Atchafalaya Basinkeeper v. Bernhardt

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ATCHAFALAYA BASINKEEPER, CIVIL ACTION

ET AL.

VERSUS

DAVID BERNHARDT, ET AL. NO. 20-00651-BAJ-EWD

RULING AND ORDER

In 1992, the U.S. Fish and Wildlife Service (the Service) listed the Louisiana

Black Bear as a threatened species under the Endangered Species Act (ESA). In 2016,

the Service delisted the bear after determining that its population had recovered and

was no longer threatened. Plaintiffs, a collection of non-profit organizations and

individuals who assert an interest in the Louisiana Black Bear and its habitat,

dispute the Service’s determination and challenge the delisting decision. Now before

the Court are Plaintiffs’ Motion For Summary Judgment (Doc. 51), the Federal

Government Defendants’ Cross Motion For Summary Judgment (Doc. 58),

Intervenor-Defendant State of Louisiana’s Motion For Summary Judgment (Doc.

64), and Intervenor-Defendant Safari Club International’s Cross Motion For

Summary Judgment (Doc. 65). For the reasons that follow, Plaintiffs’ Motion will

be denied. Judgment will be entered in favor of Defendants.

I. BACKGROUND

A. The Louisiana Black Bear

The Louisiana Black Bear (Ursus americanus luteolus) is one of 16 subspecies

of the American Black Bear (Ursus americanus) and one of three black bear

subspecies found in the southeastern United States. REMOVAL OF THE LOUISIANA

BLACK BEAR FROM THE FEDERAL LIST OF ENDANGERED AND THREATENED WILDLIFE, 81

Fed. Reg. 18,124, 138,124 (Mar. 11, 2016). Luteolus is a large mammal with long,

coarse black hair and a short, hairy tail. Jd at 13,125. It is not readily visually

distinguishable from other black bear subspecies. Id. Luteolus, like other black bears,

can thrive in a wide variety of habitats, and is found in southeastern United States

floodplain forests as well as marsh, upland forested areas, forested areas along

bayous, brackish and freshwater marsh, salt domes, and agricultural fields. Id. at

13,126. Luteolus is typically omnivorous and will eat almost anything available,

ranging from vegetation, fruits, and grains to beetles and grubs. Jd. Historically,

luteolus lived throughout Louisiana, eastern Texas, and Mississippi. Jd. at 13,126—

27.

Beginning in the 1700s and early 1800s, hunting and large-scale destruction

of forests severely diminished luteolus numbers and range such that, by the 1950s,

only 80 to 120 bears were estimated to remain in Louisiana. Jd. In response to low

black bear numbers, the State of Louisiana carried out a bear reintroduction program

in the 1960s, during which 161 non-native U. americanus bears were brought from

Minnesota. 57 Fed. Reg. 588, 591—2 (Jan. 7, 1992) (hereinafter, Listing Rule). Thirty-

one of these Minnesota bears were released in the Tensas River Basin (TRB) and 130

into the Upper Atchafalaya River Basin (UARB). Jared S. Laufenberg & Joseph D.

Clark, Population Viability & Connectivity of the Louisiana Black Bear (Ursus

americanus luteolus), 3 (2014).

By the early 1990s, clearing of land for agricultural purposes had reduced

luteolus’ original range by more than 80 percent. Listing Rule at 591-592.

Fragmentation of the bear’s remaining habitat led to isolation of already small

subpopulations of luteolus, “subjecting them to threats from such factors as [random

population fluctuations] and inbreeding.” Jd. At the time of listing, known breeding

subpopulations, believed to be isolated from each other, existed in three parts of

Louisiana—the TRB, the Lower Atchafalaya River Basin (LARB), and the UARB. Id.

B. The 1992 Listing of Luteolus Under the Endangered Species Act

Under the ESA, the Service, by delegation of authority from the Secretary of

the Interior, is charged with conserving endangered and threatened species. 16

U.S.C. § 1581(b). One customary way the Service fulfills its duties is by adding or

removing species from the Federal Lists of Endangered and Threatened Wildlife and

Plants. See 16 U.S.C. § 1533. A species is an “endangered species” for purposes of the

ESA if it is in danger of extinction throughout all or a significant portion of its range,

and is a “threatened species” if it is likely to become endangered within the

foreseeable future throughout all or a significant portion of its range. 16 U.S.C. §

1532(6).

On January 7, 1992, the Service issued a final rule listing luteolus as

threatened within its historical range. Listing Rule at 592. In justifying its decision,

the Service identified several threats to luteolus: (1) past habitat loss due to

conversion of forest land to agriculture; (2) possible future habitat losses on privately

owned land; and (8) the inadequacy of existing regulatory mechanisms to protect the

bear. Id. at 590-591. The Service also pointed to illegal killings of bears as a potential

threat. Id. at 591.

When it came to crossbreeding between the native luteolus and imported

Minnesota bears, however, the Service declined to identify this possible hybridization

as a threat to the Louisiana bear. Id. at 592. Due to insufficient genetic data at the

time, “hybridization as a threat [had] neither been discounted nor proved and

remain[ed] unsettled.” Id. The Service noted that black bears are inherently mobile

animals and the areas where bears were found in Louisiana had, until only very

recently (i.e., when widespread habitat destruction began in the 20th century), been

part of a continuous habitat range for black bears throughout the southeast United

States. Id. For this reason, the Service concluded that “[e]xpecting to preserve

[luwteolus], as 1s, presupposes a static condition which does not exist.” Jd. In other

words, the extant populations of luteolus were likely the product of hybridization with

other populations of black bears, had only recently become isolated by habitat loss,

and was therefore not threatened by additional hybridization with another

subspecies. Jd. Indeed, due to similarity of appearance between luteolus and U.

americanus (the bears from Minnesota), the latter species was classified as

threatened in Louisiana as well—in other words, all black bears in Louisiana were

protected in 1992. Id.

C. The Recovery Plan

Following the 1992 listing of luteolus and as required by statute, the Service

developed and approved a recovery plan for the species. See 81 Fed. Reg. at 138,1385—

38. The recovery objective was “delisting,” and the plan gave three criteria for

achieving this: (1) the existence of “[a]t least two viable subpopulations, one each in

the Tensas and Atchafalaya River Basins’; (2) the “[e]stablishment of immigration

and emigration corridors between the two subpopulations”; and (8) “[l]ong-term

protection of the habitat and interconnecting corridors that support each of the two

viable subpopulations.” Id. The service defined a minimum viable subpopulation as

one that has a 95% or better chance of survival over 100 years. Jd. at 138,145. Long-

term protection was defined as having enough voluntary conservation agreements

with private landowners and public land managers in luteolus habitat that habitat

degradation was unlikely to occur, also over 100 years. Id. In 2009, the Service

published a final rule designating approximately 1,195,800 acres as “critical habitat”

for luteolus under the ESA. See Designation of Critical Habitat for the Louisiana

Black Bear, 74 Fed. Reg. 10,350 (Mar. 10, 2009).

