83 FR 18737 - Endangered and Threatened Wildlife and Plants; Review of 2017 Final Rule, Greater Yellowstone Ecosystem Grizzly Bears

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 83, Issue 83 (April 30, 2018)

We, the U.S. Fish and Wildlife Service (Service), announce our determination that our 2017 final rule to designate the population of grizzly bears in the Greater Yellowstone Ecosystem (GYE) as a distinct population segment and remove that population from the Endangered Species Act's List of Endangered and Threatened Wildlife does not require modification. After considering the best scientific and commercial data available and public comments on this issue received during a regulatory review, we affirm our decision that the GYE population of grizzly bears is recovered and should remain delisted under the Act. Accordingly, the Service does not plan to initiate further regulatory action for the GYE grizzly bear population.

[Federal Register Volume 83, Number 83 (Monday, April 30, 2018)]
[Rules and Regulations]
[Pages 18737-18743]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09095]



[[Page 18737]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

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


Endangered and Threatened Wildlife and Plants; Review of 2017 
Final Rule, Greater Yellowstone Ecosystem Grizzly Bears

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Regulatory review; determination.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 
determination that our 2017 final rule to designate the population of 
grizzly bears in the Greater Yellowstone Ecosystem (GYE) as a distinct 
population segment and remove that population from the Endangered 
Species Act's List of Endangered and Threatened Wildlife does not 
require modification. After considering the best scientific and 
commercial data available and public comments on this issue received 
during a regulatory review, we affirm our decision that the GYE 
population of grizzly bears is recovered and should remain delisted 
under the Act. Accordingly, the Service does not plan to initiate 
further regulatory action for the GYE grizzly bear population.

DATES: This determination is made April 30, 2018.

ADDRESSES: Supplementary documents to this determination, including 
public comments received, can be viewed online at http://www.regulations.gov in Docket No. FWS-R6-ES-2017-0089.

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.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), are issuing this document as a followup to a prior Federal 
Register document regarding Greater Yellowstone Ecosystem (GYE) grizzly 
bears published on December 7, 2017 (82 FR 57698). In that Federal 
Register document, we asked for public comments on the impact of a 
court ruling on our final rule (82 FR 30502, June 30, 2017) designating 
the GYE population of grizzly bears as a distinct population segment 
(DPS) and removing that population from the protections of the 
Endangered Species Act (Act; 16 U.S.C. 1531 et seq.). Hereafter 
referred to as the ``Final Rule,'' the June 2017 rule removed the GYE 
population of grizzly bears from the List of Endangered and Threatened 
Wildlife (List) in title 50 of the Code of Federal Regulations (50 CFR 
17.11(h)).
    The referenced court opinion from the United States Circuit Court 
of Appeals for the D.C. Circuit, Humane Society of the U.S. v. Zinke, 
865 F.3d 585 (D.C. Cir. 2017), addressed the analysis undertaken to 
designate a DPS from a previously listed entity and remove that DPS 
from the List (i.e., ``delist'' it). We believe that the 2017 decision 
to remove the GYE population of grizzly bears from the List complies 
with the Act, but we decided to consider issues relating to the 
remainder of the grizzly bear population in the lower 48 States in 
light of the Humane Society opinion. After considering the best 
scientific and commercial data available regarding the grizzly bear 
population in the lower 48 States, the species' historical range, and 
public comments received, the Service has determined that the Final 
Rule delisting the GYE DPS does not require modification and that the 
remainder of the population will remain protected under the Act as a 
threatened species unless we take further regulatory action. We affirm 
our decision that the GYE population of grizzly bears is recovered and 
should remain delisted under the Act.

Background

    In 1975, the Service listed the grizzly bear (Ursus arctos 
horribilis) in the lower 48 United States as a threatened species under 
the Act (40 FR 31734, July 28, 1975). In designating the GYE population 
of grizzly bears as a DPS in 2017 and removing the population from the 
List, the Service did not reopen the 1975 listing rule through the 
Final Rule. Rather, the Service identified the GYE grizzly bears as a 
DPS, concluded that the GYE population was stable, threats were 
sufficiently ameliorated, and a post-delisting monitoring and 
management framework had been developed and incorporated into 
regulatory mechanisms or other operative documents. The best scientific 
and commercial data available, including our detailed evaluation of 
information related to the population's trend and structure, indicated 
that the GYE grizzly bear DPS had recovered and threats had been 
reduced such that it no longer met the definition of a threatened or 
endangered species under the Act. The Final Rule became effective on 
July 31, 2017, and remains in effect, as does the 1975 listing that 
applies to the lower 48 States population except for the GYE DPS.
    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, 865 F.3d 585 (D.C. Cir. 2017), that affirmed in part 
the prior judgment of the district court vacating the 2011 delisting 
rule (76 FR 81666, December 28, 2011) for wolves in the Western Great 
Lakes (WGL). 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. The D.C. Circuit ruled that, 
while the Service had the authority to designate a DPS and delist it in 
the same rule, the Service violated the Act by designating and 
delisting the WGL wolf DPS without evaluating the implications for the 
remainder of the listed entity of wolves after delisting the DPS. The 
court also ruled that the Service failed to analyze the effect of lost 
historical range on the WGL wolf DPS. In light of this ruling, we asked 
for public input to aid our consideration of whether the GYE delisting 
determination should be revisited and what, if any, further analysis 
was necessary regarding the remaining grizzly bear populations and lost 
historical range.

