Wolves and bears in court

A sow grizzly bear and her two cubs.

The Mountain States Legal Foundation (MSLF) is celebrating a pair of victories after environmental groups filed lawsuits seeking to protect grizzly bears in existing and past habitats.

In Montana, a federal judge ruled against the Center for Biological Diversity (CBD) petitioning U.S. Fish and Wildlife Service (USFWS) under the Administrative Procedure Act (APA) to update the bear recovery plan across its historical range. Separately, a pair of cases filed by two environmental groups in the U.S. District Court of D.C. were consolidated and moved to the U.S. District Court of Wyoming. MSLF argued both cases in the interest of ranchers, cattle associations and local landowners.

First case

MSLF argued to U.S. District Judge Amit P. Mehta the cases Center for Biological Diversity v. David L. Bernhardt and Western Watersheds Project v. David L. Bernhardt should be heard in a court where the decision will be felt closest to where the impact will be felt.

“In administrative law cases, like this one, courts focus on where the decision-making process occurred to determine where the claim arose,” Mehta wrote in his decision. “As noted, the challenged agency decision-making here all occurred in Wyoming.”

In Mehta’s decision to move the venue for the case, he admonished the plaintiffs for attempting to “nationalize” the matter by filing in the U.S. District Court of D.C. stating, “the mere fact that a case involves a protected species does not transform a local controversy into one of national significance.”

“The D.C. Court recognized with this ruling the matters of great local importance, like local grazing issues, should be decided locally and that the courts of D.C. do not have any special advantage in deciding such cases,” said MSLF General Counsel Zhonette M. Brown. “The D.C. Court also rejected the environmentalists’ invitation to turn this into a ‘national’ more than ‘local’ matter just because federal statutes are involved.”

The cases were triggered after wildlife managers reauthorized cattle grazing on 170,000 acres of the Upper Green and Gros Ventre river watersheds. Additionally, USFWS issued in their record of decision the “incidental take” of up to 72 grizzly bears during the 2019-2028 grazing seasons if conflict resolution measures performed by ranchers failed to prevent depredation. From 2010-2018, there were 527 confirmed conflicts, and 35 grizzly bears were removed from the allotments in response.

With regard to moving the case to Wyoming, Mehta wrote, “These permittees range from families who have been working and living on the same ranch for five generations to ranches recently purchased by corporations who employ local people to manage their ranching interests. Thus, the consequences of a judicial decision will be felt most acutely in Wyoming.”

Western Watersheds Project, Alliance for the Wild Rockies, Yellowstone to Uintas Connection, CBD and the Sierra Club filed the lawsuits asking Mehta for a ruling stating the biological opinion was “flawed” and to prevent the “unlawful killing and harm (‘take’) of threatened grizzly bears.”

Environmental groups involved in the case had not officially responded to the decision as of WLJ press time. However, Andrea Zaccardi, attorney for CBD, told Wyoming News that the biological opinion authorizing the incidental take is flawed and reiterated the organization awaits a decision on the case to move forward.

“It’s a different venue, but our claims are strong,” Zaccardi said, “and we don’t expect the outcome to be any different.”

Second case

In late December, U.S. District Court Judge Dana Christensen in Montana sided on behalf of the government after CBD sought to update the grizzly bear recovery plan to include the bear’s historical range.

CBD sent a letter in 2014 to USFWS to address “significant remaining areas of suitable habitat” in addition to the existing ecosystems the grizzly bear currently inhabits and to address the “current scientific information related to bear recovery.” CBD claimed its letter was a rulemaking petition as permitted under the APA. USFWS responded to the letter stating it “was not a valid rulemaking petition because ‘recovery plans are not rules under the APA.’”

Although USFWS denied the letter, the agency updated its recovery criteria for the Yellowstone Ecosystem and the Northern Continental Divide Ecosystem between 2017 and 2018. The agency did not address the remaining four recovery zones. In 2019, the agency looked at an affidavit prepared by Dr. Jennifer Fortin-Noreus, a wildlife biologist and member of the Interagency Grizzly Bear Study Team for the Greater Yellowstone Ecosystem. The affidavit evaluated whether the San Juan Mountains in Colorado or the Sierra Nevada Mountains are within the grizzly bear’s historical range and appropriate for reintroduction.

On June 27, 2019, CBD filed suit arguing USFWS was arbitrary and capricious in the response.

Christensen in his ruling wrote, “Notwithstanding the merits of the Center’s [CBD’s] claim that the Service [USFWS] is simply not doing enough to protect the grizzly bear, Congress has authorized only limited avenues for judicial review of administrative action, none of which are available in this case.”

Christensen found that recovery plans do not constitute a “rule” that marks a final agency action and thus cannot be legally petitioned.

Although USFWS was the primary defendant, the states of Wyoming and Idaho, Wyoming Stock Growers Association, Wyoming Farm Bureau Federation and Utah Farm Bureau Federation all joined the litigation as intervenors. MSLF came aboard to represent the Wyoming Stock Growers Association and the farm bureaus.

MSLF applauded the decision and wrote in their press release, “With the court’s ruling in the District of Montana, ranchers and farmers will continue to be able to aid the federal and state agencies in tailoring their relief efforts where they will be most effective,” said MSLF attorney Cody J. Wisniewski. “Importantly, recovery plans will not be locked up in the same vicious cycle of unending litigation that occurs with every delisting attempt.”

Jim Magagna, executive vice president of the Wyoming Stock Growers Association, praised the decision, stating environmentalists use litigation to “discourage local collaboration that truly fosters species recovery and protection.” Magagna said the association “appreciates MSLF’s commitment to representing our interests in this and other challenges to the future of Western ranching.” — Charles Wallace, WLJ editor

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