D. Five-Year Review

In 2007, the Service began a five-year status review of luteolus, see 72 Fed.

Reg. 42,425 (Aug. 2, 2007), which was published in early 2014. U.S. FISH AND

WILDLIFE SERVICE, LOUISIANA BLACK BEAR 5-YEAR REVIEW: SUMMARY AND

EVALUATION (Feb. 18, 2014), https://ecos.fws.gov/docs/five _year_review/doc4348.pdf.

The review found that between 76% and 100% of the Recovery Plan’s objectives had

been achieved and that the bear’s status was “improving,” as demonstrated by

growing population numbers in the TRB, UARB, and LARB. Jd. at 2. The review also

found that luteolus habitat had increased, with more than 250,000 new acres of

conservation land since the bear’s listing in 1992, with much of the new acreage

“targeted to support existing breeding populations and/or to create movement

corridors between those populations.” Jd. at 3. Because ongoing population viability

studies had not yet been completed, however, the Service was unable then, in 2014,

to conclude that the three recovery criteria had been met. Id.

E. The 2016 Delisting

This soon changed. On May 21, 2015, the Service issued a Proposed Rule to

remove luteolus from the list of endangered species and a Draft Post-Delisting

Monitoring Plan. See 81 Fed. Reg. at 13,125. After considering public comments, the

Service published a final rule delisting Juteolus on March 11, 2016. See id. at 13,124.

According to the Service, all substantial threats to luteolus had been eliminated or

reduced, adequate regulatory mechanisms existed, and the subspecies was viable for

the next 100 years. Id. The areas supporting luteolus “black bear breeding

subpopulations [had] increased over 4380 percent ... [and] approximately 148,400

[acres] ... of private lands [had] been restored and permanently protected ... since

[luteolus] was listed. Id. at 18,127. The breeding subpopulations that existed at the

time of listing—TRB, UARB, and LARB—were “stable or increasing” in size. Id. at

13,124. Studies estimated that there were now around 294 bears in the TRB, up from

an estimated 40 to 50 at the time of listing, td. at 13,128; between 50 and 88 bears in

the UARB, up from and estimated 80 or 50 at the time of listing, id. at 13,129; and

between 136 and 194 bears in the LARB, up from possibly only 30 at the time of

listing, rd. at 13,180.

i. Recovery criteria met

In its Final Rule, the Service discussed why it believed each of the three

recovery criteria for luteolus, as set forth in the 1995 Recovery Plan, had been met.

First, two viable subpopulations existed in the Tensas and Atchafalaya River

Basins, namely the TRB and UARB subpopulations. Jd. at 13,135. The viability of

these subpopulations was confirmed by a study that estimated that the probability of

persistence over 100 years was over 95% for the TRB subpopulation and over 95% for

the UARB subpopulation “except under the two most conservative sets of

assumptions.” Id. The study found that the long-term viability of bears in the UARB

and TRB was further aided by the existence of a new breeding subpopulation, located

between the UARB and TRB in an area called the Three Rivers Complex (TRC). Id.

The Service introduced bears, primarily from the TRB, to the TRC between 2001 and

2009 “in order to facilitate movement of individuals between the UARB and TRB

subpopulations.” Jd. at 18,185—36. The Service noted that “[r]ecent documentation of

bear movement between the TRC and UARB and between the UARB and TRB via

the TRC subpopulation demonstrate[d] the success” of the reintroduction effort. Id.

at 18,135. The probability of long-term persistence for the LARB subpopulation,

however, was “unknown.” Jd. at 13,133. Nevertheless, the documented health of the

UARB and TRB bears satisfied the first recovery criterion.

Second, immigration and emigration corridors had been established between

the UARB and TRB subpopulations. To justify its conclusion regarding this recovery

criterion, the Service explained that research since the time of listing had clarified

its understanding of what a corridor meant for a black bear. Jd. at 18,136. The

research suggested “that the presence of multiple satellite populations of breeding

bears ... may be more effective in establishing and/or maintaining connectivity

between the larger subpopulations than the presence of contiguous forested

linkages.” Id. This new understanding of habitat corridors drove the Service to create

a satellite population of bears in the TRC that could connect the TRB and UARB

bears. Id. By the time of delisting, there was “clearly documented evidence of

interchange between the TRB and UARB subpopulations by way of the TRC.” Id. In

other words, a corridor had been established between two subpopulations of bears,

and therefore the second recovery criterion was met. Id. at 13,137.

Third and finally, the Service explained that between 450,000 and 550,000

acres of luteolus habitat had been restored since 1992; 148,000 acres of private land

had been permanently protected; and around 480,000 acres of public lands were being

maintained and managed to benefit bears. Jd. Because of these extensive habitat

gains, the Service concluded that the third recovery criterion was met.

ii. ESA threat factors

Next, the Service analyzed the status of luteolus under the ESA factors for

identifying threats to a species. Under Factor A—the present or threatened

destruction, modification, or curtailment of habitat or range—the Service found that

much of luteolus’ current available habitat was protected and continued to increase

in size. Id. at 18,159. Habitat suitable for bears to breed had grown by a factor of five

since the time of listing and was estimated to include more than 1,800,000 acres. Jd.

at 18,154. Moreover, around 460,000 acres of available habitat was held in Federal

or State ownership, permanently protecting the land. Jd. at 13,159. For these reasons,

the Service found that destruction of habitat, the primary reason for listing lwteolus

in the first place, was no longer a threat to the long-term survival of the bear. Id.

Under Factor B—overutilization for commercial, recreational, scientific, or

educational purposes—the Service noted that recreational hunting was not a threat

to the survival of the bear because no hunting had been allowed since 1984. Id.

Although the “potential for a regulated restricted harvest of the Louisiana black bear

population exist[ed],” the Louisiana Department of Wildlife and Fisheries (LDWF)

“would not consider a harvest if existing data and simulated population dynamics

models indicate a restricted hunt could potentially compromise Louisiana black bear

sustainability.” Id. at 13,160.

