FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`No. 18-36030
`
`D.C. Nos.
`9:17-cv-00089-DLC
`9:17-cv-00117-DLC
`9:17-cv-00118-DLC
`9:17-cv-00119-DLC
`9:17-cv-00123-DLC
`9:18-cv-00016-DLC
`
`OPINION
`
`CROW INDIAN TRIBE; CROW
`CREEK SIOUX TRIBE; STANDING
`ROCK SIOUX TRIBE; PIIKANI
`NATION; THE CRAZY DOG
`SOCIETY; HOPI NATION BEAR
`CLAN; NORTHERN ARAPAHO
`ELDERS SOCIETY; DAVID
`BEARSHIELD; KENNY
`BOWEKATY; LLEVANDO FISHER;
`ELISE GROUND; ARVOL
`LOOKING HOUSE; TRAVIS
`PLAITED HAIR; JIMMY ST.
`GODDARD; PETE STANDING
`ALONE; NOLAN J. YELLOW
`KIDNEY; HUMANE SOCIETY OF
`THE UNITED STATES; THE FUND
`FOR ANIMALS; WILDEARTH
`GUARDIANS; NORTHERN
`CHEYENNE TRIBE; SIERRA
`CLUB; CENTER FOR BIOLOGICAL
`DIVERSITY; NATIONAL PARKS
`CONSERVATION ASSOCIATION;
`ALLIANCE FOR THE WILD
`ROCKIES; NATIVE ECOSYSTEMS
`COUNCIL; WESTERN
`WATERSHEDS PROJECT; ROBERT
`H. ALAND,
`
`Plaintiffs-Appellees,
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`No. 18-36030
`
`D.C. Nos.
`9:17-cv-00089-DLC
`9:17-cv-00117-DLC
`9:17-cv-00118-DLC
`9:17-cv-00119-DLC
`9:17-cv-00123-DLC
`9:18-cv-00016-DLC
`
`OPINION
`
`CROW INDIAN TRIBE; CROW
`CREEK SIOUX TRIBE; STANDING
`ROCK SIOUX TRIBE; PIIKANI
`NATION; THE CRAZY DOG
`SOCIETY; HOPI NATION BEAR
`CLAN; NORTHERN ARAPAHO
`ELDERS SOCIETY; DAVID
`BEARSHIELD; KENNY
`BOWEKATY; LLEVANDO FISHER;
`ELISE GROUND; ARVOL
`LOOKING HOUSE; TRAVIS
`PLAITED HAIR; JIMMY ST.
`GODDARD; PETE STANDING
`ALONE; NOLAN J. YELLOW
`KIDNEY; HUMANE SOCIETY OF
`THE UNITED STATES; THE FUND
`FOR ANIMALS; WILDEARTH
`GUARDIANS; NORTHERN
`CHEYENNE TRIBE; SIERRA
`CLUB; CENTER FOR BIOLOGICAL
`DIVERSITY; NATIONAL PARKS
`CONSERVATION ASSOCIATION;
`ALLIANCE FOR THE WILD
`ROCKIES; NATIVE ECOSYSTEMS
`COUNCIL; WESTERN
`WATERSHEDS PROJECT; ROBERT
`H. ALAND,
`
`Plaintiffs-Appellees,
`
`
`
`2
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`v.
`
`UNITED STATES OF AMERICA;
`U.S. DEPARTMENT OF THE
`INTERIOR; DAVID L.
`BERNHARDT, Secretary, United
`States Department of the
`Interior; UNITED STATES FISH
`AND WILDLIFE SERVICE; JIM
`KURTH, Acting Director, United
`States Fish and Wildlife
`Service, or his Successor in
`Office; HILARY COOLEY,
`Grizzly Bear Recovery
`Coordinator,
`
`Defendants,
`
`and
`
`STATE OF WYOMING,
`Intervenor-Defendant-
`Appellant.
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`3
`
`No. 18-36038
`
`D.C. Nos.
`9:17-cv-00089-DLC
`9:17-cv-00117-DLC
`9:17-cv-00118-DLC
`9:17-cv-00119-DLC
`9:17-cv-00123-DLC
`9:18-cv-00016-DLC
`
`CROW INDIAN TRIBE; CROW
`CREEK SIOUX TRIBE; STANDING
`ROCK SIOUX TRIBE; PIIKANI
`NATION; THE CRAZY DOG
`SOCIETY; HOPI NATION BEAR
`CLAN; NORTHERN ARAPAHO
`ELDERS SOCIETY; DAVID
`BEARSHIELD; KENNY
`BOWEKATY; LLEVANDO FISHER;
`ELISE GROUND; ARVOL
`LOOKING HOUSE; TRAVIS
`PLAITED HAIR; JIMMY ST.
`GODDARD; PETE STANDING
`ALONE; NOLAN J. YELLOW
`KIDNEY; HUMANE SOCIETY OF
`THE UNITED STATES; THE FUND
`FOR ANIMALS; WILDEARTH
`GUARDIANS; NORTHERN
`CHEYENNE TRIBE; SIERRA
`CLUB; CENTER FOR BIOLOGICAL
`DIVERSITY; NATIONAL PARKS
`CONSERVATION ASSOCIATION;
`ALLIANCE FOR THE WILD
`ROCKIES; NATIVE ECOSYSTEMS
`COUNCIL; WESTERN
`WATERSHEDS PROJECT; ROBERT
`H. ALAND,
`
`Plaintiffs-Appellees,
`
`v.
