For the second time in a decade, the officials charged with getting grizzly bears off the Endangered Species List have to rethink their future after a major court setback.
A 2007 federal move to delist grizzlies in the Greater Yellowstone Ecosystem of Montana, Idaho and Wyoming failed when the U.S. Fish and Wildlife couldn’t show the bears could withstand the loss of traditional food sources like whitebark pine seeds and cutthroat trout.
The Interagency Grizzly Bear Committee (IGBC) oversaw years of field work that concluded the bears could find alternate foods, and the federal government published a new delisting rule for the Greater Yellowstone Ecosystem in 2017. Last September, another federal judge found it lacking and returned Yellowstone grizzlies to Endangered Species Act protection.
“The courts have really made it clear the piecemeal approach they’re taking is not legally viable,” said Kelly Nokes, an attorney for Wild Earth Guardians, one of the groups opposed to the delisting rule. “They need a meta-population that’s connected to be a recovered population. A few isolated pockets in a few locations is not feasible.”
This week, both Montana state wildlife officials and the IGBC will consider their next moves in separate meetings. On Monday, the Montana Fish and Wildlife Commission in Helena may vote on making a grizzly bear recovery strategy part of state regulations. That would guide Fish, Wildlife and Parks bear managers in how to monitor bear populations and set thresholds for action in the Northern Continental Divide Ecosystem. But those regulations would only apply if and when the grizzlies come off the Endangered Species Act (ESA) threatened species list.
On Tuesday and Wednesday, IGBC meets in Missoula. Its agenda includes discussion of what the group of federal, state, tribal and private bear managers should do next, along with an update on a near-record level of grizzly deaths from cars, trains, hunters and other mishaps.
The meetings come at an unsettled time for grizzly bear recovery. U.S. District Court Judge Dana Christensen’s September remand of the Greater Yellowstone Ecosystem grizzly delisting canceled scheduled grizzly trophy hunts in Wyoming and Idaho, and put in limbo plans to publish a similar delisting rule for grizzlies in the Northern Continental Divide Ecosystem (NCDE).
In October, a young male grizzly was captured near a Stevensville golf course on the edge of the Bitterroot Recovery Area, which is part of the overall strategy for restoring grizzlies but currently lacks any resident bears. Montana FWP bear managers released it on the southern fringe of the NCDE, because they had no prepared release sites in the Bitterroot.
Nevertheless, the bear’s appearance renewed discussion of an approved-but-unfunded 2000 federal plan to transplant grizzlies in the Selway-Bitterroot Wilderness as well as the challenges of building links between the Greater Yellowstone, Northern Continental Divide and Cabinet-Yaak and Selkirk recovery areas.
Last Wednesday, attorneys for the state of Wyoming sent notice to the U.S. 9th Circuit Court of Appeals that they would challenge Christensen’s ruling. However, Wyoming is only an intervener in the case, while the U.S. Fish and Wildlife Service has primary responsibility for the delisting rule. Montana and Idaho officials have not decided whether to appeal, nor have several private organizations that supported the delisting rule.
The Fish and Wildlife Service (FWS) gave grizzlies in the Lower 48 states Endangered Species Act protection in 1975. At the time, there were an estimated 500 or fewer grizzlies south of Canada, occupying about 2 percent of the landscape they had when Lewis and Clark’s Voyage of Discovery put them in the American historical record.
FWS grizzly recovery coordinator Hillary Cooley said on Friday the service hasn’t decided whether it will appeal. Such a legal battle would take about two years, which might be longer than the service would need to rewrite a new delisting rule that answered the district court’s concerns.
And if the federal government lost the appeal, it could then be four years away from resolution.
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Retired FWS grizzly recovery coordinator Chris Servheen said the service faces a tough choice for several reasons. Christensen’s decision faulted the rule for three major issues. One was delisting the Yellowstone bears without showing how the rest of the grizzlies in the Lower 48 states would be affected.
The second was proposing a new population monitoring method without showing how it related to older methods. The third was a weak explanation for how the six recovery areas might be linked together for genetic diversity.
Servheen said those faults came in part because of state wildlife agencies disagreeing with their federal counterparts over how to write the delisting rule.
That would make an appeals court challenge very difficult to win. But rewriting the delisting rule won’t be much easier.
“The judge said what he didn’t like, but he didn’t provide a clear statement what he did want,” Servheen said. “It’s really frustrating. There’s not a clear target to fix. We got to where we are based on everybody cooperating together. When the states and the service go different directions, or ignore adequate regulatory mechanisms, we’re on very slippery slope for future of grizzly bears.”
And in a way, the grizzlies themselves are changing the game. The court ruling questioned how the six recovery areas would fare if they were all treated as distinct population segments. But if a growing number of grizzlies start finding ways to connect those areas, they might no longer be distinct populations.
That’s why the grizzly at the Stevensville golf course matters. It shows bears can find unoccupied habitat and perhaps build links between their successful Northern Continental Divide and Great Yellowstone populations.
Also on Monday, the nonprofit land trust Vital Ground will close a deal protecting a property that grizzly bears use to cross Interstate 90 under a Clark Fork River bridge near Nine Mile. Vital Ground Executive Director Ryan Lutey said it was the latest in a series of agreements that protect critical bits of land wildlife depend on.
“We’re trying to keep those lands available as open space for wildlife habitat,” Lutey said. “And since much of that is in private ownership, it’s critical to do that with incentive-based mechanisms.”
Vital Ground just released an inventory of 188,000 acres of such lands sprinkled across northern Idaho and western Montana that bears use to move from recovery area to recovery area. The parcels range in size from 200 to 5,000 acres. Lutey said the list could drive a 20-year strategy for private as well as government efforts to build those connections.
“In my opinion, management and recovery and delisting of the species hinges on connectivity between ecosystems,” Lutey said. “These are buffer or linkage lands outside (public) lands that are already well protected. Grizzlies will have to disperse through suitable links that lie between those protected areas.”
That kind of land protection needs money, and much of that has been tied up in programs like the federal Land and Water Conservation Fund that Montana’s congressional delegation hopes to reauthorize during the December lame-duck session of Congress. Without the money, opportunities to fully recover grizzly bears in the Lower 48 states grow increasingly dim.