While most stories about last week’s grizzly bear court hearing trumpeted the last-minute suspension of trophy hunts in Wyoming and Idaho, the lawsuit had nothing to do with the legality of grizzly hunting.
And while it did focus on whether grizzlies in the Greater Yellowstone Ecosystem still need federal protection, the eventual decision will affect a far larger landscape. That points up a conundrum of the Endangered Species Act: It’s one challenge to recover a species, but quite another to delist it.
U.S. District Judge Dana Christensen didn’t render a decision from the bench on Thursday as many expected he might. But he did grant a 14-day restraining order blocking Wyoming and Idaho from starting their grizzly hunts on Saturday.
That order expires just before the most controversial part of Wyoming’s hunt begins on Sept. 15, where 11 lottery-selected hunters get up to 10 days apiece to kill a grizzly in hunting districts just east of the core habitat encompassing Yellowstone and Grand Teton national parks. Only one female bear may be killed, and the whole hunt ends when that happens.
Another 12 Wyoming permit-holders were authorized to hunt in areas much farther from the core habitat, but could be in the field any time between Sept. 1 and Nov. 15 and had no restriction on killing male or female bears.
If Christensen rules U.S. Fish and Wildlife properly declared Greater Yellowstone grizzlies no longer need federal protection, the bears would stay under state management. Wyoming and Idaho’s hunting seasons could resume.
Montana’s Fish and Game Commission opted to skip setting a 2018 grizzly hunt on the expectation it might be interrupted by a court order. But it could set one for 2019, and its officials have indicated they probably will.
But the hunt was not on trial. The plaintiffs shotgunned the federal government with claims of how it failed to analyze threats to the grizzly’s future, including the potential that hunting would kill so many bears the population would start to shrink back toward endangered status. But they never questioned the state’s right to manage or hunt animals not protected by the Endangered Species Act.
The Interagency Grizzly Bear Committee in charge of grizzly recovery puts the Greater Yellowstone population at about 750 bears. But its own research shows the 22,500-square-mile area has had stagnant bear numbers since 2002, after a period of 4 percent to 7 percent annual growth. The plaintiffs argued FWS did a poor job explaining how grizzlies would adapt to threats like climate change, elimination of historic food sources, and more conflicts with hunters, ranchers and bear managers.
“The population of bears hasn’t increased for the last 15 years, but it has dispersed and become less dense on the landscape,” Alliance for the Wild Rockies attorney Tim Bechtold said. “Presumably they’re looking for something to eat. That’s led to more human interaction, and when humans intersect, the grizzly bears die. We’re the main cause of grizzly mortality.”
And while grizzlies are expanding outside of the national park and wilderness areas of the Greater Yellowstone into more human-populated places, they haven’t yet traveled to any of the other recovery zones. That includes the Northern Continental Divide Ecosystem just 60 miles to the northwest, where an estimated 1,000 grizzlies radiate from Glacier National Park and the Bob Marshall Wilderness Area.
Christensen badgered the Fish and Wildlife Service attorneys to show him the analysis explaining how delisting Greater Yellowstone Ecosystem bears would affect the remnant populations in five other recovery areas. At one point he quoted from the service’s own 1982 plans that declared three ecosystems needed to show recovery before delisting could occur: The Greater Yellowstone, the Northern Continental Divide, and the Cabinet-Yaak Ecosystem in northwest Montana.
“How did we come from that articulated plan to a segment-by-segment, ecosystem-by-ecosystem basis?” Christensen asked FWS attorney Cody Howell.
“Data changes, laws change and administrations change,” Howell replied. “The goal of that plan was that to delist; you’re going to need those three populations. That law has changed over time. The courts have told us we can look to specific populations and make a delisting decision.”
But another federal appeals court case decided a month after FWS delisted the Yellowstone bears in 2017 deeply rattled that policy of delisting species by what’s known as distinct population segments.
Christensen noted that in his temporary restraining order, when he wrote “the D.C. Circuit Court of Appeals held that Fish and Wildlife Service violated the Administrative Procedure Act and the ESA [Endangered Species Act] when it isolated and delisted a distinct population segment without considering the legal and functional impact on the remainder of the species.”
If Christensen follows the D.C. Circuit lead and returns Yellowstone grizzlies to federal ESA protection, that could have a domino effect on current efforts to delist the Northern Continental Divide grizzlies. The Fish and Wildlife Service has declared it will publish a final delisting rule for those bears by the end of 2018. That goal faces two big challenges regardless how the Greater Yellowstone decision lands.
The first is that critics of the Northern Continental Divide delisting plan raise similar complaints of incomplete analysis and connectivity problems as faced the Greater Yellowstone case. But even if Christensen rules in favor of the Fish and Wildlife Service on the science questions, he hasn’t even started work on a second part of the lawsuit dealing with the Native American Free Exercise of Religion Act and tribal sovereign consultation requirements.
Those challenges come from seven tribal governments and organizations along with more than 30 other groups and individuals asserting both religious and practical claims to grizzly management. One of the plaintiffs, Blackfeet spiritual elder Jimmy St. Goddard, attended Thursday’s hearing, bringing along a medicine bundle for emphasis.
“I hope the American public realizes the grizzly is like the bald eagle,” St. Goddard said after the hearing. “People would be outraged if you shot the sacred bald eagle from the sky.”
Under the rules Christensen set for this case, the Indian claims were held in reserve because the administrative challenges had more clear-cut resolutions.
Attorney Jeff Rassmusen told Christensen at the start of Thursday’s hearing the tribal religion and government consultation issues were not coming to the court yet. But those complaints would arise if the delisting rule survives other challenges. And Rassmussen’s initial filing makes clear that Native American sovereign and spiritual claims apply to grizzlies in general, not just Yellowstone bears.
On the other hand, attorneys for the wildlife agencies in Montana, Idaho and Wyoming warned that wider public sentiment for grizzlies could turn negative if the states can’t mitigate the impacts bears have on ranches, farms and hunters.
“Delisting of Yellowstone grizzlies can be an incentive to recovering bears in other areas,” Montana Fish, Wildlife and Parks attorney Bill Schenk told Christensen. “But it can be a disincentive if we don’t delist. People are already living with high concentrations of grizzly bears. Folks have bought into that, but they need to know this can be achieved. They need to know there’s an end-zone here.”