`
`UNITED STATES OF AMERICA;
`U.S. DEPARTMENT OF THE
`
`
`
`4
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`INTERIOR; DAVID L.
`BERNHARDT, Secretary, United
`States Department of the
`Interior; UNITED STATES FISH
`AND WILDLIFE SERVICE; JIM
`KURTH, Acting Director, United
`States Fish and Wildlife
`Service, or his Successor in
`Office; HILARY COOLEY,
`Grizzly Bear Recovery
`Coordinator,
`
`Defendants,
`
`STATE OF WYOMING,
`Intervenor-Defendant,
`
`and
`
`SAFARI CLUB INTERNATIONAL;
`NATIONAL RIFLE ASSOCIATION
`OF AMERICA, INC.,
`Intervenor-Defendants-
`Appellants.
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`5
`
`No. 18-36050
`
`D.C. Nos.
`9:17-cv-00089-DLC
`9:17-cv-00117-DLC
`9:17-cv-00118-DLC
`9:17-cv-00119-DLC
`9:17-cv-00123-DLC
`9:18-cv-00016-DLC
`
`CROW INDIAN TRIBE; CROW
`CREEK SIOUX TRIBE; STANDING
`ROCK SIOUX TRIBE; PIIKANI
`NATION; THE CRAZY DOG
`SOCIETY; HOPI NATION BEAR
`CLAN; NORTHERN ARAPAHO
`ELDERS SOCIETY; DAVID
`BEARSHIELD; KENNY
`BOWEKATY; LLEVANDO FISHER;
`ELISE GROUND; ARVOL
`LOOKING HOUSE; TRAVIS
`PLAITED HAIR; JIMMY ST.
`GODDARD; PETE STANDING
`ALONE; NOLAN J. YELLOW
`KIDNEY; HUMANE SOCIETY OF
`THE UNITED STATES; THE FUND
`FOR ANIMALS; WILDEARTH
`GUARDIANS; NORTHERN
`CHEYENNE TRIBE; SIERRA
`CLUB; CENTER FOR BIOLOGICAL
`DIVERSITY; NATIONAL PARKS
`CONSERVATION ASSOCIATION;
`ALLIANCE FOR THE WILD
`ROCKIES; NATIVE ECOSYSTEMS
`COUNCIL; WESTERN
`WATERSHEDS PROJECT,
`Plaintiffs,
`
`and
`
`ROBERT H. ALAND,
`Plaintiff-Appellant,
`
`
`
`6
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`v.
`
`UNITED STATES OF AMERICA;
`U.S. DEPARTMENT OF THE
`INTERIOR; DAVID L.
`BERNHARDT, Secretary, United
`States Department of the
`Interior; UNITED STATES FISH
`AND WILDLIFE SERVICE; JIM
`KURTH, Acting Director, United
`States Fish and Wildlife
`Service, or his Successor in
`Office; HILARY COOLEY,
`Grizzly Bear Recovery
`Coordinator,
`Defendants-Appellees,
`
`STATE OF WYOMING; SAFARI
`CLUB INTERNATIONAL;
`NATIONAL RIFLE ASSOCIATION
`OF AMERICA, INC.;
`SPORTSMEN’S ALLIANCE
`FOUNDATION; ROCKY
`MOUNTAIN ELK FOUNDATION;
`STATE OF IDAHO,
`Intervenor-Defendants-
`Appellees.
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`7
`
`No. 18-36077
`
`D.C. Nos.
`9:17-cv-00089-DLC
`9:17-cv-00117-DLC
`9:17-cv-00118-DLC
`9:17-cv-00119-DLC
`9:17-cv-00123-DLC
`9:18-cv-00016-DLC
`
`CROW INDIAN TRIBE; CROW
`CREEK SIOUX TRIBE; STANDING
`ROCK SIOUX TRIBE; PIIKANI
`NATION; THE CRAZY DOG
`SOCIETY; HOPI NATION BEAR
`CLAN; NORTHERN ARAPAHO
`ELDERS SOCIETY; DAVID
`BEARSHIELD; KENNY
`BOWEKATY; LLEVANDO FISHER;
`ELISE GROUND; ARVOL
`LOOKING HOUSE; TRAVIS
`PLAITED HAIR; JIMMY ST.
`GODDARD; PETE STANDING
`ALONE; NOLAN J. YELLOW
`KIDNEY; HUMANE SOCIETY OF
`THE UNITED STATES; THE FUND
`FOR ANIMALS; WILDEARTH
`GUARDIANS; NORTHERN
`CHEYENNE TRIBE; SIERRA
`CLUB; CENTER FOR BIOLOGICAL
`DIVERSITY; NATIONAL PARKS
`CONSERVATION ASSOCIATION;
`ALLIANCE FOR THE WILD
`ROCKIES; NATIVE ECOSYSTEMS
`COUNCIL; WESTERN
`WATERSHEDS PROJECT; ROBERT
`H. ALAND,
`
`Plaintiffs-Appellees,
`
`v.
`
`UNITED STATES OF AMERICA;
`U.S. DEPARTMENT OF THE
`
`
`
`8
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`INTERIOR; DAVID L.
