                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CROW INDIAN TRIBE; CROW              No. 18-36030
CREEK SIOUX TRIBE; STANDING
ROCK SIOUX TRIBE; PIIKANI               D.C. Nos.
NATION; THE CRAZY DOG              9:17-cv-00089-DLC
SOCIETY; HOPI NATION BEAR          9:17-cv-00117-DLC
CLAN; NORTHERN ARAPAHO             9:17-cv-00118-DLC
ELDERS SOCIETY; DAVID              9:17-cv-00119-DLC
BEARSHIELD; KENNY                  9:17-cv-00123-DLC
BOWEKATY; LLEVANDO FISHER;         9:18-cv-00016-DLC
ELISE GROUND; ARVOL
LOOKING HOUSE; TRAVIS
PLAITED HAIR; JIMMY ST.                OPINION
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

CROW INDIAN TRIBE; CROW              No. 18-36038
CREEK SIOUX TRIBE; STANDING
ROCK SIOUX TRIBE; PIIKANI               D.C. Nos.
NATION; THE CRAZY DOG              9:17-cv-00089-DLC
SOCIETY; HOPI NATION BEAR          9:17-cv-00117-DLC
CLAN; NORTHERN ARAPAHO             9:17-cv-00118-DLC
ELDERS SOCIETY; DAVID              9:17-cv-00119-DLC
BEARSHIELD; KENNY                  9:17-cv-00123-DLC
BOWEKATY; LLEVANDO FISHER;         9:18-cv-00016-DLC
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

CROW INDIAN TRIBE; CROW             No. 18-36050
CREEK SIOUX TRIBE; STANDING
ROCK SIOUX TRIBE; PIIKANI
NATION; THE CRAZY DOG                  D.C. Nos.
SOCIETY; HOPI NATION BEAR         9:17-cv-00089-DLC
CLAN; NORTHERN ARAPAHO            9:17-cv-00117-DLC
ELDERS SOCIETY; DAVID             9:17-cv-00118-DLC
BEARSHIELD; KENNY                 9:17-cv-00119-DLC
BOWEKATY; LLEVANDO FISHER;        9:17-cv-00123-DLC
ELISE GROUND; ARVOL               9:18-cv-00016-DLC
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

CROW INDIAN TRIBE; CROW              No. 18-36077
CREEK SIOUX TRIBE; STANDING
ROCK SIOUX TRIBE; PIIKANI               D.C. Nos.
NATION; THE CRAZY DOG              9:17-cv-00089-DLC
SOCIETY; HOPI NATION BEAR          9:17-cv-00117-DLC
CLAN; NORTHERN ARAPAHO             9:17-cv-00118-DLC
ELDERS SOCIETY; DAVID              9:17-cv-00119-DLC
BEARSHIELD; KENNY                  9:17-cv-00123-DLC
BOWEKATY; LLEVANDO FISHER;         9:18-cv-00016-DLC
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

CROW INDIAN TRIBE; CROW              No. 18-36078
CREEK SIOUX TRIBE; STANDING
ROCK SIOUX TRIBE; PIIKANI
NATION; THE CRAZY DOG                   D.C. Nos.
SOCIETY; HOPI NATION BEAR          9:17-cv-00089-DLC
CLAN; NORTHERN ARAPAHO             9:17-cv-00117-DLC
ELDERS SOCIETY; DAVID              9:17-cv-00118-DLC
BEARSHIELD; KENNY                  9:17-cv-00119-DLC
BOWEKATY; LLEVANDO FISHER;         9:17-cv-00123-DLC
ELISE GROUND; ARVOL                9:18-cv-00016-DLC
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

CROW INDIAN TRIBE; CROW              No. 18-36079
CREEK SIOUX TRIBE; STANDING
ROCK SIOUX TRIBE; PIIKANI
NATION; THE CRAZY DOG                   D.C. Nos.
SOCIETY; HOPI NATION BEAR          9:17-cv-00089-DLC
CLAN; NORTHERN ARAPAHO             9:17-cv-00117-DLC
ELDERS SOCIETY; DAVID              9:17-cv-00118-DLC
BEARSHIELD; KENNY                  9:17-cv-00119-DLC
BOWEKATY; LLEVANDO FISHER;         9:17-cv-00123-DLC
ELISE GROUND; ARVOL                9:18-cv-00016-DLC
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