Regulatory Approach in the Final Rule

    The Service's determination to designate the GYE population as a 
DPS and delist it, while deciding not to revisit the 1975 listing and 
leaving it in place for the remainder of the population, was consistent 
with the Act, with Service policies, and with the Department's 
longstanding legal interpretation. In section 4(a) of the Act, the 
Service is authorized to identify and evaluate ``any species.'' (16 
U.S.C. 1533(a)(1)). This includes any DPS of any species of vertebrate 
fish or wildlife. (16 U.S.C. 1532(16)). The Service determines a 
species' status, i.e., whether it is threatened or endangered, after 
considering the five factors listed in section 4(a)(1) of the Act. (16 
U.S.C. 1533(a)(1)(A)-(E)). The Act imposes a mandatory duty on the 
Secretary to notify the public of these determinations by maintaining a 
list. Specifically, section 4(c)(1) of the Act requires the Secretary 
to ``publish in the Federal Register a list of all species determined 
by him or the Secretary of Commerce to be endangered species and a list 
of all species determined by him or the Secretary of Commerce to be 
threatened species.'' (16 U.S.C.

[[Page 18738]]

1533(c)(1)). The Act requires the Secretary, ``from time to time,'' to 
revise the lists ``to reflect recent determinations, designations, and 
revisions. . . .'' (16 U.S.C. 1533(c)(1)).
    This framework is addressed in detail in a Memorandum Opinion from 
the Department of the Interior's Office of the Solicitor (M-37018, U.S. 
Fish and Wildlife Service Authority under Section 4(c)(1) of the 
Endangered Species Act to Revise Lists of Endangered and Threatened 
Species to ``Reflect Recent Determinations,'' December 12, 2008 (M-
Opinion)). The M-Opinion explained that, when the Service lists an 
entire species, the Service may be effectively listing several smaller 
separately listable entities because, as set forth in Service 
regulations, listing a particular taxon includes all lower taxonomic 
units. (M-Opinion, p. 7; see also 50 CFR 17.11(g)). The M-Opinion 
states that ``when identifying and removing a DPS from a broader 
species listing, . . . [the Service] is separately recognizing an 
already-listed entity for the first time because it now has a different 
conservation status than the whole.'' Id. As explained above, once that 
DPS is identified as being separate from the listed whole, the Act 
requires the Service to update the List. Id. at p. 3. The Humane 
Society court considered the M-Opinion and upheld the Solicitor's 
interpretation of the Act: ``We hold that the Service permissibly 
concluded that the Endangered Species Act allows the identification of 
a distinct population segment within an already-listed species, and 
further allows the assignment of a different conservation status to 
that segment if the statutory criteria for uplisting, downlisting, or 
delisting are met.'' Humane Society, 865 F.3d at 600.
    Some commenters on the December 7, 2017, Federal Register document 
argued that section 4(c)'s requirements to maintain the lists of 
endangered and threatened species, and to review those lists 
periodically, prohibit the Service from focusing a regulatory action on 
a DPS (one part of a broader entity). We reject this view as 
inconsistent with the Act. As explained above, and in the referenced M-
Opinion, section 4(c)(1) of the Act imposes a mandatory duty on the 
Secretary of the Interior to publish and maintain the lists of all of 
the species that either the Secretary of the Interior or the Secretary 
of Commerce has determined to be endangered species or threatened 
species under section 4(a)(1). The regulations (50 CFR 17.11(a)) 
contemplate that a single taxonomic species, or components thereof, can 
be the subject of multiple listing actions under section 4(a)(1) and, 
therefore, can have more than one entry on the lists. Thus, section 
4(c)(1), consistent with section 4(a)(1) and 50 CFR 17.11(a), allows 
the Secretary of the Interior, through the Service, to document the 
legal effect of multiple listing entries for a taxonomic species, for 
instance by including multiple entries for a taxonomic species or by 
revising a list to reflect that a recent determination superseded all 
or part of a previous listing action.
    Nothing in section 4(c)(2) is to the contrary. It requires the 
``Secretary'' to periodically review the species on the List. Thus, at 
least every 5 years, the lists must be reviewed to determine if a 
species over which the Secretary has authority should be removed, 
downlisted from endangered to threatened, or uplisted from threatened 
to endangered. (16 U.S.C. 1533(c)(2)). This requirement incorporates 
the listing determination provisions at sections 4(a) and 4(b), and is 
separate from the requirement to revise the lists in section 4(c)(1). 
The requirement in section 4(c)(2) that both Secretaries review the 
species on the lists at least once every 5 years does not limit or add 
to the section 4(c)(1) requirement for the Secretary of the Interior to 
revise the lists to reflect recent determinations made by either 
Secretary. Nothing in the Act requires the Service to undertake a 5-
year review of a listed species contemporaneously with taking an action 
on a lower taxonomic unit within the species. Simply put, sections 
4(a)(1) and 4(c)(2) of the Act respectively require both Secretaries to 
make and periodically review listing determinations with respect to 
species, subspecies, and DPSs, while section 4(c)(1) creates a separate 
and independent regulatory obligation for the Secretary of the Interior 
to revise the lists to reflect listing determinations.
    Targeted rulemaking on a DPS, without also reopening prior listing 
rules or expanding our inquiry to other species, furthers the purposes 
and objectives of the Act. The approach allows the Service the 
flexibility to either uplist or downlist a DPS of an already-listed 
entity without diverting agency resources to determining the overall 
status of the broader entity. In addition, targeted rulemaking furthers 
Congress's intent to focus the Act's protections and Service resources 
on those species that truly qualify as threatened or endangered or that 
require another change in regulatory status. Focusing on recovered DPSs 
serves other policy objectives. The principal goal of the Act is to 
return listed species to a point at which protection under the Act is 
no longer required. Once a species is recovered, its management should 
be returned to the States. Our approach furthers that objective. It 
also creates incentives for Federal-State cooperative efforts to 
achieve recovery. This approach also avoids needless expenditure of 
scarce Federal funds on populations that are no longer threatened or 
endangered.
    Following the framework in section 4 of the Act, the Service can 
determine the status of a DPS consistent with the Service's DPS policy. 
(61 FR 4722 (February 7, 1996)). We can proceed in different ways when 
addressing a DPS. For example, we can revisit the listing of a 
taxonomic species and designate multiple DPSs of that species or we can 
keep the listing of the taxonomic species in place and reclassify one 
or more of its DPSs. The latter course is permissible, as a DPS 
designation identifies a population within a taxonomic species or 
subspecies. (16 U.S.C. 1532(16); defining a DPS as a ``segment of'' a 
species). Under the Act, designating a DPS does not automatically split 
or carve up a taxonomic entity, but merely recognizes that a DPS is a 
population within a taxonomic entity. Thus, focused regulatory action 
on listing or delisting a DPS is appropriate under the Act and 
consistent with the Act's purposes of providing the Service with 
discretion to order priorities and take regulatory action that best 
serves the policies and purposes of the Act.
    In the GYE DPS rulemaking action, the Service designated a valid 
species, the GYE DPS, that is a segment of the 1975 listed entity, and 
then applied the five factors to the DPS. The Service determined that 
the species did not qualify as threatened or endangered. Once the 
determination regarding the GYE grizzly bear DPS was made, the 
Secretary had made a decision for purposes of the listing requirements 
in section 4(c) and he was required to modify the list to reflect his 
new determination. There is no corresponding requirement to modify the 
original listed entity or to separately assess its status.
    By taking regulatory action on the DPS itself and not revisiting 
the 1975 rulemaking, we did not reopen the lower-48-States listing, 
which does not now include the GYE DPS. All of the grizzly bears in the 
lower 48 States remain listed as threatened, except where superseded by 
the GYE DPS delisting. (82 FR 30503, 30546, 30552, 30623, 30624, 30628, 
June 30, 2017). We concluded that ``it is not an efficient use of our 
limited resources to initiate a rulemaking process to revise the lower-