`BERNHARDT, Secretary, United
`States Department of the
`Interior; UNITED STATES FISH
`AND WILDLIFE SERVICE; JIM
`KURTH, Acting Director, United
`States Fish and Wildlife
`Service, or his Successor in
`Office; HILARY COOLEY,
`Grizzly Bear Recovery
`Coordinator,
`
`Defendants,
`
`and
`
`STATE OF IDAHO,
`Intervenor-Defendant-
`Appellant.
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`9
`
`No. 18-36078
`
`D.C. Nos.
`9:17-cv-00089-DLC
`9:17-cv-00117-DLC
`9:17-cv-00118-DLC
`9:17-cv-00119-DLC
`9:17-cv-00123-DLC
`9:18-cv-00016-DLC
`
`CROW INDIAN TRIBE; CROW
`CREEK SIOUX TRIBE; STANDING
`ROCK SIOUX TRIBE; PIIKANI
`NATION; THE CRAZY DOG
`SOCIETY; HOPI NATION BEAR
`CLAN; NORTHERN ARAPAHO
`ELDERS SOCIETY; DAVID
`BEARSHIELD; KENNY
`BOWEKATY; LLEVANDO FISHER;
`ELISE GROUND; ARVOL
`LOOKING HOUSE; TRAVIS
`PLAITED HAIR; JIMMY ST.
`GODDARD; PETE STANDING
`ALONE; NOLAN J. YELLOW
`KIDNEY; HUMANE SOCIETY OF
`THE UNITED STATES; THE FUND
`FOR ANIMALS; WILDEARTH
`GUARDIANS; NORTHERN
`CHEYENNE TRIBE; SIERRA
`CLUB; CENTER FOR BIOLOGICAL
`DIVERSITY; NATIONAL PARKS
`CONSERVATION ASSOCIATION;
`ALLIANCE FOR THE WILD
`ROCKIES; NATIVE ECOSYSTEMS
`COUNCIL; WESTERN
`WATERSHEDS PROJECT; ROBERT
`H. ALAND,
`
`Plaintiffs-Appellees,
`
`v.
`
`UNITED STATES OF AMERICA;
`U.S. DEPARTMENT OF THE
`
`
`
`10
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`INTERIOR; DAVID L.
`BERNHARDT, Secretary, United
`States Department of the
`Interior; UNITED STATES FISH
`AND WILDLIFE SERVICE; JIM
`KURTH, Acting Director, United
`States Fish and Wildlife
`Service, or his Successor in
`Office; HILARY COOLEY,
`Grizzly Bear Recovery
`Coordinator,
`Defendants-Appellants.
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`11
`
`No. 18-36079
`
`D.C. Nos.
`9:17-cv-00089-DLC
`9:17-cv-00117-DLC
`9:17-cv-00118-DLC
`9:17-cv-00119-DLC
`9:17-cv-00123-DLC
`9:18-cv-00016-DLC
`
`CROW INDIAN TRIBE; CROW
`CREEK SIOUX TRIBE; STANDING
`ROCK SIOUX TRIBE; PIIKANI
`NATION; THE CRAZY DOG
`SOCIETY; HOPI NATION BEAR
`CLAN; NORTHERN ARAPAHO
`ELDERS SOCIETY; DAVID
`BEARSHIELD; KENNY
`BOWEKATY; LLEVANDO FISHER;
`ELISE GROUND; ARVOL
`LOOKING HOUSE; TRAVIS
`PLAITED HAIR; JIMMY ST.
`GODDARD; PETE STANDING
`ALONE; NOLAN J. YELLOW
`KIDNEY; HUMANE SOCIETY OF
`THE UNITED STATES; THE FUND
`FOR ANIMALS; WILDEARTH
`GUARDIANS; NORTHERN
`CHEYENNE TRIBE; SIERRA
`CLUB; CENTER FOR BIOLOGICAL
`DIVERSITY; NATIONAL PARKS
`CONSERVATION ASSOCIATION;
`ALLIANCE FOR THE WILD
`ROCKIES; NATIVE ECOSYSTEMS
`COUNCIL; WESTERN
`WATERSHEDS PROJECT; ROBERT
`H. ALAND,
`
`Plaintiffs-Appellees,
`
`v.
`
`UNITED STATES OF AMERICA;
`U.S. DEPARTMENT OF THE
`
`
`
`12
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`INTERIOR; DAVID L.
`BERNHARDT, Secretary, United
`States Department of the
`Interior; UNITED STATES FISH
`AND WILDLIFE SERVICE; JIM
`KURTH, Acting Director, United
`States Fish and Wildlife
`Service, or his Successor in
`Office; HILARY COOLEY,
`Grizzly Bear Recovery
`Coordinator,
`
`Defendants,
`
`and
`
`WYOMING FARM BUREAU
`FEDERATION; WYOMING STOCK
`GROWERS ASSOCIATION;
`CHARLES C. PRICE; W&M
`THOMAN RANCHES, LLC,
`Intervenor-Defendants-
`Appellants.
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`13
`
`No. 18-36080
`
`D.C. Nos.
