Somewhere at the bottom of Hell’s Canyon, Idaho, three state wildlife agency leaders have a smoldering grizzly bear ruling to ponder.
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. All three were not available for comment on Tuesday, owing to lack of cell service in the mile-deep canyon.
That’s about as deep as U.S. District Judge Dana Christensen buried the U.S. Fish and Wildlife Service’s final rule removing Endangered Species Act (ESA) protection for Yellowstone grizzly bears. It almost certainly means no grizzly hunting will take place in 2018 in Wyoming or Idaho. 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.
“By vacating and remanding the final rule, the judge was saying you as an agency have to issue something in the Federal Register to show the public this order has been vacated,” said University of Montana law professor Sandi Zellmer, who specializes in ESA topics. “You need to clean up your house and reflect that in your records, whether or not you do another delisting decision sometime in the future.”
The agency acknowledged that responsibility in its official response on Tuesday, adding it was disappointed with the ruling.
“We stand behind our scientific finding that the Greater Yellowstone Ecosystem grizzly bear is biologically recovered and no longer requires protection under the Endangered Species Act,” the FWS statement read. “Our determination was based on our 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. In light of the court’s ruling, management of grizzly bears returns to the federal government, and we will work with the states and tribes to ensure that this transition proceeds in accordance with the court’s order. The Service will examine this ruling to determine its likely impact on the future of this recovered iconic species.”
The Fish and Wildlife Service delisted Greater Yellowstone Ecosystem grizzlies in 2017 and planned to do the same for the estimated 800 bears in the Northern Continental Divide Ecosystem (NCDE) by the end of this year. Christensen’s ruling pointed out several problems the federal agency must fix before it can try again to hand grizzlies over to state management in the Greater Yellowstone Ecosystem. Zellmer said those same problems may hamstring the agency’s plan to delist the Northern Continental Divide Ecosystem grizzlies.
“The way he strung together the Greater Yellowstone and Northern Continental Divide populations in this opinion is a pretty strong signal they will have the same problems with that one,” Zellmer said. “Balkanization is Balkanization.”
By that, Zelmer referred to the problem of breaking isolated groups of threatened species into legally separate populations covered by different rules. It recalls the problem when the former Yugoslavia dissolved into warring Balkan states.
When it was first designated a threatened species in 1975, the grizzly’s Endangered Species Act 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 and Northern Continental Divide ecosystems had the most public land and strongest bear concentrations.
The Cabinet-Yaak Ecosystem in northwest Montana and Selkirk Ecosystem in northern Idaho have relatively tiny populations of 40 to 50 apiece. The North Cascades had possibly 20 grizzlies that wandered across the Canadian border, rarely staying on the U.S. side. And the Bitterroot Ecosystem on the Montana-Idaho border has no resident grizzlies, although it still has an approved plan to introduce an experimental population there.
The first problem Christensen identified was 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.
“When it delisted the Greater Yellowstone population, the service did not undertake the comprehensive review mandated by the ESA,” Christensen wrote. “Instead, it simply pointed to the continued listing of the continental grizzly as proof that the delisting would do no harm to members of the species outside the Greater Yellowstone Ecosystem. … That the Greater Yellowstone grizzly delisting may influence the other continental populations should come as no surprise to the service; Indeed the isolation and lack of connectivity between grizzly populations was a recognized threat at the time of the original listing.”
Mike Bader, a long-time critic of grizzly delisting, said the NCDE plan also lacked that analysis.
“We pointed that out in our habitat-based recovery criteria comments,” Bader said, referring to the public review of plans to protect NCDE bears. “They’ve never done that analysis. The ESA listing said you had to link all these populations together for recovery, and they just abandoned that strategy.”
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.
Montana Fish, Wildlife and Parks spokesman Greg Lemon said the agency remains confident those studies and computer models will provide a strong scientific basis for managing grizzly bears in the state. And it will push forward with an Administrative Rules of Montana process to codify how it will count and monitor grizzly populations in the Northern Continental Divide Ecosystem.
“Our end game is not having a grizzly bear hunt season,” Lemon said. “Our focus is to manage grizzly bears on the landscape, including responding to conflict, educating the public about being safe in bear country, minimizing conflicts, and keeping grizzly bears at or above recovery levels.”
Meanwhile, Wyoming Game and Fish officials are talking with the 22 people who won permits in a state lottery for hunting grizzlies this fall. That hunt has been indefinitely postponed. Game and Fish spokesman Renny MacKay said on Tuesday the department was still sorting out options for refunds, extensions or cancellations of the permits.
In a statement on Tuesday, Wyoming Gov. Matt Mead said he was disappointed with the decision.
“Biologists correctly determined grizzly bears no longer needed ESA protections,” Mead wrote. “The decision to return grizzly bears to the list of threatened and endangered species is further evidence that the ESA is not working as its drafters intended. Congress should modernize the ESA so we can celebrate successes and focus our efforts on species in need.”
Mead added Wyoming had invested about $50 million over the four decades since grizzlies were given Endangered Species Act protection in 1975. He said the Yellowstone-area bear population growth from an estimated 136 then to more than 700 today should be viewed as a conservation success story.
Idaho planned a one-grizzly season for Sept. 1 through Nov. 15. An unidentified Ada County resident drew the tag on July 20 out of 1,272 applicants. The Idaho hunt has also been indefinitely canceled.