confirmed 
grizzly bears in the United States (U.S. DOI 2016) and an estimated 6 
individuals in the adjacent British Columbia portion of the NCE (MFLNRO 
2012)--warranted-but-precluded for endangered status (81 FR 87264, 
December 2, 2016);
    (6) The Bitterroot Ecosystem: Currently unoccupied (IGBC 2015)--
Nonessential Experimental Population Area (65 FR 69624, November 17, 

Next Steps and Timing

    The Service is evaluating the Court's ruling in Humane Society of 
the United States, et al. v. Zinke et al., in the context of our final 
determination regarding the GYE grizzly bear final rule (82 FR 30502, 
June 30, 2017) to consider what impact, if any, the D.C. Circuit Court 
of Appeal ruling has on the GYE grizzly bear final rule and what 
further evaluation should be considered regarding the issues raised in 
Humane Society. We will address public comments and notify the public 
of our conclusions by March 31, 2018. The GYE final delisting rule will 
remain in effect during this review process, and the status of grizzly 
bears throughout the rest of the range will remain unchanged.

Request for Public Comments

    We invite written comments on the manner in which the Humane 
Society decision may affect the GYE grizzly bear final rule (82 FR 
30502, June 30, 2017). Specifically, we are interested in public input 
on whether the Humane Society opinion affects the GYE grizzly bear 
final rule and what, if any, further evaluation the Service should 
consider regarding the remaining grizzly bear populations and lost 
historical range in light of the Service's decision regarding the GYE 
grizzly bear.
    We request comments from any interested party that pertain to the 
issues raised in the preceding paragraph only. We will consider all 
comments received by the date specified in DATES. You must submit your 
comments and supporting materials by one of the methods listed in 
ADDRESSES. We will not consider comments sent by email or fax, or 
written comments sent to an address other than the one listed in 

Public Availability of Comments

    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request that we withhold this 
information from public review, but we cannot guarantee that we will be 
able to do so. We will post all hardcopy comments on http://www.regulations.gov. Comments and materials we receive will be 
available for public inspection at http://www.regulations.gov, or by 
appointment, during normal business hours, at the Grizzly Bear Recovery 

References Cited

    A complete list of all reference cited herein is available at 
https://www.regulations.gov in Docket No. FWS-R6-ES-2017-0089, or upon 
request from the Grizzly Bear Recovery Office (see FOR FURTHER 

    Authority: This document is published under the authority of the 
Endangered Species Act, as amended (16 U.S.C. 1531 et seq.).

    Dated: November 1, 2017.
Stephen Guertin,
Deputy Director, U.S. Fish and Wildlife Service, Exercising Authority 
of Director, U.S. Fish and Wildlife Service.
[FR Doc. 2017-25995 Filed 12-6-17; 8:45 am]