For Factor C—disease or predation—the Service found, as it had at the time of

listing in 1992, that “no evidence or data indicat[e] that disease or predation present

a threat to the Louisiana black bear population.” Id.

For Factor D—the adequacy of existing regulatory mechanisms—the Service

discussed state and federal protections that would remain in place after delisting,

including numerous federal laws, state counterparts to ESA protections, and state

management plans for luteolus. Id. at 13,135, 138,188, 13,160—-61. The Service further

noted that trends in forested luteolus habitat since its listing indicate that regulations

aside from ESA “have provided adequate long-term protection of Louisiana black bear

habitat.” Id. at 13,164. Following a lengthy analysis, the Service found that the

existing regulatory mechanisms were adequate. Id.

Finally, for Factor E—other natural or manmade factors affecting the bear’s

continued existence—the Service returned to the discussion of hybridization. It first

noted that evidence it relied on at the time of listing the luteolus suggested that “a

pure strain of [Jwteoluws] subspecies no longer existed” because of habitat continuum

between the TRB bears and the Minnesota bears in the UARB, bear releases in

Arkansas resulting in dispersal into Louisiana, and the documented long-distance

natural movements of bears. Jd. at 13,165. The Service then concluded that based on

“historical descriptions” of where the Minnesota bears were released in the UARB, “it

is very likely there was no known breeding population in that area at the time,”

although it could not rule out the “presence of males in or traveling through that

area.” Id. The Service acknowledged that this information weighed in favor of a

conclusion that the UARB bears were descended at least in part from the Minnesota

bears. Id.

A genetic analysis of Louisiana bears performed in a 2014 study showed that

the situation was more complicated. See Laufenberg & Clark, supra. That study,

which the Service heavily relied on, “found varying levels of genetic structure among

pairs of subpopulations and identified five genetically distinct groups.” 81 Fed. Reg.

at 18,165. The study “concluded that differentiation between the Louisiana black bear

subpopulations within [Mississippi and Louisiana] can be explained as the result of

restricted gene flow, accelerated genetic drift, and differing levels of genetic

introgression as a result of the Minnesota [bear] introductions.” Jd. Crucially, the

study also found that the genetic similarities and differences between luteolus, black

bears in Arkansas, and black bears from Minnesota were too insignificant to precisely

define the genetic makeup of luteolus. Id. Put another way, the Louisiana black bears

had been hybridized enough that it was hard for the scientists to pin down exactly

10

what combination of black bear genes constituted a pure, native luteolus bear. Id.

These results meant that the effects of crossbreeding between native luteolus bears

and the Minnesota bears introduced in the 1960s “[did] not seem to be great enough

to pose a significant threat to [luteolus] genetic integrity by hybridization as

speculated [by the Service] at listing.” Id. Moreover, the study emphasized that

“genetic exchange that is occurring among bears from Louisiana, Mississippi, and

Arkansas can be considered a positive genetic and demographic contribution to the

Louisiana black bear.” Id. Based on the scientific evidence, the Service again

concluded, as it had at the time of listing, that hybridization was not a significant

threat to luwteolus.

After considering hybridization, the Service moved on to the possibility of

threats from vehicle collision, illegal killing, and climate change, and concluded that

none of these human causes of bear deaths were significant threats to luteolus. Id. at

13,164—67. As for threats from hurricanes and climate factors, the Service concluded

that the bear could survive these events due to its adaptability, mobility, and

demonstrated resilience. Jd. at 13,167.

iii. Significant portion of the range analysis

Having found that luteolus was no longer threatened across its range, the

Service finally considered whether there were significant portions of the range where

the bear was in danger of becoming extinct or likely to become so in the foreseeable

future. Jd. at 18,168—70. This analysis focused on the coastal LARB subpopulation,

which is isolated from other subpopulations geographically and possibly at greater

risk due to “additional potential threats from future anticipated development and sea

11

level rise.” Id. Because the 2014 population study discussed above did not analyze

the LARB bears, the Service “did not have data to determine [the LARB

subpopulation’s] long-term viability.” Id. at 13,169. The Service ultimately concluded,

however, that the LARB subpopulation was not threatened or endangered because

“bears have demonstrated the ability to adapt and would likely move into more

suitable areas” in the event of rising water levels. Id. The effects of higher sea levels

would be offset by a projected increase in sedimentation of the Atchafalaya Basin, a

process which in theory creates bear habitat where once there was uninhabitable

swamp. Jd. Additionally, loss of the LARB subpopulation would not cause extinction

because the majority of the luteolus population was found in the TRB and UARB

subpopulations, where the likelihood of survival was very high. Id.

F, Plaintiffs’ Lawusits

Plaintiffs have filed two lawsuits challenging the 2016 decision to delist

luteolus. The first was filed in June 2018 in the U.S. District Court for the District of

Columbia. (Doc. 1-6 at 1). See also Public Employees for Environmental

Responsibility, et al. v. Bernhardt, et al., Case No. 18-CV-1547, 2020 WL 601788

(D.D.C. Feb. 7, 2020) (hereinafter, PEER). That case involved all of the same plaintiffs

as this action, with the exception of Healthy Gulf. (Doc. 1-6 at 1). The PEER litigation

proceeded through summary judgment but was dismissed without prejudice after the

Court found that the Plaintiffs lacked standing. See PEER, 2020 WL 601783, at *9.

Plaintiffs’ second lawsuit is now before this Court. Plaintiffs allege that the

delisting of luteolus violated the ESA and the Administrative Procedure Act, 5 U.S.C.

§ 551, et seqg., and ask this Court to order that the bear be returned to the List of

12

Endangered and Threatened Wildlife and that a New Recovery Plan be adopted. In

addition to the Federal Defendants, Safari Club International and the State of

Louisiana have intervened as Defendants. Defendants argue first that Plaintiffs still

do not have standing and second that the Service’s decision to delist luteolus was

lawful.

II. LAW AND ANALYSIS

A. Plaintiffs Have Standing

For standing in federal proceedings, a party must demonstrate the “triad of

injury in fact, causation, and redressability.” Steel Co. v. Citizens for a Better

Env’, 523 U.S. 88, 108 (1998). The injury in fact must be “a harm suffered by the

plaintiff that is ‘concrete’ and ‘actual or imminent.” Jd. (citing Whitmore v.