`9:17-cv-00089-DLC
`9:17-cv-00117-DLC
`9:17-cv-00118-DLC
`9:17-cv-00119-DLC
`9:17-cv-00123-DLC
`9:18-cv-00016-DLC
`
`CROW INDIAN TRIBE; CROW
`CREEK SIOUX TRIBE; STANDING
`ROCK SIOUX TRIBE; PIIKANI
`NATION; THE CRAZY DOG
`SOCIETY; HOPI NATION BEAR
`CLAN; NORTHERN ARAPAHO
`ELDERS SOCIETY; DAVID
`BEARSHIELD; KENNY
`BOWEKATY; LLEVANDO FISHER;
`ELISE GROUND; ARVOL
`LOOKING HOUSE; TRAVIS
`PLAITED HAIR; JIMMY ST.
`GODDARD; PETE STANDING
`ALONE; NOLAN J. YELLOW
`KIDNEY; HUMANE SOCIETY OF
`THE UNITED STATES; THE FUND
`FOR ANIMALS; WILDEARTH
`GUARDIANS; NORTHERN
`CHEYENNE TRIBE; SIERRA
`CLUB; CENTER FOR BIOLOGICAL
`DIVERSITY; NATIONAL PARKS
`CONSERVATION ASSOCIATION;
`ALLIANCE FOR THE WILD
`ROCKIES; NATIVE ECOSYSTEMS
`COUNCIL; WESTERN
`WATERSHEDS PROJECT; ROBERT
`H. ALAND,
`
`Plaintiffs-Appellees,
`
`v.
`
`UNITED STATES OF AMERICA;
`U.S. DEPARTMENT OF THE
`
`
`
`14
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`INTERIOR; DAVID L.
`BERNHARDT, Secretary, United
`States Department of the
`Interior; UNITED STATES FISH
`AND WILDLIFE SERVICE; JIM
`KURTH, Acting Director, United
`States Fish and Wildlife
`Service, or his Successor in
`Office; HILARY COOLEY,
`Grizzly Bear Recovery
`Coordinator,
`
`Defendants,
`
`and
`
`STATE OF MONTANA; MONTANA
`DEPARTMENT OF FISH,
`WILDLIFE AND PARKS,
`Intervenor-Defendants-
`Appellants.
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`15
`
`No. 18-36042
`
`D.C. Nos.
`9:17-cv-00089-DLC
`9:17-cv-00117-DLC
`9:17-cv-00118-DLC
`9:17-cv-00119-DLC
`9:17-cv-00123-DLC
`9:18-cv-00016-DLC
`
`CROW INDIAN TRIBE; CROW
`CREEK SIOUX TRIBE; STANDING
`ROCK SIOUX TRIBE; PIIKANI
`NATION; THE CRAZY DOG
`SOCIETY; HOPI NATION BEAR
`CLAN; NORTHERN ARAPAHO
`ELDERS SOCIETY; DAVID
`BEARSHIELD; KENNY
`BOWEKATY; LLEVANDO FISHER;
`ELISE GROUND; ARVOL
`LOOKING HOUSE; TRAVIS
`PLAITED HAIR; JIMMY ST.
`GODDARD; PETE STANDING
`ALONE; NOLAN J. YELLOW
`KIDNEY; HUMANE SOCIETY OF
`THE UNITED STATES; THE FUND
`FOR ANIMALS; WILDEARTH
`GUARDIANS; NORTHERN
`CHEYENNE TRIBE; SIERRA
`CLUB; CENTER FOR BIOLOGICAL
`DIVERSITY; NATIONAL PARKS
`CONSERVATION ASSOCIATION;
`ALLIANCE FOR THE WILD
`ROCKIES; NATIVE ECOSYSTEMS
`COUNCIL; WESTERN
`WATERSHEDS PROJECT; ROBERT
`H. ALAND,
`
`Plaintiffs-Appellees,
`
`v.
`
`UNITED STATES OF AMERICA;
`U.S. DEPARTMENT OF THE
`
`
`
`16
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`INTERIOR; DAVID L.
`BERNHARDT, Secretary, United
`States Department of the
`Interior; UNITED STATES FISH
`AND WILDLIFE SERVICE; JIM
`KURTH, Acting Director, United
`States Fish and Wildlife
`Service, or his Successor in
`Office; HILARY COOLEY,
`Grizzly Bear Recovery
`Coordinator,
`
`Defendants,
`
`STATE OF WYOMING; SAFARI
`CLUB INTERNATIONAL;
`NATIONAL RIFLE ASSOCIATION
`OF AMERICA, INC.,
`Intervenor-Defendants,
`
`and
`
`SPORTSMEN’S ALLIANCE
`FOUNDATION; ROCKY
`MOUNTAIN ELK FOUNDATION,
`Intervenor-Defendants-
`Appellants.
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`17
`
`Appeal from the United States District Court
`for the District of Montana
`Dana L. Christensen, District Judge, Presiding
`
`Argued and Submitted May 5, 2020
`Portland, Oregon
`
`Filed July 8, 2020
`
`Before: Mary M. Schroeder, Paul J. Watford, and
`Andrew D. Hurwitz, Circuit Judges.
`
`Opinion by Judge Schroeder
`
`SUMMARY*
`
`Endangered Species Act
`
`The panel affirmed the district court’s orders remanding
`to the U.S. Fish & Wildlife Services (“FWS”) for further
`consideration of several issues concerning a 2017 Rule
`governing the Greater Yellowstone grizzly bear population,
`with the exception of the district court’s order requiring the
`FWS to conduct a “comprehensive review” of the remnant
`grizzly population.