CROW INDIAN TRIBE; CROW              No. 18-36080
CREEK SIOUX TRIBE; STANDING
ROCK SIOUX TRIBE; PIIKANI
NATION; THE CRAZY DOG                   D.C. Nos.
SOCIETY; HOPI NATION BEAR          9:17-cv-00089-DLC
CLAN; NORTHERN ARAPAHO             9:17-cv-00117-DLC
ELDERS SOCIETY; DAVID              9:17-cv-00118-DLC
BEARSHIELD; KENNY                  9:17-cv-00119-DLC
BOWEKATY; LLEVANDO FISHER;         9:17-cv-00123-DLC
ELISE GROUND; ARVOL                9:18-cv-00016-DLC
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

CROW INDIAN TRIBE; CROW              No. 18-36042
CREEK SIOUX TRIBE; STANDING
ROCK SIOUX TRIBE; PIIKANI               D.C. Nos.
NATION; THE CRAZY DOG              9:17-cv-00089-DLC
SOCIETY; HOPI NATION BEAR          9:17-cv-00117-DLC
CLAN; NORTHERN ARAPAHO             9:17-cv-00118-DLC
ELDERS SOCIETY; DAVID              9:17-cv-00119-DLC
BEARSHIELD; KENNY                  9:17-cv-00123-DLC
BOWEKATY; LLEVANDO FISHER;         9:18-cv-00016-DLC
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;

        (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. § 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 with the ESA’s purpose to protect species, see
Policy Regarding the Recognition of Distinct Vertebrate
Population Segments Under the Endangered Species Act,
61 Fed. Reg. 4,722, 4,725 (Feb. 7, 1996), the court held that
this statutory interpretation was legally permissible, 865 F.3d
at 599–600. Nevertheless, in order to lawfully create and
delist a DPS, the D.C. Circuit explained, the FWS needs to
look at the effect of partial delisting on the portion of the
species that remained listed, the so-called remnant species.
        CROW INDIAN TRIBE V. STATE OF WYOMING              31

The FWS must “address the impact that extraction of the
segment would have on the legal status of the remaining
[segment] in the already-listed species.” Id. at 600. As the
court put it, “when a species is already listed, the Service
cannot review a single segment with blinders on, ignoring the
continuing status of the species’ remnant.” Id. at 601.

    The D.C. Circuit concluded that the rule delisting the
Western Great Lakes segment of the gray wolf was arbitrary
and capricious, because it delisted that segment without
analyzing the impact of doing so on the remnant gray wolf
population. Id. at 602–03. The failure to consider impact on
the remnant species in Humane Society was particularly
concerning, because FWS had tried to delist the remnant gray
wolf population on the ground that once the Western Great
Lakes gray wolf was separately delisted, the remnant no
longer could be considered a “species.” Id. at 602; see also
Removing the Gray Wolf (Canus lupus) From the List of
Endangered and Threatened Wildlife, 78 Fed. Reg. 35,664,
35,674–75 (June 13, 2013) (explaining that the remnant gray
wolf no longer met the definition of “population,” because the
remnant wolves were dispersed throughout the country rather
than part of a “common spacial arrangement”) .

    At the time Humane Society came down, the FWS had
already published the 2017 Rule and this litigation had
commenced. Before the parties could file any dispositive
motions in the district court in this case, however, the FWS
took it upon itself to do a regulatory review in light of
Humane Society. See Request for Comments, Possible
Effects of Court Decision on Grizzly Bear Recovery in
Coterminous United States, 82 Fed. Reg. 57,698 (Dec. 7,
2017). A few months later, in a brief order, the FWS
concluded the D.C. Circuit’s decision required no
32      CROW INDIAN TRIBE V. STATE OF WYOMING

modification of the 2017 Rule, reasoning that the remnant
grizzly population remained legally protected. Review of
2017 Final Rule, Greater Yellowstone Ecosystem Grizzly
Bears, 83 Fed. Reg. 18,737, 18,739 (Apr. 30, 2018)
(“Regulatory Review”). It did not otherwise review the
viability and protectability of this remnant population.

