War Over Yellowstone Grizzly Bear Protections Waged at Ninth Circuit

A grizzly bear roams near Beaver Lake in Yellowstone National Park, Wyo. (AP Photo/Jim Urquhart, File)

(CN) — Wildlife advocates faced off with Trump administration lawyers at the Ninth Circuit on Tuesday to determine the fate of grizzly bears living in and around Yellowstone National Park.

The Ninth Circuit panel heard arguments from the U.S. Fish and Wildlife Service and environmental organizations stemming from a 2017 decision by the Department of Interior to delist the grizzly bears from the Endangered Species Act after the agency determined the recovery of the bear to be sufficient. 

Under then-Secretary Ryan Zinke, Fish and Wildlife decided to delist the grizzly bear and Wyoming and Idaho were hours away from hosting the first grizzly bear trophy hunts in years when a federal judge in Montana halted the hunts and ordered the bears returned to the endangered species list. 

At issue on Tuesday morning was the scope of work the Fish and Wildlife Service must perform as it updates the science that underscores all decision-making processes relating to the grizzly bear’s listing. 

The federal government appealed the lower court decision not so much to get the bear delisted but to ask the appellate court to limit the scope of activity Fish and Wildlife must undertake to bring its science up to date. Specifically, the lower court ordered the agency to consider how the reduced protections for grizzly bears would impact the species in the lower 48 as a whole.

According to the Crow Indian Tribe, the Center for Biological Diversity and other groups, Fish and Wildlife must perform a genetic analysis of how the grizzly bear species will fare should protections be released. 

Joan Pepin, attorney for agency, said such requirements were a bridge too far. 

“It imposes an obligation on the service,” she said. 

Pepin further argued delisting, often viewed through a negative lens, is actually cause for celebration, as it is an indication that conservation efforts have been largely successful and a species has recovered.

Fish and Wildlife believes the grizzly bear in and around Yellowstone has recovered to the point where its population numbers fluctuate around its carrying capacity, or the population size in a given region.  

The lower court’s decision, Pepin argued, substitutes its own understanding of the science on the ground at this point for the agency’s — thereby robbing it of its natural discretion. 

“That’s what this debate is about,” she said. “Let the service apply its expertise.”

Earthjustice attorney Timothy Preso, who argued on behalf of the Crow Tribe, said the government is simply asking the Ninth Circuit to perform line-item edits of parts of the lower court decision it doesn’t like. 

Preso said the tribes are concerned that delisting a specific remnant of a species thriving in a given area amounts to a de facto delisting of the entire species, meaning grizzly bears that need protections in other areas of the country won’t receive them because of the Yellowstone grizzly delisting. 

“We want to avoid the danger that the remnant becomes an unlistable entity,” Preso said.

Matthew Bishop, arguing on behalf of the wildlife advocates, said Fish and Wildlife must conduct genetic analysis and base its recovery plan on how to ensure genetic diversity within the remnant. 

“This is not a ‘battle of the experts’ situation or even disagreements between biologists,” Bishop said. “The issue here is the service’s misrepresentation of the science.”

Bishop said if the states allowed hunts to proceed on lands outside Yellowstone, the bear’s transportation corridors would be cut off, meaning they would suffer from inbreeding and genetic bottlenecking. 

He asked the court to affirm the lower court’s order requiring Fish and Wildlife to perform genetic analysis. 

U.S. Circuit Judges Mary Schroeder, Paul Watford and Andrew Hurwitz made up Tuesday’s panel. Hurwitz — a Barack Obama appointee — in particular consistently engaged lawyers from all parties attempting to drill down on exactly what the fight was about. 

“All five lawyers agree that the species should remain listed, they are just arguing about the process by which you arrive at that conclusion,” he said at one point during the extended hearing. “We have a lot of ink and a lot of arguments and nobody disagrees about the final result.”

But the case could have broad implications for how the government counts animals along with how it arrives at conclusions for listing and delisting of species, particularly if long-term genetic diversity will be a mandated consideration as Fish and Wildlife updates the science that guides its recovery plans. 

The three-judge panel took the matter under submission and are expected to rule in the coming months. 

Schroeder was appointed by Jimmy Carter and Watford is an Obama appointee.

The hearing was conducted remotely due to the coronavirus pandemic and there were a handful of interruptions due to technical difficulties. 

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