A three-judge appeals court panel has ruled that grizzly bears need Endangered Species Act protection until the federal government explains how the bears in the Yellowstone region will survive the loss of whitebark pine seeds from their food supply.
But two of the three judges also found the U.S. Fish and Wildlife Service has a good management plan ready to go when grizzlies are eventually delisted.
Announced Tuesday, the 9th U.S. Circuit Court of Appeals decision left both government officials and environmentalists claiming victory.
"The service, if it's going to delist, has to be right on all the issues, not just some of them," said Earthjustice attorney Doug Honnold, who argued the case for the Greater Yellowstone Coalition. "And the service blew the whitebark pine issue."
"We're real pleased the 9th upheld our decision on regulatory provisions," said Chris Servheen, the federal grizzly bear recovery coordinator and lead defendant in the suit. "The judges found our management plan was sufficient and meets the rule of law. We need to better explain how declines in whitebark aren't a serious problem for grizzly bears, and we can do that."
The grizzly was listed as a threatened species in 1975 after being nearly wiped out of the Rocky Mountains. Since then, recovery programs have brought the population from around 300 to more than 1,500 in Montana, Idaho and Wyoming.
The Fish and Wildlife Service planned to delist grizzly bears in the Greater Yellowstone Area in 2007. The Greater Yellowstone Coalition sued over the move, and U.S. District Court Judge Donald Molloy ruled in 2009 that the government failed to explain the whitebark pine issue and didn't have an adequate management plan ready to keep bears safe after they were delisted.
The Greater Yellowstone Coalition also questioned whether there were enough grizzlies for genetic diversity and whether the plan should consider the bears' historic rather than current habitat when figuring how much had been lost. The Fish and Wildlife Service won those two issues before Molloy on summary judgment.
The agency appealed the decision on the other two issues, and both sides appeared before appeals court judges Sidney Thomas, Susan Graber and Richard Tallman in March. Their ruling was published on Tuesday.
There are now more than 600 grizzlies in and around Yellowstone Park, along with more than 900 in the Northern Continental Divide Ecosystem between Glacier National Park and the Bob Marshall Wilderness. The decision only applies to the Yellowstone bears and their 9,210-square-mile conservation area.
Mature whitebark pine trees can produce huge numbers of seeds in their cones. Squirrels cache the seeds in the fall, and grizzlies are adept at finding and eating those caches. They're such a high-protein food source, some biologists refer to them as "Big Mac equivalents," where a single seed cache could equal eight or 12 large hamburgers in calorie value.
The trees have been declining for decades because of a fungal disease known as blister rust. In the last decade, whitebarks have also been overwhelmed by mountain pine beetle infestations.
The Fish and Wildlife Service's own research extensively detailed the connection between drops in whitebark pine seed production and jumps in grizzly deaths. The judges found that the issue wasn't that bears couldn't get enough whitebark to feed themselves, but that they would travel farther in search of food - encountering more human conflicts in the process. They also objected to FWS using whitebark pine studies that only went up to 2002, before the mountain pine beetle epidemic made its presence known.
"Perhaps the Service's delisting process, based on two decades of grizzly population growth, was well under way before the whitebark pine loss problem appeared on the radar and could be studied," the judges wrote. "But now that this threat has emerged, the Service cannot take a full-speed ahead, damn-the torpedoes approach to delisting - especially given the ESA's policy of institutionalized caution. That the bears are likely to seek alternate foods in the face of whitebark pine decline is a part of the problem, not an answer to it."
Greater Yellowstone Coalition director Mike Clark said any grizzly delisting plan was premature if it couldn't explain how the bears would deal with such a major food source loss.
"Recent studies have now shown that 85 percent of the whitebark pine is dead or dying," Clark said. "And 70 percent of those forests are in wilderness or national parks right in the middle of the grizzly recovery zone. The evidence is very clear - when you have a good whitebark pine year, you have a good cub year the following spring. And now there are now no good whitebark pine years."
Servheen countered that biologists for the Interagency Grizzly Bear Study Team have been busy in the intervening years gathering more whitebark data.
"As it went to district court, the data in the case stopped in 2007 when the bear was delisted," Servheen said. "With new ruling, we can use the information since 2007, and there's significant additional information on the science of whitebark that we can use."
On the plan question, Molloy ruled at the district court level that the Fish and Wildlife Service's strategy didn't have enough "force of law" to back up its management standards. But judges Tallman and Graber found that sticking those management standards into Forest Service national forest plans and National Park Service superintendents' compendiums gave them the legal weight they needed.
Thomas wrote a dissenting opinion, saying he still agreed with Molloy that too much of the plan depended on voluntary compliance of state and local agencies to keep bears from getting killed.
The Fish and Wildlife Service must now develop a new plan for delisting the Yellowstone-area grizzlies that incorporates the appeals court challenges to the food supply problem. Servheen said that should be a straightforward fix, and one that needed to be done quickly.
"We have to move forward," he said. "The object of the Endangered Species Act is to recover and delist species, not keep them on forever. That's when we're going to lose public support for grizzly bears, and we don't want to do that."
Servheen said he feared landowners on the fringe of the Greater Yellowstone Area habitat will get fed up if the bear population keeps expanding but their ability to defend themselves and their livestock remains limited. If the grizzlies gain too many human enemies, he said, the problem could get a political solution where Congress amends or curtails the Endangered Species Act.
That's already happened for gray wolves in Montana and Idaho, where a congressional rider placed them under state management and prohibited further court review.
Earthjustice's Honnold disagreed with that logic. He argued the Endangered Species Act ensures species have a legitimate chance to recover, and stay that way after delisting.
"If you know a species is falling apart because they're losing a key food source, you develop a management plan that deals with that - you don't just walk away," he said. "If the answer is: Let's delist and only have state plans that deal with that problem because you're dealing with political backlash, you've written the Endangered Species Act off the book yourself. I think the bears deserve better than that."