`
`In 2007, the FWS issued a rule declaring the Yellowstone
`grizzly population a “distinct population segment” within the
`meaning of the Endangered Species Act (“ESA”) and
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`18
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`removing it from the protections of the ESA. This court
`subsequently upheld the district court’s determination
`that further agency consideration was required. That
`remand eventually resulted in a second delisting rule – the
`2017 Rule – that the district court again vacated and
`remanded to the agency for further consideration.
`
`In its remand order, the district court found three
`important deficiencies in the FWS’s analysis. First, the
`district court held that the FWS failed adequately to consider
`the impact of delisting on the remnant grizzly population.
`Second, the district court held the FWS acted contrary to the
`best available science when
`it determined
`that
`the
`Yellowstone grizzly bear was not threatened by a lack of
`genetic diversity, and that the translocation and connectivity
`assurances contained in the 2007 Rule were no longer
`necessary. Third, the district court faulted the FWS for failing
`to include a commitment to recalibration in the event a
`different population estimator were to be adopted. The
`district vacated the 2017 Rule and remanded for further
`agency consideration.
`
`The FWS and numerous intervenors – comprised of states
`of the Yellowstone region and private hunting and farming
`organizations – challenge the district court’s order. Appellees
`include plaintiff environmental and tribal organizations.
`
`The panel first considered appellate jurisdiction, and
`rejected appellees’ challenges. The panel held that the
`district court’s remand order was final as to the FWS. The
`panel also held that FWS did not merely seek an advisory
`opinion, and FWS had standing because its alleged injury –
`being required to reevaluate certain aspects of the 2017 Rule
`that it claimed were legal – was redressable by a favorable
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`19
`
`decision. The panel further held that the recalibration order
`was final with respect to the intervenors, and the intervenors
`had standing to pursue their appeal regarding a commitment
`to recalibration.
`
`Turning to the merits, the panel first considered the
`FWS’s appeal of the district court’s order to consider the
`effect of delisting on the remnant grizzly population. The
`panel agreed with the FWS that the district court appeared to
`have required a ESA Section 4(a) analysis of the remnant
`population. The panel held that such an extensive analysis
`was not required by the ESA or Humane Society v. Zinke, 865
`F.3d 585 (D.C. Cir. 2017), and the district court erred in
`relying upon the text of Section 4(c). Although a full Section
`4(a) analysis of all factors affecting the continued existence
`of the remnant was not required, the FWS must determine on
`remand whether there was a sufficiently distinct and
`protectable remnant population, so that the delisting of the
`distinct population segment will not further threaten the
`existence of the remnant. The panel thus vacated that portion
`of the district court’s order calling for a “comprehensive
`review” of the remnant grizzly population, and vacated for
`the district court to order further examination.
`
`The panel next considered the district court’s order to
`ensure the long-term genetic diversity of the Yellowstone
`grizzly. The panel held that because there were no concrete,
`enforceable mechanisms in place to ensure long-term genetic
`health of the Yellowstone grizzly, the district court correctly
`concluded that the 2017 Rule was arbitrary and capricious in
`that regard. Remand to the FWS was necessary on this
`matter.
`
`
`
`20
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`The district court concluded that the FWS’s decision to
`drop the commitment to recalibration in the conservation
`strategy violated the ESA because it was the result of political
`pressure by the states rather than having been based on the
`best scientific and commercial data. The panel held that the
`district court properly ordered the FWS to include a
`commitment to recalibration. The panel rejected the
`intervenors’ argument that because the states have committed
`to using the current population estimator for the foreseeable
`future, any commitment
`to
`recalibration would be
`unnecessary and speculative.
`
`COUNSEL
`
`Jay A. Jerde (argued), Special Assistant Attorney General;
`Erik E. Petersen, Senior Assistant Attorney General; Attorney
`General’s Office, Cheyenne, Wyoming; for Intervenor-
`Defendant-Appellant/Cross-Appellee State of Wyoming.
`
`Robert H. Aland (argued), Winnetka, Illinois, pro se Plaintiff-
`Appellant.
`
`Rebeca Dockter, Chief Legal Counsel; William A. Schenk,
`Agency Legal Counsel; Montana Department of Fish,
`Wildlife and Parks, Helena, Montana; Tim Fox, Attorney
`General; Jeremiah D. Weiner, Assistant Attorney General;
`Attorney General’s Office, Helena, Montana; for Intervenor-
`Defendants-Appellants State of Montana and Montana
`Department of Fish, Wildlife and Parks.
`
`Jeremy E. Clare and Anna M. Seidman, Safari Club
`International, Washington, D.C.; Michael T. Jean, The
`National Rifle Association of America, Fairfax, Virginia; for
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`21
`
`Intervenors-Defendants-Appellants/Cross-Appellees Safari
`Club International and National Rifle Association of
`America, Inc.
`
`Cody J. Wisniewski, Mountain States Legal Foundation,
`Lakewood, Colorado,
`for
`Intervenor-Defendants-
`Appellants/Cross-Appellees Wyoming Farm Bureau
`Federation, Wyoming Stock Growers Association, Charles C.
`Price, and W&M Thoman Ranches, LLC.
`
`James H. Lister, Birch Horton Bittner & Cherot
`P.C., Washington, D.C.,
`for
`Intervenor-Defendants-
`Appellants/Cross-Appellees Sportsmen’s Alliance
`Foundation and Rocky Mountain Elk Foundation.
