An appeals court has agreed that the Yellowstone grizzly bears must remain on the Endangered Species List until the U.S. Fish and Wildlife Service conducts a full analysis of the other three subpopulations, among other things.
On Wednesday morning, three justices on the 9th Circuit Court of Appeals ruled against the U.S. Fish and Wildlife Service and the states of Wyoming, Idaho and Montana, who had challenged a district court ruling that the Yellowstone grizzly population could not be delisted by itself until more study was complete.
Justice Mary Schroeder led off her opinion with a line from the University of Montana fight song: “And the squeal of the pig will float through the air; From the tummy of the grizzly bear.”
She went on to say the justices agreed with Native Americans and environmental groups on all three points of the original case that repealed delisting: consideration of the remnant populations, establishing connectivity, and the need to calibrate a new population estimator to the previous one.
However, they ruled that the U.S. Fish and Wildlife Service didn’t have to do a full analysis of all the things than might threaten the remnant populations, because the law required the agency only to assess the status of the populations. A more complete analysis would only be required if the agency was trying to prove each population was strong enough to be delisted, which isn’t the case.
“If, after such an inquiry, the FWS determines that delisting the DPS would render the remnant population no longer viable, no partial delisting can take place. This is necessary in order to avoid the “de facto delisting” the court in Humane Society was concerned about,” Schroeder wrote.
Bozeman-based EarthJustice attorney Tim Preso, who represented some of the tribes and environmental groups in the case, celebrated his win.
“This is a tremendous victory for those who care about Yellowstone and its grizzly bears. The court rightfully rejected the misguided proposal to subject Yellowstone grizzlies to trophy hunting for the first time in 40 years. The grizzly is an icon of our remaining wildness at a time when our wilderness is shrinking and our wildlife is under assault,” Preso said.
Helena-based Western Environmental Law Center attorney Matthew Bishop represented other environmental groups, including WildEarth Guardians. He and Preso argued different aspects in the appeal, with Preso arguing for the remnant populations and Bishop defending the need to make sure population estimates from 10 years ago line up with estimates of the past few years that were calculated with a different formula.
“The best available science says not only are grizzly bears still recovering, but they also need our help to bounce back from an extinction threat humans caused in the first place. Misrepresenting the facts to promote killing threatened grizzly bears for fun is disgraceful. I’m glad the judges didn’t fall for it,” Bishop said.
The Greater Yellowstone Ecosystem population of grizzly bears in Idaho, Wyoming and Montana is estimated at about 725 animals. Scientists have to develop ways to estimate the population because exact counts are impossible and impractical.
In 2017, then-Interior Secretary Ryan Zinke announced the U.S. Fish and Wildlife Service was delisting the Yellowstone population. While Montana decided to delay creation of a hunt, Wyoming jumped ahead with organizing a hunt for the fall in 2018 that would allow the killing of up to 22 bears. Idaho created a hunt for one bear.
Tribes and environmental groups sued to reverse the delisting and stop the hunt.
In a rapid September 2018 ruling, Missoula federal district Judge Dana Christensen concluded that the U.S. Fish and Wildlife Service hadn’t done a thorough analysis required by law before delisting the Yellowstone grizzlies. Agreeing with Native Americans and environmental groups, Christensen said the USFWS should consider how removing the population might affect the other populations and the agency needed to include consistent ways of counting grizzly bears and ways to maintain connectivity between the populations.
Christensen’s ruling stopped the planned hunt, angering some in the Cowboy State. As a result, the state of Wyoming, which had intervened in the case, was the first to declare it would appeal. That was an unusual move because defendants – the U.S. Fish and Wildlife Service in this case – usually appeal a ruling, not interveners.
The U.S. Fish and Wildlife Service held off on deciding to appeal until the last day it could. When the service filed its appeal, the only part of Christensen’s ruling being challenged was the need for connectivity. Biologists say that connectivity between populations is necessary to prevent grizzly bears from becoming inbred.
When the appeals court heard the case in May, the justices were confused as to why the USFWS filed the appeal.
USFWS attorney Joan Peppitt said Christensen had gone just a little too far requiring connectivity. But Wyoming attorney Jay Jerde went further, saying the case was a matter of state sovereignty and he demanded that the justices delist the bear.
The justices weren’t swayed.
They agreed with Christensen that the agency needed to assess connectivity because there were “no concreted, enforceable mechanisms in place to ensure long-term genetic health of the Yellowstone grizzly.”
“In this appeal, the FWS accuses the district court of substituting its own judgment for the agency’s on what regulatory mechanisms will maintain long-term genetic health. The FWS may be correct that it need not adopt the identical regulatory mechanisms that it adopted in the 2007 Rule, but because a lack of genetic diversity continues to threaten the Yellowstone grizzly, it must adopt regulatory mechanisms that ensure long-term genetic health. It failed to do so here,” Schroeder wrote.
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