“What Are We Fighting About?” 9th Circuit Hears Yellowstone Grizzly Bear Delisting Case

by Louisa Willcox

Court hearings over the fate of grizzlies have always made me nervous, and the one on May 5th was no exception. For the second time in ten years, a three-judge panel of the 9th Circuit Court of Appeals heard oral arguments on whether or not Yellowstone grizzlies should be protected under the Endangered Species Act (ESA). The future of Yellowstone’s bruins rests upon whether or not this panel upholds a 2018 order issued by Montana District Judge Dana Christensen to restore endangered species protections for the Yellowstone population.

My throat tightened when Judge Andrew Hurwitz asked: "What are we fighting about here?" The answer has more to do with morality and compassion than it does with legal technicalities. And the question deserves to be examined in light of three decades of court battles over Yellowstone grizzlies – battles that I’ve watched from a front-row seat.

First, some context. The panel’s hearing capped a legal dispute that has raged for the past three years over whether endangered species protections for the Yellowstone bear should be stripped. A final ruling is expected in the next several months. At issue is whether management authority should be turned over to the states of Idaho, Wyoming and Montana – states that plan to kill more bears, including by trophy hunting.

The hearing was surreal because the federal government had already conceded defeat, agreeing with the plaintiffs that the US Fish & Wildlife Service (the Service) needed to step back and analyze how delisting Yellowstone’s bears would affect recovery of grizzlies in other nearby populations. In another example of legal arcana, grizzlies in the more robust population around Glacier Park, as well as in the Selkirks and Cabinet-Yaak, are considered part of the “remnant.”

Judge Hurwitz was justifiably confused by the fact that federal lawyers were demanding the Court’s precious time to contest what seemed an uncontested issue, asking: “Is there anybody in this case who doesn’t think the remnant shouldn’t remain listed? Tell me what we’re fighting about if everybody agrees the remnant should remain listed.”

Department of Justice attorney Joan Pepin, who represented the Service, agreed but then dodged, asking the court to narrow the scope of Christensen’s ruling to give the agency maximum “flexibility.” Pepin doth protest too much, I thought.

So what was this hearing about anyway? In a word: Wyoming.

What are We Fighting About? Wyoming and State Management

I have no doubt that Wyoming led the charge into the 9th Circuit. Indeed, for the last three decades, Wyoming Game and Fish (WGF) Department has spearheaded the fight to wrest control over managing grizzlies from the federal government.

So it was hardly surprising to see Wyoming’s attorney, Jay Jerde, presenting arguments on behalf of intervenors that included Idaho and -- tellingly -- the NRA, Safari Club, and livestock organizations.

Like me, Jerde has gotten grizzled during the many years he’s contested management of Yellowstone bruins. But his age-worn tune hasn’t changed: “the bear is recovered, we are the professionals, and federal management of endangered species violates state sovereignty over wildlife. Give us the keys to grizzly bear management.”

I first heard this mantra in 1992, when WGF Director Pete Petera tried to bully the Service into delisting Yellowstone grizzlies. But Wyoming (in concert with Idaho and Montana) had begun agitating to remove ESA protections as early as 1985 when Yellowstone grizzlies were at their nadir of only a few hundred bears. The states’ zeal may seem baffling unless you consider their longstanding financial dependencies on hunters, their belief that large carnivores are part of a zero-sum competition for elk, their blind devotion to hunting, and their obsessive quest for power.

Delisting would allow the states to unleash a lethal regime on Yellowstone’s grizzly bears, exacerbating recent population declines triggered by the climate-driven loss of whitebark pine— a source of food that had been (and in some places still is) a staple of Yellowstone bears. There is little doubt that state management would push bears in this ecosystem back to the precipice they narrowly escaped only because of federal intervention under the ESA.

Nonetheless, Jerde requested that the Court reject Judge Christensen’s order in its entirety and reinstate the Service’s 2017 rule that had delisted grizzlies and triggered the current round of litigation.

Importantly, Wyoming would not have had its day in court if the Service, the Defendant in the case, had declined to appeal Christensen’s ruling. Having seen plenty of tantrums by Wyoming Game and Fish officials over the years – including threats to walk away from grizzly bear management entirely if the Service did not rush to delist – I could just imagine the drama behind the scenes that led to the federal government’s half-hearted appeal. (It should be said that the Service shares the states' delisting agenda, but with a more civil demeanor and, sometimes, a tad more sense).