`
`Matthew K. Bishop (argued), Western Environmental Law
`Center, Helena, Montana; Kelly E. Nokes, Western
`Environmental Law Center, Taos, New Mexico; for Plaintiff-
`Appellee WildEarth Guardians.
`
`Timothy J. Preso (argued) and Joshua R. Purtle, Earthjustice,
`Bozeman, Montana; Beth Baldwin, Ziontz Chestnut, Seattle,
`Washington; for Plaintiffs-Appellees Northern Cheyenne
`Tribe, Sierra Club, Center for Biological Diversity, and
`National Parks Conservation Association.
`
`Joan M. Pepin (argued), Andrew C. Mergen, and Ellen J.
`Durkee, Attorneys; Eric Grant, Deputy Assistant Attorney
`General; Jeffrey Bossert Clark, Assistant Attorney General;
`Environment and Natural Resources Division, United States
`Department of Justice, Washington, D.C.; Tyson Powell,
`Office of the Solicitor, United States Department of the
`Interior, Washington, D.C.; for Federal Defendants-
`Appellees/Cross-Appellants.
`
`
`
`22
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`Jeffrey S. Rasmussen, Fredericks Peebles & Patterson LLP,
`Louisville, Colorado, for Plaintiffs-Appellees Crow Indian
`Tribe, Crow Creek Sioux Tribe, Standing Rock Sioux Tribe,
`Piikani Nation, The Crazy Dog Society, Hopi Nation Bear
`Clan, Northern Arapaho Elders Society, David Bearshield,
`Kenny Bowekaty, Llevando Fisher, Elise Ground, Arvol
`Looking House, Travis Plaited Hair, Jimmy St. Goddard, Pete
`Standing Alone, and Nolan J. Yellow Kidney.
`
`Nicholas Arrivo and Anna Frostic, The Humane Society of
`the United States, Washington, D.C., for Plaintiffs-Appellees
`The Humane Society of the United States and the Fund for
`Animals.
`
`Rebecca K. Smith, Public Interest Defense Center, Missoula,
`Montana; Timothy M. Bechtold, Bechtold Law Firm,
`Missoula, Montana; for Plaintiffs-Appellees Alliance for the
`Wild Rockies, Western Watersheds Project, and Native
`Ecosystems Council.
`
`Lawrence G. Wasden, Attorney General; Darrell G. Early,
`Chief Deputy Attorney General, Natural Resources Division;
`Steven Strack and Kathleen Trever, Deputy Attorneys
`General; Office of the Attorney General, Boise, Idaho; for
`Intervenor-Defendant-Appellee/Cross-Appellant State of
`Idaho.
`
`Darren Eastman, Los Gatos, California, as Amicus Curiae.
`
`Jonathan Wood, Pacific Legal Foundation, Arlington,
`Virginia, for Amici Curiae Pacific Legal Foundation and
`Property and Environment Research Center.
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`23
`
`Graham Coppes and Emily Wilmott, Ferguson Law Office
`PLLC, Missoula, Montana, for Amicus Curiae Save the
`Yellowstone Grizzly.
`
`OPINION
`
`SCHROEDER, Circuit Judge:
`
`“And the squeal of the pig will float through the air;
`From the tummy of the grizzly bear.”
`
`– Up With Montana, University of Montana Fight Song
`
`One of the original goals and much lauded successes of
`the Endangered Species Act (“ESA”) is the survival of the
`grizzly bear, an iconic symbol of the Rocky Mountain west.
`Indeed, the grizzly’s decline was a motivating force for
`passage of the original ESA in 1973, and the grizzly was
`listed as “threatened” not long after. See Tenn. Valley Auth.
`v. Hill, 437 U.S. 153, 183–84 (1978) (citing 119 Cong. Rec.
`42,913 (1973)).
`
`The grizzly’s success has been so marked in the Greater
`Yellowstone Ecosystem of Idaho, Montana, and Wyoming,
`that the agency responsible for enforcement of the ESA, the
`Fish and Wildlife Service (“FWS”), has for almost fifteen
`years been trying to delist the bears in that area. These efforts
`have been met with enthusiastic support from hunters and
`from the states affected, but with fierce opposition from
`environmental and tribal groups.
`
`In 2007, the FWS first issued a rule declaring the
`Yellowstone grizzly population a “distinct population
`
`
`
`24
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`segment” within the meaning of the ESA and removing it
`from the protections of the ESA. See Final Rule Removing
`the Yellowstone Distinct Population Segment of Grizzly
`Bears From the Federal List of Endangered and Threatened
`Wildlife, 72 Fed. Reg. 14,866 (Mar. 29, 2007) (“2007 Rule”).
`When that attempted delisting reached our court in 2011, we
`upheld the district court’s determination that further agency
`consideration was required. Greater Yellowstone Coal., Inc.
`v. Servheen, 665 F.3d 1015, 1030 (9th Cir. 2011).
`
`That remand eventually resulted in a second delisting rule
`that the district court again vacated and ordered remanded for
`consideration of several discrete issues. See Final Rule
`Removing the Greater Yellowstone Ecosystem Population of
`Grizzly Bears from the Federal List of Endangered and
`Threatened Wildlife, 82 Fed. Reg. 30,502 (June 30, 2017)
`(“2017 Rule”); Crow Indian Tribe v. United States, 343 F.