Arkansas, 495 U.S. 149, 155 (1990)). Causation requires a “traceable connection”

between the plaintiffs injury and the defendant’s conduct. Id. Redressability requires

“a likelihood that the requested relief will redress the alleged injury.” [d. Where a

case involves multiple plaintiffs, “[a]t least one plaintiff must have standing to seek

each form of relief.” Town of Chester v. Laroe Estates, Inc., 581 U.S. 488, 484 (2017).

Here, all the Plaintiffs—the individual and the organizational Plaintiffs—seek the

same form of relief for each claim. Therefore, if any one of the plaintiffs has standing,

the Court can proceed to the merits.

The first hurdle for Plaintiffs is to demonstrate that they have suffered an

injury in fact. In an environmental case, this requirement is satisfied if a party

adequately shows that it has an aesthetic or recreational interest in a particular place

or animal, and that interest is impaired by a defendant’s conduct. See Friends of the

13

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000). Although

a “generalized harm to the forest or the environment will not alone support standing,

if that harm in fact affects the recreational or even the mere esthetic interests of the

plaintiff, that will suffice.” Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009);

see WildEarth Guardians v. Jewell, 738 F.3d 298, 305-06 (D.C. Cir. 20138) (finding

that affidavits from environmental groups’ members “attesting to those members’

aesthetic interests in the land... and specific plans to visit the area regularly for

recreational purposes” were sufficient to support Article III standing).

Here, Plaintiffs have shown that since delisting, reported annual bear

mortality has risen while survival estimates for individual subpopulations have

steadily dropped, citing the Service’s own Post-Delisting Monitoring Annual Reports.

(See Doc. 51-8 at § 6). According to the 2019 such report, the average annual reported

deaths for Louisiana black bears in Louisiana has been 46 bear deaths per year post

delisting, compared to only 16 per year on average during the entirety of the bear’s

time listed as a threatened species. (/d.). Additionally, the female bear survival rate

in the UARB has since fallen below the minimum threshold to ensure survival defined

by the Service itself. Ud. (“The UARB estimate was at or slightly below the minimum

threshold [for survivability]... .”) This data suffices to show that the harm to

Plaintiffs’ ability to observe and study luteolus is actual. See Aransas Project v. Shaw,

775 F.3d 641, 648 (5th Cir. 2014) (finding that deaths of whooping cranes left “little

doubt” that plaintiffs had suffered actual harm and had standing to sue under ESA).

To establish their interest in the survival of luteolus, Plaintiffs have shown

14

that they have worked to protect luteolus and its habitat for decades and have

personal and professional interests in observing and studying the bear. (See, e.g.,

Docs. 51-3 at ¥§ 4, 8-14 (describing declarant’s role in the formation of the Black

Bear Conservation Coalition, which 1s dedicated to restoring luteolus and its habitat,

ongoing status as a life member in that organization, and time spent “over three

decades” studying the Louisiana black bear and visiting and observing its habitat in

Louisiana with plans to continue doing so); 51-4 at § 26 (describing desire to observe

the bear in its native habitat); ); 51-5 at § 42 (describing aesthetic interest in bear

sightings in the Atchafalaya Basin); ); 51-5 at § 9, 14 (describing professional interest

in ongoing study of the bear and intent to continue visiting Louisiana to observe the

bear)). These declarations establish that the individual Plaintiffs have the requisite

concrete interests in the bear’s survival to have standing in this case.

Several of the Plaintiffs are conservation and advocacy groups, for whom

Plaintiffs seek associational standing. Such standing exists when an entity's

“members would otherwise have standing to sue in their own right, the interests at

stake are germane to the [entity’s] purpose, and neither the claim asserted nor the

relief requested requires the participation of individual members in the

lawsuit.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167,

181 (2000) (citing Hunt v. Wash. State Apple Advert. Comm'n, 482 U.S. 388, 348, 97

(1977)). The organizational Plaintiffs here meet the requirements of associational

standing. The purposes of these organizations, as shown by the declarations

submitted on their behalf, are conservation and advocacy. These organizations unite

15

their members in the shared purpose of observing, protecting, and studying lwteolus

and its habitat, among other species and ecosystems in Louisiana and across the

country. As just one example, Dean Wilson submits his declaration on behalf of

Plaintiff Atchafalaya Basinkeeper and as a member of Plaintiff Healthy Gulf. (51-8

at 1, 4). Mr. Wilson states that Basinkeeper’s purpose is to “preserve and restore

the ecosystems of the Atchafalaya Basin, including wildlife habitat, and to support

the future health and sustainability of the Basin and Louisiana’s coast,” including

specifically to protect the habitat of luteolus. Id. at 6, 14).! The declarations show

that the loss of luteolus would constitute a harm to the organizations as entities as

well as to each of their members. Nor do the claims asserted or relief requested here

require the participation of the organizations’ individual members, although some

members join the lawsuit as individual Plaintiffs. See Gulf Restoration Network v.

Salazar, 683 F.3d 158, 168 (5th Cir. 2012) (“Because neither the claims nor the relief

require individualized proof, they are thus properly resolved in a group context.”

1 Intervenor-Defendant Safari Club International (SCI) protests that Plaintiffs have failed to

identify specific locations in the luteolus range to link their personal use to the specific area

affected by the delisting, citing the D.C. District Court’s holding that “broad, general

assertions will not suffice” for standing. (Doc. 65-1 at 12). Here, the Court notes that SCI is

simply incorrect about what Plaintiffs have asserted this time regarding their own interests.

For example, Mr. Wilson states that he “regularly visit[s] the following areas that were part

of the Service's designated critical habitat (Unit 2) for the Louisiana black bear: (A) Fisher

Lake, (B) Bayou Chene, (C) 1-10 canal between the Whiskey Bay Pilot Channel and the

Eastern levee, including East Branch of Brown Bayou, and (D) up and down the Atchafalaya

River.” (Doc. 51-8 § 26). Another example: Harold Schoeffler, a member of Plaintiffs Sierra

Club and Louisiana Crawfish Producers Association-West, describes his regular recreation

“in the lower Basin between Morgan City and the Bay, between Wax Lake and the

Atchafalaya River, between Bayou Sally and Wax Lake, and on the west side of the Basin,

including in the Buffalo Cove area Gn Unit 2 of designated critical habitat for the bear).” (Doc.

51-7 | 12). It is unclear to the Court how Plaintiffs could be much more specific.

16

(quotations omitted, cleaned up)). For these reasons, the Court finds that the

organizational Plaintiffs also have standing.

