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Judge: Grizzlies Back on Endangered Species List

Bad News on Bears

Not only did Judge Dana Christiensen cancel the Wyoming and Idaho grizzly hunts Monday, September 24th, but he also ruled that the U.S. Fish & Wildlife Service (or, “the Service”) exceeded its authority when it delisted the grizzly in the Greater Yellowstone Ecosystem. The judge then ordered the grizzly bear to be reinstated to the Endangered Species List across the lower 48 states.

The Ruling

The judge sided with the native American tribes and various environmental groups that brought two charges. You can read the ruling itself here: https://earthjustice.org/sites/default/files/files/2018-09-24_Doc-266-ORDER.pdf but here’s what he wrote:

(1) the Service erred in delisting the Greater Yellowstone Ecosystem grizzly bear without further consideration of the impact on other members of the lower-48 grizzly designation; and

(2) the Service acted arbitrarily and capriciously in its application of the five-factor threats analysis demanded by the ESA [Endangered Species Act].

The Court finds for the Plaintiffs on both grounds.

Charge #1

This is hard to swallow, especially when in the background section of his ruling he actually quotes without disagreement the USFWS findings that, “The six ecosystems [where the Service has focused on grizzly recovery] are geographically isolated from one another, and there is no evidence of interbreeding. The Greater Yellowstone population’s closest geographic neighbor is located in… [Montana]…’[T]here is currently no known connectivity between these two grizzly populations.’”

So, how does he acknowledge that and then rule that the Service blew it by not studying the effect of delisting the Yellowstone grizzlies on the northern Montana grizzlies?  Good question.

Charge #2

The judge wrote that not studying the effect on other populations violated the requirement to analyze the five factors from the Endangered Species Act (ESA). Well, here they are from pg. 12 of his ruling.

“The Service must make listing and delisting determinations according to a five-factor analysis of potential threats, considering: (A) the present or threatened destruction, modification, or curtailment of [a species’] habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.”

Do you see any requirement related to that? No, neither do I. But he writes that it violates the last one, the one with the word “other.” That’s a real stretch.

Hotel California – Humane Society v Zinke

This is the worst part.  Judge Christiensen writes that this case is like the 2017 Humane Society v. Zinke case. So what?

The ruling in Humane Society was that when a species (in that case, the grey wolf) goes onto the Endangered Species List (ESL) for the lower 48 states, that species must recover in the whole lower 48 states or it stays on the endangered species list. It cannot come off the list area by area.

That case was appealed, and the ruling was upheld by the D.C. federal appeals court. Applied to the grizzly bear delisting, it means that no matter how great the recovery in Yellowstone or in north-central Montana – if the grizzly has not recovered in the Lower 48 as a whole, it has to stay on the Endangered Species List. The Endangered Species List effectively becomes Hotel California – you can put species on the list any time you like but they will never leave. No amount of time will be sufficient for grizzlies to reoccupy the other 98% of their former range and multiply to 50,000 bears.

Poor Management

If this ruling holds it will mean that there will be no local control over grizzlies like Humane Society took it away from wolves. It won’t matter if the wolf decimates moose populations and other ungulates. It won’t matter if grizzlies continue to spread beyond wild areas and destroy livestock and have increasing negative human interactions. They’re protected nationwide.

There is a reason wildlife management is in the hands of the States and the States manage by herd areas. It is because there is too much variation to have the federal government set one rule for 3.8 million square miles.

This is Dangerous

If the states cannot manage wolf and grizzly numbers because they will effectively never leave the ESL how will you stop the increasing grizzly-human interactions as their territory continues to grow? How will we halt the skyrocketing reports of grizzlies killing livestock?  See our recent article Grizzly Crisis in Wyoming for charts on the explosion in self-defense and official “management mortality” (the government taking out problem bears).

The only way to stop either is for the States to increasingly replace hunters and take out those species through “management mortality.” This is managing by exception, not good practice.

What Next?

Late Tuesday, U.S. Congresswoman Liz Cheney introduced the Grizzly Bear State Management Act. https://buckrail.com/cheney-introduces-legislation-to-again-remove-grizzly-from-federal-protection/ It directs the Dept. of the Interior to re-issue its delisting decision and prohibits further judicial review of the action. That’s one way to deal with this. Another is for the appeals court to overturn the grizzly decision. Or, the U.S Supreme Court could overturn Humane Society v Zinke or take the grizzly case after an appeals court ruling.

I’m personally not optimistic on any of these. We’ll see. In the meantime, aggressive and savvy activists have taken the advantage through the courts.

About Dave Hoshour

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15 comments

  1. Free lifetime memberships now available in the SSS club.

  2. Sad state of affairs when bureaucratic bullshit gets in the way of proper management of any species especially a potentially deadly one. Grizz are undoubtedly overpopulated in the greater Yellowstone ecosystem, ask any guide/outfitter that lives & works in the area. The grizz are losing their fear of man and it is down right dangerous in many areas. Just ask the Uptain family.

