FWS Updates Grizzly Bear DPS Findings

 

The U.S. Fish and Wildlife Service (FWS) recently published a notice of proposed rulemaking (NOPR) regarding the Endangered Species Act’s designation for the grizzly bear (Ursus arctos horribilis) in the contiguous United States.

The FWS issued the NOPR in the final days of the Biden administration to designate a single discrete population segment (DPS) encompassing all six grizzly bear recovery zones in the contiguous United States. In the NOPR, the FWS specifically noted that the FWS would not be delisting the animal as it “remains likely to become an endangered species within the foreseeable future.”¹

On the same day the NOPR was published, the FWS also published a notification of finding² responding to a 2022 petition from the State of Wyoming, with support from Idaho and Montana. The petition asked the FWS to classify grizzly bears in the Greater Yellowstone Ecosystem (GYE) as a DPS based on the FWS’ 2017 later-vacated ruling to create a GYE discrete population segment (DPS) and delist the newly-created DPS from the threatened species list.³

In the notification of finding, the FWS declined to designate grizzly bears in the GYE as a DPS, finding that the bears in the proposed DPS did not represent a valid DPS for failure to satisfy the discreteness element in DPS policy. ⁴ Under DPS policy, one way that population segments may be considered discrete is if they are “markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors.”⁵

The FWS cited data suggesting that the levels to which grizzly bears within the GYE have dispersed beyond the GYE DPS boundary and suggested that the grizzly bear population will continue to expand and disperse throughout the Northern Continental Divide Ecosystem.⁶

However, the Trump administration has stated that it may revisit the proposed rule.

As part of the comment period for the proposed rule, the FWS scheduled one virtual and three in-person public meetings in Idaho, Montana, and Wyoming.⁷ However, these meetings were canceled on January 28 “in light of the recent transition and the need for the Trump Administration to review the recent grizzly bear proposed rule.”⁸

The FWS is accepting comments for the proposed rule until March 17.⁹

Footnotes:

1. Grizzly Bear Listing on the List of Endangered and Threatened Wildlife With a Revised Section 4(d) Rule, 90 Fed. Reg. 4234, 4245 (proposed Jan. 15, 2025); see also Q&As: Grizzly Bear Lower 48 Revision and 4(d) Rule, S. Fish & Wildlife Serv., https://www.fws.gov/project/qas-grizzly-bear-lower-48-revision-and-4d-rule (last visited Feb. 13, 2025).
2. 12-Month Finding for the Greater Yellowstone Ecosystem of the Grizzly Bear in the Lower-48 States, 90 Fed. Reg. 3763 (Jan. 15, 2025).
3. Press Release, Wyo. Game & Fish Dept, Governor Gordon Submits Petition to Remove Greater-Yellowstone Grizzlies from the Endangered Species List (Jan. 11, 2022) (https://wgfd.wyo.gov/News/Governor-Gordon-Submits-Petition-To-Remove-Greater)
4. 12-Month Finding for the Greater Yellowstone Ecosystem of the Grizzly Bear in the Lower-48 States, 90 Fed. Reg. at 3765.
5. Id.
6. Id. at 3764–65.
7. Grizzly Bear Recovery Program, S. Fish & Wildlife Serv., https://www.fws.gov/grizzlyrulemaking (last visited Feb. 26, 2025).
8. Id.; Robert Chaney, Grizzly Bear ESA Status in Question as FWS Cancels Public Meetings, Mountain J. (Jan. 27, 2025), https://mountainjournal.org/grizzly-bear-esa-status-in-question-as-fws-cancels-meetings.
9. Grizzly Bear Listing on the List of Endangered and Threatened Wildlife With a Revised Section 4(d) Rule, 90 Fed. Reg. at 4234–35.

Hyperlinks:

• “accepting comments” https://www.regulations.gov/docket/FWS-R6-ES-2024-0186/document