[[Page 18739]]

48-States listing. Such a rulemaking would provide no more information 
about our intentions for grizzly bear recovery than the parameters and 
documents already guiding our existing grizzly bear recovery program.'' 
(82 FR 30623, June 30, 2017).
    The regulatory action in the Final Rule is consistent with our 
recovery strategy for all grizzly bears in the coterminous lower 48 
States. The Final Rule discusses the recovery strategy for lower-48-
States grizzly bears, including the Recovery Plan, which provided 
management goals for six different grizzly bear populations identified 
by ecosystems. The Recovery Plan identifies unique demographic recovery 
criteria for each ecosystem population, and states that it is the 
Service's goal to delist individual populations as they recover. Thus, 
the Service's action in delisting the GYE DPS is consistent with the 
Recovery Plan. The GYE population is the first of the six populations 
to recover. We note, however, that the population in the Northern 
Continental Divide Ecosystem may be eligible for delisting in the near 
future. The Service's data indicates that this population has likely 
met recovery goals. Other populations may be uplisted, downlisted, or 
delisted based on their overall health and numbers.
    In summary, the Service has appropriately considered the impact of 
the GYE delisting on the lower-48-States population of grizzly bears. 
The Final Rule properly implemented the recovery strategy by employing 
discrete rulemaking with respect to the GYE population of grizzly 
bears. The Service has the discretion under the Act to engage in 
targeted rulemaking for a DPS--a species as defined under the Act--and 
to determine its status based on the five factors set forth in section 
4(a)(1). While the Service must revise its lists of endangered and 
threatened species from time to time to reflect new determinations, 
section 4(c)(2) imposes no corollary obligation to revisit past rules 
affecting that species at the same time. The Service can designate a 
DPS from a prior listing and take action on that DPS without reopening 
the prior listing. Therefore, we disagree with Humane Society to the 
extent it can be read to impose an obligation with respect to the 
broader listing when designating a DPS from that listing. However, as 
explained below, we decided to further consider the impact of the GYE 
DPS delisting on the lower-48-States grizzly bear population and 
whether further regulatory action is required for the GYE DPS 
delisting.

Response to Comments

    The Service received more than 3,600 comments on the adequacy of 
the Final Rule in light of Humane Society. A number of comments were 
outside the scope of our request for public comments. Responsive 
comments ranged from contentions that the Final Rule is adequate in 
light of Humane Society and further evaluation is not needed to 
assertions that Humane Society renders the Final Rule invalid. Issues 
and new information raised during the public comment period were 
incorporated into the analysis presented in this document and were 
analyzed in more detail in a supporting document. For detailed 
summaries of and responses to public comments, see the Supporting 
Documents in Docket No. FWS-R6-ES-2017-0089 at http://www.regulations.gov.