At a fundamental level, this hearing was about little more than the federal government giving Wyoming a stage to throw another fit -- in front of a different audience.

But, for the grizzly, the stakes could not be higher.

Washing Dishes: Binding or Voluntary?

On behalf of WildEarth Guardians, Matt Bishop of Western Environmental Law Center addressed the threats posed by long-term genetic isolation of Yellowstone's grizzly population. In his relisting order, Christensen had found that the government had not adequately addressed this issue, noting that the Service had “illogically cobble[d]” together studies to demonstrate that the population’s isolation was no longer a threat to the species’ continued survival.”

Bishop reinforced his conclusion, saying: “Not a single (scientific) paper has said that grizzlies are OK in the long term.”

Scientists are increasingly concerned about the century-plus isolation of Yellowstone grizzlies, which is especially worrisome given the population’s relatively small size. Out of a population of 740 or so animals, only a couple hundred can potentially breed. In the long term, geneticists believe that this is a recipe for disaster, and argue that the best solution is to reconnect Yellowstone to other grizzly bear populations. Experts also maintain that relocating grizzlies to Yellowstone from other populations is a move of last resort.

In recent years, grizzlies have been expanding westward from Yellowstone and southeast from the Northern Continental Divide, raising hopes for natural connectivity. But Bishop warned that hunting grizzlies on the ecosystem’s periphery would reverse this progress.

In response to questioning, Pepin said that the Service would consider translocating grizzlies to Yellowstone to augment genetic diversity if Northern Rockies populations did not reconnect naturally. But she did not commit the government to any course of action to address the problem.

Bishop made the case for binding rather than discretionary commitments. He got the only smile of the day from all three judges when he used the analogy of negotiating with his teenage daughter over washing the dishes: would she do what he asked or just consider the request?

Clearly, a win on this issue could boost prospects for reconnecting grizzly bear populations in the Northern Rockies, including recolonization of the vast Selway-Bitterroot ecosystem that grizzlies are just now rediscovering.

Paper vs. Real Bears and the Counting Problem

Jerde was especially worked up over the lower court’s decision regarding management of bear mortality if new methods are adopted to count bears — an issue called “recalibration.” Judge Christensen had found that future changes in methods for estimating population size could result in creating “paper bears” and allow state managers to kill hundreds more bears by using different but convenient statistical gimcrackery. The Service can change methods, he ruled, but it must ensure that management of mortality is prudent and precautionary.

During deliberations in 2016 over the Service’s draft delisting rule, both the former Director of the Service, Dan Ashe, and former Yellowstone Park Superintendent, Dan Wenk, had raised concerns about the consequences of creating paper bears. Both were called to heel by higher-ups catering to state interests.

Jerde claimed that methods for counting bears would not change for the “foreseeable future.” But federal scientists have repeatedly stated that they will soon unveil a new method – a fact that 9th Circuit Judge Paul J. Watford echoed, saying: “There are strong indications in the very near future a new population estimator will be adopted.”

The most likely method on the horizon would almost certainly boost bear numbers by a substantial amount. If benchmarks for managing mortality are not correspondingly “recalibrated,” the states would have free rein to kill literally hundreds of bears. Due to weak post-delisting monitoring, a major drop in the population would probably not be detected in time to reverse course. Even if problems were detected, would be no binding mechanisms to correct them. More on this later.

What We Need to Keep Fighting About: Climate Change and Dead Bears

Because the hearing focused narrowly on procedural and jurisdictional issues, the most critical and immediate threats to Yellowstone’s bears -- climate change and unsustainable bear deaths -- did not come up, although the Court could consider these issues given that they are amply covered in written briefing materials.

This Court is no stranger to the threats posed to Yellowstone’s grizzlies by climate change. In fact, climate change had been front and center in litigation over a previous attempt to delist Yellowstone grizzlies in 2007. The 9th Circuit Court upheld a 2009 order by District Judge Donald Molloy to reinstate ESA protections on the grounds that the Service had failed to consider the impacts of the climate-driven collapse of whitebark pine – and had even lied about the severity of the problem.

