Wyoming politicians have attacked new Endangered Species Act protections for Yellowstone-area grizzly bears, protections that were officially reinstated July 30, saying science didn’t support the move.
The U.S. Fish and Wildlife Service restored Yellowstone grizzly bears to the U.S. threatened species a year after a string of lawsuits culminated in a 2018 court order to reimpose ESA oversight. The action has reignited a conversation about how to best manage local populations in the context of the species’ broader survival story.
“The grizzly is fully recovered in Wyoming,” U.S. Sen John Barrasso said in a statement July 30. “End of story.”
The USFW’s relisting was a result of a 2018 decision by Judge Dana L. Christensen, chief justice of the U.S. District Court of Montana. Christensen argued the wildlife agency violated federal laws when removing protections from Yellowstone grizzlies in 2018 and opening the door to hunting.
In agreeing with the Crow Tribe and others that sought to protect the grizzly, Christensen drew fire from Wyoming’s congressional delegation and others, who continue to hold that conservation groups abuse the court system and Wyoming’s population should not be listed.
U.S. Rep. Liz Cheney wrote that Christensen’s court-ordered relisting “was not based on science or facts.” Instead, she wrote, it was the U.S. Fish and Wildlife Service that made a “science-based decision” in 2017 when it removed ESA protections covering the Yellowstone grizzly — the action the federal judge reversed.
U.S. Sen. Mike Enzi also said science was on the side of those who would return management of Yellowstone grizzly bears to Wyoming, Idaho and Montana. Environmental groups take advantage of the court system, Enzi wrote, “in the face of wildlife management experts and the science presented before us.”
There were about 136 grizzlies in the Yellowstone ecosystem in 1975 when the government originally put the bear under ESA guard. It set a minimum recovery goal of 500 grizzlies. Today there are an estimated 709 and for many in Wyoming, that’s enough.
That view was expressed at a Wyoming Game and Fish Commission meeting in July when commissioner Pat Crank harangued conservationists.
“There is no other wildlife population on the face of Earth that has been more studied …than the Yellowstone ecosystem grizzly bear,” Crank said. “There is no other wildlife population on the face of Earth that human beings know more about.
“You folks,” he said to representatives of conservation groups, “do great harm to the population you are seeking to protect when you challenge a scientifically absolutely studied and scientifically incontestable conclusion … that a population has recovered and should be delisted…”
What the judge said
And yet Christensen’s ruling considers U.S. Fish and Wildlife Service science, Endangered Species Act regulations and studies regarding Yellowstone grizzly genetics. The USFWS has appealed his decision.
In his 48-page ruling, Christensen refers to the science 18 times, including these instances:
- “[T]he Service illegally negotiated away its obligation to apply the best available science in order to reach an accommodation with the states of Wyoming, Idaho, and Montana.”
- “This modification was made not on the basis of the best available science, as demanded by the ESA, but rather as a concession to the states in order to reach a deal.”
- “[R]ather than rationally consider and apply the best available science, as demanded by the [Administrative Procedure Act] and the ESA, [the U.S. Fish and Wildlife Service] made a concession to the states ….”
- “[T]he general good intentions of the parties do not override the ESA’ s mandate that decisions be made in accordance with the best available science.”
- The USFWS and states “agreed that they would … delete the ‘best available science’ requirement.”
- The USFWS “points to nothing that suggests that it considered the best available science when it dropped the recalibration commitment.”
- “[A]ll available evidence demonstrates that the Service made its decision not on the basis of science or the law but solely in reaction to the states’ hardline position…”
- “The Service cannot negotiate away its obligation to make decisions “solely on the basis of the best available science.”
Genetic diversity
When it officially put the grizzly back under ESA protection last month, the Fish and Wildlife Service said that in 2017 it had reviewed “the best available scientific and commercial data.
“[T]he Service found [in 2017] that grizzly bears in the [Greater Yellowstone Ecosystem] had experienced robust population growth; state and federal agencies were cooperating to manage bear mortality and habitat; and appropriate regulatory mechanisms were put in place to ensure recovery,” the agency wrote. It also declared Yellowstone-ecosystem grizzlies a “distinct population segment” from those in the Northern Cascades, the Bitterroot, the Northern Continental Divide, the Cabinet-Yaak and the Selkirk areas. “Grizzly bears found in the five other ecosystems [in the Lower 48] remained protected,” the government said.
In ordering the re-listing, the judge noted that delisting Yellowstone-area grizzlies might have an impact on other grizzly populations. But he also found threats to the Yellowstone-area bear itself. One worry is that the geographically isolated Yellowstone population may lack the genetic diversity necessary to persist.
The judge, over many pages in his order, mulled arguments about minimum populations, effective population sizes and other important factors, including federal law. He criticized federal scientists for “failing to recognize that all evidence suggests that the long-term viability of the Greater Yellowstone grizzly is far less certain absent new genetic material.
“Despite its recognition that continued isolation poses a threat to the Yellowstone grizzly, there is no regulatory mechanism in place to address the threat,” the judge wrote.
When the Fish and Wildlife Service decided in 2017 to delist the Yellowstone grizzly, the decision that prompted the successful lawsuit, it “misread the scientific studies it relied upon,” Christensen wrote.
