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What is a “Distinct Population Segment” under the Endangered Species Act of 1973, how does it apply to Grizzly Bears under new proposed rules, and how does this impact Trapping?

On January 8, 2025, the United States Fish and Wildlife Service (“USFWS”) announced that it is proposing the creation of a new distinct population segment (or “DPS”) of grizzly bears in the lower-48 states.1 It is a single DPS that encompasses all six grizzly bear recovery zones and includes all of Washington, and areas of Idaho, Montana, and Wyoming. USFWS is also proposing revisions to protective regulations under Section 4(d) of the Endangered Species Act of 1973 (“ESA”) to provide “additional management flexibility” to authorized agencies and individuals experiencing conflicts with grizzly bears. The proposed rule was published in the Federal Register on January 15, 2025.2

The concept of a “distinct population segment” is not defined in the ESA. The plain language of the Act uses “species” terminology, defining an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range…” and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”3 USFWS uses a variety of factors to determine whether a species should be listed as “endangered” or “threatened”4 and, once a species is listed, it receives comprehensive legal protection from practically all killing, recreational harvest, and related activities.5

The ESA was amended in 1978 to include the concept of a “distinct population segment” in the definition of a “species.”6 As more fully described below, a “distinct population segment” was introduced as a method for USFWS to be able to list or delist a portion of a biological or taxonomic “species” without needing to list or delist the entire “species.”7 A “species” under the ESA now “includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”8 Accordingly, as this definition points out, an endangered or threatened “species” under the current ESA is not just limited to an entire biological or taxonomic “species,” but may also be an endangered or threatened “subspecies of fish or wildlife or plants,” or an endangered or threatened “distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

Again, while “distinct population segment” is not defined in the ESA, USFWS issued a policy statement in1996 which provided guiding principles describing how USFWS determines the existence of a distinct population segment.9 To constitute a valid distinct population segment, the segment must be both (1)discrete from the remainder of the subject species, and (2) biologically and ecologically significant relative to the remainder of the subject species.10 If, however, a valid distinct population segment is declared by USFWS, it is essentially considered its own separate “species” under the ESA that is independent from the remainder of the biological or taxonomic species.11 USFWS could, for instance, list one DPS of the vertebrate species as “endangered” while the remaining population of the same species is not listed under the ESA, and vice versa. In essence, the concept allows USFWS to segregate species into individual portions throughout its population range, which portions then may be individually listed or delisted based on criteria outlined in the ESA.

Applying these concepts to USFWS’s new proposed rule for grizzly bears, the grizzly bear species was listed as “threatened” in the lower 48-states under the ESA in 1975.12 In 1993, the USFWS issued a new version of its Grizzly Bear Recovery Plan which identified six “recovery zones” for grizzly bears.13 The recovery zones spanned various areas in the northwest United States. These zones were termed the North Cascades Ecosystem, the Selkirk Ecosystem, the Cabinet-Yaak Ecosystem, the Northern Continental Divide Ecosystem, the Bitterroot Ecosystem, and the Greater Yellowstone Ecosystem.14 It was USFWS’s goal to delist each of these recovery zones individually once a respective zone achieved recovery criteria.15 In fact, in both 2007 and 2017, the USFWS declared that the Greater Yellowstone Ecosystem recovery zone was its own distinct population segment, that it had met recovery criteria, and attempted to delist the Yellowstone grizzly bear population under the ESA.16 Both of these attempts were overturned by federal courts.17

USFWS’s current proposal does the opposite. Rather than carving out a specific portion of the grizzly bear population to constitute a distinct population segment, USFWS’s new proposal is attempting to make the entire grizzly bear population in the lower 48 states a single distinct population segment. Accordingly, USFWS would not delist any part of the grizzly bear population under the ESA until the entire population of grizzly bears in the lower-48 states has met recovery criteria. This means that even if one of the “recovery zones” of grizzly bears outlined above met recovery criteria, it would still not be delisted under the ESA because all recovery zones—and the entire population of grizzly bears in the lower 48 states—would need to meet recovery criteria before any grizzly bears could be delisted.