As I listened to the hearing last week, I could not help but reflect on the previous 9th Circuit hearing during 2009. For me, a highlight from that earlier give and take was a question posed by Judge Susan Graber: “Isn’t it true that female grizzlies produce fewer cubs after years of poor whitebark pine seeds?”

True indeed – and the kind of question that you would expect a mother to ask, not to mention someone invested in understanding the science relevant to grizzly bears. It was also true that, by 2009, a mountain pine beetle outbreak unleashed by a warming climate had killed over 70% of Yellowstone’s whitebark pine, making every year a poor year for seed crops.

These forests have continued to succumb to beetles and an introduced pathogen called white pine blister rust, while the terrible consequences have become increasingly clear. Pepin’s dismissal of any negative effects arising from loss of whitebark pine was hardly surprising given that the government has spent millions of taxpayer dollars during the past ten years attempting to paper over the threat posed to grizzlies by climate change.

Since losing in court, government researchers funded by the Service have produced more than a dozen narrowly focused publications with an overt partisan spin designed to bolster the case for delisting. Virtually all of this research relied on impenetrable models, flawed assumptions, faulty logic, and data that the government tenaciously hides. Their conclusions? Bears are omnivores (no kidding), and dandelions and ants are great substitutes for calorie-rich pine seeds. (Really?)

Government models notwithstanding, grizzlies have not been faring well. Resourceful bears have been compensating for the losses of pine seeds by seeking out other high-calorie foods, largely in the form of meat. In a trend I would not have predicted a decade ago, bears are increasingly predating on cows and scavenging elk meat left by big game hunters. Learning that the sound of a gunshot can be a dinner bell, bears are mixing it up with hunters in contests that grizzlies typically lose. Today, conflicts with hunters and livestock producers have replaced conflicts over garbage and human attractants as the leading causes of grizzly bear deaths.

Shattering Records of Grizzly Deaths

The death toll reflects these changes. Between 2015 and 2018 grizzly bear deaths shattered previous records -- in a population that has been flatlined for nearly 20 years. What is particularly disturbing is that in 2018 eleven deaths were listed as “Under Investigation” for possible poaching. This unprecedented spike occurred just one year after Yellowstone grizzlies were delisted. As has been documented elsewhere, removal of protections was perhaps construed by some people as tacit permission to unleash a personal vendetta against bears.

Not surprisingly, the deaths exceeded the government’s thresholds of allowable mortality during 2015-2018. Mortality limits are one of the very few standards that were included in the Service’s 2017 delisting rule -- and it matters given that excessive human-caused deaths helped land the bear on the endangered species list in the first place.

According to the delisting rule, if allowable limits are breached two years in a row, bear managers are supposed to do something. But they have not even admitted to a problem.

Interestingly, starting in 2015, the Interagency Grizzly Bear Study Team, charged with keeping mortality records, stopped reporting on whether thresholds were breached. You can figure this out for yourself by scrutinizing the Study Team’s annual reports, but it’s complicated. The point is that managers may have no clue they have a problem.

In fact, that seems to be the case. At a recent meeting of Yellowstone grizzly bear managers, a Committee charged with investigating how human-grizzly bear conflicts might be reduced erroneously claimed that “grizzly mortalities are below threshold.”

As numbers of grizzly bear deaths mount, the population is at a tipping point. And our climate will almost certainly continue to warm, with worsening consequences for bears. Models show that we are likely to lose army cutworm moths, another staple food for Yellowstone grizzlies that has, for now, picked up some of the slack left by dead whitebark pine. Moths rely on alpine flower nectar, but as tundra migrates off the top of the mountains during the next century, moth habitat will disappear. Berries are expected to decline too. These losses will likely prompt grizzlies to continue foraging closer to people, with predictable results.

Although the 9th Circuit may not rule on these issues, the fight over climate change and its impacts on bears will not end any time soon.

What Could Have Been: Adequate Regulatory Mechanisms

During the hearing I found myself staring at Chief Judge Sidney Thomas’ mug shot on the Court’s home page and thinking about his role ten years ago in the decision to keep grizzlies protected. With Judge Graber he had served on the panel that upheld Judge Donald Molloy’s finding regarding whitebark pine. However, two out of the three judges on the panel (Graber and Tallman) over-turned Molloy’s finding that post-delisting regulatory mechanisms were not adequate to maintain the population because they were not binding.