`Supp. 3d 999 (D. Mt. 2018). The FWS now appeals only
`those aspects of the remand that require the study of the effect
`of the delisting on the remaining, still listed, grizzly
`population in the coterminous 48 states, as well as further
`consideration of the threat of delisting to long term genetic
`diversity of the Yellowstone grizzly. The states of the region
`(Idaho, Montana, and Wyoming), as well as private hunting
`and farming organizations, have
`intervened on
`the
`government’s behalf. The Intervenors challenge the same
`district court rulings as the FWS. Some Intervenors
`additionally appeal the district court’s order requiring
`recalibration of any new grizzly population estimator to the
`current estimator.
`
`The Appellees are environmental and tribal groups that
`brought the action in the district court. They contend this
`court lacks jurisdiction to consider any issue on appeal
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`25
`
`because the remand order is not appealable under this
`Circuit’s jurisprudence. They rely on Natural Resources
`Defense Council v. Gutierrez, 457 F.3d 904 (9th Cir. 2006),
`and Alsea Valley Alliance v. Department of Commerce,
`358 F.3d 1181 (9th Cir. 2004).
`
`Gutierrez involved an agency’s attempt to challenge only
`the reasoning behind a district ruling and not the relief
`granted. 457 F.3d at 906. Here, the FWS does challenge the
`scope of the remand order. Under Alsea Valley, a remand of
`an agency’s rulemaking is a final order as to the government
`and therefore appealable. See 358 F.3d at 1184. We
`conclude we also have
`jurisdiction
`to consider
`the
`Intervenors’ appeals regarding recalibration, because unlike
`Alsea Valley, the issue the Intervenors raise has been
`conclusively determined by the district court and cannot be
`taken into account in the FWS proceedings upon remand.
`
`On the merits, we affirm the district court’s remand order,
`with a clarification of what we hold to be the relatively
`narrow scope of the consideration that must be given on
`remand to the effect of the delisting on the remaining, still
`listed, grizzly population in the coterminous 48 states.
`
`I. BACKGROUND
`
`The Endangered Species Act (“ESA”) was passed in 1973
`with the stated purpose of providing “a program for the
`conservation of . . . endangered and threatened species.”
`16 U.S.C. § 1531(b). The ESA defines a “threatened species”
`as one that “is likely to become an endangered species within
`the foreseeable future throughout all or a significant portion
`of its range.” Id. § 1532(20). An “endangered species” is
`one that “is in danger of extinction throughout all or a
`
`
`
`26
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`significant portion of its range. . . .” Id. § 1532(6). Once a
`species is listed as either endangered or threatened, it receives
`substantial legal protection against nearly all killing or
`hunting. Id. §§ 1532(19); 1538(a)(1).
`
`In Section 4 of the original 1973 Act, Congress required
`the Secretary of the Interior to evaluate, and reevaluate every
`five years, listing of species as threatened or endangered. Id.
`§ 1533(a)(1), (c)(2); see also 50 C.F.R. § 402.01(b)
`(delegating the FWS as the agency responsible for
`administering the ESA). Section 4 requires the FWS to
`consider each of the following factors “to determine whether
`any species is an endangered species or threatened species:”
`
`(A) the present or threatened destruction,
`modification, or curtailment of its habitat or
`range;
`
`commercial,
`for
` overutilization
`(B)
`recreational, scientific, or educational
`purposes;
`
`(C) disease or predation;
`
`(D) the inadequacy of existing regulatory
`mechanisms; and
`
`(E) other natural or manmade factors affecting
`its continued existence.
`
`16 U.S.C. § 1533(a)(1).
`
`In the 1978 amendments to the ESA, Congress gave the
`FWS a more refined tool to evaluate listing or delisting of
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`27
`
`less than an entire biological or taxonomic species. In the
`definition of “species,” Congress included “any distinct
`population segment of any species of vertebrate fish or
`wildlife.” Id. § 1532(16). The FWS has defined the
`characteristics of a distinct population segment (“DPS”) to be
`a segment that is both discrete from the remainder of the
`species and significant in relation to the remainder of the
`species. Policy Regarding the Recognition of Distinct
`Vertebrate Population Segments Under the Endangered
`Species Act, 61 Fed. Reg. 4,722, 4,725 (Feb. 7, 1996). If a
`DPS exists, such segment is considered a “species” in and of
`itself, independent from the rest of the biological species. See
`id. As the FWS’s implementing policy describes, designation
`of a DPS allows the FWS to further the ESA’s purpose of
`protecting endangered and threatened species. Id. (“Listing,
`delisting, or reclassifying distinct vertebrate population
`segments may allow the Service[] to protect and conserve
`species and the ecosystems upon which they depend before
`large-scale decline occurs that would necessitate listing a
`species or subspecies throughout its entire range.”). FWS
`need not wait to take action until the entire species is
`affected. FWS has cautioned, however, that designation of a
`DPS is a tool to be used “sparingly.” Id. at 4,722.
`
`A. The Yellowstone Grizzly’s Experience Under the ESA
`
`The grizzly’s experience since Congress enacted the ESA
`in 1973 has run a zigzag course. Originally listed in 1975, the
`grizzly bear (Ursus arctos horribilis) was by then the subject
`of nationwide concern because the population had suffered a
`steep decline. See Amendment Listing the Grizzly Bear of
`the 48 Conterminous States as a Threatened Species, 40 Fed.
