9th Circuit Court of Appeals: Crow Indian Tribe v. USA - May 5, 2020

9th Circuit hears appeal on protections for Yellowstone grizzlies

Montana Free Press

The future of grizzly bears in the Greater Yellowstone Ecosystem is now in the hands of the 9th Circuit Court of Appeals.

On Tuesday, May 5, the court heard video arguments in the federal and state governments’ appeal of a 2018 decision that restored Endangered Species Act protections for the bear in the three-state region.

The court has not indicated when it will issue a ruling. The ruling, when it comes, will not likely change the bear’s listing status, but could impact how the federal government moves forward with grizzly management. Regardless of any decision regarding listing status in the GYE, other grizzly populations would remain protected under the Endangered Species Act.

In 2017, the U.S. Fish and Wildlife Service ruled that the species was recovered in the Greater Yellowstone Ecosystem and no longer needed federal protections. The GYE, which includes parts of Montana, Wyoming and Idaho, has a population of about 700 grizzly bears that has been expanding geographically in recent years — a sign, the service said, the bear has recovered.

Indianz.Com Audio: 9th Circuit Court of Appeals - Crow Indian Tribe v. USA, No. 18-36030 - May 5, 2020

A coalition of tribes and environmental groups appealed the decision, and in September 2018 U.S. District Court Judge Dana Christensen ordered the protections restored, saying the service’s ruling had not properly considered the effect delisting would have on all grizzly bears in the Lower 48, and was arbitrary and capricious in its application of science. Christensen ruled that the agency had given too much deference to the states, deprioritized the best available science, and illogically conflated two studies to determine that the GYE population possessed sufficient genetic diversity for survival.

The federal government appealed Christensen’s decision, as did the states of Wyoming, Montana and Idaho. Wyoming is appealing Christensen’s entire decision. The federal government is appealing portions of the decision. Montana has joined in the federal government’s appeal.

Fish and Wildlife has acknowledged that it erred in not properly considering the impact removing protections from the Yellowstone grizzly would have on other grizzly populations in the Lower 48.

There are currently two main populations of grizzly bears in the Lower 48, respectively occupying the GYE and the Northern Continental Divide Ecosystem. The NCDE includes Glacier National Park and has about 1,000 bears. The two populations are not connected. Scientists have determined the Yellowstone bears likely do not have enough genetic diversity in isolation to continue to be a viable population.

Grizzly bears in Yellowstone National Park. Photo: I-Ting Chiang

In recent years, the territorial range of grizzlies within the GYE has expanded significantly, even as a record number of grizzlies have been killed in disputes with humans over food sources.

Federal and state wildlife managers have said they would keep an eye on the Yellowstone population’s numbers and genetic diversity and potentially import bears from the NCDE to help restore genetic diversity.

“We know it’s genetically secure for 50 years, possibly a century,” said Joan Pepin, an attorney representing the federal government. “There is no need to do it artificially when it’s not really a problem and natural connection might happen in the next several decades.”

But Matt Bishop, an attorney with the Western Environmental Law Center representing the plaintiffs, said genetic diversity should be considered in a term longer than 50 years, and that almost every protected species would qualify for delisting if only the next few decades were considered.

Bishop also said the federal government has not committed to maintaining genetic diversity, but rather has said only that it will consider intervening if genetic diversity drops too low.

“Considering to do something in the future is not a commitment,” Bishop said.

A copy of the Piikanni Nation Treaty can be seen on the table next to Chairman Alvin "AJ" Not Afraid, Jr. of the Crow Tribe during a Senate Committee on Indian Affairs hearing in Washington, D.C., on March 7, 2017. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Pepin said the states have demonstrated they want the bears delisted and would take steps to protect them in the future.

“Nobody wants to let this population fall back into a threatened position,” she said.

Pepin also argued that Christensen’s requirement that USFWS needs to consider impacts on the species at large is too burdensome. Instead, she said, the agency should need only consider whether the delisting of Yellowstone grizzlies would affect the listing status of the bears in other areas.

USFWS continues to maintain that the GYE population is recovered, and has said it will develop a new delisting rule that considers impacts on other grizzly populations.

Christensen’s ruling also concluded that USFWS violated its obligation under the Endangered Species Act to use the best available science in developing its delisting rule. Intead, the agency negotiated with the states and dropped a commitment to ensure that if wildlife managers change the way they count bear populations, original population estimates would be reassessed using the new method.

Attorney for Wyoming Jay Jerde argued that the 9th Circuit should overrule Christensen on the basis that methods for counting bears shouldn’t be subject to the Endangered Species Act’s best-available-science burden.

Bishop, however, argued that if the states change the way they estimate populations and arrive at, say, 1,200 bears under a new accounting method, compared to 700 under a previous method, the revised count could enable the states to kill bears with management removals and hunting, jeopardizing the species. Bishop said state wildlife managers would need to use any new method to reassess the 2002-2014 average population estimate to determine the number of bears they plan to manage.

“What Wyoming said in its briefs is it would always manage for 500 or 600 bears,” Bishop said. “That’s precisely the problem. The number needs to change with the population estimator.”

The state of Montana has said it wants the NCDE bears delisted as a distinct population segment, or self-sustaining section of a species. The federal government has indicated it will likely wait for the GYE case to be wrapped up before making a delisting decision on the NCDE population.

Johnathan Hettinger is a journalist based in Livingston. Originally from Central Illinois and a graduate of the University of Illinois, he has worked at the Midwest Center for Investigative Reporting, the Livingston Enterprise and the (Champaign-Urbana) News-Gazette. Contact Johnathan at jhett93@gmail.com and follow him on Twitter @jhett93.

Note: This story originally appeared on Montana Free Press. It is published under a Creative Commons license.
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