MISSOULA — An appeals court is trying to decide how much work the U.S. Fish and Wildlife Service must do before it once again tries to delist the Yellowstone population of grizzly bears.
Early Tuesday afternoon, three judges from the 9th Circuit Court of Appeals struggled to figure out why they were listening to attorneys argue over the relisting of the Yellowstone grizzly bear.
Judge Andrew Hurwitz said it appeared that both sides agree that the U.S. Fish & Wildlife Service needs to analyze what would happen to the other populations of grizzly bears if the Yellowstone population were delisted.
In other words, do the remaining populations still qualify as a species? They would need to because both sides also agree that the other populations should still be protected as threatened.
“Is there anybody in this case who doesn’t think the remnant shouldn’t remain listed? Tell me what we’re fighting about if everybody agrees the remnant should remain listed,” Hurwitz said to USFWS attorney Joan Peppitt.
The remnant populations include the Northern Continental Divide, which isn’t doing badly with an estimated 1,000 bears. But the other areas – Cabinet-Yaak and Selkirks – have an estimated 50 bears each and the Bitterroot and Cascades have none.
So when the Yellowstone population, with about 600 to 700 bears, was delisted in June 2017, that left only one other population with enough bears to be considered viable according to the Endangered Species Act.
Missoula federal district judge Dana Christensen reversed the delisting and told the USFWS to review the populations and its population estimates. The Indian tribes and conservation groups that sued argued that the USFWS couldn’t “Balkanize” bear populations in different regions, delisting each one in turn.
A District of Columbia appeals court made that ruling in a U.S. Humane Society lawsuit challenging USFWS decisions to delist wolves in separate places.
Peppitt started to argue that the Humane Society case didn’t apply because the grizzly bear situation is different.
Hurwitz waved that off because the USFWS had already agreed to analyze the remnant populations. The only part of Christensen’s ruling the USFWS was challenging was the need to ensure connectivity to prevent the loss of genetic variability.
“The court went a little too far,” Peppitt said. “Let the Service apply its expertise and craft a solution here, and then I can almost guarantee there will be an opportunity for additional judicial review in the future.”
But, the state of Wyoming wants to override the USFWS and asked the court to go all the way to delisting the Yellowstone population.
Wyoming attorney Jay Jerde said it was a state sovereignty issue because Wyoming, Idaho and Montana have already agreed on a conservation plan for the Yellowstone population that depends on a specific population estimate, the Chou-2. If that changes, the three states may not be able to agree on another plan, Jerde said.
Matthew Bishop, attorney for WildEarth Guardians, argued that biologists may develop something different than the Chou-2 population estimate so each estimate should be calibrated to the previous one. Otherwise, people could get confused because the estimated numbers keep changing even though the population remains the same.
“How you count bears matters,” Bishop said. “It’s not so much the number – this is a proxy for a stable, healthy population. You can’t adopt a new estimator and keep the same numbers.”
Bishop also pointed out that until bears are moving between the populations and mating successfully with each other, connectivity doesn’t exist and therefore populations aren’t recovered.
Hunting proposals and increasing human habitation make natural migration less likely without a stronger commitment. It currently requires the hand of man in the form of translocation because bears aren’t moving between the Yellowstone ecosystem and the other regions.
Peppit argued translocation isn’t controversial, but some states and counties resist or limit translocation. Montana passed such a law after Yellowstone National Park moved bison to the Fort Peck Reservation in 2012.
Timothy Preso, attorney for the Northern Cheyenne Tribe, said the government might look like it agrees with most of Christensen’s order. But it’s fighting “in an opaque way” because it’s trying to limit the amount of analysis required on the remnant populations.
When asked what the court should have the USFWS do, Preso said the agency needs to ensure the remnant still meets the ESA definition of what a species is, which includes the interconnectedness of the populations.
“The service doesn’t have to consider every threat in the world that might exist that affects the remnant. But it does have to look at what it’s changing,” Preso said. “The government still seems to be resisting the idea that it needs to determine whether the remnant can qualify as a species.
“That’s important because somebody could file a petition the moment after the government completes this process and say ‘you no longer have a listable species; you have to delist it.’”
The hearing concluded without a ruling from the bench.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.