With actual injury in tow, all that is left for Plaintiffs is to show causation and

redressability, 1.e., that the increase in mortality of luteolus was fairly traceable to

the delisting and that relisting the bear would likely resolve the harm. See Citizens

for a Better Env't, 523 U.S. at 108. Even in the face of other plausible explanations

for the increases in bear mortality and declines in the survival rate of the UARB

subpopulation,? Plaintiffs’ own explanation suffices for causation. Restoring ESA

protections to luteolus could be reasonably expected to reverse the trends in bear

mortality that establish Plaintiffs’ harms. Protecting the bear under the ESA led to

steady and significant population recovery over a period of 24 years. The Court will

assume for standing purposes that such recovery would continue if the bear is

relisted. See Aransas Project, 775 F.3d at 648 (“Redressability requires a likelihood

that the requested relief will redress the alleged injury.” (quotations omitted)). For

the foregoing reasons, the Court finds that the Plaintiffs have established standing

to challenge the Service’s delisting of luteolus and will proceed to the merits of

Plaintiffs’ case.

B. The Delisting Was Not Arbitrary Or Capricious

Plaintiffs argue that the Service’s 2016 delisting of luteolus was flawed in five

ways: (1) the Service should not have included the UARB in its analysis because the

2 For example, Intervenor-Defendant SCI argues that the increase in mortalities instead

shows that the total bear population in Louisiana has also increased, thereby reducing the

percentage significance of the higher annual death rate. (Doc. 65-1 at 21).

17

bears there are not truly native to Louisiana; (2) the Service should have considered

the loss of historical luteolus range; (8) the Service should have considered the loss of

historical luteolus population; (4) the Service’s analysis of threats to luteolus was

arbitrary and capricious; and (5) the Service’s conclusion that luteolus was not

threatened in a “significant portion of its range” was arbitrary and capricious and not

in accordance with the law. After discussing the applicable law, the Court will

consider each argument in turn.

i. Standard of Review

Summary judgment is appropriate if the record shows “that there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). In the context of a challenge to an agency action under

the Administrative Procedure Act (APA), “[s]lummary judgment is the proper

mechanism for deciding, as a matter of law, whether an agency’s action is supported

by the administrative record and consistent with the APA standard of review.” Blue

Ocean Inst. v. Gutierrez, 585 F. Supp. 2d 36, 41 (D.D.C. 2008). Thus, in evaluating a

case on summary judgment, the court applies the standard of review from the APA.

See Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 627 (5th Cir. 2001).

In a challenge to agency action brought pursuant to the APA, a court shall

“hold unlawful and set aside agency action, findings, and conclusions found to be,”

among other things, “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A)-(D). When reviewing for arbitrariness and

capriciousness, a court considers whether an agency has “examine[d] the relevant

data and articulate[d] a satisfactory explanation for its action including a rational

18

connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n

of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1988) (quotation

omitted). Agency action is arbitrary and capricious when “the agency has relied on

factors which Congress has not intended it to consider, entirely failed to consider an

important aspect of the problem, offered an explanation for its decision that runs

counter to the evidence before the agency, or is so implausible that it could not be

ascribed to a difference in view or the product of agency expertise.” Jd. The scope of

review “is narrow and a court is not to substitute its judgment for that of the agency.”

Id. Instead, this court looks to “whether the decision was based on a consideration of

the relevant factors and whether there has been a clear error of judgment.” Judulang

v. Holder, 565 U.S. 42, 58 (2011). As Judge J. Skelly Wright put it: “[T]he judicial role

...is to see that important legislative purposes, heralded in the halls of Congress,

are not lost or misdirected in the vast hallways of the federal bureaucracy.” Calvert

Cliffs’ Coordinating Committee v. United States Atomic Energy Comm’n, 449 F.2d

1109, 1111 (D.C. Cir. 1971).

ii. ESA Statutory Requirements

The ESA is “the most comprehensive legislation for the preservation of

endangered species ever enacted.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98

S.Ct. 2279, 57 L.Ed.2d 117 (1978). Under the ESA, the Service must “identify and list

species that are ‘endangered’ or ‘threatened.” Center for Biological Diversity v. Zinke,

868 F.3d 1054, 1057 (9th Cir. 2017) (quoting 16 U.S.C. § 1533). A threatened species

“is likely to become an endangered species within the foreseeable future throughout

all or a significant portion of its range,” 16 U.S.C. § 1532(20), while an endangered

19

species is “in danger of extinction throughout all or a significant portion of its range,”

id. § 1532(6).

The Service must make listing and delisting determinations according to a five-

factor analysis of potential threats, including: (A) the present or threatened

destruction, modification, or curtailment of [a species’] habitat or range; (B)

overutilization for commercial, 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 §

15338(a)(1). The agency must make any determination “solely on the basis of the best

scientific and commercial data available.” Id. § 1533(b)(1)(A). The Secretary of the

Interior has delegated the authority to determine whether a species is endangered or

threatened to the Fish and Wildlife Service. 50 C.F.R. § 402.01(b).

iii. The Service’s Inclusion of the UARB Subpopulation

Plaintiffs’ primary challenge is to the Service’s inclusion of the UARB bear

subpopulation in its delisting analysis. Plaintiffs argue that the UARB bears trace

their roots primarily or even solely to the Minnesota bears introduced in the 1960s.

For this reason, the modern-day UARB bears are not true, native luteolus, and the

Service’s inclusion of the UARB bears in its consideration of the health of the luteolus

population in Louisiana was therefore in error. (See Doc. 51-1 at 18). Plaintiffs further

argue that the ongoing crossbreeding between the UARB and TRB bears represents

a threat to luteolus that the Service should have considered. (Doc. 51-1 at 27—29). In

fact, Plaintiffs argue, the process of introducing bears to the TRC region—located

between the UARB and TRB—which the Service undertook in 2001 to strengthen the

20

genetic viability of the subspecies, see 81 Fed. Reg. at 13,129, itself represents a threat

to the genetic purity of luteolus. (Doc. 51-1 at 28). Plaintiffs ask this Court to order

the Service to develop a new Recovery Plan that takes into account the risks that

crossbreeding poses to the native Louisiana bear. (See id.). Plaintiffs also take issue

with how the Service determined that a key recovery plan metric— the existence of a

corridor between two luteolus subpopulations—was met. Because one of the

connected subpopulations, the UARB, did not actually have native luteolus bears,

Plaintiffs argue, no corridor truly connects luteolus subpopulations. Ud. at 25-27).

