Appeals court rules grizzlies must remain listed

POWELL — A panel of federal judges ruled today that grizzly bears in the Greater Yellowstone Ecosystem must remain under Endangered Species Act protections.

The three judges on the U.S. Court of Appeals for the Ninth Circuit upheld a 2018 ruling from a U.S. District Court judge in Montana.

The U.S. Fish and Wildlife Service, Wyoming, Montana and Idaho, regional and private hunting and farming organizations had all challenged Judge Dana Christensen’s order.

However, Circuit judges Mary M. Schroeder, Paul J. Watford, and Andrew D. Hurwitz agreed that Fish and Wildlife’s delisting rule was arbitrary and capricious, “because there are no concrete, enforceable mechanisms in place to ensure long-term genetic health of the Yellowstone grizzly.”

The appellate judges also agreed that Fish and Wildlife failed to consider the best available science and neglected to recalibrate data critical to estimate current grizzly populations.

Wyoming, Montana and Idaho officials argued that any commitment to recalibration would be unnecessary and speculative because they’ve committed to using the current population estimator for the foreseeable future, but the court of appeals rejected that argument.

Christensen, of Missoula, had concluded that Fish and Wildlife dropped a previous commitment to recalibration because of political pressure from Idaho, Montana and Wyoming, and thus violated the Endangered Species Act. In writing for the appellate court, Judge Schroeder said that Christensen’s conclusion “was based upon a careful analysis of the record.”

Christensen’s decision effectively shut down plans to offer a limited number of hunting permits for the iconic species in Wyoming and Idaho in 2018. That decision now stands with Wednesday's ruling.

“The court rightfully rejected the misguided proposal to subject Yellowstone grizzlies to trophy hunting for the first time in 40 years. The grizzly is an icon of our remaining wildness at a time when our wilderness is shrinking and our wildlife is under assault,” said Tim Preso, attorney for conservation activist group Earthjustice, who also represented the Northern Cheyenne Tribe, Sierra Club, Center for Biological Diversity and National Parks Conservation Association in the suit.

Andrea Zaccardi, senior attorney at the Center for Biological Diversity, called the decision a “tremendous victory for all who cherish Yellowstone’s grizzly bears.”

“Grizzlies still have a long way to go before recovery. Hunting these beautiful animals around America’s most treasured national park should never again be an option,” she said in an email.

Wyoming Gov. Mark Gordon expressed frustration and disappointment in the decision.

“Wyoming has done more research and hard work than virtually anyone else on the grizzly bear. Its population in Wyoming has exceeded biological recovery goals for more than a decade,” he said. “Management of this important Wyoming species belongs in the hands of our state’s wildlife experts and we hope to soon once again manage the species responsibly. Together with the attorney general we will now further review the decision and consider the state’s options.”

Barring further appeals, Wednesday's ruling will force delisting advocates to start fresh, possibly with a new rule from the service. However, the Ninth Circuit panel did vacate a portion of Christensen’s order calling for a “comprehensive review” of the remnant grizzly population — a task officials said could take years to complete.

Original arguments before the panel were held in May. The federal government had, at the time, promised to go back to the drawing board on a delisting rule for Yellowstone ecosystem grizzlies, but challenged on recalibration and the comprehensive review.

Fish and Wildlife Grizzly Bear Recovery Coordinator Hilary Cooley was prophetic in saying shortly after Christensen’s decision that she thought the service “would not be successful on appeal.”

“If we’re not successful, that’s two years we’ve wasted,” Cooley told the Legislature’s Travel, Recreation, Wildlife and Cultural Resources Committee in November 2018.