Assessment

    Commenters responding to the December 7, 2017, Federal Register 
document expressed concern about the protections and status of grizzly 
bears located outside of the GYE DPS boundaries. We did address these 
concerns in our Final Rule, explaining that grizzly bears outside the 
DPS boundaries remain fully protected as a threatened species under the 
Act, that our recovery strategy will continue to focus on ecosystem-
wide recovery zones, and that the DPS delisting does not affect the 
status or likely recovery of other grizzly bear recovery zone 
populations (through connectivity, exchange, etc.). However, in view of 
the Humane Society decision and the public comments received, we 
address these issues in greater detail below, including the status of 
the GYE DPS, the status of the lower-48-States entity, the impact of 
the GYE delisting on the lower-48-States entity, the impact of the 
lower-48-States entity on the GYE DPS, and the impact of lost 
historical range.

Status of the GYE DPS

    In our Final Rule, we found that the GYE grizzly bear population is 
discrete from other grizzly bear populations and significant to the 
remainder of the taxon (i.e., Ursus arctos horribilis). Therefore, it 
is a listable entity under the Act and under our DPS Policy (61 FR 
4722, February 7, 1996). The Service concluded that the GYE grizzly 
bear population has recovered to the point at which protection under 
the Act is no longer required. The best scientific and commercial data 
available indicate that the GYE grizzly bear DPS is not endangered or 
threatened throughout all or a significant portion of its range. We are 
aware of no information that would warrant revisiting this 
determination.

Status of the Lower-48-States Entity

    The 1975 final rule listed grizzly bears in the lower 48 States as 
threatened (40 FR 31734, July 28, 1975). In the Final Rule, we noted 
that the grizzly bears occurring outside of the boundary of the GYE DPS 
in the lower 48 States remain threatened and therefore protected by the 
Act (82 FR 30503, 30546, 30552, 30623, 30624, 30628, June 30, 2017). 
The Service has the discretion to revisit this determination at a later 
time, although it is not required now as explained above, and we may do 
so as we consider other populations within the lower-48-States entity.

Impact of GYE Delisting on the Lower-48-States Entity

    As explained above, the Final Rule did not reopen the 1975 listing 
rule, although it no longer covers the GYE DPS. The 1975 listing 
remains valid. Although the ESA does not require an analysis of the 
Final Rule's impact on the 1975 listing, we conduct that analysis here 
in response to public comments. It is possible that delisting a DPS of 
an already-listed species could have negative effects on the status of 
the remaining species. For example, removing the Act's protections from 
one population could impede recovery of other still-listed populations 
(82 FR 30556-30557, June 30, 2017). For grizzly bear, delisting the GYE 
DPS could have implications for the remaining populations that have not 
yet achieved recovery. One possible implication could be that delisted 
grizzly bears inside the GYE DPS may be subject to increased mortality, 
which could reduce grizzly bear dispersal into other recovery zones. A 
map of grizzly bear recovery areas is available at https://www.fws.gov/mountain-prairie/es/species/mammals/grizzly/GBdistributions.jpg. While 
natural connectivity between recovery zones is not a recovery criterion 
for any of the recovery zones, it is one of our long-term objectives 
(USFWS 1993, p. 24, entire) as it would likely speed the achievement of 
recovery goals and increase genetic variability, and any increase in 
mortality inside the GYE DPS could limit such benefits.
    The Bitterroot Ecosystem (BE) could be impacted most by changes in 
dispersal from the GYE DPS because it is within potential dispersal 
distance (120 km (75mi)) from the GYE DPS (Blanchard and Knight 1991, 
pp. 54-55; Proctor et al. 2004, p. 1113), as well as the Northern 
Continental Divide Ecosystem (NCDE) (35 km (21 mi);

[[Page 18740]]