After reviewing the administrative record and the parties briefing, and

mindful of the “extreme degree of deference” owed to an agency’s scientific findings,

the Court finds that the Service made a reasonable decision after careful

consideration of the best available scientific evidence. Permian Basin Petroleum Ass’n

v. U.S. Dep’t of the Interior, 127 F. Supp. 3d 700, 707 (W.D. Tex. 2015); see Gulf

Restoration Network v. U.S. Dep’t of Transp., 452 F.3d 362, 368 (5th Cir. 2006) (“[A

reviewing court] must look at the decision not as a chemist, biologist, or statistician

that we are qualified neither by training nor experience to be, but as a reviewing

court exercising our narrowly defined duty of holding agencies to certain minimal

standards of rationality.”).

It is apparent that the Service has considered the impact of hybridization on

luteolus going all the way back to the original rule listing the bear as threatened in

1992. A 1989 study the Service relied on at the time suggested that “a pure strain of

[luteolus] subspecies no longer existed” because of habitat continuum between the

21

TRB bears and the Minnesota bears in the UARB, bear releases in Arkansas resulting

in dispersal into Louisiana, and the documented long-distance natural movements of

bears. 81 Fed. Reg. at 13,165. Crucially, the study also concluded that “encouraging

gene flow from nearby populations (including U. a. americanus) is one of the best

strategies for long term preservation of [luteolus].” (Doc. 58-1 at 31). This

recommendation drove the Service to encourage crossbreeding between the TRB and

UARB subpopulations through the introduction of bears to the TRC. 81 Fed. Reg. at

13,135-36.

Fast forward to 2016, the primary study relied on by the Service in support of

delisting also concluded that genetic interchange should be considered “a positive

genetic and demographic contribution to the Louisiana black bear.” Id. at 18,165

(quoting Laufenberg & Clark, supra). Additionally, data from successive studies of

TRB bears showed that increases in genetic diversity during the listing period

contributed to corresponding increases in estimated population size and long-term

population viability. Id. at 12,129-30. The 2014 study also “found varying levels of

genetic structure among pairs of subpopulations and identified five genetically

distinct groups.” Id. at 13,165 (quoting Laufenberg & Clark, supra). The study

“concluded that differentiation between the Louisiana black bear subpopulations

within [Louisiana and Mississippi] can be explained as the result of restricted gene

flow, accelerated genetic drift, and differing levels of genetic introgression as a result

of the Minnesota introductions.” Jd. In other words, the studies relied on by the

Service provided support for its theory, going back to the time of listing luteolus, that

22

the Louisiana black bear population was to some extent already hybridized, and that

such hybridization was a good thing for the bear’s long-term survival.

Plaintiffs argue that the 2014 study, which found similarities between UARB

and Minnesota bears, “fatally undermined” the Service’s claims that the Recovery

Plan criteria had been met. (Doc. 70 at 10 (referring to Laufenberg & Clark, supra).

However, numerous problems with Plaintiffs’ argument are apparent. First, it

represents an incomplete description of the study’s findings because the study also

found affinities between the UARB and LARB bears and between the TRB bears and

bears in Arkansas. (Doc 58-1 at 33). Second, by arguing that UARB bears should not

count as luteolus and that crossbreeding is a threat, Plaintiffs essentially mount a

challenge to the listing of the bear in 1992 and actions taken by the Service during

the listing period, throughout which the UARB bears have been considered luteolus.

These decisions are not under review in this case.3 Informed by the best available

science, the Service has operated under the assumption that the UARB bears are

luteolus since 1992. No scientific data demands a contrary conclusion. Moreover, once

the UARB subpopulation was listed as part of luteoluws in 1992, a decision that went

unchallenged, the Service was required to engage in a “comprehensive review of the

3 Plaintiffs’ requested relief includes having this Court supervise the Service’s development

of a new recovery plan that considers the genetic differences between the UARB bears and

other subpopulations. (See Doc. 51-1 at 28-29, 50). This presents significant problems of

administrability, and this Court is loathe to micromanage the Service’s actions in the way

Plaintiffs appear to request. (See id. at 29 (suggesting that this Court should reverse the

introduction of bears to the TRC), 50 (suggesting that this Court revise the Recovery Plan)).

Plaintiffs request is short on details, and for good reason: what Plaintiffs propose is that the

Court embark on a possibly decades-long supervision of the Service’s actions. The Court

simply is in no position to oversee the Service—or any executive agency—in this way. See

Gulf Restoration Network v. U.S, Dep’t of Transp., 452 F.3d 362, 368 (5th Cir. 2006).

23

entire listed species,” including the UARB bears. Humane Society v. Zinke, 865 F.3d

585, 601 (D.C. Cir. 2017) (emphasis added). Once the UARB bears were listed in 1992,

it would have been arbitrary and capricious for the Service not to include those bears

in its delisting analysis.

Third, and importantly for this Court’s purposes, the Service engaged in a

reasoned analysis of the same study relied on by Plaintiffs. In contrast to Plaintiffs’

assessment of the scientific evidence, the Service came to the following conclusions:

the effects of crossbreeding between native luteolus bears and the Minnesota bears

introduced in the 1960s “do not seem to be great enough to pose a significant threat

to [luteolus] genetic integrity by hybridization as speculated at listing;’ and any

“genetic exchange .. . occurring among bears from Louisiana, Mississippi, and

Arkansas can be considered a positive genetic and demographic contribution to the

Louisiana black bear.” 81 Fed. Reg. at 13,165 (citing Laufenberg & Clark, supra at

85). These conclusions reflect a reasoned analysis of the best available scientific data.

See State Farm, 463 U.S. 29, 43 (“[A] court is not to substitute its judgment for that

of the agency.”).

Furthermore, the case relied on by Plaintiffs is distinguishable from the facts

before this Court. In that case, Am. Wildlands v. Norton, 193 F. Supp. 2d 244 (D.D.C.

2002), the court reversed as arbitrary the Service’s decision to not list a species of fish

as endangered. There, the Service had both identified hybridization as the greatest

single threat to the fish species and inexplicably “include[d] hybrid fish” in concluding

that the fish population was safe from extinction. Jd. at 253. In contrast, the Service

24

here acknowledged that hybridization could be a threat but found that some amount

of hybridization was already occurring even before luteolus was listed. See 81 Fed.

Reg. at 13,165. Additionally, relying on scientific data, the Service concluded that

hybridization was important for the long-term survival prospects of the bear. Id.

