Court Puts A Stopper on Grizzly Hunt, Reinstates Federal Protection
The hopes of hunters and state wildlife management agencies for a grizzly hunting season in the Greater Yellow Ecosytem (GYE) have, for the moment, come to nothing. On September 24, US District Court Judge Dana Christensen ruled on a lawsuit challenging the US Fish & Wildlife Service’s 2017 delisting of the GYE bears, which had been listed as threatened under the Endangered Species Act (ESA) along with other grizzlies in the lower 48. The ruling invalidated the delisting, restoring the bears to ESA-listed status and foreclosing the possibility of state management and hunting.
Readers who have been following the controversy around the potential grizzly hunt will recall that the USFWS delisting immediately faced multiple lawsuits from a variety of animal rights groups and tribes. Plaintiffs such as Humane Society of the United States (HSUS), the Center for Biological Diversity, the Fund for Animals claimed that the delisting violated the Administrative Procedures Act (APA) standard that decisions by agencies should not be “arbitrary and capricious.” In order to facilitate the suits, the Missoula court combined six lawsuits into one and stayed proceedings on all claims not directly related to the ESA.
On August 30, the judge issued an injuction to bar hunting, blocking the Wyoming grizzly hunt set to begin in September. The quota would have allowed for offtake of up to 22 bears, although it is very unlikely that number would have been reached. The judge framed the injunction in terms sympathetic to the animal rights groups, saying that he found that “the threat of death to individual grizzly bears posed by the scheduled hunt is sufficient” to halt the hunt. This was an ominous sign for hunters.
Then, in his September 24 ruling, Judge Christensen found that the FWS acted improperly on two fronts in delisting GYE bears: First, that it failed to consider the effect of delisting the GYE population on the other lower 48 grizzly populations. Second, that it did not follow the analysis of threats demanded by the ESA in its listing decisions.
The judge seems to have been particularly swayed by plaintiffs argument that FWS acted capriciously in treating GYE bears as a distinct population segment from other grizzly bears in the lower 48. Plaintiffs argued that the ESA obligates the FWS to analyze how the delisting of the Greater Yellowstone grizzly might affect the future viability of other lower 48 grizzly populations. They argued, furthermore, that the delisting would preclude the possibility of the GYE bears joining with other grizzly populations in the lower 48. This, the plaintiffs maintained, could hurt the genetic health of both populations at some future time.
The judge’s ruling accepted this argument uncritically, stating, “it is illogical for the Service to determine that, because the populations have not interbred for many generations-making them biologically distinct from one another-it is appropriate, without further analysis, to reduce the chance that they will interbreed in the future. The ESA does not permit the Service to use the distinct population segment designation to circumvent analysis of a species’ overall well-being.”
The ruling also held that while the FWS used the best available scientific data, it interpreted this data improperly in concluding that the current population size of the GYE ensured genetic health. “[FWS] misread the scientific studies it relied upon, failing to recognize that all evidence suggests that the long-term viability of the Greater Yellowstone grizzly is far less certain absent new genetic material. As the Service noted in the Final Rule, “[t]he isolated nature of the [Greater Yellowstone] grizzly bear was identified as a potential threat when listing occurred in 1975.”
Christensen seemed to view state management (which would include limited hunting) to be incompatible with the conservation goals set forth in the orginal ESA listing. However, the only major change in the management strategy of states would be a conservative hunting quota. This would have little or no effect on the population, and would have largely targeted bears in areas where they area already experiencing mortality due to conflicts with humans.
What’s more, the states already had provisions in place in their own management plans that address the conservation concerns raised in the lawsuit, particularly the key concerns over cutting off the GYE bears from potentially mixing with those to the north in the Northern Continental Divide Ecosystem (NCDE). State plans provided for corridors of low human activity that would allow GYE bears to expand to the point where bears could mix between the populations in the future. The states’ management plans, set according to a tri-state agreement between Idaho, Wyoming and Montana, were consistent with the goals of federal protection.
From the evidence in the delisting, the GYE population seems to be doing quite well, and conflicts and mortality from bears venturing into populated areas are on the rise.
We should be clear, then, what the lawsuits against the FWS were all about: Stopping hunting, not protecting grizzlies. The animal rights groups saw a big opportunity for a PR win against hunting, and they got it. The headline HSUS used to declare victory: “Lawsuit saves Yellowstone grizzly from trophy hunters.” All animal rights groups complemented their legal efforts with a smear campaign against hunting. The ruling claims that the ethics of hunting were not at issue in the suit, but that is what was at issue for the plaintiffs.
State wildlife managers, hunters, and many of those who live in areas grizzly inhabit are frustrated with the decision, according to Wyoming Outfitters and Guides Association Vice President Sy Gilliland. Gilliland took a lead role in addressing the controversy over the hunt. He says that he and others in Wyoming are tired of interference from animal rights groups.
“These groups can decide where to file suit, and they shop around for a judge who has made decisions sympathetic to their cause. Then you basically have a judge trying to be a biologist, and saying that the settled science on the grizzly bears isn’t right. It seems like there is nothing we can do.”
The FWS could appeal the court’s ruling, although it seems more likely that they will revisit the overall listing of lower 48 grizzly bears at another time in the future. NCDE bears, which are connected to robust grizzly bear populations in Canada, have likely exceeded recovery goals set in the original ESA listing for many years.