Costello 2018, in litt.). Although the BE is unoccupied and isolated 
from other populations, there is a potential that dispersal from the 
GYE DPS could lead to the development of a grizzly population in the 
BE. Federal and State management agencies that make up the Interagency 
Grizzly Bear Study Team accounted for potential connectivity to the BE 
by extending a portion of the Demographic Monitoring Area (DMA) 
boundary to the western edge of the GYE DPS boundary to include 
suitable grizzly bear habitat in the Centennial Mountains (82 FR 30504, 
June 30, 2017). The Centennial Mountains lie inside both the GYE DPS 
and DMA and provide an east-west corridor of suitable habitat from the 
GYE to the BE ecosystem. The extended DMA is still a significant 
distance from the BE, but the mortality limits are in effect inside the 
DMA, ensuring that mortalities will be limited in this area of 
potential connectivity between the two ecosystems if dispersal were to 
occur. However, despite protections of the Act, we have no evidence of 
grizzly bears successfully dispersing from the GYE into the BE. 
Therefore, we conclude that any effect on dispersal in this area due to 
the Final Rule would likely be minimal. It is more likely that the BE 
will be recolonized by the NCDE population, as the distance between the 
two ecosystems is shorter and there is more suitable habitat in the 
interstitial area.
    Connectivity between the GYE DPS and the NCDE has the greatest 
potential due to proximity (110 km (68 mi)) of currently occupied range 
in both ecosystems (Peck et al. 2017, p. 2). The Tobacco Root mountain 
range may be a particularly important dispersal pathway between these 
two ecosystems (Peck et al. 2017, p. 15). The Tobacco Roots fall in the 
northwest corner of the GYE DPS, outside the DMA and associated 
mortality limits. Delisting of the GYE population may reduce the 
potential for GYE grizzly bears to disperse through the Tobacco Roots 
(or other pathways) to the NCDE, or for NCDE grizzly bears to disperse 
into the GYE due to potential increased mortality inside the GYE DPS. 
However, genetic isolation is not a concern for the NCDE or the GYE. 
Due to its relatively large population size, high level of 
heterozygosity, and continued connection with Canada, the NCDE does not 
need immigrants from the GYE to reach recovery (Kendall et al. 2009, 
pp. 8, 12; Costello et al. 2016, p. 2). To date, we have no evidence of 
grizzly bears successfully dispersing from the GYE into the NCDE or any 
other recovery zone, despite protections of the Act. Genetic analysis 
confirms that the GYE DPS remains isolated, with no evidence of recent 
immigrants from other populations (Haroldson et al. 2010, p. 8; Proctor 
et al. 2012, pp. 16-17). Furthermore, no recent observations of grizzly 
bears in the Tobacco Roots have been confirmed either through non-
invasive surveys (Lukins et al. 2004, p. 171) or surveillance of 
observation reports (K. Frey 2017, pers. comm.).
    The Selkirk Ecosystem and Cabinet-Yaak Ecosystem are currently 
occupied and connected to grizzly bear populations in Canada. They, 
along with the North Cascades Ecosystem, are also beyond any known 
expected dispersal distance from the GYE. Therefore, any potential 
increased mortality in the GYE would not impact these populations.
    Mortality limits for independent females and males and dependent 
young in the GYE DMA, adopted into regulation by each State, are in 
place and will reduce potential for impacts to dispersal. Regulatory 
mechanisms are in place and adequately address threats in a manner 
necessary to maintain a recovered population into the foreseeable 
future (82 FR 30528-30535, June 30, 2017). The mortality limits were 
calculated as those needed to maintain the population at a stable 
level, and take into account all sources (human-caused, natural, 
unknown) of mortality. They are calculated as annual mortality rates on 
a sliding scale depending on the annual population size estimate. 
Idaho, Montana, and Wyoming have committed to these mortality limits in 
the 2016 Conservation Strategy (YES 2016) and in a Memorandum of 
Agreement (MOA; Wyoming Game and Fish Commission et al. 2016, entire) 
and are set forth in State regulations. The agreed-upon mortality 
limits will maintain the population within the DMA around the long-term 
average population size for 2002-2014 of 674 grizzly bears, consistent 
with the revised demographic recovery criteria (USFWS 2017, entire) and 
the MOA (Wyoming Game and Fish Commission et al. 2016, entire). 
Montana's State management plan includes a long-term goal of allowing 
grizzly bear populations in southwestern and western Montana to 
reconnect through the maintenance of non-conflict grizzly bears in 
areas between the ecosystems. The State of Montana has indicated that, 
while discretionary mortality may occur, the State will manage 
discretionary mortality to retain the opportunity for natural movements 
of grizzly bears between ecosystems (MFWP 2013, p. 9; 82 FR 30556, June 
30, 2017).
    Mortality limits do not exist for areas outside the DMA within the 
GYE DPS; however, we do not expect grizzly bears to establish self-
sustaining populations there due to a lack of suitable habitat, land 
ownership patterns, and the lack of traditional, natural grizzly bear 
foods. Instead, grizzly bears in these peripheral areas will likely 
always rely on the GYE grizzly bear population inside the DMA as a 
source population (82 FR 30510-30511, June 30, 2017). The current 
distribution of grizzly bears within the GYE DPS includes areas outside 
of the DMA, and, as such, grizzly bears in these areas may be exposed 
to higher mortality. However, grizzly bears throughout the GYE DPS are 
classified as a game species by all three affected States and the 
Eastern Shoshone and Northern Arapaho Tribes of the Wind River 
Reservation, and, as such, cannot be taken without authorization by 
State or Tribal wildlife agencies (82 FR 30530, June 30, 2017; W.S. 23-
1-101(a)(xii)(A); W.S. 23-3-102(a); MCA 87-2-101(4); MCA 87-1-301; MCA 
87-1-304; MCA 87-5-302; IC 36-2-1; IDAPA 13.01.06.100.01(e); IC 36-
1101(a); Idaho's Yellowstone Grizzly Bear Delisting Advisory Team 2002, 
pp. 18-21; MFWP 2013, p. 6; Eastern Shoshone and Northern Arapahoe 
Tribes 2009, p. 9; WGFD 2016, p. 9; YES 2016a, pp. 104-116).
    The primary potential impact of delisting the GYE DPS on the status 
of the listed species is the potential to limit dispersal from the GYE 
into other unrecovered ecosystems due to increased mortality within the 
DPS. However, we do not expect mortalities to increase significantly 
because the vast majority of suitable habitat inside the GYE DPS is 
within the DMA where bears are subject to mortality limits. Grizzly 
bears remain protected by the Act outside the DPS. Additionally, food 
storage orders on public lands provide measures to limit mortality and 
promote natural connectivity through a reduction in conflict 
situations. (82 FR 30536, 30580, June 30, 2017). Despite these 
protections, successful dispersal events remain rare and play a very 
minor role in population dynamics because of the large amounts of 
unsuitable habitat between ecosystems. The probability of successful 
dispersal is low despite recent expansion of the GYE and NCDE 
populations (Peck et al. 2017, p. 15); accordingly, we have no recent 
evidence of successful dispersal from the GYE into any other ecosystem. 
However, populations in both ecosystems are currently expanding into 
new areas, and the GYE is expanding beyond the DMA.

