Wolves often harass grizzly bears in the wild, and now they’re challenging bear recovery in the courtroom.
An appeals court ruling in a federal lawsuit challenging how the U.S. Fish and Wildlife Service removed Great Lakes gray wolves from the Endangered Species Act list could unravel plans to delist grizzlies in the Greater Yellowstone Ecosystem.
The possibility raised enough alarm within the agency that it sent out a request for public comment on the topic last week.
“We had put our final delisting rule out in July and within a week we got the court opinion,” FWS grizzly recovery coordinator Hilary Cooley said during a meeting of the Interagency Grizzly Bear Committee in Missoula on Tuesday. “The Great Lakes wolves were listed for the entire Lower 48 states, and then they carved out a DPS (Distinct Population Segment) and tried to delist them. That’s what we’ve done with the Greater Yellowstone Ecosystem, as well, so we thought we should take a look.”
Grizzly bears were listed as a threatened species under the Endangered Species Act in 1975. The Interagency Grizzly Bear Committee has combined bear experts from the National Park Service, Forest Service, state wildlife agencies and other land managers for more than three decades on the task of removing threats to grizzly bear survival so the bears can be removed from the Endangered Species List.
In August, the U.S. Circuit Court of Appeals for the District of Columbia affirmed a lower-court ruling blocking the wildlife service’s plan to delist the gray wolf in Michigan, Minnesota and Wisconsin while keeping the species protected in the rest of the continental U.S. The case was Humane Society of the U.S. v. Interior Secretary Ryan Zinke.
In its species recovery plans, the wildlife service often uses distinct population segments to draw boundaries around places a plant or animal depends on. That three-state area was considered the Western Great Lakes DPS for gray wolves.
“The fundamental error in the Service’s decision is that, in evaluating whether gray wolves in the Western Great Lakes region are a ‘distinct’ population segment, the Service failed to address the impact that extraction of the segment would have on the legal status of the remaining wolves in the already-listed species,” the appeals court judges wrote. The lower court ruling said that creating a DPS was a “one-way ratchet” that could increase protections, but not decrease them without additional justification. The appeals court modified that, saying a DPS could be used to delist but the agency had failed to do a complete job justifying its action.
“The Service’s power is to designate genuinely discrete population segments; it is not to delist an already-protected species by balkanization,” they added. “The Service cannot circumvent the Endangered Species Act’s explicit delisting standards by driving an existing listing into a recovered sub-group and a leftover group that becomes an orphan to the law. Such a statutory dodge is the essence of arbitrary-and-capricious and ill-reasoned agency action.”
Grizzly bear recovery follows a similar pattern. In July, FWS published its final rule delisting the roughly 700 grizzlies in the Greater Yellowstone Ecosystem, which is one of six DPS ecosystems the bears inhabit or could inhabit in the Lower 48 states. That action has triggered six lawsuits challenging it to date, several of which use the Western Great Lakes wolf decision in their arguments.
FWS is also working on a delisting rule for the Northern Continental Divide Ecosystem, which holds about 1,000 grizzlies in the Rocky Mountains between Missoula and Glacier National Park. But the remaining four ecosystems — the Cabinet-Yaak, Selkirk, Bitterroot and North Cascades — hold only handfuls of bears or none at all.
“The Lower 48 grizzlies were originally listed as all one population,” said Bethany Cotton, wildlife program director for Wildearth Guardians. “If you pull one DPS out, such as the Yellowstone, you have to consider how that affects all the other populations.”
Cotton compared the FWS request for public comment to trying to fix a flat tire on a moving car.
“I’ve never seen anything like this before,” she said of the agency request. “You can’t fix it by papering it over after the fact. You have to go back and withdraw the rule. It’s a glaring problem and they knew it back then.”
The request is separate from another notice FWS published on Monday, requesting public comment on its "Supplement to the Grizzly Bear Recovery Plan: Habitat-Based Recovery Criteria for the Northern Continental Divide Ecosystem."
The document explains proposed standards for delisting grizzly bears in the Northern Continental Divide Ecosystem. That final action could take place next summer.
The FWS public comment request runs through January 8, 2018. Comments can be made online through the FWS website.