Wolf Ruling Has Agency Wrestling With Grizzlies

DENVER, Colo. (CN) – A court ruling regarding the removal of a wolf population from Endangered Species Act protection has spurred reconsideration of a similar decision for Yellowstone grizzlies. The ruling stems from a lawsuit filed by the Humane Society of the United States in response to the U.S. Fish and Wildlife’s action to remove the Western Great Lakes population of gray wolves from federal protection.

“It is unsurprising to us that the service is having to hit the pause button,” Ralph Henry, HSUS Director of Litigation said in an interview. “The service was rolling the dice in delisting the grizzlies instead of waiting for the ruling on wolves. We’re pleased the Fish and Wildlife Service is considering the implications of the court ruling concerning Great Lakes wolves on its recent decision to delist Yellowstone grizzlies.  The service’s grizzly delisting rule suffers from the same problems as the prior wolf delisting rule and the grizzly rule should be withdrawn. The service cannot address endangered species recovery in a piecemeal fashion. The court has basically rejected a piecemeal approach.”

The fate of imperiled wolf and bear populations has been hotly contested for many years, and even more so this year, with conservationists demanding strict adherence to the principles underlying the Endangered Species Act, and ranching and industry interests favoring depredation control or even eradication programs for predator species. It is often up to the federal agencies charged with management of these species and the courts to sort out the differences.

The service’s notice of regulatory review announced Wednesday is actually an unusual move for the agency. Their strategy of breaking up listed species into separate populations and then selectively downlisting or delisting those populations is now under the legal microscope due to recent court rulings and ongoing litigation. The agency has opened a public comment period on the matter of the grizzlies, but stressed that the Yellowstone grizzly “final delisting rule remains in effect and the status of grizzly bears throughout the rest of the range remains unchanged” during this process.

In December 2011, the U.S. Fish and Wildlife Service delisted, or removed, the Western Great Lakes distinct population segment or DPS of gray wolf from ESA protection. The Humane Society of the United States and other conservation groups fought the delisting action in District Court, which ruled against the agency. The service then appealed, and in August of this year, The U.S. Court of Appeals for the District of Columbia Circuit affirmed the lower court’s ruling.

“In this recent case, Humane Society of the United States et al. v. Zinke et al., the court found that the service had not evaluated how delisting the Western Great Lakes DPS of gray wolves would affect the remaining wolf populations that were still listed under the Endangered Species Act and what the effect of lost historical range may have on the status of the Western Great Lakes wolf DPS. This court opinion may impact the GYE (greater Yellowstone ecosystem) grizzly bear final delisting rule which, like the WGL wolf decision, designated a portion of an already listed species as a DPS and then revised that listed species by removing the DPS due to recovery,” the agency said.

In the case of the grizzlies, the definition of recovery is being contested in the courts since the service delisted the Yellowstone population in June.

“The recovery of the GYE grizzly bear population serves as a remarkable conservation success story. It is the result of strong partnerships among the service, federal and state agencies, tribes and other partners. GYE grizzly bear numbers have rebounded from as few as 136 bears when listed in 1975 to an estimated population of approximately 700 today,” the agency said in its notice of regulatory review.

Environmental groups disagree that the grizzlies are recovered enough to be cut from ESA protection, citing high human-caused death rates in the past two years, including road kill, poaching, and management removal, and environmental threats such as invasive species that have crowded out traditional bear food sources, disease and climate change.

The Center for Biological Diversity environmental group, which was not an appellant in the wolf case, but which did provide an amicus brief for that case, has joined with the Sierra Club, the National Parks Conservation Association and the Northern Cheyenne Tribe in a lawsuit filed in August challenging the service’s June Yellowstone grizzly delisting. That case was consolidated Tuesday with three other cases, according to CBD’s Senior Attorney, Andrea Santarsiere.

In response to the service’s notice of regulatory review, Santarsiere told Courthouse News, “This is an unprecedented move by Fish and Wildlife Service to save what the agency clearly recognizes is an unlawful rule. This past month the state of Wyoming held numerous public meetings to discuss the prospect of permitting trophy hunting of grizzly bears. The agency should retract the rule while it collects more public comment and maintain federal protection for these bears while it sorts out the rule’s errors. Yellowstone’s grizzly bears remain at risk and no amount of bureaucratic jujitsu by the Trump administration will change that fact. Hundreds of thousands of Americans have already commented and said they want continued protection for bears without cruel trophy hunts. Opening yet another comment period is a lame attempt by the Fish and Wildlife Service to paper over their illegal decision to strip these magnificent animals of badly needed protections.”

The Humane Society has also filed a suit on behalf of the Yellowstone grizzlies. “HSUS filed a lawsuit challenging the federal delisting of grizzly bears in the Greater Yellowstone Ecosystem and that litigation is proceeding towards summary judgment briefing. Through this notice FWS is attempting to gloss over the fact that it made the same error with grizzlies as it did with wolves, a question that is squarely before the federal court in pending litigation,” Henry said. “The service is trying to build a regulatory moat around individual populations and wipe their hands from developing a full recovery plan for the species.”

Clearly, the fate of the Yellowstone grizzlies remains undecided as the agency and its challengers wait on legal decisions to be handed down. The question of whether the agency’s just-announced regulatory review is a sleight of hand tactic or a good faith effort to reassess its delisting strategy may become irrelevant as the legal battles play out.

“This desperate move won’t protect Fish and Wildlife from the legal consequences of recklessly rushing to remove protections from Yellowstone grizzlies. While we’re always glad for the public to have its say, this delay can’t correct the fatal flaws in a rule that would let states kill more grizzlies and consider allowing trophy hunters to target the bears,” Santarsiere said.

The Fish and Wildlife Service’s announcement opens a 30-day comment period, which closes Jan. 5, 2018. The service says it is specifically interested in public input “on whether this court’s opinion affects the GYE final delisting rule and what, if any further evaluation the service should consider regarding the remaining grizzly bear populations in the lower 48 states.”

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