In dissenting with his colleagues, Judge Thomas wrote: “There is not a single federal or state law or regulation that provides a means for enforcing the [Conservation] Strategy’s mortality standards. Rather, if the grizzly population becomes threatened, the agency is to review the situation and call a committee meeting. And that only occurs if the mortality limits are exceeded for at least two years.

The Service’s reliance on voluntary action is contrary to law. … Good intentions are not rules of law. Unenforceable aspirational goals are not regulatory mechanisms. Promises to monitor, review, and convene committees do not satisfy the statutory requirement.”

He agreed with Molloy who wrote: “The majority of the regulatory mechanisms relied upon by the Service — the Conservation Strategy, Forest Plan amendments, and state plans — depend on guidelines, monitoring, and promises, or good intentions for future action. Such provisions are not adequate regulatory mechanisms when there is no way to enforce them or to ensure that they will occur.”

Molloy also took aim at the government’s “damn the torpedoes” approach to delisting – an approach that has not changed in the intervening decade.

As Matt Bishop described, post-delisting plans are still built on a quicksand of promises. I am not alone in thinking that the fight over grizzlies today would be less ferocious if the government had adopted binding regulations along with mechanisms to trigger corrections should problems arise.

Parenthetically, Molloy and Thomas are both Montanans -- born, raised and educated in the state. Christensen, who was appointed to the seat on the United States District Court for the District of Montana that was vacated by Molloy, went to law school at the University of Montana and has lived in Montana since 1976. Could it be that living in a state where you are likely to rub shoulders with wildlife managers offers special insights into how grizzlies might be managed?

I am reminded of a day, years ago, when I overheard another federal judge, also from Montana, say to an attorney: “you know, I don’t know why you would ever trust the states with the grizzly.”

Touché.

Of Commonsense and The Court of Public Opinion

No matter what the 9th Circuit decides, this will not be the Court’s last word about the bear. After Pepin conceded that there would likely be opportunity for further judicial review, Judge Mary Schroeder dryly noted: “I am sure of that.”

Still, litigation is always a roll of the dice. For decades, we have been relying on lawyers to save the Yellowstone grizzly from doom. They have been remarkably successful, but leaning too hard on lawyers is a dangerous game – and why I have a knot in my stomach and my well-washed fingers crossed.

We have long needed to take this fight to the court of public opinion. To address the current crisis, we need to strengthen law enforcement and improve coexistence practices. There is no lack of ideas or expertise on this front. Since 1991 bear managers have produced numerous reports containing detailed recommendations, many related to reducing numbers of hunter- and livestock-related conflicts. Few have been comprehensively implemented, largely because of insufficient funding, courage, and political support.

Reducing conflicts between bears and people is not something we should be fighting over, but rather a commonsense win-win solution.

We can also do more politically. We can ask our representatives to support the Tribal Heritage and Grizzly Bear Protection Act sponsored by Congressman Raul Grijalva (D-AZ). The bill would ban trophy hunting and protect grizzlies for their ecological and cultural values. It would also guarantee Native American Tribes a role in conserving and managing the grizzlies that many Tribes consider to be sacred. Moreover, many Tribes have legal claim to lands where grizzlies could be recovered, including substantial areas that could reconnect existing populations.

Reform of state wildlife management is also increasingly important. The numbers of people who value wildlife for intrinsic reasons are climbing at the same time that hunter numbers are dropping. More and more, the public is demanding that state managers protect wildlife for its own sake, rather than for hunting. (I have written about this complicated issue here and here.) More practically, we need to provide financial and other incentives for state agencies to serve the broader public interest, not a well-heeled minority of hunters and ranchers who have been driving the states’ “damn the torpedoes” approach to grizzly bear management.

After thanking the bear’s devoted lawyers one more time, there is a lot we can do right now for grizzlies, including giving them more space and more compassion. We also need to make our governments accountable and worthy of our trust. Ultimately, how we manage grizzlies in their last refuges in Yellowstone and the Northern Rockies is a measure of who we are. Are our hearts big enough to keep grizzlies in our midst?

You can listen to the May 5th 9th Circuit court hearing here.