[[Page 18741]]

If populations continue to expand, decreasing the distance between 
populations, the likelihood of successful immigration will increase 
(Peck et al. 2017, p. 15). In short, we find that impacts of delisting 
the GYE DPS on the lower-48-States entity are minimal, do not 
significantly impact the lower-48-States entity, and do not affect the 
recovery of the GYE grizzly bears. This analysis does not warrant any 
revision or amendment of the Final Rule.
    Finally, we believe there is sufficient evidence that the currently 
listed species (grizzly bears in the lower 48 States) contains more 
than one DPS. For example, preliminary data indicates the NCDE 
population is a DPS; the Service intends to evaluate that population to 
determine if it qualifies for DPS designation and, if so, consider its 
status. The Act's protections will continue outside the DPS boundaries 
until subsequent regulatory action is taken on the 1975 listing rule or 
specific DPSs within the boundaries of the entity listed in 1975. We 
believe this is the most precautionary and protective approach to 
grizzly bear recovery.

Impact of the Lower-48-States Entity on the GYE DPS

    The lower-48-States entity that remains listed may have 
implications for the delisted GYE DPS. Throughout the range of the 
grizzly bear in the lower 48 States, human-caused mortality is limited 
and habitat is managed to promote recovery, which may increase the 
potential for the remaining grizzly bear population to act as a source 
population for the delisted GYE DPS. The lower 48 States contain 
several populations that are increasing in number and distribution, and 
may, at some point, provide dispersers into the GYE DPS. Although 
connectivity is not necessary for the current genetic health of the GYE 
grizzly bear population, it would deliver several benefits to the GYE, 
including increases in genetic diversity and increased long-term 
viability of the population (82 FR 30535-30536, 30544, 30581, 30610-
30611, June 30, 2017). However, while successful dispersal is possible, 
the likelihood is low due to large areas of unsuitable habitat between 
populations. Currently, the effective population size and 
heterozygosity levels in the GYE are adequate to maintain genetic 
health of the GYE population for at least the next several decades 
(Miller and Waits 2003, p. 4338; Kamath et al. 2015, entire). The 
States have committed to a variety of measures to maintain genetic 
diversity. Wyoming has acknowledged that translocation of bears may 
take place in the future if necessary (WGFD 2016, p. 13). As described 
above, Montana has committed to managing discretionary mortality to 
retain the opportunity for grizzly bears to migrate between ecosystems. 
(MFWP 2013, p. 9; 82 FR 30556, June 30, 2017). Therefore, while the 
protected status of the lower-48-States grizzly bear population 
theoretically could engender several beneficial effects on the GYE DPS, 
those benefits will likely be minimal in the near term.