“The Service failed to logically support its conclusion that the current Greater Yellowstone population is not threatened by its isolation.” The judge wrote. “The Service has failed to demonstrate that genetic diversity within the Greater Yellowstone Ecosystem, long-recognized as a threat to the Greater Yellowstone grizzly’s continued survival, has become a non-issue.”
The federal government also agreed it could change the method of counting grizzlies in the future, a process known as “recalibration.” That prospect lead some conservationists, and the judge, to worry that today’s conservative counting method could be changed and allow wildlife managers to justify a smaller number of grizzlies in the ecosystem than exists today.
Abuse of the court system
Those scientific failures were contrary to law, Christensen wrote. The U.S. Fish and Wildlife Service violated the Administrative Procedures Act “by failing to consider an important factor,” when delisting the Yellowstone grizzly, his order states. The agency also violated the APA by arbitrarily and capriciously applying what the ESA calls “the five-factor threats analysis.”
But the suit was a “frivolous abuse of the court system by extreme environmental groups” U.S. Rep. Cheney wrote in a statement. She characterized it as “excessive litigation pursued by radical environmentalists intent on destroying our Western way of life.”
Enzi, too, complained about the lawsuit. “Unfortunately, we have seen environmental groups take advantage of the court system in the face of wildlife management experts and the science presented before us,” he wrote in a statement.
“It is extremely disappointing that grizzly bears in the Yellowstone region will be added back to the endangered species list due to a frivolous lawsuit and a flawed court decision,” Enzi wrote.
Rep. Albert Sommers (R-Pinedale), is a leading Wyoming spokesman for changes to grizzly management. He has a unique view of the issue from a saddle in the grizzly-thick Green River Drift grazing allotment at Union Pass. He doesn’t buy genetic-diversity arguments. Conservationists “want to use this bear to create policy of land use across many states,” he told WyoFile in an interview.
Sommers recalls something that Chris Servheen, the former lead government grizzly scientist, once told him. “We also have to remember bears have been isolated on Kodiak Island for 10,000 years and they’re doing just fine, ” Sommers paraphrased.
Alaska’s Kodiak population differs from Yellowstone in that there are about 3,500 Kodiak brown bears. (Many refer to both species as grizzlies, though they are slightly different.)
“How good is the science on the genetics issue,” Sommers asked, saying conservationists call to preserve natural migration corridors between the grizzly recovery zones in the Lower 48 “are just attempts to tie up policy [regarding] land use.
“I think this genetic connectivity issue is a red herring that underlies some groups’ efforts to try to manage, manipulate this larger landscape with regard to how they want to see [land-use] decision on the ground,” he said.
“It’s really not ‘Is the bear recovered?’” he said of conservationists’ arguments.
Although Sommers agrees with the U.S. Fish and Wildlife Service that Christensen should be overruled, he feels betrayed by his government and its wildlife arm.
“There was a recovery plan that was put in place,” he said of the first protections and program adopted after the original 1975 listing. “I still have a copy of it in my house.”
It outlined how “nuisance problem bears” would be handled in various zones, he said. It mandated a certain number of females with cubs be observed in a variety of areas across the ecosystem before ESA protections would be removed.
“That was a contract with people who live, work and recreate in the area,” he said. “The U.S. Fish and Wildlife Service changed the game. They said that’s not good enough. They keep changing the rules.”
The original requirement was for a number of females with cubs, he wrote in a message. “That was reached and the feds said ‘no it takes 500 animals to have a viable population.’ Then a buffer was needed for 500… then the feds said ‘manage for no fewer than you have.’”
“The goalposts on delisting continue to change and they will continue to change because the bear is being used to fund [conservation] organizations and to fund lawyers,” he said. “It does a disservice to the bear. People are sick of it.”
“The Endangered Species Act is broken.” Sommers said. “The very act that helped this bear recover is now under threat itself because we can’t accept a species has recovered.”
Cheney’s solution
U.S. Rep. Cheney has a bill to resolve that issue. H.R. 1445 The Grizzly Bear State Management Act of 2019 would direct the Secretary of the Interior to remove the Yellowstone ecosystem grizzly bear from the list of endangered and threatened wildlife. within 180 days of passage of the bill.
The measure has a 3% chance of passage, according to an analytical group.
Delisting would occur “without regard to any other provision of statute or regulation that applies to issuance of such rule,” the bill reads. “Such reissuance shall not be subject to judicial review.”
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“USFWS biologists determined the grizzly bear currently exceeds the carrying capacity of the Greater Yellowstone Ecosystem and now occupies more than 22,500 square miles,” Cheney wrote in a statement announcing her bill and criticizing Christensen for ignoring science. “My bill will stop this abuse of the court system and put management of the grizzly back in the hands of experts in Wyoming.”
The Trump administration and Wyoming filed a notice of appeals of Judge Christensen’s decision. Cheney hailed the federal challenge.
“I’m pleased the Trump Administration has listened to the concerns of Wyoming residents and taken action to combat frivolous abuse of the court system by extreme environmental groups,“ she wrote.
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