`Reg. 31,734 (July 28, 1975). Indeed, the ESA’s passage was
`partially because of the grizzly’s population decline. See
`
`
`
`28
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`Tenn. Valley Auth., 437 U.S. at 183–84 (citing 119 Cong.
`Rec. 42,913 (1973)). As many as 50,000 grizzly bears once
`roamed the United States, but with European settlement in the
`nineteenth century came hunting that caused great grizzly
`population loss. See 2017 Rule, 82 Fed. Reg. at 30,508.
`Throughout the nineteenth and twentieth centuries the grizzly
`bear population continued to decline, and was reduced to less
`than two percent of its former level by the 1930s. Id. The
`grizzly bear of the conterminous 48 states was therefore
`among the early species to be listed as “threatened” under the
`ESA. Amendment Listing the Grizzly Bear of the 48
`Conterminous States as a Threatened Species, 40 Fed. Reg.
`31,734 (July 28, 1975); see also Tenn. Valley Auth., 437 U.S.
`at 183–84.
`
`The FWS followed up the grizzly listing with a Grizzly
`Bear Recovery Plan in 1982, identifying six different,
`geographically isolated ecosystems extending from the
`Greater Yellowstone area, to parts of Idaho and Montana, the
`North Cascades area of Washington, and into southeast
`British Columbia. See 2017 Rule, 82 Fed. Reg. at 30,508–09.
`At present, only two ecosystems have a substantial population
`of grizzlies: the Greater Yellowstone Ecosystem, with which
`we are directly concerned, and which has approximately 700
`bears, and the Northern Continental Ecosystem of north-
`central Montana, which is estimated to have approximately
`900 bears. Id. at 30,509. In Yellowstone National Park,
`within the Greater Yellowstone Ecosystem, grizzlies reached
`Park capacity by 2006. See Greater Yellowstone Coal.,
`665 F.3d at 1020.
`
`The success of the Recovery Plan in the Greater
`Yellowstone Ecosystem brought about the first FWS effort to
`remove the bears in that area from the List of Threatened and
`
`
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`29
`
`Endangered Wildlife. See 2007 Rule, 72 Fed. Reg. 14,866.
`This required separating the Yellowstone grizzlies from the
`rest of the grizzlies to create a DPS, declaring the
`Yellowstone grizzlies no longer threatened, and delisting
`them. Id. at 14,866.
`
`In the inevitable lawsuit that followed, environmental and
`tribal groups successfully challenged
`the delisting.
`Ultimately, this court upheld the district court’s order
`vacating the rule. We held the FWS had arbitrarily concluded
`that declines of whitebark pine, an important food source for
`the grizzlies, were unlikely to threaten the Yellowstone
`grizzlies. Greater Yellowstone Coal., 665 F.3d at 1030. We
`affirmed the district court’s remand to the FWS to further
`consider the impact of whitebark pine on the Yellowstone
`grizzly population. Id.
`
`Five years after the remand, the FWS in 2016 published
`the Conservation Strategy for the Grizzly Bear in the Greater
`Yellowstone Ecosystem. That Conservation Strategy outlines
`the manner in which the Yellowstone grizzly is to be
`managed and monitored upon delisting.
` See 2016
`Conservation Strategy for the Grizzly Bear in the Greater
`Yellowstone Ecosystem, at 2
`(Dec. 2016)
`(“2016
`Conservation Strategy”). Although the Conservation Strategy
`itself is not legally binding, it was produced only after many
`iterations of drafting and compromises with Idaho, Montana,
`and Wyoming. See Crow Indian Tribe, 343 F. Supp. 3d at
`1018. Federal and state agencies therefore adopted it and
`committed to implement the management strategies into law.
`See 2016 Conservation Strategy at 13–14 (Memorandum of
`Understanding).
`
`
`
`30
`
`CROW INDIAN TRIBE V. STATE OF WYOMING
`
`The FWS accompanied the 2016 Conservation Strategy
`with the publication of the 2017 Rule at issue in this appeal.
`In that Rule, the FWS not surprisingly concluded that the
`decline of the whitebark pine does not pose a substantial
`threat to the Yellowstone grizzlies. 2017 Rule, 82 Fed. Reg.
`at 30,536–40. The FWS further concluded, as it had in 2007,
`that the Yellowstone grizzly satisfies the requirements for
`designation as a DPS, and that ESA protections are no longer
`necessary for the DPS. Id. at 30,502. In reaching these
`conclusions, the 2017 Rule relied on the 2016 Conservation
`Strategy’s management plan as sufficient to ensure the long-
`term recovery of the Yellowstone grizzly. Id. at 30,515–16.
`
`Publication of the 2017 Rule did not mark the end of this
`regulatory chapter, however. Not long after that publication,
`the D.C. Circuit considered a case in which, as here, the FWS
`had simultaneously created a DPS and delisted it. That case
`involved the Western Great Lakes gray wolf, and resulted in
`the influential opinion Humane Society v. Zinke, 865 F.3d 585
`(D.C. Cir. 2017).
`
`In Humane Society, the D.C. Circuit first considered
`whether the FWS’s interpretation of the ESA, as permitting
`the agency to simultaneously create and delist a DPS, was
`reasonable. Id. at 595. Although such action arguably
`conflicts
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