Impact of Lost Historical Range

    When reviewing the current status of a species, we can also 
evaluate the effects of lost historical range on the species. As noted 
above, the Final Rule did not revisit the 1975 rule or perform a status 
review of grizzly bears in the lower 48 States. Therefore, the Final 
Rule was not required to assess the loss of historical range on the 
lower-48-States entity. However, in response to public comments 
suggesting that a historical range analysis for the lower-48-States 
population is required, we elaborate on the analysis of historical 
range and the status of the lower-48-States entity as previously 
addressed in the Final Rule.
    Ursus arctos horribilis is a widely recognized subspecies of 
grizzly bear that historically existed throughout much of continental 
North America, including most of western North America from the Arctic 
Ocean to central Mexico (Hall 1984, pp. 4-9; Trevino and Jonkel 1986, 
p. 12). The continental range of the grizzly bear began receding with 
the arrival of Europeans to North America, with rapid extinction of 
populations from most of Mexico and from the central and southwestern 
United States and California (Craighead and Mitchell 1982, p. 516). 
Current populations continue to thrive in the largely unsettled areas 
of Alaska and northwestern Canada, while populations within the 
contiguous 48 States are much more fragmented.
    Grizzly bears in the lower 48 States experienced immense losses of 
range primarily due to human persecution and reduction of suitable 
habitat (82 FR 30508, June 30, 2017). Prior to the arrival of 
Europeans, the grizzly bear occurred throughout much of the western 
half of the contiguous United States, central Mexico, western Canada, 
and most of Alaska (Roosevelt 1907, pp. 27-28; Wright 1909, pp. vii, 3, 
185-186; Merriam 1922, p. 1; Storer and Tevis 1955, p. 18; Rausch 1963, 
p. 35; Herrero 1972, pp. 224-227; Schwartz et al. 2003, pp. 557-558). 
Pre-settlement population levels for the western contiguous United 
States are believed to have been in the range of 50,000-100,000 animals 
(Servheen 1989, pp. 1-2; Servheen 1999, pp. 50-51; USFWS 1993, p. 9). 
In the 1800s, with European settlement of the American West and 
government-funded bounty programs aimed at eradication, grizzly bears 
were shot, poisoned, and trapped wherever they were found (Roosevelt 
1907, pp. 27-28; Wright 1909, p. vii; Storer and Tevis 1955, pp. 26-27; 
Leopold 1967, p. 30; Koford 1969, p. 95; Craighead and Mitchell 1982, 
p. 516; Servheen 1999, pp. 50-51). Many historical habitats were 
converted into agricultural land (Woods et al. 1999, entire), and 
traditional food sources such as bison and elk were reduced, 
eliminated, or replaced with domestic livestock, such as cattle, sheep, 
chickens, goats, pigs, and agricultural products from bee hives and 
crops.
    The resulting declines in range and population were dramatic. We 
have estimated that the range and numbers of grizzly bears were reduced 
to less than 2 percent of their former range in the lower 48 States and 
numbers by the 1930s, approximately 125 years after first contact with 
European settlers (USFWS 1993, p. 9; Servheen 1999, p. 51). Of 37 
grizzly bear populations present in 1922 within the lower 48 States, 31 
were extirpated by the time of listing in 1975, and the estimated 
population in the lower 48 States was 700-800 animals (Servheen 1999, 
p. 51).
    For the Final Rule and this review, we considered historical range 
of grizzly bears circa 1850. We determined that this timeframe is 
appropriate for measuring grizzly bear range because it is a period for 
which published faunal records document grizzly bear range, 
descriptions of grizzly bear occurrence, and/or local extirpation 
events (Mattson and Merrill 2002, p. 1125). It precedes the major 
distribution changes in response to excessive human-caused mortality 
and habitat loss (Servheen 1999, p. 51). We define the physical 
boundaries of the relevant historical range as the lower 48 States, 
primarily west of the Mississippi River. Approximately 50,000-100,000 
grizzly bears were historically distributed in one large contiguous 
area throughout portions of at least 17 western States (i.e., 
Washington, Oregon, California, Idaho, Montana, Wyoming, Nevada, 
Colorado, Utah, New Mexico, Arizona, North Dakota, South Dakota, 
Nebraska, Kansas, Oklahoma, and Texas (Servheen 1989, pp. 1-2; Servheen 
1999, pp. 50-51; USFWS 1993, p. 9)).
    Significant loss of historical range has resulted in fewer 
individuals distributed in several small, fragmented, and isolated 
populations. Today, grizzly

[[Page 18742]]

bears in the lower 48 States primarily exist in 4 populations spanning 
portions of 4 States. Total numbers are estimated at 1,810 individuals 
(700 in the GYE DPS and 1,110 additional grizzly bears in the lower-48-
States entity). Grizzly bear range in the lower 48 States collapsed 
into small, fragmented, and isolated populations by the mid-1900s 
(Mattson and Merrill 2002, p. 1134). These alterations have increased 
the vulnerability of lower-48-States grizzly bears to a wide variety of 
threats that would not be at issue without such massive range 
reduction. Several of these threats were identified in the 1975 
original listing (40 FR 31734, July 28, 1975), including range loss and 
isolation, the construction of roads and trails into formerly secure 
areas, human persecution, and increasing numbers of livestock on 
national forests.
    We considered these threats thoroughly in the Final Rule (82 FR 
30520-30535, June 30, 2017), along with other vulnerabilities caused by 
loss of historical range, such as changes in available food sources, 
carrying capacity, changes in metapopulation structure, and reductions 
in genetic diversity and gene flow (see discussion below). Aside from 
informing the current status of and threats to the GYE DPS, the lost 
historic range within the United States is informative only for future 
rulemakings or regulatory actions in the lower 48 States, as the 
Service did not undertake regulatory action for grizzly bears outside 
the GYE DPS boundaries.

