The roller-coaster ride of the grizzly bear in the lower 48 states, moving from threatened to recovered status and back under the Endangered Species Act (ESA) continues. A U.S. District Court Judge in Missoula, MT, on Sept. 24 reinstated a threatened status for the grizzly.
Judge Dana Christensen made the ruling based on the Administrative Procedures Act (APA). In writing his opinion, the judge said, “Although this Order may have impacts throughout grizzly country and beyond, this case is not about the ethics of hunting, and it is not about solving human- or livestock-grizzly conflicts as a practical or philosophical matter. These issues are not before the court.”
He went on, This Court’s review, constrained by the Constitution and the laws enacted by Congress, is limited to answering a yes-no question: ‘Did the United States Fish and Wildlife Service (USFWS or Service) exceed its legal authority when it delisted the Greater Yellowstone [Ecosystem (GYE)] grizzly bear?’”
The decision puts the brakes on grizzly hunting in Idaho and Wyoming that was authorized by state management plans, which were in place since the bear was removed from ESA protections in 2017. Christensen had previously issued a temporary restraining order (TRO) on Aug. 30 to delay planned hunting seasons in Wyoming and Idaho, which had been established under state management plans that went into effect when grizzlies were removed from the federal protection. On Sept. 13 he extended the TRO for an additional 14 days before issuing the final rule restoring protections.
Overall management now returns to the USFWS, but Jennifer Strickland, public affairs specialist, USFWS, Mountain-Prairie Region, told WLJ that management takes effort from the conservation community and even with the status change on the ground efforts won’t differ greatly. She noted that states have always conducted monitoring (how many bears are there, activity, etc.) and other management actions like responding to conflicts (relocation, and euthanasia).
Strickland explained, “Under federal management, the only thing that changes is that they [states] have to consult USFWS biologists/experts when taking an action with a conflict bear. We aren’t involved once/when the bears are delisted, and one of the big changes that some states made was to allow a hunt, which is not permitted when a species is listed under the ESA. In addition, USFWS law enforcement will now be in charge of any investigations (defense of life issues, poaching, etc.), but they will be coordinating with the state on these incidents.”
Christensen’s ruling noted that the agency must make any determination “solely on the basis of the best scientific and commercial data available,” something the USFWS believes it considered, as mentioned in its statement on the ruling.
The official response from USFWS noted “We stand behind our scientific finding that the Greater Yellowstone Ecosystem grizzly bear is biologically recovered and no longer requires protection under the Endangered Species Act. Our determination was based on our rigorous interpretation of the law and is supported by the best available science and a comprehensive conservation strategy developed with our federal, state, and tribal partners. We commend our partners for their recovery efforts, and we will continue to ensure the conservation of the Greater Yellowstone Ecosystem grizzly.” The statement continued, “…we will work with the states and tribes to ensure that this transition proceeds in accordance with the court’s order. The Service will examine this ruling to determine its likely impact on the future of this recovered iconic species.”
The judge’s decision sheds light on why some believe the ESA needs to be modernized. Among those holding that belief is U.S. Sen. John Barrasso (R-WY), chairman of the Senate Committee on Environment and Public Works (EPW), and who in July of this year introduced draft legislation as “Endangered Species Act Amendments of 2018” to strengthen the ESA.
Commenting on Christensen’s ruling, Barrasso said, “This judge’s decision is wrong and unsupported by the facts. Yet again, the courts are replacing science–based recovery measures with personal political preference. The grizzly is recovered in Wyoming. Period. Even the Obama administration determined that the grizzly should be delisted. The state has a strong, science-based plan in place for the management of the bear. That plan should have a chance to demonstrate its success.”
Barrasso continued, “This is a prime example why Congress should modernize the Endangered Species Act. We should elevate the role of states and local experts who are on the ground working with the grizzly—and other endangered species—on a daily basis. They should have the opportunity to put the strong management principles they developed in place.”
Barrasso was not the only Wyoming lawmaker to take a stand. The state’s top administrator, Gov. Matt Mead, said, “I am disappointed with yesterday’s decision. Grizzly bear recovery should be viewed as a conservation success story. Due to Wyoming’s investment of approximately $50 million for recovery and management, grizzly bears have exceeded every scientifically established recovery criteria in the GYE since 2003. Numbers have risen from as few as 136 bears when they were listed in 1975, to more than 700 today.”
Mead added, “The decision to return grizzly bears to the list of threatened and endangered species is further evidence that the ESA is not working as its drafters intended. Congress should modernize the ESA so we can celebrate successes and focus our efforts on species in need.”
In the U.S. Congress, Wyoming Rep. Liz Cheney (R-At-Large) responded by introducing the Grizzly Bear State Management Act. The Act directs the Department of the Interior to reissue its delisting decision and prohibits further judicial review of this decision. Like others disputing Christensen’s view that science was ignored in the decision to delist, Cheney said, “The decision by a Federal District Court judge in Montana to relist the grizzly ignores science, and disregards the important work done by the state of Wyoming to establish an effective grizzly bear management plan. My bill will stop this abuse of the court system and put management of the grizzly back in the hands of experts in Wyoming.”
Sen. Mike Enzi (R-WY) commented, “As the grizzly bear population has increased in Wyoming, so has the danger to livestock, property and humans. That is why it was so important that management of the species be in the hands of the state. I hope that a quick resolution to keep the Yellowstone grizzly bears delisted can be implemented.”
“This is unfortunate,” said Scott Talbott, director of the Wyoming Game and Fish Department. “Game and Fish is a strong proponent of all wildlife management being led by people who live in this state and having management decisions made at the local level. We will do our part to ensure the shift back to federal management will be seamless, just as we did in 2009 when grizzly bears were returned to the endangered species list after having been under state management for just over a year.”
Idaho Fish and Game Director Virgil Moore called the decision a setback for grizzly bear conservation, saying, “Idaho wildlife managers have worked for decades with local communities, our sister states, and federal agencies to build a healthy Yellowstone population. Given the social and scientific investment we’ve made in grizzly bear recovery, this ruling is a big disappointment. We can’t reconcile this court outcome with the conservation success so many worked hard to achieve.”
Montana Fish Wildlife and Parks (MFWP) Administrator Greg Lemon, communication and education division, told WLJ his department is going to continue its work on managing grizzly bears in the GYE. That means:
• Responding to conflicts.
• Educating the public, communities and residents of grizzly bear country about how to live with bears in ways that minimize conflict and keep people safe.
• Ensuring that grizzly bear numbers remain healthy and well above recovery levels.
“We believe, and have consistently maintained, that grizzly bear numbers in the GYE have surpassed the levels required for delisting and grizzly bears in the GYE should be delisted.”
In writing his conclusion, Christensen said, “The Service failed to make a reasoned decision, as required by the APA, when it delisted the Greater Yellowstone grizzly. By refusing to analyze the legal and functional impact of delisting on other continental grizzly populations the Service entirely failed to consider an issue of importance. Moreover, the Service’s analysis of the threats faced by the Greater Yellowstone grizzly segment was arbitrary and capricious.”
The USFWS said it is considering next steps.
Related grizzly news
In a related matter, MFWP recently released a proposed rule for guiding the grizzly bear population in the Northern Continental Divide Ecosystem (NCDE). Lemon told WLJ, “The judge’s decision won’t change the public process we’re currently undertaking to codify into administrative rule the population objectives in the NCDE conservation strategy.” — Rae Price, WLJ editor