B. District Court Proceedings

    The post-Humane Society Regulatory Review triggered
the filing of cross motions for summary judgment in the
district court. In an order that dealt fully with all of the
contentions of the parties, the district court granted summary
judgment for the Plaintiffs, vacated the 2017 Rule, and
remanded to the FWS. See Crow Indian Tribe v. United
States, 343 F. Supp. 3d 999 (D. Mt. 2018). The court found
three important deficiencies in the FWS’s analysis. We
describe each in turn.

    First, looking to Humane Society, the district court held
that the FWS failed adequately to consider the impact of
delisting on the remnant grizzly population. Id. at 1013–15.
It was not sufficient for the Regulatory Review to declare,
without legal or factual analysis, that the remnant population
continued to be listed on the List of Threatened and
Endangered Species. Some further consideration was needed.
In determining what type of consideration would be
sufficient, the district court turned to the text of the ESA. Id.
at 1013–14. Section 4(c) of the ESA requires the FWS to
periodically review the status of all listed species and make
delisting determinations only after conducting such a review.
16 U.S.C. § 1533(c)(2)(A). As the district court explained,
Section 4(c) thus requires the FWS to evaluate already-listed
species when making a decision to simultaneously create and
        CROW INDIAN TRIBE V. STATE OF WYOMING              33

delist a DPS. Crow Indian Tribe, 343 F. Supp. 3d at 1014
(citing Humane Society, 865 F.3d at 601 for the identical
conclusion). The FWS, however, had failed to perform any
review of the remnant grizzly population. The district court
went on to say that “the [FWS’s] review must be
comprehensive of all identified and reasonably identifiable
threats.” Id.

    Second, the district court held the FWS acted contrary to
the best available science when it determined that the
Yellowstone grizzly is not threatened by a lack of genetic
diversity, and that the translocation and connectivity
assurances contained in the 2007 Rule were no longer
necessary. Id. at 1018–21. The district court concluded the
FWS had misread the two scientific studies it relied upon,
because both had recognized that some government
intervention would likely be required to assure the
Yellowstone grizzly’s long-term genetic diversity. Id.
at 1020–21. The regulatory mechanisms that the FWS
viewed as sufficient, none of which required government
intervention, were not adequate, because they were not in
accord with Congress’s directive to rely upon the best
available science when making delisting decisions. Id.
at 1021; 16 U.S.C. § 1533(b)(1)(A).

    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. Id. at 1015–18.
Currently, the FWS relies upon a method called “Chao2” to
estimate the population of the Yellowstone grizzly. 2017
Rule, 82 Fed. Reg. at 30,512. Chao2 is known to be a
conservative method of estimating the grizzly population. Id.
So, if any new method of estimating grizzly population were
to be adopted, it would likely show an increase in
34      CROW INDIAN TRIBE V. STATE OF WYOMING

Yellowstone grizzlies, even if no population increase actually
occurred. See Crow Indian Tribe, 343 F. Supp. 3d at 1017.
The district court held that a commitment to recalibration was
necessary in the event that a new method of estimating the
population were adopted. Recalibration would ensure that the
new method would “be brought in line with . . . the Chao2
model.” Id. at 1015. Although the FWS had included a
commitment to recalibration in the draft Conservation
Strategy, the final 2016 Conservation Strategy relied upon by
the 2017 Rule removed such commitment. See id. According
to the district court, the FWS’s decision to remove the
commitment to recalibration was not based upon best
available science as required by the ESA, 16 U.S.C.
§ 1533(b)(1)(A), but was instead a response to political
pressure. Id. at 1016–18. Such pressure on the FWS came
from the states of the region, Idaho, Montana, and Wyoming,
now Intervenors in this litigation.

    On the basis of those three rulings, the district court
vacated the 2017 Rule and remanded for further agency
consideration. Id. at 1021–22. These appeals followed, and
they raise challenges to all three of the district court’s rulings.

