A July 2017 lawsuit from Native American tribes and several interveners sought to halt the U.S. Fish and Wildlife Service’s June 2017 decision to take the Yellowstone grizzly bears off the endangered species list. On Thursday, Chief U.S. District Court Judge Dana Christensen heard four hours of oral testimony from a bevy of attorneys in Missoula, Montana.
As of 5 p.m. Thursday, with no ruling from the bench stopping the delisting, Wyoming planned to launch a hunting season of up to 23 bears Saturday. But immediately after Thursday’s hearing, Crow Tribe attorney Robert Aland filed for an emergency motion to halt the delisting. And within two hours, additional co-plaintiffs filed for a temporary restraining order to stop the grizzly bear hunt.
Christensen ultimately granted the two-week restraining order, putting the brakes on Wyoming’s bear season. Idaho had scheduled a hunting season for a single male grizzly bear, which was also suspended by the order.
But the tussle over the 2017 delisting of Yellowstone grizzly bears will continue.
Oral arguments before Christensen Thursday focused on the federal government’s delisting of Yellowstone National Park’s bears in June 2017, when U.S. Fish and Wildlife published a final rule designating a distinct Greater Yellowstone Ecosystem grizzly bear population under the Endangered Species Act.
The service had determined that the Greater Yellowstone Ecosystem grizzly bear population had recovered and no longer met the Endangered Species Act’s definition of being threatened or endangered.
Christensen decided not to rule from the bench so he could hear more from both sides.
“Focused oral argument is of great assistance to me in making a decision,” Christensen said. “It can clarify and sometimes change my thinking. If I were to issue a decision today that would have meant I had already made up my mind.”
Aware of the looming Saturday hunt, Christensen acknowledged, “These are time-sensitive issues. I will get an opinion out as expeditiously as I can.”
Christensen appeared to listen intently during the four hours of attorney testimony. The consolidated lawsuit names Interior Department Secretary Ryan Zinke and Acting U.S. Fish and Wildlife Service Director Greg Sheehan as defendants.
The plaintiffs disagree with the Fish and Wildlife Service’s decision to carve out a distinct subpopulation of Yellowstone grizzlies, exposing the approximately 700 bears to “discretionary mortality” that includes hunting.
The plaintiffs’ attorneys argued that it’s illegal to create a distinct population and remove it from the endangered species list, especially since all grizzly bears in the lower 48 states were listed as threatened in 1975.
“The service lowered the bar of protection in order to push delisting through,” Nicholas Arrivo, lead attorney for the Humane Society of the United States, said in opening arguments.
“The Fish and Wildlife Service abdicated their regulatory duty” in what was a major sellout in a “hostile regulatory environment,” Arrivo added.
“This was not a decision based on science,” Arrivo said. “This was ultimately about political strategy.”
Matthew Bishop, attorney for Wildearth Guardians, said the Service “can’t have it both ways,” counting the grizzly population as a whole while also carving out a distinct subgroup.
“There will be serious consequences for the remnant grizzlies in the lower 48,” he said. “Thousands — not hundreds — of bears are needed for long-term viability. One hundred years is too brief. More like 200 to 300 years are needed for a long-living species like grizzlies,” Bishop said.
Rather than delist, Bishop said they should celebrate the success that has led to the recovery of the Yellowstone population of grizzly bears.
The Fish and Wildlife Service removed the bears from the threatened species list in 2007, winning a challenge at the district court level. But the Ninth Circuit ordered the U.S. Fish and Wildlife Service to take a second look at the delisting.
The agency’s attorneys said in court Thursday that the service has refined its grizzly bear management approach in the northern Rocky Mountains over the last 10 years.
With management of the Yellowstone “distinct population” of grizzly bears turned over to Wyoming, Idaho and Montana following the delisting, the states’ hunting seasons — all of which occur outside of the park — are based on allowable, discretionary mortality rates that will not harm the bears’ long-term survival, the attorneys for those states said.
“The state of Montana is committed to having the grizzly as a managed species on the landscape,” Bill Shank, attorney for the state of Montana, said during testimony.
U.S. Fish and Wildlife attorney Coby Howell said opponents of the delisting have failed to prove that the Yellowstone grizzly bears are in danger of extinction.
“This population has been resilient,” Howell said, adding that it has “no chance” of becoming extinct in the future.
Erik Petersen, Wyoming assistant attorney general, urged Judge Christensen to allow state management of the bears around Yellowstone National Park to move forward.
“In Wyoming, people are pretty demoralized” over the grizzly issue, he said.
According to Petersen, 7,000 people applied for the 23 bear permits.
Cody Wisniewski, attorney for intervener Wyoming Farm Bureau, said his clients are “people who work the land. They’re not tourists. They’re people with apex-level predators in their backyards.”
Aland said at the hearing that the service’s decision to remove protections from grizzly bears outside of Yellowstone National Park “is not what the public should expect for an iconic species barely hanging on.”
“Are we really going to allow the renewed slaughter … the very conduct that got us here in the first place?” Aland asked. “It’s clear a much more conservative management plan is essential to the long-term survival of this iconic species.”
The consolidated cases include Humane Society of the United States v. USFWS; Wildearth Guardians v. Zinke et al; Northern Cheyenne Tribe v. Zinke et al; Crow Indian Tribe v. Zinke et al; and Alliance for the Wild Rockies v. Zinke et al.