(CN) — Conservationists made their way to the Ninth Circuit on Wednesday in hopes of reviving a lawsuit to stop black bear baiting on federal lands containing threatened grizzly bears.
In 2019, WildEarth Guardians joined three other conservation groups in suing the U.S. Forest Service and U.S. Fish and Wildlife Service in Idaho’s federal court.
The groups claimed that the federal agencies violated the Endangered Species Act and the National Environmental Policy Act by allowing incidental killings of grizzlies by black bear hunters using bait. The suit sought to block the Forest Service from allowing black bear baiting in areas of national forests in Wyoming and Idaho where grizzly bears may be.
Until 1992, the Forest Service had required hunters to obtain certain permits to use bait to hunt black bears in national forests. In 1995, the Forest Service adopted a national policy to allow states to decide whether bait can be used in national forests.
That policy emerged despite a prior finding from the Fish and Wildlife Service that black bear baiting could affect grizzly bears, which have been listed as threatened under the Endangered Species Act since 1975.
On Wednesday, the groups’ attorney Sangye Ince-Johannsen of the Western Environmental Law Center clarified to a Ninth Circuit panel that the central issue comes down to the forest service’s inaction after grizzlies were shot by black bear hunters in Idaho and Wyoming.
“We’re taking issue with the fact that the forest service has not done what it said it would do under the national policy, which is to protect grizzlies when there are instances of grizzlies being shot,” Ince-Johannsen said.
Reinitiating consultation, Ince-Johannsen explained, would involve the agencies sitting down for the first time since 1995 to consider the effects of the policy that has since adversely affected grizzly bears or jeopardized their continued existence.
“Now, if the finding of the first question is affirmative, that would then mean that the national policy cannot continue to be adopted,” Ince-Johannsen said. “It would require them to consider the effects of the national policy.
U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee, questioned what type of new information is enough to trigger a consultation duty.
“I mean, it can’t just be any fact in the world that happens, so what is it?” Friedland asked.
To this, Ince-Johannsen informed the panel that the first grizzly bear to reach the Bitterroot Ecosystem — an environment critical to grizzly recovery — since 1946 was shot over bait. The possibility of that instance, he added, was something that the agencies agreed would initiate a consultation.
The conservation groups argue that, when the agencies signed off on the national policy, it was understood that the forest service would continue monitoring state baiting regulations and close baiting where necessary to protect federally listed species like grizzlies.
In 2023, however, U.S. Magistrate Judge Candy Dale dismissed the groups’ claims after finding that the 1995 policy does not reflect an agency action for the purposes of the Endangered Species Act.
While the policy authorizes the forest service to determine if there’s a need to prohibit or restrict black bear baiting, Dale ruled that those circumstances are limited and dependent on other existing laws.
“All of this is not to say that WEG has no recourse,” Dale concluded, adding that Section 9 of the Endangered Species Act prohibits the take of any protected species, including grizzly bears.
“Theoretically, WEG could seek relief against the states pursuant to Section 9 of the ESA if the grizzly bear is threatened with imminent harm by state regulatory schemes over black bear baiting.”
For the agencies’ part, Justice Department attorney Amy Collier argued that it’s not the federal government that authorizes black bear baiting — or any type of hunting for that matter — but the states themselves. She also responded to the groups’ argument over the expanding territory of grizzly bears.
“I don’t think that, standing alone, the fact that a species range is improving and expanding without citing some sort of effect on the species is sufficient to trigger that new information requirement,” Collier said.
When Friedman asked why the agencies never initiated a consultation after reports of grizzly bear deaths, Collier stated that there’s a difference between the agencies considering pre-2007 information versus the appellants bringing a claim long after the statute of limitations has expired.
The outcome of a new consultation, Collier added, would only involve agencies inspecting the national policy language and determining if there should be any new mitigation measures.
Senior U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, and U.S. Circuit Judge Eric Miller, a Donald Trump appointee, rounded out Wednesday’s panel. The judges did not indicate how they would rule.
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