    The FWS does not challenge the recalibration order. It
does appeal the remand for consideration of the Yellowstone
grizzly’s long-term genetic health, and contends the district
court’s order for a “comprehensive review” of the effect of
delisting on the remnant species is broader than that required
by the ESA as interpreted in Humane Society. Numerous
Intervenors also challenge those rulings, taking positions
similar to the FWS. They include the states of the
Yellowstone region (Idaho, Montana, and Wyoming), as well
as private hunting and farming organizations (Safari Club
International and The National Rifle Association of America;
        CROW INDIAN TRIBE V. STATE OF WYOMING               35

Wyoming Farm Bureau Federation, Wyoming Stock Growers
Association, Charles C. Price, and W&M Thoman Ranches,
LLC; and Sportsmen’s Alliance Foundation and Rocky
Mountain Elk Foundation). The Intervenors, with the
exception of Wyoming Farm Bureau Federation et al., also
challenge the district court’s ruling on recalibration.

    Appellees include the plaintiff environmental and tribal
organizations. They not only defend the district court’s
rulings on the merits, but also raise a number of challenges to
our appellate jurisdiction.         We must consider the
jurisdictional challenges first.

           II. APPELLATE JURISDICTION

    The district court proceedings resulted in a remand to the
FWS for further consideration. The Appellees contend this
court lacks jurisdiction to review the order because it is not
final. They rely on Alsea Valley Alliance v. Department of
Commerce, in which we held that a remand was not a final
order with respect to private parties whose positions on the
merits would be considered during the agency proceedings on
remand. 358 F.3d 1181, 1184–85 (9th Cir. 2004). In Alsea
Valley, however, we also held that the remand order was a
final order as to the agency, since, absent an appeal, the
agency would not be able to obtain review of the remand
ordering it to conduct further proceedings. Id. at 1184.
Under Alsea Valley, the district court’s remand order is final
as to the FWS.

   Appellees’ jurisdictional challenges to the FWS’s appeal
do not stop there, however. They characterize the FWS’s
appeal as challenging only the grounds for the district court’s
remand and not the remand itself, and contend that the FWS
36      CROW INDIAN TRIBE V. STATE OF WYOMING

is therefore seeking an advisory opinion and that the FWS
lacks standing to maintain this appeal. Appellees rely on
Natural Resources Defense Council v. Gutierrez, where we
held the federal agency lacked standing to challenge only one
of multiple grounds for an injunction, when it did not
challenge the injunction itself. 457 F.3d 904, 906 (9th Cir.
2006). We explained in Gutierrez that the appeal, even if
legally successful, would not have altered what the agency
had been ordered to do. Id.

    This case materially differs from Gutierrez, because the
FWS does challenge what the district court ordered it to do on
remand. The district court required the agency to consider
several distinct issues. The FWS contends it should not be
required to consider some of them. If successful, the FWS
would have to do considerably less. Because the manner in
which the FWS would reevaluate the 2017 Rule on remand
would be altered by a favorable decision by this court, the
FWS does not merely seek an advisory opinion. Appellees
also couch their argument in terms of standing. For similar
reasons, FWS has standing, because its alleged injury—being
required to reevaluate certain aspects of the 2017 Rule that it
claims are legal—is redressable by a favorable decision.

    Appellees also challenge our jurisdiction to consider
Intervenors’ appeals of the district court’s order requiring a
commitment to recalibration. We hold that under our Circuit
law, the recalibration order is final with respect to the
Intervenors. We have stated that a remand order is
considered final as to non-agency parties where “(1) the
district court conclusively resolves a separable legal issue,
(2) the remand order forces the agency to apply a potentially
erroneous rule which may result in a wasted proceeding, and
(3) review would, as a practical matter, be foreclosed if an
        CROW INDIAN TRIBE V. STATE OF WYOMING                 37

immediate appeal were unavailable.” Alsea Valley All.,
358 F.3d at 1184 (quoting Collord v. United States Dep’t of
the Interior, 154 F.3d 933, 935 (9th Cir. 1998)). The
recalibration order satisfies these criteria, as can be seen from
a closer examination of Alsea Valley.