    • If we had a State Government that had any balls they would do the same thing as Colorado and California did with pot and sanctuary cities and tell the Federal government to pound sand

  3. Unfortunately our reality is that we live in a new era of special interest groups that want to impose their opinions and agendas on other people. Sometimes it’s motivated by money, sometimes to manipulate an outcome or political agenda. When these factors are at the front of any issue the actions taken are usually not the best solution. The fact is as human population grows so does incidents of confrontation with wildlife predators. That’s one of the reasons why state wildlife departments exist. There constant evaluation based on field observations, lab testing and work with the public and ranching communities is the most accurate performed by those with the widest knowledge base. Let the states address these problems because the people that live there are the ones that have to live with it. As far as the hunting issue is concerned, the majority of hunters are conservationists, even if it’s for selfish reasons. Without species to hunt the hunter doesn’t exist!

  4. It’s not the science, research, analysis or resulting data that will decide the way we go It’s the “Courts of Public Opinion.” Whatever copycat social media is trending will make the decisions. People without a clue will scream the loudest. Think not? Just north of us, British Columbia allowed strict managed Grizzly hunting. A long thought out Grizzly Management plan was in place and working. 15,000 Grizzlies was too many. Hunter management, under the guidelines of scientific study, was working well. However, a particularly gruesome kill was captured on video and went viral. Hunting was demanded by viewers to be stopped. It has been. The decision was made by the uneducated and socially misinformed. They pushed the social media hard enough to swing the votes of opposition so high, officials feared losing their elections in the future. The elected officials caved to a video that made non hunters feel bad. Instead of those in the know determining hunting regulations, the masses in the cities had the numbers to scare the career politicians into voting against what was right. No consideration for the human encounters, food supply shortages, outgrown bear habitats, etc. Social media ruled over science. People are sheep. Trendy media is the shepherd.

  5. All 3 states need to not follow up on ANY grizzly shooting until they get the power back to manage them!!!!!

  6. I know too many sportsmen that vote Democrat because they love the gravy train of government money. But elections matter and Democrats appoint liberal judges like this one. An unelected activist that can hold America hostage.

  7. Daniel J Pochciol

    Daniel J Pochciol
    if we need to keep grizzlies on the endangered species list until they have repopulate the entire lower 48 then we need to get started right away reintroducing them in NYC ,
    La , Seattle,Etc let’s see how that goes sign me up for the see club

  8. Maybe the worst part of this is that lawsuits like these take precious dollars away from agencies and nonprofits trying to protect remaining habitat, further constricting and pressuring all wildlife. Two kinds of nonprofits out there… those that act (purchasing habitat, or securing easements for the same outcome) and those that litigate (thereby requiring expenditures on lawyers, rather than something productive). Interestingly, or ironically, the ruling makes habitat limitations one of its first major reasons for re-listing.

    These animal rights groups “representing” wildlife interests ultimately are contributing to species destruction, and biodiversity decline through these massive wastes of limited funding via litigation. The state game agencies, and the usfws are going to do a great job of balancing management decisions for the bears, the same as they do for all other species, game and nongame, funded with sportsmans dollars. If they are allowed to.

    Sportsmen willingly fund all wildlife management, and the vast majority of habitat purchases. These special interest (read protecting individual animals vs species) folks spend their dollars on lawyers and cost wildlife and wildlife science millions in legal fees in the process.

    It is an outrage to divert monies in this way. The very bears they allege to desire to protect will ultimately end up suffering more as a result of these groups’ misguided, emotional shortsightedness, as will all other wildlife. And those are our dollars… license fees, Pittman Robertson dollars, etc. Nice.

    Hopefully the lawyers will be able to move on to more productive litigation when Congress (unfortunately) guts the endangered species act as a result of this stupidity. Maybe they can find work in Hollywood.

  9. If the science is sound and the species should be delisted then if it’s challenged in court via lawsuit those who bring the lawsuit should be financially responsible to pay for any conflicts caused by this decision, plus also pay for any on going studies with the particular species. If these groups had to be financially responsible for these animals I believe it may cause them to think twice about these lawsuits.

    • Good luck with that. These so called animal rights groups contribute nothing to the welfare of the animals they claim to be saving. The money comes from the license buying Sportspeople of the various States affected by this ruling. Wyoming G&F has spent millions already. Not sure about Montana or Idaho.

  10. Congresswoman Cheney has the right idea. Change the law so the activist judges don’t have the leeway to continually move the goal posts.

    That said… there was a time when the men of the west didn’t look for permission from Washington DC to solve a problem.

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