Amanda Pampuro

(CN) — The 10th Circuit on Thursday remanded a lawsuit challenging grazing permits issued in Wyoming’s Bridger-Teton National Forest with instructions for the feds to consider limiting lethal takes of female grizzly bears. The court did not vacate the permits issued in 2019.

“Nothing in the biological opinion or the incidental take statement evaluated whether the authorized 72 lethal grizzly bear takes could result in enough female takes to jeopardize the grizzly bear population in the project area,” wrote U.S. Circuit Judge Scott Matheson in the 53-page opinion.

"If, as the biological opinion states, survival of the species depends on 'minimizing' annual female grizzly bear mortality, it should at least have considered whether a female lethal take limit should be included," Matheson, who was appointed by Barack Obama, wrote.

The Center for Biological Diversity and the Sierra Club sued the U.S. Forest Service in March 2020 over grazing permits in Wyoming’s Bridger-Teton National Forest that they say relied on vague conservation measures and lacked adequate protections for female grizzly bears. Western Watershed Project filed a separate complaint which was combined on the docket.

The federal permits allow an estimated 8,819 livestock, including 8,772 cow/calf pairs and yearlings, to graze alongside 47 horses on six allotments over the next 10 years. Ranchers have used the land for grazing since the early 1900s.

The environmentalists however argued the 2019 grazing permits issued in the Upper Green River Area Rangeland Project violated the Endangered Species Act and the Administrative Procedure Act. A federal judge dismissed the case in September 2022 and the environmental groups appealed. Oral argument was held at the Byron White U.S. Courthouse in downtown Denver in March.

“We’re hopeful that in reconsidering their flawed analysis, the agencies will spare dozens of female grizzly bears previously sentenced to death by the Trump administration,” said Andrea Zaccardi, legal director of the Center for Biological Diversity’s carnivore conservation program in a statement. “This ruling confirms that federal officials can’t sidestep the law to allow grizzly bears to be killed on public lands to appease the livestock industry.”

In a close analysis, the court found the U.S. Forest Service should have considered limiting lethal takes of female grizzly bears, as recommended by previous biological opinions. The agency also failed to consider how the grazing permit program might be contributing to the area’s high bear mortality rate.

Before European settlement of North America, scientists estimate 50,000 grizzly bears roamed the continent. Today the bears are listed as threatened under the Endangered Species Act and number fewer than 800.

Although grizzlies have largely thrived under Yellowstone protections, deaths are on the rise. On average, 64 grizzly bears were killed annually from 2015 to 2018, more than double the death rates recorded in 2013 and 2014.

The Upper Green River Area in northwestern Wyoming has the highest lethal take rate for grizzly bears, with 37 deaths since 1999.

With deaths exceeding survival rates in the Upper Green River Area, the local grizzly population has entered what is known as a mortality sink. The agency’s 2019 biological opinion contained just one sentence on the decline, and the panel found “this single sentence did not address the concern raised in the final environmental impact statement.”

Still Jonathan Ratner, Western Watershed Project's Wyoming office director, chuckled when asked if he considered the case's revival a victory.

"The remand without vacatur means you can continue violating the law with impunity," Ratner said in a phone interview. "The government is still allowing private individuals running private livestock on public lands to kill endangered species in an area that is zoned to be protected. It’s insane.”

Ratner said the protected area is being treated like a livestock feedlot.

In analyzing the permits, the panel affirmed several agency actions including conservation measures that provide conditions for permit-holders to follow like monitoring allotments regularly and removing livestock carcasses when possible.

Representatives for the Forest Service did not respond immediately to requests for comment.

Obama-appointed U.S. Circuit Judge Nancy Morris and Bill Clinton-appointed U.S. Circuit judge Mary Beck Briscoe rounded out the panel.