Impact of Lost Historical Range on the GYE DPS

    Humane Society held that the WGL wolf delisting did not adequately 
consider the impact of lost historical range on the current threats 
facing the WGL wolf DPS, including reduced genetic variability and 
vulnerability to catastrophic events. The Final Rule for the GYE DPS 
thoroughly addressed the current threats to the grizzly bear in light 
of the lost historical range. We further explain the analysis in the 
Final Rule in response to public comments.
    Grizzly bears historically occurred throughout the area of the GYE 
DPS (Stebler 1972, pp. 297-298), but they were less common in prairie 
habitats (Rollins 1935, p. 191; Wade 1947, p. 444). Today many of these 
habitats are no longer biologically suitable for grizzly bears (82 FR 
30510-12, 30551, 30558, June 30, 2017). Grizzly bear presence in these 
drier, grassland habitats was associated with rivers and streams where 
grizzly bears used bison carcasses as a major food source (Burroughs 
1961, pp. 57-60; Herrero 1972, pp. 224-227; Stebler 1972, pp. 297-298; 
Mattson and Merrill 2002, pp. 1128-1129). Most of the shortgrass 
prairie on the east side of the Rocky Mountains has been converted into 
agricultural land (Woods et al. 1999, entire), and high densities of 
traditional food sources are no longer available due to land conversion 
and human occupancy of urban and rural lands (82 FR 30510, 30551, 
30558, June 30, 2017). Traditional food sources such as bison and elk 
have been reduced and replaced with domestic livestock such as cattle, 
sheep, chickens, goats, pigs, and bee hives, which can become 
anthropogenic sources of prey for grizzly bears (82 FR 30510, 30551, 
30558, 30624, June 30, 2017).
    Range reduction within the GYE DPS boundary has resulted in 
potential threats specific to isolated and small populations, including 
genetic health, changes in food resources, climate change, and 
catastrophic events (82 FR 30533-44, June 30, 2017). Small and isolated 
populations are susceptible to declines in genetic diversity, which can 
result in population-limiting effects such as inbreeding, genetic 
abnormalities, birth defects, low reproductive and survival rates, and 
susceptibility to extinction (Frankham 2005, entire). However, current 
levels of genetic diversity in the GYE DPS are capable of supporting 
healthy reproductive and survival rates, as evidenced by normal litter 
size, no evidence of disease, high survivorship, an equal sex ratio, 
normal body size and physical characteristics, and a relatively 
constant population size within the GYE (van Manen 2016, in litt.). We 
concluded that genetic diversity does not constitute a threat to the 
GYE DPS (82 FR 30535-36, 30609-11, June 30, 2017).
    Changes in availability of highly energetic food resources as a 
result of lost historical range, such as whitebark pine, army cutworm 
moths, ungulates, and cutthroat trout could influence grizzly bear 
reproduction, survival, or mortality risk (Mealey 1975, pp. 84-86; 
Pritchard and Robbins 1990, p. 1647; Craighead et al. 1995, pp. 247-
252). Grizzly bears are dietary generalists, consuming more than 266 
distinct plant and animal species, and are resilient to changes in food 
resources (Servheen and Cross 2010, p. 4; Gunther et al. 2014, p. 1). 
Additionally, whitebark pine loss has not caused a negative population 
trend or declines in vital rates (IGBST 2012, p. 34; van Manen 2016a, 
in litt.), and there is no known relationship between mortality risk or 
reproduction and any other food (Schwartz et al. 2010, p. 662). We 
concluded in the Final Rule that changes in food resources do not 
constitute a threat to the GYE DPS (82 FR 30536-40, June 30, 2017).
    Climate change may result in a number of changes to grizzly bear 
habitat, denning times, shifts in the abundance and distribution of 
natural food sources, and changes in fire regimes. Changes in denning 
times may increase the potential for conflicts with humans; however, 
regulatory mechanisms are in place to limit human-caused mortality (see 
discussion above under Impact of GYE Delisting on the Lower-48-States 
Entity). Grizzly bears have shown resiliency to changes in vegetation 
resulting from fires (Blanchard and Knight 1996, p. 121), and diets are 
flexible enough to absorb shifts in food distributions and abundance 
(Servheen and Cross 2010, p. 4; IGBST 2013, p. 35). We concluded in the 
Final Rule that climate change is unlikely to pose a threat to the GYE 
DPS (82 FR 30540-42, June 30, 2017).
    The GYE DPS is vulnerable to various catastrophic and stochastic 
events, such as fire, volcanic activity, earthquakes, and disease. Most 
of these types of events are unpredictable and unlikely to occur within 
the foreseeable future, would likely cause only localized and temporary 
impacts that would not threaten the GYE DPS (82 FR 30542, June 30, 
2017), or have never been documented to affect mortality in grizzly 
bears (disease: IGBST 2005, pp. 34-35; Craighead et al. 1988, pp. 24-
84) (82 FR 30533-30534, June 30, 2017).
    While range reduction has reduced both numbers of bears and amount 
of available habitat, the GYE currently supports a population of 
grizzly bears that meets our definition of recovered, and does not meet 
our definition of an endangered or threatened species (82 FR 30514, 
June 30, 2017). Further, we found that potential threats resulting from 
lost historical range are manageable through conflict prevention, 
management of discretionary mortality, and the large amount of 
suitable, secure habitat within the GYE and are not a threat to the GYE 
grizzly bear DPS now or likely to become a threat in the foreseeable 
future (82 FR 30544, June 30, 2017). Our regulatory review therefore 
confirmed that the Service appropriately analyzed the historic range 
and current status/threats to the GYE DPS, as required under the Act.

Conclusion

    After considering the GYE Final Rule in light of the Humane Society 
opinion, along with the best available scientific information, we 
affirm the determinations of our Final Rule: The

[[Page 18743]]

GYE grizzly bear population is discrete from other grizzly bear 
populations and significant to the remainder of the taxon (i.e., Ursus 
arctos horribilis) and, therefore, a listable entity under the Act in 
accordance with our DPS Policy; the GYE population has recovered to the 
point at which protection under the Act is no longer required; and the 
best scientific and commercial data available indicate that the GYE 
grizzly bear DPS is not endangered or threatened throughout all or a 
significant portion of its range. Finally, we determined in the Final 
Rule, and affirm here, that we will not revisit the 1975 final rule, 
and grizzly bears, outside the GYE DPS, in the lower 48 States remain 
listed as threatened. Accordingly, the Service does not plan to 
initiate further regulatory action for the GYE grizzly bear population, 
or for the lower 48 States population at this time.

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 
INFORMATION CONTACT).

Authority

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

    Dated: April 24, 2018.
James W. Kurth
Deputy Director, U.S. Fish and Wildlife Service, Exercising the 
Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2018-09095 Filed 4-27-18; 8:45 am]
 BILLING CODE 4333-15-P