    In Alsea Valley, environmental groups brought suit
challenging the National Marine Fisheries Service’s
(“NMFS”) final rule listing the naturally spawned coho
salmon as threatened under the ESA, but excluding the
hatchery spawned coho population. Id. at 1183. The district
court remanded to the NMFS for further consideration of the
best available science. Id. The appellants included private
parties who had intervened because they feared the NMFS
would not appeal the district court’s remand order, and who
supported the NMFS final rule. Id at 1184. We held the
remand order was not final as to the private party intervenors,
however, because their positions would be taken into account
in the remand proceeding which could result in a decision
favorable to them. Id. at 1185.

    The same is not the case here, because the district court
has issued a definitive ruling, contrary to the Intervenors’
position, concluding that the FWS’s failure to include a
commitment to recalibration in the 2017 Rule was arbitrary
and capricious. Crow Indian Tribe, 343 F. Supp. 3d at 1015.
Indeed, the FWS removed a commitment to recalibration
from the 2017 Rule at the insistence of the Intervenors. See
id. at 1017. The district court has now ordered the FWS to
include it in any new rulemaking. An appeal is the only way
the Intervenors’ objections can be considered. We thus have
jurisdiction to consider their appeal.
38      CROW INDIAN TRIBE V. STATE OF WYOMING

    Appellees also contend that the state Intervenors, Idaho,
Montana, and Wyoming, lack standing, arguing the states did
not suffer a concrete injury. As the states point out, however,
the district court order caused the states an injury, as the
states had relied on the validity of the 2017 Rule in enacting
legislation and state management plans. They have a legally
protected interest in enforcing those measures. See Alfred L.
Snapp & Son v. Puerto Rico, 458 U.S. 592, 601 (1982)
(holding that a state has a legally protectable interest in
enforcing its legal code); Hughes v. Oklahoma, 441 U.S. 322,
337 (1979) (explaining that states have an interest in
conservation and protection of wild animals). Moreover, a
ruling for the states from this court that would reverse the
district court order and uphold the legality of the 2017 Rule
would redress these injuries. We hold that the state
Intervenors have standing to pursue their appeal regarding a
commitment to recalibration. We therefore consider the
issues raised by all the Appellants concerning all three of the
grounds on which the district court remanded to the agency.

            III. MERITS OF THE APPEALS

A. The FWS’s Appeal of the District Court’s Order to
   Consider the Effect of Delisting on the Remnant
   Grizzly Population

    A major issue before the district court was whether the
FWS should make a fuller examination of the effect delisting
the Yellowstone grizzlies would have on the remnant grizzly
population. This was a novel issue that arose in light of the
D.C. Circuit’s opinion in Humane Society v. Zinke, 865 F.3d
585 (D.C. Cir. 2017), which had prompted the FWS to
conduct a cursory Regulatory Review. The FWS determined
in that Regulatory Review that because the legal status of the
        CROW INDIAN TRIBE V. STATE OF WYOMING              39

remnant grizzly population remained listed as “threatened,”
the FWS need not conduct any further review of the viability
of the remaining population. Regulatory Review, 83 Fed.
Reg. at 18,739–41. The district court ruled more was
required and ordered the FWS to conduct a “comprehensive
review.” Crow Indian Tribe, 343 F. Supp. 3d at 1014.

    The dispute in this appeal is over what such a review
should entail. The FWS and the Appellee environmental and
tribal groups now all seem to agree that some further review
should be undertaken. They also appear to agree, or at least
do not disagree, that our decision should be consistent with
Humane Society, which used the phrase “comprehensive
review.” Humane Soc’y, 865 F.3d at 601. We agree with
FWS and Appellees on both of these points.

    This case, however, materially differs from the situation
in Human Society, because there the FWS had created a DPS,
delisted it, and attempted to discard the remnant population
as no longer a protectable species. Id. at 602. The D.C.
Circuit was concerned not so much with the nature of the
analysis the FWS should have made, but with the practical
outcome: the DPS delisting would result in “a backdoor route
to the de facto delisting” of the entirety of the species. Id.
at 601–02. The D.C. Circuit vacated the rule, because the
FWS failed to take into account “whether the remnant itself
remains a species so that its own status under the Act will
continue as needed.” Id. at 600. The remnant in that case
could not remain a species.