Notably, the Norton court faulted the Service for “not explain[ing] how hybridized

fish might contribute to the viability of the species” and not “argu[ing] that some

degree of hybridization is benign.” Norton, 193 F. Supp. 2d at 255. Here the Service

has done both. See 81 Fed. Reg. at 13,165. In sum, the Court finds that the Service

engaged in a reasoned analysis of the positive and negative effects of hybridization

on the Louisiana black bear. Ultimately, the Service determined that the UARB bears

counted as luteolus, as they had for decades prior, and that crossbreeding represented

a net positive effect for the subspecies. Plaintiffs strongly disagree, but the Court

cannot hold that the Service was arbitrary or capricious in reaching these

conclusions.

iv. The Service Properly Considered Historical Range

Plaintiffs next challenge as inadequate the Service’s consideration of the

historical range of the Louisiana black bear. (Doc. 51-1 at 29). They argue that the

Service “disclaimed the need to consider the loss of historical range” and instead

should have “conducted .. . [a] comparative assessment of historical and current

ranges” and an analysis of “how much habitat is enough to render luteolus no longer

threatened, or of how the loss of historical range is affecting the subspecies today.”

Ud.). No such analyses are required by the ESA, and the Court concludes that the

Service’s analysis of luteolus habitat, including its historical range, was reasonable.

25

The Service has long considered how the reduction in historical range has

affected luteolus. Indeed, the principal justification for listing the bear as threatened

in the first place was the loss of more than 80% of the bear’s historical range. Listing

Rule at 590-591. Based on this understanding of this threat to luteolus, the Service

set forth habitat-based metrics to assess the bear’s recovery. 81 Fed. Reg. at 13,124

(describing the Service's Recovery Plan). For the Service to consider the bear

recovered, two viable subpopulations needed to exist with corridors between the two

and long-term habitat protections needed to be in place. Jd. In essence, the Service’s

recovery criteria for luteolus were set against the backdrop of the Service’s

consideration of the bear’s historical range and the threat presented by its reduction.

Guided by these recovery criteria, the Service relied on recent detailed analyses—the

best available data—to assess the increases in current range since listing and link

those increases to the bear’s current survival chances. Id.

In Humane Society v. Zinke, 865 F.3d 585 (D.C. Cir. 2017), the sole case cited

by Plaintiffs in support of the argument that the Service failed to consider historical

range, the Service “wrongly omitted all consideration of lost historical range.” Id. at

605. There, in a challenge to the delisting of segments of the gray wolf population,

the court pointed out that “[d]espite immense losses in the gray wolves’ historical

range,” the Service “nowhere analyzed the impact of that loss” on the species’

survival. Jd. at 606. This would not be a fair characterization of the Service’s analysis

here. To the contrary, as demonstrated above, the Service has engaged in an

extensive consideration of luteolus range, historical range, and range recovery since

26

the bear was listed in 1992. See 81 Fed. Reg. at 13,154—59. And the Service continued

its focus on habitat when it delisted the bear in 2016. For instance, in the delisting

rule, the Service noted that “approximately 78 percent of the bottomland forests in

Arkansas, Louisiana, and Mississippi had been lost to conversion [to agriculture] at

the time of listing.” Jd. at 13,154. In response to a public comment on the proposed

delisting rule, the Service expressly noted that “[t]he recovery status of the Louisiana

black bear is not contingent upon it occupying a particular portion of suitable habitat

within its historical range.” Jd. at 13,152. Instead, the Service’s conclusions that

luteolus had recovered was based on its reasoned analysis of habitat gains since

listing. The Service emphasized that “[rlecent field data demonstrate a significant

range expansion by the Louisiana black bear into areas that were unoccupied at the

time of listing.” Id. The Service’s consideration of luteolus habitat is lengthy and

detailed and analyzes multiple factors contributing to habitat gains, including

incentive-based private land restoration programs, state and federal land

preservation programs, and population declines in current and potential bear habitat.

See id. at 13,154-58. Additionally, advances in “[geographic information system

technology] and remotely sensed data (e.g., aerial and satellite imagery)” allowed “for

highly accurate identification and delineation of habitat based on specified

characteristics,” which in turn provided the Service with a “more consistent and

reproducible estimate of [luteolus] habitat distribution and trend.” Jd. at 13,154.

For these reasons, the Court finds that the Service “contend[ed] with the

implications of massive range loss for the species’... . threatened status within its

27

current environment.” Zinke, 865 F.3d at 606. Indeed, the entire premise of the

Service’s analysis of luteolus habitat throughout the final rule delisting the bear was

that historical range loss had been a threat but was no longer so because of habitat

gains during the listing period. These habitat gains have been exhaustively detailed

by the Service. See 81 Fed. Reg. at 13,154—59. The Court will not require the Service

to be any more explicit in considering the reduction of historical range.

v. The Service Properly Considered Historical Population

In the same vein, but citing no case law, Plaintiffs next challenge as inadequate

the Service’s consideration of the historical population numbers of luteolus, arguing

that the Service should have compared current and historical population numbers in

order to analyze the impact of the loss of historical population on the LBB today, or

to determine the minimum population that could support delisting. (Doc. 51-1 at 30).

To the contrary, the Court finds that the Service’s conclusions about the

viability of the current luteolus population were based on its reasonable assessment

of the best available scientific evidence, which demonstrated that the bear was viable

and more than 95% likely to survive in both the TRB and UARB. 81 Fed. Reg. at

13,135. In view of this evidence, the Court declines to direct the Service toward other

means of calculating population size or survival chances and the Court will not

disturb the Service’s reasoned assessment of the best available scientific evidence.

See Gulf Restoration Network, 452 F.3d at 368.

vi. The Service’s Threats Analysis

As part of the final rule delisting luteolus, the Service extensively discussed

each of the five ESA potential threat factors, concluding that each of the threats had

28

been eliminated or reduced such that listing was no longer necessary. Plaintiffs

challenge the Service’s conclusions regarding Factor A—threats to the bear’s habitat,

and Factor D—the adequacy of regulatory protections. For both of these factors, the

Court finds that the Service performed a reasoned analysis and properly considered

all relevant factors.4

First, Plaintiffs argue that the Service’s analysis of threats to luteolus habitat

was arbitrary and capricious, pointing to alleged failures to enforce prohibitions

against habitat destruction, the perceived lack of quality habitat gains made during

the listing period, and alleged issues with the Service’s projections for future habitat

gains. (Doc. 51-1 at 32-36).

