The Basics of the Grizzly Bear Listing and Delisting Under the ESA
On the 25th of September of 2018, somewhere at the bottom of Hell’s Canyon, Idaho, Montana Fish, Wildlife and Parks Director Martha Williams and her counterparts from Idaho Fish and Game and Wyoming Game and Fish started their annual tri-state meeting in that isolated reach of the Snake River just as a federal court ruling erased their authority to manage grizzlies in the Greater Yellowstone Ecosystem that sprawls across their borders. Their location was remote with no cell service in a mile deep canyon.
U.S. District Judge Dana Christensen, of the 9th Circuit Court of Appeals, rules to uphold the ESA protection for two weeks starting September 1, 2018. She then extends that ruling until October 1st while all sides ponder their circumstance. Bottom line for state agencies, there will be no grizzly hunting in 2018 in Wyoming or Idaho and if those states or the federal government protest Christensen’s decision to the U.S. 9th Circuit Court of Appeals, a 2019 hunting season looks unlikely as well.
And it may put a wrench in Montana’s plan to take control of grizzlies in the Rocky Mountains between Glacier National Park and Missoula.
Delisting Any Species Requires Alien Intervention
Although CYA is an understatement, it’s easier to get Grandma out of the ground than to delist any species currently under the Endangered Species Act. First designated a threatened species in 1975, the grizzly’s ESA protection applied to the entire Lower 48 states. As the Fish and Wildlife Service worked to boost populations, it created six recovery areas:
• The Greater Yellowstone Ecosystem and Northern Continental Divide ecosystem have the highest concentration of Grizzly’s estimated at 700-800 each.
• Cabinet-Yaak Ecosystem in northwest Montana (40-50 bears)
• Selkirk Ecosystem in northern Idaho (40-50)
• North Cascades had possibly 20 grizzlies that wandered across the Canadian border, rarely staying on the U.S. side.
• Bitterroot Ecosystem on the Montana-Idaho border has no resident grizzlies, although it still has an approved plan to introduce an experimental population there.
Although the Fish and Wildlife Service stands behind their scientific finding that the Greater Yellowstone Ecosystem grizzly bear is biologically recovered and no longer requires protection under the Endangered Species Act, their determination was based on their rigorous interpretation of the law and is supported by the best available science and a comprehensive conservation strategy developed with our federal, state, and tribal partners.
Judge Christensen had one major problem. The Fish and Wildlife Service’s failure to show how taking one population of grizzlies out of the law might affect the five other recovery areas. If that’s a fatal flaw for the Greater Yellowstone Ecosystem delisting, it’s also fatal to the Northern Continental Divide Ecosystem, which hasn’t done that analysis either. Christensen dismissed the U.S. Department of Justice’s argument that other bears remained under Endangered Species Act protection, noting the government’s own announcement it intends to delist NCDE grizzlies by the end of 2018.
A second problem Judge Christensen raised was the agency’s use of some scientific studies about the Yellowstone grizzlies’ genetic health. When FWS attempted to delist the Yellowstone population in 2007, it noted that the bears were so isolated they might need to truck in bears from elsewhere to avoid the dangers of inbreeding.
“The service illogically cobbled together two studies to reach its determination that the Greater Yellowstone grizzly population is sufficiently diverse at this time,” Christensen wrote. “In doing so, it ignored the clear concerns expressed by the studies’ authors about long-term viability of an isolated grizzly population.”
The solution, Christensen wrote, was to show how the states would take care of that problem by making sure bears in the separate recovery areas could meet and breed. Instead, FWS depended on Montana’s state efforts to limit killing bears traveling between the Northern Continental Divide and Greater Yellowstone ecosystems.
But no bears have traveled between those two regions, and a grizzly travel study that underpins the Northern Continental Divide Ecosystem recovery strategy failed to get computer model bears to make the journey despite running the program 20,000 times.