    In this case, we do not know whether the remnant grizzly
population would be protectable as a species after the
delisting of the Yellowstone grizzly, because the FWS has not
examined the remnant. The FWS has merely kept the
40      CROW INDIAN TRIBE V. STATE OF WYOMING

remnant listed as “threatened” as a matter of law without any
empirical examination of the effect delisting the Yellowstone
grizzly would have on the remnant. Humane Society
envisions a more practical inquiry.

    The FWS’s concern in this appeal, however, is that the
district court went too far. The agency contends that,
consistent with Humane Society, it should determine whether
there is a sufficient remnant population to merit protection,
but that it need not go back to square one and make the full,
five-factor analysis contemplated by Section 4(a). Indeed, the
district court’s order does suggest that a Section 4(a) analysis
of the remnant is what is required. The FWS raises legitimate
concerns.

    For their part, Appellees maintain that the district court’s
opinion does not go so far as to require a Section 4(a)
analysis. Instead, they contend, neither the district court nor
the D.C. Circuit required a full Section 4(a) analysis when
using the term “comprehensive review.”

    We agree with the FWS that the district court appears to
have required a Section 4(a) analysis of the remnant
population. See Crow Indian Tribe, 343 F. Supp. 3d at 1014
(“Because § 4(c) incorporates the § 4(a) threats analysis, the
Service’s review must be comprehensive of all identified and
reasonably identifiable threats. . . .”). We hold that such an
extensive analysis is not required by the ESA or Humane
Society. The district court erred in relying upon the text of
Section 4(c), because that section requires a full, five-factor
threats analysis only when making a decision to delist, not
when reviewing the status of a species. Compare 16 U.S.C.
§ 1533(c)(2)(A) (requiring periodic review of listed species),
        CROW INDIAN TRIBE V. STATE OF WYOMING                 41

with id. § 1533(c)(2)(B) (requiring delisting decisions to be
made in accordance with Section 4(a)).

    Nevertheless, although a full Section 4(a) analysis of all
the factors affecting the continued existence of the remnant
was not required, the FWS must determine on remand
whether there is a sufficiently distinct and protectable
remnant population, so that the delisting of the DPS will not
further threaten the existence of the remnant. As described in
Humane Society, this analysis requires a review of the
“implications for both the segment and the remnant during
the delisting . . . process,” in order to ensure that the remnant
is not “divest[ed] . . . of legal force.” 865 F.3d at 601. If,
after such an inquiry, the FWS determines that delisting the
DPS would render the remnant population no longer viable,
no partial delisting can take place. This is necessary in order
to avoid the “de facto delisting” the court in Humane Society
was concerned about. See Humane Soc’y, 865 F.3d at 602.
We thus vacate that portion of the district court’s order
calling for a “comprehensive review” of the remnant grizzly
population, and remand for the district court to order further
examination of the delisting’s effect on the remnant grizzly
population consistent with this opinion.

B. The District Court’s Order to Ensure the Long-Term
   Genetic Diversity of the Yellowstone Grizzly

    The FWS concluded that genetic concerns do not pose a
threat to the Yellowstone grizzly population. 2017 Rule,
82 Fed. Reg. at 30,535–36, 30,544. This determination
reversed course from the 2007 Rule, which had found, based
on the best available science, that the Yellowstone grizzly’s
long-term genetic diversity would be threatened if grizzly
bears from other ecosystems did not migrate into the Greater
42      CROW INDIAN TRIBE V. STATE OF WYOMING

Yellowstone Ecosystem. See id. at 30,536. In order to
maintain the Yellowstone grizzly’s genetic diversity, the 2007
Rule’s accompanying Conservation Strategy recommended
that, if no natural connectivity between grizzly bear
ecosystems occurred by 2020, one or two grizzlies per year
from the Northern Continental Divide Ecosystem of north-
central Montana should be translocated into the Greater
Yellowstone Ecosystem. Id.

     The district court ruled that the FWS acted contrary to the
best available science in determining that the Yellowstone
grizzly was no longer threatened by lack of genetic diversity
in the long term, and in failing to include adequate regulatory
mechanisms to protect genetic health. Crow Indian Tribe,
343 F. Supp. 3d at 1021. The FWS provided little reasoning
or explanation for the departure from its earlier findings.

