A federal judge ordered Idaho and Wyoming to stall their first grizzly hunts in decades for 14 days after a lengthy hearing on removing the bears' Endangered Species Act protections.
U.S. District Court Judge Dana Christensen released the temporary restraining order at 5:05 p.m. Thursday. The hunts were to start on Saturday morning.
"We're gratified the grizzly trophy hunt will not proceed this weekend," Wildearth Guardians attorney Bethany Cotton said on Thursday. "We have restored hope for grizzlies' recovery across their range."
Christensen heard four hours of argument on Thursday morning, raising more than 40 issues regarding the U.S. Fish and Wildlife Service’s ending of ESA protection of grizzlies in the Greater Yellowstone Ecosystem. The hearing ended on an unscripted note when the attorney for Wyoming offered to delay the hunt, and delisting challengers announcing they might file last-minute injunction requests to the U.S. 9th Circuit Court of Appeals.
Last May, Christensen had asked both sides to not file intermediate motions before Thursday’s hearing, so he could have the whole case presented without technical distractions. When he observed that the oral arguments would take place right before Wyoming and Idaho launched their first grizzly hunts in more than 40 years, many assumed that meant he might rule from the bench on Thursday.
“I find focused oral argument is of great assistance to making my decision,'' Christensen told the packed courtroom at the start of the hearing. “It helps me clarify and confirm my thinking and it can change my thinking.
“To issue a decision from the bench would indicate I had already made up my mind. I give you my assurance this matter will have my full attention. When we're done this morning, I will get my opinion out expeditiously.'”
But three hours after the hearing ended, Christensen granted a temporary restraining order. In a five-page opinion, Christensen noted the federal government hadn’t had its chance to reply, but he was stopping the hunt anyway.
“(T)he court is satisfied that a temporary restraining order is warranted,” he wrote. “Here the threat of death to individual grizzly bears posed by the scheduled hunt is sufficient. Indeed, harm to members of endangered species is irreparable because once a member of an endangered species has been injured, the task of preserving that species becomes all the more difficult.”
Christensen added that the plaintiffs raised enough serious arguments on the merits of the case that it was likely to go in their favor. But his TRO is not a ruling, and that remains to be decided.
Lawyers and spectators started lining up around 7:30 a.m. to get a seat for the 9 a.m. hearing. At least 20 University of Montana law and wildlife biology students wound up watching the proceedings on a video screen in a separate courtroom in Missoula’s Russell Smith Courthouse.
About a dozen protesters waved signs calling for an end to the grizzly hunt outside the courthouse. But unlike similar hearings on taking gray wolves off the Endangered Species Act in 2010, no bear-hunting supporters offered public demonstrations.
The Fish and Wildlife Service declared Greater Yellowstone grizzly bears recovered in 2017 and passed management authority over to the wildlife agencies of Montana, Wyoming and Idaho. An estimated 750 grizzlies inhabit that three-state region, although the count ranges from 695 to more than 1,000.
Within months of the delisting decision, Wyoming and Idaho officials scheduled grizzly bear big-game hunting seasons for this September. Wyoming proposed a two-part season, with 11 grizzly licenses offered in a buffer zone close to Yellowstone and Grand Teton national parks, and 12 more for hunting areas farther out. Idaho set a season for a single male grizzly. Both states planned to start their seasons on Sept. 1, although Wyoming’s buffer-zone hunt doesn’t start until Sept. 15.
Montana’s Fish and Wildlife Commission postponed consideration of a 2018 grizzly hunt. Commissioners noted that legal challenges over the gray wolf delisting a decade ago caused widespread confusion as agencies sold licenses and opened hunts, only to have them canceled by court orders.
Also right after the Yellowstone delisting, a coalition of at least 25 environmental groups, Indian tribes and individuals sued the federal government. On Thursday, a team of four lawyers offered at least 16 reasons why the delisting decision was unsupported, erroneous and illegal.
“One plus one does not equal three, no matter how many times the Fish and Wildlife Service says it does,” Earthjustice attorney Tim Preso said for the plaintiffs. He and the other protection advocates argued the agency ignored the conclusions of its own science on bear feeding behavior, failed to analyze what would legally or biologically happen to other grizzly recovery areas if the Greater Yellowstone population was delisted, didn’t properly calculate how hunting might hurt populations and didn’t have the required state regulatory mechanisms in place before handing bears over to state management.
In a slightly separate case, Chicago tax attorney Robert Alend quoted emails from FWS staff indicating they designed the 2017 delisting under pressure from state officials who insisted on getting a hunting season going.
“Are we really going to let Idaho, Wyoming and Montana manage these bears under a document that authorizes renewed slaughter — the very policy that got us into this situation?” Alend asked Christensen. “Will we discount all these obstacles based on the speculative assumption that the bears will adapt or be re-listed?”
For the government, U.S. Department of Justice attorneys started by observing the Greater Yellowstone populations had strong numbers, healthy members and answered questions from previous legal challenges. But Christensen raised doubts.
“When the (Fish and Wildlife) Service created the delisting rule in 2017, did they take in consideration the remnant populations?” Christensen asked DOJ attorney Cody Howell. “I’m looking at the remnant populations right here on this map. I’ve scoured the 2017 delisting rule, and I’m not convinced it’s in there.”
Grizzly bears were declared a threatened species under the Endangered Species Act in 1975. The listing covered all the remaining bears in the Lower 48 states. As the federal recovery process moved forward, the grizzlies were divided into six recovery zones. In addition to the Greater Yellowstone Ecosystem, bears were given special attention in the Northern Continental Divide Ecosystem, Cabinet-Yaak Ecosystem, Selkirk Ecosystem, Selway-Bitterroot Ecosystem and North Cascades Ecosystem. Those last two were sticking points in Thursday’s hearing because they have no resident grizzlies, yet have official recovery plans in place.
Howell replied that all the remnant grizzlies in those other ecosystems remained protected by the ESA, and that counted as consideration. But Christensen kept returning to his documents, asking for the location of the analysis.
Attorneys for the states, private livestock associations and hunting groups took a different tack. They stressed the concerns of local people who have to deal with grizzly bears in their backyards and farms, and are doubtful the Endangered Species Act has the power to recover an animal.
“The people I associate with socially are pretty demoralized with the possibility of this going forward,” Wyoming senior assistant attorney general Erik Petersen told Christensen. Public support for grizzly bears would fade if the finish line keeps moving away, he added.
Christensen asked Petersen if Wyoming would consider delaying the start of its hunting season until he issued an opinion. Petersen surprised the courtroom with a counter-request, asking if the judge was considering ordering the federal government to repair its delisting rule, could the state still go forward with its hunt?
“If the court believes the (FWS) agency could explain itself in a short time, we are willing to entertain some accommodation to the hunting schedule if there is some adjustment in that scenario,” Petersen said. He added that Wyoming Gov. Matt Mead was in a remote area but was calling in by cellphone by every half-hour to learn if there are new developments in the delisting decision.
“Don’t presume to know what’s rattling around in my head,” Christensen replied.