The Final Rule, however, reveals that the Service did analyze these issues and

reached a different conclusion than Plaintiffs regarding the threats to the bear’s

habitat. For example, the Service’s experiences in the field during studies and other

management activities contradicted Plaintiffs’ assertions about large-scale forest

clearcutting and illegal logging. 81 Fed. Reg. at 13,149-50. The Service also

responded to concerns about the quality of habitat gains, particularly those in the

LARB, by considering evidence that the habitat north of the LARB would convert to

4 In the time between the parties’ filings and the issuance of this Order, the State of

Louisiana has indicated that it will consider allowing a limited black bear hunt. See

LOUISIANA DEPARTMENT OF WILDLIFE AND FISHERIES, NOTICE OF INTENT: BEAR HUNTING

AREAS, SEASONS, RULES AND BAG LIMITS (Nov. 2, 2023). This does not change the Court’s

analysis. As explained in the Final Rule delisting luteolus, hunting is only allowed if

existing data and simulated population dynamics models indicate hunting is compatible

with the bear’s long-term survival. 81 Fed. Reg. at 13,152. The Court finds that the Service

did not arbitrarily or capriciously conclude that these and other safeguards were adequate

to protect the bear.

29

suitable habitat over the next decades, which would “improve habitat linkages and

genetic exchange between [the LARB and UARB bears].” Jd. at 13,158. For these

reasons, the Court finds the Service’s analysis was rational. Simply put, Plaintiffs’

disagreement with the Service's conclusions on these points does not render the

Service’s conclusion arbitrary and capricious. Sabine River Auth. v. U.S. Dep’t of

Interior, 951 F.2d 669, 678 (5th Cir. 1992) (‘Where conflicting evidence is before the

agency, the agency and not the reviewing court has the discretion to accept or reject

from the several sources of evidence.”).

Second, Plaintiffs argue that the Service improperly relied on inadequate state

plans for luteolus protection. In particular, Plaintiffs contend that the mechanisms

for protecting the black bear on the state level predated the listing, are not

consistently implemented, exclude significant bear survival needs, or are otherwise

inadequate. (Doc. 51-1 at 36-87). Again, however, the Court finds that the Service

engaged in a reasoned consideration of the existing regulatory mechanisms to arrive

at its conclusions.

In determining the adequacy of regulatory mechanisms, the Court must

consider whether the Service’s analysis could lead to the rational conclusion that the

state’s regulatory mechanisms are adequate to sustain a recovered luteolus

population. See Greater Yellowstone Coal., Inc., v. Servheen, 665 F.3d 1015, 1032 (9th

Cir. 2011) (‘It is reasonable to conceive of ‘adequate’ regulatory mechanisms as

offering a recovered species something less than the stalwart protections of the ESA,

but considerably more than no special protection at all.”).

30

Here, the Service engaged in a lengthy analysis of multiple levels of state and

federal legal protections that will serve to protect the Louisiana black bear into the

future. 81 Fed. Reg. at 13,160—64. These include state-implemented management

plans in Louisiana, Mississippi, and Texas designed specifically for the protection of

the black bear; habitat protection and acquisition programs on state-owned lands;

habitat protection and conservation activities in National Wildlife Refuges; the Army

Corps of Engineers’ Atchafalaya Basin Multipurpose Plan aimed at “retaining and

restoring the unique environmental features and long-term productivity of the

Basin”; large land acquisitions by the Corps in bear habitat which established

permanent protections against future development or conversion; permanent

conservation easements on private lands in bear habitat; Food Security Act

Regulations that protect against wetland conversion, and numerous other

governmental protections. Id. As before, the Service’s evaluation of the existing

regulatory mechanisms was adequately reasoned, and its conclusion that the

regulatory mechanisms would sufficiently protect the Louisiana black bear was not

arbitrary and capricious.

vii. The “Significant Portion of Its Range” Analysis

Plaintiffs final challenge is to the Service’s analysis of whether luteolus is in

danger of extinction or likely to become so throughout a “significant portion of its

range,” which is one way the ESA requires the Service to consider whether a species

is “endangered” or “threatened.” 16 U.S.C. §§ 1532(6), (2). First, Plaintiffs argue that

the Service should have concluded that the LARB subpopulation was significant

31

because the UARB subpopulation should not count as true luteolus.5 (Doc. 51-1 at 42—

43). The Court has already addressed that argument and rejected it. See supra,

Section II(B)(8). The Service made a reasoned analysis of the evidence before it both

when /uteolus was listed and delisted to conclude that the UARB bears are luteolus.

Second, Plaintiffs argue that the Service was arbitrary and capricious in concluding

that the LARB was not threatened. Again, however, the Court finds that Plaintiffs

merely disagree with the Service’s reasoned conclusions. Although the Service

acknowledged that the information before it regarding the LARB was less robust than

the studies of the UARB and TRB, and that the LARB likely faced more threats than

the other subpopulations, it still reasonably concluded, based on the best available

scientific evidence, that the LARB was not threatened. 81 Fed. Reg. at 13,130. The

LARB contains the second largest luwteolus population. Jd. The bear population in the

LARB had doubled in size in the ten years prior to delisting and was estimated to

still be growing at the time of delisting. Jd. Additionally, the LARB habitat has grown

over time and likely will continue to grow as sedimentation creates additional land

suitable for bear habitat. Jd. at 13,131. For these reasons, the Service’s conclusion

that luteolus is not threatened or endangered in the LARB was not arbitrary and

capricious.

In sum, based on the administrative record in this case, the Court cannot find

5 In finding that the LARB was not significant, the Service relied on a definition of

“significant” that has since been vacated by multiple district courts. See, e.g., Ctr. for

Biological Diversity v. Everson, 435 F. Supp. 3d 69, 98-96 (D.D.C. 2020). This does not doom

the Service’s conclusion, however, because it also found that the LARB subpopulation was

not threatened. 81 Fed. Reg. at 13,169.

32

that the Service’s decision to delist luteolus was arbitrary or capricious or not in

accordance with the law. The Court commends Plaintiffs’ extraordinary efforts in

defense of this remarkable mammal. Would that every species received the same

indefatigable support as the Louisiana black bear.

III. Conclusion

Accordingly,

IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. 51) be

and is hereby DENIED. Judgment will enter in favor of Defendants.

IT IS FURTHER ORDERED that the Federal Defendants’ Cross Motion for

Summary Judgment (Doc. 58), Intervenor Defendant Safari Club International’s

Cross Motion for Summary Judgment (Doc. 65), and Intervenor Defendant State of

Louisiana’s Motion for Summary Judgment (Doc. 64) be and are hereby GRANTED.

Judgment will enter separately.

Baton Rouge, Louisiana, nis, of January, 2024

Ba.

oft

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

33