    The FWS in this appeal now argues that it reasonably
interpreted the best available science to conclude that current
levels of genetic diversity indicate that mandatory
translocation is not necessary, and that there is “no immediate
need for new genetic material.” See 2017 Rule, 82 Fed. Reg.
at 30,535. The FWS supports its position by looking to the
conclusion of the principal scientific studies in the record.
Yet these studies concluded only that the Yellowstone
grizzly’s genetic health is likely not a threat in the short term.
Craig R. Miller and Lisette P. Waits, The History of Effective
Population Size and Genetic Diversity in the Yellowstone
Grizzly (Ursos arctos): Implications for Conservation,
100 Proc. of the Nat’l Acad. of Sci. 4334, 4338 (2003)
(“Miller and Waits”); Pauline L. Kamath et al., Multiple
Estimates of Effective Population Size for Monitoring a Long-
Lived Vertebrate: An Application to Yellowstone Grizzly
Bears, 24 Molecular Ecology 5507, 5517 (2015) (“Kamath et
        CROW INDIAN TRIBE V. STATE OF WYOMING                 43

al.”). The problem, then, is that the studies do not support the
FWS’s overall conclusion reached in the 2017 Rule that it
“do[es] not consider genetic concerns to be a threat.” 2017
Rule, 82 Fed. Reg. at 30,544. This means not just in the
short-term, but at all.

    In fact, both studies express concerns about the long-term
genetic health of the Yellowstone grizzly. Miller and Waits
state that, “the genetic consequences of inbreeding and
isolation are likely to transpire over longer time periods
(decades and centuries).” Miller and Waits, at 4338. And the
work by Kamath et al. concludes that, aided by ESA
protection, the Yellowstone grizzly “may eventually approach
the long-term viability population criterion,” but it has not yet
done so. Kamath et al., at 5517. Because the 2017 Rule’s
conclusion that genetic health no longer poses a threat to the
Yellowstone grizzly is without scientific basis, this
conclusion is arbitrary and capricious. See Ariz. Cattle
Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1163 (9th Cir.
2010) (explaining that agency interpretations of science are
arbitrary and capricious when they are “without substantial
basis in fact”).

    The 2017 Rule even acknowledged that long-term
viability requires regulatory measures. It stated “that the
long-term viability of the [Yellowstone grizzly] will benefit
from occasional gene flow from nearby grizzly bear
populations.” 2017 Rule, 82 Fed. Reg. at 30,536. The Rule
expressly refers to regulatory mechanisms for ensuring that
gene flow occurs. It cites as examples Montana’s indication
that it would manage hunting in the area “in order to retain
the opportunity for natural movements of bears between
ecosystems,” and commitments by both state and federal
agencies to monitor bear movement. Id.
44      CROW INDIAN TRIBE V. STATE OF WYOMING

    The district court found these regulatory mechanisms to
be inadequate because they failed to ensure long-term genetic
viability of the Yellowstone grizzly. Crow Indian Tribe,
343 F. Supp. 3d at 1021. In this appeal, the FWS accuses the
district court of substituting its own judgment for the
agency’s on what regulatory mechanisms will maintain long-
term genetic health. The FWS may be correct that it need not
adopt the identical regulatory mechanisms that it adopted in
the 2007 Rule, but because a lack of genetic diversity
continues to threaten the Yellowstone grizzly, it must adopt
regulatory mechanisms that ensure long-term genetic health.
See 16 U.S.C. § 1533(a)(1)(D) (requiring the FWS to
consider “the inadequacy of existing regulatory
mechanisms”). It failed to do so here.

    State management plans may be considered adequate
regulatory mechanisms, but only if they work. As the D.C.
Circuit pointed out, such plans must be “sufficiently certain
and effective to alleviate a threat of endangerment . . . after
delisting.” Defenders of Wildlife v. Zinke, 849 F.3d 1077,
1081 (D.C. Cir. 2017) (internal quotations omitted). The
states have committed to monitor bear movement and set
restrictions on hunting, but they have made no commitment
to take action if natural connectivity of grizzly bear
populations does not occur. The states’ measures, therefore,
cannot be said to be “sufficiently certain . . . to alleviate a
threat of endangerment.” Id.

