Thursday’s grizzly bear hearing in Missoula may have much faster impacts than a typical federal court case.
U.S. District Court Judge Dana Christensen has warned the attorneys he might rule from the bench after he finishes questioning them about removing Endangered Species Act protections from grizzlies in the Greater Yellowstone Ecosystem.
That’s because Wyoming and Idaho have both set grizzly hunting seasons to start this Saturday, Sept. 1. If the judge rules the U.S. Fish and Wildlife Service erred in delisting those bears last year, the hunting seasons would be suspended.
“I will take him at his word,” said Blake Henning, Rocky Mountain Elk Foundation chief conservation officer, ahead of the hearing. “He wants to have a ruling before a hunting season would potentially start.”
Missoula-headquartered RMEF is one of several organizations supporting the federal government’s decision to delist the estimated 750 grizzly bears in and around Yellowstone National Park.
Those bears are separate from the roughly 1,000 grizzlies in the Northern Continental Divide Ecosystem in western Montana, which has its own delisting decision expected this winter. Wildlife agencies for Montana, Wyoming and Idaho also back the Fish and Wildlife Service’s delisting rule, along with the National Rifle Association, Safari Club International and Sportsmen’s Alliance Foundation.
Advocates of continued federal protection for grizzlies fall into two main groups. One includes nearly two dozen Indian tribal governments that claim FWS didn’t properly consult with them before delisting the bear. The second features a coalition of wildlife advocacy groups including Sierra Club, Center for Biological Diversity, National Parks Conservation Association and the Northern Cheyenne Indian Tribe. They mount a more specific assault on the FWS’ decision-making process.
“From the conservation standpoint, our case has three components,” said Andrea Santarsiere, Center for Biological Diversity staff attorney.
The first argues that federal scientists failed to account for shrinking grizzly natural food sources that could force them into more deadly conflicts with people and other predators over livestock and scavenged carcasses.
The second states the federal agency ignored a different Endangered Species Act ruling regarding wolf delisting in the western Great Lakes, and was making the same mistakes with grizzly delisting.
And the third argument deals with changes to the Greater Yellowstone Ecosystem grizzly conservation strategy that the environmental groups say didn’t get a proper public review.
“From our standpoint, if we lose on all our claims we would definitely consider immediate appeal,” Santarsiere said. “We’d be asking 9th Circuit [federal appeals court] to stay the rule so the hunts can’t go forward.”
Before the hearing, grizzly protection advocates plan to rally with several events on Tuesday. Grizzly biologist David Mattson, author Rick Bass and Confederated Salish and Kootenai tribal elder Johnny Arlee will speak and introduce films at a gathering at 5:30 p.m. in the Roxy Theater.
“The stakes are so high for both sides on this issue,” said Louisa Willcox of Grizzly Times, a website consolidating supporters of grizzly expansion. “It’ll be most interesting to see what the judge is interested in. He will walk into that courtroom having read everything, and will want to clean up any remaining confusion. I expect he’s going to interrupt every attorney.”
The Elk Foundation's Henning said while the case doesn’t touch on the merits or mechanics of hunting seasons, that issue will loom in the background.
“I think the plaintiffs just don’t want to see a bear hunted,” Henning said. “And our members want us to be more active in representing interests of hunters. The wildlife agencies in Wyoming, Idaho and Montana have spent a lot of money managing and studying bears for a lot of years, and hunters have contributed a lot of that state money. The Rocky Mountain Elk Foundation has spent a lot of money on habitat conservation in the Yellowstone ecosystem. Let’s claim an ESA success and manage them like we do everything else.”
University of Montana law student Lowell Chandler said the case could influence other parts of federal policy. He planned to watch how the attorneys handle the matter of public review of amendments to the bear conservation strategy, because that involves another federal law called the Administrative Procedures Act.
“It applies to all agency actions and agency rule-making under laws like the Clean Water Act or the Clean Air Act as well as the Endangered Species Act,” said Lowell, who worked as a clerk in the Earthjustice law office representing the plaintiffs. “It’s the governing procedure agencies must follow when promulgating rule-making.”