USFWS claims that this proposal is proper because “grizzly bear populations are now geographically closer to each other than ever, and the Service has documented grizzly bear movement between some populations, indicating recovery zones are no longer discrete.”18 Others, however, including directors of state fish and wildlife agencies, expressed significant frustration with the proposal. Wyoming Game and Fish Department Director Angi Bruce stated “[d]espite all our efforts the USFWS has chosen to ignore science and keep grizzly bears listed. This is not a science-based decision but a decision based on the federal government not wanting to give up control. One of the greatest wildlife conservation success stories on earth is being undermined by a failure to recognize those compromises, collaborations and sacrifices that brought back grizzly bears from the brink of extirpation.”19

It is vital for wildlife management decisions to be based on science and sustainability rather than emotion and politics. While the future of grizzly bear management is uncertain, the past strongly indicates that a single DPS of grizzly bears in the lower-48 states will be extremely difficult, if not impossible, to delist (as outlined above, both attempts to delist even a single recovery zone of grizzly bears failed in the last two decades). Overall, a single DPS of grizzly bears discounts the reality of the grizzly bears’ recovery in many areas of the lower-48 states.

Why should trappers outside of Washington, Idaho, Montana, and Wyoming care about what happens with the ESA control of the grizzly bear? Areas outside of these states may have no population grizzly bears. However, the grizzly bear has been and continues to be the basis of numerous lawsuits to limit trapping. These cases are used as precedence for how the ESA can be applied for other ESA listed species. The best science-based evidence does not support that lawful trapping pursuant to state trapping regulations negatively impacts other endangered or threatened species, including the grizzly bear, the wolf, or the lynx as a species, subspecies, or within any DPS area. But trapping has still been limited because of these claims. Trappers supporting trappers, including from other states, is the only way you will continue to have the right to trap. You should care about what happens with the grizzly bear ESA issues and support the trappers of the states affected.

USFWS is accepting public comments on the proposed rule until March 17, 2025. If you wish to make a public comment on the proposed rule, you may do so at: https://www.fws.gov/grizzlyrulemaking.

This article was a collaborative effort between attorneys Gary R. Leistico, Thomas S. Maigaard, and Jayne E. Esch of the law firm Leistico & Esch, PLLC. They practice in the areas of criminal, agriculture, natural resources, environmental, and civil litigation. This article is meant for educational purposes only and does not constitute legal advice nor does it establish an attorney-client relationship in any way. Information relied upon by the authors in drafting the article may have changed by the time it is received and reviewed by readers. The authors expressly disclaim any liability for any issues arising from use of this article.

Leistico & Esch, PLLC
Gary R. Leistico, Thomas S. Maigaard, Jayne E. Esch
P.O. Box 365
Clear Lake, MN 55319
Tel. (763) 272-5825
Email: gleistico@leisticoesch.com; tmaigaard@leisticoesch.com; jesch@leisticoesch.com

1 U.S. FISH AND WILDLIFE SERVICE, U.S. Fish and Wildlife Service Proposes Update to Grizzly Bear Endangered Species Act Listing and Management, (Press Release, Jan. 8, 2025), https://www.fws.gov/press-release/2025-01/usfws-proposes-update-grizzly-bear-esa-listing-management.
2 90 Fed. Reg. 4234-76 (Jan. 15, 2025).
3 15 U.S.C. § 1532(6), (20).
4 See 15 U.S.C. § 1533(a)(1).
5 15 U.S.C. § 1532(19); § 1538(a); see also Crow Indian Tribe v. United States, 965 F.3d 662, 671 (9th Cir. 2020).
6 Crow Indian Tribe, 965 F.3d at 671.
7 Id.
8 15 U.S.C. § 1532(17).
9 Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act., Fed. Reg. 4722 (Feb. 7, 1996).
10 Id. at 4725.

11 Crow Indian Tribe, 965 F.3d at 671.
12 See e.g., U.S. FISH AND WILDLIFE SERVICE, Grizzly Bear Recovery Program, 2021 Annual Report, retrieved from: https://www.fws.gov/sites/default/files/documents/2021%20GBRP%20Annual%20Report.pdf.
13 U.S. FISH AND WILDLIFE SERVICE, GRIZZLY BEAR RECOVERY PLAN 39-119 (1993).
14 Id.
15 See U.S. FISH AND WILDLIFE SERVICE, Q&A’s: Grizzly Bear lower 48 revision and 4(d) rule, retrieved from: https://www.fws.gov/project/qas-grizzly-bear-lower-48-revision-and-4d-rule.
16 See 72 Fed. Reg. 14,866 (Mar. 29, 2007); 82 Fed. Reg. 30,502 (June 30, 2017).
17 See Crow Indian Tribe, 965 F.3d at 670.
18 U.S. FISH AND WILDLIFE SERVICE, supra note 1.
19 WYOMING GAME AND FISH DEPARTMENT, Game and Fish Releases Statement on Grizzly Bear Decision, (Press Release, Jan. 9, 2025), https://wgfd.wyo.gov/news-events/game-and-fish-releases-statement-grizzly-bear-decision.