     The FWS has committed to possible future action, but that
commitment is not adequate. In the event that monitoring
demonstrates natural connectivity between distinct grizzly
ecosystems is not occurring, or if hunting of the Yellowstone
grizzly decreases population size, the FWS commits to
initiating “a formal status review” and halting hunting. 2017
        CROW INDIAN TRIBE V. STATE OF WYOMING                 45

Rule, 82 Fed. Reg. at 30,514; 2016 Conservation Strategy for
the Grizzly Bear in the Greater Yellowstone Ecosystem,
at 102 (Dec. 2016). Yet, we have expressly rejected “any
suggestion that the future possibility of relisting a species can
operate as a reasonable justification for delisting.” Greater
Yellowstone Coal., 665 F.3d at 1029. Moreover, although a
commitment to halt hunting may serve as a regulatory
mechanism to ensure that overhunting does not occur, it does
not demonstrate a commitment to increase population size, as
the studies the FWS relies upon indicate would be required to
ensure long-term viability.

    Accordingly, because there are 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 is arbitrary and capricious in that regard.
Remand to the FWS is necessary for the inclusion of adequate
measures to ensure long term protection.

C. The District Court’s Order Requiring a Commitment
   to Recalibration

    Recalibration is needed in the event the FWS changes its
method of estimating the Yellowstone grizzly bear
population. Recalibration accounts for methodological
changes between population estimators in order to ensure that
the FWS is able to accurately estimate the Yellowstone
grizzly’s population size. The issue is particularly important
here, because the current estimator is known to be
conservative and a change could result in an illusory increase
in population.       Acknowledging the importance of
recalibration, a draft version of the Conservation Strategy
included a commitment to recalibration. The Intervenor
states that were deeply involved in the adoption of the
46      CROW INDIAN TRIBE V. STATE OF WYOMING

Conservation Strategy, objected to any recalibration
commitment, and, at their insistence, the final Conservation
Strategy contained none. See Crow Indian Tribe, 343 F.
Supp. 3d at 1015–18.

    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 not made “solely
on the basis of the best scientific and commercial data,”
16 U.S.C. § 1533(b)(1)(A), but instead was the result of
political pressure by the states. Crow Indian Tribe, F. Supp.
3d at 1016–17. The district court’s conclusion was based
upon a careful analysis of the record, which contained several
email exchanges between FWS employees, including the
former Director of the FWS and the former Grizzly Bear
Recovery Coordinator, who acknowledged that failing to
include a recalibration commitment would be a “show-
stopper” and would result in a “biologically and legally
indefensible” delisting of the Yellowstone grizzly. Id.
at 1017.

    The FWS accepts the district court’s order to include a
commitment to recalibration, and does not appeal this part of
the remand. Intervenors do appeal this order, however,
arguing 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. The district court addressed this argument,
explaining that, as recognized by FWS’s leadership, the threat
to the Yellowstone grizzly from a failure to include such a
provision is evident, regardless of whether the states presently
plan to rely on the current estimator for the foreseeable
future. Id. at 1018. A commitment to recalibration is
necessary in the event that the states adopt a new estimator,
       CROW INDIAN TRIBE V. STATE OF WYOMING             47

or else the effect of any future change will never be known.
The states’ promise to retain the current estimator for now
does nothing to address this threat.

    The FWS violated the ESA’s directive to make listing
decisions “solely on the basis of the best scientific and
commercial data,” 16 U.S.C. § 1533(b)(1)(A), when it failed
to include a commitment to recalibration despite the FWS’s
acknowledgment that a failure to provide such provision
could threaten the Yellowstone grizzlies. Thus, the district
court properly ordered the FWS to include a commitment to
recalibration.

                     CONCLUSION

    We affirm the district court in all respects, with the
exception of the order requiring the FWS to conduct a
“comprehensive review” of the remnant grizzly population.
As to that order, we remand for the district court to order
further examination of the delisting’s effect on the remnant
grizzly population consistent with this opinion.

    AFFIRMED in part; REMANDED in part. Each party
to bear its own costs.
